November 6, 2014
Public Comments Processing
Division of Policy and Directives Management
U.S. Fish & Wildlife Service
4401 N. Fairfax Drive
Arlington, VA 22203
Re: Docket No. FWS-R9-ES-2011-0099, Policy Regarding Voluntary Prelisting Conservation Actions.
On behalf of the more than 6,000 members of the American Road and Transportation Builders Association (ARTBA), I respectfully offer comments on the draft policy regarding voluntary prelisting conservation actions issued by the United States Fish and Wildlife Service (FWS).
ARTBA’s membership includes private and public sector members that plan, design, construct and maintain the nation’s roadways, waterways, bridges, ports, airports, rail and transit systems. Our industry generates more than $380 billion annually in U.S. economic activity and sustains more than 3.3 million American jobs.
Because of the nature of their businesses, ARTBA members undertake a variety of activities that are subject to Endangered Species Act (ESA) regulations. ARTBA’s public sector members adopt, approve, or fund transportation plans, programs, or projects which are all subject to multiple federal regulatory requirements. ARTBA’s private sector members plan, design, construct and provide supplies for federal-aid transportation improvement projects. This document represents the collective views of our 6,000 member companies and organizations.
The FWS draft policy proposes to encourage voluntary conservation efforts by allowing actions taken before a species is determined to be “endangered” or “threatened” to count as mitigation efforts once that species has been listed under the ESA. FWS hopes giving credit for species conservation efforts before there is any legal requirement to do so will encourage practices which would prevent more species from reaching the point of being listed under the ESA.
ARTBA appreciates and supports this proposal to award credit for voluntary species conservation efforts. In general, ARTBA has long championed efforts to reduce process delays that preserve existing regulatory safeguards. Currently, the environmental review and approval process for transportation projects, which includes ESA considerations, can take anywhere from nine to 19 years to complete. At the same time, the ESA has achieved less than a one percent rate of success for species recovery. This is simply too long of a wait for too little in terms of results.
A frequent source of delay for transportation projects is litigation or regulatory action occurring after the projects has already commenced due to a species within a projects’ scope being listed as “endangered” or “threatened.” Dealing with regulatory or litigation-related delays during project construction can be far more disruptive than addressing potential impacts on species beforehand. By encouraging proactive voluntary species conservation efforts, the FWS draft policy could either help prevent species from being listed or, in the alternative, reduce transportation project delay if a species is eventually listed by having a mechanism to award credit for measures already taken and possibly prevent the initiation of litigation.
In order for the FWS policy to be most effective, it should be implemented with an eye towards flexibility. Each individual transportation project is going to have its own particular set of issues in terms of dealing with potential impacts to species. In order to be able to achieve the best results, FWS’s draft policy should allow for as much flexibility as possible in terms of drafting voluntary agreements—allowing all parties involved to create solutions which best fit their particular project and the species they are trying to protect. Also, once voluntary agreements are reached, FWS should establish a method to share information on their effectiveness. This would enable successful agreements to be emulated elsewhere.
In conclusion, ARTBA supports the efforts of the FWS to encourage voluntary collaboration as an alternative to unwanted litigation and regulatory delays.
T. Peter Ruane
President & C.E.O