Andrea Wortzel

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On April 15, 2019, EPA issued its long-awaited Interpretative Statement addressing the Clean Water Act’s applicability to releases of pollutants from point sources into groundwater that subsequently migrate to jurisdictional surface waters. The question this interpretation addresses stems from the 2018 federal circuit split previously discussed here. On February 19, 2019, the Supreme Court granted certiorari in one of the cases that contributed to the split, County of Maui v. Hawai’i Wildlife Fund. The United States filed its amicus brief in that case, urging the highest court to review County of Maui, but not a similar ruling from the Fourth Circuit. As the question was being reviewed by the federal courts, EPA requested public comment on this issue and received over 50,000 comments. EPA is addressing some of these comments in the Interpretative Statement.…
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The U.S. Supreme Court kicked off its new term on Oct. 1 with oral arguments in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service. The case centers around whether and when the U.S. Fish and Wildlife Service (FWS) can designate land unoccupied by a threatened or endangered species as critical habitat for that species under the Endangered Species Act.
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On July 20, the U.S. Fish Wildlife Service (“USFWS”) and National Marine Fisheries Service (“NMFS”) (collectively, the “Services”) released pre-publication versions of three proposed rules that would significantly affect applicability and implementation of the Endangered Species Act (“ESA”). These regulations relate to the process and standards for listing species and designating critical habitat, the scope of protections for threatened species, and the process for consultations with federal agencies under Section 7.

In addition to implementing the Trump Administration’s general deregulatory goals and Executive Order 13777, several of these proposed changes appear directly responsive to negative court precedent from the Ninth Circuit that the Services indicate improperly have extended the ESA beyond its intended scope, while other changes are intended to rollback expansions that were implemented by the Obama Administration.…
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On April 26, 2018, the U.S. Fish and Wildlife Service (“FWS”) issued a memorandum addressing the need for an incidental take permit (“ITP”) under the Endangered Species Act (ESA) for the modification of listed species’ habitat (“ITP Memo”).  As background, under the ESA, the “take” of an endangered species is prohibited.  This prohibition has been extended to threatened species through a blanket 4(d) rule.  In certain circumstances, take that is not purposeful and occurs incidental to some other action can be authorized through the issuance of an ITP.
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On April 2, 2018, the U.S. Fish and Wildlife Service (“USFWS”) submitted three proposed rules to the Office of Management and Budget (“OMB”), which is charged with reviewing every final and proposed federal agency rule before its publication in the Federal Register.  These proposals, if implemented, will significantly change USFWS’ implementation of the Endangered Species Act (“ESA”).

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Last week, the Center for Biological Diversity, Water Keeper Alliance, and a coalition of other organizations served a Notice of Intent to Sue the U.S. EPA and Army Corps of Engineers (the “Agencies”), alleging the Agencies’ delay in implementing the Obama-era Waters of the U.S. (“WOTUS”) Rule violated the Endangered Species Act.
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On Monday February 12, President Trump unveiled his long-awaited infrastructure plan.  According to President Trump, our country’s infrastructure “is in an unacceptable state of disrepair, which damages our country’s competitiveness and our citizens’ quality of life.”  While some view the plan as a step toward streamlining an environmental review process that could delay a project unnecessarily, others worry the proposal could curtail the authority federal agencies exercise over environmental reviews pursuant to the National Environmental Policy Act (NEPA).

The plan calls for $200 billion to be spent rebuilding roads, bridges, highways, railways, waterways, and other infrastructure over the next ten years.  That money will come from cuts to other programs (particularly within the Department of Transportation) and is not intended—at least as proposed—to come from new revenue streams.  According to President Trump, the proposed changes will generate approximately $1.5 trillion in new infrastructure investment.

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The scope and definition of critical habitat under Section 4 of the Endangered Species Act has been a controversial subject.  In 2012, the U.S. Fish and Wildlife Service designated 6,477 acres of land in Louisiana (including 1,600 privately-owned acres) as critical habitat for the dusky gopher frog, despite the fact that the frogs have not been seen in the state for decades.  Timber company Weyerhauser Co. and private landowner Markle Interests LLC filed suit challenging that designation.  Subsequent to the critical habitat designation for the dusky gopher frog, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, “the Services”) promulgated new critical habitat rules that authorized, among other things, the designation of areas where a species was not actually present as critical habitat for that species.  Thus, the outcome of this case has significant implications for these 2016 rules.
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On December 22, 2017, the U.S. Department of Interior (DOI) reversed course and issued a Memorandum interpreting the scope of criminal liability under the Migratory Bird Treaty Act (MBTA) and its applicability to “incidental takings,” which the Memorandum defines as a death or other “take” that “results from an activity, but [that] is not the purpose of that activity.” In short, the Memorandum concludes that criminal liability under the MBTA should not be interpreted to extend to incidental takes, and instead only applies to “affirmative actions that has as their purpose the taking or killing of migratory birds, their nests, or their eggs.” This Memorandum will provide significant needed clarity to renewable energy projects and many other industries that perform activities with the potential to indirectly, and non-purposefully, impact migratory birds during development, construction, or operation.
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Previously, we reported on the U.S. Fish and Wildlife Service’s (“USFWS”) issuance of the final ESA Compensatory Mitigation Policy (“ESA-CMP”), the first comprehensive treatment of compensatory mitigation under the Endangered Species Act.  Endangered Species Act Compensatory Mitigation Policy, 81 FR 95316 (Dec. 27, 2016).  The policy formalizes the Services’ shift from project-by-project to landscape-scale approaches to planning and implementing compensatory mitigation.  We also reported on the Services’ issuance of a final revised Mitigation Policy in November 2016 intended to serve as an overall umbrella strategy under which more detailed Service sub-policies or guidance documents covering specific activities would be issued.  U.S. Fish and Wildlife Service Mitigation Policy, 81 FR 83440 (Nov. 21, 2016).  Both policies focus on using mitigation to achieve a “net conservation benefit.”
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