May 19, 2019

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FWS Takes a Mulligan on Greater Sage-Grouse Listing

Effectively restarting a contentious listing process, on April 12, 2019, the United States Fish and Wildlife Service reopened public comment on 2013 proposed rules listing the Bi-State distinct population segment of greater sage-grouse as threatened with a 4(d) rule and designating critical habitat under the Endangered Species Act (ESA). The Service also announced it is initiating a new status review of the Sage-Grouse to determine whether it is endangered or threatened. Potentially affecting mining, utility, agriculture, energy, and other interests, this do-over is the first step towards much-needed certainty on the Sage-Grouse’s status under the ESA. The public comment periods close June 11, 2019.

This saga dates back several years. On October 28, 2013, the Service published two proposed rules:

  1. Listing the Sage-Grouse as threatened, but providing 4(d) rule exemptions from the take prohibition for certain conservation activities.
  2. Designating Sage-Grouse critical habitat along the California and Nevada border.

Eighteen months later, the Service withdrew them, concluding that extensive multi-stakeholder and multi-agency efforts to conserve the Sage-Grouse were working in lieu of ESA listing. Environmental groups successfully sued, requiring the Service to reverse course and re-propose the rules it previously withdrew.

Now, the Service is again accepting public comment on the 2013 proposed rules and initiating a new status review to determine whether the Sage-Grouse meets the definition of an endangered or threatened species. With a nod to the listing decision’s long history, the Service asks the public to provide any newly available information about the species, its habitat, and threats (or the lack thereof). The Service also requests information related to the success of Sage-Grouse conservation efforts and public comment on whether the 4(d) rule should exempt additional activities from the take prohibition. 

While this redo will require affected project-proponents to again make certain the Service has the best available information as it makes the Sage-Grouse listing decision, this years-long process may soon reach an end. As mandated by court order, the Service states that it will publish a final listing decision for the Sage-Grouse by October 1, 2019. Whether this date actually brings closure remains to be seen, as the latest proposal is also reevaluating the status of the species and alludes to the potential for additional public comment periods in response to any “significant new scientific information” received.

© 2019 Beveridge & Diamond PC

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About this Author

James M. Auslander, Environmental Law Attorney, Beveridge Diamond Law Firm
Principal

James (Jamie) Auslander’s legal practice focuses on environmental, natural resources, and administrative law and litigation.  Mr. Auslander represents numerous major and small businesses, trade associations, and state agencies in a wide range of regulatory and litigation matters, both national and local in scope.  He serves clients in all phases of a case, including internal compliance, administrative proceedings and negotiations, and litigation when necessary.

Mr. Auslander devotes a significant part of his practice to counseling and litigation...

202-789-6009
W Parker Moore, Environmental Lawyer, Beveridge & Diamond Law firm
Principal

Parker dedicates his practice to successful project development. He helps clients nationwide from every economic sector navigate issues arising under the Clean Water Act (CWA), the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), the Migratory Bird Treaty Act (MBTA) and related environmental laws.  He also defends clients against agency enforcement actions and citizen suits, applying his substantive knowledge of natural resources law and project development to craft creative, sound and successful legal strategies. He co-chairs B&D’s Environmental Practice Group and its NEPA, Wetlands, and ESA Section.

202-789-6028
 Alexander Horning, Beveridge Diamond, Environmental Lawyer, Regulatory Matters Attorney,
Associate

Alexander Horning maintains a general environmental, regulatory and litigation practice. 

During law school, Alexander served on the William and Mary Law Review and the Virginia Coastal Policy Clinic. He also completed an internship with the Pennsylvania Department of Environmental Protection and an externship with Virginia Sea Grant.  

While in college, Alexander was a National Oceanic and Atmospheric Administration Hollings Scholar and conducted research on the relationship between tidal creek health and property...

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