Endangered Species Act Final Rules: Impact on Federal Permitting and Project Development; Compliance Strategy
Listing/Delisting Species; Expansive Critical Habitat Designation; Section 7 Consultations
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Environmental
- event Date
Tuesday, June 11, 2024
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE webinar will guide counsel through the three final rules recently released by the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) (collectively, the Services) that extensively revise the regulations implementing Sections 4 and 7 of the Endangered Species Act (ESA), and that significantly broaden agency discretion and authority over federally permitted projects. The panel will examine how the finalized rules will impact project development and will offer best practices for compliance.
Mr. Petersen's environmental practice includes environmental compliance, enforcement and litigation, with an emphasis on water and natural resource issues under the National Environmental Policy Act, the Clean Water Act, the Endangered Species Act, the Marine Mammal Protection Act, the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act. He assists clients in complex permitting and regulatory issues related to energy development, commercial and residential projects, mining and infrastructure. He is experienced in environmental litigation at both trial and appellate levels and defends clients in enforcement actions in administrative and federal courts. In addition, Mr. Petersen also assists clients in responding to rulemaking efforts by federal agencies and in litigating agency actions under the Administrative Procedure Act. He is co-author of the ABA's Endangered Species Deskbook (2nd Edition 2010).
Mr. Whitfield assists his clients with environmental issues prior to, during, and after project development and operation. He helps companies navigate citizen suits, enforcement actions, regulatory proceedings, and challenges to their environmental clearances. He also handles a variety of administrative litigation matters on behalf of clients. Mr. Whitfield has extensive knowledge of the Clean Air Act, National Environmental Policy Act, Endangered Species Act, National Historic Preservation Act, Administrative Procedure Act, Marine Mammal Protection Act, Outer Continental Shelf Lands Act, and numerous other federal and state laws. His NEPA and regulatory practice is distinguished as he has represented clients on projects that are onshore, offshore, transboundary, and even in outer space. Mr. Whitfield’s practice also focuses heavily on conventional and renewable fuels regulation. He is a former trial attorney in the DOJ’s Natural Resources Section.
Mr. Moore’s practice is dedicated to successful project development, advising clients nationwide on activities implicating NEPA, wetlands regulation, and federal and state species protection laws, including the Endangered Species Act, Migratory Bird Treaty Act, Bald and Golden Eagle Protection Act, and CITES. He also defends clients against agency enforcement actions and citizen suits, applying his substantive knowledge of natural resources law and project development to craft creative, sound, and successful legal strategies. Mr. Moore is involved at all stages of project development, from initial project conception and design to defense of completed facilities. He frequently is called on to help get projects back on track when they are delayed by permitting complications and other regulatory issues, bringing to bear his extensive experience to identify innovative and effective solutions.
The NMFS and FWS have recently released three final rules extensively amending or reversing several components of the regulations implementing Sections 4 and 7 of the ESA from those promulgated in 2019, and significantly broadening the agencies' discretion and authority over federally permitted projects.
The first final rule clarifies standards in Section 4 for listing, delisting, and reclassifying species, and designating critical habitat. The rule makes it easier for the agencies to designate areas outside a species' current and historic range as "critical habitat" and revises criteria when considering whether to list a species as "threatened."
The next final rule reinstates the Section 4(d) blanket rule which prohibits take of all species listed by FWS as "threatened," returning to FWS' pre-2019 practice which differs from the NMFS approach of prohibiting take of threatened species on a case-by-case basis.
The third final rule revises the Section 7 consultation requirements that apply to federal agency actions that are likely to adversely affect a listed species or designated critical habitat including new language that allows the Services to impose mitigation as a condition in "no jeopardy" biological opinions to fully compensate for unavoidable take of listed species.
Counsel should be aware of the new rules' requirements and the impact they may have on their clients' project development, including construction, infrastructure, and renewable energy projects, and how they may affect compliance strategy.
Listen as our expert panel provides an in-depth look at the changes finalized in the new rules and the potential impact on project development. The panel will also discuss relevant state/local law considerations and offer best practices for compliance.
- Introduction: history of the rules
- Final rules
- ESA Section 4 regulations clarifying standards for listing, delisting, and reclassifying species; and revising criteria for critical habitat designation
- ESA Section 4(d) "blanket rule" reinstatement for the protection of endangered and threatened species (FWS only)
- ESA Section 7 regulations revising language, definitions, and responsibilities to clarify and improve the federal interagency consultation process
- Impact on project development and compliance strategy
- Notable recent and future listing decisions and critical habitat designations
- Practitioner takeaways
The panel will review these and other important considerations:
- How do the final rules provide the Services with broader discretionary power?
- How do the Section 4 revisions make it easier for the agencies to designate areas as critical habitat?
- How will the revisions affect the Section 7 consultation review process?
- What is the effect of reimplementing the FWS Section 4(d) blanket rule?
- How will the agencies' expansive authority impact project development and compliance strategies?
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