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Wildlife Roundup | Holland & Hart LLP

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The regulation of protected wildlife is likely to undergo a seismic shift as a result of the change in administrations. Whereas the Trump Administration took several actions to narrow the reach of wildlife protection statutes, the Biden Administration is likely to undo or revise many of those actions and seek ways to expand protection for sensitive species. In fact, it has already taken steps to do so. This increased focus on species conservation will likely result in additional wildlife avoidance, minimization, and mitigation obligations for project proponents. This article summarizes some of the recent changes in law, policy, and listing status relevant to protected wildlife under the Migratory Bird Treaty Act (MBTA), Endangered Species Act (ESA), and Bald and Golden Eagle Protection Act (BGEPA). ....

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Uncertainty About Migratory Bird Treaty Act "Takes": The Biden Administration Delays the Effective Date of the Final Regulations Governing Take of Migratory Birds | Liskow & Lewis

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On February 5, 2021, the Fish Wildlife Service (“FWS”), under the Biden administration, announced that it was delaying the effective date of a rule promulgated by the Trump administration regarding “incidental takes” and the Migratory Bird Treaty Act (“MBTA”). On January 7, 2021, the Trump administration published a final rule interpreting the MBTA as not prohibiting incidental takes, and this rule was set to take effect on February 8, 2021. The Biden administration delayed the effective date until March 8, 2021, and it has requested additional public comments on the rule through March 1, 2021. 86 Fed. Reg. 8716, published February 9, 2021. ....

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Migratory Bird Treaty Act Final Rule Faces Hurdles

Tuesday, February 2, 2021
On January 7, 2021, the U.S. Fish and Wildlife Service (“FWS”) issued a final rule codifying the Trump Administration’s interpretation that the prohibitions of the Migratory Bird Treaty Act (“MBTA”) only apply to actions “directed at” migratory birds, their nests, or their eggs (“Final Rule”). Consistent with the proposed rule (see VNF’s previous alert), FWS adopted the interpretation “that the scope of the MBTA does not include incidental take.” The Final Rule is currently scheduled to become effective on February 8, 2021. However, implementation of this Final Rule faces significant hurdles it may be struck down in federal court, disapproved pursuant to the Congressional Review Act (“CRA”), or withdrawn by the Biden Administration. ....

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