Tag: Endangered Species Act

1
Critical Habitat and the Endangered Species Act: Newly Enacted Regulations Threaten to Expand the Government’s Role and Discretion in the Permitting Process
2
“FWS Bat Intake Rule Won’t Drive Project Developers Batty” on Law360
3
The Final Northern Long-Eared Bat 4(d) Rule: Impacts to Energy Infrastructure Projects
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Greater Sage-Grouse Avoids ESA Listing

Critical Habitat and the Endangered Species Act: Newly Enacted Regulations Threaten to Expand the Government’s Role and Discretion in the Permitting Process

In the summer of 2014, we reported on the U.S. Fish and Wildlife Service’s and the National Marine Fisheries Service’s (collectively, the “Services”) proposed changes to regulations implementing the Endangered Species Act (“ESA”).  As we indicated then, the proposals had the potential to expand the need to consult with the Services under the ESA, thereby making it possibly more difficult, time-consuming, and expensive to obtain permits from federal agencies such as the U.S. Army Corps of Engineers.  Among the proposed changes was an amendment to the definition of “destruction or adverse modification” of critical habit.

Not quite two years later, on February 11, 2016, the Services issued a final rule adopting a new definition of “destruction or adverse modification” under the ESA.  The new rule takes effect on March 14, 2016.  According to the Services, it should not alter the ESA consultation process and does not require the reevaluation of “previously completed biological opinions.”  As we foreshadowed in summer 2014, however, the new rule could impact the amount and substantive results of future consultations with the Services.

Read the full alert on K&L Gates HUB

 

“FWS Bat Intake Rule Won’t Drive Project Developers Batty” on Law360

Ankur Tohan and James M. Lynch’s recent alert on the Northern Long-Eared Bat 4(d) Rule and its effects on energy infrastructure projects was recently published on Law360.

Please click here to view it on Law360 (subscription required) or view it on K&L Gates HUB.

The Final Northern Long-Eared Bat 4(d) Rule: Impacts to Energy Infrastructure Projects

Last spring, the U.S. Fish and Wildlife Service (the “Service”) published a final rule to list the northern long-eared bat (the “Bat”) as a threatened species and an interim 4(d) rule under the Endangered Species Act (the “Act” or “ESA”) (16 U.S.C. §1531 et seq.).

The interim 4(d) rule reflected an attempt by the Service to accommodate both conservation needs and industry group interests; however, it was widely believed that the listing of the Bat as a threatened species would impose a significant burden on wind, energy, and other energy infrastructure projects carried out within range of the Bat, as defined by the Service.

Read the full alert on K&L Gates HUB

Greater Sage-Grouse Avoids ESA Listing

The U.S. Fish and Wildlife Service (“Service”) announced on Tuesday, September 22, 2015, that it would not list the greater sage-grouse under the Endangered Species Act (“ESA”).

This decision represents a change of direction for the Service, which announced in 2010 that the grouse was “warranted for listing”, but the Service now says “new information about the status of the species, potential threats, regulatory mechanisms, and conservation efforts indicates that listing is not warranted.”

Specifically, the Service determined that “the primary threats to greater sage-grouse have been ameliorated by conservation efforts implemented by Federal, State, and private landowners.” The Service identified state regulations, new federal regulations, conservation efforts, and advancements in oil and gas technologies as having reduced threats to the grouse “in approximately 90 percent of the breeding habitat through avoidance and minimization measures.”

Read more on K&L Gates HUB

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