On October 27, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) released the draft environmental assessment of their proposed changes to the Endangered Species Act (ESA) consultation process. The report finds that there would be no significant impacts to listed species or designated critical habitat if the changes were implemented. However, critics of the changes claim that the assessment was rushed in order to finalize it before President Bush leaves office, reports the Wildlife Management Institute. A 10-day comment period on the draft environmental assessment closed on November 6.

The proposed changes to the ESA's Section 7 consultation process were released in mid-August. Their intentions were to clarify when formal consultation on potential impacts to listed species is applicable and to improve the informal consultation process (see the September 2008 issue of the Outdoor News Bulletin for a detailed review of the proposed changes). The FWS and NMFS cite the increasing number of consultations and the outdated consultation process as the impetus for the policy changes. According to the draft assessment, the number of consultations completed by the FWS doubled between 1996 and 2002. In 2006, there were 39,346 requests were for technical assistance, nearly 70 percent of which were for informal consultations; more than 1,900 were for formal consultations.

In the draft environmental assessment's review of potential actions, the FWS and NMFS outlined their finding of no significant impact on the preferred alternative as well as reasons for not supporting other alternatives. The report's conclusion of no significant impacts found that none of the changes would individually or collectively have any significant environmental impacts: "all involve process modifications to implementation of section 7 of the ESA?[and] these proposed limited regulatory changes are administrative and are not anticipated to have any significant environmental impacts on listed species or designated critical habitat."

The report also pointed out that the no-action alternative would not lead to the most effective implementation of the ESA because the FWS and NMFS are already experiencing workload increases and agency costs associated with the current implementation of the regulations: "Such increased workloads and costs would continue to divert the Services' limited resources from either more rapid responses to requests for informal and formal consultations, thus delaying the projects in question, or from actions aimed at on-the-ground conservation efforts for listed species. In either case, the resources used for carrying out the current consultation process, as opposed to the one that would result from implementation of the proposed action, would be expended largely on review of projects that are unlikely to adversely affect listed species."

The final alternative reviewed would implement the proposed revisions but also would create an additional role for the Services to increase confidence in action agencies determinations without consultation. This could include detailed guidance, including templates for use by the action agencies in documenting their determinations regarding the potential effects of their actions, as well as training for action agencies. This alternative could provide further assurance that implementation of the regulatory modifications is consistent with the intent of the changes. But the report cautioned that, "the Services will need to consider the potential administrative burdens of taking on an additional role and weigh them against the purpose and need for the action."

Since the proposed revisions were released, there has been a substantial uproar by groups that believe the changes would roll back species protection. According to critics, the changes will leave discretion up to the agency performing the biological assessment and not to FWS or NMFS experts. Critics also cite the rapid pace of the process as evidence that the Bush Administration is trying to push unpopular changes through before it leaves in January. More than 300,000 comments were received on the proposed changes by the time the comment period closed in mid-October and agency reviewers had less than a week to review the comments. In addition, there were only 10 business days for comment on the environmental assessment.

"This proposed regulation, the associated environmental assessment, and the public comments on both must receive the proper level of review," stated Chairman of the House Select Committee on Energy Independence and Global Warming, Edward J. Markey in an October 28 letter to FWS Director Dale Hall. "Such a hasty review seems certain to ensure that the public will not be properly heard in evaluating this proposed significant change and its environmental impact to one of our nation's most important environmental laws. Moreover, the truncated public comment periods give the unseemly impression that the Administration may be attempting to rush these rules changes through before it leaves office, regardless of [the rule changes'] environmental impact."

However, the Administration indicated that the proposed modifications are necessary to address the potential flood of consultation requests that may arise due to the impacts of climate change on species. The listing of the polar bear as a threatened species, for example, raised the specter of trying to establish causal connections between particular greenhouse gas emissions from individual power plants and impacts to species.

"By making these changes, we prevent an expansion of the ESA into an inefficient, indirect avenue for greenhouse gas regulation, a purpose for which the ESA was never intended?and for which it is ill suited, without exposing listed species to any additional harm," commented Secretary of the Interior Dirk Kempthorne. "The Fish and Wildlife Service and NOAA Fisheries already perform thousands of consultations each year. This rule would allow land managers to maintain their focus on projects that will most help species recovery where there is a danger to the species." (jas)