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If you’ve been following the saga of the 2019 revisions to the consultation regs at 50 CFR 402 you will remember that in my July 6 blog entry, I commented on a (then) recent court ruling regarding the 2019 regulation revisions. Well, there has been more activity in that case...

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Practitioners often have questions about emergency consultations because they usually occur under somewhat chaotic circumstances and don't follow the normal process that non-emergency consultations do... so I've boiled down emergency consultations to a couple of key thoughts...

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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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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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