American Oil and Gas Reporter - December 2018 - 99

ulations at the U.S. Fish and Wildlife
Service. Final rules were expected in November, he said.
Included is a change to the determination of critical habitat, reversing an Obama
administration change that critical habitat
areas include places that cannot biologically
support a species, Lane reviewed.
Revisions will force USFWS to define
"foreseeable future" when contemplating
a listing, he said, and will make known
economic impacts of an endangered listing
that can hinder private funding of mitigation efforts.
Sean Kyle, industry services director
for the Western Association of Fish and
Wildlife Agencies, cautioned PBPA that
despite its victory in federal court that annulled an endangered listing for the lesser
prairie chicken, the bird still could be
listed. USFWS is examining long-term
models and habitat trends that may support
another listing decision, Kyle reported.
The agency has postponed its finding
as required by a Sept. 29 deadline, made
necessary by a re-proposed listing, leaving
the agency susceptible to a lawsuit, he
warned.

From left, Ethane Lane, executive director for the Public Lands Council and National
Cattleman's Beef Association, and Sean Kyle, industry services director for the Western
Association of Fish and Wildlife Agencies, discuss changes in a Trump administration
rule making for Endangered Species Act regulations.

In the court case, the judge found that
USFWS made a critical assumption that
a decision not to list the bird would result
in little industry participation in a rangewide conservation plan, Kyle said. "Our
evaluation suggests that about 10-15 per-

cent of development occurring in the
prairie chicken range since then is being
enrolled and mitigated under the program
and new enrollment really has dropped
off almost completely since the PBPA
court case," he said.
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EPA Seeks To Reduce ICRs' Burden
WASHINGTON-The U.S. Environmental Protection Agency's offices of
Water and of Enforcement and Compliance
Assurance each issued a memorandum
on Nov. 21 that clarify the processes each
office is to use when collecting information
from the regulated community.
The memos "capture best practices
that will help us collect information consistently and efficiently, while providing
recipients with clarity and reduced costs,"
promises Office of Enforcement and Compliance Assurance Assistant Administrator
Susan Bodine.
EPA says the Office of Water's memorandum applies to information collection
requests (ICRs) issued under Section 308
of the Clean Water Act. The Office of
Enforcement and Compliance Assurance's
memo focuses on ICRs used for activities
related to §114 of the Clean Air Act and
§3007 of the Resource Conservation and
Recovery Act, as well as CWA §308.
Through both memos, EPA says it is
working to reduce the burdens its ICR
processes place on the agency and the
regulated community while ensuring EPA
continues to receive the information it
needs to protect public health and the environment.
EPA's Office of Water says its memo
applies to itself and its regional water divisions for §308 letters issued to nine or

fewer entities to support regulatory decision
making "and other purposes not related
to compliance and enforcement." It adds
that the memo does not apply to ICRs approved by the Office of Management and
Budget, nor to follow-up letters requesting
information from persons who failed to
provide information otherwise provided
by law (e.g., pollutant effluent data or information required by a National Pollutant
Discharge Elimination System permit).
It requires that ICRs be "narrowly tailored to obtain only the information required to make regulatory decisions while
keeping in mind the time, effort and financial resources required to provide that
information."
Among other things, the memorandum
requires that §308 letters:
· Factor in the availability of information from other EPA offices or that
the agency may have already;
· Establish reasonable response deadlines, grant extensions when feasible and
appropriate, and consider the use of
phased requests; and
· Consider the recipient(s) and circumstances when determining the appropriate tone.
Similarly, the Office of Enforcement
and Compliance Assurance's memo establishes five priorities for §308 letters
issued by EPA regions and the Office of

Civil Enforcement (OCE):
· Regions and OCE divisions should
balance formal ICRs with the benefits of
gathering information through informal
means.
· They should minimize transaction
costs by using existing sources of information whenever possible and not ask
for more information than they can reasonably expect to use. If a drafter is uncertain how much information is needed,
the memo suggests a phased approach
rather than erring on the side of a broader
request.
· ICRs should be polite, thank the
recipient in advance for cooperating, and
should consider the context and type or
size of business receiving the request.
· ICRs should clearly communicate
the request and process for responding,
and provide an opportunity to ask questions.
· Recipients should be given a reasonable amount of time to reply.
The Office of Water's memo and policy
may be viewed at https://www.epa.gov/eg/effluent-guidelines-data-collection-policies.
The Office of Enforcement and Compliance
Assurance's memorandum is posted at
https://www.epa.gov/enforcement/best-practices-compliance-and-enforcement-related-information-requests.
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DECEMBER 2018 99

https://www.epa.gov/eg/effluent-guidelines-data-collection-polices https://www.epa.gov/eg/effluent-guidelines-data-collection-polices https://www.epa.gov/enforcement/best-practices-compliance-and-enforcement-related-information-requests

American Oil and Gas Reporter - December 2018

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