Fish and Wildlife Service

National Fish, Wildlife, & Plants Climate Adaptation Strategy

In the 2010 Appropriations Bill for the Department of the Interior and Related Agencies, Congress asked the Council on Environmental Quality and the Department of the Interior (DOI) “to develop a national strategy to ‘…assist fish, wildlife, plants, and related ecological processes in becoming more resilient, adapting to, and surviving the impacts of climate change’.” The U.S. Fish and Wildlife Service (FWS) acted for DOI in establishing a team to draft the National Fish, Wildlife, & Plants Climate Adaptation Strategy.

On January 26, 2021, FWS published an updated Climate Adaptation Strategy, “Advancing the National Fish, Wildlife, and Plants Climate Adaptation Strategy into a New Decade.” This report “was intended to take a high-level review of what has changed in the field of climate change adaptation, how the Strategy has or has not been effectively implemented at federal, state, tribal, and nonprofit levels, and provide recommendations for its future update and implementation.”

Biden Administration (2021-2025)

2021 National Fish, Wildlife, and Plants Climate Adaptation Strategy

On January 26, 2021, FWS published an updated Climate Adaptation Strategy, “Advancing the National Fish, Wildlife, and Plants Climate Adaptation Strategy into a New Decade.” This report “was intended to take a high-level review of what has changed in the field of climate change adaptation, how the Strategy has or has not been effectively implemented at federal, state, tribal, and nonprofit levels, and provide recommendations for its future update and implementation.” The 2021 report “is split into three parts”:

  • “Part I briefly describes what has changed in our understanding of climate change and climate adaptation science, as well as how the emerging field of the adaptation practice has grown.”
  • “Part II cross-walks the Strategy goals with a variety of conservation plans made at federal, state, tribal, and nonprofit levels to assess where and how the Strategy has been implemented or been an influence over the past decade.”
  • “Part III summarizes the findings of this report by laying out recommendations,” including “thirteen voluntary management actions designed to highlight and address the needs and challenges of the natural resource community in the new decade.”

First Trump Administration (2017-2021)

N/A (But see “Advancing the National Fish, Wildlife, and Plants Climate Adaptation Strategy into a New Decade” above, drafted during the First Trump Administration and published in late January, 2021).

Obama Administration

2012 National Fish, Wildlife, & Plants Climate Adaptation Strategy

In 2012, FWS published the 2012 National Fish, Wildlife, & Plants Climate Adaptation Strategy. The Strategy is organized around seven goals intended to help fish, wildlife, plants, and ecosystems adapt to changing conditions, and outlines a range of short and medium-term actions in support of those goals. These goals include:

  • Goal 1. Conserve habitat to support healthy fish, wildlife, and plant populations and ecosystem functions in a changing climate.
  • Goal 2. Manage species and habitats to protect ecosystem functions and provide sustainable cultural, subsistence, recreational, and commercial use in a changing climate.
  • Goal 3. Enhance capacity for effective management in a changing climate.
  • Goal 4. Support adaptive management in a changing climate through integrated observation and monitoring and use of decision support tools.
  • Goal 5. Increase knowledge and information on impacts and responses of fish, wildlife, and plants to a changing climate.
  • Goal 6. Increase awareness and motivate action to safeguard fish, wildlife, and plants in a changing climate.
  • Goal 7. Reduce non-climate stressors to help fish, wildlife, plants, and ecosystems adapt to a changing climate.

Critical Habitat Designation for Species Endangered or Threatened by Climate Change

The Endangered Species Act (ESA) (16 U.S.C. 1531 et seq.) charges the Secretary of the Interior and the Secretary of Commerce with implementing most of the Act’s provisions. The Secretary of Commerce, through the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service, generally administers the sections of the ESA that relate to marine species, while the Secretary of the Interior, through the Department of the Interior’s Fish and Wildlife Service, administers the sections of the ESA that relate to other species.

Alongside protecting endangered and threatened species directly, the ESA also requires the agencies to identify and protect “critical habitat” for species that are listed as “endangered” or “threatened.” Under ESA, “critical habitat” includes:

  • (i) the specific areas within the geographical area occupied by the [endangered or threatened] species, at the time it is listed [. . .] on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and
  • (ii) specific areas outside the geographical area occupied by the species […] upon a determination by the Secretary that such areas are essential for the conservation of the species. (16 U.S.C. 1532(5))

On April 5, 2024, NOAA and FWS issued a final rule rescinding and revising significant parts of the Trump Administration’s 2019 rule limiting critical habitat designations (89 Fed. Reg. 24300, Apr. 5, 2024). Among other changes, this regulation removed the Trump-era regulatory language that allowed NOAA and FWS to refuse to designate critical habitat where species were primarily threatened by large-scale factors like climate change. As the agencies explained, removing this regulatory limitation better matched Congress’s intent in passing the ESA, and helped “advance the conservation of endangered species and threatened species, particularly in the face of the ongoing climate crisis.”

Biden Administration (2021-2025)

Regulation Reversing Trump Administration’s 2019 Limits on Critical Habitat Designations

On April 5, 2024, NOAA and FWS issued a final rule rescinding and revising significant parts of the Trump Administration’s 2019 rule limiting critical habitat designations (89 Fed. Reg. 24300, Apr. 5, 2024). Among other changes, this regulation removed the Trump-era regulatory language that allowed NOAA and FWS to refuse to designate critical habitat where species were primarily threatened by large-scale factors like climate change. As the agencies explained, removing this regulatory limitation better matched Congress’s intent in passing the ESA, and helped “advance the conservation of endangered species and threatened species, particularly in the face of the ongoing climate crisis.”

For related litigation, see "Litigation against the 2019 "Critical Habitat" Rule" in "Litigation" below.

Regulation Reversing Trump Administration’s 2020 Limits on Critical Habitat Designations

On June 24, 2022, NOAA and FWS issued a final rule rescinding the Trump Administration’s 2020 rule limiting critical habitat designations. (87 Fed. Reg. 37757, June 24, 2022). The agencies explained that, following EO 13990 (described below), they had reviewed the 2020 regulation, and found that it was highly unclear. More critically, the agencies found that “the definition and statements made in the December 2020 final rule are in tension with the conservation purposes of the [ESA] because they could inappropriately constrain the Services’ ability to designate areas that meet the definition of “critical habitat” under the [ESA].”

For related litigation, see "Litigation against the 2020 "Habitat" Rule" in "Litigation" below.

Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis

On January 20, 2021, President Biden issued Executive Order 13990 (Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis). Among other directives, EO 13990 directed all departments and agencies to immediately review agency actions taken between January 20, 2017, and January 20, 2021, and, as appropriate and consistent with applicable law, consider suspending, revising, or rescinding agency actions that conflict with important national objectives, including promoting and protecting public health and the environment, and to immediately commence work to confront the climate crisis.

First Trump Administration (2017-2021)

Regulation Further Limiting Critical Habitat Designations

On December 16, 2020, NOAA and FWS issued a final rule as a “deregulatory” action under EO 13771 (discussed below), which added a definition of “habitat” to the ESA regulations. This revised definition provided that, “[f]or the purposes of designating critical habitat only, habitat is the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.” (85 Fed. Reg. 81411, Dec. 16, 2020). This regulation was enacted, with only minor modifications, despite comments arguing that the revised definition “may preclude identifying as habitat areas that experience rapid changes in ecology driven by habitat loss and fragmentation or areas that may develop over time, as a result of changing or shifting conditions due to climate change, to the point that they can support the species.” (85 Fed. Reg. 81411, 81418, Dec. 16, 2020).

This rulemaking was subject to significant litigation. (See "Litigation against the 2020 "Habitat" Rule" in "Litigation" below).

Regulation Reversing Obama-Era Rule for Listing Species and Designating Critical Habitat

On August 27, 2019, NOAA and the FWS issued a final rule amending the ESA regulations to reinstate the restriction that areas outside of the geographical area currently occupied by a species could be designated as critical habitat only when a designation limited to its present range "would be inadequate to ensure the conservation of the species.’’ (84 Fed. Reg. 45020, Aug. 27, 2019). NOAA and FWS further amended the regulations to prohibit the Secretary of Interior from designating critical habitat within an unoccupied area unless there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more physical or biological features essential to the conservation of the species. Additionally, the revisions provided that regulators could refuse to designate critical habitat if “threats to the species’ habitat stem solely from causes that cannot be addressed through management actions” under the ESA – that is, global threats like climate change.

The revisions also alter the threshold for designating a species as "threatened."  When considering whether to list a species as threatened under the ESA, NOAA and the FWS analyze whether that species is likely to become endangered within the “foreseeable future.” As amended, the ESA regulations now define “foreseeable future” to extend “only so far into the future as the Services can reasonably determine that both the future threats and the species’ responses to those threats are likely.” 

This rulemaking was subject to significant litigation. (See "Litigation against the 2019 "Critical Habitat" Rule" in "Litigation" below).

Executive Order on Reducing Regulation and Controlling Regulatory Costs

On January 30, 2017, President Trump signed Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs) instructing agencies to identify two regulations to repeal for every new regulation issued and to ensure that the total incremental cost of all new regulations is no greater than zero. 

Obama Administration (2009-2017)

Regulation Implementing Changes to the Regulations for Designating Critical Habitat

On February 11, 2016, NOAA and FWS issued a final rule amending the regulations implementing the ESA. (81 Fed. Reg. 7414, Feb. 11, 2016). These amendments clarified and revised procedures for designating critical habitat to protect endangered or threatened species.

These amendments were spurred, in part, by “anticipat[ion] that critical habitat designations in the future will likely increasingly use the authority to designate specific areas outside the geographical area occupied by the species at the time of listing.” (81 Fed. Reg. 7414, 7435, Feb. 11, 2016) In the original notice of proposed rulemaking, NOAA and FWS gave an example of the impact climate change might have on critical habitat designation:

“An example may clarify this situation: A butterfly depends on a particular host plant. The host plant is currently found in a particular area. The data show the host plant's range has been moving up slope in response to warming temperatures (following the cooler temperatures) resulting from climate change. Other butterfly species have been documented to have shifted from their historical ranges in response to changes in the range of host plants. Therefore, we rationally conclude that the butterfly's range will likely move up slope, and we would designate specific areas outside the geographical area occupied by the butterfly at the time it was listed if we concluded this area was essential based on this information.” (79 Fed. Reg. 27066, 27073, May 12, 2014)

While the final rule did not expand the agencies’ authority under the ESA, NOAA and FWS noted that the rule would “allow[] for sufficient flexibility to address the effects of climate change in a critical habitat designation . . . provided that the Services can explain why the areas meet the definition of “critical habitat.”

Litigation

Litigation against the 2020 "Habitat" Rule

On January 14, 2021, one day before the rule took effect, seven environmental groups challenged it, filing suit against the Services in Federal district court in Hawaii. (Conservation Council for Hawai’i v. Bernhardt) On January 19, 2021, 19 States filed suit in the Northern District of California challenging the habitat definition rule in the Northern District of California. (California v. Haaland) Parties in both cases agreed to long-term stipulated stays in the litigation to allow the Biden Administration to revisit the 2020 rule.

Litigation against the 2019 "Critical Habitat" Rule

On August 21, 2019, seven environmental organizations filed a lawsuit in the federal district court for the Northern District of California challenging amendments to the ESA regulations. On September 25, 2019, seventeen states, the District of Columbia, and New York City filed a lawsuit in the federal district court for the Northern District of California challenging amendments to the regulations implementing the Endangered Species Act (ESA). The plaintiffs asserted that the amendments violated the ESA’s plain language and purpose, as well as “its legislative history, numerous binding judicial precedents interpreting the ESA, and its precautionary approach to protecting imperiled species and critical habitat,” including by limiting designation of unoccupied critical habitat, “particularly where climate change poses a threat to species habitat.” 

On July 5, 2022, the court issued a decision vacating the 2019 rule, without reaching the merits of the case. On September 21, 2022, the United States Court of Appeals for the Ninth Circuit temporarily stayed the effect of the July 5th decision pending the District Court's resolution of motions seeking to alter or amend that decision. On October 14, 2022, FWS and NOAA notified the District Court that they anticipated revising the 2019 rule. Subsequently, on November 14 and 16, 2022, the District Court issued orders remanding the 2019 regulations to FWA and NOAA without vacating them, to allow the Biden Administration to revise the 2019 rule.

For a consolidated overview of all litigation against this rule in the Northern District of California, see Center for Biological Diversity v. Haaland.

Endangered and Threatened Species - "Experimental Population” Regulations

The Endangered Species Act (ESA) was amended in 1982 to allow the Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NOAA Fisheries) to “authorize the release (and the related transportation) of any population (including eggs, propagules, or individuals) of an endangered species or a threatened species outside the current range of such species if the Secretary determines that such release will further the conservation of such species.” (16 U.S.C. 1539(j)). FWS has adopted regulations that govern when the agency may introduce such “experimental populations.” (50 CFR 17.81).

On July 3, 2023, FWS issued a final rule to allow the reintroduction of endangered or threatened species outside of their historic range to account for climate impacts. (88 Fed. Reg. 42642, July 3, 2023). This rule revised previous regulations, adopted in the 1980s, which only allowed for the introduction of endangered species within their “historical range" absent exceptional circumstances. 

Biden Administration (2021-2025)

"Experimental Populations" Regulation

On July 3, 2023, FWS issued a final rule to allow the reintroduction of endangered or threatened species outside of their historic range to account for climate impacts. (88 Fed. Reg. 42642, July 3, 2023). This rule revised previous regulations, adopted in the 1980s, which only allowed for the introduction of endangered species within their “historical range" absent exceptional circumstances.  As explained in the notice of proposed rulemaking, issued on June 7, 2022, FWS “concluded that it may be increasingly necessary and appropriate to establish experimental populations outside of their historical range if the ability of the habitat to support one or more life history stages has been reduced due to threats, such as climate change or invasive species.” (87 Fed. Reg. 34625, June 7, 2022).

Regulation of Non-Federal Oil and Gas Rights

The National Wildlife Refuge System Administration Act of 1966, as amended by the National Wildlife Refuge System Improvement Act of 1997 (16 U.S.C. 668dd-668ee) grants the Fish and Wildlife Service (FWS) the authority to establish policies and regulations for the administration and management of the National Wildlife Refuge System.

As FWS noted in a 2014 advanced notice of proposed rulemaking, “[i]n many refuges of the Refuge System, the Federal Government does not own the subsurface mineral rights, and, subject to State and Federal law, the mineral rights owners have the legal authority to develop oil and gas resources,” but that prior to 2014 FWS “lack[ed] comprehensive regulations to manage non-Federal oil and gas operations on the Refuge System, which has led to unnecessary adverse impacts on refuge resources, as well as an uncertain and inconsistent regulatory environment for oil and gas operators on refuges.” (79 Fed. Reg. 10080, Feb. 24, 2014)

Attempted Deregulation: On March 28, 2017, President Trump issued Executive Order 13783 (Promoting Energy Independence and Economic Growth). Among other directives, Section 7(b)(ii) directed the Secretary of the Interior to review and, “if appropriate . . . publish for notice and comment proposed rules suspending, revising, or rescinding” the “Management of Non-Federal Oil and Gas Rights” rule (discussed below). A report issued by the Department of the Interior on November 1, 2017, indicated that FWS was reviewing the rule “to determine whether revision would be appropriate to reduce burden on energy,” but the rule was not rescinded. 82 Fed. Reg. 50532, 50545, Nov. 1, 2017).

Biden Administration (2021-2025)

N/A

First Trump Administration (2017-2021)

Attempted Deregulation

On March 28, 2017, President Trump issued Executive Order 13783 (Promoting Energy Independence and Economic Growth). Among other directives, Section 7(b)(iii) directed the Secretary of the Interior to review and, “if appropriate . . . publish for notice and comment proposed rules suspending, revising, or rescinding” the “Management of Non-Federal Oil and Gas Rights” rule (discussed below).

In response to EO 13783, Secretary of the Interior Ryan Zinke issued Secretarial Order 3349, which implemented EO 13783’s directive to “immediately review existing regulations that potentially burden the development or use of domestically produced energy resources and appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources beyond the degree necessary to protect the public interest or otherwise comply with the law.” It calls for a reexamination of the mitigation and climate change policies and guidance that the Department of Interior issued during the Obama administration, as well as all regulations related to U.S. oil and natural gas development. Specifically, Order 3349 directs FWS to “review the final rule entitled, ‘Management of Non-Federal Oil and Gas Rights.’”

A report issued by the Department of the Interior on November 1, 2017, indicated that FWS was reviewing the rule “to determine whether revision would be appropriate to reduce burden on energy,” but the rule was not rescinded. 82 Fed. Reg. 50532, 50545, Nov. 1, 2017).

Obama Administration (2009-2017)

Regulation of Pollution from Non-Federal Oil and Gas Operations in Wildlife Refuges

On November 14, 2016, FWS published a final rule, entitled “Management of Non-Federal Oil and Gas Rights”, to protect refuge resources, visitors, and the general public’s health and safety from potential impacts associated with non-Federal oil and gas operations located within National Wildlife Refuges. (81 Fed. Reg. 79948, Nov. 14, 2016). The rule specifies, among other things, that non-federal oil and gas operators must “[d]esign, operate, and maintain your operations and equipment in a manner consistent with good air pollution control practices so as to minimize emissions and leaks of air pollutants and hydrocarbons, including intentional releases or flaring of gases.”

National Fish and Wildlife Refuge System

The National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd-668ee), as amended by the National Wildlife Refuge System Improvement Act of 1997 (Pub. L. 105-57), governs the National Wildlife Refuge System. These laws direct the Secretary of the Interior, through the Fish and Wildlife Service (FWS), to maintain and administer a wide range of lands for the conservation of fish and wildlife. “In administering the System,” FWS is charged to “ensure that the biological integrity, diversity, and environmental health of the System are maintained for the benefit of present and future generations of Americans.” (16 U.S.C. 668dd(a)(4)(B)).

Biden Administration (2021-2025)

Withdrawal of Proposed Regulation on Biological Integrity, Diversity, and Environmental Health

On December 19, 2024, FWS withdrew a proposed rule published on February 2, 2024, that proposed new regulations addressing the biological integrity, diversity, and environmental health (BIDEH) of the National Wildlife Refuge System. (89 Fed. Reg. 103761, Dec. 19, 2024).

These regulations were initially proposed to “provid[e] refuge managers with a consistent approach for evaluating and implementing management actions to protect vulnerable species, restore and connect habitats, promote natural processes, sustain vital ecological functions, increase resilience, and adapt to climate change.” (89 Fed. Reg. 7345, Feb. 2, 2024). When FWS implemented its current BIDEH policy in 2001, “[t]he Service did not anticipate the extent of climate change impacts on refuge species and habitats or the need to clarify in regulations our interpretation of and authority to implement the BIDEH mandate.” The revised BIDEH policy would clarify the duties and authority of refuge managers dealing with dynamic, rather than baseline, environmental conditions.

These regulations were withdrawn on December 19, 2024, after extensive public comments that raised issues and complexities FWS had not anticipated. FWS determined that “any final rule would require revisions that go beyond the logical outgrowth of the original proposal.” (89 Fed. Reg. 103761, 103762, Dec. 19, 2024).

National Wildlife Refuge Planning Policies

On April 18, 2024, FWS adopted final revised planning policies for the National Wildlife Refuge System. (89 Fed. Reg. 27689, Apr. 18, 2024). These policy revisions were designed to update the Refuge System's refuge management by incorporating landscape conservation plans and consideration of climate change and other anthropogenic forces in refuge management. As revised, these planning policies provide that FWS “will consider historical, current, and plausible future ecological conditions of [National Wildlife Refuges] based on climate change and other anthropogenic changes in determining desired future conditions, including determining whether to resist, accept, or direct large-scale ecological transformations in [FWS’s] planning goals, objectives, and strategies.”

First Trump Administration (2017-2021)

See "Regulation of Non-Federal Oil and Gas Rights"

Obama Administration (2009-2017)

See "Regulation of Non-Federal Oil and Gas Rights"