Final ESA rule limits jeopardy consultation with wildlife agencies

A final rule modifying Endangered Species Act regulations will 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.

The Department of Interior’s final rule, published in the Federal Register Dec. 16, is effective Jan. 15, 2009.

Interior said the final rule represents a �narrow update� of existing regulations and incorporates changes based on comments about earlier proposed regulations. (HNN 8/22/08) The final regulations differ from proposed regulations by providing fewer opportunities for federal agencies to proceed without consultation, Interior said. However, the department added, the decision whether to consult always has rested with the federal agencies.

Nothing in the rule requires a federal agency to bypass informal consultation, nor does the regulation preclude any federal agency from seeking the expertise of the U.S. Fish and Wildlife Service or NOAA Fisheries, or from taking advantage of other expertise, Interior said.

Under the new regulations, federal agencies still must follow most existing consultation procedures. However, exceptions are permitted in specific instances where an action is not anticipated to adversely affect any member of a listed species and that action fulfills one of the following criteria:
o Where the action has no effect on a listed species or critical habitat;
o Where the action is wholly beneficial;
o Where the effects of the action cannot be measured or detected in a manner that permits meaningful evaluation using the best available science; or
o Where the effects of the action are the result of global processes and cannot be reliably predicted or measured on the scale of species current range, or would result in insignificant impact to a listed species, or are such that the potential risk of harm to a species is remote.

Law firm Van Ness Feldman noted the final rule eliminates the need for written concurrence from FWS and NOAA Fisheries regarding the action agency’s determination that the proposed action is not likely to adversely affect a listed species. The law firm added the effectiveness of the regulatory changes ultimately will be determined by future actions �- in the courts, Congress, and the implementation of the ESA by FWS, NOAA Fisheries, and the federal action agencies.

Despite Interior’s claim the final rule is a narrow update of existing regulations, a number of environmental groups complained the rule weakens ESA protections.

�The new, weaker ESA rule cuts wildlife scientists out of the review process for federal projects,� Earthjustice said. �Now federal agencies involved with projects such as new highways, bridges, dams, and airports can self-regulate to determine the threats posed to imperiled wildlife, a move that wildlife organizations believe poses grave threats to wildlife. These agencies not only lack the expertise to determine whether federal projects pose a threat to endangered wildlife, they have a built-in conflict of interest.�

Conservation and fishing groups represented by Earthjustice said they would challenge the new rule in federal district court. Earthjustice said the rule violates federal law by not adequately considering the true effect on wildlife populations. The groups also charge the new rule ignores federal requirements that assure the public’s right to review and comment on proposed rule changes.

The final rule is available from Interior’s Internet site, www.doi.gov. The link to the final rule is www.doi.gov/initiatives/ESA_Section7FR.pdf.

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