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Environmental Law

: ESA Blawg

FWS and NOAA formally announce final rule changing ESA Sec. 7 consulation process

By Keith Rizzardi

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73 Fed. Reg. 76272 / Vol. 73, No. 242 / Tuesday, December 16, 2008DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; DEPARTMENT OF COMMERCE; National Oceanic and Atmospheric Administration; Interagency Cooperation Under the Endangered Species Act; Final rule.

SUMMARY: With this final rule, the United States Fish and Wildlife Service and the National Marine Fisheries Service (collectively, ‘‘Services’’ or ‘‘we’’) amend regulations governing interagency cooperation under the Endangered Species Act of 1973, as amended (ESA). This rule clarifies several definitions, provides assistance as to when consultation under section 7 is necessary, and establishes time frames for the informal consultation process.

KEITHINKING: See prior ESA blawg entries (12/11/2008) and (11/24/2008) and (11/22/2008) and (10/24/2008)

EXCERPT: All aspects of formal consultation, as found in the 1986 regulations, remain intact. Nothing in this final rule allows action agencies to adversely affect listed species or critical habitat without consultation with the Services. Action agencies remain obligated to review their actions to determine if they ‘‘may affect’’ a listed species. In formal consultation, the action agency continues to be required to produce a biological assessment for ‘‘major construction activities,’’ to produce a consultation initiation package that describes the action to be considered, the specific area that may be affected by the action, any listed species or critical habitat that may be affected by the action, the manner in which the action may affect listed species or critical habitat, and cumulative effects. An action agency must submit any relevant reports to the Services and the action agency is still required to provide the Services with the ‘‘best scientific and commercial data available.’’ Further, nothing in this final rule prevents an action agency from engaging in informal consultation or technical assistance from the Service.

Full post as published by ESA Blawg on December 16, 2008 (boomark / email).