Endangered Species Law & Policy

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 mitigation mechanisms, and stresses the need to hold all compensatory mitigation mechanisms to equivalent and effective standards.  The Compensatory Mitigation Policy, which we previously reported on here, is a step-down policy developed under FWS' new Mitigation Policy, an umbrella policy finalized in November 2016.  For further information regarding the Mitigation Policy, please review our e-alert.  We will be providing more in depth analysis of the new Compensatory Mitigation Policy next week, so please check back with us.

• On December 21, 2016, FWS and the National Marine Fisheries Service (NMFS) issued the final revised Habitat Conservation Planning Handbook, a joint handbook that describes requirements, procedures, and guidance for permit issuance and habitat conservation plan development for incidental take permits under ESA section 10(a)(1)(B). For further details, please review our prior post on the draft handbook revisions.

• On December 21, 2016, FWS issued a final rule amending the List of Endangered and Threatened Wildlife. Specifically, FWS removed the current species-level listing of the humpback whale (Megaptera novaeangliae), and in its place listed the Cape Verde Islands/Northwest Africa, Western North Pacific, Central America, and Arabian Sea distinct population segments (DPSs) of humpback whale as endangered, and the Mexico DPS as threatened. Humpback whales in the remaining DPSs will no longer be protected under the ESA. The revisions were previously finalized by NMFS and the final rule simply codifies the revisions to the List of Endangered and Threatened Wildlife, found at 50 C.F.R. § 17.11(h).

• On December 19, 2016, the U.S. District Court for the District of Oregon enjoined a logging project in the Elliott State Forest based on potential harmful impacts to habitat for the marbled murrelet, which is listed as threatened under the ESA. Cascadia Wildlands v. Scott Timber Co., No. 6:16-CV-01710-AA, 2016 WL 7339201 (D. Or. Dec. 19, 2016). Of particular note, the district court found that plaintiff’s 60-day notice (required under the ESA) was not premature, even though it was provided before any specific logging project had been developed for the property.

We wish you the best in 2017. Happy new year from Nossaman LLP.