Proposed Revisions To ESA Raise Concerns, Questions

Questions are being raised about the announced proposed revisions to the U.S. Fish and Wildlife Service and National Marine Fisheries Service modifications to the Endangered Species Act (ESA) petition process. On April 21, 2016, the federal agencies issued proposed revisions to their original proposal of May 2015.

“Many industry groups supported the changes, because they clarified the standards for listing petitions, the documentation required in those petitions, and coordination with state wildlife agencies,” according to the Environmental Law and Policy Monitor, however after the agencies took public comment many of the new “revisions roll back the original proposed changes.”

The Services are accepting comments on the proposed revisions through May 23.

Stephanie Clark, of Nossaman’s Environment and Land Use Practice Group, wrote on April 27, 2016, of the proposed revisions: “The Service’s proposed rule originally required petitions to list species to address only one species, contain information about a species’ current range (including the states and/or countries included in a species’ range), and certify that the petition provided all relevant information regarding the species. The proposed rule also required a petitioner, in every state where the species occurs, to coordinate with the State in the development of relevant information and to serve a copy of the petition on the State resources agency at least 30 days prior to submitting the petition to the Service. As previously detailed here, these proposed changes represented a significant departure from the petition process that currently exists.”

As Clark notes, the agencies claimed that they were making “small revisions in language in the proposed regulation text” for “clarity and simplicity.” However, Clark reports, “many in the environmental community view the revisions as a significant scaling back or narrowing of the original changes, as reported by E&E’s Greenwire and the Center for Biological Diversity, making the listing petition process more favorable to conservation organizations.”

The Environmental Law and Policy Monitor offers “several examples of the differences between the original proposal and the revisions:

Petitions to list or delist a species limited to one species per petition.

Petitions to list or delist a species are limited to one “taxonomic” species per petition, meaning that a petition can include more than one species so long as they are in the same species, subspecies or distinct population segments.

Petitions must include a certification that all relevant information readily available is provided, including information both supporting and negating the proposed action.

This requirement has been removed. Instead, petitioners are required to send a notification letter to the state wildlife agency in each state where the species resides at least 30 days before submitting the petition to FWS or NMFS.

Petitions would be rejected if they did not include all of the information outlined in the regulation.

The Secretaries retain discretion to accept petitions that “substantially comply” with the regulation.

Doyel Shamley, CEO of Veritas Research states, “As originally proposed, numerous entities that are the most adversely effected by erroneous listing procedures, local governments and localized industries, widely supported the revised changes. However, with the newly added revisions inserted into the proposal, the agencies will once again ignore the input of local government and the people, allowing unelected administrators to decide what will or won’t be interpreted as the law of the land.”

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