? _ RL34641 - Changes to Consultation Regulations of the Endangered Species Act (ESA)
2-Feb-2009; Kristina Alexander and M. Lynne Corn; 31 p.

Abstract: The Endangered Species Act (ESA) requires all federal agencies to consult with either the Fish and Wildlife Service or the National Marine Fisheries Service (the Services) to determine whether their actions may jeopardize the continued existence of a listed species or destroy or adversely modify designated critical habitat of listed species. In August 2008, FWS and NMFS proposed changes to the regulations that address the consultation process. Final regulations were published December 16, 2008, and took effect on January 15, 2009.

The revisions are intended to do three things, according to the Services: clarify when consultation is applicable; clarify certain definitions; and establish time frames for consultation. The Services argue that the new regulations show the ESA does not require consultation on greenhouse gas emissions’ contribution to global warming and its associated impacts on listed species.

The regulations give federal agencies greater discretion to determine when and how their actions may affect listed species. They also address issues of causation—when an agency action truly affects the well-being of listed species or critical habitat. The changes modify definitions and alter the process for consultations. The definitions that are modified include cumulative effects, effects of an action, and biological assessment. The changes add criteria for determining when consultations do not apply. The Action Agency continues to determine whether consultation is required. The processes for formal and informal consultations were revised to include a 60-day deadline (which may be increased to 120 days) for the appropriate Service to concur in writing with an Action Agency’s finding during informal consultation. If the Service fails to respond in writing, the project could continue without further consultation at the discretion of the Action Agency.

A joint resolution (H.J.Res. 18) was introduced to revoke the regulations using language under the Congressional Review Act (5 U.S.C. §§ 801-808), which allows Congress to nullify regulations within 60 legislative days of promulgation. [read report]

Topics: Legislative, Biodiversity

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