Posts from 2020

On April 8, 2020 the U.S. Fish and Wildlife Service (Service) announced its next step in conservation of the Monarch butterfly (Danaus plexippus plexippus): finalization of the Nationwide Candidate Conservation Agreement for Monarch Butterfly on Energy and Transportation Lands (Monarch CCAA/CCA). The Monarch CCAA/CCA functions as both a candidate conservation agreement with assurances (CCAA) covering non-federal lands and a candidate conservation agreement (CCA) covering federal lands.

Authorized by Endangered Species Act (ESA) regulations, CCAAs are agreements ...

COVID-19 And Endangered Species Act Compliance

Many projects require federal incidental take authority due to impacts on species listed under the federal Endangered Species Act (“ESA”). Depending upon the species, this federal take authority is obtained either from the U.S. Fish and Wildlife Service (“USFWS”) or National Marine Fisheries Service (“NMFS”). These agencies provide take authority either through a Section 7 (federal consultation) incidental take statement or Section 10 (Habitat Conservation Plan) incidental take permit. These authorizations almost always require the permittee to undertake ...

Water Supply & Delivery Projects Under the ESA

Recently, Lyn Clancy, Managing Associate General Counsel and Senior Policy Advisor for the Lower Colorado River Authority, and I presented on the topic of Endangered Species and Water Supply at the State Bar of Texas’ Changing Face of Water Law Conference in San Antonio. Issues of water supply and delivery continue to be a hot topic nationwide, including in Texas, and supply and delivery projects often intersect with the need to address species of plants and wildlife listed under the federal Endangered Species Act (ESA).

The presentation included several primary takeaways ...

The U.S. Fish and Wildlife Service (Service) has withdrawn its 2013 proposals to list the bi-state distinct population segment of the greater sage-grouse (Centrocercus urophasianus) in California and Nevada as threatened, to designate critical habitat, and to issue a species-specific Endangered Species Act section 4(d) rule. The Service indicated in its withdrawal that the agency has concluded that threats to the species were not as significant as the agency believed in 2013.

The listing, critical habitat, and 4(d) rules for the bi-state distinct population segment of the ...

Do Yellowstone Park Bison Deserve ESA Protection?

According to a handful of environmental groups, the answer is a definitive yes. And after the U.S. Fish & Wildlife Service (“FWS”) issued a 90-day finding concluding in the alternative, earlier this week three environmental groups decided to take FWS to court. The lawsuit was filed by the Buffalo Field Campaign, Friends of Animals, and Western Watersheds Project. According to the press release issued by one of the environmental groups, FWS “applied the wrong evidentiary standard, and disregarded evidence of factors that imperil the unique and distinct subpopulations of ...

On March 17, the United States Court of Appeals for the Tenth Circuit (Tenth Circuit) overturned a New Mexico district court decision in which the lower court upheld the U.S. Fish and Wildlife Service’s (USFWS) designation of two units of critical habitat for the jaguar (Panthera onca). In 2014, USFWS designated more than 750,000 acres of critical habitat, spread across 6 critical habitat units (CHU) in Arizona and New Mexico. USFWS based its designation of two of these CHUs – CHUs 5 and 6 – in part on the agency’s position that these CHUs were occupied by the jaguar at the time the ...

USFWS Opens Status Reviews for Dozens of Species

This week, the U.S. Fish and Wildlife Service (USFWS) announced its opening of 5-year status reviews for 25 southeastern species and 10 southwestern species. Among the species included in the status review are the dusky gopher frog (Lithobates sevosus), Jollyville Plateau salamander (Eurycea tonkawae), and many other species of fish, wildlife, and plants. Five-year status reviews are required under section 4(c)(2)(A) of the Endangered Species Act and serve to inform USFWS whether a given species warrants a change in listing status (e.g., de-listing or a change from threatened ...

CEQ’s Proposed NEPA Regulations: No Significant Changes for Highway and Transit Projects

The Eno Center for Transportation published a two-part article in the Eno Transportation Weekly, authored by Ed Kussy, that focuses on the potential implications of the changes proposed by the Notice of Proposed Rulemaking (NPRM) modifying the regulations implementing the National Environmental Policy Act (NEPA), with particular emphasis on federal surface transportation programs.  The first part was published on February 21.  We recently posted our summary of Part 1 of the article here.

Part 2 of the Eno article focuses on four parts of the NPRM that have received considerable attention ...

CEQ’s Proposed NEPA Regulations:  Terrible or So Very Helpful for Surface Transportation Projects?

The Eno Center for Transportation published a two-part article in the Eno Transportation Weekly that focuses on the potential implications of the changes proposed by the Notice of Proposed Rulemaking (NPRM) modifying the regulations implementing the National Environmental Policy Act (NEPA), with particular emphasis on federal surface transportation programs. 

The article examines whether, at least for surface transportation programs, the changes to the Council on Environmental Quality’s (CEQ) proposed revisions are as dramatic as reported.  We posit that ...

On February 21, 2020, the California Fish and Game Commission (Commission) voted 4-0 to adopt a new Delta fisheries management policy and a revised Striped bass policy supported by Commission staff and the Department of Fish and Wildlife (Department).  The Delta fisheries management policy is notable because:

  • it provides that the Commission and Department will rely on “credible science” (a term defined in the Fish and Game Code) to develop strategies and recommendations to manage fisheries;
  • it includes the express recognition that listed species have highest priority; ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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