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Federal Wildlife Agencies Propose Changes to Endangered Species Act Regulations: Comment Period Extended to October 14

By: Robert D. Thornton, Paul S. Weiland
09/16/08

On August 15, 2008, the United States Fish and Wildlife Service and National Marine Fisheries Service, which are responsible for implementing the Endangered Species Act ("ESA"), issued a proposed rule amending the regulations that govern inter-agency consultation under section 7(a)(2) of the ESA.  The agencies extended the comment period on the proposed rule to October 14 in a Federal Register notice published on September 12.  Because the proposed rule would be the first significant change to the joint consultation regulations since 1988, the regulated community has an important interest in the content of the rule.  There are four aspects of the proposed rule that merit consideration.

First, the proposed rule clarifies what is required in any analysis of the indirect effects of a proposed action on ESA protected species and their critical habitat. The proposed rule states the indirect effects of the action require analysis only if the proposed agency action is an "essential cause" of the indirect effects. Moreover, the effect must be reasonably certain to occur and that conclusion "must be based on clear and substantial information." The proposed rule may be helpful in clarifying both the extent to which indirect effects require analysis and the type of information used in making that determination.

Second, the preamble to the proposed rule indicates there is no requirement to consult on the contribution of greenhouse gas ("GHG") emissions to global warming and any associated impact on listed species. For example, the preamble states consultation would not be required for a new highway based on the argument that the highway may result in changes in GHG emissions from vehicular traffic. The proposed rule asserts that GHG emissions from building one highway are not an "essential" cause of any impacts associated with global warming and also states any such effects would be later in time and not reasonably certain to occur. The preamble then states that the building of one highway is likely to be "an insignificant contributor" to any GHG-related impacts and any such impacts are not capable of being identified or detected in a manner that permits evaluation. Proponents of projects involving direct or indirect air emissions, who are concerned about how the ESA may affect such projects, will find this aspect of the proposed rule of considerable interest.

Third, the proposed rule provides that a federal agency need not engage in consultation pursuant to § 7 of the ESA if the agency determines that the proposed action will not result in a take of listed species and that the action (1) will have no effect on listed species or their critical habitat, (2) is an insignificant contributor to any such effects, or (3) the risk of species' impacts is remote. The threshold requirement for a no consultation decision is that no take is anticipated for the agency action. This provision, which has attracted significant criticism from a number of environmental organizations, is intended to clarify when ESA consultations are, in fact, required.

Finally, there is an issue not addressed in the proposed rule that perhaps should be addressed in comments. Currently, when a biological opinion is prepared following an ESA consultation, it includes all existing takes in the baseline and then considers the additional impact of the proposed action when added to the baseline. Sometimes this results in previously considered actions with greater impact than the new proposed action being "grandfathered" in and the new action bearing a disproportionate share of the conservation burden. Some commentators have argued for a comparative impacts analysis to address this issue. The proposed rule amends the definition of "effects of an action" and, therefore, opens the door to the issue of comparative versus cumulative impacts.

The proposed rule is available here. If you have questions about the proposed rule or would like to talk about this e-alert, please contact George Mannina, Rob Thornton, or Paul Weiland.

George Mannina is a Partner in Nossaman's Washington, DC office who has more than three decades experience with environmental litigation and government relations. He has demonstrated expertise with oceans and fisheries law, the Endangered Species Act (ESA), the Superfund Natural Resource Damages and the Clean Water Act (CWA). He can be reached at 202.887.1491 or gmannina@nossaman.com.

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 and is nationally recognized as an expert on the Endangered Species Act and regional habitat conservation plans. 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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