ESA changes would limit federal jeopardy consultation with wildlife agencies

Proposed changes to rules implementing the Endangered Species Act would let federal agencies such as the Federal Energy Regulatory Commission determine whether federal actions are likely to jeopardize protected species, in some cases without the need to consult federal resource agencies.

Current regulations implementing ESA Section 7 require federal agencies to consult with the Department of Interior’s Fish and Wildlife Service or the Department of Commerce’s NOAA Fisheries whenever a proposed federal action could affect a species or its critical habitat. Interagency consultation is intended to ensure federal actions are not likely to jeopardize protected species or adversely affect their habitat.

The ESA requires that a federal agency that carries out, permits, licenses, funds, or otherwise authorizes activities must consult with the Fish and Wildlife Service or NOAA Fisheries to ensure its actions are not likely to jeopardize continued existence of listed species. Actions covered by Section 7 could include FERC licensing and regulation of hydroelectric projects. Other actions could include projects involving the Bureau of Reclamation or the Corps of Engineers.

The regulatory changes, proposed by the resource agencies, Interior and Commerce, would let federal agencies determine on their own if their actions are expected to “take” listed species or are likely to adversely affect listed species or their habitat. Interior and Commerce said they believe federal agencies, having decades of experience with Section 7, are qualified to make determinations in limited circumstances.

As proposed, Section 7 consultation or concurrence would not be required when an agency determines that taking a protected species is not anticipated, and the potential effects are insignificant, are incapable of being meaningfully evaluated, are wholly beneficial, or pose only a remote risk of causing jeopardy or adverse modification or destruction of critical habitat.

Interior Secretary Dirk Kempthorne emphasized federal agencies still would be required to engage in consultations with the Fish and Wildlife Service or NOAA Fisheries if a proposed action is expected to cause death or injury to threatened or endangered species.

By reducing the number of unnecessary consultations under the ESA, the proposal is expected to cut back on paperwork and free wildlife biologists to do work that helps conserve and recover species, Kempthorne said.

In a letter to the New York Times, Kempthorne said the proposal clarifies that consultation is not required in cases where a federal action does not jeopardize a species. For example, he said, consultation would not be required in cases where it is obvious the species is not jeopardized, such as when an agency decides to build a fish ladder to allow endangered fish to pass a dam to spawn upstream.

Interior said the new language clarifies process, replaces ambiguous definitions, explains when formal consultation is applicable, and improves the informal consultation process. For example, the proposal reiterates Section 7 only applies to �discretionary� federal actions, citing the U.S. Supreme Court’s opinion in the case National Association of Home Builders v. Defenders of Wildlife. (HNN 6/29/07)

The proposed rule also would expressly exclude from Section 7 consultation the consideration of potential effects of greenhouse gas emissions on global warming and listed species.

Interior and Commerce published the proposal in the Federal Register on Aug. 15, calling for comments by Sept. 15. The proposal may be obtained from Interior’s Internet site, www.doi.gov. The link to the proposal is www.doi.gov/news/08_News_Releases/AT50PR2008_08_13_FR.pdf.

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