By: Chris MarklundAustin Igleheart | NACo

September 30, 2016

Original source

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 notify county governments as well as state governments and share applicable data with them would create unrealistic and burdensome requirements for the petitioners, expressing its belief that a simple notice to impacted states of intent to file a petition was sufficient.  Though FWS and NMFS encouraged petitioners to coordinate with states, FWS and NMFS noted their belief that it is the services’ responsibility to coordinate sharing of petition data with states.

In light of the significant impacts ESA listings can have on county governments, residents and economies, NACo disagrees with FWS’ and NMFS’ assertions that notification and coordination with impacted county governments would create undue burdens on petitioners.  NACo policy calls for county governments to be treated as cooperating agencies with full rights of coordination, consultation and consistency to work jointly with federal agencies to list species and designate critical habitat and will continue to advocate for the robust inclusion of the county voice in all ESA listing and delisting decisions.

Per federal law, the new regulations will go into effect on October 27, 2016, 30 days after they were made publicly available and published in the Federal Register.

Additional Resources:

Contact: Chris Marklund at cmarklund@naco.org or 202.942.4207

Chris Marklund is NACo’s Associate Legislative Director for Public Lands. He is also the Western Interstate Region Liaison.