ESA Petition Burden |Reduced After Feedback


WASHINGTON (CN) – Burdensome rules proposed last year regarding the petitioning process for listing imperiled species will be stepped back in response to public feedback, the federal listing agencies announced. The U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service plan to jointly issue the revisions Thursday and reopen the comment period on the May 2015 proposal.
     “Over the last year we have listened closely to the public, to states and to organizations on how to best improve petition regulations,” Dan Ashe, the U.S. Fish and Wildlife Service Director, said. “These revisions reduce some of the burdens the initial proposal placed on petitioners, yet retain the proposed improvements to the quality of incoming petitions and ensure better working partnerships with states, which are critical in conserving America’s imperiled species.”
     Under the Endangered Species Act (ESA), the public, including individuals and organizations, can petition the listing agencies on behalf of at risk species. The Services then decide if the petition has merit, and if so, issue a review of the status of the species, then a proposal to list, leading to the final determination to list the species as threatened or endangered under the ESA, or to change the status of a previously listed species by uplisting (from threatened to endangered), downlisting (from endangered to threatened), or delisting (taking the species off the list). This process also applies to determining critical habitat for listed species.
     Since 2011, the agencies have implemented a series of actions regarding the process for listing and critical habitat determination that have not been met favorably by environmentalists. The 2015 proposal was called a “boneheaded” move by the Center for Biological Diversity (CBD), a prolific petitioner and litigant on behalf of endangered species, which maintained that the new requirements placed crippling burdens on citizen petitioners.
     “This special interest-driven proposal was designed to make it harder to get imperiled species the protections they desperately need under the Endangered Species Act,” Brett Hartl, CBD endangered species policy director, said. “Today’s changes reduce the damage, but this whole proposal should still be withdrawn. It purposefully places cumbersome burdens on the public to discourage their participation in protecting plants and animals.”
     The federal agencies have longstanding backlogs of species waiting for determinations, and they have sought to include state wildlife agencies more directly in the process. One of the most onerous proposed changes to the petitioning process required petitioners to acquire and include all the information state wildlife agencies had on the petitioned species within the petition. “From the many comments received, we realized the complexity of attempting to contact and gather data from multiple state wildlife agencies would likely have been overly burdensome,” the agencies conceded. Now, petitioners must send a letter to the state agencies at least 30 days before submitting the petition, and the state agencies can provide the Services with the required information.
     The agencies also removed the requirement for petitioners to include “all relevant information” on the petitioned species as being too difficult for petitioners to certify, and clarified that the “one species per petition” requirement could include subspecies and multiple distinct population segments.
     Curiously, one of the revisions concerns the Paperwork Reduction Act (PRA) requirement, which was not addressed in the 2015 proposal. The PRA is designed to limit the paperwork burden on the public when information from the public is required.
     “The failure to comply with the Paperwork Reduction Act wasn’t a mistake or harmless error that can be glossed over, it was a deliberate end-run around the law,” Hartl claimed. “It is completely implausible that the one time that the Services sought to impose an information-collection burden on the public, that it simply forgot to comply with this standard requirement. Every other regulation they have published over the past 20 years includes an evaluation and discussion of their compliance with this law.”
     The revisions to the proposal now include a PRA control number requirement, and the agencies request comments on the PRA burden estimates.
     Comments on the PRA requirements and on the proposal’s revisions are due May 20. Previously submitted comments do not need to be resubmitted, the agencies said.

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