Endangered Species Law & Policy

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 ...

It has been a busy October for the greater sage grouse (Centrocercus urophasianus). On October 11, 2017, the Bureau of Land Management (BLM) announced its intention to amend the existing greater sage grouse habitat management plans. The announcement applies to 98 plans across ten states. The Obama Administration finalized the plans in 2015 after ten years of coordination among stakeholders, including tribes, local and state government, environmental organizations, and the regulated community, as previously reported here. The U.S. Fish and Wildlife Service (Service) relied ...

Nossaman LLP’s own Steven P. Quarles and Brooke M. Wahlberg are co-chairing CLE International’s upcoming 2^nd Annual MBTA and BGEPA:  Hot Topics in Avian Protection conference.  This timely, in-person CLE will explore the complexities of federal wildlife laws and rules to protect migratory birds and eagles under the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle Protection Act (BGEPA).  Speakers will include state and federal policy makers, industry leaders, environmental advocates, and leading practitioners in the field.  Held in Denver, Colorado, from November 30 through December 1, the conference presents a unique opportunity for professionals involved in and affected by endangered species issues, rules, and regulations to learn from in-depth presentations on topics including:

On Thursday, October 5, 2017, the U.S. Fish & Wildlife Service (Service) announced 12-month not warranted findings on petitions to list 25 species as endangered or threatened under the Endangered Species Act (ESA).  It is likely that the Service’s not warranted findings represent the Trump administration’s departure from the previous administration’s  90-day determinations wherein the Service found that the petitions contain substantial information that listing may be warranted.  For over half of the 25 species, the not warranted findings satisfy the terms of various ...

In July we reported on five bills that propose to amend various aspects of the Endangered Species Act:

• H.R. 2603 - would remove listings of non-native species;
• H.R. 717 - would modify the process for listing determinations;
• H.R. 3131 - would require a party to prevail in order to recover attorneys' fees and place a cap on fees;
• H.R. 1274 - would require the U.S. Fish and Wildlife Service to make listing determination data available to impacted states; and
• H.R. 424 - would require the Department of the Interior to reissue final rules relating to the listing of the gray wolf in the ...

On Friday, September 29, 2017, the U.S. Fish & Wildlife Service (Service) announced its withdrawal of the proposed rule listing the Kenk’s amphipod (Stygobromus kenki), an aquatic crustacean, as an endangered species under the Endangered Species Act (ESA).  The Service originally proposed to list the amphipod, which occurs in the District of Columbia, Virginia, and Maryland, in September 2016 due to the impacts of water quality, water quantity, and other collateral impacts of urbanization near the species’ habitat.  In support of its decision to withdraw the proposed ...

On September 20, 2017, the U.S. Fish and Wildlife Service (USFWS) listed three separate species under the Endangered Species Act ("ESA").  USFWS listed the Sonoyta mud turtle (Kinosternon sonoriense) as endangered, and the 'I'iwi (Drepanis coccinea) and pearl darter (Percina aurora) as threatened species under the ESA.  Despite listing all three species, the USFWS deferred designating critical habitat for the three species.  The three listing decisions, all of which were compelled by settlements that the USFWS entered into during the Obama administration, are summarized below.

On August 28, 2017, the U.S. Court of Appeals for the Ninth Circuit affirmed a district court decision upholding a U.S. Fish and Wildlife Service (Service) determination that the Sonoran Desert Area bald eagle does not constitute a distinct population segment (DPS) under the Endangered Species Act (ESA).  Ctr. for Biological Diversity v. Zinke, No. 14-17513, 2017 WL 3687443 (9th Cir. Aug. 28, 2017).  The court deferred to the Service’s interpretation of its DPS policy, holding that the Service reasonably applied the relevant factors and considered scientific evidence to support ...

On August 17, 2017, the National Marine Fisheries Service (NMFS) issued a final rule designating critical habitat for the endangered New York Bight, Chesapeake Bay, Carolina, and South Atlantic Distinct Population Segments (DPSs) of Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus), and the threatened Gulf of Maine DPS of Atlantic sturgeon.  Collectively, the critical habitat designations total approximately 4,000 miles of aquatic habitat for the five DPSs.

Specific areas designated as critical habitat for the five DPSs are as follows:

• Gulf of Maine DPS: approximately 244 ...

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 ...