Download Locations

• Open CRS (User submitted)
• WikiLeaks

Summary

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 carry out programs to conserve endangered and threatened species. The agencies, in consultation with the Services, 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. The deadline for comments is October 15, 2008. While regulatory changes cannot modify the requirements placed on the agencies by the statute itself, the revisions are intended to do three things, according to the Services: clarify when consultation is applicable; clarify certain definitions, including the correct standards for the effects analysis; and establish time frames for consultation. The Services indicated that the proposed regulations would serve to clarify that the ESA did not require consultation on greenhouse gas emissions' contribution to global warming and its associated impacts on listed species. The proposed regulations would give federal agencies greater responsibility in determining when and how their actions may affect listed species. They also attempt to clarify issues of causation -- when an agency action truly affects the well-being of listed species or critical habitat. The changes modify administrative definitions and alter the process for consultations. The definitions that are modified include cumulative effects, effects of an action, and biological assessment. The process changes add five criteria for determining when consultations do not apply, instead of the current single factor (whether the agency action was discretionary or not). The Action Agency would continue to determine whether consultation was required in all cases. The processes for formal and informal consultations also would be 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 finding during informal consultation that its action is not likely to adversely affect a species or habitat. If the Service failed to respond in writing, the project could continue without further consultation at the discretion of the Action Agency.

XML