Final Rule Amending Endangered Species Act Consultation Regulations Issued by U.S. Departments of the Interior and Commerce
By Ryan P. Steen
On December 16, 2008, the U.S. Departments of the Interior and Commerce published final regulations ("Final Regulations") amending certain aspects of the existing Section 7 consultation regulations under the Endangered Species Act ("ESA"). Among other things, the Final Regulations give federal action agencies discretion to proceed with actions without Section 7 consultation when they determine their activities are likely to have no effect on ESA-listed species and their critical habitat. In addition, the Final Regulations clarify that climate change impacts are not appropriately considered when evaluating impacts to ESA-listed species. The Final Regulations take effect on January 15, 2009.
Discretion to Federal Action Agencies
Existing Section 7 implementing regulations, which have not been substantially modified since 1986, require federal action agencies (i.e., permitting agencies such as the Army Corps of Engineers) to consult with the National Marine Fisheries Service ("NMFS") or the U.S. Fish and Wildlife Service ("FWS") to ensure that federal actions are not likely to jeopardize listed species or result in the destruction or adverse modification of the critical habitat of those species. Under the existing regulations, if the permitting agency determines that the proposed action is not likely to adversely affect any listed species or habitat in the project's action area, and NMFS or FWS concurs in that determination, the Section 7 "informal consultation" is complete.
The Final Regulations modify this process by identifying categories of actions in which consultation with NMFS or FWS is not necessary. Under the Final Regulations, an action is exempt from the project-specific Section 7 consultation requirement if the permitting agency determines the action will not take a listed species and:
- the action will have no effect on listed species or critical habitat;
- the effects of the action are manifested through global processes and certain other conditions are present; or
- the effects of the action on listed species or critical habitat (i) are not capable of being measured or detected in a manner that permits meaningful evaluation, or (ii) are wholly beneficial.
These modifications alter the current regulatory framework by allowing the permitting agency to unilaterally determine (without concurrence from NMFS or FWS) that a given action meets the criteria described above. According to NMFS and FWS, the modifications eliminate "unnecessary" consultations that have occurred under the existing regulations. This streamlined process will generally apply to relatively small-scale projects that, under the current regulatory framework, would have received a "not likely to adversely affect" concurrence from NMFS or USFWS.
Exemption for Climate Change Impacts
Perhaps the most controversial of the Section 7 modifications is the "global processes" exception (noted above). This exemption is specifically targeted to project-related climate change impacts (i.e., greenhouse gas emissions) and is based on the current Administration's interpretation that Section 7 consultation was not intended to deal with global processes at the individual project level.
In addition to the changes described above, the Final Regulations modify the definitions of various terms in the existing Section 7 regulations. These modifications, among other things, allow non-ESA documents (such as an environmental impact statement) to serve as a Section 7 biological assessment and tighten the scope of what "indirect" and "cumulative" effects of an action must be considered under Section 7. The Final Regulations also establish specific time frames for completion of informal consultations.
Future of the Final Regulations
The shelf life of the Final Regulations is uncertain. They have already been challenged in three federal lawsuits, and they could potentially be reversed by Congress pursuant to the Congressional Review Act, or modified or withdrawn by the Obama Administration through the standard notice and comment rulemaking process.
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