Endangered Species

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Following its March 2022 proposal to uplist the northern long-eared bat (NLEB) to endangered status, U.S. Fish and Wildlife Service (FWS or Service) finalized the proposal on November 30, 2022.  As of January 30, 2023, new protections for the NLEB take effect.  In addition, the agency proposed to list the tricolored bat as endangered on September 14, 2022. FWS has also indicated that it expects to issue a proposed listing decision regarding the little brown bat this summer.…

Continue Reading FWS Finalizes NLEB Uplisting and Advances Tricolored Bat Listing

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

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.
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Continue Reading Trump ESA Rules Vacated

On March 31, the U.S. District Court for the District of Columbia denied an appeal filed by the Natural Resources Defense Council (NRDC) and other conservation groups seeking to overturn a National Marine Fisheries Service (NMFS) decision not to protect two types of river herring, alewife, and blueback herring under the Endangered Species Act (ESA). The appeal sought to have NMFS list both species as threatened. A listing of river herring would have a significant impact on hydropower projects, as dams were identified as one of the primary threats to river herring populations.
Continue Reading Conservation Group Efforts Seeking Greater Protection of River Herring Denied

On June 7, the U.S. Fish and Wildlife Service (FWS) issued a proposed rule titled, “Endangered and Threatened Wildlife and Plants; Designation of Experimental Populations.” In issuing the proposed rule, FWS re-affirms its authority to designate and introduce experimental populations of protected species into areas of habitat outside of their historical range when climate change, invasive species, or other threats have affected or will affect that range. Importantly, this proposal only applies to species managed by FWS. Species managed by NMFS are governed by separate regulations, which NMFS updated back in 2016. These changes will make the FWS regulations more similar to those of NMFS. Pursuant to NMFS’ existing regulations, experimental populations of salmon have been re-introduced in certain waterways in the Western United States. FWS’s proposal could result in similar re-introduction of experimental populations of terrestrial and freshwater species.
Continue Reading FWS Proposes to Account for Climate Change When Designating Experimental Populations

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

On October 26, the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (the Services) proposed to rescind two Trump-era final rules: the Habitat Definition Rule and the Designating Critical Habitat Rule. Both rules deal with the designation of critical habitat — a Service-designated area determined to be essential to an endangered species’ conservation and recovery, which may be occupied by a species when designated or unoccupied. Both rules are also a direct result of the U.S. Supreme Court’s 2018 decision in Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361, which remanded a critical habitat decision to the U.S. Court of Appeals for the Fifth Circuit, noting, among other things, that a determination of habitat is needed before FWS can determine what is considered critical habitat.
Continue Reading Biden Administration Rescinds Two Trump-Era Endangered Species Act Rules

On October 4, the U.S. Fish and Wildlife Service (FWS) published a revision of its interpretation of the Migratory Bird Treaty Act (MBTA). With the final rule, FWS has effectively reinstated its position that “incidental take” — the harming or killing that results from, but is not the purpose of, carrying out an otherwise lawful activity — is prohibited by the MBTA, and persons that cause incidental take can be prosecuted criminally. FWS’s final rule represents a reversal of a Trump-era interpretation of the MBTA, which narrowly interpreted liability under the statute to apply only to those actions specifically “directed at” migratory birds that “reduce animals to human control.” See previous post covering the prior rule.
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Continue Reading Changes to Migratory Bird Treaty Act Program Announced