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Interior, Commerce Restore Rule Requiring ESA Consultations

The Obama administration last Tuesday restored a rule that requires federal agencies to once again consult with federal wildlife experts at the U.S. Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA) -- the two agencies charged with administering the Endangered Species Act (ESA) -- before taking any action that may affect threatened or endangered species.

The action revokes an 11th hour Bush-era regulation that allowed federal agencies to forgo "broad interagency consultations" with the Interior Department's FWS and NOAA's National Marine Fisheries Service (NMFS) about potential harm to endangered or threatened species as required under the ESA.

Commerce Secretary Gary Locke and Interior Secretary Ken Salazar announced that the two departments were canceling the Bush-era rule, which they said undermined ESA protections. "By rolling back this 11th hour regulation, we are ensuring that threatened and endangered species continue to receive the full protection of the law...Federal agencies proposing to take actions that might affect threatened and endangered species will once again have to consult with biologists at the two departments," Salazar said.

In March President Obama directed the secretaries to review the Bush administration's action with respect to interagency consultation on ESA matters, and Congress, in the Omnibus Appropriations Act of 2009, specifically authorized the secretaries to revoke the regulation, Salazar said (see NGI, March 9). Locke and Salazar said the two departments will conduct a joint review of the 1986 consultation rules to determine if any improvements should be proposed.

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 Energy Regulatory Commission, to engage in often time-consuming consultations with the FWS and NMFS.

Sen. Lisa Murkowski (R-AK) protested the Obama administration's decision to "unilaterally overturn" the Bush regulation on ESA consultations. The administration's action prompted Murkowski to add her name to a hold on David Hayes to be deputy secretary of Interior. Sen. Robert Bennett (R-UT) placed a hold on Hayes' nomination in March, saying he was dissatisfied with Hayes' response to his questions about disputed Utah oil and natural gas leases (see NGI, March 23). The holds prevent the Senate from confirming Hayes until the issues are resolved.

"I'm disappointed that the administration would make such a dramatic and far-reaching change in an existing rule without complying with the long-standing federal process requiring public notice and comment by the American people and knowledgeable scientists," Murkowski said. "The decision to unilaterally overturn the rule undermines the formal ESA review process and the Administrative Procedure Act."

Murkowski said the decision was the latest in a series of disappointing actions by the Obama administration that have raised questions about its commitment to the nation's energy security (see related story). The new rule, combined with a finding that the polar bear is threatened by climate change, could be used by environmental activists to challenge almost any development anywhere in the country on the grounds that any increase in greenhouse gas emissions threatens the Arctic habitat of the polar bear, she said.

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