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Endangered Species Law and Policy

Category Archives: National Marine Fisheries Service

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Endangered Species Act Case Roundup

Posted in Court Decisions, Fish & Wildlife Service, Litigation, National Marine Fisheries Service

Two noteworthy cases have recently been issued by the Ninth Circuit Court of Appeals and the U.S. District Court for the Northern District of California.  The two cases address: (1) the interplay between the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Endangered Species Act (ESA) and (2) the use of the deliberative process… Continue Reading

White House Chief of Staff Orders Freezing of Pending Regulations

Posted in Congress, Fish & Wildlife Service, Legislation, National Marine Fisheries Service, Regulatory Reform

On January 20, 2017, Reince Priebus, the White House Chief of Staff and Assistant to the President, issued a memorandum to the heads of all executive departments and agencies ordering them to freeze the processing of all regulations.  The stated intent of this action is to ensure that “the President’s appointees or designees have the… Continue Reading

NMFS Publishes Cook Inlet Beluga Whale Recovery Plan

Posted in Critical Habitat, Listing, National Marine Fisheries Service

On January 5, 2017, the National Marine Fisheries Service (NMFS) published notice of the availability of the final Recovery Plan for the Cook Inlet Beluga Whale (Delphinapterus leucas).  The Endangered Species Act (ESA) requires the preparation and implementation of recovery plans for all listed species, unless the Secretary of Commerce determines that doing so does… Continue Reading

U.S. Fish & Wildlife Finalizes First-Ever ESA Compensatory Mitigation Policy

Posted in Conservation, Fish & Wildlife Service, Legislation, National Marine Fisheries Service

On December 27, 2016, the U.S. Fish & Wildlife Service (FWS) issued its final Endangered Species Act (ESA) Compensatory Mitigation Policy (Policy) – the first policy to comprehensively address compensatory mitigation under the ESA.  The Policy applies to all forms of compensatory mitigation involving ESA compliance required or recommended by FWS, including conservation banks, in-lieu… Continue Reading

2016 Year-End ESA Round-Up

Posted in Court Decisions, Delisting, Fish & Wildlife Service, National Marine Fisheries Service

The last few weeks of 2016 involved several activities relating to the Endangered Species Act (ESA), including the following: On December 27, 2016, the U.S. Fish and Wildlife Service (FWS) issued the final ESA Compensatory Mitigation Policy. According to FWS, the new policy addresses permittee-responsible mitigation, conservation banking, in lieu fee programs, and other third-party… Continue Reading

National Marine Fisheries Service Concludes Iliamna Lake Harbor Seals Are Not Distinct Population, Denies Endangered Species Act Protections

Posted in Listing, National Marine Fisheries Service

The National Marine Fisheries Service (NMFS) recently completed its review of the status of eastern North Pacific harbor seals (Phoca vitulina richardii) in Iliamna Lake, Alaska, a large freshwater lake in Alaska connected to the Bristol Bay region of the Bering Sea.  NMFS concluded (pdf) that the seals do not constitute a species, subspecies, or… Continue Reading

New Administration Means Big Changes for Endangered Species

Posted in Fish & Wildlife Service, Legal, National Marine Fisheries Service, Regulatory Reform

The election of Donald Trump as President, together with Republican majorities in the House and Senate, is likely to lead to important policy changes across a range of issues. While administration of the Endangered Species Act and other federal wildlife laws has not been high profile during the election season, it is an issue area… Continue Reading

U.S. Fish and Wildlife Service and National Marine Fisheries Service Revise Endangered Species Act Petition Process

Posted in Fish & Wildlife Service, Listing, National Marine Fisheries Service, Regulatory Reform

On September 27, 2016, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Agencies) published a final rule (pdf) that revises the regulations governing the Endangered Species Act’s (ESA) petition process.  According to the Agencies, the revisions are intended to improve the content and specificity of petitions and enhance the efficiency and effectiveness… Continue Reading

ESA Roundup – Listing Decisions and Recovery Actions

Posted in Fish & Wildlife Service, Listing, National Marine Fisheries Service

The U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) have issued listing decisions on a number of species under the Endangered Species Act (ESA) in recent days, and USFWS has announced notable changes in its recovery strategy for the red wolf. On September 7, 2016, USFWS reopened the comment period for its… Continue Reading

District Court Dismisses Challenge to Biological Opinions In Light of Circuit Court’s Exclusive Jurisdiction

Posted in Court Decisions, National Marine Fisheries Service

Primarily relying on precedent from the U.S. Court of Appeals for the Ninth and D.C. Circuits, the U.S. District Court for the District of Maine recently dismissed an Endangered Species Act (ESA) lawsuit challenging two biological opinions issued by the National Marine Fisheries Service (NMFS) for four hydroelectric projects on the Kennebec River in Maine, finding… Continue Reading

ESA Round-Up – Summer 2016

Posted in Fish & Wildlife Service, Listing, National Marine Fisheries Service

In the past few weeks, the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) published several Endangered Species Act (ESA) listing decisions, including the following: On August 1, 2016, NMFS published a 12-month finding on a petition to list the porbeagle shark (Lamna nasus) under the ESA. According to NMFS,… Continue Reading

Federal Wildlife Agencies Release Draft Revisions to Habitat Conservation Planning Handbook

Posted in Conservation, Fish & Wildlife Service, National Marine Fisheries Service

On June 28, 2016, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) released draft revisions to their joint Habitat Conservation Planning Handbook (Handbook).  The proposed revisions are intended to address concerns raised by the regulated community regarding the habitat conservation plan (HCP) program implemented under section 10 of the Endangered Species Act (ESA)…. Continue Reading

Changing the ESA Listing Petition Process? Not as Much as You Might Think.

Posted in Delisting, Fish & Wildlife Service, Listing, National Marine Fisheries Service, Regulatory Reform

On April 21, 2016, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, “Service”) announced revisions to their proposed modifications  to  the Endangered Species Act (“ESA”) petition process. 81 Fed. Reg. 23,448 (Apr. 21, 2016) (pdf).  In May 2015, the Service announced proposed changes to the petition process for listing a species… Continue Reading

Article Sets Out Guidance for Implementing Endangered Species Act’s Best Available Science Mandate

Posted in Continuing Education, Fish & Wildlife Service, National Marine Fisheries Service, Regulatory Reform

Environmental Management has released an advanced copy of an article I co-authored with Dr. Dennis Murphy entitled, Guidance on the Use of Best Available Science under the U.S. Endangered Species Act.  The principle purposes of the article are to identify the types of data, analyses, and modeling efforts that can serve as best available science… Continue Reading

Congressional Hearings to be Held on New Critical Habitat Rules and Delisting under the Endangered Species Act

Posted in Congress, Critical Habitat, Delisting, Fish & Wildlife Service, National Marine Fisheries Service, Regulatory Reform

This week, two congressional committees are holding three separate hearings on issues related to the Endangered Species Act (ESA).  On April 19, the House Committee on Natural Resources will hold an oversight hearing entitled Recent Changes to Endangered Species Critical Habitat Designation and Implementation.  On April 20 and 21, the House Oversight and Government Reform… Continue Reading

Is Their Fate Sealed? Alaska District Court Vacates Regulation Listing Arctic Ringed Seal Populations as Threatened and Endangered

Posted in Court Decisions, Listing, Litigation, National Marine Fisheries Service

On March 15, 2016, in Alaska Oil & Gas Association v. National Marine Fisheries Service, case number 4:14-cv-00029-RRB, the U.S. District Court for the District of Alaska vacated a final regulation promulgated by the National Marine Fisheries Service (“NMFS”) listing the Arctic subspecies of ringed seal (Phoca hispida hispida, Phoca hispida ochotensis, and Phoca hispida… Continue Reading

NMFS Designates Critical Habitat for Two Salmonid Populations in Pacific Northwest

Posted in Critical Habitat, National Marine Fisheries Service

The National Marine Fisheries Service (NMFS) issued a final rule on February 24, 2016 designating critical habitat under the Endangered Species Act (ESA) for two threatened species—lower Columbia River coho salmon (Oncorhynchus kisutch) and Puget Sound steelhead (Oncorhynchus mykiss).   NMFS designated approximately 2,300 stream miles of freshwater and estuarine habitat in Oregon and Washington for… Continue Reading

Up For Debate: What’s the Real Cost of Endangered Species Predation?

Posted in Conservation, Fish & Wildlife Service, National Marine Fisheries Service, Sacramento-San Joaquin Delta

On February 10, 2016, lawmakers on the House Natural Resources Subcommittee on Water, Power, and Oceans are scheduled to discuss several wildlife laws, including the Endangered Species Act (ESA), Marine Mammal Protection Act (MMPA), and Migratory Bird Treaty Act (MBTA).  The Oversight Hearing is entitled “The Costly Impacts of Predation and Conflicting Federal Statutes on… Continue Reading

NMFS Designates Additional Critical Habitat for North Atlantic Right Whales

Posted in Critical Habitat, National Marine Fisheries Service

On January 27, 2016, the National Marine Fisheries Service (NMFS) issued a final rule designating approximately 29,763 nautical square miles of marine habitat for the North Atlantic right whale (Eubalaena glacialis). The critical habitat is comprised of two areas, with the first region in the Gulf of Maine and Georges Bank and the second region… Continue Reading

D.C. Court Largely Upholds Loggerhead Sea Turtle Biological Opinion

Posted in Consultation, Court Decisions, National Marine Fisheries Service

On August 31, 2015, the U.S. District Court for the District of Columbia largely upheld the National Marine Fisheries Service’s (Service) Biological Opinion (BiOp) addressing the impacts of seven fisheries on the Northwest Atlantic Distinct Population Segment (DPS) of loggerhead sea turtles (Caretta caretta).  The plaintiff, an ocean conservation organization, challenged the Service’s conclusion in… Continue Reading

Ninth Circuit Holds Critical Habitat Designations Not Subject to Cost-Benefit Analysis

Posted in Court Decisions, Critical Habitat, Legal, Litigation, National Marine Fisheries Service

In Building Industry Association of the Bay Area v. U.S. Department of Commerce, a decision with significant implications for property owners, the building industry, and the development community at large, the U.S. Court of Appeals for the Ninth Circuit rejected various challenges to the National Marine Fisheries Service’s (NMFS) critical habitat designation for the southern… Continue Reading

Federal Government Proposes Revisions to Endangered Species Act Regulations

Posted in Critical Habitat, Fish & Wildlife Service, Listing, National Marine Fisheries Service, Regulatory Reform

While a number of Endangered Species Act (ESA) reform bills continue to wind their way through Congress (see our May 6, 2015 post), yesterday, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) announced their own plan to “increase regulatory predictability, increase stakeholder engagement, and improve science and transparency” when acting on petitions to list, uplist, downlist,… Continue Reading

Federal Court Strikes Down Habitat Conservation Plan and Biological Opinion for Logging Project in Northern California

Posted in Court Decisions, Fish & Wildlife Service, Litigation, National Marine Fisheries Service

On April 3, 2015, a federal district court in California put the brakes on a proposed logging project, invalidating a habitat conservation plan and incidental take permit issued by the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) under section 10 of the Endangered Species Act (ESA), as well as a… Continue Reading

Endangered Species Rule Roundup: April 6-7, 2015

Posted in Fish & Wildlife Service, Listing, National Marine Fisheries Service

After a relatively quiet start to the year, the National Marine Fisheries Service (NMFS) and U.S. Fish & Wildlife Service (FWS)  have issued findings and rules regarding the proposed listings of four separate species under the Endangered Species Act (ESA) over the last two days.  NMFS issued a 90-day finding on a petition to list… Continue Reading