Departments of the Interior and Commerce Outline Proposed Changes to Endangered Species Act Programs as Part of Government-Wide Regulatory Reform Effort

The White House recently unveiled plans to improve the federal regulatory system developed in response to an Executive Order issued by President Obama, which include a proposal by the Fish and Wildlife Service and National Marine Fisheries Service to improve administration of the Endangered Species Act (ESA).  The proposal is reproduced in Departmental workplans submitted by both Interior (pdf) and Commerce (pdf).  It includes the following actions:

  • Minimize requirements for written descriptions of critical habitat boundaries in favor of map- and internet-based descriptions. Map- and internet-based descriptions are clearer and more accessible methods of showing critical habitat boundaries. Additionally, reducing written boundary description requirements will save taxpayer money.
  • Clarify, expedite, and improve procedures for the development and approval of conservation agreements with landowners, including habitat conservation plans, safe harbor agreements, and candidate conservation agreements.
  • Expand opportunities for the states to engage more often and more effectively in the implementation of the ESA’s various provisions, especially those pertaining to the listing of species.
  • Review and revise the process for designating critical habitat to design a more efficient, defensible, and consistent process.
  • Clarify the definition of the phrase destruction or adverse modification of critical habitat, which is used to determine what actions can and cannot be conducted in critical habitat.
  • Clarify the scope and content of the incidental take statement, particularly with regard to programmatic actions or other actions where direct measurement is difficult. An incidental take statement is a component of a biological opinion that specifies the impact of an incidental taking of an endangered or threatened species and provides reasonable and prudent measures that are necessary to minimize those impacts. Greater flexibility in the quantification of anticipated incidental taking could reduce the burden of developing and implementing biological opinions without any loss of conservation benefits.

In addition, both the Departments of the Interior and Commerce propose to craft a multi-faceted strategy to address the challenge of the conservation of endangered species and the administration of the Federal Insecticide, Fungicide, and Rodenticide Act.  Early media coverage of the Administration's effort include this article.  (The Hill, May 26, 2011, by Andrew Restuccia.)

  • Paul S. Weiland
    Partner

    Paul Weiland is chair of Nossaman’s Environment & Land Use Group.  He focuses his practice on litigation, permitting, and compliance counseling.  Paul’s clients include public agencies, publicly regulated utilities, private ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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