Endangered and Threatened Wildlife and Plants; Interagency Cooperation Regulations

DEPARTMENT OF THE INTERIOR <SUBAGY>Fish and Wildlife Service</SUBAGY> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 402</CFR> <DEPDOC>[Docket No. FWS-HQ-ES-2025-0044, FXES11140900000-256-FF09E23000; Docket No. 251105-0167]</DEPDOC> <RIN>RIN 1018-BI75; 0648-BN79</RIN> <SUBJECT>Endangered and Threatened Wildlife and Plants; Interagency Cooperation Regulations</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> U.S. Fish and Wildlife Service, Interior; National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce. <HD SOURCE="HED">ACTION:</HD> Proposed rule; request for comment. <SUM> <HD SOURCE="HED">SUMMARY:</HD> We, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS; collectively, the “Services”) propose to revise portions of our regulations for section 7 of the Endangered Species Act of 1973, as amended (ESA or Act). The proposed revisions to the interagency cooperation regulations confirm the Services' application of statutory requirements for interagency cooperation, while continuing to provide for the conservation of listed species. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received by December 22, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> <E T="03">Comment submission:</E> You may submit comments and information on this document by one of the following methods: (1) <E T="03">Electronically:</E> Go to the Federal eRulemaking Portal: <E T="03">https://www.regulations.gov.</E> In the Search box, enter FWS-HQ-ES-2025-0044, which is the docket number for this rulemaking action. Then, click on the Search button. On the resulting page, in the panel on the left side of the screen, under the Document Type heading, check the Proposed Rule box to locate this document. You may submit a comment by clicking on “Comment.” Please ensure that you have found the correct rulemaking before submitting your comment. Comments must be submitted to <E T="03">https://www.regulations.gov</E> before 11:59 p.m. (Eastern Time) on the date specified in <E T="02">DATES</E> . (2) <E T="03">By hard copy:</E> Submit by U.S. mail to: Public Comments Processing, Attn: FWS-HQ-ES-2025-0044; U.S. Fish and Wildlife Service, MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803. We request that you send comments only by the methods described above. We will post all comments on <E T="03">https://www.regulations.gov.</E> This generally means that we will post any personal information you provide us (see Request for Comments, below, for more information). <E T="03">Availability of reference materials:</E> References and in accordance with 5 U.S.C. 553(b)(4) a summary of this proposed rule is available at <E T="03">https://www.regulations.gov</E> at Docket No. FWS-HQ-ES-2025-0044. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Craig Aubrey, Chief, U.S. Fish and Wildlife Service, Ecological Services, Division of Environmental Review, 5275 Leesburg Pike, Falls Church, VA 22041-3803, telephone 703-358-2442; or Tanya Dobrzynski, National Marine Fisheries Service, Office of Protected Resources, Endangered Species Act Interagency Cooperation Division, 1315 East-West Highway, Silver Spring, MD 20910, telephone 301-427-8400. Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States. Please see Docket No. FWS-HQ-ES-2025-0044 on <E T="03">https://www.regulations.gov</E> for a document that summarizes this proposed rule. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Background</HD> The Secretaries of the Interior and Commerce (the “Secretaries”) share responsibilities for implementing the Endangered Species Act, as amended (hereafter referred to as ESA or the Act; 16 U.S.C. 1531 <E T="03">et seq.</E> ), and authority to administer the Act has been delegated by the respective Secretaries to the Director of FWS and the Assistant Administrator for NMFS. Together, the Services have promulgated regulations that establish the procedures governing interagency cooperation under section 7 of the Act, which requires Federal agencies, in consultation with and with the assistance of the Secretaries of the Interior and Commerce, to insure that any action authorized, funded, or carried out by such agencies is not likely to jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of critical habitat of such species. These joint regulations, which are codified in title 50 of the Code of Federal Regulations (CFR) at part 402 (50 CFR part 402), were revised in 2019 (84 FR 44976, August 27, 2019) and again in 2024 (89 FR 24268, April 5, 2024; hereafter, “the 2019 rule” and “the 2024 rule,” respectively). States and environmental organizations challenged the 2019 regulations in the Northern District of California, with other States and industry participants intervening to support the regulations ( <E T="03">Ctr. for Biological Diversity</E> v. <E T="03">Haaland,</E> No. 19-cv-5206 (N.D. Cal.) (related to <E T="03">California</E> v. <E T="03">Haaland,</E> 19-cv-6013, and <E T="03">ALDF</E> v. <E T="03">Haaland,</E> No. 19-cv-6812)). The district court remanded the regulations to the Services, and the Services developed the 2024 regulations, affirming some parts of the 2019 rule and revising or rescinding others. The 2024 rule became effective on May 6, 2024. Like the 2019 rule, portions of the 2024 rule were challenged in several court cases ( <E T="03">National Hydropower Ass'n</E> v. <E T="03">U.S. Fish & Wildlife Service,</E> No. 1:24-cv-02285 (D.D.C.) (challenges to the 2024 revisions to 50 CFR 402.14(i)(1)-(3), allowing the incorporation of offsets into reasonable and prudent measures); <E T="03">Ctr. for Biological Diversity</E> v. <E T="03">Dept. of the Interior,</E> No. 4:24-cv-04651-JST (N.D. Cal.) (substantive and procedural challenges to both the 2019 and 2024 regulations); <E T="03">Am. Farm Bureau Fed'n</E> v. <E T="03">U.S. Fish & Wildlife Service,</E> No. 1:25-cv-00947 (D.D.C.) (challenges to the 2024 rule and request to reinstate the 2019 rule)). Additionally, months after the 2024 rule went into effect, the Supreme Court issued <E T="03">Loper Bright Enterprises</E> v. <E T="03">Raimondo,</E> 603 U.S. 369 (2024). This case overruled <E T="03">Chevron, U.S.A.</E> v. <E T="03">Natural Resources Defense Council,</E> 467 U.S. 837 (1984), which previously allowed courts to defer to “permissible” agency interpretations of ambiguous statutory language, even where another, more reasonable interpretation existed ( <E T="03">Id.</E> at 843-44 and n.11). Further, several Executive Orders (E.O.s) were issued following the 2024 rule's promulgation and the <E T="03">Loper Bright</E> decision that direct agencies to reconsider multiple aspects of the regulatory process. First, on January 20, 2025, President Donald Trump signed E.O. 14154, “Unleashing American Energy.” Section 3(b) of that E.O. requires that agency heads begin implementing action plans to suspend, revise, or rescind all agency actions identified as unduly burdensome on the development of domestic energy sources. Second, on January 24, 2025, President Trump issued E.O. 14181, “Emergency Measures to Provide Water Resources in California and Improve Disaster Response in Certain Areas.” Section 2(e) of that E.O. directed the Secretary of the Interior to “promptly review, revise, or rescind any regulations or procedures specific to implementation of section 1536 of title 16 United States Code, as needed and consistent with applicable law, to conform with the plain meaning of the statute.” The 2024 rule includes regulations specific to the implementation of section 1536 of title 16 of the U.S. Code and is therefore directly implicated by this E.O. Third, on February 19, 2025, the Services were directed to review their regulations for consistency with statutory text through E.O. 14219, “Ensuring Lawful Governance and Implementing the President's `Department of Government Efficiency' Deregulatory Initiative.” The E.O. requires review of various classes of regulations, and section 2(a)(iii) specifically requires review of any “regulations that are based on anything other than the best reading of the underlying statutory authority or prohibition.” Secretary of the Interior Burgum also issued Secretary's Order (S.O.) 3418 to implement E.O. 14154. Section 4(b) of S.O. 3418 requires FWS to review the 2024 regulations and develop a plan to “suspend, revise, or rescind” the 2024 regulatory revisions, as appropriate. In compliance with these directives, the Services immediately began coordinating to re-evaluate the 2024 rule. The agencies, as discussed further below, have since identified concerns with the 2024 regulations in light of the intervening <E T="03">Loper Bright</E> Supreme Court decision and various E.O.s and S.O.s, including those noted above. Consistent with these ongoing regulatory efforts and considerations, the Services in <E T="03">National Hydropower Ass'n</E> v. <E T="03">U.S. Fish & Wildlife Service,</E> No. 1:24-cv-02285 (D.D.C.), filed a motion on April 14, 2025, requesting a voluntary remand without vacatur of the 2024 rule to allow the Services to address the substantial and legitimate concerns that the Services have with the 2024 regulatory revisions that allowed for the incorporation of offsets into reasonable and prudent measures, as desc ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 57k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━