New Rule Limits Agency Consultation Under Endangered Species Act

In a move decried by many environmentalist groups, the Interior Department finalized a rule which changes the way government agencies administer and comply with the Endangered Species Act (ESA). This new rule allows agencies to decline a formal consultation (with NOAA or the US Fish and Wildlife Service) if the agency determines that the direct and indirect effects of its actions are not anticipated to lead to a taking of an endangered species, and where other specific requirements are met. (The final rule, as promulgated, and the explanation of the same are linked here. The Washington Post quoted Interior Secretary Dirk Kempthorne calling the move “‘a clarification’ he considered essential in order to narrow the law’s reach.” While some see this rule as a way to make government agencies’ ESA compliance more efficient, others believe it improperly weakens species and habitat protections under the ESA. The proper scope of ESA protections is sure to be a hot button issue as the Federal government transitions from the Bush to an Obama administration.