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.
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.
