Obama orders agencies to consider rollback of Bush ESA rule

President Obama has ordered federal resource agencies to review Endangered Species Act rules issued in the final days of the Bush administration, with the idea of rolling back provisions that streamline ESA consultation with wildlife agencies on proposed actions considered unlikely to jeopardize protected species.

�Finally, today I’ve signed a memorandum that will help restore the scientific process to its rightful place at the heart of the Endangered Species Act, a process undermined by past administrations,� Obama said in remarks March 3 to Interior Department employees. �The work of scientists and experts in my administration -� including right here in the Interior Department �- will be respected.”

The Department of Interior’s final rule was published in the Federal Register Dec. 16, 2008, and became effective Jan. 15, 2009, five days before Obama took office.

The rule would let federal action 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. (HNN 12/17/08)

During the Bush administration, Interior defended the rule, saying it represented a �narrow update� of existing regulations. However, a number of environmental groups complained the rule weakens Endangered Species Act protections.

Obama: Consider changes to “promote purposes of ESA”

Obama signed a memorandum March 3 directing the secretaries of Interior and Commerce to review the new rules.

“I hereby request the secretaries of Interior and Commerce to review the regulation issued on Dec. 16, 2008, and to determine whether to undertake new rulemaking procedures with respect to consultative and concurrence processes that will promote the purposes of the ESA,” the memorandum said.

Until the review is complete, Obama asked all agency heads to exercise their discretion to follow prior longstanding consultation and concurrence practices involving Interior’s U.S. Fish and Wildlife Service and the Commerce Department’s NOAA Fisheries.

“For more than three decades, the Endangered Species Act has successfully protected our nation’s most threatened wildlife, and we should be looking for ways to improve it -� not weaken it,� Obama told the Interior employees gathered to mark the department’s 160th anniversary.

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.

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 previously said.

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

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