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.
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.
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.
Continue Reading Changes to Migratory Bird Treaty Act Program Announced

On April 15, Judge André Birotte Jr. for the U.S. District Court for the Central District of California determined that the U.S. Bureau of Reclamation’s (Bureau) operation of the Twitchell Dam with certain water flows did not result in an unlawful take of Southern California Steelhead trout, a species listed as endangered under the federal Endangered Species Act. Plaintiffs San Luis Obispo Coastkeeper and Los Padres Forestwatch claimed that the Bureau’s Standard Operating Procedures (SOP) for the Twitchell Dam limit the timing and volume of releases from the dam in a manner that has diminished trout habitat and resulted in harm to the trout population by impairing behavioral patterns including breeding, spawning, rearing, and migrating.
Continue Reading Judge Does Not Require Dam to Alter Water Flows for ESA Species Protection

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.
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.
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.
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.
Continue Reading FWS Issues Additional Habitat Proposal