New Regulation Would Lessen Influence of Fish and Wildlife Experts

The U.S. Endangered Species Act (ESA) has been at the center of some of the fiercest environmental battles in the history of the United States. It has been the law which has held up big dams, helped bring iconic species such as the bald eagle back from the brink, and been used by environmentalists battling loggers over old-growth forests in the Pacific Northwest. For these reasons the ESA is often demonised by those who prefer business as usual to biodiversity preservation.

The Bush Administration, with only a few months left in government, has just proposed a series of controversial rule changes to the ESA that would prevent the review of many new projects by biologists at the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS).

The departments of the Interior and Commerce have given two main justifications for the proposed rule changes. The first is to prevent the ESA from being used to regulate carbon dioxide (CO₂) emissions. That became a possibility after FWS listed the polar bear as a threatened species. Interior Secretary Dirk Kempthorne is reported as saying that:

...the changes were needed to ensure that the Endangered Species Act would not be used as a "back door" to regulate the gases blamed for global warming...

The draft rules would bar federal agencies from assessing the emissions from projects that contribute to global warming and its effect on species and habitats.

The second justification given by the departments of the Interior and Commerce for the proposed rule changes is to reduce the number of "informal consultations" around the ESA. The consultations have caused considerable delays on projects in the past according to a 2004 report by the U.S. Government Accountability Office.

Sen. Barbara Boxer, chairwoman of the Environment and Public Works Committee, called the proposed changes illegal.

This proposed regulation is another in a continuing stream of proposals to repeal our landmark environmental laws through the back door," she said. "If this proposed regulation had been in place, it would have undermined our ability to protect the bald eagle, the grizzly bear and the gray whale.

As the rules currently stand, when an action requiring a permit is proposed the permitting agency responsible must consider whether a listed species or its critical habitat might be affected by the proposed action. If the agency decides that a listed species or its critical habitat may be affected, then the agency must informally consult with staff at the relevant service (FWS or NMFS depending on whether it is a terrestrial or marine matter). If the agency or FWS/NMFS biologists decide that the action is likely to cause harm then a formal consultation is required. If the project is thought to be unlikely to cause harm to a listed species or its critical habitat however, then the agency may proceed with issuing whatever permits are required.

Under the proposed new rules, agencies have to consult the services only if indirect or direct effects of their actions are an "essential cause" of and "significant contributor" to the likely harm. Under the new rule, if the agencies determine that their projects are not likely to harm a species, they would not need to seek an expert opinion from the services at all. If the agencies suspect harm to a species, however, they still must formally consult. Officials at the departments of Interior and Commerce argue that agencies are "fully qualified" to decide on their own whether their projects will harm a species or its habitat.

This isn't the first action by the Bush administration to weaken the ESA. An analysis by FWS and NMFS of newly introduced regulations under the National Fire Plan (similar to those proposed under the ESA) was released in January. These regulations allow the U.S. Forest Service and the Bureau of Land Management to decide whether to consult about prescribed burning and other fire-related actions. NMFS found that in 10 out of 10 cases:

• The agencies failed to describe spatial and temporal patterns of the action’s direct and indirect environmental effects, including direct and indirect effects of interrelated and interdependent actions;


• The agencies failed to identify Action Areas clearly;


• The agencies failed to identify all threatened and endangered species and any designated critical habitat that may be exposed to the proposed action;


• The agencies failed to compare the distribution of potential effects with the threatened and endangered species and designated critical habitat;


• The agencies failed to identify to establish, using the best scientific and commercial data available, that (a) exposure is improbable or (b) if exposure is likely, responses are insignificant, discountable, or wholly beneficial; and
• The agencies failed to base the determination on best available scientific and commercial information

FWS found other flaws in 25 out of 43 cases. It seems unlikely that removing the oversight provided by FWS and NMFS biologists from more projects that are likely to affect ESA listed species will do anything to improve these statistics. It seems immaterial whether agencies are "fully qualified" to decide on their own whether their projects will harm a species or its habitat if they have no will to protect those species and habitats.

The proposed rule is open for public comment until 15 September. From the FWS:

Submit your comments or materials concerning this proposed rule in one of the following ways:

(1) Through the Federal eRulemaking Portal at www.regulations.gov. Follow the instructions on the website for submitting comments.

(2) By U.S. mail or hand-delivery to Public Comment Processing, Attention: 1018-AT50, Division of Policy and Directives Management, US Fish and Wildlife Service, 4401 North Fairfax Drive, Suite 222, Arlington, VA 22203. We will not accept e-mail or faxes.

We will post all comments on www.regulations.gov. This generally means that we will post any personal information you provide us."