ESA consultations to change
by Cat Urbigkit, Pinedale Online!
August 14, 2008
Secretary of the Interior Dirk Kempthorne followed through on his commitment to propose common-sense modifications to the existing Endangered Species Act (ESA) regulations. When Secretary Kempthorne on May 15, 2008, listed the polar bear as a "threatened species" under the ESA, he said the ESA was not the right tool to set U.S. climate policy or regulate green house gas emissions.
The proposal announced on Monday is intended to update a portion of the ESA regulations dealing with section 7 of the Act. Section 7 governs the endangered species responsibilities of federal agencies. The proposed changes to the regulations are designed to reflect current practices and recent courts cases. The changes will make it easier for agencies to understand when and how the regulations apply.
While this rule will help avoid misuse of the ESA to regulate climate change, the rule will also generally improve the consultation process.
Each federal agency is responsible under the regulations to consult with the U.S. Fish and Wildlife Service or the National Oceanic and Atmospheric Administration before they undertake an action that may affect an endangered species. Such consultation may involve either a formal written request or it may be an informal conversation between the agencies.
The purpose of these proposed changes is to clarify process, replace ambiguous definitions, explain when formal consultation is applicable, and improve the informal consultation process.
The existing regulations were last updated in a meaningful way in 1986. Much has happened since then. Both the Fish and Wildlife Service and NOAA have gained considerable experience in implementing the Act, as have other Federal agencies, States, and property owners. There have been many judicial decisions regarding almost every aspect of section 7 of the Act and the implementing regulations that govern the consultation process. And now, agencies face new challenges with regard to global warming and climate change.
"ESA consultations in the 21st century address increasingly complex issues. We need a regulatory framework to guide those consultations that is consistent with the ESA and will address new challenges such as climate change," said Kempthorne. "The existing regulations create unnecessary conflicts and delays. The proposed regulations will continue to protect species while focusing the consultation process on those federal actions where potential impacts can be linked to the action and the risks are reasonably certain to occur. The result should be a process that is less time-consuming and a more effective use of our resources."
"The purpose of these changes is to reduce ambiguity, improve consistency, and narrow interpretive differences, even within the Services. They are a positive step forward," said Dale Hall, Director of the Fish and Wildlife Service. "In 1986, our existing rules made sense. At that time very few Federal action agencies had any in-depth expertise with section 7 and listed species, but that is not the case today. We are not being good stewards of our resources when we pursue consultation in situations where the potential effects to a species are either unlikely, incapable of being meaningfully evaluated, wholly beneficial, or pose only a remote risk of causing jeopardy to the species or its habitat."
The announcement today is being made in conjunction with the National Marine Fisheries Service under the Department of Commerce.
These changes are designed to reduce the number of unnecessary consultations under the ESA so that more time and resources can be devoted to the protection of the most vulnerable species. Under the proposed rule, agency actions that could cause an adverse impact to listed species are still subject to the consultation requirement.
The proposed rule is consistent with the FWS current understanding that it is not possible to draw a direct causal link between greenhouse gas (GHG) emissions and distant observations of impacts affecting species. As a result, it is inappropriate to consult on a remote agency action involving the contribution of emissions to global warming because it is not possible to link the emissions to impacts on specific listed species such as polar bears.
The Bush Administration has acknowledged climate change as a serious problem but has stressed that the proper forums to address it are through the Congress and the Bali Action Plan. That plan was approved at the 13th Conference of the Parties of the United Nations Framework Convention on Climate Change in December 2007. The U. S. strongly supports the identification of a long-term global goal for emission reductions to inspire actions at all levels. Since 2001, the U.S. has invested more than $45 billion to research, develop and promote clean and efficient energy technologies.
Finally, the current proposal also adds timelines to help limit the duration of informal consultation and lend greater certainty to the process. It would allow action agencies to terminate consultation if the Fish and Wildlife Service has not acted on its request for concurrence within 60 days. However, the Service may request an additional 60 days. If, after that time, there is no written determination from the Service within the appropriate time frame, the action agency may terminate the consultation.