In response to "mega-petitions" seeking listing for tens of species at a time, the U.S. Fish and Wildlife Service ("FWS") recently issued new interim guidance to streamline findings on petitions under the Endangered Species Act ("ESA"). FWS' October 27, 2015 memorandum to its Regional Directors states that once finalized, the guidance will replace previous guidance issued in 1995 and 2012. FWS anticipates finalizing the guidance once it finalizes proposed revisions to its petition regulations.
The new guidance expands the use of batching notifications to both substantial and non-substantial 90-day findings. FWS will collect all petitions submitted each quarter and combine them into one quarterly Federal Register posting. For example, for petitions received in January, February and March, findings are due April 1, with notice delivered to the Office of the Federal Register in May. FWS believes that batching 90-day findings will provide for: (1) a more efficient process that will allow for completion of more 90-day findings within the statutory timeframe; (2) simplified review and approval processes; and (3) reduced Federal Register publication costs.
FWS similarly plans to batch notifications in the Federal Register of its 12-month findings. This new process will be similar to the Candidate Notice of Review ("CNOR"), which is an annual status appraisal of species that are candidates for listing. FWS, however, will publish 12-month findings biannually. FWS anticipates that the majority of 12-month batched findings will not be warranted findings since most warranted findings would be published simultaneously with a proposed rule. However, FWS recognizes that potential exceptions exist, and may include warranted findings with batch findings. Alternatively, especially complex determinations may require use of stand-alone Federal Register notices.
FWS' memorandum also includes several appendices advising FWS personnel how to make make findings and effectively batch them in accordance with the new guidance. The memorandum and appendices are available here under "Listing and Critical Habitat" in the "Guidance" section.
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