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Endangered Species Act Changes Give Agencies More Say

By Juliet Eilperin
Washington Post Staff Writer
Tuesday, August 12, 2008

The Bush administration yesterday proposed a regulatory overhaul of the Endangered Species Act to allow federal agencies to decide whether protected species would be imperiled by agency projects, eliminating the independent scientific reviews that have been required for more than three decades.

The new rules, which will be subject to a 30-day per comment period, would use administrative powers to make broad changes in the law that Congress has resisted for years. Under current law, agencies must subject any plans that potentially affect endangered animals and plants to an independent review by the Fish and Wildlife Service or the National Marine Fisheries Service. Under the proposed new rules, dam and highway construction and other federal projects could proceed without delay if the agency in charge decides they would not harm vulnerable species.

In a telephone call with reporters yesterday, Interior Secretary Dirk Kempthorne described the new rules as a "narrow regulatory change" that "will provide clarity and certainty to the consultation process under the Endangered Species Act."

But environmentalists and congressional Democrats blasted the proposal as a last-minute attempt by the administration to bring about dramatic changes in the law. For more than a decade, congressional Republicans have been trying unsuccessfully to rewrite the act, which property owners and developers say imposes unreasonable economic costs.

"I am deeply troubled by this proposed rule, which gives federal agencies an unacceptable degree of discretion to decide whether or not to comply with the Endangered Species Act," said Rep. Nick J. Rahall II (D-W.Va.), chairman of the House Natural Resources Committee, who asked for a staff briefing before the proposal was announced but did not receive one. "Eleventh-hour rulemakings rarely, if ever, lead to good government -- this is not the type of legacy this Interior Department should be leaving for future generations."

Bob Irvin, senior vice president of conservation programs at the advocacy group Defenders of Wildlife, questioned how some federal agencies could make the assessments, since most do not have wildlife biologists on staff.

"Clearly, that's a case of asking the fox to guard the chicken coop," Irvin said, adding that the original law created "a giant caution light that made federal agencies stop and think about the impacts of their actions." He said, "What the Bush administration is telling those agencies is they don't have to think about those impacts anymore."

But Dale Hall, who directs the Fish and Wildlife Service, said the move would not apply to major federal projects and would give his agency more time to focus on the most critically endangered species rather than conducting reviews of projects that pose little threat.

"We have to have the ability to put our efforts where they're needed," Hall said, adding that individual agencies will have to take responsibility if their projects do harm a protected species. "This really says to the agencies, 'This law belongs to all of us. You're responsible to defend it.' "

The new rules would also limit the impact of the administration's decision in May to list the polar bear as threatened with extinction because of shrinking sea ice.

At the time of that decision, Kempthorne said he would seek changes to the Endangered Species Act on the grounds that it was inflexible, adding that it had not been significantly modified since 1986. In a statement yesterday, the Interior Department declared that even if a federal action such as the permitting of a power plant would lead to increased greenhouse gas emissions, the decision would not trigger a federal review "because it is not possible to link the emissions to impacts on specific listed species such as polar bears."

Kempthorne said the new regulations included that language "so we don't inadvertently have the Endangered Species Act seen as a back door to climate-change policy that was never, ever intended."

Tim Coyle, senior vice president for governmental affairs at the California Building Industry Association, said in an interview that while his association would have to read the rules before making a judgment, he welcomes Kempthorne's statement on the polar bear because it offered "clarity on an issue that if it was left broad and ambiguous, could be a serious problem for the home-building industry here in California." He added: "For home builders, clarity in the rules is always, always helpful."

Although Kempthorne said he had received "encouragement from both sides of the aisle to see if we couldn't bring about steps that would make the Endangered Species Act more effective," his proposal opened a new front in the ongoing battle between the administration and Congress on the environment.

An aide to Sen. Barbara Boxer (D-Calif.), who chairs the Environment and Public Works Committee, said she, like Rahal, had requested but not received a briefing. The panel is drafting a letter to Interior and will hold an oversight hearing, the aide said.

In a statement, Boxer called the rules change "another in a continuing stream of proposals to repeal our landmark environmental laws through the back door" and added: "I believe it is illegal, and if this proposed regulation had been in place, it would have undermined our ability to protect the bald eagle, the grizzly bear, and the gray whale."

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