By Marc Campopiano and Max Friedman
On May 18, 2015, the federal agencies that oversee the enforcement of the Endangered Species Act, the US Fish and Wildlife Service and National Marine Fisheries Service proposed significant changes to the process by which parties can petition for the listing of species as protected under the Act or the designation of critical habitat.
The proposed new rules, for which 60 days of public notice and comment will commence upon their publication in the Federal Register, would amend the governing regulations at 50 CFR 424.14 in two key ways:
- First, petitioners (often environmental groups) would need to solicit information from state wildlife agencies in each state where the species occurs before they could reach out to the federal services overseeing the ESA to petition for listing. Petitioners to the FWS (but not the NMFS) would need to certify that a copy of the petition was provided to the various relevant state agencies, and include any data or comments provided by the state agencies in response.
- Second, the new regulations would bar multi-species petitions, which environmental groups have often used, but which the agencies argue can make it difficult to discern which supporting materials apply to which species, rendering petitions difficult to follow. Petitions would also be required to demonstrate that the proposed species is in fact a species, subspecies, or distinct population within the meaning of the ESA. Petitioners would also be required to include a detailed description of the species’ range and a certification stating that they had gathered and attached all readily available relevant information regarding the species. The agencies also previewed additional regulatory changes that are expected in coming months. These include rules streamlining interagency consultation procedures and the preparation of habitat conservation plans, expanding conservation banking and other mitigation tools, and further increasing collaboration among state and federal agencies.
The stated goal of these changes is to improve the content and specificity of petitions and to enhance the efficiency of the entire process.
The agencies also previewed additional regulatory changes that are expected in coming months. These include rules streamlining interagency consultation procedures and the preparation of habitat conservation plans, expanding conservation banking and other mitigation tools, and further increasing collaboration among state and federal agencies.
 The federal agencies are actively seeking comment on whether or not to extend these proposed rules to the NMFS, but currently do not intend to do so, due to the difficulty for state agencies of coordinating with respect to marine species and wide-ranging anadromous species.