New ESA consultation rules officially rescinded, but debate encouraged to continue
74 Fed. Reg. 20421 (Monday, May 4, 2009) / Vol. 74, No. 84
DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; 50 CFR Part 402 / DEPARTMENT OF COMMERCE; National Oceanic and Atmospheric Administration; 50 CFR Part 402 / Interagency Cooperation Under the Endangered Species Act
ACTION: Final rule.
SUMMARY: With this final rule, the Department of the Interior and the Department of Commerce amend regulations governing interagency cooperation under the Endangered Species Act of 1973, as amended (ESA). In accordance with the statutory authority set forth in the 2009 Omnibus Appropriations Act (Pub. L. 111–8), this rule implements the regulations that were in effect immediately before the effective date of the regulation issued on December 16, 2008, entitled ‘‘Interagency Cooperation Under the Endangered Species Act.’’
EXCERPT: We believe that it is appropriate to withdraw the new regulations and return to the ‘‘status quo ante’’ pending a comprehensive review of the ESA section 7 consultation regulations. Recognizing the widespread public concern about the process in the promulgation of the new regulations, the Departments agree that a thoughtful, in-depth, and measured review would be beneficial before a determination is made regarding potential changes to the section 7 consultation regulations. The section 7 consultation process is important for the conservation of species and critical habitat and involves complex and highly technical issues; the input from career conservation biologists who have experience with the section 7 consultations and who can provide scientific and technical expertise should, of course, be a key part of the process. In addition, any rulemaking process should be accorded a sufficient period of time to provide for careful, meaningful involvement of the affected public and to ensure consistency with the purposes of the ESA. This thorough review will allow the Departments to identify a range of options and implement improvements, if appropriate...
KEITHINKING: The great debate over the ESA consultation process, begun in the waning days of the Bush Administration, appears poised to continue, and the announcement solicits public input regarding potential changes to the regulations, including such controversial topics as:
- the definitions of ‘‘jeopardy’’ and ‘‘adverse modification’’
- the definition of ‘‘effects of the action’
- the definition of ‘‘action area’’,
- the appropriate standard of causation,
- the informal consultation process,
- methods to streamline both formal and informal consultation,
- flexibility for ‘‘low effect’’ consultations,
- formal consultation requirements,
- programmatic consultations,
- consideration of effects related to global climate change,
- incidental take statements, and
- reinitiation standards.