Posts from 2021
USFWS Publishes Revised Economic Analyses for MBTA Incidental Take Proposed Rule

This week, the U.S. Fish and Wildlife Service (“USFWS”) announced the availability of two revised economic analysis documents related to the agency’s proposed rule concerning incidental take under the Migratory Bird Treaty Act (“MBTA”).  The documents evaluate the potential for the proposed rule to impact small entities, including businesses, governmental jurisdictions, and other organizations.

When federal agencies issue a new proposed or final rule, they are required under the Regulatory Flexibility Act of 1980 (“RFA”) to evaluate the potential effects ...

On July 13, the U.S. Fish and Wildlife Service (Service) published a proposed rule to designate critical habitat for the pearl darter (Percina aurora) under the federal Endangered Species Act (ESA).  Listed as a threatened species under the ESA in September 2017, the pearl darter is a small, snub-nosed fish whose historical range includes Mississippi and Louisiana.  The proposed critical habitat designation for the pearl darter includes a total of approximately 517 river miles along the Pascagoula River and Pearl River basins, which run across multiple counties in ...

On July 7, 2021, the U.S. Fish and Wildlife Service (FWS) published a proposed rule in the Federal Register announcing the agency’s finding that the razorback sucker (Xyrauchen texanus) no longer warrants listing as an endangered species under the federal Endangered Species Act (ESA). As such, FWS has proposed to downlist the species to threatened status.

The razorback sucker is a freshwater fish measuring up to 3 feet long that gets its name from the bony ridge behind its head. The species is commonly found throughout the reservoirs, floodplains, and backwaters of the Colorado ...

An Overview of the Listing Process Under the California Endangered Species Act

In an article published this week in California Fish and Wildlife, co-authors Stephanie Clark, Ashley Remillard and I provide an overview of the process of determining whether to list species as threatened or endangered, and thereby protect them, under the California Endangered Species Act (CESA). Listing is the gateway to protection under CESA. The process is analogous to listing under the federal Endangered Species Act in certain respects but it also differs in a number of respects, perhaps the most important being that the decision whether to list a species is made by the Fish and ...

Congress Urges Action on Monarch

On June 29, 2021, fourteen members of Congress delivered a letter to Secretary of the Interior Deb Haaland urging the U.S. Fish and Wildlife Service (Service) to use its authority to list the monarch butterfly (Danaus plexippus) on an emergency basis under section 4 of the Endangered Species Act (ESA). The letter, which garnered only Democratic support, notes that the population of western monarchs has sunk to under 2,000 individuals and states that immediate action is necessary to prevent extinction of the species.

Section 4 of the ESA authorizes the Service to immediately place a ...

CEQ Tweaks NEPA Regulations

On June 29, 2021, the Council on Environmental Quality (CEQ) will publish an interim final rule (IFR) extending the deadline by which federal agencies are required to adopt updated National Environmental Policy Act (NEPA) regulations by two years. Under current CEQ regulations, promulgated under the previous administration, federal agencies have until September 14, 2021 to adopt updated agency-specific NEPA rules. Upon publication of the interim final rule in the federal register, that deadline will instead fall on September 14, 2023. There will be no public comment period ...

ABA Publishes Third Edition of Endangered Species Act Treatise

The American Bar Association has published a newly revised edition of its tome Endangered Species Act: Law, Policy, and Perspective.  Editors Don Baur and Jake Li pulled together leaders in the field from government, the private sector, and non-profits who penned 18 chapters covering all aspects of the Endangered Species Act (ESA) and its implementation.  The volume also covers related topics including state-level and international efforts to protect wildlife.

Steve Quarles, Paul Weiland, and Brian Ferrasci-O’Malley contributed a chapter in the volume on the prohibitions ...

Update on California Executive Order N-29-20

Unbelievably, it was March 17, 2020 when California Governor Gavin Newsom issued Executive Order N-29-20 (amending Executive Order N-25-20 in part) as part of a series of emergency measures in response to the COVID-19 pandemic.  EO N-29-20 allows local or state legislative bodies to hold meetings via teleconference and to make meetings accessible electronically without violating the open meeting laws found in the Bagley-Keene Act or the Brown Act. This order waived certain provisions of the Brown Act, including requirements that meetings be conducted in physical locations; ...

WEBINAR: Linear Infrastructure Redux: Adapting Your Projects to Meet the New Regulatory Climate

Linear infrastructure projects, including oil and gas pipelines, electric transmission lines and transportation, have faced a number of regulatory challenges over the last year. Some of these challenges stem from changes in regulatory schemes, adverse court holdings or drastically shifting policy initiatives. Others result from the uncertainty inherent in pending listing decisions under the Endangered Species Act, updates to the Nationwide Permitting Program under the Clean Water Act, the ever-changing definition of Waters of the United States and the Biden ...

SCOTUS Won’t Wade Into the Chicken Coop

On June 7, 2021, the U.S. Supreme Court (“SCOTUS”) agreed with the Department of Justice and declined to hear a case brought by the Kansas Natural Resource Coalition (Coalition) challenging the U.S. Fish and Wildlife Service’s (Service) failure to submit the Policy for the Evaluation of Conservation Efforts (PECE) Policy to Congress under the Congressional Review Act (CRA).  The case, which represents a unique intersection between the lesser prairie-chicken (Tympanuchus pallidicinctus) (LEPC), the Service’s PECE Policy, and the CRA, appears to foreclose the ability ...

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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