NACo files comments supporting new Endangered Species Act implementation rules

Key Takeaways

On February 5, the National Association of Counties (NACo) submitted comments in response to the U.S. Fish and Wildlife Service’s (USFWS) final regulations on interagency cooperation under the Endangered Species Act (ESA). The regulations were drafted and published in response to a ruling by the U.S. Court of Appeals for the Ninth Circuit in U.S. Forest Service v. Cottonwood Environmental Law Center, where the court ruled federal agencies must re-initiate ESA Section 7 consultations for resource or forest management plans when new information related to species listings or critical habitat becomes available.

As intergovernmental partners in wildlife and natural resource management, counties have a particular interest in implementation of environmental statues like the ESA. Federal agencies are required to coordinate management plans with comparable county plans. Counties may provide specific, scientific information to federal land agencies during the development of environmental analyses, as well. State and local governments can further serve as partners implementing final actions, such as infrastructure upkeep and wildlife habitat improvement projects.

When appealing the ruling in 2016, the U.S. Department of Justice wrote that the ruling imposed on the U.S. Forest Service and USFWS “potentially cumbersome procedural measures that both agencies have determined to be unnecessary to achieve compliance with the ESA.”  Counties agree with this statement because forest and resource management plans are designed to serve as broad planning documents to guide federal agencies as they analyze the impacts of specific actions. Management plans generally do not authorize specific actions. They also undergo extensive environmental analyses and legally mandated consultation to ensure compliance with various statutes, including the ESA, before they are finalized. Furthermore, any specific proposed actions on federal lands are always subject to thorough reviews under federal environmental laws.

The USFWS is accepting comments on the ESA interagency cooperation regulations until February 11. The text of the regulation and instructions for how to offer comments can be found here.