Category Archives: Endangered Species Act

New ESA Critical Habitat Rules Expand Federal Authority and Add Uncertainty

On February 11, 2016, the United States Fish & Wildlife Service (“FWS”), together with the National Marine Fisheries Service (“MFS”) (collectively “Services”) published two final rules and a final policy that purport to clarify their procedures for listing species under the Endangered Species Act (“ESA”) and designating and revising critical habitat for listed species. Hundreds… Read More »

Section 4(d) Rule – Northern Long Eared Bat

The Fish and Wildlife Service (FWS) released its final 4(d) rule related to the endangerment finding made by FWS regarding the northern long eared bat (NLE) which was listed as a threatened species under the Endangered Species Act (“ESA”) last year. The NLE is found in 37 states, the District of Columbia, and 13 Canadian… Read More »

Federal District Court sets aside 30-Year Eagle Take Permit

On August 11, 2015, a United States District Court judge halted a years-long effort by the United States Fish & Wildlife Service (“FWS”) to smooth the federal permitting path for wind energy. Shearwater et al. v. Ashe, No. 14-CV-02830-LHK (N. D. Cal.)(August 11, 2015). Specifically, the judge set aside a rule allowing for activities such… Read More »

PA DEP Public Resource Proposed Rules – Will They Survive?

As reported in my June, 2015 article on this site, the DEP’s Chapter 78 rulemaking effort is not without its share of controversy and concern. Perhaps the biggest issue for the industry is the expansion of the “Public Resource” requirements in proposed Chapter 78 (Conventional Operations) and Chapter 78a (Unconventional Operations). Both packages use a… Read More »

USFWS WV Field Office Guidance on Bat Conservation Plans – Proceed Cautiously

In June 2015, the US Fish and Wildlife Service released the “Guidance on Developing and Implementing a Myotid Bat Conservation Plan.”  http://www.fws.gov/westvirginiafieldoffice/PDF/WVFO_IBCP.pdf.   Key teaching points about this guidance are raised in the following Q&A: Why develop a plan?  It can help significantly reduce the likelihood a “take” would occur. Will a plan protect me… Read More »

Proposal to List the Big Sandy Crayfish and Guyandotte River Crayfish as Endangered

Coal, oil and gas, timber, and multiple other activities within the Guyandotte and Big Sandy watersheds in West Virginia, Virginia and Kentucky will be subject to new restrictions if the United States Fish and Wildlife Service (USFWS) proceeds with its recent proposal to list two crayfish species as endangered under the federal Endangered Species Act. 

USFWS Species Listing An Internal Process

On May 26, 2015 the D.C. Circuit Court of Appeals delivered an opinion in National Association of Home Builders v. USFWS, No. 14-5121 (D.C. Cir. May 26, 2015) that attempted to revisit the strict deadlines for the USFWS to submit either a warranted or not-warranted finding for numerous candidate species. Click here.  The district court… Read More »

Northern Long Eared Bat To Be Designated as Threatened, not Endangered – Litigation Immediately Begins

On April 2, 2015, the U.S. Fish and Wildlife Service (FWS) announced that it would be listing the northern long-eared bat as threatened, rather than endangered, as it had originally proposed in October of 2013. The listing gives the bat new protections but does not impose all of the requirements that would have been applicable… Read More »

Utah District Court Strikes Down Regulation of Species Under the Endangered Species Act

U.S. District Judge Dee Benson issued a significant ruling in the District of Utah finding that prohibiting the take of Utah prairie dogs on private lands is unconstitutional under the Commerce Clause.  The case is People for the Ethical Treatment of Property Owners v. USFWS, 13-278-DBD, D. Utah and the decision can be found here… Read More »

Public Comment Period on Proposed Listing of Northern Long-Eared Bat Reopened

The U.S. Fish & Wildlife Service has reopened the comment period on its October 2, 2013 proposed rule to list the northern long-eared bat (Myotis septentrionalis) as endangered under the Endangered Species Act.  The original comment period, scheduled to end on December 2, 2013 was previously extended to January 2, 2014.  The reopened comment period… Read More »