Public Comment Solicited on Proposed Modifications to Endangered Species Act Consultation Process

On August 11, 2008, Secretary of the Interior Kempthorne announced proposed changes to the regulations dealing with the interagency consultation process under section 7 of the Endangered Species Act ("ESA"). Under section 7, each federal agency (referred to as the "action agency") is responsible for ensuring, in consultation with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service ("Services"), that any action it authorizes, funds, or carries out is not likely to jeopardize any endangered or threatened species or adversely modify the critical habitat of any such species. Because of the broad statutory language of section 7, potential actions subject to this consultation process may include, for example, the issuance of permits under the Clean Water Act; the registration of pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act; and the award of timber harvest contracts under the National Forest Management Act.

The Services implement section 7 through joint regulations they last updated in 1986. The existing regulations create a 3-stage process for deciding whether the action agency must consult with a Service: the action agency alone can determine that the proposed action will have no effect on an ESA-listed species or its critical habitat, in which case there is no consultation; if the action agency determines that the proposed action may affect, but is not likely to adversely affect ("NLAA"), a listed species or critical habitat, no formal consultation is necessary if the Service, through informal consultation with the action agency, concurs in the NLAA determination; finally, for actions that are considered likely to adversely affect listed species or habitat, formal consultation takes place and concludes with the Service's issuance of a Biological Opinion, including an incidental take statement. A biological assessment prepared by the action agency is required if listed species or critical habitat may be present in the action area.

The Services are now proposing to revise certain provisions of the rules to reflect experience gained in the past 22 years, clarify processes, replace ambiguous definitions, explain when formal consultation is required, and improve and streamline the informal consultation process.

The changes are designed to reduce the number of unnecessary consultations and avoid delays that have hampered the consultation process. Among the proposed changes are:

• Enhancing an action agency's flexibility to satisfy the requirement for a biological assessment by using a document prepared for another purpose as long as it contains the relevant analysis of whether to initiate consultation.
  
• Modifying the regulatory definition of "effects of the action" to require that, for indirect effects, an effect must be caused by the action and must be "reasonably certain to occur," based on "clear and substantial information," before it can be included in an effects analysis.
  
• Requiring a close causal connection, not just a "but for" relationship, between the proposed action and the effect being evaluated.
  
• Delineating instances in which no take is anticipated and section 7 is not applicable, including situations in which: (1) there is no effect on the listed species or critical habitat; (2) the proposed action is an insignificant contributor to any such effects; or (3) any effects are not capable of being meaningfully identified, are wholly beneficial, or involve only a remote potential risk of jeopardy to the species or harm to critical habitat.
  
• Streamlining informal consultation by shifting a greater portion of the NLAA determination from the Services to the action agency and by providing a timeline that enables the action agency to terminate the consultation without the Service's concurrence.

One impetus for these changes has been the uncertainties surrounding the effects, if any, of global climate change and greenhouse gas emissions on wildlife, as seen in Interior's May 15, 2008 decision to list the polar bear as a "threatened" species under the ESA. However, the proposed changes to the regulations go beyond those issues and would apply across the board to all agency actions that may require ESA section 7 consultation. Thus, any company whose activities involve federal licensing, registration, permitting, funding, or other authorization should review the proposed regulations and consider submitting comments.

The notice of proposed rulemaking is scheduled to be published in the Federal Register on August 15, 2008, and will allow 30 days for public comment.