In late August, U.S. Department of the Interior (DOI) Secretary, Dirk Kempthorne, announced changes to the consultation process under the Endangered Species Act (ESA). The announcement was made in conjunction with the National Oceanic and Atmospheric Administration (NOAA) that has responsibility over marine resource consultations. The proposed rule seeks to clarify when formal consultation is applicable and to improve the informal consultation process. The DOI claims that the proposed changes are designed to reflect current practices. However, the changes have caused an uproar by groups that feel those alterations will undermine the scientific oversight required by the ESA.

In announcing the proposed rule changes, Secretary Kempthorne made clear they are driven in part by the Administration's concerns that the ESA will be used to impose limits on greenhouse gas emissions. On May 15, when the polar bear was listed as a threatened species under the ESA, Kempthorne stated that the law was not the right tool to set U.S. climate policy or to regulate greenhouse gas emissions. The DOI stated that the proposed changes are consistent with U.S. Fish and Wildlife Service's (FWS), "current understanding that it is not possible to draw a direct causal link between greenhouse gas [GHG] emissions and distant observations of impacts affecting species. As a result, it is inappropriate to consult on a remote agency action involving the contribution of emissions to global warming because it is not possible to link the emissions to impacts on specific listed species such as polar bears."

The proposed changes would impact what is known as the Section 7 consultation process that requires federal agencies to consult with the either the FWS or the National Marine Fisheries Service (NMFS)?an agency within NOAA?on proposed projects. The law also requires consultation for projects that are privately funded but require a federal permit. Under existing regulations, managers of a proposed project must assess if there are any endangered species in the area and if there will be any likely impacts to those species. In addition, the agency must consider the cumulative and indirect effects of the action. The findings of the biological assessment must be reported to the FWS, which must issue a letter agreeing with the assessment before a project can proceed.

"ESA consultations in the 21st century address increasingly complex issues. We need a regulatory framework to guide those consultations that is consistent with the ESA and will address new challenges such as climate change," said Kempthorne. "The existing regulations create unnecessary conflicts and delays. The proposed regulations will continue to protect species while focusing the consultation process on those federal actions where potential impacts can be linked to the action and the risks are reasonably certain to occur. The result should be a process that is less time-consuming and a more effective use of our resources."

The DOI claimed that the changes are designed to reduce the number of unnecessary consultations under the ESA. The proposed rule would only require formal consultation on projects for which an adverse impact is predicted. The rule explicitly designates when a consultation is not required, including when an action will have no effect on a listed species or critical habitat or if the effects are inconsequential or the action is an "insignificant contributor" to an effect.

The proposed changes also clarify definitions of cumulative effects and indirect effects and when there is clear and substantial evidence that an effect will occur. The proposed rule adds that the action must be the "essential cause" of the effect to the species. Additionally, the proposal specifically provides "cumulative effects" under the ESA has a narrower meaning than "cumulative impacts" under the National Environmental Policy Act because the former does not include future federal activities and because future impacts must be "reasonably certain to occur."

Regarding informal consultation, agencies would no longer have to consult with the FWS or NMFS on actions that are not likely to impact listed species or their habitats. The process of informal consultation still is available should agencies seek the expertise of the FWS or NMFS. However, new time limits are included to restrict informal consultation to 60 days, with an option of requesting an additional 60 days. If no written response is submitted during that timeframe, the project could move forward without analysis by either of those agencies.

"The purpose of these changes is to reduce ambiguity, improve consistency, and narrow interpretive differences, even within the Services. They are a positive step forward," said Dale Hall, FWS Director. "In 1986, our existing rules made sense. At that time very few federal action agencies had any in-depth expertise with Section 7 and listed species, but that is not the case today. We are not being good stewards of our resources when we pursue consultation in situations where the potential effects to a species are either unlikely, incapable of being meaningfully evaluated, wholly beneficial, or pose only a remote risk of causing jeopardy to the species or its habitat."

Opponents of the proposed rule raise the concern that the changes will leave discretion up to the agency performing the biological assessment and not to FWS or NMFS experts to assess if there will be an effect on species. One of the original authors of the 1973ESA, Congressman John Dingell expressed his outrage over the proposed changes. "The changes sought by the Bush Administration would seriously weaken the law, eliminating the requirement that scientists be the ones making decisions regarding science."

Senator Barbara Boxer, Chair of the Senate Environment and Public Works Committee, wrote to Kempthorne and urged the DOI to stop action on the rule changes: "Among the many serious flaws in the draft regulations is that they would allow federal action agencies to decide unilaterally that consultations with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service are not necessary. It is vital that the Fish and Wildlife Service and the National Marine Fisheries Service, the nation's primary wildlife agencies and the agencies with the most scientific expertise and experience, retain their responsibility in making such determinations." Senator Boxer has called for Kempthorne to appear at an oversight hearing scheduled for September 24.

The comment period for the proposed rule closed on September 15. (jas)