In what Senator Barbara Boxer (D-CA) calls "another in a continuing stream of proposals to repeal our landmark environmental laws through the back door," the Bush Administration has proposed a regulatory overhaul of the Endangered Species Act. The proposed rule change would allow federal agencies to forgo consultations with federal biologists on actions like water permits and energy development plans used to determine if an action would be harmful to a species.

The proposed rule, published in the Federal Register on 15 August 2008 by the United States Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) seeks to ease regulations for construction and transportation interests. Proponents of the new rule assert that it would streamline the federal permit review process. However, congressional Democrats and environmentalists are concerned by a plan that would authorize skipping consultation with USFWS and NMFS scientists.

Representative Nick Rahall (D-WV), chairman of the Natural Resources Committee, said in a statement, "I am deeply troubled by this proposed rule, which gives federal agencies an unacceptable degree of discretion to decide whether or not to comply with the Endangered Species Act. The administration is also attempting to adopt a new consultation process with very little time for the public to even be consulted. Eleventh-hour rulemakings rarely, if ever, leads to good government -- this is not the type of legacy this Interior Department should be leaving for future generations."

There is still some time for biologists to provide comments on the draft rule. Comments are being accepted until 15 September 2008. The formal request for comment was published in the 15 August 2008 Federal Register.

Scientists familiar with conservation policy should consider submitting comments.To submit comments in response to this proposed rule change, please visit http://www.regulations.gov/fdmspublic/component/main?main=SubmitComment&o=09000064806c5826

The following is an excerpt from the official notice:

The Endangered Species Act of 1973, as amended ("Act''; 16 U.S.C. 1531 et seq.) provides that the Secretaries of the Interior and Commerce (the ``Secretaries'') share responsibilities for implementing most of the provisions of the Act. Generally, marine species are under the jurisdiction of the Secretary of Commerce and all other species are under the jurisdiction of the Secretary of the Interior. Authority to administer the Act has been delegated by the Secretary of the Interior to the Director of the FWS and by the Secretary of Commerce through the Administrator of the National Oceanic and Atmospheric Administration to the Assistant Administrator for NMFS.

There have been no comprehensive amendments to the Act since 1988. With the exception of two section 7 counterpart regulations for specific types of consultations, there have been no comprehensive revisions to the implementing section 7 regulations since 1986. Since those regulations were issued, much has happened: The Services have gained considerable experience in implementing the Act, as have other Federal agencies, States, and property owners; there have been many judicial decisions regarding almost every aspect of section 7 of the Act and its implementing regulations; and the Government Accountability Office has completed reviews of section 7 implementation.

We also propose these regulatory changes in response to new challenges we face with regard to global warming and climate change. On May 15, 2008, Secretary of the Interior Dirk Kempthorne announced that he would propose common sense modifications to the section 7 regulations to provide greater clarity and certainty to the consultation process. Particularly as we are confronted with new and more complex issues, it is important that we have a section 7 consultation process that clearly sets out key definitions and the applicability of that process. As we negotiate the complexities of consultations in the 21st century, we need to have a regulatory framework that supplies guidance to shape those consultations as envisioned by the Act.

A 2004 GAO report on interagency collaboration during section 7 consultations found that although the Services had made improvements to the consultation process, it remained contentious between the Services and action agencies. In particular, the GAO found that action agencies continued to consider the consultation process burdensome. The GAO concluded that, given the unique requirements and circumstances of different species, a "healthy dose of professional judgment'' from the Services would always be required, meaning there would always be some disagreements. Nevertheless, the GAO also concluded that the process could still be improved, and specifically recommended that the Services and other Federal agencies "resolve disagreements about when consultation is needed."

 


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