Agencies raise standards for ESA listing petitions

The U.S. Fish and Wildlife Service and the National Marine Fisheries Service (the Services) finalized a rule on Sept. 27 that sets higher standards for petitions to protect species under the Endangered Species Act.

First proposed in May 2015, the changes aim to increase the efficiency and efficacy of the petition process by requiring more thorough and specific petitions for species listings, delistings, and reclassifications. The rule largely achieves this by placing the burden of evidence on the petitioner and asks that they present a fair case for the species in question.

“A petitioner should provide a complete, balanced presentation of facts pertaining to the petitioned species, which would include any information the petitioner is aware of that contradicts claims in the petition,” says the rule. Requiring the petitioner to provide as much information as possible, both supportive and contradictory to their claims, is intended to reduce the need of the Services to spend time and resources finding information to complete the petition themselves.

The new fairness standard also applies to petitions to alter critical habitat designations for listed species.

The Services also sought to increase state agency engagement in the petitioning process through the revisions. Petitioners are now required to notify wildlife agencies in each state where the species is found of their intent to petition at least 30 days before submission. States then have the opportunity to contribute relevant information to be included in the petition and considered in the review.

“State wildlife agencies are critical partners in conserving wildlife in America and often possess the most up-to-date and relevant information on imperiled species, so making better use of their expertise makes good conservation sense,” said USFWS Director Dan Ashe in a press release.

Petitions will also be limited to one “taxonomic species” per petition, which can include subspecies or distinct population segments. This restriction is intended in part to prevent “mega-petitions,” which argue for listings and reclassifications of multiple species in a single petition.

These revisions come at a time when the Services are increasingly overwhelmed by petitions. USFWS was petitioned to list 63 species 2009; that number increased sevenfold in one year, with 451 petitions filed in 2010. Litigation over a service’s failure to review petitions by the 90-day deadline is increasingly common, and can result in hastened listing, delisting, or reclassification decisions that have not been adequately evaluated.

The Services are hopeful that these changes will improve the content and quality of petitions and the petitioning process, thereby allowing them to keep pace with incoming petitions and direct resources towards more effective implementation of ESA.

Some conservation groups, however, are not pleased with the final result, believing the new restrictions and requirements discourage citizen petitions and make the petitioning process unnecessarily difficult.

“These rules make it harder to get imperiled species the Endangered Species Act protections they desperately need, and they do nothing to address the backlog of hundreds of imperiled species that are still waiting to get the protections they deserve,” says Brett Hartl, endangered species policy director at the Center for Biological Diversity (CBD), in a press release. CBD recently filed a notice of intent to sue USFWS for failing to act on petitions to list 417 plant and animal species.

As of July 2015, USFWS determined via court settlements that listing was warranted for 170 species. Improving the petition process is necessary to bolster the Services’ capacity to review petitions on time, minimize the impetus for costly lawsuits, and allow the Services to make properly evaluated and science-based listing decisions.

The updated listing petition process will take effect October 27, 2016.

Header Image: The Southern sea otter (Enhydra lutris nereis) is listed as threatened on the Endangered Species Act. ©USFWS/Randy Wilder