On Monday, June 9, the U.S. Fish and Wildlife Service (FWS) opened a short, 30-day public comment period soliciting information and comments to, “improve the overall efficiency and effectiveness” of Section 10(a) take permitting under the Endangered Species Act (ESA). If it seems like Section 10(a) just underwent a comment period not too long ago, that’s because it did. In 2023, under the Biden Administration, FWS solicited comments on proposed revisions to the regulations implementing that section, which were finalized last April. Now, the Trump Administration is seeking suggestions on how to further revise its ESA permitting rules.
Endangered Species
California’s AB 550: A Blueprint for Balancing Development and Species Conservation
California’s drive toward a net-zero carbon economy by 2045 is sparking innovative solutions to harmonize environmental conservation with infrastructure development. Assembly Bill (AB) 550, sponsored by Assembly Member Petrie-Norris, aims to amend the California Endangered Species Act (CESA) by permitting renewable energy projects to take unlisted but “at-risk” species. The proposed legislation recognizes the dual imperative of advancing clean energy while conserving California’s biodiversity.
No Harm, No Foul? Services Propose to Remove Harm Definition from Endangered Species Act Regulations
On April 17, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (together Services) published a proposed rule to rescind the long-standing definition of “harm” under the Endangered Species Act (ESA). The proposal appears to be one of the first in response to President Trump’s April 9 Presidential Memorandum, “Directing the Repeal of Unlawful Regulations,” which directs federal agencies to revise or rescind regulations that conflict with the plain meaning of the underlying statute. If adopted, it will significantly change the ESA’s implementation. The FWS and NMFS are taking comments on the proposed rule from April 17 through May 17.
California Open to Input on Endangered Species Listing for Burrowing Owl

The western burrowing owl was just recently elevated to a “candidate species” under the California Endangered Species Act (CESA) by the California Department of Fish and Wildlife (CDFW). As a candidate species, the owl now has…
Final ESA Rules Include Fundamental Shift in RPMs
On March 27, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (collectively, the Services) issued three sets of final rules revising the Endangered Species Act (ESA) regulations. The effective date of the regulations will not be known until the regulations are published in the Federal…
FWS Prepares for Tricolored Bat Listing With New Guidance
The U.S. Fish and Wildlife Service (FWS) continues to focus on protections for bat species that have been ravaged by white-nose syndrome. In 2023, the Northern Long-Eared Bat (NLEB) was uplisted to endangered status. The FWS proposed to list the Tricolored Bat (TCB) as endangered in 2022, with a target date of September 2024 to finalize the listing. However, on April 1, FWS issued a series of guidance documents covering both NLEB and TCB, suggesting that the TCB endangered listing may be accelerated. Like the NLEB, the TCB has extensive habitat throughout the U.S. (37 states for NLEB, and 39 states for TCB). Accordingly, these listings have significant impacts on projects that involve tree clearing.
Changes to Eagle Take Permitting Finalized by Fish and Wildlife Service
Effective April 12, a new eagle take permitting regime will be in place. The eagle take permitting scheme has been criticized because of its overly conservative and burdensome requirements. These concerns culminated in a lawsuit filed against the U.S. Fish and Wildlife Service (FWS). Debra Shearwater et al. v. FWS, Case No. 14-CV-02830 (N.D. Cal 2015). The changes to the permitting regulations published on February 8 are the outcome of that litigation.
Western Pond Turtle Listing Will Impact Land and Water Managers Throughout the Western U.S.
The U.S. Fish and Wildlife Service (FWS) has proposed listing the northwestern pond turtle (Actinemys marmorata) and the southwestern pond turtle (Actinemys pallida) as threatened species under the federal Endangered Species Act (ESA), with a final listing decision likely to occur next year. Listing the turtles would affect large swaths of California, Oregon, Washington, and parts of Nevada — the northwestern pond currently inhabits portions of Washington, Oregon, Nevada, as well as northern and central California, and the southwestern pond turtle is found in central and southern California from northern Monterey County into Baja California, Mexico. The turtles rely on aquatic habitats such as streams, ponds, and adjacent uplands, and they are found from cool coastal regions to the Mojave River watershed.
Fish and Wildlife Service Revises Its Mitigation Policies
Last week, the U.S. Fish and Wildlife Service (FWS) released two revised compensatory policies. The Mitigation Policy and the ESA Compensatory Mitigation Policy reject the stringent goal of net conservation gain used by the FWS during the Obama administration. Instead, both policies include the goal of no net loss, which means maintaining the current status of affected resources. While the policies are nonbinding, they will guide how the FWS evaluates compensatory mitigation in the context of incidental take permitting, conservation benefit agreements for candidate species, and ESA Section 7 consultation. Both policies do not apply retroactively to completed actions, but the FWS may elect to apply the Mitigation Policy’s principles to actions under review. Both policies continue to favor advance compensatory mitigation over other mitigation options.
Fish and Wildlife Service Proposes New Section 10 Regulations Under the Endangered Species Act
On February 8, the U.S. Fish and Wildlife Service (FWS) proposed regulatory changes (Proposed Rule) focused on the application and approval process for Endangered Species Act (ESA) permits issued under Section 10. Section 10 of the ESA authorizes FWS to permit take of listed species where such take is necessary for scientific purposes or the enhancement of propagation or survival of the species, or where the take is incidental to an otherwise lawful activity. Section 10 permits are used for Candidate Conservation Agreements with Assurances and Safe Harbor Agreements, which are voluntary landowner agreements designed to benefit candidates or listed species, respectively. Section 10 permits also have been used to allow the take of listed species incidental to private development activities through a Habitat Conservation Plan (HCP), which involves the project proponent committing to certain conservation activities.