Kempthorne's proposed minor changes signal new Endangered Species Act battle

US Interior Secretary Dirk A. Kempthorne followed through on Aug. 11 on his promise to propose minor changes to the Endangered Species Act. Environmental organizations argue that the proposal would effectively gut the law.

Aug 15th, 2008

US Interior Secretary Dirk A. Kempthorne followed through on Aug. 11 on his promise to propose minor changes to the Endangered Species Act. The proposal aims to update Section 7 of the law, which governs federal agencies' responsibilities, he said. Environmental organizations argue that the changes would effectively gut the law.

Kempthorne announced his plan when he listed the polar bear as a threatened species on May 15. At that time, he said that the ESA was not the right tool to set US climate policy or regulate greenhouse gas emissions.

"The last time that these regulations were changed in a meaningful way was in 1986. Ronald Reagan was president, the New York Mets won the World Series, and [gasoline] was under $1/gal. Since then, the US Fish and Wildlife Service has gained a great deal of experience managing endangered species and the courts have provided extensive guidance concerning the consultation process," he told reporters on Aug 11.

The proposal reflects current practices and is designed to make it easier for agencies to understand how and when ESA regulations apply, Kempthorne said. "Since 2003, FWS has been working with other federal agencies to make sure that consultations are focused on effects that are reasonably certain to occur and where the federal actions under consideration are essential to the effects under consideration," he said.

"Our intent is to reduce the number of unnecessary consultations under the ESA. We need to focus our efforts where they will do the most good. It's important to use our time and resources to protect the most vulnerable species," the secretary maintained. Comments on the proposal will be accepted through Sept. 11.

Environmental groups respond

Environmental organizations immediately criticized Kempthorne's proposal. Sierra Club Political Director Cathy Duvall said on Aug. 13 that it simply was the Bush administration's "latest effort to gut one of our nation's most important environmental laws . . . If these regulations had been in place 20 years ago, we would not have brought the bald eagle back from extinction."

"Do not be fooled when the administration claims it is merely tweaking the law. The cumulative impact of these changes equals a full blown attack on America's premier conservation law. We owe it to future generations to stop this attack and continue our legacy of protecting wildlife on the brink of extinction," John Kostyack, executive director of wildlife conservation and global warming at the National Wildlife Federation, said on Aug 11.

Environmental groups contend that oil and gas activity off Alaska's coast is contributing to global climate change and melting polar bears' icy habitat. They objected when DOI listed the polar bear as a threatened, instead of an endangered, species.

Federal agencies are responsible under the ESA to consult with either the FWS or the National Oceanic and Atmospheric Administration, either in writing or an informal conversation, before they undertake an action which may affect an endangered species, according to DOI. It said that the proposed changes are designed to clarify processes, replace ambiguous definitions, explain when formal consultations are needed and improve the informal consultation process.

Since the regulations were last updated meaningfully in 1986, FWS and NOAA have gained considerable experience in implementing the ESA, as have other federal agencies, states and property owners. There have been many judicial decisions regarding almost every aspect of ESA Section 7 and the implementing regulations that govern the consultation process. And now, agencies face new challenges with regard to global warming and climate change, according to DOI.

Focusing consultation process

"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," Kempthorne said.

The proposed changes are designed to reduce ambiguity, improve consistency, and narrow interpretive differences, even within the federal services, FWS Director H. Dale Hall indicated. "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," he said.

"We need to have the ability to put our efforts where they're needed. And there are consultations that take place on a daily basis across the country where we have to expend staff and our energies on actions that we know don't have a negative effect on the species, but under the current regulations that agency is vulnerable if we don't complete a consultation," Hall continued.

The proposal also would add timelines to help limit the duration of informal consultation and lend greater certainty to the process. It would allow an agency to terminate a consultation if FWS has not acted on its request for concurrence within 60 days, although FWS would be able to request an additional 60 days. If, after that time, there is no written determination from FWS, the action agency would be able to terminate the consultation, DOI said.

Kostyack, the National Wildlife Federation official, said that the proposed changes reflect what industry groups have unsuccessfully sought in the past. "With striking arrogance, the administration apparently believes that it can succeed now with this discredited agenda because the American people and Congress are distracted by a presidential campaign and other pressing business. Conservationists must mobilize to prevent the administration from succeeding with this stealth attack on America's most important wildlife law," he declared.

Contact Nick Snow at nicks@pennwell.com

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