Interior Secretary Dirk Kempthorne last Monday proposed relaxing the Endangered Species Act of 1973 (ESA) to allow federal agencies in certain narrowly defined situations to decide on their own whether projects would threaten endangered species and plants. The move is aimed at reducing the workload by limiting "unnecessary consultations" among agencies over actions likely to have minimal impact.
The proposal would cut out the need for oil and gas permitting agencies and energy regulators, such as the Federal Energy Regulatory Commission, to engage in often time-consuming consultations with the U.S. Fish and Wildlife Service (FWS) and the Commerce Department's National Marine Fisheries Service (NMFS) on ESA matters before issuing project certificates or permits.
Responding to the findings of a 2004 Government Accountability Office report, the proposed regulations would allow federal agencies to determine the effects of their own actions on endangered species and plants, without seeking concurrence from the FWS or NMFS, in "some very specific narrow situations," according to a proposed rule that was published in the Federal Register.
"We intend to exclude from consultation those actions [in which the ESA effects] are so inconsequential, uncertain, unlikely or beneficial that they are, as a practical matter, tantamount to having no effect on listed species or critical habitat...We propose to exclude from the consultation requirement those effects of an action that are not capable of being meaningfully identified or detected in a manner that permits evaluation," said the proposed rule.
The intent of the proposed exclusions is to reduce the number of "unnecessary consultations" between federal agencies and the FWS and NMFS. "In light of the tremendous workload and consumption of resources that formal consultations require, the [FWS and NMFS] believe it is not an efficient use of limited resources to review literally thousands of proposed federal agency actions in which [a significant effect on the ESA] is not anticipated," it noted.
The proposed rule acknowledges that federal agencies nowadays are more experienced with the ESA, which Congress passed more than three decades ago. "We recognize that federal action agencies have more expertise now...and are much more aware of the consequences and significance of their findings...We are confident that federal action agencies will err on the side of caution. Further, federal action agencies will continue to have the option of 'informal consultation' for those situations when an agency is not confident in its conclusions or seeks more expertise."
The proposal provides agencies with guidance on the types of ESA-related situations that they can act on themselves, and which types demand consultations with either the FWS or NMFS. If approved, the proposed changes would be the broadest overhaul of the endangered species regulations since 1986.
The proposed changes came under immediate attack from Democrats and environmentalists. Rep. Nick Rahall (D-WV), chairman oft he House Natural Resources Committee, said he was "deeply troubled" by the revisions, the Associated Press reported. "The proposed rule...gives federal agencies an unacceptable degree of discretion to decide whether or not to comply with the Endangered Species Act."
John Kostyack, executive director of Wildlife Conservation and Global Warming at the National Wildlife Federation, echoed that sentiment. "With these changes, the Bush administration threatens to undo more than 30 years of progress," he said. "I have been working on the Endangered Species Act for 15 years and have never seen such a sneaky attack. To suggest that our nation's most important wildlife law could be gutted after a mere 60 days written comment period is the height of arrogance and disrespect for wildlife science."
But the relaxed ESA regulations would be good news for the energy industry. It would speed up the regulatory process at FERC for new natural gas pipelines, gas storage projects, proposed power transmission lines and other energy facilities. It also would hasten the process for drillers, particularly in the West, whose activities have often been hamstrung by the endangered species law.
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