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Endangered Species Act Final Rules: Impact on Federal Permitting and Project Development; Compliance Strategy

Listing/Delisting Species; Expansive Critical Habitat Designation; Section 7 Consultations

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
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Conducted on Tuesday, June 11, 2024

Recorded event now available

or call 1-800-926-7926

This CLE webinar will guide counsel through the three final rules recently released by the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) (collectively, the Services) that extensively revise the regulations implementing Sections 4 and 7 of the Endangered Species Act (ESA), and that significantly broaden agency discretion and authority over federally permitted projects. The panel will examine how the finalized rules will impact project development and will offer best practices for compliance.


The NMFS and FWS have recently released three final rules extensively amending or reversing several components of the regulations implementing Sections 4 and 7 of the ESA from those promulgated in 2019, and significantly broadening the agencies' discretion and authority over federally permitted projects.

The first final rule clarifies standards in Section 4 for listing, delisting, and reclassifying species, and designating critical habitat. The rule makes it easier for the agencies to designate areas outside a species' current and historic range as "critical habitat" and revises criteria when considering whether to list a species as "threatened."

The next final rule reinstates the Section 4(d) blanket rule which prohibits take of all species listed by FWS as "threatened," returning to FWS' pre-2019 practice which differs from the NMFS approach of prohibiting take of threatened species on a case-by-case basis.

The third final rule revises the Section 7 consultation requirements that apply to federal agency actions that are likely to adversely affect a listed species or designated critical habitat including new language that allows the Services to impose mitigation as a condition in "no jeopardy" biological opinions to fully compensate for unavoidable take of listed species.

Counsel should be aware of the new rules' requirements and the impact they may have on their clients' project development, including construction, infrastructure, and renewable energy projects, and how they may affect compliance strategy.

Listen as our expert panel provides an in-depth look at the changes finalized in the new rules and the potential impact on project development. The panel will also discuss relevant state/local law considerations and offer best practices for compliance.



  1. Introduction: history of the rules
  2. Final rules
    1. ESA Section 4 regulations clarifying standards for listing, delisting, and reclassifying species; and revising criteria for critical habitat designation
    2. ESA Section 4(d) "blanket rule" reinstatement for the protection of endangered and threatened species (FWS only)
    3. ESA Section 7 regulations revising language, definitions, and responsibilities to clarify and improve the federal interagency consultation process
  3. Impact on project development and compliance strategy
  4. Notable recent and future listing decisions and critical habitat designations
  5. Practitioner takeaways


The panel will review these and other important considerations:

  • How do the final rules provide the Services with broader discretionary power?
  • How do the Section 4 revisions make it easier for the agencies to designate areas as critical habitat?
  • How will the revisions affect the Section 7 consultation review process?
  • What is the effect of reimplementing the FWS Section 4(d) blanket rule?
  • How will the agencies' expansive authority impact project development and compliance strategies?


Moore, W. Parker
W. Parker Moore

Principal; Co-Chair Natural Resources and Project Development Practice Group and Co-Chair NEPA, Wetlands, and Endangered Species Act Groups
Beveridge & Diamond

Mr. Moore’s practice is dedicated to successful project development, advising clients nationwide on activities...  |  Read More

Petersen, Rafe
Rafe Petersen

Holland & Knight

Mr. Petersen's environmental practice includes environmental compliance, enforcement and litigation, with an...  |  Read More

Whitfield, Peter
Peter Whitfield

Sidley Austin

Mr. Whitfield assists his clients with environmental issues prior to, during, and after project development and...  |  Read More

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