Of interest to mineral projects, the U.S. Fish and Wildlife Service (USFWS) continues to attempt to revise some of its Endangered Species Act (ESA) implementing regulations to align with the relatively recent decision from the Supreme Court in Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv. (139 S. Ct. 361 (2018)). Today, it proposed new regulations that would establish a process and standards for how the USFWS will conduct exclusion analyses under Section 4(b)(2) of the ESA. Before the Weyerhaeuser decision, the USFWS took the position that a decision not to exclude an area was entirely discretionary to the point that it could not be reviewed under the Administrative Procedure Act (the Supreme Court held to the contrary). The proposed regulations acknowledge that decisions not to exclude critical habitat under Section 4(b)(2) are reviewable, but make sure to reserve as much discretion as possible for the USFWS in making such decisions.

Public comments from interested parties on the proposed rule will be accepted until October 8, 2020. Additional information can be found on the Federal Register’s website.