COMMENTS: Endangered & Threatened Wildlife and Plants; Revisions to the Regulations for Petitions

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June 30, 2016

Dan Ashe, Director
U.S. Fish and Wildlife Service
U.S. Department of the Interior
1849 C Street, N.W., Room 3331
Washington, D.C. 20240

Eileen Sobeck, Assistant Administrator
NOAA Fisheries
U.S. Department of Commerce
1315 East West Hwy., SSMC3, Rm. 14636
Silver Spring, MD 20910

Re: Docket FWS-HQ-ES-2015-0016

Dear Director Ashe and Assistant Administrator Sobeck:

Western Governors respectfully submit these comments on Endangered and
Threatened Wildlife and Plants; Revisions to the Regulations for Petitions (81 FR 23448, April 21, 2016). We appreciate that the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (referred to collectively as “the Services”) have initiated a rulemaking to clarify the petition submission process, but are concerned with the withdrawal of several important provisions contained in the initial version of the proposed rule released on May 21, 2015 (80 FR 29286). Western Governors recommend the Services reinsert portions of the initial proposed rule that invites greater
engagement with states when implementing the Endangered Species Act (ESA
or the Act).

States should be full partners with the Services in listing, recovery and delisting decisions. This includes using state fish and wildlife data and analyses as principal sources in ESA decisions. WGA Policy Resolutions 2016-08, (Species Conservation and the Endangered Species Act); 2014-11, (Species of Concern and Candidate Species), 2014-14, (State Wildlife Science, Data and Analysis) and 2014-09, (Respecting State Authority and Expertise) memorialize relevant WGA positions in that regard.


In comments dated September 18, 2015, Western Governors expressed support for the proposal requiring petitioners to: provide a copy of the petition to affected state(s); attempt to collect any existing state data regarding the petitioned species; and include data collected from the state(s) in the petition to the Services. The Governors further expressed support for an extension of the timeline for state review from 30 days to at least 60 days.

The Services’ revision of §424.14(b)(9) (81 FR 23450) significantly departs from the initial proposal and fails to promote the utilization of state information and expertise to the benefit of species within their borders. The proposed revision now only requires the petitioner notify affected states of their intention to file a petition at least 30 days prior to submitting it to the Services.

Notice of filing without providing information contained in the petition will not improve the efficacy of the ESA. States will not know the basis of the petition, nor have an opportunity to evaluate the scientific information it is based on for completeness. Consequently, states will need to direct resources to provide all available species data – some of which may already be contained within the petition – to the Services. The Services will benefit from substantive engagement with states at the time of a petition given that all fish and wildlife and their habitat (except to the extent limited by the Marine Mammal Protection Act) are under state management authority at that time.

The April 21, 2016 revision makes the consideration of state data optional. The revision asserts that following a petition notification to a state, the Services then have “the option, in formulating an initial finding, to use their discretion to consider any information provided by the States” (emphasis added). This approach is inconsistent with the mandate in Section 6 that the Services cooperate with the states to the maximum extent practicable in implementing the ESA.

Western Governors are committed to working with the Services to improve the efficiency and effectiveness of the petition process, but calling for state data early in the process and then making its consideration discretionary offers no meaningful change to the process.

We recommend the Services reinsert language from the initial proposal that:

  • Requires state data and information be directly appended to petitions prior to the consideration of the petition by the Services.
  • Makes the consideration of state data and information by the Services in an initial 90-day finding mandatory and includes state agencies in preparing 12-month findings.
  • Requires petitioners to provide copies of their petitions to state agencies prior to submitting them to the Services.

Allowing states the ability to include relevant information and data into the petition process will improve efficiency by allowing the Services to identify and reject unsubstantiated or incomplete petitions early in the process. This would benefit the Services, states and the listed species in need of attention and resources.


Western Governors appreciate the Services’ work to refine the petition process and promote utilization of state data and expertise. We also appreciate the ongoing partnership of the Services in the Western Governors’ Species Conservation and ESA Initiative (Initiative). The petition process is one of the areas that received particular focus by stakeholders engaged in the Initiative. We would refer you to the Initiative’s Special Report and Appendix for more information.

Thank you for your attention to these comments and we look forward to continuing to work with the Services on this and other common sense improvements that will make the ESA function better for species and people.

Matthew H. Mead
Governor of Wyoming
WGA Chairman

Steve Bullock
Governor of Montana
WGA Vice Chair

cc: Gary Frazer, Assistant Director for Endangered Species, U.S. Fish and Wildlife Service
cc: Donna Wieting, Director, Office of Protected Resources, NOAA Fisheries

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