Two recent developments may have meaningful impacts on the implementation of Section 7 of the Endangered Species Act (ESA). First, the DC Circuit Court of Appeals issued an opinion in Maine Lobstermen’s Association v. National Marine Fisheries Service and held that the National Marine Fisheries Service (NMFS) may not give species the benefit of the doubt when relying on partial or incomplete data.
Second, NMFS and the US Fish and Wildlife Service (USFWS) proposed revisions to the rules implementing Section 7 of the ESA—and, contradicting decades of practice, proposed a compensatory mitigation requirement as a component of the “Reasonable and Prudent Measures” to be implemented as part of an Incidental Take Statement.
