Issues
IPAA/API Submit Comments on Prioritizing Status Reviews and 12-month Findings. This week, the Independent Petroleum Association of America and the American Petroleum Institute submitted comments on the Draft Methodology for prioritizing status reviews and accompanying 12-month findings on petitions for listing species under the Endangered Species Act (ESA). In the comments, IPAA and API note they appreciate that the Draft Methodology recognizes that the Service can only make decisions under the ESA based on the best available scientific and commercial data. From the comments:
“By giving a higher priority to species for which there is ample data currently available, the Service can correctly ensure that it does not base its ESA decisions on speculative, incomplete, or unreliable information. In addition, we strongly encourage the Service to use sound science as a fundamental tool when assigning a priority level to any species, including any decision that a species warrants the highest priority level. To that end, we also recommend that the Service remove ‘level of controversy’ as an additional consideration in the Draft Methodology, because consideration of such subjective information is contrary to the Service’s obligation to make its decisions based on the best available scientific and commercial data.”
The comments also suggest the Service’s methodology identify industry as one of the “conservation partners” with whom the Service may work, explain its methodology for prioritizing actions to down-list or delist a species in conjunction with the Draft Methodology, and describe how court-imposed deadlines will affect the level of priority the Service will assign to a status review or finding and whether the Service will use this methodology when deciding whether to enter into any settlement establishing a deadline for such a status review or finding. Read the full comments HERE.
WGA Hosts Webinar on Conflict and Litigation in the ESA. Next week, the Western Governors’ Association will host a webinar titled, “The Role of Conflict & Litigation in the ESA.” The webinar is a part of the Association’s Species Conservation and ESA Initiative, and will focus on how litigation has shaped the use and effectiveness of the ESA in recent years. The event will feature Michael Brennan of Texas A&M Institute of Renewable Natural Resources, John Leshy of U.C. Hastings College of Law and former Solicitor of the Interior Department, Jason Rylander of Defenders of Wildlife, Douglas Wheeler of Hogan Lovells LLP, and Lisa Reynolds, the Assistant Attorney General for the State of Colorado. The webinar will take place on Thursday, February 25 from 12:30 p.m. – 2:00 p.m. EST. Register for the event HERE.
Legal Community Reacts to Changes to Habitat Protection Rules. As IPAA reported on last week, the Fish and Wildlife Service and National Marine Fisheries Service have finalized several controversial updates to the Endangered Species Act that will alter how federal wildlife managers determine how much habitat is needed to protect threatened or endangered species. The changes would allow unoccupied areas to be designated as critical habitat, expand the habitat features that are to protected from “adverse modification,” and adopt a de facto moratorium on considering federal lands for exclusion from critical habitat designation.
The announcement has been met with mixed reactions, with many stakeholders in the legal community concerned about the expansion of authority these updates provide. As Parker Moore of Beveridge & Diamond PC stated in Law 360, “I think the rule is a significant expansion under the guise of discretion” and that “these restrictions will be imposed more frequently and they will be more stringent than they once were because they will be applying to areas that weren’t previously designated.”
On the issue of adverse modification, Allyn G. Turner, Of Counsel at Steptoe & Johnson LLP, highlighted in the National Law Review the changes in the new rule, stating “the level of change that might be considered ‘destruction of modification’ of critical habitat is arguably substantially different. Equally concerning, the remainder of the new definition appear to include current and future habitat features, and uses the newly defined and even broader term ‘physical or biological features.’”
Lawyers from Perkins Coie also noted the change these rules represent in JD Supra, noting that “although one of the stated purposes of the final rules and policy is to clarify these issues and provide greater predictability and transparency, the final rules and policy may in fact result in new issues and areas of controversy. The likely effect is increased and broader critical habitat designations—an expectation that even the Services acknowledge and correlate with the impacts of global climate change on species habitat and range.” The new rules are set to go into effect on March 14, 2016.
In the News
Developers dodge bullet with northern long-eared bat. JD Supra. FWS issued a final rule in January that becomes effective on February 16, 2016. It relaxes the restrictions on development. The final rule establishes a WNS Zone over all or portions of 32 states, and the restrictions apply only within this zone. Tree removal is permitted within the WNS Zone unless: (i) the activity will occur within ¼ mile of a “known, occupied” hibernacula (a cave or abandoned mine), or (ii) during the bat pup season (June-July), the activity cuts or destroys a “known, occupied maternity roost tree” or any tree within a 150 foot radius of it. Bat surveys are not required to determine the presence of hibernaculas and roost trees, but developers are required to use due diligence in making that determination. The rule is not explicit on what this must entail, but consulting databases maintained by state wildlife agencies may be sufficient.
In Idaho’s sage grouse habitat, rural airports come second. Boise State Public Radio. Seven places identified as possible long-term replacement sites for the Friedman Memorial Airport in Hailey are smack-dab in the middle of sage grouse country. The BLM updated the land use rules in greater sage grouse habitat last fall, restricting activities like oil and gas exploration and grazing. Martin says since the land use plans were approved, he’s talked to many people in Idaho about what the changes mean for them – including Hailey’s airport officials. Martin says they had good questions about the policy changes, and didn’t seem surprised to hear some of the potential sites on BLM land would likely not receive approval. Airport manager Rick Baird says they still have options for a future location – one that isn’t in priority sage grouse habitat.
Greens say new habitat rules favor developers. Courthouse News Service. Environmentalists say new federal critical habitat rules favor developers and save “only the last few acres” for endangered species. The changes come in the form of two rules and a policy revision cast by the federal agencies in charge of listing endangered and threatened species for protection. Both the Center for Biological Diversity (CBD) and the Defenders of Wildlife (DoW), frequent litigants on behalf of imperiled species, warned that the two rules and the policy change would further jeopardize species that rely on habitat protection for their survival. ” This ruling creates an enormous loophole for development and gives the U.S. Fish and Wildlife Service and the National Marine Fisheries Service room to drive a truck through and over endangered species protection under the Endangered Species Act,” Jamie Rappaport Clark, DoW President and CEO, said.
Environmentalists get to join fight over sage grouse rules. Associated Press. Federal judges have agreed to allow environmental lawyers in to legal battles being waged by rural and commercial interests in Nevada and Idaho intent on blocking new U.S. protections for the greater sage grouse. Idaho Gov. C.L. “Butch” Otter didn’t oppose granting intervener status to the three national conservation groups in the lawsuit he has filed in Washington, D.C., and the Obama administration hasn’t objected in either case. But nine Nevada counties, three mining companies and a livestock ranch
USDA joins with private partners to help monarchs, honeybees. E&E News (sub req’d). A public-private partnership is funding a three-year program to improve the Midwest habitats of the endangered monarch butterfly and honeybee. The Agriculture Department will join with private partners to invest in 84 conservation projects in Minnesota and North and South Dakota, Agriculture Secretary Tom Vilsack said. At least $500 million in private funding will supplement $720 million in federal funding for this round of grants. The monarch and honeybee project will receive $8.3 million in federal funding, along with a to-be-determined amount of private funding. Note: USDA has issued a press release.
