Changes Proposed to Endangered Species Act

The Obama Administration and the House Natural Resources Committee have each proposed changes to the Endangered Species Act (ESA). The changes proposed by the House Natural Resources Committee focus on giving additional transparency to the process of listing decisions by making the data used by the agencies publicly available. Additionally the House Natural Resources Committee’s proposed changes would affect litigation surrounding the ESA by requiring disclosure of the funds and personnel used to respond to litigation and limit the amount of attorneys’ fees recoverable under the Act. The Obama Administration’s proposed changes would affect any federal action, typically the permitting of areas for industrial use, that requires Agency approval under the ESA. These proposed changes would allow for an expanded definition of critical habitat and require a more stringent analysis of whether the proposed federal action would affect species’ recovery.

In April, the House Natural Resources Committee approved four bills that would significantly modify the Endangered Species Act (ESA) to promote data and cost transparency and species recovery.

1. The 21st Century Endangered Species Transparency Act (H.R. 4315), [enhanced version available to lexis.com subscribers], would require federal agencies to make the data used in making ESA listing decisions available to the public on the internet.

2. The Endangered Species Recovery Transparency Act (H.R. 4316), [enhanced version available to lexis.com subscribers], would require U.S. Fish and Wildlife Service (FWS) to track, report to Congress and make available to the public online: (1) funds expended to respond to ESA lawsuits; (2) the number of employees dedicated to litigation; and (3) attorneys fees awarded in the course of ESA litigation and settlement agreements.

3. The State, Tribal, and Local Species Transparency and Recovery Act (H.R. 4317), [enhanced version available to lexis.com subscribers], would require: (1) the federal government to disclose all data used prior to any ESA listing decision to any affected states; and (2) mandate the inclusion of data provided by the states, tribes, and local governments in the “best available scientific and commercial data” used by the federal government in those listing decisions.

4. The Endangered Species Litigation Reasonable Act (H.R. 4318), [enhanced version available to lexis.com subscribers], would place a cap on attorneys’ fees of $125 per hour that would make the ESA consistent with other federal laws.

On May 12th, the Obama Administration proposed two new rules to expand the scope of the ESA relating to critical habitat. Currently, federal agencies are required to consult with FWS or National Marine Fisheries Service and get the agencies’ approval that the federal action will not jeopardize the continued existence of any listed species or result in the destruction or adverse modification of critical habitat of the species. This requires consultation for most federal permits and approvals. The proposed rules would expand the definition of lands that can be identified as critical habitat and limit any development that would be considered an “adverse modification” to that critical habitat.

The current rule allows for the designation of habitat currently occupied by the species and extends to unoccupied areas only if the currently occupied areas are insufficient for the recovery of the species. The proposed rule would remove this limitation that the agencies describe as “unnecessary and unintentionally limiting.” The proposed rule would expand the definition of “critical habitat” to allow the designation of lands never occupied by the species and without the features needed for the species to recover if the agency believes the critical features will develop over time.

Regarding the determination of “adverse modifications,” the agencies currently analyze whether, after the federal action, the critical habitat will remain functional to serve its intended role in the recovery of the species. The proposed rule would require the agencies to determine instead whether the action will “appreciably diminish” the conservation value of the critical habitat. The agencies would consider such factors as whether recovery of the species will be delayed, less likely, or more difficult. The change from functional to appreciably diminished could have a wide-ranging effect on the future of federal permitting actions for various industries.

By Laura Hoffman

Laura Patterson Hoffman focuses her practice in the areas of environmental and regulatory law, energy, tort and business litigation. Hoffman regularly assists energy producers with compliance issues and litigation relating to the Clean Water Act and other environmental permitting issues. She has practiced in federal and state courts and before the Kentucky Office of Administrative Hearings. Hoffman has also engaged in extended negotiations with the Kentucky Cabinet for Energy and Environmental Protection and various environmentalist groups. She also has experience in groundwater contamination litigation and contractual disputes.

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