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Legal

2024 Reg Changes have been Finalized

Well, the US Fish and Wildlife Service and National Marine Fisheries Service have finalized revisions to the regulations for consulting under Section 7 of the Endangered Species Act (ESA)... ...To make sense of what the Services appear to be saying, I’ve put together a brief decision tree which I believe crudely describes the process outlined in the preambles to the proposed and final rules. I offer it below with a couple of caveats...

2023 Revisions to the Consultation Regulations

The Fish and Wildlife Service and National Marine Fisheries Service (Services) have proposed new revisions to the regulations for consultation under section 7 of the Endangered Species Act... The same day in separate notices, the Services proposed changes to the regulations for listing of species under the Act and to reinstate the 1978 blanket 4(d) rule for threatened species... [One] proposed change is a change that in my view does represent a substantial change in practice and the Service acknowledges as much. The proposal is to edit the definition (402.02) of reasonable and prudent measures (RPMs), to edit 402. 14(i)(1)(i) and (ii), and to add section 14(i)(3) – all to reflect a new interpretation by the Services. Those changes broaden the scope of those measures...

Update on 2019 Regulations plus a Handy Reference Table of Important Section 7 Court Cases

As mentioned in my September 27, 2022 blog, the Ninth Circuit granted a request to stay the U.S. District Court of Northern California's July 5, 2022 order. (That July order had vacated the 2019 revisions to the consultation regulations.) So the Ninth Circuit’s stay meant we were back to using the regulations as revised in 2019. The stay also put the ball back in the Northern California’s court for the next move. Well, that move came on November 16, 2022...

7(d) and Irreversible or Irretrievable Commitment of Resources During Section 7 Consultation

The purpose of section 7(d) is to preserve options in case the consultation eventually concludes that the proposed project is likely to jeopardize a listed species or is likely to result in the destruction or adverse modification of designated critical habitat.