In its response to comments calling for a Section 7 consultation under the Endangered Species Act (“ESA”) for its recently revised Cadmium Water Criteria, EPA determined that the appropriate time for ESA consultation is during the state adoption process. Several groups, including the National Marine Fisheries Service (“NMFS”), the Center for Biological Diversity, and the California State Water Resources Control Board all submitted public comments on the proposed criteria changes recommending ESA consultation. The groups argued that due to the frequent adoption of the federal criteria by states, EPA should consult with NMFS in order to insure species protection. The groups further argued that deferring consultation until the state adoption process resulted in a “piecemeal approach” that leaves EPA’s adoption process “legally vulnerable.”
Continue Reading EPA Foregoes ESA Consultation on Final Cadmium Water Criteria, Says Consultation More Appropriate During State Adoption

The U.S. Fish and Wildlife Service (FWS) recently announced a draft methodology for prioritizing species status reviews and 12-month findings for species listings under the Endangered Species Act (ESA). The proposed revisions are meant to aid FWS in addressing the backlog of over 500 unresolved status reviews, and focus resources on the highest-priority status reviews.  FWS will classify species into “priority bins” as follows:
Continue Reading US Fish and Wildlife Service Proposes Revised Methodology for Prioritizing Status Reviews, Announces Findings on 17 Petitions

On January 14, 2016, the Fish and Wildlife Service finalized a rule exempting certain types of “take” of northern long-eared bats from the requirement to obtain an incidental take permit, pursuant to Section 4(d) of the Endangered Species Act.  In the final rule, the Service has made all incidental (as opposed to purposeful) take exempt from the permitting requirement unless it is caused by tree removal (a) that occurs within a 0.25 mile buffer around known occupied northern long-eared bat hibernacula or (b) that cuts or destroys known occupied maternity roost trees, or any other trees within a 150-foot (45-m) radius around the maternity roost tree, during the pup season (June 1 through July 31).  The obligation to obtain an incidental take permit for tree removal in the vicinity of occupied habitat only applies in an area designated as the “white nose syndrome buffer zone,” the area of the country in which the bats have been affected by the incurable disease white nose syndrome (“WNS”).  As with the provisional 4(d) rule released last April, all incidental take outside of the WNS buffer zone is exempt.
Continue Reading Final 4(d) Rule for Northern Long-Eared Bats Provides Needed Certainty, Additional Requirements for Wind Facilities

The White House has issued a Presidential Memorandum to several federal agencies regarding policies and principles for mitigating environmental impacts from land and water-disturbing activities. Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment was published in early November and incorporates a new “net benefit goal” expectation for mitigation in federal projects or projects requiring approval by these federal agencies. The President also set a backstop goal for mitigation of “no net loss for natural resources the agency manages that are important, scarce, or sensitive, or wherever doing so is consistent with agency mission and established natural resource objectives.” In addition to the “net benefit goal” the guidance focuses on landscape-scale planning, habitat mitigation banks, and advance conservation measures.
Continue Reading White House Issues New Mitigation Guidance, Including “Net Benefit” Goal

On August 21, 2015, EPA issued a final rule revising its regulations governing the development, review and approval of state water quality standards (“WQS”) (40 CFR Part 131). The revisions were prompted by requests from the states for increased clarity in the existing rule, as well as the need for greater flexibility.  The rule includes changes that expand EPA’s authority to review state WQS in several ways.
Continue Reading EPA Revises Rule Governing State Water Quality Standards Review and Approval Process