CPR Scholars Submit Comments on Reforming ESA's Inter-Agency Consultation Regulations

Today, I joined CPR Member Scholars Mary Jane Angelo, Holly Doremus, and Dan Rohlf in submitting comments to the U.S. Fish and Wildlife Service (FWS)—one of the agencies charged with primary responsibility for executing the Endangered Species Act (ESA)—suggesting several ways to improve the regulations for implementing interagency consultations under the Act. Under Section 7 of the ESA, which governs interagency consultations, any time that a federal agency like the Department of Defense or the Department of Transportation wants to take an action that will potentially harm an endangered species or its habitat, that agency must consult with either FWS or the National Marine Fisheries Service (NMFS)—depending on what kind of species is involved—to determine whether and how the action will affect the species or its habitat. Through this consultation, the agency is supposed to determine how to alter its action to avoid harming a listed species or preventing the listed species from recovering.

The Section 7 consultation process is one of the most important components of the ESA, since the federal government is perhaps the single largest threat to endangered species. Recently, the Bush Administration cast the spotlight on Section 7 when it passed a set of midnight regulations that would have allowed federal agencies to decide on their own, without consulting FWS or NMFS, whether their actions would harm an endangered species—effectively sidelining FWS and NMFS from the consultation process. CPR Member Scholars submitted comments at the time criticizing the regulations, and sent a letter in April to the Secretaries of the Departments of the Interior and Commerce, urging them to withdraw the rule. Fortunately, the Secretaries heeded the advice from CPR scholars and many others and withdrew the rule in May.

At the same that they announced the withdrawal of the Bush midnight regulations on Section 7, the Secretaries also invited the submission of comments “related to ways to improve the section 7 regulations while retaining the purposes and policies of the ESA.”

The CPR Member Scholars' comments submitted today recommend that FWS and NMFS:

• Broaden the scope of agency actions subject to Section 7 consultations to include all agency actions;
• Amend the regulatory definitions of “cumulative effects” and “indirect effects” to more closely align with the guidelines for implementing the National Environmental Policy Act (NEPA);
• Amend the regulatory definitions of “destruction or adverse modification of critical habitat” and “jeopardize the continued existence of” so that they better enable FWS and NMFS to provide for the recovery of listed species, and so that they are better grounded in biological science;
• Stop considering any new regulatory proposals that would provide federal agencies with the authority to determine on their own whether a Section 7 consultation is required for a proposed action
• Ensure that the Environmental Protection Agency fully comply with the Section 7 consultation process when regulating pesticides under the Federal Insecticide, Fungicide and Rodenticide Act and when developing water quality criteria for the protection of aquatic life under the Clean Water Act
• Improving the manner in which they track and monitor federal agencies' efforts to comply with recommendations made during the Section 7 consultation process and the actual outcomes that are achieved by agency efforts to comply with these recommendations; and
• Explore ways to use the often ignored provisions of section 7(a)(1) of the ESA—which requires that all federal agencies implement programs for the conservation of endangered species—to address the threats posed to endangered by global climate change.

On the whole, we are very heartened by what this invitation for comments portends for the future of the ESA. It suggests that the Obama Administration is not satisfied with merely reacting to undo the efforts by the Bush Administration to gut the ESA’s Section 7 consultation process. Instead, the Obama Administration appears interested in moving forward to find ways to affirmatively improve the way this crucial program of a crucial law is executed. Admittedly, these are very preliminary steps, but they are undeniably in the right direction.