The Obama Administration is making changes to regulations finalized in the waning days of the Bush Administration, officially reinstating the Endangered Species Act (ESA) consultation process and formally reviewing a mountaintop-mining regulation, reports the Wildlife Management Institute. On April 28, Department of the Interior Secretary Ken Salazar and Department of Commerce Secretary Gary Locke announced that they would toss out the controversial changes to the ESA.

The day before, Salazar announced his move to reverse a rule affecting mountaintop mining near water bodies. However, on May 8, Salazar announced that he would not reverse a rule specific to polar bears that was finalized by the Bush Administration at the same time as the ESA consultation provision.

The ESA consultation changes made by the Bush Administration had loosened requirements for development projects, significantly reducing the types of projects that required formal consultation with federal biologists. These regulations, finalized in December 2008, were not well received by many conservation organizations and were specifically cited by the Obama Administration as an example of last-minute rule making that it would review. In March, Salazar put a temporary hold on implementation of the regulation and, in the Omnibus Appropriations bill, Congress authorized reversal of the rule without the formal review process.

"By rolling back this 11th hour regulation, we are ensuring that threatened and endangered species continue to receive the full protection of the law," Salazar said in a statement. "Because science must serve as the foundation for decisions we make, federal agencies proposing to take actions that might affect threatened and endangered species will once again have to consult with biologists at the two departments."

Within the Omnibus Appropriations bill, Congress also authorized the Interior Department to reverse regulations affecting polar bears conservation under the ESA. The so-called "4(d) rule"?named for the section of the ESA that allows the U.S. Fish and Wildlife Service to tailor regulatory prohibitions for threatened species?states that incidental take of polar bears resulting from activities outside the bear's range, such as emission of greenhouse gas, will not be prohibited under the ESA. Salazar announced this month that he would not revoke that rule because that simply would cause reversal to another, virtually identical interim rule issued by the past administration. Salazar said that Interior would closely monitor how the regulation was implemented to ensure that it properly addressed polar bear conservation.

"Revoking the current 4(d) rule would return us to an interim rule that would offer no more protections for the polar bear and would result in uncertainty and confusion about the management of the species. We must do all we can to help the polar bear recover, recognizing that the greatest threat to the polar bear is the melting of Arctic sea ice caused by climate change," Salazar said. "However, the Endangered Species Act is not the proper mechanism for controlling our nation's carbon emissions. Instead, we need a comprehensive energy and climate strategy that curbs climate change and its impacts, including the loss of sea ice. Both President Obama and I are committed to achieving that goal."

Continuing his efforts to evaluate last-minute rule making by the previous administration, Salazar announced in late April that he will begin the process to reverse mountaintop mining regulations that went into effect in January. The Department of Justice (DOJ) agreed that there are legal deficiencies in the rule.

Commenting that the regulation "simply does not pass the smell test," Salazar asked the DOJ to file a plea to remand the rule to Interior for further action. "Today we are taking another step toward changing how the Department of Interior does business and cleaning up a major misstep from the previous administration. I have closely reviewed the previous administration's mountaintop coal-mining rule, which allowed coal mine operators to dump mountain fill into stream beds, and have determined that it is bad public policy."

Mountaintop mining?the removal of the tops of mountains to reach coal seams?occurs primarily in Appalachian states. Waste rock is deposited in nearby valleys, many of which have small streams. Since 1983, coal companies were required to establish a 100-foot buffer around streams. The Bush Administration rule would have expanded that buffer to all waterways, but it would have substantially increased the activities that were exempted from the requirement and allowed companies to dump if they explained that there was no reasonable alternative. In addition, the rule would allow mining companies to change waterway flow as long as they repaired the damage later. Critics responded that the 100-foot buffer is not enough and that the restriction is rarely enforced. Although pleased with the decision to review the regulation, they argued that better protections should be put in place.

In making his announcement, Salazar stated that there would be a public comment period on how best to update and improve the rule. (jas)