Lowell M. Rothschild and Kevin A. Ewing, Bracewell & Giuliani LLP, Washington, DC
In February, the US Fish and Wildlife Service (FWS) published a workplan that is required reading for anyone seeking to undertake project development in the United States in the next five years.
Spurred by litigation into acting on its tremendous backlog of Endangered and Threatened Species determinations and Critical Habitat designations, FWS has planned out the actions it will take every year for the next five years for 455 different species. The workplan is a guidepost to the regulated community of where and when FWS will be taking action to protect species and their habitat. These actions will impose new federal constraints on the siting and operation of development projects for years to come.
Workload driven by citizens and litigation
For those unfamiliar with the listing and critical habitat designation process, it starts with an underfunded agency beset by litigation. FWS is required under the Endangered Species Act to publish lists of species endangered or threatened with extinction "throughout all or a significant portion of their range."
FWS's listing decisions must be based "solely on the basis of the best science and commercial data available" and are not limited to species in the United States. FWS also has to review the status of each listed species every five years. These tasks – identifying species in danger of extinction throughout the world, identifying the best available science regarding their status and reviewing and re-reviewing it every five years – make for a very time-intensive process.
Compounding FWS's workload is the existence of a citizen petition process, which authorizes the public to seek the listing of a specific species. FWS has 90 days after receiving a petition to determine if it has substantial information supporting a listing. If it does, FWS then has 12 months to decide whether to list it.
What this all means is that outside parties have the ability to set a significant portion of FWS's listing agenda. By submitting enough petitions, they can keep FWS busy on the species that interest them, rather than the species on which FWS would like to focus. And that is precisely what has happened.
Third parties have solicited the listing of species that they are concerned about, either because they are concerned about the species itself or, more often, concerned about the collateral harm caused by specific categories of activities – like logging, pipeline development, or oil and gas extraction and production. In effect, these third parties are setting the course of the FWS in a direction intended to forestall specific industrial and commercial activities. And that's one of the reasons that FWS's February workplan is so important.
A large backlog of species
A second reason to focus on the February workplan is the nature of the species identified in the plan. The listing process is essentially a pyramid – a large number of species are suggested for listing by petition or other process; a fewer number reach the 12-month finding stage, and even fewer are eventually listed.
Most people don't know, though, that there are two critical categories at the top of the pyramid. One is listing, either as threatened or endangered. The other results from FWS's determination that listing is "warranted but precluded" as a result of other, higher-priority species to which FWS believes it must direct its resources.
In essence, these so-called "candidate species" are in a sort of purgatory, meeting the requirements for listing but waiting for FWS to have the resources to address them (or, alternatively, waiting for their situation to become so dire that they rise to the top of the candidate list). FWS reviews the status of each candidate species annually to see if it has risen to a level that would warrant their listing.
There is currently a large backlog of candidate species, with over 180 species warranted for, but precluded from, listing. FWS's February workplan contains actions for almost all of the candidate species. Since the workplan contains such a high percentage of candidate species, entities familiar with the listing process, who are used to a high percentage of FWS species determinations resulting in a finding that the species is ineligible for listing, are likely to see very different results from this workplan. In short, the workplan is focused at the top of the listing pyramid, not the bottom.
Given that there are currently about 2,100 listed species and that a large number of the workplan actions are frontloaded over the next two years – 171 species this year, and 84 next year – there could be a 10% increase in ESA listings by 2015.
More species listed than critical habitat identified
The last reason to focus on the February workplan is FWS's focus in the workplan on critical habitat determinations, not just listing decisions. The ESA requires FWS not only to list threatened and endangered species, but also to identify habitat that is critical to the species' recovery.
Critical habitat designation takes the form of actual maps, published with lines drawn to indicate the areas most important to a species' recovery. Federal agencies are required to consult with FWS to ensure that their activities (including authorizations and funding decisions) don't destroy or adversely modify critical habitat.
There is some disagreement about whether the identification of critical habitat provides any additional benefit to a listed species, since individual members are already protected from harm and harassment, which includes certain destruction of habitat. For this reason, and because of the significant workload required in identifying critical habitat, FWS has long resisted designating critical habitat for all listed species. Thus, there are currently many more species listed than species for which critical habitat is defined.
While there are two sides to the question of whether critical habitat designation affords additional benefit to the species, by putting a line on a map, the identification of critical habitat makes it much easier to identify when the line has been crossed. Thus, critical habitat designation makes it easier for project opponents to identify and win litigation regarding potential projects that may impact listed species.
The workplan reflects a great deal of FWS effort directed at CHD, with over 95% of the actions involving some sort of critical habitat designation – 259 final CHD decisions to be made and 179 proposed CHD designations planned. This is also a significant change from FWS's past practice.
The workplan
In short, the February workplan sets out the actions FWS plans to take with regard to 455 species over the next five years. Those of you familiar with the listing process will find the results of this workplan surprising. There will be a much higher percentage of species listed and a large amount of critical habitat designated. Much of this activity will be in geographic areas likely to hinder the development efforts of specific industries or categories of activities.
The workplan is both a wakeup call and a blueprint for action. Those hoping to avoid the listing of a particular species will not only need to be creative – as the oil and gas industry was last year in keeping the Sand Dunes Lizard off the list – but now have a timeline for when they need to complete their innovative solutions. For example, FWS will act on the Lesser Prairie Chicken, which also threatens oil and gas activities, next year.
Specific entities should also carefully examine the workplan to better understand the potential impacts from critical habitat designations. Unlike the listing decision, which is divorced from economic considerations, FWS' critical habitat designations are specifically required to take into consideration the economic impacts of critical habitat designation. Now is the time to begin to compile the economic data necessary to identify habitat too costly to be identified as critical habitat.
Finally, it is worth noting the species that aren't on the list. Given that FWS has front-loaded its activities, addressing 255 species over the next two years, the service will have little, if any, time for actions on any other species. FWS's announcement regarding the workplan states that it "anticipates initiating other listing actions within this planning horizon, particularly in fiscal years 2017 and 2018." Reading between the lines, it's clear that FWS will be quite busy during the early part of the next five years with the workplan.
Those of you with any eggs in the ESA basket are well-advised to give it a thorough review.
The workplan can be found at: http://www.fws.gov/endangered/improving_ESA/FY13-18_ESA_Listing_workplan.pdf and in sortable Excel format at http://www.fws.gov/endangered/improving_ESA/FY13-18_ESA_Listing_workplan.xlsx
For more information on the listing process or on creative ways to avoid the impacts of listing, please contact Lowell Rothschild at [email protected] or (202) 828-5817. OGFJ
About the authors
Lowell M. Rothschild is a senior counsel in the Environmental Strategies Group of Bracewell & Giuliani LLP in Washington, D.C. His environmental practice focuses on guiding project proponents through the maze of Natural Resource laws.
Kevin A. Ewing is a partner in the Environmental Strategies Group of Bracewell & Giuliani LLP.
