Obama Withdraws Bush-Era Endangered Species Regulation

Author(s): Scott B. Birkey, Clark Morrison

Source: CCN Client Alert

5/4/2009

The U.S. Fish and Wildlife Service and the National Marine Fisheries Service announced they are withdrawing their recent amendments to the regulations governing Section 7 consultations under the Endangered Species Act. Issued on December 16, 2008, the primary purposes of those amendments were to narrow the circumstances under which federal agencies are required to consult with the Services, to redefine several definitions in the Section 7 regulations, and to establish timeframes for the informal consultation process.

Acting under authority of the 2009 Omnibus Appropriations Act, the Services will roll back the amendments to the Section 7 regulations effective May 4, 2009, and will return to their pre-December 16, 2008 regulations. According to the Services’ announcement, the withdrawal of the amendments does not affect any action taken prior to the effective date of “this rule,” which appears to refer to the rule withdrawing the amendments. If so, then this may mean that actions which took place after the amendments to the Section 7 regulations went into effect, but before the May 4, 2009 rollback of those amendments, are still subject to the regulations as amended and do not need to be revisited by the Services in light of the May 4, 2009 announcement. Additional guidance may be necessary to clarify these kinds of timing issues.

Notably, the Services are using this opportunity to solicit public comments on potential improvements to the Section 7 regulations, including comments on the applicability of Section 7, the definition of “effects of the area,” methods to streamline both formal and informal consultation, consideration of effects related to global climate change, and so forth. These comments are due by August 3, 2009.

Many expected that under the Obama administration, the Services would revoke the Bush administration’s last-minute revisions to the Section 7 regulations. The Center for Biological Diversity, the State of California, and others filed lawsuits challenging these amendments shortly after they were published late last year. The primary point of contention generally involved the fact that the amendments allow federal agencies under certain circumstances to independently determine, without concurrence by the Services, whether the actions that they take, fund, or authorize would adversely affect listed species or critical habitat, thus triggering formal consultation requirements. With the rollback of the amendments, these and other contentious issues likely will be considered moot in this litigation and the debate shifted to the forum of public comments on the pre-existing Section 7 regulations, as invited by the Services in their announcement.

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