Posts from 2022
FERC Approves Surrender License for Lower Klamath Project

On November 17, 2022, the Federal Energy Regulatory Commission (“FERC”) voted unanimously to issue an Order Modifying and Approving Surrender License and Removal of Project Facilities (“Order”) for the Lower Klamath Project (“Project”). The Order allows the dams’ private operator to surrender its operating license and was one of the final hurdles for the largest dam removal project in United States history. The $450 million project involves the removal of four dams along the Klamath River near the border of Northern California and Southern Oregon.

A noteworthy ...

Court Sends Endangered Species Act Regulations Back to the Agencies

On November 16, 2022, the U.S. District Court for the Northern District of California (District Court) remanded three sets of Endangered Species Act (ESA) regulations promulgated in 2019 under the Trump administration back to the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, Services) for reconsideration. The three regulations addressed: how species are listed and delisted and critical habitat designated under ESA section 4; interagency consultation under ESA section 7; and a final rule repealing USFWS’s blanket ESA ...

U.S. Fish and Wildlife Service Proposes Revised Critical Habitat for Fisher DPS

On November 7, 2022, the U.S. Fish and Wildlife Service (Service) proposed to designate approximately 595,495 acres of critical habitat for the Southern Sierra Nevada distinct population segment (DPS) of fisher (Pekania pennanti) under the Endangered Species Act (ESA). The critical habitat designation would span six units in California’s Tuolumne, Mariposa, Madera, Fresno, and Tulare Counties. The majority of the land comprising these units is owned and/or managed by federal, state, or tribal governments.

The fisher is a small, carnivorous mammal native to North American ...

BOEM and NOAA Fisheries Seek Comment on Joint Draft Strategy for North Atlantic Right Whales and Offshore Wind

On Friday, October 21, a Draft North Atlantic Right Whale and Offshore Wind Strategy ("Draft Strategy") was jointly announced by the Bureau of Ocean Energy Management (BOEM) and the National Oceanic & Atmospheric Administration (NOAA)’s National Marine Fisheries Service (NMFS, also known as NOAA Fisheries). The Draft Strategy identifies three categories of actions: (1) Mitigation and Decision-Support Tools; (2) Research and Monitoring; and (3) Collaboration, Communication, and Outreach; and identifies specific priorities ... 

Lesser Prairie-Chicken Back in Court

On October 25, 2022, the Center for Biological Diversity (CBD) sued the U.S. Fish and Wildlife Service (Service) over the agency’s failure to timely finalize a proposed rule to list the lesser prairie-chicken (Tympanuchus pallidicinctus) (LEPC). CBD seeks an order from the court declaring the Service is in violation of the Endangered Species Act (ESA) by failing to timely list the LEPC and requiring the Service to publish one or more final rules by a date certain.

On June 1, 2021, and in response to a 2016 petition to list the LEPC, the Service proposed to list two distinct population ...

Service Proposes Listing Two California Salamander Species with Critical Habitat Designations

On October 18, 2022, the U.S. Fish and Wildlife Service (Service) announced 12-month findings on a petition to list three California-based salamander species under the Endangered Species Act (ESA): the Kern Plateau salamander (Batrachoseps robustus), the Kern Canyon slender salamander (Batrachoseps simatus), and the relictual slender salamander (Batrachoseps relictus). All three salamander species occur in the southern Sierra Nevada Mountains in California. The Service determined that listing the Kern Canyon slender salamander and the relictual slender salamander is ...

U.S. Fish and Wildlife Service Proposes Listing Two Snakes and Designating Critical Habitat

Today, the U.S. Fish and Wildlife Service (Service) proposed to list two snake species, the Key ring-necked snake (Diadophis punctatus acricus) and the rim rock crowned snake (Tantilla oolitica), as endangered under the Endangered Species Act (ESA). The Service also proposed to designate critical habitat for these nonvenomous snakes, including approximately 2,604 acres in Monroe County and approximately 5,972 acres in Miami-Dade County and Monroe County, Florida for the Key ring-necked snake and rim rock crowned snake, respectively. The proposal comes as a result of a ...

Bureau of Reclamation and Local Water Agency Have Discretion to Release Water from Dam to Avoid Take of Endangered Steelhead Trout

Reversing the district court, a divided panel of the Ninth Circuit held that that the Bureau of Reclamation and a local water agency have discretion to release water from Twitchell Dam on the Santa Maria River on the Central Coast of California to comply with the federal Endangered Species Act. San Luis Obispo Coastkeeper v. Santa Maria Valley Water Conservation Dist. (Ninth Cir. No. 21-55479, Sept. 23, 2022). The court concluded that a 1958 federal law (P.L. 774) authorizing the operation of the dam for purposes other than irrigation, flood control, and water conservation provided ...

Smoother Sailing for Eagles and Industry Ahead?

On September 30, 2022, the U.S. Fish and Wildlife Service (Service) published a proposed rule to amend its eagle permit regulations (Proposed Rule) administered in accordance with the Bald and Golden Eagle Protection Act (BGEPA). The Proposed Rule seeks to improve administration of the eagle permit program by establishing a general permit pathway for eligible wind energy and power line applicants for incidental take of golden eagles and bald eagles. Eligibility criteria proposed by the Service for participation in the general permit program include factors such as eagle ...

9th Circuit Puts ESA Rules Vacatur on Hold

On September 21, 2022, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) stayed a July 5, 2022 order of the U.S. District Court for the Northern District of California (District Court) vacating several Endangered Species Act (ESA) regulations promulgated by the Trump Administration in 2019 (2019 Rules). In a brief order, the Ninth Circuit indicated the District Court “clearly” erred in vacating the 2019 Rules without first ruling on their underlying legal validity. As a result of the decision of the Ninth Circuit, the District Court’s vacatur of the 2019 Rules is ...

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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