On October 4, 2021, the US Fish and Wildlife Service (FWS or the Service) published a final rule revoking its January 7, 2021, Migratory Bird Treaty Act (MBTA or Act) rule. 86 Fed. Reg. 54,642  (Oct. 4, 2021) (Rule or Revocation Rule). The January 7 rule was issued at the end of the Trump administration and established that the MBTA does not prohibit incidental (unintentional) take of migratory birds.  86 Fed. Reg. 1134 (Jan. 7, 2021). In the preamble to the Rule, which lists an effective date of December 3, 2021, the Service explained that “[t]he immediate effect of this final rule is to return to implementing the MBTA as prohibiting incidental take and applying enforcement discretion, consistent with judicial precedent and longstanding agency practice prior to 2017.” 86 Fed. Reg. at 54,642.  On the same day it published the Revocation Rule, FWS also published an Advanced Notice of Proposed Rulemaking (ANPR), requesting public input that will be used to develop proposed regulations to authorize the incidental take of migratory birds under prescribed conditions, 86 Fed. Reg. 54,667 (Oct. 4, 2021), and issued a Director’s Order clarifying the Service’s current enforcement position.

Continue Reading FWS Revokes Trump Administration’s Migratory Bird Treaty Act Rule

On May 7, the US Fish and Wildlife Service (USFWS or Service) under the new Biden administration published a proposed rule to revoke a final rule issued during the final weeks of the Trump administration, 86 Fed. Reg. 1134 (Jan. 7, 2021) (January 7 rule), which excluded incidental take from the prohibition against take under the Migratory Bird Treaty Act (MBTA or Act). 86 Fed. Reg. 24,573 (May 7, 2021) (Proposed Rule). This proposal is the latest development in a series of efforts by recent presidential administrations to implement competing interpretations of the MBTA, as we have reported in previous articles. If USFWS revokes the January 7 rule as proposed, the regulated community will once again face uncertainty regarding its exposure to criminal enforcement under the MBTA for unintentional take of protected birds associated with a wide range of productive activities.  Notably this could include the operation of wind turbines, an activity that the current administration otherwise presumably wants to encourage as part of its effort to expand the use of renewable energy to address climate change.

Continue Reading USFWS Proposes to Reverse Course (Again) Regarding Incidental Take Under the Migratory Bird Treaty Act

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”

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

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 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

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

On April 16, 2018, the U.S. Fish and Wildlife Service published a final rule removing the black-capped vireo (BCV) from the Federal List of Endangered and Threatened Wildlife. 83 Fed. Reg. 16,228. The BCV is a migratory songbird that breeds and nests in Texas, Oklahoma, and northern Mexico, and winters along Mexico’s Pacific coast. Its breeding habitat includes shrublands and open woodlands. The delisting decision is based on the Service’s determination “that the primary threats to the [BCV] have been reduced or managed to the point that the species has recovered.” The delisting will take effect on May 16, 2018. The Service will work with the States of Texas and Oklahoma to implement a 5-year post-delisting monitoring program in compliance with section 4(g)(1) of the Endangered Species Act (ESA).

Continue Reading U.S. Fish and Wildlife Service Publishes Final Rule Delisting the Black-Capped Vireo

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