August 21, 2017

Kelly Denit
National Marine Fisheries Service, NOAA
Office of Sustainable Fisheries
1315 East-West Highway
Silver Spring, MD 20910

Re: Request for comments on “Streamlining Regulatory Processes and Reducing Regulatory Burden” Docket No. NOAA-NMFS-2017-0067-0001

Dear Ms. Denit,

The Resource Development Council for Alaska, Inc. (RDC) is writing in response to the National Ocean and Atmospheric Administration’s (NOAA) request for input on how to streamline the regulatory process and reduce regulatory burden. RDC appreciates NOAA’s efforts in seeking out meaningful feedback from stakeholders impacted by over-burdensome and in many cases duplicative regulations.

RDC is an Alaskan, non-profit, membership-funded organization founded in 1975. The RDC membership is comprised of individuals and companies from Alaska’s oil and gas, mining, timber, tourism, and fisheries industries, as well as Alaska Native corporations, local communities, organized labor, and industry support firms. RDC’s purpose is to link these diverse interests together to encourage a strong, diversified private sector in Alaska and expand the state’s economic base through the responsible development of our natural resources.

Based on the diversity of RDC’s membership both geographically and across various resource sectors, there are a number of regulatory processes that have placed unnecessary burden and created uncertainty for their businesses and current or potential future projects. The Endangered Species Act (ESA) in particular is a policy that has increasingly been used as a tool to drive up costs, delay, or in some cases halt projects, without demonstrating any real benefit to a species. Thus, the majority of these comments will focus on areas of concern within the ESA.

ESA Compensatory Mitigation Policy

The ESA Compensatory Mitigation Policy (The Policy,) which was finalized on August 18, 2017 is an unnecessary application of voluntary compensatory mitigation program that will only create additional confusion and uncertainty for project proponents, potentially resulting in delayed operations and increased costs at best. At worst, The Policy could prevent projects from moving forward at all.

The Policy raises a number of concerns, most notably the assertion made that the U.S. Fish and Wildlife Service (USFWS), jointly with the National Marines Fisheries Service (NMFS, “the Service” or “Services”) has authority to require compensatory mitigation resulting in a ‘net gain’ or ‘no net loss’ under the ESA. The ESA and its implementing regulations do not require or recommend The Services enforce compensatory mitigation measures and in fact clearly state as much in the ESA Section 7 Consultation Handbook, which reads: “the objective of incidental take analysis under section 7 is minimization, not mitigation.” The Services must ensure that an action is not likely to jeopardize or cause adverse modification and may prescribe measures to minimize — not “mitigate” or “fully compensate” for — the impact of the authorized incidental take.

The Policy acknowledges “the Service’s authority to require compensatory mitigation under the ESA is limited and differs under Sections 7 and 10” and the Service’s “authority to require a ‘net gain’ in the status of listed or at-risk species has little or no application under the ESA.” Nonetheless, The Policy goes on to offer guidelines with the end goal of “net gain” or “no net loss” compensatory mitigation under the ESA. This paradox distorts the Services intent for how The Policy would be implemented and suggests that the Services would unlawfully require “net gain” or “no net loss” compensatory mitigation of project applicants.

RDC acknowledges that The Policy represents the Services attempt to implement an Executive Order and Department of Interior mitigation policies in the context of the Services responsibility to administer the ESA.  However, new policy directives apply only to the extent they are consistent with existing laws adopted by Congress. If Congress had intended to require that every impact to listed species be completely offset (or result in a net gain), it would have written such a requirement into the ESA. If the Service or the President desires such a result, the only solution is for Congress to amend the ESA to provide that authority to the Executive Branch. For this reason, RDC urges The Policy be withdrawn.

Critical Habitat Designation

A recently revised rule (Listing Endangered and Threatened Species and Designating Critical Habitat; Implementing Changes to the Regulations for Designating Critical Habitat (revising portions of 50 C.F.R. § 424). 81 Fed. Reg. 7413–40 (Feb. 11, 2016)) allows the Services to designate as critical habitat areas that are currently not occupied by the listed species or are considered potential future habitat. This interpretation is inconsistent with the plain language and intent of the statute to designate as critical habitat to those areas within the species’ current range in which essential physical or biological features are present at the time of listing.

The rule gives the Services limitless discretion to determine the scale at which critical habitat should be designated for a listed species, without relying on present day sound science. The Service can and has designated critical habitat areas that are larger than necessary, including areas outside the species range. Excessively large designations, such as for polar bear and proposed ringed and bearded seal critical habitat, does little to protect the species yet places burden on industry, individuals, local governments, and Native organizations due to increased permitting and mitigation actions that are then required under other laws.

The ESA and Climate Change

The Service has, for the first time, determined that a distinct population segment of a currently healthy and even abundant species, the bearded seal, is “threatened” based solely on harm predicted to occur nearly a century after the listing.  The Service ignored that the current Alaska bearded seal population is healthy at about 155,000 individuals and that the International Union for the Conservation of Nature and Natural Resources has classified the bearded seal as a “species of least concern.”

The listing of the bearded seal relied principally, if not solely, upon climate change resulting in the loss of sea ice as the governing factor. Moreover, The Service has concluded that this identified threat will not likely manifest until the year 2100. The Service also readily acknowledges that the threat triggering the listings—climate induced reduction in Arctic sea ice—is not imminent, predictable, or addressable under the ESA’s regulatory mechanisms.

With the bearded seal listing, The Service has effectively replaced the ESA’s listing framework with a new “precautionary” approach that, taken to its logical extreme, could result in the nearly automatic listing of almost all species, especially in the Arctic.

Alaska is in many ways “ground zero” for the potential effects of climate change.  Allowing multiple pointless ESA listings of Arctic species will make things materially worse for Alaskans.  These listings will have no appreciable conservation benefits and instead, will stifle the responsible economic development that is the lifeline for all of Alaska.  This case perfectly encapsulates why the ESA is not an appropriate or effective tool to combat the long-term challenges posed by global climate change.

There are many other areas of the ESA that need to be improved, and RDC supports the ESA specific comments submitted in this Docket by the State of Alaska on August 21, 2017.

National Ocean Policy

Lastly, the National Ocean Policy (NOP) instated under the Obama Administration by Executive Order has negatively impacted opportunities for job creation by unnecessarily increasing federal bureaucracy and regulatory directives, costs, and uncertainties. The NOP alters the governance of marine uses and resources in the United States.  Among other things, it orders dozens of federal agencies to conform all their actions and decisions to be consistent with “coastal and marine spatial plans” (CMSP) pursuant to the Executive Order. This process also fundamentally changes the implementation of numerous federal laws – including but not limited to the National Environmental Policy Act, Magnuson-Stevens Fishery Conservation and Management Act (“MSA”), Coastal Zone Management Act, and Outer Continental Shelf Lands Act (“OCSLA”) – as it inappropriately removes any regulatory options or alternatives from consideration unless they are consistent with the marine plans and the broader NOP.

The NOP has introduced new regulatory processes that conflict with the mandates and intent of multiple existing federal statutes, introduced new permitting hurdles that lead to delays and unduly burdensome conditions, and increase the likelihood of litigation, all to the detriment of jobs and economic growth. In short, RDC urges the NOP Executive Order be vacated. 

In closing, RDC applauds efforts to streamline the regulatory and permitting processes so that Alaskans can responsibly develop our natural resources as mandated by the Alaska Constitution (Article VIII, Section IV). Thank you for your consideration of these comments.

Resource Development Council for Alaska, Inc.