October 27, 2008

Bangor Daily News on proposed ESA reg amendments

By Bangor Daily News on proposed ESA reg amendments

An editorial in today's Bangor Daily News criticizes the proposal to streamline review of federally approved projects that will not have an adverse effect on protected endangered species:

In August, the administration, through the Departments of Commerce and Interior, proposed to eliminate a key provision of the act, which requires agencies that promote development, such as the Department of Transportation and the Bureau of Reclamation, to consult with agencies charged with protecting wildlife. It called this a “narrow” update of the law, when in fact it would be the largest change in 20 years. . .  . 

The proposed new rules would eliminate all formal consultation, instead allowing the federal agencies to decide whether proposed projects pose a threat to species protected by the ESA. Informal consultations would still be allowed if the federal agencies overseeing the projects wanted advice or review by the wildlife or fisheries service.

The Daily News' analysis grossly misstates the effects of the proposed changes to Section 7 implementing regulations. The proposal would interpret Section 7(a)(2)'s consultation requirement to apply only to those situations where there is a legal connection between a future agency action an impact on an endangered species. This is not an elimination of Section 7(a)(2) but is instead a much-needed clarification, as a rule to the contrary requiring Section 7 consultations for even those discretionary federal actions with speculative impacts on endangered species would fall beyond the powers given to the Fish and Wildlife Service and National Marine Fisheries Service under the ESA and would, as Interior Secretary Dirk Kempthorne has noted, distract FWS and NMFS from evaluating the federal actions that truly have impacts on endangered species.

Further, the Daily News' suggestion that "[t]he proposed new rules would eliminate all formal consultation" is quite absurd. Nothing within the proposal would enable federal agencies to avoid their Section 7 consultation obligation when those agencies' scientific experts have concluded that a proposed agency action will adversely effect endangered species.

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