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 ...

On June 27, 2024, the U.S. Fish and Wildlife Service (Service) issued a final rule listing the Suwannee alligator snapping turtle (Macrochelids suwanniensis) as a threatened species with a 4(d) rule under the Endangered Species Act (ESA).

The Suwannee alligator snapping turtle is a large, freshwater turtle species occurring in the Suwannee River basin in Florida and Georgia. The species’ listing follows a 2012 petition filed by the Center for Biological Diversity to list 53 amphibians and reptiles, including the alligator snapping turtle (Macrochelys temminckii), which, due ...

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 ...

On March 18, three advocacy organizations and their members filed a lawsuit challenging an offshore wind project against the National Marine Fisheries Service (NMFS) and the Bureau of Ocean Energy Management (BOEM). The lawsuit alleges that the Biological Opinion (BiOp) issued by NMFS for Dominion Energy’s Coastal Virginia Offshore Wind (CVOW) project violates the Endangered Species Act (ESA) and the Administrative Procedure Act (APA) because it fails to adequately analyze the project's impacts on the endangered North Atlantic right whale (Eubalaena glacialis). … 

On February 29, 2024, the federal District Court for the District of New Jersey dismissed a challenge to eleven incidental take authorizations (ITAs) issued for offshore wind projects off the coasts of New York and New Jersey in the case of Save Long Beach Island v. United States Department of Commerce. The challenged ITAs had been issued by the National Marine Fisheries Service (NMFS) in 2022 and 2023 pursuant to the Marine Mammal Protection Act (MMPA), 16 U.S.C. § 1361 et seq. The Plaintiffs also challenged five pending applications for ITAs that had not yet been issued at the time they ...

On February 2, 2024, the U.S. Fish and Wildlife Service (Service) published a final rule increasing civil monetary penalties for violations of several federal wildlife and natural resource protection laws (Final Rule).  The Final Rule updates penalties for violations of the Endangered Species Act, Marine Mammal Protection Act, Bald and Golden Eagle Protection Act, Lacey Act, and other statutes concerning federally protected animal species.

Under section 4 of the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461, as amended by the Inflation Adjustment ...

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 30, 2023, the U.S. Fish and Wildlife Service (Service) published a final rule listing a distinct population segment (DPS) of the North American wolverine (Gulo gulo luscas) as a threatened species under the Endangered Species Act (ESA). The wolverine is a medium-sized carnivore found in Alaska, Canada and the western-northwestern United States. The current listing is limited to the DPS of wolverine occurring in the contiguous United States. In the Federal Register notice … 

On August 29, 2023, the U.S. Fish and Wildlife Service (Service) published a final rule listing two distinct population segments (DPS)—the North Feather and Central Coast DPSs—of the foothill yellow-legged frog (Rana boylii) (Frog) as threatened (Threatened DPSs) and two additional DPSs of the Frog—the South Sierra and South Coast DPSs—as endangered (Endangered DPSs) under the Endangered Species Act (ESA). In the preamble to the final rule, the Service indicated that designating critical habitat for all four DPSs of the Frog is not determinable at this time due to a lack ...

Recently, the United States District Court for the Northern District of California refused to dismiss a lawsuit filed by a concerned citizen against the U.S. Army Corps of Engineers (Corps) and National Marine Fisheries Service (NMFS) alleging Endangered Species Act (ESA) violations in connection with the Corps’ operation of the Coyote Valley Dam on the Russian River in Northern California. The court opined that federal defendants cannot avoid having to defend their prior actions simply by initiating the consultation process under section 7(a)(2) of the ESA, and the equities ...

On February 9, 2023, the U.S. Fish and Wildlife Service (Service) published proposed revisions to its regulations governing incidental take and enhancement of survival permitting under Endangered Species Act (ESA) section 10.

If finalized, the regulations would do away with the distinction between candidate conservation agreements with assurances and safe harbor agreements, clarify that incidental take permits no longer need to have a federally listed species as the “lead” species, codify aspects of the agency’s five-point policy that provide detail on the necessary ...

On November 30, 2022, the U.S. Fish and Wildlife Service (Service) issued a final rule listing the northern long-eared bat (NLEB) (Myotis septentrionalis) as an endangered species under Section 4 of the Endangered Species Act (ESA), reclassifying it from its former threatened status and rescinding its section 4(d) rule. In determining whether to list the NLEB, the Service looked to factor C of ESA section 4, which requires the Service to make a listing determination if “disease or predation” poses a threat to the species. The Service cited the impacts of white nose syndrome (WNS ...

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 October 18, 2022, the U.S. Fish and Wildlife Service (Service) announced 12-month findings on a petition to list three California-based salamander species under the Endangered Species Act (ESA): the Kern Plateau salamander (Batrachoseps robustus), the Kern Canyon slender salamander (Batrachoseps simatus), and the relictual slender salamander (Batrachoseps relictus). All three salamander species occur in the southern Sierra Nevada Mountains in California. The Service determined that listing the Kern Canyon slender salamander and the relictual slender salamander is ...

Reversing the district court, a divided panel of the Ninth Circuit held that that the Bureau of Reclamation and a local water agency have discretion to release water from Twitchell Dam on the Santa Maria River on the Central Coast of California to comply with the federal Endangered Species Act. San Luis Obispo Coastkeeper v. Santa Maria Valley Water Conservation Dist. (Ninth Cir. No. 21-55479, Sept. 23, 2022). The court concluded that a 1958 federal law (P.L. 774) authorizing the operation of the dam for purposes other than irrigation, flood control, and water conservation provided ...

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 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 ...

The U.S. Fish and Wildlife Service (Service) has announced its proposal to list the northern long-eared bat (Myotis septentrionalis) (NLEB) as endangered under the Endangered Species Act (ESA) (Proposed Rule). While Service policy indicates the agency should identify in a listing rule activities that would or would not result in a violation of the “take” prohibition set forth in section 9 of the ESA, the Service indicates in the Proposed Rule that it is unable to identify specific activities what would not violate the take prohibition. The Service points to the need for ...

The U.S. Fish and Wildlife Service (Service) has issued a final rule reclassifying the Morro shoulderband snail (Helminthoglypta walkeriana) from endangered to threatened under the Endangered Species Act (ESA). The final rule also includes a rule issued under ESA section 4(d) to provide for the conservation of the species.

The Morro shoulderband snail, or banded dune snail, is a type of terrestrial snail named after the dark band on the shoulder of its shell. The species is typically found in dense clumps of grass, young patches of ice plant, and stockpiled anthropogenic ...

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 October 18, 2021, the U.S. Fish and Wildlife Service (Service) issued a final rule reclassifying the humpback chub (Gila cypha), a fish endemic to portions of the Colorado River basin, from endangered to threatened under the Endangered Species Act (ESA).  The Service attributed the chub’s status upgrade largely in part to modifications in how reservoir managers are operating their facilities, and the management of nonnative predators.

The chub was first listed as an endangered species in 1967 under the Endangered Species Preservation Act, a predecessor to the ESA.  In 1974, the ...

In the last few weeks, the U.S. Fish and Wildlife Service (Service) has published several major regulatory actions affecting federal avian protections.  The Service has repealed a Trump-era rule that excluded incidental take from liability under the Migratory Bird Treaty Act (MBTA), issued guidance for enforcement of the MBTA against incidental take, and invited comment on a potential MBTA permitting program.  Separately, the Service has invited comment on ways to improve its existing permitting program for the incidental take of eagles (Eagle Permit Program). … 

Today, the U.S. Fish and Wildlife Service (“Service”) published in the Federal Register a proposal to list six Central Texas mussel species under the Endangered Species Act (“ESA”), to issue an ESA section 4(d) rule for one of the species, and to designate critical habitat (“Proposed Rule”).  Specifically, the Service has proposed to list the Guadalupe fatmucket (Lampsilis bergmanni), Texas fatmucket (Lampsilis bracteata), Guadalupe orb (Cyclonaias necki), Texas pimpleback (Cyclonaias (=Quadrula) petrina), and false spike (Fusconaia (=Quincuncina) mitchelli) as endangered ... 

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 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 ...

On May 7, 2021, the U.S. Fish and Wildlife Service (USFWS), as many anticipated, published a proposed rule to revoke a Trump Administration rule impacting the scope of the Migratory Bird Treaty Act (MBTA).  The Trump Administration rule was finalized on January 7, 2021 and became effective March 8, 2021.  It clarified that the MBTA’s prohibition against the take of migratory birds did not extend to death or injury of migratory birds that results from, but is not the purpose of, an action (also known as incidental take).  Prior to the Trump Administration Rule, USFWS had, for decades ...

On March 10, 2021, the United States Court of Appeals for the Fifth Circuit upheld a biological opinion (BiOp) and incidental take statement (ITS) issued by the U.S. Fish and Wildlife Service (Service) in connection with a $5.2 billion project to export liquefied natural gas from a terminal located on the south bank of the Brownsville Ship Channel in Cameron County, Texas (Project). Sierra Club v. Dep’t of the Interior, Case No. 20-60319 (5th Cir. 2021).  In reaching its decision, the Fifth Circuit refused to second-guess the agencies consistent with the deferential standard of ...

The United States Fish and Wildlife Service ("Service") has recently received an application for an incidental take permit under Endangered Species Act section 10(a)(l)(A) to authorize take of the West Coast distinct population segment ("DPS") of fisher (Pekania pennanti) ("fisher") should it or its subpopulations become federally listed. As we have previously reported, the Service recently listed the Southern Sierra Nevada DPS of fisher as an endangered species.

The permit application, submitted by Oregon-based timberland investment company Chinook Forest Partners ...

U.S. Fish and Wildlife Service (USFWS) Principal Deputy Director Greg Sheehan recently issued a guidance memorandum to USFWS’ Regional Directors to clarify the appropriate trigger for an incidental take permit (ITP) under the Endangered Species Act (ESA).  While this guidance was directed internally to USFWS staff to aid in determination of whether project-related habitat modification is likely to result in take of a listed species, it also serves as a tool for project proponents to determine whether to seek an ITP and whether to cover a given species in that ITP.

The guidance ...

On December 27, 2017, the U.S. Court of Appeals for the Ninth Circuit partially reversed and remanded a decision by the United States District Court for the District of Hawaii, delaying if not derailing an expansion in shallow-set longline swordfish fisheries.  Environmental groups brought claims against the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (USFWS) alleging violations of the Magnuson-Stevens Fishery Conservation and Management Act, Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA), and the National Environmental ...

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 ...

On November 8, 2017, the House of Representatives Committee on Natural Resources approved an amendment to oil and gas-related legislation, the SECURE Act (H.R. 4239), that is intended to obviate liability for the incidental or accidental take of migratory birds under the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq. (Act).  The amendment, submitted by Congresswoman Liz Cheney (R-WY), provides: This Act shall not be construed to prohibit any activity proscribed by section 2 of this Act that is accidental or incidental to the presence or operation of an otherwise lawful ...

On May 1, 2015, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, the wildlife agencies) issued a final rule amending the regulations governing consultation under section 7 of the Endangered Species Act (ESA) in order to codify the practice of using surrogates to express the amount of extent of anticipated take in an incidental take statement issued concomitant with a biological opinion.  The final rule also provides that consultations on programmatic actions that would not result in incidental take without specific future actions will not be ...