Oil industry groups welcome proposals to change parts of the ESA

Oil and gas industry associations welcomed the Trump administration’s proposals to revise portions of the Endangered Species Act so they are more clear and consistent. Officials from the US Fish & Wildlife Service and the National Oceanic and Atmospheric Administration jointly announced the proposed changes on July 19. Comments will be accepted for 60 days following their publication in the Federal Register in the next few days.

“We support efforts to modernize regulations under the [ESA] to improve collaboration and the efficiency of governmental decision processes, and encourage private conservation efforts,” American Petroleum Institute Senior Policy Advisor Richard Ranger said.

The ESA often has become more of a procedural marathon than a species-recovery sprint in its 45 years as a federal law, National Ocean Industries Association Pres. Randall B. Luthi observed.

“Decades of regulations have lengthened the timeframes for decisions and many courts have slowed the removal of species from threatened or endangered lists, even if scientifically based population quotas were met and exceeded. Clarifying and simplifying the ESA process will help bring offshore species recovery into the 21st century,” he said.

A spokesman for the Independent Petroleum Association of America told OGJ in an e-mail: “We’re optimistic that these modest improvements to the ESA will continue to promote the conservation of protected species and their habitats, while allowing our member companies the flexibility and business certainty needed for the safe and responsible development of America’s public lands.”

Proposals’ purpose

FWS Principal Deputy Director Greg Sheehan said the proposals aim to produce the best conservation results for species while reducing regulatory burdens. “One thing we heard over and over again was that ESA implementation was not consistent and very confusing to navigate,” he said. “We value public input and have already incorporated initial public comments we received in response to our initial notices of intent published in 2017.”

NOAA Assistant Administrator for Fisheries Chris Oliver said, “The changes being proposed today are designed to bring additional clarity and consistency to the implementation of the act across our agencies.”

Several of the proposals relate to Section 4 of the ESA, which deals with procedures for listing species, recovery, and designating critical habitat. The agencies propose revising critical habitat designation procedures by reinstating the requirement that they will evaluate areas the species currently occupy will be evaluated before considering unoccupied areas. They also propose clarifying when they may determine unoccupied areas are essential to conserving the species.

While the proposals recognize critical habitat designation is a valuable conservation tool, they also acknowledge that it is not always prudent and propose circumstances where that might be the case. FWS and NOAA Fisheries anticipate that such not-prudent designations will continue to be rare and expect to designate critical habitat in most cases, the agency officials said.

Clarifying ‘foreseeable future’

The ESA defines a threatened species as one that is likely to become in danger of extinction within the “foreseeable future.” The two agencies are proposing, for the first time, an interpretation of “foreseeable future” to make clear that it extends only as far as they can reasonably determine that both the future threats and the species’ responses to them are probable.

FWS is separately proposing rescinding Section 4(d) of the ESA, which automatically conveyed the same protections for threatened species as endangered species unless otherwise specified. This would bring its threatened species protection approach in line with that of NOAA Fisheries, which has not employed such a blanket rule. The proposed changes would affect only future listings or down-listings and would not apply to species already listed as threatened.

Under Section 7 of the ESA, other federal agencies consult with FWS and NOAA Fisheries to ensure their actions are not likely to jeopardize any endangered or threatened species “destruction or adverse modification of critical habitat.” A proposed rule change would simply and clarify the definition of this by removing redundant and confusing language but is not intended to alter existing consultation practices.

Additional proposed revisions to consultation regulations would clarify how FWS and NOAA Fishers consider proposed measures to avoid, minimize, or offset adverse effects to listed species or their critical habitat when interagency consultations are conducted, the agencies said. They also will improve the consultation process by clarifying how biological opinions and interagency submissions should be formulated.

Contact Nick Snow at [email protected].