On May 1, 2019, the Fish and Wildlife Service (“FWS” or “Service”) issued a proposed rule “downlisting” Endangered Species Act (“ESA”) protections for the American burying beetle from endangered to threatened. The burying beetle was listed as endangered in 1989 and its listing has been particularly impactful to oil and gas development in Texas and Oklahoma.  Once with a range across thirty-five states, the beetle’s range when listed had been depleted to just two areas—Oklahoma and Rhode Island.  The Service states that, due to the success of mitigation programs, that the beetle now inhabits nine states (Arkansas, Kansas, Massachusetts, Missouri, Nebraska, Oklahoma, Rhode Island, South Dakota, and Texas) warranting the downlisting.  The Service states that the downlisting was the result of collaborative work with industry, but opponents argue that that the rollback of protections will negatively affect the species by opening up parts of Oklahoma to drilling and removing obstacles from drillers in Texas.

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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 30, the United States Fish and Wild Service (“USFWS”) published notices in the Federal Register withdrawing the USFWS Mitigation Policy and the Endangered Species Act Compensatory Mitigation Policy (“ESA-CMP”). Both of these policies were published in late 2016, at the tail end of the Obama Administration.

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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 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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Troutman Sanders has formed a new group, Species Strategies and Solutions (S3), which will track policy, regulatory, legislative, and litigation developments regarding federally-protected wildlife and plants.  Initiatives to address infrastructure projects, and how those initiatives relate to species-related review requirements, will also be featured.  S3 will be focused primarily on national-level species-related developments that have the potential to affect construction and operation of projects in those sectors. S3 is not a lobbying or advocacy group; rather, its purpose is to facilitate a better understanding of the issues associated with compliance with the Endangered Species Act, and strategies for addressing those issues.
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