Upcoming Changes to Endangered Species Regulations: Part II

On Monday, I wrote about the upcoming proposals to amend the Endangered Species Act regulations for listings, critical habitat, and special 4(d) rules.  In this post, I will discuss the possible changes to section 7 consultations.

Before we talk details, my overall impression of the proposals is this: despite their broad scope, I’m not aware of much that would change the fundamentals of endangered species conservation.  If I were in the driver’s seat in this Administration, I would focus on a different set of improvements to expedite recovery.  For example, a better system for how the U.S. Fish and Wildlife Service allocates its recovery funds would lead to many more recoveries and extinctions averted.  And investing in electronic permitting and reporting would expedite permit reviews and allow our wildlife agencies to more easily monitor the impacts of infrastructure and other projects.  But that’s not what the Administration has put on the table, so let’s talk about what appears to be coming.

For hundreds of listed species, section 7 is their main source of protection.  This makes it a vital conservation tool, but also one that’s highly controversial.  Congress has held dozens of hearings on the consultation process and tried to amend it many times.  All the while, few people have quantified the outcomes of the process, leaving many open questions about exactly how it is contributing to conservation.

The Administration has revealed little about its proposed changes to section 7.  The National Oceanic and Atmospheric Administration, however, did recently offer some details, which are verbatim:

  • Alternative consultation mechanisms to provide greater flexibility
  • Revisions to the definitions of ‘destruction or adverse modification’ and ‘effects of the action’ to provide greater clarity and consistency
  • Timely deadlines for informal consultations

The “alternative consultation mechanism” and “effects of the action” probably relate to a controversial rule the second Bush Administration finalized that, among other things, allowed federal agencies to not consult on certain types of actions, including those related to greenhouse gas emissions.  The Obama administration revoked the rule with Congress’s help in 2009 and promised a “comprehensive” and “thorough” review of the consultation process.  That resulted in changes like the 2015 revision to the programmatic consultation rule, the 2016 memo on streamlining consultations for recovery actions, and the 2018 guidance on implementing section 7(a)(1).  I suspect that the upcoming alternative consultation proposal will reflect themes from the Bush Administration rule, especially because the same ESA-expert (David Bernhardt) played a main role in developing both.

I already covered the “destruction or adverse modification” proposal in my first blog, so let’s talk about the proposed deadlines for informal consultation.  As a reminder, there is currently no overall deadline for informal consultations, which has frustrated some in the regulated community.  The upcoming proposals might consider a deadline similar to the one from the Bush rule, which was 60 days with the option for a 60-day extension.  For reference, the median duration of U.S. Fish and Wildlife Service consultations, from official start to finish, is only 13-14 days.  But this timeframe does not account for the planning and discussions that often occur before the official start of consultation.  If the Administration does propose deadlines for informal consultation, a key question is when the consultation clock starts to tick.

I also would not be surprised if the Administration amends the section 7 regulations to address the legal and legislative controversy surrounding when an existing consultation needs to be reevaluated.  This “reinitiation” of consultation was the main issue in Cottonwood Environmental Law Center vs. U.S. Forest Service, which promoted a Congressional rider.  If FWS can alleviate this political pressure by modifying its trigger for reinitiating consultation in response to a new listing or critical habitat designation, I suspect the agency will seriously consider doing so.

I will continue to cover the proposed rulemaking, which might hit the streets around the end of this month.  If you have questions about how these proposals might affect your work, you are welcome to contact me.

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