Regulation Revision Lawsuit
Many of you might not know that the 2024 revisions of the 50 CFR 402 regulations promulgated by the U. S. Fish and Wildlife Service and National Marine Fisheries Service are now the subject of court action. Several plaintiffs (Center for Biological Diversity, Sierra Club, and Wildearth Guardians) filed suit in the United States District Court for The Northern District of California against the U.S. Department of the Interior, U.S. Fish and Wildlife Service, U.S. Department of Commerce, and National Marine Fisheries Service (Case No. 3:24-cv-4651). As of this writing I don’t have any more information on the progress of the case. The important point for practitioners is that the changes to the regulations are still in place at this time. I’ll try and update if I hear more about the case. If any of the readers have additional updates, please contact me.
Guidance for Mitigation of Impacts from Incidental Take
You may recall that the 2024 revisions to the regulations incorporated a much broader interpretation of the scope of reasonable and prudent measures (see regulation blog post). This includes “offsets” to try to get the impacts fully compensated for. I’m aware that the Service has internal draft guidance on how to implement the new interpretation, but I do not have a clue as to when any guidance will be developed for public release. It could be that it will just be a part of the highly anticipated new handbook (see 4th item).
1998 Handbook Annotations
In 2022 I took a copy of the 1998 Handbook and added “sticky notes” where the Handbook is wrong, confusing, or where the Services' practice has changed. I have updated those annotations to be more prominent in the document and to add a few more related to the 2024 revised regulations. You can find the updated Handbook here: Annotated Handbook or on our Resources page.
New Consultation Handbook?
Before I left the Service, I was on the team that drafted a new Handbook in 2020. That draft never went to the public for review. My understanding is that it has now been updated and hopefully will eventually be released for public review. I’ve heard of several target dates for release, but those have come and gone. Here’s hoping 2025 is the year!
Compilation of Terms used during Consultation
Speaking of updates, I have revised the Compilation of Terms used during Consultation (Glossary), and the new version (January 1, 2025) can be found here: Compilation of Terms or on our Resources page. Several new terms were added, some text was clarified, and dates were added to some of the revised definitions to make it easier to track the changes over the various revisions. I consider this document to be the “go to” for practitioners trying to calibrate with others on the meanings of terms.