November 5, 2013

PLF comments on proposed endangered species power grab

By Jonathan Wood Attorney

Yesterday, PLF filed this comment letter on a regulation being jointly proposed by the National Marine Fisheries Service and the Fish and Wildlife Service—the federal agencies responsible for administering the Endangered Species Act. The proposal concerns a rather technical issue regarding the ESA. Although the subject of the proposal may only interest wonks, the consequences for property owners, state and local governments, and industry could be significant.

The proposal is about whether the agencies can use proxies, such as modified habitat, instead of numerical take limits when regulating incidental takes. Although Congress has stated a strong preference for using numerical take limits, it has allowed the agencies to use other measures if it is impossible to establish numerical limits. The House Report for the 1982 Amendments to the ESA explained it this way:

[The ESA] requires the secretary to specify the impact on such incedntal taking on the species. The committee does not intend that the Secretary will, in every instance, interpret the word “impact” to be a precise number.  Where possible, the impact should be specified in terms of a numerical limitation on the federal agency or permittee or licensee. The committee recognizes, however, that it may not be possible to determine the number in every instance. For example, it may not be possible to determine the number of eggs of an endangered or threatened fish which will be sucked into a power plant when water is used as a cooling mechanism. The committee intends only that such numbers be established where possible.

As this legislative history explains, the agency should use numerical limitations unless it is impossible because of the nature of the species or the activity. There are many reasons why a numerical limitation would be preferable: it ensures that the agency is limiting itself to its statutory authority to regulate take and not something else; it gives the regulated party fair warning about what’s required; and it ensures that the agency imposes an enforceable standard.

The proposed regulation conflicts with Congress’ intent by allowing the agency to use standards other than numerical take limitations any time it would be more convenient to the agency. If the proposed regulation isn’t amended, these federal agencies may very well be converted into general land use regulators because the easiest proxy for an agency to define and monitor is the amount of land converted from habitat to productive use.

The proposal also authorizes the agencies to regulate “programs” if they involve future actions that are subject to the ESA. The Services consult on and regulate incidental take for actions that are authorized, funded, or executed by any part of the federal government. But the proposal adds to this case-by-case process federal oversight and regulation of “programs” that govern how these cases can proceed. The current draft suggests that what the agency was trying to do was streamline the regulatory process. If, for example, many discrete timber harvest activities raise the same ESA concerns, it makes sense to look at these issues early when plans for the class are being developed rather than repeating the process for each individual activity.

But the proposal is worded very broadly. If it isn’t clarified, it would apply to all kinds of programs in which the federal government has no business getting involved. For example, the Service would have to get involved local land use planning if some of the properties subject to the plan might be developed in ways that raise ESA concerns. The consequence will either be that the agencies will exercise a broad land use authority that Congress never intended them to have or a pointless and administratively burdensome regulatory process will be imposed on property owners and local agencies.

PLF’s comment letter addresses each of these problems in greater detail and suggests ways that the proposal could be amended to avoid or mitigate these concerns—largely through more careful drafting to ensure that the final regulation isn’t so broad.

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