Endangered Species Law & Policy

Endangered Species Act (ESA) administration has seen significant shifts during the past decade, including changes to ESA implementing regulations, policies and guidance and a number of significant decisions by federal courts, including the U.S. Supreme Court. This post provides a brief overview of important recent developments and what we can expect in the near future.

Recent Developments in ESA Administration

Vacatur of Certain Consultation Regulations under ESA Section 7:

On March 30, 2026, the U.S. District Court for the Northern District of California vacated certain ...

The Committee on Natural Resources (Committee) in the U.S. House of Representatives is considering a number of bills regarding wildlife, including bills to reauthorize the Endangered Species Act (ESA) and Marine Mammal Protection Act (MMPA). While it is unclear whether any of these will gain traction, collectively they represent a significant effort to reform federal wildlife law. Below is a summary of the Committee’s efforts:

ESA Reauthorization: Committee Chair Westerman (R-Arkansas) is the lead sponsor of H.R. 1897. The Committee held a hearing on this bill on March 25 ...

On March 22, 2022, the Office of Information and Regulatory Affairs (OIRA) received from the U.S. Fish and Wildlife Service (Service) an Endangered Species Act (ESA)-specific compensatory mitigation policy (Policy). While the text of the Policy is not publicly available at this time, many have speculated that an updated Policy may mirror that which was in place under the Obama Administration.

On December 27, 2016, the Service published its final ESA Compensatory Mitigation Policy (2016 Policy) establishing the agency’s goal that compensatory mitigation provided under ESA ...

This week, I published a post on the Center for California Water Resources Policy and Management’s DeltaCurrents blog discussing the role of conceptual ecological models in implementing the federal Endangered Species Act. Conceptual ecological models are a specialized subset of conceptual models generally intended to describe the environmental factors that affect an ecological community, a species, or a population. Conceptual ecological models are useful in a variety of contexts ranging from development of research proposals and monitoring schemes, to regulatory ...

On August 19, 2020, the U.S. Fish and Wildlife Service (Service) published a proposed rule that would remove the Stephens’ kangaroo rat (Dipodomys stephensi) from the federal list of Endangered Species. The proposed rule would, instead, list the kangaroo rat as threatened under the Endangered Species Act (ESA), and would provide a rule under ESA section 4(d) to provide for conservation of the kangaroo rat.

The Stephens’ kangaroo rat was originally listed as an endangered species in 1988. It is a small, nocturnal mammal, with external cheek pouches, large hind legs, a long tail ...

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 ...

In a decision that casts a shadow on the enforceability of contractual assurances in habitat conservation plan (HCP) agreements, the U.S. Court of Appeals for the Ninth Circuit rejected various Endangered Species Act (ESA) and National Environmental Policy Act (NEPA) challenges to the U.S. Fish and Wildlife Service’s (Service) designation of critical habitat for a native fish species (the Santa Ana Sucker) on the Santa Ana River in Southern California. Bear Valley Municipal Water Company v. Jewell, No. 12-57297 (9th Cir. June 25, 2015).

This is the first case to address the ...

On April 3, 2015, a federal district court in California put the brakes on a proposed logging project, invalidating a habitat conservation plan and incidental take permit issued by the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) under section 10 of the Endangered Species Act (ESA), as well as a biological opinion and incidental take statement issued by NMFS under section 7. Klamath-Siskiyou Wildlands Ctr. v. Nat’l Oceanic and Atmospheric Administration, Case No. 13-cv-03717 (N.D. Cal. Apr. 3, 2015) (pdf).

A project can avoid the general take ...