Endangered Species Law & Policy

While a number of Endangered Species Act (ESA) reform bills continue to wind their way through Congress (see our May 6, 2015 post), yesterday, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) announced their own plan to "increase regulatory predictability, increase stakeholder engagement, and improve science and transparency" when acting on petitions to list, uplist, downlist, or delist a species, as well as petitions to revise critical habitat designations.  Rather than revising the ESA itself, as some in Congress have suggested is necessary, FWS and NMFS have proposed to "maximize efficiency" and "make the best use of available resources" by revising the regulations governing the petition process.  The revisions identified in the proposed rule include, among others:

• Only One Species:  Requiring that a listing petition address only one species;
• Prior Notice to States:  Requiring that any petition submitted to FWS pertaining to a proposed listing action for a species found in the United States certify that a copy of the petition was provided to the state agencies responsible for management and/or conservation of the fish, plant, or wildlife resource in each state where the species occurs at least 30 days prior to submission to FWS;
• Incorporation of State Information:  Requiring that any petition submitted to FWS pertaining to a proposed listing action for a species found in the United States include any information, data, or written comments provided by the state agencies responsible for management and/or conservation of the fish, plant, or wildlife resource;
• Incorporation of Readily Available Information:  Requiring that any petition pertaining to a proposed listing action for either FWS or NMFS certify that the petitioner has gathered all relevant information readily available, including from websites maintained by the affected states; and
• Consideration of Information in Agency's Possession:  Expressly authorizing FWS and NMFS to consider information that is readily available in the relevant agency's possession at the time it makes a 90-day finding.

In addition to the above procedures, the proposed rule would also establish various standards and considerations, including a proposed "substantial information" standard for listing related decisions, and a proposed list of factors that may be considered when determining how to proceed on a petition to revise critical habitat.

As for the impacts associated with the proposed revisions, FWS and NMFS state in the proposed rule that "[w]hile some of the changes may require petitioners to expend some time (such as coordination with State(s)) and effort (providing complete petitions), we do not expect this will prove to be a hardship, economically or otherwise."  Environmental organizations, however, do not appear to agree, as the Center for Biological Diversity has stated that the proposed regulations "would place crippling burdens on citizens filing petitions to protect species . . . ."

The 60-day comment period for the public to submit comments on the proposed rule will begin when the proposed rule is published in the Federal Register, which will likely happen later this week.