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 California 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.

What this means is that the regulations that apply to interagency cooperation at 402 from July 6 forward have reverted back to the regulations that were in place before the revisions in August of 2019. Practitioners should recognize that it will take some time for the ecfr.gov to update the regs online, but I have placed a copy of the applicable (pre 2019 revisions) regulations in the reference section.

What is most important for the practitioner to be aware of is that this means the definitions for Effects of the Action, Environmental Baseline, and Destruction and Adverse Modification have reverted to the previous definitions. I was a member of the team that wrote the revisions and we noted in the preamble to the 2019 regulations that the definition changes in 2019 were not intended and did not change the scope or scale of any of those definitional concepts, so there should be little if any difference in the actual analysis used in biological assessments or consultation documents.

It will be up to the Department of Interior (Fish and Wildlife Service) and Department of Commerce (National Marine Fishery Service) to determine the next steps regarding the remand (and potential promulgation of new regs), but the practitioner can probably assume the regulations linked above will be the ones in use for many months or maybe even indefinitely.

I will be posting a new updated glossary in the next week or so that reflects the change and any upcoming courses will incorporate the vacatur of the 2019 revisions.