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Obama Restores ESA Consultations with Interior, Commerce Agencies

President Obama signed a memorandum last Tuesday that changes the course on a Bush-era regulation that allowed federal agencies to proceed with projects without consulting with the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) about potential harm to endangered or threatened species and plants as required by the Endangered Species Act (ESA).

In December the Bush administration issued rules that would allow federal agencies to forego "broad interagency consultations" with the Interior Department's FWS and/or the Commerce Department's NMFS on ESA matters before issuing project certificates or permits. The Bush rule was aimed at speeding up project reviews and the permitting process.

The action by Obama directs agencies to return to "the prior long-standing consultation and concurrence practices involving the FWS and NMFS" while the Interior and Commerce secretaries review the Bush-era regulation to "determine whether to undertake new rulemaking procedures with respect to consultative and concurrence processes."

This turnaround in the ESA policy is another blow to the energy industry, requiring oil and natural gas permitting agencies and energy regulators, such as the Federal Regulatory Commission, to engage in often time-consuming consultations with the FWS and NMFS.

Rep. Doc Hastings of Washington, the ranking Republican on the House Natural Resources Committee, blasted the administration's action. "The federal government should not be taking actions that could stall vital transportation, infrastructure and energy projects that create new jobs," he said.

"We all agree on the need to protect endangered species, but the intent of the [ESA] was never to tie up projects...in endless bureaucratic regulations and lawsuits by special interest groups...Furthermore, there is no evidence that the existing rule has caused harm to any listed species and federal agencies are still responsible for ensuring that their actions do not cause harm."

Meanwhile, Committee Chairman Rep. Nick J. Rahall (D-WV) applauded Obama's action. "I wholeheartedly support the president's proposal to restore the protections for endangered species that the Bush administration spent so many years trying to undermine. It is one more indication that the new administration truly...is committed to the protection of our natural resources and our environment."

Rep. Edward Markey, a long-time critic of the energy industry, echoed the sentiment, saying the Obama administration was "reversing one of the last industry giveaways of the Bush administration."

This is the latest in a series of setbacks for the oil and gas industry since Obama took office in late January. Last month the Interior Department delayed the completion of the new five-year offshore leasing plan (2010-2015) that was issued in the final days of the Bush administration (see NGI, Feb. 16). The plan proposed opening up long-banned areas off the East and West coasts and in the eastern Gulf of Mexico to drilling.

Interior also canceled producer leases to develop oil and natural gas on 130,000 acres of public lands in Utah. The action overturned the results of a final oil and gas lease auction held in the last days of the Bush administration (see NGI, Feb. 9).

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