September 30, 2016
On September 26, 2016 the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) released final rules governing how a member of the public may petition FWS and NMFS to list a species under the Endangered Species Act (ESA).
First enacted in 1973, the ESA is the federal government’s primary mechanism for protecting fish and wildlife formally “listed” as threatened or endangered. Under the ESA, a member of the public may petition the government to list, delist, reclassify or revise critical habitat for a species under the ESA. In 2011, the federal government began efforts to revise the ESA petition process in order to make the process more effective, transparent and easier to implement. According to a recent NACo analysis of FWS data, 99.4 percent of counties across the United States are home to at least one endangered species.
Among other significant changes under the final rule, a petitioner will now be required to notify each state wildlife agency where the subject species occurs. Petitioners must notify states at least 30 days before submitting a petition to the federal government. The final rule also limits petitions under the ESA to no more than one species per petition. Though a petition may only address members of a single species, it may still address multiple subspecies or distinct population segments.
As members of the National Endangered Species Reform Act Coalition (NESARC), NACo and the Western Interstate Region submitted comments on the proposed rule in September 2015 and again in May 2016. The comments encouraged FWS and NMFS to ensure that counties as well as states were notified by the petitioner at least 90 days before submission of a petition under ESA. The comments also requested that NMFS and FWS require petitioners to share all data that is central to the petition with states and counties and allow states and counties to provide substantive comments to the petitioner, FWS and NMFS for consideration as a part of the petition review.
FWS and NMFS responded that additional requirements to notif