Over the past year, the IPAA team has continued its efforts 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. IPAA has also updated its website with exciting educational tools, including factsheets on the ESA and Migratory Bird Treaty Act and a comments and letters section on the website.

Looking to the New Year, a new Administration, and a Republican-controlled Congress, IPAA takes a look back at some of the top issues from 2016 and delves into what we will be monitoring in 2017.

A Look Back at 2016

From new species listings to new procedural rule-makings, IPAA has been at the forefront of advocacy and education efforts around the ESA. The following provides a report of some of the major issues from the last year.

  • Rusty Patched Bumble Bee. In November, IPAA, in conjunction with API and AXPC, submitted comments to the U.S. Fish & Wildlife Service on the proposed decision to list the Rusty-Patched Bumble Bee (RPBB) under the Endangered Species Act. The comments highlighted the lack of reliable data and scientific analysis regarding the RPBB on which to base the listing proposal. The comments also urged that any potential listing decision should aim to protect the species without restricting commercial activities that have not been shown to affect RPBB population levels. The comments propose that the agency instead extend the listing decision until a number of ongoing studies conclude in 2017 and provide the best available data to address existing knowledge gaps. Last fall, Defenders of Wildlife also sent a petition to Fish and Wildlife to list the western bumble bee under the ESA, citing concerns over the impacts of disease on the bee and reduced population levels at historic sites. Going into 2017, IPAA expects to see additional proposals to list other pollinator species on the Endangered Species Act.
  • ESA Compensatory Mitigation Policy.  IPAA submitted multiple rounds of comments on the Endangered Species Act Compensatory Mitigation Policy over 2016.  In October, IPAA commented in conjunction with API, the American Exploration & Production Council (AXPC), International Association of Geophysical Contractors and Western Energy Alliance that the draft policy is too complex, would deter participation, and would make mitigation more costly, burdensome, opaque and unpredictable. The Compensatory Mitigation Policy seeks to provide a “broad umbrella policy under which more detailed Service policies or guidance documents covering specific activities involving mitigation may be issued,” as opposed to the case-by-case approach of the past. IPAA agrees with the agency’s goal of improving the efficacy and efficiency of conservation programs, but is concerned the policy will not provide the clarity, predictability, or transparency that the Service anticipates. Check out IPAA’s one-pager on the issue and our stance on the draft policy HERE.
  • Texas Hornshell Listing. In October, IPAA, API, Western Energy Alliance and the AXPC submitted joint comments to the U.S. Fish and Wildlife Service in opposition to the proposed listing of the Texas Hornshell as an endangered species. The agency has determined that the Hornshell, a freshwater mussel, is at risk due to sediment buildup, reduced water flows, and degraded water quality. As IPAA highlights, however, oil and natural gas companies do not operate in the region where the Hornshell is found and drilling operations would not interfere with its habitat. The population data for the Texas Hornshell is also largely outdated, with the best scientific data available for a significant portion of the species’ range conducted in the 1980s. Finally, the Texas Hornshell and its habitat are already protected at a much greater level than that afforded by the Endangered Species Act.
  • FWS and NMFS Draft Revision to Habitat Conservation Planning Handbook.  At the end of August, IPAA submitted comments on the joint U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) draft revision to their Habitat Conservation Planning (HCP) Handbook. The handbook describes requirements, procedures, and guidance for permit issuance and conservation-plan development. IPAA’s comments echo concerns acknowledged by the Services that the HCP process is too costly, inefficient, and results are uncertain.
  • Proposed Changes to CCAA Policy. IPAA submitted comments on the Obama Administration’s proposed changes to the Candidate Conservation Agreements with Assurances (CCAAs) policy – an important tool for conserving species and habitats.  While the proposed changes have been introduced to clarify the level of conservation effort Fish and Wildlife requires to approve a CCAA, IPAA emphasizes that these updates fail to clarify the level of effort needed, and instead “represent a marked departure from the existing regulatory framework, including new, substantive requirements that fundamentally change the focus, review and approval process required for CCAAs.” IPAA has requested the draft revised policy be withdrawn and the Service instead focus on streamlining requirements for CCAAs and incentivizing their use.
  • Burying Beetle Delisting. Following a petition to delist the American Burying Beetle in 2015, IPAA and fellow petitioners filed intent to sue Fish and Wildlife in January 2016, following the Service’s failure to announce its 90-day finding on the delisting petition. In early spring, the Service then began a 30-day comment period for its proposal to extend the American Burying Beetle Industry Conservation Plan until May 2019. Shortly thereafter, the Obama administration announced it would review the status of the beetle to determine if the listing should be removed. According to a notice, the U.S. Fish and Wildlife Service has decided against making the required 90-day finding and is instead launching a five-year status review of the species, with the intent to publish its findings in 2017.
  • Split over Migratory Bird Treaty Act (MBTA). Debate over the Migratory Bird Treaty Act and its implementation continues in Washington. At IPAA’s midyear meeting this year, Patrick Traylor, a partner with Hogan Lovells US LLP, led an interactive discussion on how the U.S. Fish and Wildlife Service has used the MBTA in enforcement actions against the energy sector as well as the Service’s recent notice of intent to create an MBTA incidental take permit program. Check out Traylor’s PowerPoint presentation from the meeting on IPAA’s ESA Watch site HERE.

Issues to Watch in 2017

Heading into 2017, IPAA is keenly focused on the need for ESA reform as its exposure to litigation forcing listing decisions continues to create new challenges for our members. Efforts to utilize the ESA to advance anti-fossil fuel measures is also likely to grow, with increased focus from opposition groups focused on using the ESA to restrict land use instead of for its original purpose of rehabilitating and protecting species. The following outlines key issues to watch moving into 2017. 

  • Mitigation Policy. In November, the Fish and Wildlife Service released its final Mitigation Policy, a policy framework for applying a landscape-scale approach for conservation gains. The final policy “integrates all authorities that allow the Service either to recommend or to require mitigation of impacts to Federal trust fish and wildlife resources, and other resources identified in statute, during development processes.” IPAA previously submitted comments on draft revisions to the policy and was joined with representatives from multiple member companies for a summer briefing on Capitol Hill to discuss the policy’s implications for the energy industry. The group expressed concerns over the expansiveness of the proposed changes and requested the Service withdraw the policy unless re-proposed with significant changes. IPAA’s team is assessing the impacts of the new policy given the broad nature of the changes and will continue to monitor the issue into 2017.
  • Center for Biological Diversity Monarch Butterfly Lawsuit. In 2014, Fish and Wildlife announced the start of a status review of the Monarch Butterfly following a petition from the Center for Biological Diversity, the Center for Food Safety, and the Xerces Society to list the pollinator under the ESA.  In March 2015, IPAA and API submited joint comments to Fish and Wildlife in response to a request for comment on the status of the butterfly, highlighting the negligible impact of oil and gas operations on the species. On January 5, 2016, the Center for Biological Diversity and Center for Food Safety threatened to sue Fish and Wildlife because the agency had exceeded the scientific review period required by law for a 12-month finding.  Six months later, the Service announced an agreement with both groups, requiring the agency to propose protection for the Monarch Butterfly, deny protection, or assign it to the “candidate” waiting list for protection by June 30, 2019. This pollinator has an expansive habitat range and a listing or habitat designation stands to have substantial impacts on a number of industries.
  • Lesser Prairie Chicken Saga Continues. This September, the Center for Biological Diversity and others petitioned to relist the Lesser Prairie Chicken, despite the removal of the species from the threatened list in mid-2016.  Fish and Wildlife has since announced it will be moving forward with a 12-month review of the bird’s status before again determining its listing decision. According to the Service, the “petition presents substantial scientific or commercial information indicating that listing the Lesser Prairie Chicken may be warranted.” Senate Environment and Public Works Committee Chairman Jim Inhofe (R-OK) expressed his frustration with the decision, stating “It is important that we let the multi-state conservation plan have time to work before bringing down the full force of the Endangered Species Act.” The chairman highlighted he is confident the incoming administration will find the state and local conservation efforts underway are sufficient to protect the bird, but more fights ahead for this long-debated species.
  • Greater Sage-Grouse Management. Guidance documents for how the federal government will manage Greater Sage-Grouse habitats continue to garner mixed opinions, with many in industry concerned with the limitations the plans will place on land use and economic development. Under the instruction memorandums released by the agency, the Bureau of Land Management will prioritize oil and gas leasing outside of General Habitat Management Areas and Priority Habitat Management Areas, with the agency considering leases in priority areas only after all other options have been considered.  BLM will also factor in parcels’ distance from higher-value sage grouse habitat, such as active leks or winter range areas, giving priority to parcels in lower-value habitat. As E&E News reports, “Congressional Republicans are pushing legislation to give governors the authority to essentially veto the federal plans, while GOP leaders in both chambers have attached amendments to Interior appropriations bills that seek to undermine grouse protections.
  • ESA & Climate Change. The 9th Circuit Court of Appeals has ruled that the federal government may list a species as “threatened” based on climate models showing possible future habitat loss, even if the species’ population is currently healthy. The ruling could have major implications on future ESA listing decisions, including allowing federal agencies to make listing determinations without presenting scientific evidence on how the species is currently threatened or endangered. The Court ruling hinged on a decision by the National Marine Fisheries Service to list the Pacific bearded seal as “threatened,” even though it is currently listed as a species of “Least Concern” by the International Union for Conservation of Nature. The NMFS projected that the seals’ winter sea-ice habitat in Alaska and Russia would decline as a result of climate change, thus endangering the species by 2095.
  • FWS Releases Species Listing Work Plan; Groups File for More Listings. This fall, the Fish and Wildlife Service issued its 2017 species listing work plan, providing insight into new listing decisions moving forward. The plan outlines 30 candidate species and 320 additional species put forward by petitions from outside groups. Meanwhile, in a report celebrating its 2011 settlement with the Service, WildEarth Guardians pledged that “litigation will continue to be an important tool in Guardians’ work going forward as long as the Service continues to undermine the ESA.” The Center for Biological Diversity has also announced plans to sue the agency to force listing decisions over 400 species. To tackle its backlog of potential listings, Fish and Wildlife adopted a new method of prioritizing status reviews for petitioned species, yet conservation groups have announced they are emboldened by the election to ramp up their litigation efforts into 2017.
  • BLM Resource Management 2.0. The Bureau of Land Management (BLM) has updated its Resource Management Planning 2.0 initiative, with a final rule on resource management now going into effect on January 11.  The plan and associated rule is meant to encourage public involvement and emphasize the use of quality data and technology in the management of public lands. As IPAA commented in May 2016, however, the planning rule introduces significant uncertainty into the resource management planning process by proposing numerous provisions that create ambiguous standards or otherwise expand agency discretion. BLM anticipates the release of a draft land use planning handbook in 2017.
  • NMFS proposes listing Gulf of Mexico Bryde’s whale. This month, the National Marine Fisheries Service proposed to list the Gulf of Mexico population of Bryde’s whale as endangered. The proposal follows a 2014 petition from the Natural Resources Defense Council, which said the Gulf of Mexico population was a distinct subspecies and was endangered due in part to habitat destruction and inadequate regulatory measures. IPAA commented on the petition in 2015, noting that the Gulf of Mexico population of Bryde’s whale is not a distinct subspecies and that the Gulf of Mexico population can and does move freely in and out of the Gulf. The National Marine Fisheries Service is accepting comments until January 30, 2017, which leaves the decision in the hands of the Trump Administration. IPAA will continue to monitor the issue as it develops.

Efforts & Education Continues

IPAA is continuing its educational outreach through its ESA Watch campaign and website www.ESAwatch.org, working with the Administration and Congress to educate them on the need for ESA reform and appropriate use of the law to balance the protection of species and economic development. IPAA looks forward to continuing engagement on the ESA into 2017 and will continue to serve as a leading resource for those monitoring this critical issue.