Final proposals emerge to modify US Endangered Species Act

The US Interior and Commerce departments reported final proposed changes to the Endangered Species Act, which Interior Secretary Dirk A. Kempthorne said were not as extensive as originally planned.

Dec 13th, 2008

Nick Snow
Washington Editor

WASHINGTON, DC, Dec. 13 -- The US Interior and Commerce departments reported Dec. 11 final proposed changes to the Endangered Species Act, which Interior Secretary Dirk A. Kempthorne said were not as extensive as originally planned.

"The rule strengthens the regulations so the government can focus on protecting endangered species as it strives to rebuild the American economy," Kempthorne said. "[It] has been revised since it was proposed in August because the public made suggestions we could use to improve it," he said. The proposed changes are scheduled to appear in the Dec. 12 Federal Register.

"What we are doing is clarifying the threshold for consultation to occur. If science cannot draw a direct causal link between an action and an effect on a listed species, as is currently the case for global processes like climate change, than consultation under the ESA is not necessary," Kempthorne maintained.

Congressional critics and environmental organizations immediately criticized the proposal. "The Bush administration appears to be determined to use every last minute in office to wreak as much havoc as possible on our nation," said Edward J. Markey (D-Mass.), chairman of the House Select Committee on Energy Independence and Global Warming. "Today's announcement that they will be removing fish and wildlife experts from key decisions to protect the safety of iconic animals like the polar bear from global warming's effects is absurd and a recipe for disaster," Markey said.

Andrew Wetzler, director of the Natural Resources Defense Council's endangered species program, commented, "This administration has rejected anything with a whiff of science, so before skulking out the back door they are going after rules that require [US] Fish and Wildlife Service scientists to prevent harm to our last wild animals and places. Despite today's feel-good statements, we remain convinced that these changes are illegal. We will look at the final language when it is published tomorrow, but I think we will see them in court."

Scope of exceptions
But Kempthorne noted that federal agencies would be required to follow existing consultation procedures except in specific, limited instances where a proposed action is not expected to have adverse impacts on any member of an ESA-listed species and would satisfy one of the following conditions: It must be wholly beneficial, have no effect on a listed species or its critical habitat, have effects which could not be measured or detected in a manner that permits meaningful evaluation, or it must be the result of global processes that can not be reliably predicted or measured on the scale of the species' current range.

Agencies still would be able to voluntarily engage in the consultation process, the secretary emphasized. He said the final proposed regulations contain fewer opportunities for agencies to proceed without consultation than what was originally envisioned.

Nothing in the proposals requires that a federal agency bypass consultation, nor does it preclude any federal agency from seeking the expertise of the Fish and Wildlife Service and the National Marine Fisheries Service or from taking advantage of expertise that may be available from state and local agencies, universities, nongovernment organizations, or other sources, according to Kempthorne.

Any federal agency may avail itself of expertise offered by FWS and NMFS in exactly the same manner as under current regulations if it determines it has any limitations to make determinations under the ESA or believes that it does not have the scientific expertise to make an accurate assessment of a project's impacts on listed species and critical habitat, he said.

Moreover, nothing in the proposals relieves an agency of its responsibilities to ensure that listed species are not harmed during completion of a federal action, regardless of whether consultation occurs or not, Kempthorne said. In cases where an action agency determines that consultation is not required and harm to a listed species results, full civil and criminal penalties, as laid out by other sections of the ESA, remain in effect, he indicated.

Contact Nick Snow at nicks@pennwell.com.

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