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Court Order Vacates the 2019 Revisions to the 402 Regs for Interagency Consultation
Shortly after the revisions to the 402 regulations were finalized in 2019, the Department of Interior was sued over those changes. On Tuesday July 5, 2022 the Northern District Court issued an order regarding that suit. The order remands those 2019 revisions back to the Department of Interior for reconsideration and, more importantly to practitioners, vacated the 2019 revisions. The order was effective immediately.
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Revision of Habitat Definition for Designation of Critical Habitat
On Friday June 24, 2022, the Service published a final rule in the Federal Register (Fed. Reg. Vol. 87, No. 121, pp. 37757 – 37771). That rule removed the definition of “habitat’ from the regulations pertaining to the designation of critical habitat (50 CFR 424.02)...
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A Look at Causation
During the class the issue of “caused by” came up as it is used in the regulatory definition of “effects of the action” (50 CFR 402.02) and the associated terms of “but for” and “reasonably certain to occur”. (These terms also relate to construction of an incidental take statement.) This is always a difficult point in framing biological assessments and biological opinions.
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But For and Reasonably Certain to Occur
A couple of weeks ago I mentioned the value of reading preambles in federal register notices to give context to words and processes. While preparing some training materials for my online courses, an example came to mind - the phrases “but for” and “reasonably certain to occur” (sometimes abbreviated to ‘rcto’ just to confuse new practitioners).
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