Endangered Species Law & Policy

On September 4, 2024, the Center for Biological Diversity, along with more than 20 other groups, (collectively, CBD) delivered a petition (Petition) to the U.S. Fish and Wildlife Service (Service) in which CBD requested the Service promulgate regulations establishing a process, set of criteria, and other requirements for permitting “take” of migratory birds as a result of colliding with buildings. Specifically, the Petition requests the Service require permits for new construction of buildings with glass facades or other features that would foreseeably lead to ...

Tomorrow, the U.S. Fish and Wildlife Service (Service) will publish its final rule updating regulations implementing section 10 of the Endangered Species Act (Section 10), which addresses the agency’s issuance of incidental take permits and enhancement of survival permits under Section 10. The final rule will take effect 30 days after publication in the Federal Register. In the preamble to the final rule, the Service indicates that applications for permits under Section 10 that have been processed and published in the Federal Register for publication prior to the effective ...

On March 27, 2024, the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, the Services) made available pre-publication versions of the agencies’ long-awaited updates to regulations implementing sections 4 and 7 of the Endangered Species Act (ESA). The Services have finalized joint rules addressing interagency consultation requirements under ESA section 7 and the procedures for listing, reclassifying, delisting, and designating critical habitat for species under ESA section 4; and USFWS has finalized its reinstatement of ...

As we have previously reported, on December 6, the Biden Administration released the Fall 2023 Unified Agenda of Regulatory and Deregulatory Actions (Unified Agenda). The Unified Agenda, published twice a year, lists the upcoming rulemakings, policies, notices, revisions, and other actions that federal executive agencies plan to complete over the next several months. This most recent iteration of the Unified Agenda is notable in that it represents the slate of actions the Biden Administration hopes to complete in advance of a potential change in administrations … 

On November 16, 2022, the U.S. District Court for the Northern District of California (District Court) remanded three sets of Endangered Species Act (ESA) regulations promulgated in 2019 under the Trump administration back to the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, Services) for reconsideration. The three regulations addressed: how species are listed and delisted and critical habitat designated under ESA section 4; interagency consultation under ESA section 7; and a final rule repealing USFWS’s blanket ESA ...

On July 5, 2022, the U.S. District Court for the Northern District of California issued an order vacating three Trump-era regulations implementing the Endangered Species Act (“ESA”).

In 2019, the U.S. Fish and Wildlife Service (“USFWS”) and the National Marine Fisheries Service (collectively, the “Services”) issued three final rules (“2019 ESA Rules”) modifying how the Services implement the ESA, including: (1) a rule under section 4 of the ESA concerning how the Services list, delist, and reclassify endangered or threatened species and the criteria for ...

On June 24, 2022, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, Services) published a final rule rescinding the Trump administration’s 2020 final rule defining “habitat” for the purpose of informing designation of areas as “critical habitat” (2020 Rule) under the Endangered Species Act (ESA). In rescinding the definition of “habitat,” the Services explained they were removing an “excessive constraint” on the agencies’ ability to designate critical habitat under the ESA. Specifically, the Services ...

On March 22, 2022, the Office of Information and Regulatory Affairs (OIRA) received from the U.S. Fish and Wildlife Service (Service) an Endangered Species Act (ESA)-specific compensatory mitigation policy (Policy). While the text of the Policy is not publicly available at this time, many have speculated that an updated Policy may mirror that which was in place under the Obama Administration.

On December 27, 2016, the Service published its final ESA Compensatory Mitigation Policy (2016 Policy) establishing the agency’s goal that compensatory mitigation provided under ESA ...

On December 10, 2021, the Biden Administration released the Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions (Unified Agenda), which is a semi-annual compilation of information concerning regulations and policy under development by federal agencies. Department of the Interior (DOI) entries on the Unified Agenda reveal a lengthy set of planned regulatory actions, some of which may have an impact on development and deployment of energy, construction and operation of transportation and other infrastructure, and various other economic activities. … 

On September 3, 2021, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) announced the agencies will abandon the definition of Waters of the United States (WOTUS) set forth in the April 21, 2020 Navigable Waters Protection Rule (NWPR) and will instead rely on the pre-2015 regulatory framework. The agencies’ announcement comes on the heels of a decision from the U.S. District Court for the District of Arizona vacating the NWPR. …

This week, the U.S. Fish and Wildlife Service (“USFWS”) announced the availability of two revised economic analysis documents related to the agency’s proposed rule concerning incidental take under the Migratory Bird Treaty Act (“MBTA”).  The documents evaluate the potential for the proposed rule to impact small entities, including businesses, governmental jurisdictions, and other organizations.

When federal agencies issue a new proposed or final rule, they are required under the Regulatory Flexibility Act of 1980 (“RFA”) to evaluate the potential effects ...

On June 29, 2021, the Council on Environmental Quality (CEQ) will publish an interim final rule (IFR) extending the deadline by which federal agencies are required to adopt updated National Environmental Policy Act (NEPA) regulations by two years. Under current CEQ regulations, promulgated under the previous administration, federal agencies have until September 14, 2021 to adopt updated agency-specific NEPA rules. Upon publication of the interim final rule in the federal register, that deadline will instead fall on September 14, 2023. There will be no public comment period ...

Unbelievably, it was March 17, 2020 when California Governor Gavin Newsom issued Executive Order N-29-20 (amending Executive Order N-25-20 in part) as part of a series of emergency measures in response to the COVID-19 pandemic.  EO N-29-20 allows local or state legislative bodies to hold meetings via teleconference and to make meetings accessible electronically without violating the open meeting laws found in the Bagley-Keene Act or the Brown Act. This order waived certain provisions of the Brown Act, including requirements that meetings be conducted in physical locations; ...

Linear infrastructure projects, including oil and gas pipelines, electric transmission lines and transportation, have faced a number of regulatory challenges over the last year. Some of these challenges stem from changes in regulatory schemes, adverse court holdings or drastically shifting policy initiatives. Others result from the uncertainty inherent in pending listing decisions under the Endangered Species Act, updates to the Nationwide Permitting Program under the Clean Water Act, the ever-changing definition of Waters of the United States and the Biden ...

On June 4, 2021, the Biden administration announced its intent to rescind or revise several implementing regulations for the Endangered Species Act (ESA) finalized under the prior administration. The U.S. Fish and Wildlife Service (Service) has not yet published these proposed rules in the Federal Register, nor has the Service provided the exact dates when it intends to publish the proposed rules.

In its announcement, the Service indicates its intent to rescind regulations governing how the Service conducts critical habitat exclusion analyses under ESA section 4(b)(2) and how ...

On May 5, 2021, the U.S. Fish and Wildlife Service (“USFWS”) published its updated collision risk model (“CRM”) for bald and golden eagles at wind energy facilities.  The CRM is a complex Bayesian model the USFWS has endorsed to predict eagle fatalities at wind energy facilities seeking eagle incidental take authorization under the Bald and Golden Eagle Protection Act (“BGEPA”).  The USFWS previously published the proposed updates to CRM for public comment on two occasions, seeking input on three alternatives: (1) Use updated species-specific model inputs and use the ...

Recently, the Department of the Interior released a pre-publication version of a Federal Register notice delaying the effective date of the Migratory Bird Treaty Act (MBTA) take definitional rule to March 8, 2021, and opening a 20-day public comment period, which will close March 1, 2021.  The MBTA was enacted in 1918 to implement an international convention for the protection of migratory birds in response to declines in populations of a number of species of birds resulting from widespread hunting and poaching.  The take definitional rule states in full:

“The prohibitions of the ...

On January 20, 2021, President Biden announced his administration will review regulatory actions taken between January 20, 2017 and January 20, 2021 in accordance with an Executive Order titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” (EO). Among the agency actions to be reviewed under the EO are a number of regulations and policies finalized by the Trump Administration involving Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA), and other related statutes.

An initial pre-publication announcement ...

If you were unable to attend our recent webinar, “The New NEPA Regulations: A Practical Guide to What You Need to Know,” please check out the recording of our on-demand webinar, which can be accessed here. Additionally, we invite you to download the compilation of our eAlert series on the NEPA rewrite here.

Nossaman will continue to monitor litigation and other regulatory developments regarding NEPA in 2021 as we transition into a new Administration. Please stay tuned to our blog and subscribe to our mailing lists here in order to receive the latest updates on NEPA and other issues ...

In September 2020, the Council on Environmental Quality (CEQ) enacted new regulations that set forth procedures federal agencies are to utilize when implementing the National Environmental Policy Act (NEPA). Numerous commentaries published on the subject have either adopted a Chicken Little approach (i.e., sky is falling) to describing the changes, or an overly optimistic assessment of their likely implications for proponents of federal actions subjected to environmental review.

In order to understand these changes, please join our Environment and Land Use Group on ...

Linear infrastructure projects, including oil and gas pipelines, electric transmission lines and transportation, have faced a number of regulatory challenges over the past year, starting with last summer’s Endangered Species Act (ESA) amendments. Some of these challenges stem from changes in regulatory schemes or adverse court holdings, while others stem from uncertainty of pending ESA listing decisions and other actions. 

In our recent webinar concerning Adapting Linear Infrastructure Projects to Changing Regulatory Frameworks, we discussed the path for energy providers to move forward and reduce the risk that projects may be delayed or scrapped down the road. One of the topics we covered was the 2019 regulatory amendments to the Endangered Species Act (ESA). In the following video clip from the webinar, we review some of the revised definitions and updated language in the new version of the regulations.

If you would like to view the full webinar ...

Please join us on August 4^th from 11:30 a.m. to 12:30 p.m. PT for “Key CEQA Compliance Considerations for Vehicle Miles Traveled Analyses.” This complimentary webinar will examine the California Natural Resources Agency’s new guidelines for traffic and transportation impacts analyses under CEQA through legal, planning and technical perspectives. We will be joined by well-known transit practitioners Keith Greer, Senior Environmental Planner at the San Diego Association of Governments (SANDAG), and Ronald Milam, Principal at the transportation planning firm Fehr & ...

On July 16, 2020, the Council for Environmental Quality (CEQ) released in final form its eagerly anticipated revisions the National Environmental Policy Act (NEPA) implementing regulations (NEPA Rules). Publication of the NEPA Rules comes just six months after CEQ published proposed versions of the same—a move which drew more than one million public comments, many of which were form letters.  

As signaled by Notice of Proposed Rulemaking, the purpose of the NEPA Rules is to facilitate more efficient review of federal agency actions.  To a considerable extent, the new rules ...

Please join us for a complimentary webinar on July 30, 2020 from 11:00 a.m. – 12:30 p.m. PT, where we will discuss the path for energy providers to move forward and reduce the risk that projects may be delayed or scrapped down the road. We will examine...

The Eno Center for Transportation published a two-part article in the Eno Transportation Weekly that focuses on the potential implications of the changes proposed by the Notice of Proposed Rulemaking (NPRM) modifying the regulations implementing the National Environmental Policy Act (NEPA), with particular emphasis on federal surface transportation programs. 

The article examines whether, at least for surface transportation programs, the changes to the Council on Environmental Quality’s (CEQ) proposed revisions are as dramatic as reported.  We posit that ...

On January 10, 2020, the Council on Environmental Quality (CEQ) proposed amendments to National Environmental Policy Act (NEPA) implementing regulations.  The Proposed Rule would represent the first significant overhaul of CEQ’s NEPA regulations in more than 40 years.

The changes in the Proposed Rule are substantial and numerous. 

While the stated purpose of the changes is to facilitate more effective and timely environmental review of federal agency actions, the practical impact of the proposed changes is far from clear.  Below, we focus on some of the more significant ...

Today, the Trump Administration announced its long-awaited release of updates to National Environmental Policy Act (NEPA) implementation regulations (Regulations).  On June 20, 2018, the administration published an advanced notice of proposed rulemaking (ANPR) and sought public comment on how the Council on Environmental Quality (CEQ) could ensure more effective, timely, and efficient NEPA process.  During the 60-day comment period on the ANPR, more than 12,500 comments were received.

The administration has indicated the proposed Regulations will be posted to the Federal ...

On August 27, 2019, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services) announced the finalization of regulations governing implementation of various aspects of the Endangered Species Act (ESA). Among those regulations were rules setting forth how the Services and other federal agencies were to consult on potential impacts of federal activities on ESA-listed species and designated critical habitat.  The new rules were to go into effect on September 26, 2019.  Today, the Services announced that the effective date for the interagency consultation ...

More than a year after the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, Services) published proposals to revise several Endangered Species Act (ESA) implementing regulations, the agencies have announced that the final versions of the rules are ready for publication in the Federal Register ...

The U.S. Fish and Wildlife Service (USFWS) is systematically revising species recovery plans issued under the Endangered Species Act (ESA).  On August 6, 2019, USFWS published three notices of availability announcing public comment periods on its draft revisions to 70 recovery plans covering 121 species across the United States ...

In its newly-released proposed recovery plan for the Desert pupfish (Cyprinodon macularius), the U.S. Fish and Wildlife Service (Service) has put into action its internal plan to add quantitative criteria to recovery plans.  The pupfish recovery plan, originally adopted in 1993, contained only qualitative criteria when adopted.  In its proposed revisions to the pupfish’s recovery plan, the Service adds quantitative criteria for whether the pupfish should be considered for delisting or when it has recovered, including the number of established populations that would make the ...

On April 29, 2019, Governor Newsom issued Executive Order N-10-19 (EO) directing the California Natural Resources Agency, the California Environmental Protection Agency, the California Department of Food and Agriculture, in consultation with the Department of Finance (collectively, the agencies), to prepare a 21^st century water resilience portfolio to meet the needs of California’s communities, economy and environment in the face of water supply uncertainty, climate change and the state’s growing population.  The EO’s sweeping directive requires the agencies ...

On December 28, 2018, the Department of the Interior (DOI) published proposed changes to its rules governing how it processes requests for records under the Freedom of Information Act (FOIA) and provided a 30-day timeframe in which the public could submit comments to the DOI concerning those changes. The public review and comment period is currently scheduled to close on January 28, 2019. However, the partial government shutdown has caused several groups to question whether or not the public comment period should, in fact, close as scheduled. More than 1,200 comments have been ...

Nossaman’s Environmental Practice attorneys will be off to a great start in 2019 presenting at many key events around the U.S. focused on endangered species and environmental issues.

The most comprehensive Endangered Species Act (ESA) bill of this Congressional session made its debut on July 2, 2018 when Senator John Barrasso (R-Wyo.), Chairman of the Senate Environment and Public Works (EPW) Committee, released a discussion draft of a bill proposing sweeping revisions to the ESA.  The discussion draft is a culmination of activity that began February 15, 2017, when the EPW committee held an oversight hearing on modernization of the ESA. Following that hearing, Senator Barrasso worked closely with the Western Governors’ Association (WGA) in drafting the ...

On March 16, 2018, Nossaman Environment and Land Use Law Partner Svend Brandt-Erichsen will be serving as a member of the faculty for The Seminar Group’s CLE and Foresters program Pacific Northwest Timberlands Management: Regulations, Litigation, and Business Considerations. 

The full conference, held from March 15-16, 2018, at the Portland, Oregon World Trade Center, will also be available via live webcast and on demand following the live presentation.  Mr. Brandt-Erichsen’s presentation, entitled Practice Pointers for Energy Projects on Timberlands, will take place at 2:30 p.m. PT and will cover:  energy project permitting needs and timelines; potential wildlife impacts and related mitigation needs; and providing construction access and access during the project’s operating life.

Additional topics to be addressed at the conference include:

On December 22, 2017 the Department of the Interior (DOI) Solicitor's Office issued its revised interpretation of the Migratory Bird Treaty Act’s (MBTA) prohibition on the take of migratory bird species.  Official opinions from the DOI Solicitor’s Office are known as M Opinions and carry substantial weight in how DOI applies and enforces the various wildlife laws under its purview.  In January 2017, the prior DOI Solicitor issued Opinion M-37041, Incidental Take Prohibited Under Migratory Bird Treaty Act, which concluded that the MBTA’s broad prohibition on taking and ...

In the Fall 2017 publication of the Unified Agenda of the Office of Information and Regulatory Affairs, the Department of the Interior announced its intent to revise the U.S. Fish and Wildlife Service’s regulations governing interagency cooperation and exceptions to the conservation of endangered and threatened species of fish, wildlife, and plants. In a separate announcement in the same publication, the Department of the Interior stated that it intends to revise regulations governing the listing of endangered and threatened species and the designation of critical ...

On October 25, 2017, the U.S. Department of the Interior (DOI) released a report entitled Review of the Department of the Interior Actions that Potentially Burden Domestic Energy identifying agency actions that potentially burden the development or use of domestic energy resources.  This report, generated in response to Executive Order 13783, identifies several costly and burdensome regulations that DOI believes hamper the production or transmission of domestic energy.  The report pays particular attention to the oil, natural gas, coal, and nuclear energy sectors, and ...

In furtherance of the administration's broad infrastructure initiative, President Trump on August 15 signed an executive order (EO) entitled Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects.  The EO directs federal agencies to make coordinated, predictable, transparent, and timely decisions with the goal of completing all federal environmental reviews and authorization decisions for major infrastructure projects within two years.  Infrastructure project is defined by the EO to encompass ...

On June 8^th, 2017, Department of Interior (DOI) Secretary Ryan Zinke signed Secretarial Order 3353, entitled Greater Sage-Grouse Conservation and Cooperation with Western States.  This Order initiates the assessment of both federal and state-led conservation efforts related to the greater sage-grouse and establishes a review panel to undertake the evaluation. The review panel will then recommend (potentially significant) changes to how the bird is managed. The stated purposes of the Order are to 1) enhance cooperation between DOI and the eleven western states comprising the ...

On January 20, 2017, Reince Priebus, the White House Chief of Staff and Assistant to the President, issued a memorandum to the heads of all executive departments and agencies ordering them to freeze the processing of all regulations.  The stated intent of this action is to ensure that the President’s appointees or designees have the opportunity to review any new or pending regulations.  At the outset, the memo states that, with the exception of regulations addressing any emergency situations or urgent circumstances relating to health, safety, financial, or national security ...

The election of Donald Trump as President, together with Republican majorities in the House and Senate, is likely to lead to important policy changes across a range of issues. While administration of the Endangered Species Act and other federal wildlife laws has not been high profile during the election season, it is an issue area in which we are likely to see big changes.  The five key issues are as follows:

Department heads.  There will be a clean slate of Department heads, including new Secretaries of Commerce and the Interior.  Rumored candidates for Commerce include Chris Christie ...

On September 27, 2016, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Agencies) published a final rule (pdf) that revises the regulations governing the Endangered Species Act’s (ESA) petition process.  According to the Agencies, the revisions are intended to improve the content and specificity of petitions and enhance the efficiency and effectiveness of the petition process to support species conservation.  The final rule, which revises 50 CFR 424.14, also clarifies the procedures by which the Agencies will evaluate petitions under section 4(b)(3 ...

In a year that has already seen its fair share of attempts to reform the Endangered Species Act (ESA), another proposal has made its way into the House of Representatives.  Representatives Don Young (R-Alaska) and Debbie Dingell (D-Michigan) introduced the Recovering America’s Wildlife Act (H.R. 5650) on July 7, 2016.  The bill is based on a plan unveiled by the Blue Ribbon Panel on Sustaining America's Diverse Fish and Wildlife Resources four months ago.

H.R. 5650 would direct approximately $1.3 billion each year from federal energy and mineral development revenues into state-led ...

The U.S. Fish and Wildlife Service (Service) published an interim rule (pdf) revising its civil procedure regulations for the assessment of civil penalties for violations of various laws and regulations within the Service’s jurisdiction.  The Service issued the revised procedures pursuant to the Federal Civil Penalties Inflation Adjustment Act of 2015, which requires agencies to update statutory civil monetary penalties to adjust for inflation.  The purpose of the Inflation Adjustment Act is to maintain the deterrent effect of civil penalties and to further the policy ...

On April 21, 2016, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, Service) announced revisions to their proposed modifications  to  the Endangered Species Act (ESA) petition process. 81 Fed. Reg. 23,448 (Apr. 21, 2016) (pdf).  In May 2015, the Service announced proposed changes to the petition process for listing a species or seeking to change the listing status of a species under the ESA. 80 Fed. Reg. 29,286 (May 21, 2015) (pdf).  The Service’s proposed rule originally required petitions to list species to address only one species, contain ...

Environmental Management has released an advanced copy of an article I co-authored with Dr. Dennis Murphy entitled, Guidance on the Use of Best Available Science under the U.S. Endangered Species Act.  The principle purposes of the article are to identify the types of data, analyses, and modeling efforts that can serve as best available science and consider the role and application of best available science in effects analysis and adaptive management.  The article is available free of charge, here

This week, two congressional committees are holding three separate hearings on issues related to the Endangered Species Act (ESA).  On April 19, the House Committee on Natural Resources will hold an oversight hearing entitled Recent Changes to Endangered Species Critical Habitat Designation and Implementation.  On April 20 and 21, the House Oversight and Government Reform Subcommittee on Interior will hold two hearings to discuss delisting under the ESA.  Nossaman partner, Robert D. Thornton, will testify at the committee hearing on April 20.

The hearing before the Natural ...

On March 8, 2016, the U.S. Fish and Wildlife Service (Service) announced (pdf) proposed revisions to its Mitigation Policy that has guided Service recommendations on mitigating the adverse impacts of development on fish, wildlife, plants, and their habitats since 1981.  The revised policy provides a framework for achieving a net gain in conservation outcomes, or at a minimum, no net loss of resources and their values, services, and functions resulting from proposed actions.

The Mitigation Policy serves as over-arching guidance applicable to all actions for which the Service has ...