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On November 17, the U.S. Fish and Wildlife Service (Service) announced that $38 million in grant funding is available in fiscal year 2023 for fish passage projects. The goal is to award this funding to projects that address outdated, unsafe, or obsolete dams, culverts, levees, and other barriers. This funding effort is part of an overall $200 million commitment set out in the Bipartisan Infrastructure Law (BIL) and is part of the National Fish Passage Program (NFPP). The NFPP is a voluntary program that provides direct technical and financial assistance for restoration of aquatic organism passage and aquatic connectivity.

Continue Reading Fish and Wildlife Service Announces Funding Grants for Fish Passage

On September 22, the Federal Energy Regulatory Commission (Commission or FERC) issued an order on rehearing (Rehearing Order), denying the U.S. Department of the Interior’s (Interior) request to include a requirement for a hydroelectric project to notify resource agencies if any activity may affect a federally listed Endangered Species Act (ESA) species and had not already been considered in the issued license (Notification Recommendation).

Continue Reading FERC Denies Interior’s Requirement for Ongoing Species Notifications

Today, the U.S. Fish and Wildlife Service (FWS) published its much-anticipated proposal, updating the regulations governing permits for incidental take of bald and golden eagles, as well as take of their nests. This proposal is the culmination of efforts to improve the effectiveness of the eagle take permitting process, particularly for wind energy projects. The rule was last updated in 2016, but it was challenged by the Energy and Wildlife Action Coalition. In 2019, that challenge was settled with a commitment from the FWS to amend the rule. In September 2021, the FWS issued an Advance Notice of Proposed Rulemaking, seeking comments on potential revisions to the eagle take permitting process.

Continue Reading Fish and Wildlife Service Issues Long-Awaited Eagle Rule Proposal

On June 24, the Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA) (together, the Services) issued a final rule that removes the definition of “habitat” from the Code of Federal Regulations, 50 C.F.R. § 424.02. The final rule follows the FWS’ proposal issued on October 27, 2021; the definition the agencies are now removing was adopted during the last months of the Trump administration.

Continue Reading Services Issue Final Rules Rescinding Trump-Era Habitat Definition and Critical Habitat Exclusion Rules

The Endangered Species Act (ESA) regulations promulgated by the Trump administration (Trump ESA Rules) were challenged by environmental groups. While that challenge was pending, the Biden administration announced that those regulations would be revised. On July 5, the U.S. District Court for the Northern District of California vacated the Trump ESA regulations, not on the merits of the regulations but because they are in the process of being rewritten. This decision disregards the Biden administration’s request that the regulations remain in effect to preserve consistency and order during the revision process. Instead, the pre-Trump regulations (which were issued in the mid-1980s) have been reinstated and are now in effect until the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, the Services) finalize new regulations.

Continue Reading Trump ESA Rules Vacated

This article was republished in Pratt’s Energy Law Report (Vol. 22-10, November-December 2022).

On June 1, the Environmental Protection Agency (EPA) released a pre-publication version of its proposal to re-write the Clean Water Act Section 401 rule (Certification Proposal), which, if finalized, is expected to have far-reaching impacts on hydroelectric licensing and relicensing. The Certification Proposal is intended by EPA to replace the version of the rule finalized under the Trump administration in 2020 (2020 Rule). While the Certification Proposal maintains some aspects of the 2020 Rule, it differs in some significant areas and in many ways reverts back to the 1971 regulations.

Continue Reading EPA’s Clean Water Act Certification Proposal to Significantly Impact Hydropower Licensing

The listing status of the northern long-eared bat (NLEB) under the Endangered Species Act (ESA) has been the subject of litigation since the U.S. Fish and Wildlife Service (Service) originally listed it as threatened in 2015. At that time, the Service also issued an ESA Section 4(d) rule that allowed incidental take resulting from development activities to occur within its range and habitat where white nose syndrome (WNS) was not present, so long as certain best management practices, such as time of year restrictions on tree removal, were followed. In 2021, the U.S. Court of Appeals for the D.C. Circuit found that the Service’s 2015 listing decision did not adequately explain why the bat was not listed as endangered, and failed to address how impacts, such as habitat modification allowed under the 4(d) rule, affected the NLEB. The court remanded the 2015 rule to the Service for further consideration, but allowed the threatened listing and 4(d) rule to stay in place while the Service reconsidered the listing status for the species.

Continue Reading FWS Proposes to Uplist Northern Long-Eared Bat

Section 7 of the Endangered Species Act (ESA) requires the Army Corps of Engineers (Corps) to consult with the National Oceanic and Atmospheric Administration Fisheries (NOAA) (together “Agencies) before undertaking work or issuing permits to maintain structures that may affect listed species or protected habitat. On January 5, 2022, the Agencies signed a joint resolution memorandum (Memorandum) that provides guidance on whether to include existing structures (such as a dam or a pier) involved in a proposed action as an “effect of the action” or within the “environmental baseline” for the purposes of ESA Section 7 consultation. Depending upon the scope of the “effects of the action,” NOAA may determine that the action will have no effect on ESA-listed species or their critical habitat, that the activity requires a permit for the incidental take, and/or that certain reasonable and prudent measures should be implemented to offset harmful effects.

Continue Reading New Guidance on the Endangered Species Act for Existing Structures

As the U.S. Environmental Protection Agency (EPA) prepares its Clean Water Act (CWA) Section 401 rule proposal, litigation regarding the 2020 Trump-era rule (Certification Rule) continues. Currently, the issue of whether to re-instate the Certification Rule is proceeding before U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit). The U.S. District Court for the Northern District of California had vacated and remanded the Certification Rule, and intervenors and several states appealed the vacatur. Appellants, including several industry groups, have filed motions to stay the District Court’s vacatur pending the outcome of the appeal and are now awaiting the Ninth Circuit’s ruling that could, at least temporarily, re-instate the Certification Rule.

Continue Reading Clean Water Act Section 401 Certification Rule Litigation Continues