Endangered Species Law & Policy

On October 25, 2017, the U.S. Department of the Interior (DOI) released a report entitled Review of the Department of the Interior Actions that Potentially Burden Domestic Energy identifying agency actions that potentially burden the development or use of domestic energy resources.  This report, generated in response to Executive Order 13783, identifies several costly and burdensome regulations that DOI believes hamper the production or transmission of domestic energy.  The report pays particular attention to the oil, natural gas, coal, and nuclear energy sectors, and specifically singles out the Endangered Species Act (ESA) as an impediment to the domestic energy production and transmission sectors.

The DOI report notes that conditions of approval assigned by the Bureau of Land Management for mining or resource extraction leases can be an impediment to domestic energy development, particularly where species surveys are required to comply with the ESA.  Similarly, DOI identifies both the ESA and Marine Mammal Protection Act (MMPA) as hurdles for seismic survey permits issued by the Bureau of Ocean Energy Management, and cites delays caused by awaiting ESA or MMPA authorization as an impediment to surveys that would help determine the size and location of potential energy resources on the ocean floor.

The DOI report identifies the federal consultation requirements under Section 7(a)(2) of the ESA as a burden to domestic energy development, and the DOI report recommends that the U.S. Fish and Wildlife Service (Service) create efficiencies and streamlining in the consultation process through targeted revision to regulations and/or guidance.  The report also cites efforts by the Western Governors’ Association to improve the efficacy of the ESA as efforts that DOI intends to build upon, suggesting that DOI will advocate a more state-based approach to species conservation under the ESA.  DOI notes that the Service also anticipates seeking public comment on and possibly revising the regulations that apply to Candidate Conservation Agreements with Assurances (CCAA) in the next three months.  Private parties can develop CCAAs to obtain an Enhancement of Survival permit from the Service for activities that may impact candidate species thereby providing assurances that the activities can continue if the species is listed in the future.  DOI anticipates that revision of the CCAA regulations will simplify the approval process for oil and gas projects.  Likewise, DOI notes that the Service intends to seek public comment on the revised Service Mitigation Policy and ESA Compensatory Mitigation Policy, both of which were finalized in 2016, and may thereafter revise both policies (and associated implementation guidance).  DOI anticipates that the Service will seek public comment on its 2016 mitigation policies within the next three months.  The DOI report also references other federal wildlife laws, such as the Bald & Golden Eagle Protection Act, and the Migratory Bird Treaty Act, as impediments to the development and distribution of domestic energy sources.

Concurrently with the release of DOI report, U.S. Secretary of the Interior Ryan Zinke issued Secretarial Order 3358, which establishes an Executive Committee for Expedited Permitting for energy production and transmission projects.  The establishment of the Executive Committee arises out of several Executive Orders intended to promote the domestic energy sector.