Endangered Species Law & Policy

On September 27, 2016, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Agencies) published a final rule (pdf) that revises the regulations governing the Endangered Species Act’s (ESA) petition process.  According to the Agencies, the revisions are intended to improve the content and specificity of petitions and enhance the efficiency and effectiveness of the petition process to support species conservation.  The final rule, which revises 50 CFR 424.14, also clarifies the procedures by which the Agencies will evaluate petitions under section 4(b)(3) of the ESA, which establishes deadlines and standards for making findings on listings and delisting petitions for species.

The revised regulations require a petitioner to provide a complete, balanced presentation of facts pertaining to the petitioned species, including any information the petitioner is aware of that contradicts the petition’s claims.  The intent is to encourage petitioners to avoid presenting only information that supports their claims.  This same standard regarding evidence applies to critical habitat petitions.  The Agencies’ revisions emphasize that the burden of proving the merits of a petition rests with petitioners and, though it is not the Agencies responsibility to resort to independent information to fill in gaps in petitions, the Agencies can look to outside information if required.  Finally, the revisions altered some of the procedural requirements for filing petitions and eliminated the requirement that the Agencies respond to petitions within 30 days.

The Agencies published their proposed rule on May 21, 2015.  They received 347 comments in total and, after considering the issues raised, revised the proposed rule and reopened a 30-day comment period on April 21, 2016.  This final rule is the culmination of the process.  The Agencies’ aim is for these revisions to improve the quality of petitions through clarified content requirements and guidelines, which they assert will better focus the Agencies’ resources on petitions that merit further analysis.