On October 27, 2015, the U.S. Fish and Wildlife Service (“Service”) issued a memorandum to the Service Regional Directors announcing new guidance to streamline findings on petitions to list species under the Endangered Species Act (ESA). The stated purpose of the guidance is to “streamline petition findings while ensuring [the Service] conducts an adequate review of petitions.” The memorandum clarifies that this guidance is “interim guidance” until the Service’s amendments to its petition listing rules are final. Once finalized, the guidance will supersede previous guidance issued in July 1995, November 1995, and November 2012.
The interim guidance consists of the guidance itself and several updated appendices made available concurrently with the Directors’ memorandum. These include:
- Procedures for Making 90-day Petition Findings Under ESA Section 4(b)(3)(A) and Publication of Findings in the Federal Register (updated October 20, 2015).
- A Petition Acknowledgment Letter Template (updated November 5, 2015).
- Guidance on making 90-day Petition Findings Under ESA Section 4(b)(3)(A) (updated October 20, 2015).
- Petition Review Form (Updated November 5, 2015).
- Summary of Court Rulings Related to 90-Day Findings (Updated October 20, 2015).
- Guidance on Batching 90-Day Findings for Publication in the Federal Register (Updated October 20, 2015).
- Batched Federal Register Notice Template (Updated November 5, 2015).
- Briefing Paper Template (updated November 5, 2015).
This guidance follows a flurry of listing actions that have occurred over the past five years. The 2011 listing settlement arose out of the Service’s failure to process petitions in accordance with the timeframes set forth in ESA Section 4. Since then, the Service has, in accordance with the court-ordered deadlines, published findings on the hundreds of species included in the settlement. All the while, environmental organizations have continued to file “mega-petitions” for tens of species at a time, again triggering the Service’s obligations under ESA Section 4. Notably, the proposed amendments to the petition listing rule referenced in the Directors’ memorandum would prohibit the filing of mega-petitions and limit petitions to one species at a time, presumably to avoid the Service falling behind on its Section 4 listing obligations. This guidance serves to further advise Service personnel on how to effectively make findings on petitions in accordance with both the timelines and the substantive aspects of ESA Section 4.