September 23, 2013

Endangered Species Act Proposed Rulemaking

Environmental Alert

On September 4, 2013, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (collectively, the "Resource Agencies") jointly proposed new regulations governing the issuance of "incidental take statements" (ITSs) under Section 7 of the Endangered Species Act (ESA). The purpose of these proposed regulations is to codify existing Resource Agency practices regarding the identification of take levels reported in ITSs. Comments on the proposed rule are due November 4, 2013.

The proposed regulations would authorize FWS and NMFS to use "surrogate" measures of incidental take (such as habitat, ecological conditions, or similar affected species) when it is not possible to identify specific take numbers. However, the preamble to the current rule concerning ITSs discusses the use of a precise number of individuals or a description of the land or marine area affected to express the amount or extent of anticipated take. This has resulted in lawsuits in which environmental advocacy groups have attempted to hold the Resource Agencies to specific standards in enumerating and authorizing take in ITSs and have challenged the adequacy of authorized take levels. The proposed regulations would clarify and set standards for the use of surrogates in ITSs.

The proposed regulations also seek to provide some clarity for programmatic ITSs. Programmatic ITSs address large-scale management programs covering a number of activities but typically do not authorize specific numbers of individuals as a permitted take because the activities carried out under the program subsequently go through separate ESA consultations in which specific take numbers are authorized. The regulations as proposed would clarify that specific numbers need not be authorized in a programmatic ITS and also would allow the Resource Agencies to include certain "reasonable and prudent measures" in a programmatic ITS that would minimize take impacts in lieu of establishing specific take levels.

In addition, new proposed ESA regulations are expected to be issued for public comment later this year to address the ESA's "adverse modification of critical habitat" standard as well as the critical habitat designation process.

Preti will monitor proposed ESA rulemaking as it develops.

For questions on this alert, contact Sharon Newman, David Van Slyke or Jeffrey Talbert of Preti's Environmental Practice Group.

Firm Highlights

Press Coverage

Officer-involved Shootings Video - Maine Behind the Curve on Public Access to Information

More than three months after officers were involved in a fatal shooting of a Minot, Maine, resident, the Androscoggin County Sheriff's Office and the Office of the Attorney General continue to deny requests to...


Preti Flaherty COVID-19 Resources

In response to the ongoing COVID-19 pandemic, Preti Flaherty's attorneys have maintained a constant stream of the most up-to-date information and resources for our clients, business partners, and others struggling to navigate these complex...

Press Coverage

As More States Release COVID-19 Cases by Town, Maine Says It Could Take 6 Months

As more states continue to release information on the number and distribution of coronavirus cases, officials from Maine's public health agency claim that making tallies available to the public under the state's Freedom of...


Contractor's Guide to Mitigating Risks in the AIA A201-2017 General Conditions

The AIA A201-2017 is generally a well-understood contract document and is used in a significant number of construction projects each year. While this standard contract covers most risks, there are a number of areas...


Legislative Alert: Governor’s Economic Recovery Committee Update

The Governor’s Economic Recovery Committee met on Friday June 26 th to hear reports from the Chairs of all six subcommittees. In the reporting on Friday the biggest monetary ask was from the Infrastructure...


Eighteen Preti Flaherty Attorneys Selected as Chambers USA Leaders in Their Field

Eighteen Preti Flaherty attorneys and five practice groups have been selected for inclusion in the 2020 Chambers USA Guide to America's Leading Lawyers for Business , the highly regarded directory of leading attorneys and...


Preti Flaherty Attorney William Saturley Named Among America’s Top 100 “Bet-the-Company Litigators” for 2020

Preti Flaherty is proud to announce that attorney William Saturley has been selected for inclusion on the list of America’s Top 100 “Bet-the-Company Litigators” for 2020. America’s Top 100 recognizes the most qualified and...



Our country and our communities are suffering and in turmoil due to the racial injustices that have occurred for centuries and are still happening all around us today. It is difficult to comprehend and...


Maine Workers' Comp Alert: WCB Transition to In-Person Hearings Likely to Occur No Sooner Than August 2020; Section 312 IME’s Have Resumed

A conference with Maine Workers' Compensation Board Executive Director John Rohde was held last week to discuss the transition to in-person hearings at the WCB. The WCB Subcommittees also met to discuss recent developments...

Press Coverage

Maine drops residency requirement for recreational marijuana businesses

Since Mainers voted to pass the Maine Marijuana Legalization Act in 2016, lawmakers have been wrestling with how to regulate sales. Last week, recreational marijuana businesses in Maine cleared a major hurdle to operation...