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.
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.”
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. Continue Reading Troutman Sanders Forms Group Focused on Species Issues
On August 17, 2017, the National Marine Fisheries Service (NMFS) published in the Federal Register a final rule designating over 3,900 river miles along the east coast as critical habitat for five distinct population segments (“DPS”) of Atlantic Sturgeon (New York Bight, Chesapeake Bay, Carolina, South Atlantic and Gulf of Maine). The agency chose these areas based on the presence of “physical or biological factors” (PBFs) essential for the conservation of the species and that may require special management considerations or protection. Back in 2012, NMFS had listed each of the five Atlantic Sturgeon DPS as either endangered or threatened. 77 Fed. Reg. 5880; 77 Fed. Reg. 5914. Once a species is listed, the relevant agencies must identify critical habitat for the species. Under the ESA, impacts to critical habitat must be evaluated in federal permitting actions, in addition to impacts to the species itself.
Following a short delay caused by the Trump Administration’s January 20, 2017 White House Memorandum halting implementation of several regulatory processes, the rusty patched bumble bee was officially listed as an endangered species by the U.S. Fish and Wildlife Service (the “Service”) on March 21, 2017.
On March 1, 2017, the Senate confirmed Ryan Zinke as Secretary of the Interior. In grand fashion, Secretary Zinke arrived to his first day of work—at the invitation of the National Park Service (“NPS”) Park Police—riding an Irish sport horse. As Secretary of the Interior, Zinke’s responsibilities will include overseeing the management of national lands, waters and resources through the Bureau of Land Management (“BLM”), the NPS, the Fish and Wildlife Service (“FWS”), the Bureau of Indian Affairs, and several other agencies. Secretary Zinke is a former Navy SEAL and a former Republican Congressman from Montana.
Last week, a federal judge granted a 60-day stay in litigation over critical habitat designation and policy pursuant to the Endangered Species Act (“ESA”). The U.S. Fish and Wildlife Service and the National Marine Fisheries Service (the “Services”)—the agencies charged with carrying out such designations pursuant to the ESA—asked for the delay in order to allow incoming Trump Administration officials time to become familiar with the case.
In late December, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (together, “the Services”) issued the final revised joint Habitat Conservation Planning Handbook (HCP Handbook). 81 FR 93702. The original HCP Handbook was issued in 1996 and later revised in 2000. Most recently, the Services held a 60-day comment period on draft revisions to the Handbook in June 2016, during which 54 public comments were submitted.
On December 27, 2016, the U.S. Fish and Wildlife Service (FWS or the Service) issued the final Endangered Species Act (ESA) Compensatory Mitigation Policy (the Policy). 81 FR 95316. The Policy is the first comprehensive treatment of compensatory mitigation under ESA authority to be issued by the FWS following previous piece-meal and disjointed policies.
On January 11, the U.S. Fish and Wildlife Service (FWS) published its final listing of the Rusty Patched Bumble Bee as endangered under the Endangered Species Act (ESA). A proposed listing of the bee was previously published in September 2016. The decline in the species is due to a number of factors such as pathogens, pesticides, habitat loss and degradation, small population dynamics, and the effects of climate change.