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Federal Wildlife Agencies Issue Amended Consultation Regulations for Threatened and Endangered Species

By: Robert D. Thornton, Paul S. Weiland
12/30/08

On December 16, 2008, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service ("Services") published a final rule amending regulations governing interagency cooperation under Section 7(a)(2) of the Endangered Species Act ("ESA"). This rule, effective January 15, 2009, clarifies those circumstances in which agency action triggers consultation under Section 7(a)(2). Of particular interest, the new regulations seek to limit consultation requirements for the effects of individual sources of greenhouse gas ("GHG") emissions and their contribution to global climate change. The new rule also codifies several aspects of informal consultation, which may serve to streamline and provide increased predictability to the process. Finally, certain clarifications to the definition of direct, indirect, and cumulative effects should help federal agencies and applicants to determine the applicability of the Section 7 requirements to specific federal actions, and identify and evaluate project impacts on listed species and critical habitat.

The revised "Applicability" section of the regulations defines several categories of actions for which the Services believe consultation would not be necessary or beneficial. The existing "may affect" trigger for consultation is retained except in cases where no take is anticipated and any one of the following conditions is met:

i. The action has no effect on listed species or critical habitat.

ii. The effects of the action on listed species or critical habitat cannot be measured or detected in a manner that permits meaningful evaluation or are wholly beneficial.

iii. The effect of the action is manifested through global processes, such as global climate change for which current models cannot quantitatively link an individual action to localized climate impacts relevant to Section 7 consultation.

Although the rule seeks to limit analysis of a project's effects via climate change, the exception does not preclude all consideration of climate change in the consultation process. The effects of climate change on environmental conditions within the action area and/or the status of the species may need to be considered in the environmental baseline. Also, it will be important for federal agencies that determine an action fits under one or more of the applicability exceptions to the rule to develop an administrative record that supports the determination.

The Center for Biological Diversity has filed a complaint in U.S. District Court for the Northern District of California challenging the rule as violating the ESA as well as a number of other procedural and environmental laws. And the incoming Obama Administration will undoubtedly be under pressure to rescind or re-visit the rule. For these reasons, the ultimate fate of the rule is uncertain.

Robert Thornton has practiced environmental law for over twenty-eight years. He represents landowners, resource developers, and public agencies on a variety of environmental matters, including NEPA and CEQA compliance for complex projects. He can be reached at 949.833.7800 or rthornton@nossaman.com.

Paul Weiland is the Land Use Practice Group Leader at Nossaman. He counsels clients regarding environmental and land use matters and litigates such matters in trial and appellate courts under a variety of statutes, including the Endangered Species Act. He can be reached at 949.833.7800 or pweiland@nossaman.com.

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