Several members of the House of Representatives have proposed bills seeking to reform the Endangered Species Act (ESA) before the end of this legislative session. Enacted 45 years ago, the ESA was last amended in 1988. With several targeted measures, the House Western Caucus’s “Bipartisan ESA Modernization Package” includes the following key changes:
- H.R. 6356, the LIST Act, authorizes the Secretary of the Interior to promptly de-list currently endangered or threatened species based on scientific studies demonstrating that a species is recovered, while empowering states, researchers, and other groups to notify the United States Fish and Wildlife Service (USFWS) when recovery has occurred.
- H.R. 6345, the EMPOWERS Act, requires federal agencies to consult states before making the decision to list a species, and to provide an explanation to such states to the extent that a decision deviates from the state’s findings or advice.
- H.R. 6344, the LOCAL Act, declares clear statutory channels and codifies longstanding incentives for parties engaging in voluntary conservation activities by way of Species Recovery Agreements and Habitat Reserve Agreements.
- H.R. 6355, the PETITION Act, reforms the listing petition process to protect against frivolous petition filing or “petition backlogs” subjecting the USFWS or the National Marine Fisheries Service (NMFS) to litigation.
- H.R. 6364, the LAMP Act, permits the Secretary of the Interior to enter into cooperative management agreements with state and local governments, tribes, and other groups seeking to facilitate constructive interaction amongst stakeholders and federal agencies.
- H.R. 6360, the PREDICTS Act, codifies agency regulations for Habitat Conservation Plans, Candidate Conservation Agreements with Assurances, and Safe Harbor Agreements in an effort to provide certainty and incentivize cooperation between public and private entities.
- H.R. 6346, the WHOLE Act, requires consideration of all conservation measures prior to any federal actions, including actions undertaken outside of designated critical habitat.
- H.R. 6354, the STORAGE Act, excludes from critical habitat designations limited reservoir and artificial water delivery land lacking characteristics that would contribute toward species recovery.
- H.R. 3608, the Endangered Species Transparency and Reasonableness Act, requires data used by federal agencies for ESA listing decisions to be made publicly available and accessible through the Internet, while also requiring the USFWS to track, report, and make available online all funds spent responding to ESA litigation, the number of employees dedicated to litigation, and the attorneys’ fees awarded in the course of ESA litigation and/or settlement agreements. This bill also caps the hourly rate awarded in ESA citizen suit litigation based on the Equal Access to Justice Act, which limits prevailing party attorneys’ fees to $125.00 per hour.
In addition to this activity in the House, Senate Environment and Public Works Chairman John Barrasso has proposed an overhaul package requiring greater input from states on listing and de-listing decisions, recovery goals, and habitat objectives. Chairman Barrasso’s discussion draft bill, which was the subject of a committee hearing on July 17, 2018, also includes greater transparency in litigation, requiring publication of any ESA citizen suit complaint, notification of states and counties of any proposed settlements, and disclosure of attorneys’ fees paid to any person in connection with an ESA citizen suit.
If you would like copies of any of the bills or contact information for any of the sponsors, please contact Jared Mueller at firstname.lastname@example.org.
Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.