NESARC files extension request with FWS for review of Southeastern species
On November 8, 2011 NESARC sent a letter to the Fish and Wildlife Service calling upon the agency to extend the comment period for the review of 374 species in the fourteen Southeastern states of the U.S.
The current 60 day review period ends on November 28, 2011. NESARC has called for an extension of the period to 180 days, which would exted the March 28, 2012.
The text of the letter is below.
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November 8, 2011
The Honorable Kenneth Salazar
Secretary
Department of the Interior
1849 C Street, N.W.
Washington, DC 20240
The Honorable Dan Ashe
Director
U.S. Fish and Wildlife Service
1849 C Street, N.W.
Washington, DC 20240
Janet Mizzi
Chief
Division of Endangered Species, Ecological Services
Southeast Regional Office
U.S. Fish and Wildlife Service
1875 Century Blvd
Atlanta, GA 30345
Re: Request for Extension of Comment Period on 374 Species Status Review– Docket No. FWS-R4-ES2011-0049; MO 92210-0—0009
Dear Secretary Salazar, Director Ashe and Chief Mizzi:
The National Endangered Species Act Reform Coalition (“NESARC”) respectfully requests that the Department of the Interior and U.S. Fish and Wildlife Service (“Service”) clarify and extend the comment deadline for the recently announced status reviews of 374 species in the Southeast U.S. (76 Fed. Reg. 59,836), at a minimum, to March 28, 2012. In its September 27, 2011 announcement, the Service set a window of sixty (60) days for the public to review, prepare and submit comments on 374 species occurring in the fourteen Southeastern States. The unprecedented volume and scope of this multi-species status review merits a full opportunity for the public to meaningfully analyze and comment upon the status of these identified species and to prepare any response to the questions and data requests identified in the Service’s notice.
NESARC is the country’s only broad-based, national coalition dedicated solely to achieving improvements to the Endangered Species Act (ESA). NESARC members include rural irrigators, municipalities, farmers, homebuilders, forest products, energy and mining companies, and many other individuals, organizations and businesses that are directly affected by the ESA. Further, many of its individual members and organizations are located or have operations in the southeastern States that are covered by the 374 species status review.
The existing limited window for comments and information submittals on the 374 species status review jeopardizes any meaningful participation by the public on this matter and could result in an inadequate administrative record. In its Federal Register notice, the Service requested information on:
• Species biology, range and population trends (including habitat requirements, genetics and taxonomy, historical and current range and populations; and past and ongoing conservation measures for any of the identified species);
• Analyses of the application of the listing factors under Section 4(a) of the Endangered Species Act; and
• Information on physical or biological features of habitat needs for the species that, if proposed for listing, may inform a parallel or later designation of critical habitat.
A period of sixty (60) days does not provide sufficient notice and opportunity for the public to review, synthesize and develop potential analyses and information on the matters identified in the Service’s own notice. As a matter of reference, the main petitioner seeking this multi-species listing, the Center for Biological Diversity, reported that development of the petition required the work of three scientists over the course of more than one year. It then took the Service over a year to make its own 90-day finding as to whether the petition met minimal information standards. It is reasonable to expect that a similar amount of additional time will be necessary for the public to review and provide its comments and information as part of this status review. In fact, narrowly limiting the public’s ability to provide comments and analysis as part of the status review would be arbitrary and capricious and give rise to serious questions as to whether the Service has taken the appropriate steps to ensure that its decision is based on the best available scientific and commercial information as required by law.
Since the announcement of the status review, NESARC members have begun to review and determine the extent to which there are species that require submission of specific information and comments. Not surprisingly, given the scope of a 374 species status review and the minimal and summary data provided in the petition itself, that process will be extensive and difficult to complete. Moreover, that initial assessment period does not include or recognize the further work needed to prepare substantive analysis and data sets that may be submitted to the Service. As a result, several stakeholders that might otherwise provide public comments have indicated that they are unable to meaningfully participate in the limited window for input presently allowed by the Service.
An extension of time will not cause hardship to the Service with regard to the status reviews for these species. In fact, the Service’s own press release accompanying the Federal Register notice indicates that the Service’s actual work plan for the status review may extend for several years. Specifically, the Service’s press release includes a statement that:
Based on the status reviews for these 374 aquatic-dependent species, the Service will issue 12-month findings for each species and determine whether to propose them for listing. At this time, however, the 12-month findings are not scheduled to be completed within the next six years due to the priorities detailed in this court-approved work plan, unless the Service is able to combine these findings with other actions already funded and/or scheduled.
This statement is not repeated in the Federal Register notice and, to the contrary, the Federal Register notice implies that the Service is proceeding with a status review that will be concluded within the statutory 12-month finding period.
The Service is required by the ESA to make decisions based on the “best scientific and commercial data available.” If the Service’s intent is to complete the status review by September 2012, then it must allow the public sufficient opportunity to provide data and comments in a manner that does not produce an inadequate administrative record. If, instead, the Service intends to extend its own consideration of this matter well beyond a calendar, 12-month period, then it has an equal obligation to ensure that data collected does not become stale or outdated.
In either instance, good government and the Department’s own Regulatory Review Initiative dictates that the notice and request for information be extended for as long as period as possible in order to ensure that the public has a meaningful opportunity to provide responsive comments and information.. Further, given the broad scope of the species covered, reasonable accommodation and recognition of the scope of species covered by this notice and petition must be made. In fact, there is ample precedent for the Service to extend a comment period in order to ensure an adequate administrative record.
For the reasons stated above, NESARC respectfully requests that, at a minimum, the comment date for the 374 species status review be extended to a 180-day window, until March 28, 2012. Further, NESARC requests that the Service clarify its intended schedule for action on the status review in light of the inconsistency between its Federal Register notice and the accompanying press release. In the event that the Service clarifies and confirms that its 12-month findings on the 374 species petition actually will not be issued until several years from now, a further extension for the public comment period will be warranted.
In all respects, the Service should act expeditiously to extend the public comment period on the 374 species status review. Such extension will better ensure the opportunity for the public to meaningfully review this matter and, if necessary, provide relevant information and analyses.
Sincerely,
Leslie James
Chair, NESARC
cc: Representative Doc Hastings, Chair, House Committee on Natural Resources
Senator Barbara Boxer, Chair, Senate Environment and Public Works Committee
Representative Edward Markey, Ranking Member, House Committee on Natural Resources
Senator James Inhofe, Ranking Member, Senate Environment and Public Works Committee