United States: Administration Proposes Improvements To ESA Petition Process

Last Updated: March 4 2016
Article by Joseph B. Nelson and Jordan A. Smith

The U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) are currently reviewing comments received on proposed revisions announced last spring to the Endangered Species Act (ESA) petition process. These proposed regulations would impose additional procedural and substantive requirements on the submission and consideration of petitions seeking to list, delist, or reclassify species or modify designated critical habitat.

Listing determinations are central to the ESA because listing a species as either threatened or endangered entitles it to federal protection, including the take prohibition of section 9 and the consultation requirements of section 7. The proposed rule would make much-needed reforms to the existing petition process, including requiring more rigor and scientific documentation in the submission of petitions, increasing the role of state governments, and imposing a one‑species‑per‑petition rule.

In recent years, the petition process has taken on an increasingly significant role under the ESA. The act currently requires the FWS and the NMFS to make decisions about whether to list, delist, or reclassify a species as threatened or endangered solely on the basis of the "best scientific and commercial data available." Multispecies petitions do not differentiate among the data cited to support the listing of each species. As a result, the FWS and the NMFS have been forced to expend limited agency resources to evaluate these mega-petitions.

Further, if the FWS and the NMFS miss their statutory deadlines to finalize such review, which often occurs, environmental groups file lawsuits against the agencies for violation of the statutory timelines. In doing so, the environmental groups gain a seat at the table with the agencies and dictate the timing of petitions considerations. It is this type of rigged petition and sue-and-settle practice that has led to the multispecies listing settlement through which the present administration has increased the endangered and threatened species list by more than 20 percent since the end of 2011.

The FWS and the NMFS now are attempting to address these problems by proposing important changes to the petition process. Specifically, the proposed rule would ensure the following:

  • One species at a time. This change would end a strategy favored by the environmental community in recent years by which a single petition covering tens, if not hundreds, of species is submitted, but can never be adequately analyzed within the statutorily required time frames.
  • Consultation with states on FWS species. For species or critical habitat under the FWS's jurisdiction, the petitioner must submit a copy of the petition to the appropriate fish and wildlife management agencies in states where the species occurs at least 30 days before submission of the petition to the FWS and include any comments received from the states as part of the petition submittal.
  • Disclosure of positive and negative information. Petitions must identify all relevant, reasonably available information, including information that may support a negative finding (i.e., that the requested action is not warranted).
  • Restarting review time frames for supplemental information. The petitioner's submission of supplemental information after a petition has been filed would be treated as a new petition that combines the original and supplemental information and restarts the statutory time frames for review.
  • Higher standards for subsequent petitions. Petitions seeking the revision of a prior determination (e.g., a petition for reclassification or delisting of a previously listed species) would be subject to a higher standard. Such subsequent petitions would be required to present sufficient new information or analysis that was not considered in the prior determination on the species or critical habitat. Further, the rule creates a presumption against a revision to the prior determination, such that a warranted finding could only be made on a subsequent petition if the FWS determines that a reasonable person conducting an impartial scientific review would conclude that the proposed action is warranted despite the previous determination.

The proposed rule also revises several definitions and standards applicable to the petition review process, including the following:

  • Adequacy determination for petitions. Within 30 days of receipt of a petition, the secretary of the interior must inform the petitioner whether the petition meets the mandatory content requirements. The secretary would retain discretion to reject a petition for failure to meet these requirements without making a statutory finding as to whether the requested action is or is not warranted.
  • Substantial scientific or commercial definition. For purposes of the warranted/not warranted determination, the proposed rule would define substantial scientific or commercial information to mean "credible scientific or commercial information in support of the petition's claims such that a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted."
  • Funding limitations and candidate species status. The proposed rule defines expeditious progress for purposes of the warranted but precluded finding that precipitates classification of a species as a candidate for listing. Through the proposed revision, the warranted but precluded determination could be based on the limitation of funds available for the FWS and the NMFS to conduct listing determinations after fulfillment of nondiscretionary duties (e.g., statutorily required determinations under section 4, court orders, and court-approved settlement agreements).
  • Treatment of noncomplying information. The FWS and the NMFS propose an explicit rule that they will not consider supporting material cited by the petitioner that has not been made readily available to the FWS and the NMFS by the petitioner or is not otherwise in the FWS's and the NMFS's possession.

The proposed rule received significant widespread support from the regulated community, including the National Endangered Species Act Reform Coalition, the country's only broad-based coalition of organizations dedicated to improving and updating the ESA.

In its comments, the coalition expressed support for the overall purpose of the proposed rule, while also suggesting improvements, including

  • integrating counties or equivalent jurisdictions into the petition review and comment process presently proposed for states.
  • expanding the state review and comment process to all species, rather than just FWS‑jurisdictional species.
  • ensuring that the petition and supporting information is submitted in a form that allows for public posting and access via the web.

As the administration reviews comments received on the proposed rule through the public rulemaking process, congressional lawmakers are considering legislation to codify some of the changes proposed in the listing petition rule. Many landowners and businesses with irrigation and agricultural interests have expressed support for these actions, and the National Endangered Species Act Reform Coalition encourages continued engagement with the administration and Congress on this important issue.

Previously published in Irrigation Leader

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions