ESA Watch: End of Year Report

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ESA Watch: End of Year Report

The IPAA team continues to advocate for the appropriate and effective use of the Endangered Species Act (ESA), balancing the protection of critical species and habitats with economic development and sound science. In 2017, these efforts continued as President Trump and his administration took office, which resulted in a substantial change in the dynamic in Washington. This tidal shift, one that ebbed and flowed with the appointment of new agency and administration officials and newly-fueled discussions among policymakers, caused the legislative process to slow in pace. Looking to the New Year, we expect this pace to quicken as department appointments take hold and the administration and Congressional agenda surrounding ESA activity moves forward.

Below, we take a look back at some of the top ESA issues from 2017 and delve into what we will be monitoring in 2018.

A Look Back at 2017

  • Greater sage-grouse management plans continue to make headlines. This year, the battle between state and federal management over the Greater sage-grouse heightened as Interior Secretary Zinke brought the issue center stage, calling for a review of Obama-era conservation plans. In June, Zinke assembled a team with representatives from the U.S. Geological Survey, Bureau of Land Management and U.S. Fish and Wildlife Service to study the 2015 plans and make recommendations. Zinke said the purpose of the review was to strengthen sage-grouse conservation while improving collaboration between state and federal governments. In August, the federal review team announced a number of habitat-related changes, such as allowing states to determine their own population objectives and removing the boundaries of sagebrush focal areas. IPAA and the American Petroleum Institute issued official comments in December on the proposed plans, outlining recommendations for BLM to consider as it looks to make any amendments to the existing plans, including a comprehensive and unbiased review of all available scientific literature on the Greater sage-grouse. Officials continue to weigh in on the matter, particularly those out West, and a final directive is expected in the coming weeks.
  • Migratory Bird Treaty Act needs updating. The Migratory Bird Treaty Act (MBTA) has been in the spotlight this year as representatives in Congress made strides to update the Act’s language to provide greater clarity. The issue surrounds whether “take” of migratory birds should be interpreted as incidental or intentional, opening the door for input from conservationists and industry stakeholders. The House Committee on Natural Resources passed the SECURE American Energy Act, which includes an MBTA amendment by Rep. Liz Cheney. The amendment updates the MBTA so that “the law does not prohibit any activity ‘proscribed’ by Section 2 ‘that is accidental or incidental to the presence or operation of an otherwise lawful activity.” In November, IPAA Senior Vice President of Government Relations & Political Affairs Dan Naatz co-penned a column in the Casper Star-Tribune weighing in on the issue, stating Rep. Cheney’s amendment “attempts to guard against misuse of the law” and adopting it would ensure the MBTA is applied according to “its original purpose.” IPAA is continuing to monitor the issue and educate lawmakers on the need for this reform to move forward.
  • American burying beetle lawsuit. IPAA filed a lawsuit in September against the U.S. Fish and Wildlife Service in the U.S. District Court for Eastern Oklahoma over the Agency’s missed deadline for response to a delisting petition of the American burying beetle. IPAA along with the American Stewards of Liberty filed a Notice of Intent to sue the Service in February and, after receiving no action from the Service, filed the lawsuit in September. In March 2016, the Service determined that the delisting of the beetle may be warranted based on new information and analyses provided in the petition but failed to publish the required 12-month finding to announce its final determination. IPAA Senior Vice President of Government Relations and Political Affairs Dan Naatz commented, “The Service has had the time to properly review and act on our petition and it’s time to move forward. The economies and communities impacted by this listing deserve it.”
  • Update to ESA management. Beginning November 1, the U.S. Fish and Wildlife Service now requires that a representative from the respective state’s fish and wildlife management agency and an official from the Governor’s office join Species Status Assessment (SSA) teams prior to ESA listing decision-making. The new SSA team policy comes as an effort to minimize the federal government’s role over environmental policy while expanding state control. According to the memo from Principal Deputy Director Greg Sheehan, the Service is required to “coordinate, collaborate, and use the expertise of state agencies in developing the scientific foundation upon which the Service bases its determinations for listing actions.” The new SSA requirement will allow Fish and Wildlife to access state-level data more efficiently.
  • Rusty-patched bumble bee gets an ESA listing. At the end of 2016, IPAA submitted comments to the U.S. Fish & Wildlife Service ahead of their listing decision for the Rusty-patched bumble bee (RPBB). IPAA highlights that the Service’s decision to consider the listing “suffers from serious data-related flaws that undermine the Service’s assertions regarding the RPBB’s population level and range and ultimately its conclusion that the species warrants an endangered listing” and a decision should not be made at the cost of economic development. Unfortunately, in January of this year, the Service amended the ESA to include the RPBB as an endangered species, effective as of February 10, 2017. The listing officially went into effect in March 2017, following a 60-day freeze on Obama-era regulations by the Trump administration. In light of this decision, IPAA created a species page to monitor the RPBB and remain up-to-date on its listing status moving into 2018.
  • Monarch butterfly status review continues. After initially beginning a status review of the species in 2014, the Service announced it would make a final determination on the listing decision of the monarch butterfly by June 30, 2019. IPAA has continued to monitor the species status closely and will continue to advocate that the monarch not be listed and that oil and natural gas operations have a proven negligible effect on the species.

 

Issues to Watch in 2018

  • IPAA comments on U.S. Fish & Wildlife Service’s Mitigation Policies. IPAA will submit comments in early 2018 on the Service’s Mitigation Policy and the ESA Compensatory Mitigation Policy, provisions that instruct officials on how to offset the effects of land development on species and their habitat. The Service is currently soliciting public comments on whether to revise the Policy or keep the directives as they are. IPAA will soon submit joint comments on the issue at the start of 2018, noting support for Mitigation Policy reform as current policy overextends the authority of the Service over species that are not listed and “imposes requirements that conflict with the statutory mandate favoring multiple use on public lands.” IPAA also notes that current policy prioritizes conservation over congressional mandates that contribute to economic and overall societal advancement. Overall, IPAA encourages the Service to consider greater state, local, and tribal input when making mitigation decisions. As it stands, the Policy compels “decisions that are based on inappropriate speculation over objective science, or decisions that do not adequately consider avoidance and minimization of project impacts.” Final comments will be published in January 2018.
  • ESA reform in Congress. Both Congress and the Trump administration are considering ESA reform as a part of a larger regulatory reform effort. Five ESA-related bills were approved by the House Natural Resources Committee over the past year and will be must-watch items in 2018. The bills each tackle small portions of the ESA, but combined would create fundamental changes. Reforms include requiring the Service to consider all data submitted by state, tribal, and local governments (H.R. 1274) and removing the 90-day and 12-month species listing decision deadlines (H.R. 717). Committee Chairman Rob Bishop (R-UT) is leading the ESA reform charge in the House, commenting “All too often, the Act has been misused to control land, block a host of economic activities important for jobs, our energy and resources infrastructure, and forest management.” In September, IPAA also submitted comments to Secretary Zinke in support of ESA reform to “turn the litigation-focused law away from a weapon yielded by litigious environmental organizations against development to a modernized tool for proactive conservation of imperiled species.”
  • Dunes sagebrush lizard a must-watch in Texas. In light of the significant oil and natural gas operations underway in west Texas, the Dunes sagebrush lizard (DSL) is set to continue to be a topic of conversation in the new year. In September, advocacy group Defenders of Wildlife conducted a report claiming sand mining operations in the region have disturbed 292 acres of the threatened species habitat and could impact up to 23,000 acres. The report followed a letter from the Texas Comptroller’s Office to the U.S. Fish and Wildlife Service in August detailing the risk frac-sand operations pose to the lizard and its habitat. The Texas Comptroller Glenn Hegar, however, says the state is taking the issue seriously and risk to the species could be overstated as it is extremely unlikely sand mining companies will conduct operations covering the entire expanse of this land. The Texas Oil and Gas Association is also coordinating with these companies to ensure minimal impact is imposed on the species and its habitat. In 2012, the Service was considering a listing decision for the lizard, but decided such an action was unnecessary following Comptroller Hager’s employing a voluntary plan in the state aimed at protecting the lizard and its habitat.
  • Lesser prairie chicken protection being considered in appropriations bill. If a new appropriations bill passes Congress early next year, the Lesser prairie-chicken could end up ineligible for any protection under the ESA. In November, a new Interior and EPA appropriations bill entered the Senate that would significantly decrease the funding afforded to the ESA, including funding that goes toward listing the chicken as threatened or endangered. This move would follow the Service’s June 2016 announcement to remove the species’ “threatened” designation, a decision made in light of a 2015 U.S. District Court ruling that overturned the threatened listing. After pushback from environmental groups, the Service announced it would reconsider the bird’s listing and extended a 90-day comment period so its status could be properly evaluated. In concert with other trades, IPAA submitted comments to the Service in January 2017 advocating against a listing for the Lesser prairie-chicken on the basis that “the best scientific and commercial information available” shows that the bird “has rebounded from historic lows” and is “better protected than at any previous time.” A decision was expected in late November, but one has not yet been announced.
  • Texas hornshell listing deadline gets extended. The U.S. Fish and Wildlife Service announced it would extend its deadline for an ESA listing determination for the Texas hornshell to no later than February 10, 2018. Just before the listing extension was announced, IPAA sent a letter to the Service encouraging it to reconsider listing the mussel. IPAA also submitted public comments on the issue asking the Service to consider the outdated nature of the best scientific data available for a significant portion of the species’ range. As stated in the comments, “Due to the uncertainty of whether the species is currently found in Mexico, which constitutes a significant portion of the species’ range, the Trades contend that there is insufficient data to warrant an endangered listing for the Texas Hornshell.”  
By | 2017-12-19T18:51:10+00:00 December 15th, 2017|Categories: Newsletters, Special Reports|

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