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In an April 1, 2021 ruling, the U.S. Supreme Court overruled Florida’s exceptions to the decision of Special Master Judge Paul Kelly in its long-running dispute with Georgia over the use of water in the Apalachicola-Chattahoochee-Flint (ACF) river basin. The oral argument in the case, held February 22, 2021, seemed to point to several open questions where the justices could have made new law or clarified the tests associated with an equitable apportionment action. However, in the end, it came down to just the content of the evidentiary record, which was not in Florida’s favor, especially with the application of heightened standards of review.…
Continue Reading Georgia Prevails Before Supreme Court In Long Running Water Wars Dispute

The U.S. Fish and Wildlife Service (FWS) continues its push to finalize pending rules before the new administration takes office next year. Following a publication of a final rule defining “habitat” under the Endangered Species Act (ESA) earlier this week, today the agency published a final rule establishing the agency’s process for excluding certain lands from critical habitat designations.
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Continue Reading FWS Finalizes Rule for Excluding Areas from Critical Habitat Designations

In accordance with a settlement between the U.S. Fish and Wildlife Service (FWS) and the Center for Biological Diversity (CBD), the FWS was required to make an Endangered Species Act (ESA) listing determination for the monarch butterfly by December 15, 2020. On December 17, 2020, the FWS announced that it had determined that adding the monarch butterfly to the list of threatened and endangered species is “warranted but precluded” by higher-priority listing actions.
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Continue Reading Fish and Wildlife Service Issues “Warranted but Precluded” Finding for Monarch Butterfly

In a case involving the question of when unoccupied habitat may be designated “critical habitat” under the Endangered Species Act (ESA), the U.S. Supreme Court held that critical habitat land must first be habitat before it could be “critical habitat.” Weyerhaeuser Co. v. U.S. FWS, 139 S.Ct. 361 (2018). Given that neither the ESA nor its implementing regulations define habitat, the Court remanded the case for further consideration. In response to this opinion, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (the Services) issued a final rule defining habitat on December 16, 2020. The rule becomes effective on January 15, 2021.
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Continue Reading Final Rule Defining “Habitat” under the Endangered Species Act Issued

In the wake of the U.S. Supreme Court’s decision in Weyerhaeuser Co. v. U.S. FWS, 139 S.Ct. 361 (2018), the United States Fish and Wildlife Service (FWS) has issued a series of proposals to refine the scope, meaning, and criteria for designating critical habitat for species listed under the Endangered Species Act (ESA). The most recent proposal will be published in the Federal Register on September 8, 2020, kicking off a 30-day public comment period.
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Continue Reading FWS Issues Additional Habitat Proposal

On July 31, 2020, the Fish and Wildlife Service and National Marine Fisheries Service (collectively, the “Services”) released an advance copy of a proposed rule defining “habitat” under the Endangered Species Act (ESA). The proposed rule is expected to be published in the Federal Register this week, kicking off a 30-day public comment period.…
Continue Reading Definition of Habitat Proposed for the ESA

Yesterday, the U.S. District Court for Montana amended its April 15, 2020, order vacating Nationwide Permit (NWP) 12, which authorizes minimal impacts from “utility line activities” to jurisdictional waters. As we previously reported, despite the case centering on the Keystone XL Pipeline, the court’s April 15 order vacated NWP 12 nationwide for all activities (including broadband, electric, water and sewer) until the U.S. Army Corps of Engineers (Corps) consults with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (Services) pursuant to the Endangered Species Act (ESA). In yesterday’s order, the court amended the vacatur’s applicability by limiting it to the construction of new oil and gas pipelines. Under the amended order, the Corps may continue to authorize the use of NWP 12 for construction of new utility lines for broadband, electric, water, and sewer, as well as “maintenance, inspection, and repair activities” on existing utility lines, including existing pipelines.
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Continue Reading Montana District Court Limits Its Vacatur of Nationwide Permit 12

As we previously reported, the Federal District Court for Montana vacated the U.S. Army Corps of Engineers (Corps) Nationwide Permit (NWP) 12 on April 15, 2020, finding that the Corps had failed to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service prior to issuing NWP 12. Despite the case centering on the Keystone XL Pipeline, the court’s decision vacated NWP 12 nationwide and prevents the Corps from authorizing a broad range of utility projects that are unrelated to the Keystone XL Pipeline.
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Continue Reading Update: Corps Seeks Stay of Montana District Court’s NWP 12 Ruling

On January 30, 2020, the U.S. Fish and Wildlife Service (“USFWS”) released its anticipated Migratory Bird Treaty Act (“MBTA”) proposed rule. The purpose of the proposed rule is to codify the December 2017 Department of Interior (“DOI”) Solicitor opinion (“M-Opinion”) limiting liability under the MBTA. The M-Opinion overturned an earlier Obama Administration M-Opinion explicitly finding that MBTA liability applied to incidental take.
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Continue Reading Trump Administration Releases Anticipated MBTA Proposed Rule

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