API, other groups see overreach in ESA critical habitat proposals

Federal proposals to amend portions of the Endangered Species Act would significantly reshape and further complicate the law’s critical habitat process, and unjustifiably expand two federal services’ authority to make such designations, the American Petroleum Institute and five other oil and gas industry associations said.

“Land would be designated as critical habitat even if that land is ‘unoccupied’ by the species, and contains none of the ‘physical or biological features’ required by the species,” the group said in comments submitted Oct. 9 about the US Fish and Wildlife Service and National Marine Fisheries Service’s May 12 proposals.

“Equally troubling, designations could rest on speculation about future conditions, such as estimates of future species needs and projections of local climate change impacts,” they continued. “At the same time, the proposals would vaguely define ‘adverse modification’ as the direct or indirect diminishment of the conservation value of critical habitat.”

These and other aspects of the proposals would result in much more land being designated as critical habitat, and far more activities being restricted or blocked on the basis of adverse modification determinations, the groups warned.

They said that fundamental problems which undermine the proposals include:

• An expansive approach to the designation of critical habitat and adverse modification determinations which ignores important statutory limits.

• An approach so broad that it exceeds the two services’ statutory authority and lacks scientific justification, and proposed terms which are arbitrarily vague.

• A failure by the services to acknowledge or account for the significant economic burdens which would result from the proposals.

“Substantial changes to, and narrowing of, the proposals are required as a matter of law and are warranted in the interest of sound policy,” the groups said.

The groups included the Association of Oil Pipe Lines, International Association of Geophysical Contractors, Interstate Natural Gas Association of America, Utility Air Regulatory Group, and Utility Water Act Group.

Denver-based Western Energy Alliance raised similar concerns in its own comments on the proposals (OGJ Online, Oct. 9, 2013).

Contact Nick Snow at [email protected].