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.

On December 16, the U.S. Army Corps of Engineers (the Corps) issued a proposed rule to update and clarify its policies governing the use of its reservoir projects for domestic, municipal and industrial water supply under Section 6 of the Flood Control Act of 1944, 33 U.S.C. § 708 and the Water Supply Act of 1958, 43 U.S.C. § 390b. This is the first time the Corps has proposed a rule to set policy on these important issues.

On December 14, 2016, the United States Fish and Wildlife Service (“FWS”) finalized revisions to its regulations for nonpurposeful (or incidental) take of eagles and eagles nests under the Bald and Golden Eagle Protection Act (“Eagle Act”).  According to FWS, the rule is intended to balance clean energy development and eagle conservation goals.  FWS acknowledges the Obama Administration’s efforts to expand wind energy development and how the accompanying growth has impacted eagles, but emphasizes its belief that wind energy development does not pose a disproportionate risk to eagles as compared to other activities that may incidentally take eagles.  FWS’s revisions are clearly drafted with the wind industry in mind.

On November 29, eighteen states filed suit in the Southern District of Alabama challenging a rule recently finalized by the Fish and Wildlife Service and the National Marine Fisheries Service (the “Services”), the two agencies charged with the implementation of the Endangered Species Act (“ESA”). The suit concerns the Services’ revision of the definitions of “critical habitat” and “adverse modification” in their regulations implementing the ESA. The states argue the revised definitions are inconsistent with the ESA, as the new rules expand the Services’ authority to designate areas that are not currently occupied by threatened or endangered species as critical habitat (described in another blog post here). Specifically, the states assert that the Services must explain how unoccupied areas can be “essential” to the conservation of a species, and therefore deserve protection under the ESA. Similarly, the states take issue with the Services’ new ability to designate critical habitat based on biological factors not yet present in an area.

On October 24, 2016, the Ninth Circuit Court of Appeals upheld the National Marine Fisheries Service’s (“NMFS”) decision to list certain subspecies of the Pacific bearded seal as threatened under the Endangered Species Act (“ESA”), concluding that NMFS had not acted arbitrarily by relying on climate change projections to determine that the seal is likely to become endangered in the foreseeable future.  After being petitioned by the Center for Biological Diversity (“CBD”), NMFS had concluded in 2012 that the species were likely to become endangered by 2095.  The Alaska Oil and Gas Association, the State of Alaska and North Slope Borough (collectively, “Plaintiffs”) challenged the listing in federal district court in Alaska, arguing that NMFS improperly relied on speculative climate change projections beyond 2050 to make its determination.  The District Court had ruled for the Plaintiffs, concluding that NMFS’s reliance on long-term climate projections was inappropriate due to their volatility.  

On September 27, 2016, the United States Fish and Wildlife Service and the National Marine Fisheries Service (collectively, “the Services”) published a final rule finalizing changes to the regulations concerning listing and de-listing petitions under the Endangered Species Act (“ESA”). The revisions clarify and enhance the procedures by which the Services evaluate these petitions under section 4(b)(3) of the ESA.  The Services initially proposed revisions to the petitions process in May 2015, but narrowed the revisions in a re-proposal issued in April 2016.  The rule becomes effective October 27, 2016.

On September 22, the United States Fish and Wildlife Service (“FWS”) proposed the rusty patched bumble bee for listing as an endangered species under the Endangered Species Act (“ESA”).  This action results from a 2013 petition and subsequent lawsuit filed by The Xerces Society for Invertebrate Conservation to list the rusty patched bumble bee as an endangered species.

The U.S. Fish and Wildlife Service (FWS) has released a National Listing Workplan outlining its planned approach to address a backlog of Endangered Species Act listing petitions and critical habitat decisions for species over the next seven years. The Workplan includes 30 candidate species that FWS previously determined warrant ESA protection, as well as 320 other species based on third party listing petitions, and 11 species FWS has determined to evaluate as discretionary status reviews.