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On January 28, in Center for Biological Diversity v. Everson, No. 1:15-cv-00477 (D.D.C. 2020), the U.S. District Court for the District of Columbia remanded, but did not vacate, the United States Fish and Wildlife Services’ (“USFWS”) April 2015 decision to list the northern long-eared bat (“NLEB”) as threatened under the Endangered Species Act (“ESA”). The court also vacated a component of the USFWS and National Marine Fisheries Services (collectively, “Services”) significant portion of its range policy (the “SPR Policy”) regarding how to evaluate whether a species is endangered in a “significant portion of its range” once a determination has been made that the species is threatened throughout “all of its range.” The SPR Policy, issued in 2014, has formed the basis for other listing decisions and thus its vacatur has implications beyond the NLEB.

Continue Reading Federal District Court Remands Northern-Long Eared Bat Listing Decision

On January 10, 2020, the Council on Environmental Quality (CEQ) published the long-awaited proposed rule to amend its regulations implementing the National Environmental Policy Act of 1969 (NEPA).  The statute, sometimes pejoratively referred to as a “paper-tiger,” requires a federal agency to take a hard look at the environmental impacts of certain proposed projects, but does not mandate any particular outcome.

Continue Reading Council on Environmental Quality Proposes Long-Awaited NEPA Regulations Overhaul

On August 12, 2019 the U.S. Fish Wildlife Service (“USFWS”) and National Marine Fisheries Service (“NMFS”) (collectively, the “Services”) released pre-publication versions of three final rules that are expected to significantly affect the 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.

Continue Reading Trump Administration Finalizes Broad Changes to Endangered Species Act Regulations

On May 23, 2019, the Center for Biological Diversity and San Francisco Baykeeper (collectively “Center”) filed a lawsuit against the Fish and Wildlife Service (“Service”) in the United States District Court for the Northern District of California alleging the Service failed to protect eight species under the Endangered Species Act (“ESA”).  The eight species at issue are the longfin smelt (San Francisco Bay-Delta population), Hermes copper butterfly, Marron bacora (a plant), Sierra Nevada red fox, red tree vole (North Coast population), gopher tortoise (eastern population), Berry Cave Salamander, and Puerto Rico harlequin butterfly.  Each of the eight species is currently a “candidate” for listing.  The Service previously found that each species warranted protection under the ESA, but that listing was warranted but precluded (“WBP”) due to the need to focus on other higher priority species.    
Continue Reading Fish and Wildlife Service Faces Challenge on Delay in Listing Species

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.
Continue Reading EPA Publishes Interpretation of Clean Water Act’s Applicability to Pollution Traveling Through Groundwater

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.

Continue Reading High Court Unlikely to Solve Endangered Species Act Issues in Frog Habitat Case

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.
Continue Reading Trump Administration Proposes Broad Changes to Endangered Species Act

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.

Continue Reading USFWS Scales Back Need for Incidental Take Permits for Habitat Modification

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”).


Continue Reading Major Rollbacks of USFWS Regulations on the Way

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.

Continue Reading Environmental Groups Set to Challenge WOTUS Rule Delay under Endangered Species Act