The Nickel Report

The Endangered Species Act (ESA) prohibits “take,” which the Act defines to include (among other things) “harm,” “harass,” “shoot,” “wound,” “capture,” and “kill.” A violation of the take prohibition can result in civil or criminal enforcement or an ESA citizen suit for an injunction and litigation costs. For decades, regulations issued by the US Fish and Wildlife Service and National Marine Fisheries Service defined one form of take—“harm”—to include significant habitat modification that actually kills or injures wildlife. The Services repealed the harm definition in July, and on September 14 issued internal memos addressing the scope of the ESA “take” prohibition. The July rule and September memos raise questions that extend well beyond removal of the regulatory definition of harm. Agencies still need to evaluate the effects of agency actions on listed species and designated critical habitat during ESA section 7 consultation—even if none of those effects constitute “take” under the Services’ current interpretation. But the critical question for project proponents and federal agencies going forward is whether incidental take coverage is available through an ESA section 7 incidental take statement or an ESA section 10 incidental take permit under the Services’ new reading.

The Northern District of California vacated portions of four provisions in the Endangered Species Act Section 7 consultation regulations, reinstating earlier regulatory text governing effects of the action, mitigation measures, adverse modification, and the Service’s duty to request reinitiation. 

This week the US District Court for the Northern District of California overturned three Endangered Species Act (ESA) rules issued in 2019 that address: (1) listing species and designating critical habitat, (2) extending take prohibitions to threatened species, and (3) § 7 interagency consultation. Center for Biological Diversity v. Bernhardt, 19-05206 (N.D. Cal. July 5, 2022). The three rules were issued by the US Fish and Wildlife Service and National Marine Fisheries Service (together, the Services) in August 2019 and together represented the first comprehensive revisions to the ESA regulations in 33 years. The order has a number of important regulatory and caselaw implications.