Endangered Species Law & Policy

As we have previously reported, on December 6, the Biden Administration released the Fall 2023 Unified Agenda of Regulatory and Deregulatory Actions (Unified Agenda). The Unified Agenda, published twice a year, lists the upcoming rulemakings, policies, notices, revisions, and other actions that federal executive agencies plan to complete over the next several months. This most recent iteration of the Unified Agenda is notable in that it represents the slate of actions the Biden Administration hopes to complete in advance of a potential change in administrations … 

As we have previously reported, on December 6, the Biden Administration released the Fall 2023 Unified Agenda of Regulatory and Deregulatory Actions (Unified Agenda), which lists the regulatory and deregulatory actions that federal administrative agencies—including the U.S. Fish and Wildlife Service (Service)—plan to take in the coming year. According to the Unified Agenda, the western United States can expect a number of proposed and final rules to list species as threatened or endangered under the Endangered Species Act (ESA) and to designate critical habitat ...

On December 6, the Biden Administration released the Fall 2023 Unified Agenda of Regulatory and Deregulatory Actions (Unified Agenda), which lists the regulatory and deregulatory actions the various federal administrative agencies—including the U.S. Fish and Wildlife Service (Service)—plan to take in the near future. The Office of Information and Regulatory Affairs publishes an updated Unified Agenda twice a year, in the spring and fall. There are numerous entries in the Unified Agenda addressing future action by the Service to list species as threatened or endangered ...

On November 30, 2023, the U.S. Fish and Wildlife Service (Service) published a final rule listing a distinct population segment (DPS) of the North American wolverine (Gulo gulo luscas) as a threatened species under the Endangered Species Act (ESA). The wolverine is a medium-sized carnivore found in Alaska, Canada and the western-northwestern United States. The current listing is limited to the DPS of wolverine occurring in the contiguous United States. In the Federal Register notice … 

On November 13, two advocacy organizations submitted a notice of intent to sue the National Marine Fisheries Service (NMFS) and the Bureau of Ocean Energy Management (BOEM). The notice letter alleges that the September 18, 2023 Biological Opinion (BiOp) issued by NMFS for the Coastal Virginia Offshore Wind (CVOW) project violates the Endangered Species Act (ESA) because it fails to adequately analyze and mitigate the project's impacts on the endangered North Atlantic right whale (Eubalaena glacialis). … 

On October 31, 2023, the U.S. Fish and Wildlife Service (Service) proposed listing the oblong rocksnail (Leptoxis compacta) as an endangered species under the Endangered Species Act (ESA). The freshwater snail exists only in the Cahaba River in central Alabama and subsists on algae growing on the riverbed. The oblong rocksnail was declared extinct in 2000 after several decades without a confirmed specimen observation and multiple river surveys. In 2011, a population was discovered which inhabits a 5.6 river mile stretch of the Cahaba River about 10 miles south of Birmingham ...

On Thursday, October 12, 2023, Judge Indira Talwani of the U.S. District Court for the District of Massachusetts granted summary judgment in favor of the United States Department of the Interior and Vineyard Wind, and denied summary judgment to the plaintiffs in two cases challenging federal authorizations for the Vineyard Wind project: Seafreeze Shoreside, Inc. v. U.S. Department of Interior (Seafreeze) and Responsible Offshore Development Alliance v. U.S. Department of Interior (RODA). In both cases, the plaintiffs sought to overturn the federal approvals for the ...

On September 30, 2023, the U.S. District Court for the District of Columbia granted summary judgment in favor of the U.S. Fish and Wildlife Service (Service) in a case challenging the agency’s final rule downlisting the American burying beetle (Nicrophorus americanus) to “threatened species” status under the Endangered Species Act (ESA).

In its opinion, the court held that the Service adhered to a reasonable interpretation of the ESA and followed proper procedures when deciding to downlist the American burying beetle to threatened status despite noting climate change ...

On October 3, 2023, the U.S. Fish and Wildlife Service (Service) published two proposed rules to list three species—the northwestern pond turtle (Actinemys marmorata), the southwestern pond turtle (Actinemys pallida), and the short-tailed snake (Lampropeltis extenuata)—as threatened under the Endangered Species Act (ESA). The proposed listings also include proposed 4(d) rules for each species. However, according to the Federal Register notices, the Service concluded that designating critical habitat for each of the three species is not currently determinable, and ...

I recently authored an article for Law360 on the impact of SB 147, which was signed into law by California Gov. Gavin Newsom on July 10, 2023, and amends California's "fully protected species" statutes. These laws were enacted in 1970, and currently protect 37 species native to California, ranging from the massive North Pacific right whale to the diminutive salt marsh harvest mouse.

The amendments create a temporary, 10-year permitting regime that allows proponents of a limited, defined set of projects to pursue authorization from the California Department of Fish and Wildlife ...