NEPA Rules Finalized; Effect Remains to be Seen

On July 16, 2020, the Council for Environmental Quality (CEQ) released in final form its eagerly anticipated revisions the National Environmental Policy Act (NEPA) implementing regulations (NEPA Rules). Publication of the NEPA Rules comes just six months after CEQ published proposed versions of the same—a move which drew more than one million public comments, many of which were form letters.  

As signaled by Notice of Proposed Rulemaking, the purpose of the NEPA Rules is to facilitate more efficient review of federal agency actions.  To a considerable extent, the new rules ...

Klamath Dam Removal Now in Question

Over the past decade, proponents of an effort to remove four dams on the lower Klamath River have hit a series of roadblocks.  The most recent came on July 16, 2020, when the Federal Energy Regulatory Commission (FERC) voted 3-0 to partially transfer the license for the four dams to the Klamath River Renewal Corporation (KRRC) but also required PacifiCorp, the current owner and operator of the dams, to remain a co-licensee.  FERC determined that retaining PacifiCorp as co-licensee is in the public interest because of significant uncertainty regarding the proposed dam ...

WEBINAR: Adapting Your Linear Infrastructure Projects to Changing Regulatory Frameworks

Please join us for a complimentary webinar on July 30, 2020 from 11:00 a.m. – 12:30 p.m. PT, where we will discuss the path for energy providers to move forward and reduce the risk that projects may be delayed or scrapped down the road. We will examine...

Transmission Line Permit Invalidated, USFWS Ordered to Redo Endangered Species Act Analyses

On June 17, 2020, a federal court in Colorado vacated an incidental take permit (ITP) issued to the Nebraska Public Power District (NPPD) authorizing take of the endangered American burying beetle (ABB) that could occur in connection with NPPD’s construction and operation of the 225-mile R-Project transmission line (R Project). The court vacated the ITP on the grounds that its issuance by the U.S. Fish and Wildlife Service (USFWS) violated the Endangered Species Act (ESA), National Environmental Policy Act (NEPA), and section 106 of the National Historic Preservation Act ...

Law Seminars International’s CEQA and the NEPA Rewrite Seminar

Please join me for Law Seminars International’s virtual event, CEQA and the NEPA Rewrite Seminar, on July 29th. From 2:00 to 2:45 p.m. PT, I will be presenting “Climate Change and Cumulative Impacts Analysis: Energy Infrastructure Projects,” and speaking on the...

Trump Executive Order: Environmental Streamlining or Political Quagmire?

On June 4, 2020, President Trump signed an executive order to provide federal agencies the foundation to speed up environmental permitting in the wake of COVID-19. While the move was lauded by many, others view the executive order as an impermissible use of executive power to circumvent environmental protections. The Center for Biological Diversity has already announced its plans to pursue litigation challenging the EO, alleging violations of the Endangered Species Act. 

Executive Order 13927, “Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency ...

WEBINAR: A Path to Transit and Transportation Project Success in the Wake of the Pandemic

For those of you involved in the transportation sector, we invite you to join us on Wednesday, June 3rd for a discussion on planning, procurement and financing strategies that can be implemented now to support timely project delivery in the wake of the COVID-19 pandemic.  We are planning a very interactive webinar where ample time will be set aside to answer questions received from attendees both prior to and during the event.

Topics that will be covered include:

  • How to prepare now to efficiently and effectively move projects forward
  • Procurement and contracting strategies that enable ...
Service Seeking Comments on Fisher Conservation Agreement 

The United States Fish and Wildlife Service ("Service") has recently received an application for an incidental take permit under Endangered Species Act section 10(a)(l)(A) to authorize take of the West Coast distinct population segment ("DPS") of fisher (Pekania pennanti) ("fisher") should it or its subpopulations become federally listed. As we have previously reported, the Service recently listed the Southern Sierra Nevada DPS of fisher as an endangered species.

The permit application, submitted by Oregon-based timberland investment company Chinook Forest Partners ...

Fishers Get ESA Protection in Southern Sierra

On May 15, 2020, the U.S. Fish and Wildlife Service ("Service") published a final rule in the Federal Register announcing the agency’s determination to list the Southern Sierra Nevada (SSN) Distinct Population Segment (DPS) of fisher (Pekania pennanti) as endangered under the Endangered Species Act (ESA).

The fisher is a small, carnivorous mammal in the mustelid (commonly referred to as weasel) family. The SSN DPS of fisher, which occurs in California, was recently determined by the Service to be a separate subpopulation of the West Coast DPS.

The Service first proposed to list ...

PODCAST | Engage the Experts: Wind Power & Wildlife

I recently recorded a podcast as part of the Environmental Law Institute’s (ELI) People Places Planet Podcast series “Engage the Experts.” In our recent discussion entitled “Wind Power & Wildlife,“ I speak with Joy Page, Director of the Renewable Energy and Wildlife team at the Defenders of Wildlife about what it means to work on “wind and wildlife” issues and how that differs given our respective roles. We hope you find the conversation interesting and insightful. 

People Places Planet Podcast provides the public, environmental practitioners, and ELI members with ...

Feds Appeal NWP 12 Ruling

Today, the U.S. Army Corps of Engineers (Corps) appealed to the United States Court of Appeals for the Ninth Circuit the decision of a lower court to vacate nationwide permit 12 (NWP 12) until the Corps completes consultation under section 7 of the Endangered Species Act (ESA). The case stems from controversy surrounding the Keystone XL pipeline. As previously reported on this blog, on May 11, 2020, the lower court amended its original order vacating NWP 12 for all purposes by limiting the vacatur only to new oil and gas pipeline construction. The court’s amended order allows use of NWP ...

Posted in Consultation
NWP 12 Back in Play, Mostly

Today, the United States District Court for the District of Montana issued an order amending its previous order, which had invalidated nationwide permit 12 (NWP 12) on the basis that the U.S. Army Corps of Engineers (Corps) failed to engage in a programmatic Endangered Species Act (ESA) section 7 consultation when the Corps reissued NWP 12 in 2017.  The case arose out of the controversy over the Keystone XL Pipeline. The effect of the court’s prior ruling vacated NWP 12 in its entirety and enjoined its use to authorize impacts to waters of the United States under the Clean Water Act.  NWP 12 ...

On May 5, 2020, the United States Fish and Wildlife Service (FWS) decided to list the island marble butterfly (Euchloe ausonides insulanus) as an endangered species under the Endangered Species Act (ESA).  The FWS decision also designated approximately 812 acres of critical habitat for the species on the south end of San Juan Island, San Juan County, Washington.

Until 1998 when the species was rediscovered on San Juan Island, the island marble butterfly was thought to be extinct because no known occurrences of the species were documented after 1908. In 2006, the FWS issued a 12-month ...

While section 9 of the Endangered Species Act (ESA) generally prohibits the “taking” of an endangered species, under section 10 of the ESA the U.S. Fish and Wildlife Service (Service) may issue a permit exempting an activity from the take prohibition if the take is for scientific purposes or to enhance the propagation or survival of an endangered species. Under the authority provided by section 10, the Service established the Captive Bred Wildlife permitting program (Program). The Program permits a registrant to export, import, deliver, receive, carry, sell, transport, and ship an endangered species if such activity is to enhance the propagation or survival of the species.

In the early part of this century the Phoenix Herpetological Society, Inc. (Society) applied to and was registered under the Program for certain species. Over the years the Society applied for various amendments to its registration. Some of these amendments were granted, and some were not.

In February 2018, the Society applied to amend its registration to include the Komodo dragon (Varanus komodoensis) ...

Tiger King Shines Light on an Endangered Species Act Quirk

The sweeping and rapid ascent to popularity of Netflix Inc.'s "Tiger King" documentary series has fueled new interest in two congressional bills that stalled in committee last year, and has drawn public attention to a quirk of the Endangered Species Act, or ESA.

I recently authored the article, "'Tiger King' Shines Light on an Endangered Species Act Quirk" for Law360. This piece examines ...

Nationwide Permit 12 (NWP 12) Vacated on ESA Grounds

On April 15, 2020, the U.S. District Court for the District of Montana issued an order that could impact energy and development projects across the United States. The court granted partial summary judgment in favor of plaintiff the Northern Plains Resource Council (“NPRC”) in a case concerning challenges to the Keystone XL Pipeline.  While the case mostly focused on the permitting for this particular pipeline, the nature of the claims raised resulted in broader implications for nationwide permit (“NWP”) 12, an important nationwide permit issued by the U.S. Army Corps of ...

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 ...

U.S. Fish and Wildlife Service Withdraws Proposal to List Bi-State Population of Greater Sage Grouse, Designate Critical Habitat

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 ...

Tenth Circuit Sends Jaguar Critical Habitat Back to District Court

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 ...

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; ...
California Files Challenge to Federal Decisions Governing Operation of California Water Projects

The State of California recently sent a 60-day notice of intent to sue to the Secretaries of Commerce and the Interior and concurrently filed a lawsuit in the U.S. District Court for the Northern District of California challenging the biological opinions and associated environmental impact statement (EIS) for operation of the Central Valley Project and State Water Project (collectively, the “Projects”).  The Projects provide water to more than 25 million water users in northern, central, and southern California, and are one of the primary sources of water for wholesale water ...

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On February 19, 2020, the U.S. Bureau of Reclamation issued a Record of Decision (ROD) on the reinitiation of consultation on the coordinated long-term operations of the Central Valley Project and State Water Project.  At the same time, the President signed a memorandum on developing and delivering more water supplies in California. The Department of the Interior issued a press release describing these actions. 

The execution of the ROD signals the shift from operations of the Central Valley Project and State Water Project under the biological opinions issued by the U.S. Fish and ...

Paul Weiland Discusses Impact to California’s Agricultural Community if Bees Protected by ESA

Paul Weiland was interviewed on Air Talk radio (an NPR affiliate based in Southern California) regarding the California Fish and Game Commission’s recent decision to list four native bees as candidates to become endangered species.

Paul discussed the negative repercussions such an action could have for the agricultural community in California—such as disrupting planting and harvest cycles, and whether classifying bees as fish (for the purpose of an ESA listing) is permissible under current California law ...

When a Petition to List Fails But the Species is Still Listed

On February 5, 2020, the National Marine Fisheries Service (NMFS) issued its 12-month finding on the petition to list summer-run steelhead in Northern California (Oncorhynchus mykiss irideus) as endangered under the Endangered Species Act (ESA), concluding that listing is not warranted because the summer-run steelhead does not qualify as a distinct population segment of the Northern California steelhead. Despite the negative finding, the summer-run steelhead is still protected under the ESA. How is that possible, you ask?

Simple, I say. The summer-run and winter-run ...

The United States Court of Appeals for the Tenth Circuit recently affirmed a lower court decision that the U.S. Army Corps of Engineers need not consult with the U.S. Fish and Wildlife Service under section 7 of the Endangered Species Act regarding the operation of dams and other facilities on the Rio Grande River, in WildEarth Guardians v. U.S. Army Corps of Engineers, No. 18-2153 (10th Cir. Jan. 17, 2020).  The dispositive issue in the case was whether the Corps has discretion to act such that it is obliged to engage in consultation regarding the effects of its operation of the Middle Rio ...

USFWS Proposes to Codify Trump Administration Position on MBTA

Today, the U.S. Fish and Wildlife Service (USFWS) released a pre-publication version of its long-awaited update to regulations governing Migratory Bird Treaty Act (MBTA) implementation (Proposed Regulations). Significantly, the Proposed Regulations explicitly state that unintentional, non-purposeful, or “incidental” take of migratory birds is not prohibited by the MBTA’s “take” prohibition. USFWS has also published a pre-publication version of a notice of intent (NOI) to prepare an environmental impact statement pursuant to the National Environmental ...

Posted in Listing, Litigation
Court Remands Northern Long-eared Bat Listing Back to USFWS

Yesterday, in Center for Biological Diversity v. Everson​, the United States District Court for the District of Columbia overturned the U.S. Fish and Wildlife Service’s (USFWS) decision to list the northern long-eared bat (Myotis septentriodnalis) as threatened rather than endangered, and remanded the decision back to the agency.  The threatened listing will remain intact while USFWS undertakes a new listing decision.

In addition to remanding the threatened listing decision back to the USFWS, the court also vacated a portion of the USFWS’s and National Marine ...

On January 28, 2020, the U.S. Fish and Wildlife Service (USFWS) published a notice and request for information in connection with USFWS’s initiation of 5-year status reviews for 66 species found in California and Nevada.  Among the species subject to review are the bay checkerspot butterfly (Euphydryas editha bayensis), Sierra Nevada yellow-legged frog (Rana sierra), the California tiger salamander (Ambystoma californiense), Morro Bay kangaroo rat (Dipodomys heermanni morroensis), and many other plants and wildlife species.  A full list of species subject to the 5-year ...

Service Launches Comprehensive Review of Grizzly Bear ESA Status

On Tuesday, January 14, 2020, the U.S. Fish and Wildlife Service (Service) published a federal register notice that it will be commencing a comprehensive study of the status of the Grizzly bear (Ursus arctos horribilis).  This study, called a 5-year status review, could lead to a change in the bear’s status as a protected species under the Endangered Species Act (ESA).  This 5-year review was spurred by a lawsuit filed by the Center for Biological Diversity, which alleged that the Service failed to complete the required status review on time.  The Service and Center for Biological ...

On January 15, 2020, the United States Court of Appeals for the Fifth Circuit reversed a lower court decision that upheld the determination of the U.S. Fish and Wildlife Service (Service) denying a petition to delist the Golden-Cheeked Warbler (Setophaga chrysoparia) (Warbler). The Service listed the Warbler as an endangered species under the Endangered Species Act (ESA) in 1990, initially on an emergency basis.

The petition to delist the Warbler was submitted to the Service in 2015 by a group of petitioners that included the General Land Office of the State of Texas. The petition ...

On January 6, 2020, the U.S. Fish and Wildlife Service (FWS) published a proposed rule in the Federal Register announcing the agency’s finding that the Kanab ambersnail (Oxyloma haydeni kanabensis) is no longer warranted for listing as an endangered species under the federal Endangered Species Act (ESA). The proposed rule states that the Kanab ambersnail does not represent a valid taxonomic entity, and therefore does not meet the definition of “species” under the ESA. The ESA defines “species” as including ''any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.”

The Kanab ambersnail, which gets its name from its mottled, amber-colored shell, is a terrestrial snail ...

Will Long-Awaited Changes to NEPA Materially Alter Federal Environmental Reviews?

On January 10, 2020, the Council on Environmental Quality (CEQ) proposed amendments to National Environmental Policy Act (NEPA) implementing regulations.  The Proposed Rule would represent the first significant overhaul of CEQ’s NEPA regulations in more than 40 years.

The changes in the Proposed Rule are substantial and numerous. 

While the stated purpose of the changes is to facilitate more effective and timely environmental review of federal agency actions, the practical impact of the proposed changes is far from clear.  Below, we focus on some of the more significant ...

Today, the Trump Administration announced its long-awaited release of updates to National Environmental Policy Act (NEPA) implementation regulations (Regulations).  On June 20, 2018, the administration published an advanced notice of proposed rulemaking (ANPR) and sought public comment on how the Council on Environmental Quality (CEQ) could ensure more effective, timely, and efficient NEPA process.  During the 60-day comment period on the ANPR, more than 12,500 comments were received.

The administration has indicated the proposed Regulations will be posted to the Federal ...

Settlement Agreement Requires Grizzly Bear Status Review

The U.S. District Court for the District of Montana has approved a partial settlement between the Center for Biological Diversity (CBD) and the U.S. Fish and Wildlife Service (Service) requiring that the Service complete and post a status review of the lower-48 grizzly bear (Ursus arctos horribilis) populations no later than March 31, 2021.  Earlier this year, CBD filed a lawsuit challenging the Service’s alleged failure to update a 1993 federal recovery plan for the species.  The partial settlement disposes of CBD’s first claim for relief, which alleged that the Service had ...

Today, the U.S. Senate confirmed Aurelia Skipwith as the Director of the U.S. Fish and Wildlife Service (USFWS) by a vote of 52-39.  Ms. Skipwith’s confirmation fell mostly along party lines, with three Democratic Senators joining Republicans in approving the nomination.  With Ms. Skipwith’s confirmation, the USFWS will have its first Director of the USFWS since the beginning of the Trump Administration.

Prior to her confirmation, Ms. Skipwith served as the Interior Department’s Deputy Assistant Secretary for Fish, Wildlife and Parks. She is a co-founder and former general ...

Posted in Litigation
California Announces Lawsuit over Federal Government's Biological Opinions for Central Valley Project and State Water Project 

On November 21, 2019, the California Secretary for Natural Resources announced California’s decision to sue the federal government over its biological opinions for continuing operations of the California State Water Project (SWP) and federal Central Valley Project (CVP). 

The Projects provide water to over 20 million of Californians and support the businesses and farms across the state.  In his announcement, the Secretary notes that “Difficult trade-offs have to be made unless we can find creative solutions that balance all water needs.  And even then, sometimes tough ...

Posted in Listing
Florida Man Faces Federal Prison, Fines for Killing Endangered Smalltooth Sawfish

On November 1, 2019, Chad Ponce of Jacksonville, Florida pleaded guilty to killing a smalltooth sawfish (Pristis pectinata), an endangered species protected under the federal  Endangered Species Act (ESA) and Florida Endangered and Threatened Species Act . Sawfishes are a family of rays characterized by a long, narrow, flattened rostrum, or nose extension, lined with sharp teeth, arranged in a way that resembles a saw. Sawfish use that rostrum to sense and attack prey; without it, they can’t survive. They are among the largest fish, with some species reaching lengths of up to 17-18 ...

This CLE is For the Birds!

Please join Brooke Wahlberg and Steve Quarles as they co-chair CLE International’s 3rd Annual MBTA & BGEPA Conference, happening on December 9-10, 2019, in Denver, CO. 

Named as both an “Energy & Environmental Trailblazer” by the National Law Journal, and a “Legend of Environmental Law” by the D.C. Bar Association, Steve is a veteran attorney who focuses his practice on addressing issues concerning federal wildlife laws (Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA) and Bald and Golden Eagle Protection Act (BGEPA)), federal lands and resources ...

FWS Proposes Removing Interior Least Tern from ESA Protection

On October 24, 2019, the U.S. Fish and Wildlife Service (FWS) published a proposed rule in the Federal Register announcing the agency’s finding that the interior least tern (Sterna antillarum) is no longer warranted for listing as an endangered species under the Endangered Species Act (ESA).

The interior least tern, the smallest of the tern species in North America, was first observed in 1804 by explorers Meriwether Lewis and William Clark. The fish-mongering bird currently nests adjacent to major U.S. rivers within the Lower Mississippi Valley and the Great Plains region across ...

On October 7, 2019, the U.S. Fish and Wildlife Service (FWS) published a notice in the Federal Register announcing the agency’s 12-month findings that a dozen species are not warranted for listing as endangered or threatened species under the Endangered Species Act (ESA).  In particular, the FWS decided not to list the yellow-cedar (Callitropsis nootkatensis), a slow-growing but commercially in-demand tree that occurs from southern Alaska to northern California.  According to the FWS, yellow-cedars can live 500 to 700 years, with some individuals documented up to 1,600 years ...

In a recent opinion, the United States Court of Appeals for the Ninth Circuit reversed in part the United States District Court for the Eastern District of California’s grant of summary judgment to the National Marine Fisheries Service (“NMFS”) in Friends of the River v. NMFS, No. 18-15623 (9th Cir. Oct. 3, 2019).

Plaintiff Friends of the River (“FOR”) challenged (1) NMFS’ decision to characterize the existence of federally-managed dams on the Yuba River as part of the environmental baseline in a 2014 BiOp and Letter of Concurrence (“LOC”) issued to the Corps for the ...

FWS Ordered to Explain Rio Grande Cutthroat Trout Decision

On September 26, 2019, the U.S. District Court for the District of Colorado vacated and remanded in part the U.S. Fish and Wildlife Service’s (Service) 2014 determination that listing the Rio Grande cutthroat trout (Oncorhynchus clarki virginalis) under the Endangered Species Act (ESA) was not warranted.

The Rio Grande cutthroat trout is native to high-altitude streams in southern Colorado and New Mexico. In 2008, the Service determined that the Rio Grande cutthroat trout warranted listing as an endangered or threatened species, although listing was precluded by other higher ...

Does the Federal Endangered Species Act Protect Zoo Animals?

Yes, if the animal is designated as threatened or endangered under the federal Endangered Species Act (ESA). In a recent federal court decision out of Massachusetts, a United States District Court was called on to decide whether a local zoo’s treatment of two endangered Asian elephants amounted to “harm” or “harassment” in violation of the “take” prohibition under section 9 of the ESA.

The two elephants, Emily and Ruth, were longtime residents of the Buttonwood Park Zoo in the City of New Bedford, Massachusetts. In fact, according to the decision, Emily and Ruth are ...

On August 27, 2019, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services) announced the finalization of regulations governing implementation of various aspects of the Endangered Species Act (ESA). Among those regulations were rules setting forth how the Services and other federal agencies were to consult on potential impacts of federal activities on ESA-listed species and designated critical habitat.  The new rules were to go into effect on September 26, 2019.  Today, the Services announced that the effective date for the interagency consultation ...

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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