The Fish and Wildlife Service proposed Wednesday to restore automatic protections for species listed as “threatened," as the Biden administration moved to roll back a Trump-era overhaul of the way the Endangered Species Act is implemented. 

The proposed revisions “are poised to undo most if not all of [that] administration’s damage to the Act,” said Earthjustice, an environmental law firm.

But a key Republican congressman, House Natural Resources Committee Chairman Bruce Westerman, R-Ark., blasted the proposals. “The Biden administration is rolling back commonsense reforms and further turning the ESA into a political battering ram rather than a conservation tool,” he said.

Defenders of Wildlife said the automatic protection provision ” “gives threatened species on land and in freshwater the same protections as endangered species unless otherwise specified."

That language was included in a proposed rule from the Fish and Wildlife Service. Two more were issued jointly by FWS and the National Marine Fisheries Service. (See here for all three proposals.)

Industry groups were mostly in favor of the Trump administration's revisions, which environmentalists challenged in court. After Joe Biden was elected president, the new administration decided the regulations warranted review.

In one of the three proposals, FWS and NMFS said they plan to restore regulatory language “to clarify and affirm that, consistent with the plain language of the statute, the economic impacts and any other impacts that might flow from a listing decision must not be taken into account when making listing, reclassification, and delisting (collectively, classification) determinations.”

They also proposed language that would make it easier to designate as critical habitat areas unoccupied by a species as critical habitat.

Specifically, FWS and NMFS proposed removal of a sentence saying that the services would only consider unoccupied areas as essential for a species’ conservation if currently occupied habitat were deemed inadequate.

“Neither the Act nor the legislative history creates a requirement to exhaust occupied areas before considering designation of unoccupied areas,” that proposal says.

The Center for Biological Diversity, a frequent plaintiff in lawsuits brought against FWS, EPA and other federal agencies, said that taken together, the proposals retain “a number of harmful provisions governing the responsibility of federal agencies to avoid jeopardizing protected species or adversely modifying their critical habitat. In particular, it retains a definition of adverse modification that requires federal actions to affect species’ critical habitat ‘as a whole’ before real habitat protections are put in place.”

The Natural Resources Defense Council took a more upbeat view. Staff attorney Lucas Rhoads said the proposals “would restore many of the protections that had been lost, strengthening key habitat safeguards and restoring common-sense protections to recover species and prevent them from sliding further towards extinction.”

The updates are a “a mixed bag, with some troubling Trump-era changes remaining in place,” Rhoads said. Nevertheless, he added, “the Endangered Species Act is poised for a much happier 50th anniversary now than it was before these revisions were released.”

The proposals will be published in the Federal Register Thursday, triggering a 60-day comment period.

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