Sep 182015

An array of environmental and social justice groups called on the Fish and Wildlife Service and National Marine Fisheries Service to withdraw proposed regulations that would add steps to the Endangered Species Act's listing petition process.

In a letter to FWS Director Dan Ashe and NOAA Administrator Kathryn Sullivan, 175 groups said the proposed changes "would impose unprecedented restrictions on the right of citizens to petition the federal government to protect endangered species and exceed the services’ statutory authority."

But "more than that," they said that if made final, "the revisions would set a dangerous, far-reaching precedent that would undermine the rights of citizens to petition the government to vindicate their rights under an array of environmental, social justice, and other laws." The letter continued:

"[T]he fundamental right to petition federal agencies to protect the environment and human communities is particularly important in our modern society because of the federal government’s powers to create uniform national standards and prevent the undue influence of vested interests on state governments. Recognizing this fact, Congress has expanded and strengthened the right to petition beyond what is provided for in the [Administrative Procedure Act] under many laws including the Clean Air Act, the Comprehensive Environmental Response, Cleanup, and Liability Act (CERCLA), as well as the ESA."

The most significant change proposed would require petitioners to submit their petitions "to all states where the declining species is found," at least 30 days before sending it to FWS. "The petitioner must then submit any and all information received from a state as an appendix to his or her petition. The petitioner is also required to attach all information received, even if a state is hostile to the petition’s objective — e.g., because it believes that listing a species under the ESA would represent a loss of regulatory control over wildlife within its borders —and even if that information is false or deliberately undermines the petition."

In addition, "The petitioner would also be required to submit (and certify) that s/he has submitted 'all relevant information' about the species that s/he seeks to protect under the ESA, a requirement that would be virtually impossible to meet, and could cost a petitioner thousands of dollars to comply with. If the petitioner fails to comply with these new mandates and incur these financial burdens, the petition would be summarily rejected."

"Nothing in the ESA supports the imposition of such onerous mandates on a would-be petitioner," the groups said in the letter. "Nor does the language of the APA or any other environmental law suggest that a petitioner must submit his or her petition to any other entity prior to filing it with a federal agency. Herein lies the danger: Because the proposal is divorced from all statutory text in both the ESA and APA, it would be a precedent without limitation."

Among the signatories: Center for Biological Diversity, Humane Society of the United States, Greenpeace U.S.A. and Friends of the Earth. But there were many smaller groups, as well -- Juniata Valley Audubon Society, Palm Beach County Environmental Coalition, Reef Relief, Tualatin Riverkeepers and Seven Generations Ahead, to name a few.

The letter follows:


Sep 172015

The service also found that petitions for two species -- Stephens' kangaroo rat and the Cahaba pebblesnail -- did not merit further review. Stephens' kangaroo rat is listed as endangered, so the petition was to delist. The full Federal Register notice is here

More links

May 182015

Filing a listing petition would not be as easy as it traditionally has been, under a new proposal  announced today by the Fish and Wildlife and National Marine Fisheries services.

In a move that could be interpreted as a response to congressional criticism that the FWS gives state input short shrift, FWS is proposing that petitioners "solicit information from relevant state wildlife agencies prior to submitting a petition to the services [and] include any such information provided by the states in the petition," according to a joint press release sent out by email.

The requirement would apply only to petitions submitted to FWS.

The move was hailed by the Association of State and Wildlife Agencies, but environmental groups (we're just guessing here) are probably not going to like it, because the proposed rule would require that listing petitions include a "certification" that state input was sought, which could delay the submission of petitions.

[Update: Holy moly! Our crystal ball worked: The Center for Biological Diversity took just a few hours to issue a press release that said the new regulations "would place crippling burdens on citizens filing petitions to protect species as threatened or endangered under the Endangered Species Act, ultimately making it more difficult for imperiled species to get lifesaving protections."

[“These regulations are a lousy solution to a problem that doesn't exist,” said Noah Greenwald, endangered species director at the Center for Biological Diversity. “The Endangered Species Act already has a lengthy comment process that gives states ample opportunity for input. All these regulations would do is cut the public out of endangered species management and burden an already overburdened process for species to get the protection they need to avoid extinction.”]

If received, said input should be included in the petition. The proposal includes no timeline for states to provide feedback or information on petitions, but it does require that petitions be sent to affected states 30 days before they are sent to FWS.

In addition, petitions could no longer address more than one species:

"Although the services in the past have accepted multi-species petitions, in practice it has often proven to be difficult to know which supporting materials apply to which species, and has sometimes made it difficult to follow the logic of the petition. This requirement would not place any limitation on the ability of an interested party to petition for section 4 actions, but would require petitioners to organize the information in a way (on a species-by-species basis) that will allow more efficient action by the services."

The proposal is expected to be published later this week in the Federal Register.

PRESS RELEASE - May 18, 2015

U.S. Fish and Wildlife Service, NOAA Propose Actions to Build on Successes of Endangered Species Act

Initiatives will increase regulatory predictability, increase stakeholder engagement, and improve science and transparency

WASHINGTON, D.C. - Building on the success of the Obama Administration in implementing the Endangered Species Act (ESA) in new and innovative ways, today the U.S. Fish and Wildlife Service and National Marine Fisheries Service (the Services) announced an additional suite of actions the Administration will take to improve the effectiveness of the Act and demonstrate its flexibility. The actions will engage the states, promote the use of the best available science and transparency in the scientific process, incentivize voluntary conservation efforts, and focus resources in ways that will generate even more successes under the ESA.

The Endangered Species Act is an essential tool for conserving the nation’s most at-risk wildlife, as well as the land and water on which they depend for habitat. The Act has prevented more than 99 percent of the species listed from going extinct, serving as the critical safety net for wildlife that Congress intended when it passed the law 40 years ago. In addition, the Act has helped move many species from the brink of extinction to the path to recovery, including California condors, Florida panthers and whooping cranes. The Obama Administration has delisted more species due to recovery than any prior administration, including the Oregon Chub, the Virginia northern flying squirrel, and the brown pelican.

“The protection and restoration of America’s proud natural heritage would not be possible without the Endangered Species Act and the close collaboration among states, landowners and federal agencies that the Act promotes,” said Secretary of the Interior Sally Jewell. “These actions will make an effective and robust law even more successful, and will also reinforce the importance of states, landowners and sound science in that effort.”

“For decades, the Endangered Species Act has helped protect threatened species and their habitats,” said Secretary of Commerce Penny Pritzker. “The changes announced today by the Services amount to an improved way of doing business, one that advances the likelihood of conservation gains across the nation while reducing burdens and promoting certainty.”

In furtherance of ESA improvements first outlined in 2011, the Services took steps today to ensure that states are partners in the process by which imperiled species are considered for listing under the Act. The proposed change – open for public comment today – would require petitioners to solicit information from relevant state wildlife agencies prior to submitting a petition to the Services, to include any such information provided by the states in the petition.

Larry Voyles, President of the Association of Fish and Wildlife Agencies, notes, "Consistent with the intent of the ESA that listing decisions be based on the best available science, we appreciate the Service's due recognition of, and requirement to, incorporate the data and information of state fish and wildlife agencies for the formulation of listing petitions."

The changes would provide greater clarity to the public and states on what information would best inform the evaluation of a species’ status and result in better coordination with state wildlife agencies, which often have unique information and insights on imperiled species.

As part of the Administration’s ongoing efforts, the Services will also be unveiling additional proposals over the coming year to achieve four broad goals:

1. Improving science and increasing transparency. To improve public understanding of and engagement in ESA listing processes, the Services will:

  • Strengthen procedures to ensure that all information that can be publicly disclosed related to proposed listing and critical habitat rule notices will be posted online; and
  • Adopt more rigorous procedures to ensure consistent, transparent, and objective peer-review of proposed decisions.

2. Incentivizing voluntary conservation efforts. Voluntary conservation programs, such as Safe Harbor agreements and Candidate Conservation Agreements, can improve conditions for listed and at-risk species, and conservation banking can make listed species and their habitats assets for landowners. The Services will:

  • Update guidance on the use of these proactive tools to establish consistent standards; and
  • Adopt a policy promoting the expanded use of conservation banking and other advance mitigation tools.

3. Focusing resources to achieve more successes. The Services will work to focus limited resources on activities that will be most impactful. These actions include:

  • NOAA’s launch of a new initiative to focus resources on eight of the nation’s most vulnerable marine species with the goal of reducing, stabilizing, or reversing their rate of decline by 2020;
  • Proposed revisions to interagency consultation procedures to streamline the process for projects, such as habitat restoration activities, that result in a net conservation benefit for the species;
  • Updates to the Habitat Conservation Planning Handbook to make developing and permitting plans more efficient and timely.

4. Engaging the States. State fish and wildlife agencies, by virtue of their responsibilities and expertise, are essential partners in efforts to conserve threatened and endangered species. The Services will:

  • Implement the aforementioned revised petition regulations to give states an opportunity to provide input prior to submission; and
  • Update policy regarding the role of state agencies to reflect advancements in collaboration between the Services and the States.

These proposals add to other actions already in progress, such as finalizing a policy on prelisting conservation credits and on critical habitat exclusions. Efforts to make the ESA work better will also include additional future review and update of regulations and policy, consistent with President Obama’s Executive Order 13563, Improving Regulation and Regulatory Review, and is outlined in the Department of Interior’s Preliminary Plan for Retrospective Regulatory Review.

“The proposed policies would result in a more nimble, transparent and ultimately more effective Endangered Species Act,” said Director of the Fish and Wildlife Service Dan Ashe. “By improving and streamlining our processes, we are ensuring the limited resources of state and federal agencies are best spent actually protecting and restoring imperiled species.”

“The ESA has prevented the extinction of many imperiled species, promotes the recovery of many others, and conserves the habitats upon which they depend,” said Eileen Sobeck, assistant administrator for NOAA Fisheries. “But more work needs to be done on all levels. We need everyone's help locally and globally to reverse declining populations and lift species out of danger.”

In the last six years, almost two dozen species have either been recovered and delisted, or are now proposed for delisting. There have also been more than a dozen imperiled species that were candidates for listing under the Act that have been conserved through proactive efforts and no longer require consideration for listing. They include the Bi-State population of the greater sage-grouse, the Montana population of arctic grayling, and the Coral Pink Sand Dunes tiger beetle.

The effort will focus on recovering species and strive to make administrative and regulatory improvements. The Services are not seeking any legislative changes to the Act, because the agencies believe that implementation can be significantly improved through rulemaking and policy formulation.

The Endangered Species Act was enacted in 1973 to protect plants and animal species threatened with extinction. Many of the regulations implementing provisions of the ESA were promulgated in the 1980s and do not reflect advances in conservation biology and genetics, as well as recent court decisions interpreting the Act’s provisions.

For more information on the proposed ESA petition regulations, go here. Public comments on the proposed rule will be accepted on or before 60 days following its publication in the Federal Register. The rule is expected to publish in the Federal Register later this week.