September 23, 2013

Endangered Species Act Proposed Rulemaking

Environmental Alert

On September 4, 2013, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (collectively, the "Resource Agencies") jointly proposed new regulations governing the issuance of "incidental take statements" (ITSs) under Section 7 of the Endangered Species Act (ESA). The purpose of these proposed regulations is to codify existing Resource Agency practices regarding the identification of take levels reported in ITSs. Comments on the proposed rule are due November 4, 2013.

The proposed regulations would authorize FWS and NMFS to use "surrogate" measures of incidental take (such as habitat, ecological conditions, or similar affected species) when it is not possible to identify specific take numbers. However, the preamble to the current rule concerning ITSs discusses the use of a precise number of individuals or a description of the land or marine area affected to express the amount or extent of anticipated take. This has resulted in lawsuits in which environmental advocacy groups have attempted to hold the Resource Agencies to specific standards in enumerating and authorizing take in ITSs and have challenged the adequacy of authorized take levels. The proposed regulations would clarify and set standards for the use of surrogates in ITSs.

The proposed regulations also seek to provide some clarity for programmatic ITSs. Programmatic ITSs address large-scale management programs covering a number of activities but typically do not authorize specific numbers of individuals as a permitted take because the activities carried out under the program subsequently go through separate ESA consultations in which specific take numbers are authorized. The regulations as proposed would clarify that specific numbers need not be authorized in a programmatic ITS and also would allow the Resource Agencies to include certain "reasonable and prudent measures" in a programmatic ITS that would minimize take impacts in lieu of establishing specific take levels.

In addition, new proposed ESA regulations are expected to be issued for public comment later this year to address the ESA's "adverse modification of critical habitat" standard as well as the critical habitat designation process.

Preti will monitor proposed ESA rulemaking as it develops.

For questions on this alert, contact Sharon Newman, David Van Slyke or Jeffrey Talbert of Preti's Environmental Practice Group.