The Obama administration 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 that administer 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. Congress, in the Omnibus Appropriations Act of 2009, specifically authorized the secretaries to revoke the regulation (see Daily GPI, March 4). 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.

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