ESA Consultation: BLM Has Already Done What EPA Wants To Do
The Environmental Protection Agency, the Fish and Wildlife Service and the National Marine Fisheries Service recently proposed new regulations governing consultation between EPA and the Services under the Endangered Species Act. The proposed rules would allow EPA to determine that a pesticide registration is "not likely to adversely affect" endangered species without further review from the Services. The proposed rules are very controversial. Environmental groups are reportedly threatening to sue EPA and the Services if they promulgate final rules similar to the proposals. Winston is just a dog, but he is confused. The Bureau of Land Management and the Services promulgated essentially the same new ESA consultation rules six months ago without an uproar. Why are the Enviros so up in arms about the proposed EPA rules?

The new BLM rules were promulgated as final on December 8, 2003, with FWS, NMWFS, the National Park Service, and the Forest Service joining in the rulemaking. The new rules "streamline consultation" under the ESA on projects supporting the National Fire Plan. Among other changes, they allow "the Action Agency" (e.g., BLM or the Forest Service) to determine that the agency action in question is "not likely to adversely affect" a listed species or critical habitat "without informal consultation or written concurrence from the Service." Winston does not have a subtle mind, but he cannot see any significant difference between these final BLM rules and the proposed EPA rules on the issue that is reportedly most dear to the Enviros.

The current ESA Section 7 consultation process does not work well. Sometimes it does not work at all. Anyone who sincerely cares about protecting endangered species should support changing the ESA consultation process to make it work. The final BLM rules and the proposed EPA rules would create a process that might actually help endangered species for a change. Winston is surprised the Enviros don't support them.