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 ...
On July 5, 2022, the U.S. District Court for the Northern District of California issued an order vacating three Trump-era regulations implementing the Endangered Species Act (“ESA”).
In 2019, the U.S. Fish and Wildlife Service (“USFWS”) and the National Marine Fisheries Service (collectively, the “Services”) issued three final rules (“2019 ESA Rules”) modifying how the Services implement the ESA, including: (1) a rule under section 4 of the ESA concerning how the Services list, delist, and reclassify endangered or threatened species and the criteria for ...
On June 24, 2022, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, Services) published a final rule rescinding the Trump administration’s 2020 final rule defining “habitat” for the purpose of informing designation of areas as “critical habitat” (2020 Rule) under the Endangered Species Act (ESA). In rescinding the definition of “habitat,” the Services explained they were removing an “excessive constraint” on the agencies’ ability to designate critical habitat under the ESA. Specifically, the Services ...
Last Friday, the U.S. District Court for the Eastern District of California issued an order on competing motions in the coordinated cases challenging the 2019 biological opinions (BiOps) that govern operation of California’s State Water Project and the federal Central Valley Project (Projects). The hefty order, which spanned over a hundred and twenty pages, attempted to distill the thousands of pages of briefing the parties submitted on the matter. Admittedly, stakes were high: these two Projects supply water to more than 25 million Californians and to farmers across the ...
In the first week of May, the U.S. Fish and Wildlife Service (“USFWS”) and the National Marine Fisheries Service (“NMFS”) proposed rules to remove six species from the lists of endangered and threatened wildlife and plants under the Endangered Species Act (“ESA”).
On May 4, 2021, NMFS issued a proposed rule to remove Siderastrea glynni, a coral originally found at Urabá Island, Panama Gulf, from the ESA lists. The coral was first discovered in 1992 and was initially thought to be the only extant Siderastrea species in the eastern Pacific Ocean. NMFS received a petition to ...
On January 20, 2021, President Biden announced his administration will review regulatory actions taken between January 20, 2017 and January 20, 2021 in accordance with an Executive Order titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” (EO). Among the agency actions to be reviewed under the EO are a number of regulations and policies finalized by the Trump Administration involving Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA), and other related statutes.
An initial pre-publication announcement ...
On December 31, 2020, the National Marine Fisheries Service (“NMFS”) proposed to amend regulations implementing the Atlantic Large Whale Take Reduction Plan (“ALWTRP” or “Plan”) with the stated goal of reducing the incidental mortality and serious injury to the endangered North Atlantic right whale, as well as fin whales and humpback whales, in the Northeast commercial lobster and crab trap/pot fisheries. The agency stated that the amendment is needed in order to comply with the Marine Mammal Protection Act (“MMPA”) and the Endangered Species Act (“ESA” ...
On December 15, 2020, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, the agencies) released a pre-publication version of a final rule providing a definition of “habitat” for the purpose of informing designation of areas as “critical habitat” under the Endangered Species Act. The agencies released a proposed rule defining habitat in August 2020 in response to a unanimous decision by the U.S. Supreme Court in 2019 overturning a lower court decision that upheld a controversial determination of critical habitat by the U.S. Fish and ...
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 ...
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 ...
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 ...
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 Environmental Practice attorneys will be off to a great start in 2019 presenting at many key events around the U.S. focused on endangered species and environmental issues.
On February 27, 2018, the National Marine Fisheries Service (Service) published a 90-day finding on the Karuk Tribe and Salmon River Restoration Council’s (Petitioners) petition to list the Upper Klamath-Trinity Rivers Basin (UKTR) Chinook salmon (Oncorhynchus tshawtscha) evolutionarily significant unit (ESU) as endangered or threatened. Based on the information included in Petitioners’ filing, the Service found that listing the UKTR ESU as endangered or threatened under the Endangered Species Act (ESA) may be warranted.
The Service’s determination follows a ...
On February 12, 2018, in Alaska Oil & Gas Association v. National Marine Fisheries Service, Case No. 16-35380, the U.S. Court of Appeals for the Ninth Circuit reversed a 2016 decision by the U.S. District Court for the District of Alaska that vacated a final regulation listing the Arctic subspecies of ringed seal (Phoca hispida hispida, Phoca hispida ochotensis, and Phoca hispida botanica) as threatened and the Ladoga subspecies of ringed seal (Phoca hispida ladogensis) as endangered under the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. (ESA).
On January 30, 2018, the National Marine Fisheries Service (NMFS) issued a final rule listing the oceanic whitetip shark (Carcharinus lonigmanus) as a threatened species under the Endangered Species Act (ESA). This final listing rule is the culmination of NMFS’ analysis following the 2015 petition filed by Defenders of Wildlife seeking to either list the species range-wide or, alternatively, to list two distinct populations (DPSs) of the oceanic whitetip shark. In the final rule, NMFS notes that the shark is a globally-distributed species that has not undergone any range ...
On February 10, 2016, lawmakers on the House Natural Resources Subcommittee on Water, Power, and Oceans are scheduled to discuss several wildlife laws, including the Endangered Species Act (ESA), Marine Mammal Protection Act (MMPA), and Migratory Bird Treaty Act (MBTA). The Oversight Hearing is entitled The Costly Impacts of Predation and Conflicting Federal Statutes on Native and Endangered Species. Anticipated topics for discussion include addressing the fact that conflicts between federal statutes often prevent agencies and federal officials from effectively reducing ...
On February 10, 2015, the National Marine Fisheries Service and the National Oceanic Atmospheric Administration ("Services") issued a final rule (pdf) to include captive killer whales in the Southern Resident killer whale distinct population segment (DPS) of killer whales (Orcinus orca). The DPS has been listed as endangered under the federal Endangered Species Act (ESA) since 2005, but the listing excluded whales held in captivity. In January 2013, People for the Ethical Treatment of Animals petitioned the Services to remove the exclusion and extend the protections of ...
On February 2, 2015 the National Marine Fisheries Service (Service) announced its plan to extend the period for public comments on its December 3, 2014 proposed designation of critical habitat for the threatened Arctic Ringed Seal (Phoca hispida hispida), reported on this blog. (80 FR 5498 [pdf].) The Service’s proposed rule would designate millions of acres in the Bering, Beaufort, and Chukchi seas as critical habitat for the threatened Arctic Ringed Seal. The public comment period will now remain open until March 31, 2015. Additionally, the Service announced that a fifth ...
On December 3, 2014, the National Marine Fisheries Service (NMFS) published its proposed rule designating critical habitat for the threatened Arctic Ringed Seal (Phoca hispida hispida). (79 Fed. Reg. 71,714). The proposed designation, if finalized, would mark one of the largest critical habitat designations in the Bering, Beaufort, and Chukchi seas, consisting of millions of acres. The seal, which was designated as a threatened species under the Endangered Species Act (ESA) in December 2012, is the smallest of the northern seals with an average lifespan of 15 to 28 years. (77 ...
The National Marine Fisheries Service (NMFS) published a 90-day finding (pdf) on two petitions to list the pinto abalone (Haliotis kamtschatkana) as threatened or endangered under the Endangered Species Act (ESA) and designating critical habitat for the species. According to NMFS, there is substantial scientific or commercial information indicating that listing the species under the ESA may be warranted.
The pinto abalone is a marine gastropod mollusk found in the Pacific Ocean. Its range extends from Sitka Island, Alaska, to Baja California, Mexico, though it is mostly found ...
The National Marine Fisheries Service (NMFS) recently issued a proposed rule (pdf) designating critical habitat for the Northwest Atlantic Ocean loggerhead sea turtle Distinct Population Segment (DPS) (Caretta caretta) within the Atlantic Ocean and the Gulf of Mexico. The 36 marine areas proposed for designation as critical habitat contain one or a combination of nearshore reproductive habitat, winter habitat, breeding areas, and migratory corridors.
The loggerhead sea turtle was listed worldwide as a threatened species under the Endangered Species Act (ESA) on July 28 ...
In a unanimous panel decision, the United States Court of Appeals for the Fourth Circuit held (pdf) that a biological opinion issued by the National Marine Fisheries Service (NMFS) regarding the effects of three pesticides on certain salmonids was not the product of reasoned decision-making. The Fourth Circuit refused to silently rubber stamp an agency decision where NMFS failed to provide a satisfactory explanation for key aspects of that decision. Further, the court refused to allow NMFS to offer post hoc rationalizations for its decision in the form of an expert affidavit and ...
The National Marine Fisheries Service (NMFS) recently reopened the public comment period for its proposal to designate additional critical habitat for endangered Hawaiian monk seals (Monachus schauinslandi). As we previously reported, on June 2, 2011, NMFS proposed revising the critical habitat for the Hawaiian monk seal pursuant to section 4 of the Endangered Species Act (ESA) by extending the current designation in the northwestern Hawaiian Islands out to the 500-meter depth contour, including Sand Island at Midway Islands; and by designating six new areas in ...
On March 1-2, 2011, the Federal Emergency Management Agency and National Marine Fisheries Service held a two-day conference entitled "Demystifying National Flood Insurance Program Alignment with the Endangered Species Act." The agenda for the conference and associated materials are provided below.
The National Marine Fisheries Service ("NMFS") has issued a final determination (PDF) listing the southern Distinct Population Segment of Pacific eulachon (commonly referred to as "pacific smelt") as a threatened species under the federal Endangered Species Act. Because the pacific smelt has only been listed as a "threatened species," the listing does not result in an immediate prohibition on pacific smelt harvesting. NMFS can, however, extend such a prohibition via regulation. And in the final determination NMFS stated that in the future it will be ...
On February 10, 2010, the National Marine Fisheries Service (NMFS) announced its determination that a Center for Biological Diversity (CBD) petition (PDF 6 MB) to list 83 species of stony coral as threatened or endangered under the Endangered Species Act presents substantial information indicating that [listing] might be warranted for 82 of the 83 subject species. See 90-Day Finding (PDF).
If a threatened listing is warranted, NMFS may use its authority under Section 4(d) of the Endangered Species Act to impose regulatory requirements necessary and advisable to provide for the conservation of the species, including the prohibition of take of any such species without an incidental take permit.
If any of the species are listed as endangered, they automatically benefit from the Act’s most potent protections: Under Section 7, federal agencies must insure that actions they fund, authorize, or carry out are not likely to jeopardize the species or result in the destruction or adverse modification of its designated critical habitat. Under Section 9, persons are prohibited from taking or harming any endangered coral without first obtaining an incidental take statement under section 7 or an incidental take permit under Section 10. Furthermore, citizens may bring suit in federal court to enforce the provisions of the Endangered Species Act.
Thus, listing of coral could enable environmental groups to sue major emitters of greenhouse gases (GHGs) under the theory that their emissions cause the unpermitted take of, or harm to species imperiled by climate change.
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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