An ELI Professional Practice Seminar
Change is coming to the world of Endangered Species Act (ESA) practitioners. Over a decade after two circuit courts struck down the regulatory definition of “adverse modification,” two agencies, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, are now proposing a comprehensive package of changes to the ESA.
In May 2014, the Services proposed two rules and one new policy regarding ESA. The first rule redefines “adverse modification” to place additional emphasis on species recovery after being listed as endangered under the ESA. The second rule contains numerous clarifications of the scope of critical habitat in terms of geographical range of the species. The proposed policy deals with exclusions from critical habitat designations, specifying that the government will consider issues such as national security and economic impact when deciding whether to include land in designations. In addition, the policy includes a benefits analysis, where the agencies will compare the benefit of designating land with the benefit of excluding land to determine its course of action.
These proposed rules and new policy raise many questions. For instance, how do these three regulatory pieces fit together in practice? How can one assign a “conservation value” to critical habitat as the new definition of “adverse modification” requires? What does a species’ recovery really look like?
Our panel of experts addressed these questions as they provided insight into an evolving and complex regulatory landscape.
Panelists:
Larry Liebesman, Partner, Holland & Knight LLP (moderator)
Jason Rylander, Senior Staff Attorney, Defenders of Wildlife
Sean Skaggs, Partner, Ebbin Moser and Skaggs, LLP
Angela Somma, Chief, Endangered Species Division, Office of Protected Resources, NOAA
Materials:
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