Interior Publishes Final Narrow Changes to Regulations,
Clarifies Role of Global Processes in Consultation

WASHINGTON, D.C. – The Department of the Interior and the Department of Commerce today sent joint final regulations to the Federal Register to clarify the consultation process under the Endangered Species Act (ESA). The final regulations, which take effect 30 days after publication in the Federal Register, represent a narrow update of existing regulations and incorporate changes based on comments received from the public after proposed regulations were published in August.

“The rule strengthens the regulations so the government can focus on protecting endangered species as it strives to rebuild the American economy,” said Secretary of the Interior Dirk Kempthorne. “The rule has been revised since it was proposed in August because the public made suggestions we could use to improve it.”

Under ESA Section 7, federal agencies are required to ensure that actions they fund, authorize, permit, or otherwise carry out will not jeopardize the continued existence of a listed species or adversely modify designated critical habitats. To accomplish this, federal agencies first determine if their proposed action may affect a listed species or critical habitat. If so, they must then proceed with either formal or informal consultation with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service.

As under existing regulations, and upheld by multiple court rulings, the responsibility to initiate consultation will still lie with the Federal agency undertaking the action. Since 1978, Federal agencies have been making their own determinations about whether a project would result in no effect to a listed species. The final regulations simply clarify the process.

Contrary to published reports, nothing in this regulation requires that a Federal agency bypass informal consultation, nor does the regulation preclude any Federal agency from seeking the expertise of the U.S. Fish and Wildlife Service and the National Marine Fisheries Service or from taking advantage of expertise that may be available from State and local agencies, universities, non-governmental organizations or other sources.

If a Federal agency has any limitations on its ability to make determinations under the ESA or believes that it does not have the scientific expertise to make an accurate assessment of its project’s impacts on listed species and critical habitat, it may avail itself of the expertise offered by the Services in exactly the same manner as under the current regulatory procedures.

Additionally, nothing in this regulation relieves an action agency of its responsibilities to ensure that listed species are not harmed during the completion of the Federal action, regardless of whether consultation is undertaken or not. In such cases where an action agency determines that consultation is not required and harm to a listed species results from that agency’s actions, full civil and criminal penalties, as laid out under other sections of ESA, remain in effect.

“When I announced the listing of the polar bear as threatened in May, I agreed with the President that the Endangered Species Act is not the right tool to set climate change policy,” Secretary of the Interior Dirk Kempthorne said. “I also announced that day that we would propose common sense modifications to the existing regulations in order to provide greater certainty that the listing would not become a backdoor for setting climate change policy.”

Several newspapers editorialized in agreement with Secretary Kempthorne, including The Washington Post, which wrote, “Though the polar bear deserves protection, the Endangered Species Act is not the means and the Fish and Wildlife Service is not the agency to arrest global warming.”

With the regulations finalized today, federal agencies must still follow all existing consultation procedures, except in specific and limited instances where an action is not anticipated to adversely impact any member of a listed species AND that action fulfills one of the following criteria:

Where the action has no effect on a listed species or critical habitat, or
Where the action is wholly beneficial, or
Where the effects of the action can not be measured or detected in a manner that permits meaningful evaluation using the best available science, or
Where the effects of the action are the result of global processes and can not be reliably predicted or measured on the scale of species current range, or would result in an insignificant impact to a listed species, or are such that the potential risk of harm to a species is remote.
However, action agencies may still voluntarily engage in the informal consultation process.

The final regulations differ from the proposed regulations in that the rule was narrowed from the proposed regulation so there will be fewer opportunities for Federal agencies to proceed without consultation. But, in any case, the decision has always rested with the Federal agencies as to whether to consult.

Importantly, the new regulations do not remove all consideration of the effects of climate change. Climate change should be considered when determining the environmental conditions under which actions are taking place (i.e. if a project would pull water from a lake and it is predicted that, because of climate change, water levels in that lake will already be significantly reduced, then the expected lower lake levels should be taken into consideration).

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