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Consistent with President Biden’s Executive Order (EO) 13990, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (collectively, the “Services”) recently announced that they “will initiate rulemaking in the coming months to revise, rescind, or reinstate five [Endangered Species Act] regulations finalized by the prior administration.” The Biden Administration is the third consecutive administration to undertake revisions to the Services’ Endangered Species Act (“ESA”) regulations. The Administration’s Spring 2021 Unified Agenda provides general timeframes for the proposed actions, each of which will go through a notice and comment rulemaking process. …
Continue Reading ESA Rules Redux: Services Plan a Second (and, in Some Cases, Third) Look at the ESA Regulations

A December 2020 final rule defining “habitat” could have important consequences for future designations of lands and waters as “critical habitat” under the Endangered Species Act (ESA). Designation of critical habitat by the U.S. Fish and Wildlife Service or National Marine Fisheries Service (jointly, the “Services”) can affect projects that require federal agency permits or funding, because ESA section 7 requires federal agencies to ensure through consultation with the Services that their actions are not likely to adversely modify or destroy designated critical habitat.

On December 16, 2020, the Services adopted, for the first time, a regulatory definition of habitat, as follows:

For the purposes of designating critical habitat only, habitat is the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.
Continue Reading Federal Wildlife Agencies Issue Final Regulatory Definition of “Habitat”

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

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)

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 United States’ first major offshore wind energy project is running into delays as federal agencies internally debate whether the project plan adequately protects the fishing industry. How the agencies resolve the degree to which the project plan must address the fishing industry’s concerns will shape how future offshore wind energy projects are planned and permitted. …
Continue Reading First Major US Offshore Wind Project Delayed by Fishing Industry Concerns

In overturning a US Fish and Wildlife Service decision not to list the arctic grayling, the Ninth Circuit has shifted the burden to federal wildlife agencies to explain why listing is not appropriate when there is uncertainty regarding potential climate change impacts.
Continue Reading Ninth Circuit Overturns Climate Change-Based Decision Not to List Species Under ESA

As the Trump Administration is pushing forward on its deregulatory agenda and, in particular, its efforts to improve the Endangered Species Act and its implementation by the US Fish and Wildlife Service and National Marine Fisheries Service, the Supreme Court is poised to hear a landmark case on designation of critical habitat under the ESA that could provide some guideposts for the Services’ new regulations. …
Continue Reading Supreme Court to Evaluate Critical Habitat Limits as Services Ramp up ESA Reform Efforts

When Congress enacted the Endangered Species Act (“ESA”) to protect and recover imperiled species and the ecosystems on which they depend, it emphasized the need to strike the proper balance between protecting species and allowing productive human activities. Widespread concern that this balance has been lost has sparked movement within the Trump Administration and Congress to improve the ESA and its implementation. With these key changes, the Trump Administration and Congress could make significant progress to restore what many believe is the ESA’s intended balance between the protection of species and economic growth.
Continue Reading Catching Our Balance: Opportunities for ESA Reform

From the Penobscot River in Maine to the St. Mary’s River in Florida, the Atlantic sturgeon ranges, swimming periodically up river to spawn and returning to marine waters when it is done. With a lifespan of up to 60 years, the Atlantic sturgeon can grow up to 14 feet long and weigh up to 800 pounds, according to the National Marine Fisheries Service (NMFS). Despite this species’ mighty proportions and vast range, five distinct population segments of the species have been listed by the as threatened or endangered.
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Continue Reading From Maine to Florida, Designated Critical Habitat for Atlantic Sturgeon Will Complicate Federal Permitting