Pennsylvania HB 1576 and SB 1047; Finding a Balance between Protection of Threatened and Endangered Species and Responsible Economic Development

House Bill No. 1576, known as the Endangered Species Coordination Act, and its counterpart, Senate Bill No. 1047, are pending Pennsylvania legislation that would add a layer of regulatory oversight to the listing of endangered and threatened species in Pennsylvania.  The bills would require the Fish and Boat Commission or the Pennsylvania Game Commission to comply with the Regulatory Review Act which is intended to improve State rulemaking by creating procedures to analyze the availability of more flexible regulatory approaches for small businesses to help them par disproportionate share of regulatory costs and burdens.  The bills do not bind the commissions to comply with the Regulatory Review Act with regards to any rules or regulations other than those relating to threatened or endangered species or designation of wild trout streams. 

The Independent Regulatory Review Commission (“IRRC”) is a five member commission, with four members appointed by the legislative leaders and one member who is appointed by the governor.  The IRRC was created to interact with the agencies and parties involved to accomplish a “best regulatory balance” that acknowledges and considers the economic impact of the proposed regulation on the public and private sector.  Pennsylvania is unique in that it is the only state to have an IRRC.  The argument against allowing the IRRC oversight is the fear that politics, instead of science, will be what decides which species are listed.  The benefit from allowing the IRRC oversight would be to create a structured review process and make the data and research viewable to the public.

The coal and oil and gas industries, as well as other land developers, see this bill as an opportunity to streamline and add transparency to a confusing process that can prove costly to industries.  The most recent amendment to HB 1576 took place on November 13, 2013, and has helped to temper some of the more extreme provisions of the bill.  For example, the original bill would delist all currently state-listed endangered and threatened species if their status could not be proven to the standards of the IRRC.  That language is now stricken from the bill.  While the fear remains that the legislation would create extra regulatory obstacles, the coal, oil and gas industries and land developers hold out hope that such a bill would provide additional transparency into the process and help them  make informed land development decisions.

The bills restrict state agencies from listing species if they are already covered by the Federal Endangered Species Act.  The original version of HB 1576 limits state agencies from listing species only because the species are limited in number within the borders of the state, however, the most current revisions allow for the designation of “Pennsylvania threatened” or “Pennsylvania endangered” species which suffer low numbers or limited habitat within the commonwealth.

One of the most potentially useful features of the bills is the attempt to create a centralized database to replace the Pennsylvania Natural Diversity Inventory (“PNDI) review tool.  Ideally, the new database would provide a much needed update to PNDI, which languishes in a mire of data and reports that currently lack any way to make a distinction between a confirmed habitat or sighting which was identified as part of a survey, or an unconfirmed sighting that might be several decades old.  Furthermore, the database would allow landowners and developers to better plan projects around important environmental areas by pinpointing the exact location of endangered species prior to deciding where to develop, which would help them chose locations that have the least environmental impact.

Access to the database is permitted to all authorized persons who request information to be used solely for conservation, development planning and natural resource management,  to help comply with statutory and regulatory requirements for protection of listed species or voluntary measures to mitigate impacts to other than listed species.  There are civil penalties for anyone who misuses the information.  While those who oppose the bill see the sharing of information as creating a risk of poaching, this seems to be the only practical way to help industries do meaningful planning for land development projects.

The Senate and House Bills offer a dramatic change to the process of listing endangered and threatened species within the state, and to how developers can plan to develop lands that may potential impact these fragile species and ecosystems.  While it appears that neither industry nor environmental groups are completely in favor of the bill as a whole, there is a possibility that by accepting the risk of regulatory oversight, a dated system will receive some new attention and action that will help industries to comply with state agencies in protecting our natural resources.

Zahava Bennett focuses her practice in the areas of oil and gas law.
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