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Today, the U.S. Fish and Wildlife Service (FWS) published its much-anticipated proposal, updating the regulations governing permits for incidental take of bald and golden eagles, as well as take of their nests. This proposal is the culmination of efforts to improve the effectiveness of the eagle take permitting process, particularly for wind energy projects. The rule was last updated in 2016, but it was challenged by the Energy and Wildlife Action Coalition. In 2019, that challenge was settled with a commitment from the FWS to amend the rule. In September 2021, the FWS issued an Advance Notice of Proposed Rulemaking, seeking comments on potential revisions to the eagle take permitting process.Continue Reading Fish and Wildlife Service Issues Long-Awaited Eagle Rule Proposal

On June 24, the Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA) (together, the Services) issued a final rule that removes the definition of “habitat” from the Code of Federal Regulations, 50 C.F.R. § 424.02. The final rule follows the FWS’ proposal issued on October 27, 2021; the definition the agencies are now removing was adopted during the last months of the Trump administration.
Continue Reading Services Issue Final Rules Rescinding Trump-Era Habitat Definition and Critical Habitat Exclusion Rules

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

On April 20, the Council on Environmental Quality (CEQ) issued a Final Rule, revising certain sections of its regulations implementing the National Environmental Policy Act (NEPA). The Final Rule represents “Phase 1” of the Biden administration’s plan to reverse the Trump-era rulemaking, which significantly revised the NEPA regulations for the first time since 1978.

NEPA, sometimes referred to as a “paper tiger,” requires federal agencies to take a “hard look” at the environmental impacts of certain proposed projects but does not mandate any particular outcome. In July 2020, the Trump administration issued its Final Rule, which represented the first update to the NEPA regulations in over 40 years. The 2020 rule contained numerous revisions, many of which were intended to speed up infrastructure projects by reducing delays and paperwork during NEPA reviews. It also revised the definition of “effects,” which traditionally included “direct, indirect, and cumulative effects,” by reducing it to one short paragraph and eliminating references to these three categories, and instead providing that “effects” should not be analyzed “if they are remote in time, geographically remote, or the product of a lengthy causal change.”
Continue Reading Biden Administration Releases “Phase 1” of NEPA Revisions

Reflections on Water, a website and accompanying podcast dedicated to tracking developments in water law and policy, was recently launched by Troutman Pepper’s highly regarded Water Quality and Water Resources practice. Recognized by Chambers USA, attorneys in this practice have advised clients on virtually every issue related to water quality, from strategic planning to permitting, compliance, enforcement defense, and litigation.
Continue Reading Troutman Pepper Launches Website and Podcast to Track Developments in Water Law and Policy

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

This blog post was republished by Law360 on September 14, 2021.

On August 19, EPA and the Army Corps of Engineers (Corps) issued a joint guidance document concerning implementation of EPA’s 2020 Water Quality Certification Rule. The agencies explain that the guidance applies specifically to 41 Clean Water Act Section 404 Nationwide Permits (NWPs) proposed in September 2020 that have already received certification (or for which certification was denied or waived) but have not yet been finalized, and a more detailed enclosure is intended to be applied generally to the Corps’ permit programs. The guidance also cryptically suggests that the agencies may revisit the 16 NWPs that were previously certified and finalized by the Corps in January 2021. In a press release the following day, EPA and the Corps frame the guidance as addressing “implementation challenges” raised by state and tribal certifying authorities.
Continue Reading EPA and Army Corp’s Joint Section 401 Guidance Walks Back Regulatory Certainty

On April 5, the U.S. Court of Appeals for the D.C. Circuit vacated a Trump-era rule that would have prevented the Environmental Protection Agency (EPA) from setting greenhouse gas (GHG) emissions standards for almost any class of stationary sources, except for fossil fuel-fired electric generating units. The court’s decision, issued at the request of the new Biden EPA, clears the way for new sector-by-sector GHG regulations should the new administration seek to set new GHG standards under Section 111 of the Clean Air Act (CAA).
Continue Reading Rule Limiting EPA Regulation of GHG Emissions Vacated by D.C. Circuit