Bush Administration Revises ESA Section 7
Consultation Regulations
By William G. Myers III

December 12, 2008

Four months to the day after proposing changes to the Endangered Species Act (“ESA”) Section 7 consultation regulations, the Secretary of the Interior announced that Interior and the Department of Commerce had finalized regulations clarifying the consultation process.  The final rule will take effect 30 days after publication in the Federal Register.  It is expected that the regulations will be in effect prior to President-elect Obama’s inauguration. 

The final rule has generated a great deal of interest in the regulated community, the environmental community, and among members of Congress that represent those constituencies.  It is intended to clarify definitions regarding effects and causation, streamline the process by eliminating unnecessary consultations, and address the treatment of climate change issues in the consultation process.

Section 7 of the ESA requires that each federal agency (the “action agency”) consult with the U.S. Fish and Wildlife Service (for terrestrial and freshwater species) or the National Marine Fisheries Service (for marine species) (collectively “the Services”) to ensure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of any critical habitat of such species.  Based on the broad language of the statute, consultation is required for a variety of federal authorizations, such as a wetlands permit under Section 404 of the Clean Water Act or a right-of-way over federal lands.

Following publication of the draft regulation (73 Fed. Reg. 47868 (Aug. 11, 2008)), the Services received 230,000 public comments, mostly as form letters.  The Services sorted through the comments and revised the proposed regulations but kept the heart of the proposal.  Under the final rule, action agencies must still follow Section 7 consultation procedures except in certain circumstances where the action is not anticipated to adversely impact any listed species and: 

• where the action has no effect on a listed species or critical habitat, or
• where the action is wholly beneficial to listed species, or
• where the effects of the action cannot be measured or detected in a manner that permits meaningful evaluation using best available science, or
• where the effects of the action are the result of global processes and cannot be reliably predicted or measured or would result in an insignificant impact to listed species or are such that the potential risk of harm to a species is remote.

In addition, the new rule also changes the definition of “biological assessment,” “cumulative effects,” and “effects of the action.”  

The new authority for action agencies to make the initial determination whether to consult is of greatest concern to environmental groups.  A particular focus is that portion of the rule that allows agencies to determine whether the effects of their actions are manifested through global processes that cannot be reliably reproduced or measured.  These “global processes” refer to global warming and the inability of federal scientists to determine the impact of a specific action on global warming.  This portion of the final rule comports with Secretary Kempthorne’s statement in May 2008, when listing the polar bear under the ESA, that the listing was not intended to be a “back door” to climate change policy. 

In announcing the decision to revise the consultation requirements, the Director of the Fish and Wildlife Service, Dale Hall, noted that an action agency will still have the responsibility to make and defend its decision to not seek concurrence of the Services.  Interior Assistant Secretary Lyle Laverty added that federal line officers will continue to meet their consultation duties because an error in judgment that would permit the action agency to harm a listed species could subject the line officer to civil or criminal penalties.  These assurances were not enough, however, to assuage the concerns of environmental groups. 

Three environmental groups—the Center for Biological Diversity, Greenpeace, and the Defenders of Wildlife—sued the Secretaries of the Interior and Commerce on the day of the announced new rule.  The lawsuit, filed in the Northern District of California (08-cv-5546), seeks declaratory and injunctive relief from the final rule for alleged violations of the Administrative Procedures Act, the ESA, the National Environmental Policy Act, and the Regulatory Flexibility Act.  The plaintiffs allege that the new regulations are contrary to the ESA’s requirements under Section 7, that the public was not afforded an opportunity to adequately comment on the draft or final rules, and that the Services acted arbitrarily and capriciously in promulgating the final regulation.  Members of Congress have also indicated that they may attempt to stop implementation of the rule through legislative action under the Congressional Review Act. 

Environmentalists describe the rule as the most significant change in the ESA in more than 20 years.  The Administration describes the rule as a commonsense modification and clarification to the term “consultation,” which is not defined in the ESA.  Additional lawsuits are anticipated.