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 first comprehensive revision of the NEPA implementing regulations in over forty years goes into effect today. Litigants sought a preliminary injunction to block implementation of the rule nationwide, but their motion was denied by a district court late last week. While litigation is ongoing in three district courts, the new rule will apply to all new NEPA reviews started on or after September 14, 2020, and agencies will have discretion to apply the new rule to ongoing NEPA reviews initiated before September 14.
Continue Reading After Surviving Preliminary Injunction Motion, New NEPA Rule Becomes Effective Today

Regulatory staff continue to advance the Administration’s regulatory agenda, including issuing proposed and final rules. This blog post highlights the status of key natural resource regulatory actions.
Continue Reading COVID-19 and the CRA Deadline: Status of the Natural Resources Regulatory Agenda

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

All three branches of the federal government are currently considering the question of whether the Migratory Bird Treaty Act (MBTA) prohibits the take of protected birds that is incidental to some otherwise lawful activity. The latest development is a proposal by US Fish and Wildlife Service (USFWS or Service) to issue a regulation expressly defining the scope of the MBTA to exclude take “that results from, but is not the purpose of, an action (i.e., incidental taking or killing).” 85 Fed. Reg. 5915 (Feb. 3, 2020). This proposal is the latest effort by the USFWS to bring clarity and certainty to a question that has been the subject of dispute for years and is currently both the subject of pending lawsuits and proposed legislation before Congress. If adopted, the rule should bolster the current administration’s effort to defend its interpretation of the statute, but the question is likely to be litigated further, assuming Congress does not intervene (seemingly unlikely for now).
Continue Reading USFWS Makes Another Move to Exclude Incidental Take from the Migratory Bird Treaty Act

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

From California to the South China Sea, uncertainties surrounding offshore oil and gas platform decommissioning regulations and financial obligations pose a significant risk to the environment and to responsible natural resource development. “Rigs to reefs” decommissioning pioneered in the US Gulf Coast provides a model promising reduced costs, a net reduction in environmental impacts and enhanced ecological benefits; welcomed in some jurisdictions and questioned in others, time will tell whether RTR can deliver its promises.
Continue Reading Offshore Platform Sustainable Decommissioning – “Rigs to Reefs” Goes Global

On January 9, 2020, the Council on Environmental Quality (CEQ) released its highly anticipated proposed rule to improve its National Environmental Policy Act (NEPA) regulations. The proposed changes would be the first comprehensive amendment of the NEPA regulations since their original publication in 1978. CEQ’s proposed changes are designed to streamline and speed the NEPA review process, clarify important NEPA concepts, and codify key guidance and case law. CEQ’s Proposal is informed by comments it received on last year’s Advanced Notice of Proposed Rulemaking.

NEPA requires that federal agencies analyze the environmental effects of their proposed federal actions. This means that virtually any project that requires a federal permit or authorization could be required to undergo a NEPA review. Development of broadband infrastructure, roads, bridges, oil and gas pipelines, and renewable energy facilities are just a few examples of the types of activities that could trigger NEPA. A NEPA review can take significant agency and applicant resources, can substantially delay permits and can provide a basis for a federal court challenge to the project.
Continue Reading CEQ Unveils Long-Awaited Proposal to Improve NEPA Regulations

Last week, Annie Kuster (D-NH) along with four other Democratic members of Congress introduced a proposed Natural Gas Act (NGA) amendment aimed at banning the use of eminent domain for construction or expansion of interstate natural gas pipeline infrastructure through lands subject to conservation restrictions in favor of, or owned by, non-profit entities or local governments. The proposed legislation is “The Protecting Our Conserved Lands Act of 2019.”
Continue Reading Proposed Legislation Seeks to Block Pipelines From Vaguely-Defined “Conservation” Lands without Considering Adverse Impacts of Re-Routes

The Endangered Species Act increasingly plays a larger role in environmental law and the federal permitting process for infrastructure projects. Hunton Andrews Kurth Partner Kerry McGrath and Associate Brian Levey give an inside look at the complex process of obtaining federal authorization for “take” of endangered species.
Continue Reading VIDEO Inside Look: Endangered Species Act (ESA)