Determining which areas constitute habitat for listed species has important consequences under the Endangered Species Act (“ESA” or “Act”), yet “habitat” is not currently defined by the Act or its implementing regulations.  On August 5, 2020, the US Fish and Wildlife Service and the National Marine Fisheries Service (jointly, “the Services”) proposed a rule to define “habitat” for purposes of designating “critical habitat” under section 4 of the Endangered Species Act.  See 85 Fed. Reg. 47,333 (Aug. 5, 2020).  The Services’ proposal responds to the Supreme Court’s November 27, 2018, unanimous holding in Weyerhaeuser Co. v. U.S. Fish & Wildlife Service, 139 S. Ct. 361 (2018), that an area is eligible for designation as critical habitat under the ESA only if the area is actually habitat for that species.  Accordingly, a final rule defining “habitat” would determine which areas of land and water are eligible for designation as critical habitat.  Such designations can affect projects that require federal agency permits or funding, because ESA section 7 consultation requires federal agencies to ensure that their actions are not likely to adversely modify or destroy designated critical habitat.  The result for federally approved or funded projects can be increased permitting costs and risks, and longer timelines.  The proposal’s comment period ended on September 4.  Over 160,000 comments were submitted.  Stakeholders now await a final rule.

Continue Reading Services Propose Definition of Habitat for ESA Regulations

The Novel Coronavirus Disease (COVID-19) outbreak is affecting virtually every sector of society and the economy. The healthcare sector and government agencies are on the front lines of the response. Providing support to these critical response activities as well as striving to maintain the strength of the overall economy by continuing regular business operations is vitally important. The private sector has important roles to play. The purpose of this blog post is to briefly outline some practical and legal tools available to help provide both direct support and maintain broader economic activities while ensuring environmental protection and compliance with natural resource laws.

This blog post will be updated as new or relevant information becomes available.


Continue Reading Tools for Navigating Natural Resource Laws During a National Emergency

National Environmental Policy Act (NEPA) analyses and Endangered Species Act (ESA) Section 7 consultations are high on the list of project time, cost and risk drivers. The impact of these environmental reviews on projects often turns on the scope of those reviews, which in turn depends on determining which effects will be caused by the action. In August 2019 the US Fish and Wildlife Service and National Marine Fisheries Service established, for the first time, a regulatory causation standard governing ESA section 7 consultations, and, in January 2020, the Council on Environmental Quality proposed a new regulatory causation standard governing NEPA reviews.
Continue Reading Streamlining NEPA and ESA Reviews: Importance of the Scope of Analysis

On November 4, 2019, the US Court of Appeals for the Eleventh Circuit upheld the Clean Water Act (CWA) section 404 permit issued by the US Army Corps of Engineers (Corps) for the extension of an existing phosphate mine in central Florida. Center for Biological Diversity v. U.S. Army Corps of Engineers, No. 18-10541 (11th Cir. Nov. 4, 2019). The Corps permit authorizes the discharge of dredged or fill material into waters of the United States that comprise a small portion of the mining extension. Opponents challenged the permit in the Middle District of Florida, claiming the issuance of the permit violated the CWA, the National Environmental Policy Act (NEPA) by not considering “downstream” effects, and the Endangered Species Act (ESA). The district court rejected all of the claims, and the Eleventh Circuit affirmed.
Continue Reading Eleventh Circuit Confirms Proper Scope of NEPA Review Governing Corps Clean Water Act Section 404 Permit

On August 12, 2019, the US Fish and Wildlife Service and the National Marine Fisheries Service signed final rules instituting the first comprehensive revisions to Endangered Species Act regulations in 33 years. The Services made substantial revisions to their regulations concerning listing and delisting species, critical habitat designations, consultation with federal agencies and the process for establishing protections for threatened species. Two states and numerous environmental groups have signaled their plan to challenge the new rules.
Continue Reading FWS and NMFS Complete Long-Awaited, Comprehensive Revision of ESA Regulations

The controversy continues over the scope of the take prohibition under the Migratory Bird Treaty Act (MBTA). As we noted here, the Solicitor’s Office for the US Department of the Interior (DOI) issued an opinion in late 2017 concluding that the MBTA does not prohibit the incidental take of migratory birds. Although this conclusion was consistent with the holdings of at least two US Circuit Courts of Appeal, the Solicitor’s Opinion came under immediate fire from conservation groups and several former government officials. In May of this year, two environmental groups filed lawsuits in federal court challenging the Opinion. In a court filing earlier this month, the government stated its intention to move to dismiss these suits based on several threshold grounds, such as whether the Opinion is a final agency action subject to judicial review. These lawsuits inject fresh uncertainty into an area of the law that DOI sought to clarify.
Continue Reading US Fish & Wildlife Service To Seek Dismissal of Suits Challenging MBTA Legal Opinion

The U.S. Fish & Wildlife Service and National Marine Fisheries Service issued three significant, highly anticipated, proposals to revise the Endangered Species Act regulations on July 19. The proposals address critical habitat designation, ESA section 7 consultation, and protection of threatened species. Once published in the Federal Register, there will be a 60 day comment period for all three proposals. The proposals would make important changes in each area, and are likely to garner substantial attention in public comments.
Continue Reading Services Propose Highly Anticipated Revisions to ESA Regulations on Critical Habitat Designation, Section 7 Consultation, and Protections for Threatened Species

Rolling back environmental regulations is a priority of the Trump administration, but revising or withdrawing guidance may be a faster and more effective means to achieve near-term change, Andrew J. Turner and Alexandra Hamilton of Hunton & Williams say in this analysis article.
Continue Reading Practitioner Insights: Is Agency Guidance the Low-Hanging Fruit for Regulatory Reform?

On Monday, the Trump Administration released an ambitious legislative proposal that aims to stimulate $1.5 trillion in new infrastructure investment over the next 10 years, expedite the federal permitting process, address rural infrastructure needs, and prepare the American workforce for the future. To accomplish those goals, the proposal includes aggressive recommendations to streamline key federal environmental review and permitting processes for infrastructure projects. In addition to traditional forms of infrastructure, such as roads, bridges, and airports, the Legislative Outline for Rebuilding Infrastructure in America addresses drinking and wastewater systems, energy infrastructure, veterans’ hospitals, and Brownfields and Superfund sites.


Continue Reading Ambitious White House Infrastructure Legislation Proposal Would Make Major Changes to Environmental Permitting and Reviews

In 2016, the US Fish and Wildlife Service (FWS or the Service) issued two policies on how to mitigate the impact of projects affecting fish and wildlife and natural resources: one overarching policy and one policy specific to Endangered Species Act implementation. Raising eyebrows, these mitigation policies were not limited to offsetting project impacts, but instead set a goal of improving the condition of affected resources.
Continue Reading Should Mitigation Meet a “Net Gain” Standard? USFWS is Reconsidering its Stance