Federal permitting and the changing impact of the Endangered Species Act

This week, an editor at Bloomberg News called our colleague Larry Liebesman about the Endangered Species Act and how the Trump Administration’s proposed Waters of the US (WOTUS) rule and the Supreme Court’s 2023 Sackett ruling will impact development and infrastructure permitting. Larry has an extensive background on ESA legal issues, having spent 10+ years as a Justice Department environmental litigator and professor in environmental law at George Washington Law School. He co-authored the Endangered Species Desk book ( 2d ed.) for the Environmental Law Institute. 

What follows are some of Larry’s thoughts to Bloomberg about ESA and today’s federal permitting climate:

• Because the Sackett decision limited Clean Water Act jurisdiction only t

  o wetlands that abut traditionally flowing streams and rivers, developers will not need Army Corps of Engineers permits for impacting wetlands that are not hydrologically connected to such waters. Isolated and ephemeral waters such as those in the arid West will no longer be regulated under the CWA. Developers would then not need to undertake the lengthy and expensive 404 permitting process and mitigation costs that often delay many projects. They would also not need to obtain a State Section 401 Water Quality certification, a requirement triggered by the need for a federal permit. However, many states such as Maryland, have separate wetlands permit programs that would still have to be satisfied 

• The removal of CWA jurisdiction does not mean the elimination of ESA regulation. The protected habitat for many ESA-listed species such as the Whooping Crane and Fairy Shrimp encompass areas beyond that regulated under the CWA such as isolated prairie potholes.   

• Because the Supreme Court and U.S Fish and Wildlife Service (FWS) have interpreted the definition of “harm” under the ESA to include significant habitat modification that impacts a species life cycle, developers can face ESA liability to impacts to that habitat beyond any liability for wetlands impacts under the CWA. That could include potential citizen suits and penalties.  

• The FWS recently proposed a revision to the “harm” definition to encompass only direct and intentional impacts to a species not just habitat modification. If adopted and upheld in court, ESA liability could be reduced.

• The ESA Section 7 consultation process has often been relied on by developers to provide ESA liability protection. Under Section 7, the federal permitting agency such as the Corps engages in consultation with the FWS as part of the section 404 permit process. With the loss of CWA wetlands jurisdiction, developers may then need an ESA Section 10 “take “permit from the FWS requiring an expensive and time-consuming habitat conservation plan with mitigation to avoid suits from environmental groups. Therefore, developers would prefer the section 7 process as it is usually quicker and more efficient than obtaining a Section 10 permit.