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By Alan Kovski
Oct. 4 — Environmental advocacy groups are expressing relief that changes in the petition process for the Endangered Species Act did not greatly increase the obligation for research by petitioners seeking protections for plants and animals.
The final version of the rule, published Sept. 27 by the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration, limited each petition to one species, ending the multispecies petitions that have troubled many critics of the process.
That was an unnecessary change, but at least it was not the “enormous burden” of research that would have been imposed by the proposed version of the rule, said Rebecca Riley, a senior attorney for the Natural Resources Defense Council.
The first proposed version of the rule would have required petitioners to pull together information from state agencies to provide a more extensive factual basis for federal agency review. The Fish and Wildlife Service and the oceans administration backed off on that proposal, saying it would require more information than necessary for an initial 90-day review of a petition.
The agencies also backed off because it would have conflicted with the Paperwork Reduction Act, said Brett Hartl, endangered species policy director at the Center for Biological Diversity.
Hartl said the real test of the rule will come as the agencies apply their requirements to petitions. The question, he said, is do they approach this in good faith?
The agencies could game the system, dragging out the process with steps as telling a petitioner that the submitted information is inadequate, Hartl said. “I always worry about the day when a hostile administration runs the Fish and Wildlife Service,” he told Bloomberg BNA.
The new limitation of one species per petition will be less efficient in some cases, but it should be manageable for large nonprofits, he said. Likewise, the new requirement that affected states be given a 30-day advance notice of a petition filing is manageable for such groups, in his view.
According to Hartl, the advance notice requirement could be a problem for individuals, including scientists who may know a great deal about a species but may not know the various state agencies within the supposed range of a species.
The Fish and Wildlife Service could provide potential petitioners with a contact list for state agencies, and if the service will not do it, the Center for Biological Diversity might, Hartl said.
An attorney who has often represented industry clients on endangered species subjects said the Fish and Wildlife Service and the oceans administration missed an opportunity to shift the fact-finding burden back to where it belongs.
The Endangered Species Act requires petitioners to provide “substantial information” that listing may be warranted. If the federal agency receiving that information agrees, then a 90-day finding can be issued that initiates an in-depth 12-month review of available information by the agency.
The proposed rule would have held petitioners to that “substantial information” obligation by requiring more data—a more sensible approach than a petition containing what might be one-sided information selected to manipulate a federal agency, said Parker Moore, an attorney with Beveridge & Diamond P.C.
Instead, the final rule keeps the status quo in terms of fact-finding on a species. The resources and time of the federal agencies are strained to cope with the many petitions, when a greater burden of proof should be placed on petitioners, Moore said.
“In my view that is exactly what the initial proposed rule was targeted to address,” he told Bloomberg BNA.
Moore welcomed the requirement for one species per petition. That is a good change that will help prevent the blurring of supporting data, when it is unclear in a multispecies petition how the supporting information applies to a particular species.
Local government agencies, strained like the federal agencies to cope with Endangered Species Act issues, expressed a similar preference for requiring petitioners to better support their petitions.
The Arizona Association of Conservation Districts filed a comment letter in response to the initial proposed rule that said the proposal for petitioners to gather more information could “dramatically reduce future occurrences of frivolous endangered species petitions, and relieve the service and the public of excessive workloads that in the past have resulted in misguided court settlements.”
The court settlements most notably have included a pair in 2011 in which the Fish and Wildlife Service agreed to a schedule for deciding on 251 species, including the greater sage grouse.
“The service in the past has repeatedly proposed rules in the Federal Register that relied on petitioners’ errant citations of pseudo-scientific literature that misrepresents its own citations,” the Arizona association said. “For example, the listing of the western yellow-billed cuckoo relied on a chain of five levels of misrepresented citations.”
Hartl agreed some petitions are not as well done as they should be, but said the 90-day review process could kick out meritless petitions. One out of every two petitions has led to a finding that a listing is warranted, an indication that a lot of petitioners are doing a good job, he said.
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The final rule on listing petitions under the Endangered Species Act is available at http://ow.ly/Uf9K304Caw2.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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