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®: CRE Regulatory Action of the Week
Interior and Commerece Withdraw ESA Section 7 Consultation Rules
On May 4, 2009, the U.S. Department of Interior and the U.S. Department of Commerce published an immediately effective withdrawal of the Agencies' current regulations governing interagency cooperation under the Endangered Species Act. The Agencies used their statutory authority under sections 429(a)(1) and (2) of the 2009 Omnibus Appropriations Act (Pub. L. 111-8), to withdraw the current consultation rules without prior public comment. In addition to withdrawing the current rules, which were promulgated late in the Bush administration, the Agencies resurrected the rules before those rules. The ESA section 7 consultation rules that are now effective are the regulations that were in effect immediately before the effective date of the regulation issued on December 16, 2008, entitled ``Interagency Cooperation Under the Endangered Species Act.''
These rules may not last long. The Agencies ask the public to submit to them any comments on potential improvements to the ESA section 7 consultation rules by August 3, 2009. The Agencies say that they want
"all comments related to ways to improve the section 7 regulations while retaining the
purposes and policies of the ESA. By way of example, we solicit comments on: The applicability of section 7, the definitions of 'jeopardy' and 'adverse modification', the definition of 'effects of the action', the definition of 'action area', the appropriate
standard of causation, the informal consultation process, methods to streamline both formal and informal consultation, flexibility for 'low effect' consultations, formal consultation requirements, programmatic consultations, consideration of effects related to global climate change, incidental take statements, and reinitiation standards."
Click here to read Federal Register notice withdrawing rules
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