New rules for ESA consultations proposed

The U.S. Fish and Wildlife and NOAA Fisheries are proposing to change the rules regarding how other federal agencies consult about effects on threatened and endangered species.

Under a new proposed rule, the Bureau of Land Management and U.S. Forest Service would not be required to enter into a new consultation each time new information regarding the effect of a land management plan on protected species or critical habitat comes to light.

The U.S. Fish and Wildlife Service and NOAA Fisheries released the new proposed rule to update the consultation process under Section 7 of the Endangered Species Act.

The rule would permit the agencies to consider the new information when evaluating and permitting specific actions under the land management plan.

“This action will improve the efficiency of the consultation process, while also ensuring that important new information that may affect listed species or critical habitat is considered prior to actions being taken,” said USFWS Director Aurelia Skipwith in a press release.

Both the Federal Land Policy and Management Act of 1976 and the National Forest Management Act require the BLM and the Forest Service, respectively, to develop and periodically revise land management plans for public lands under their jurisdiction. Such plans are broad documents that guide natural resource management but do not generally authorize specific action —  and they typically take years or even decades to complete. Under the proposal, new information on the potential impacts to listed species would be considered when the agencies move to issue permits or otherwise approve specific actions outlined in the land management plans.

In a 2015 lawsuit, a federal appeals court found that the USFS should have reinitiated consultation with the USFWS when critical habitat was designated for the Canada lynx (Lynx canadensis) in national forests. In response to that lawsuit, the USFWS updated its regulations, adding a new paragraph clarifying that an agency does not need to reinitiate consultation on an approved land management plan when a species is listed as threatened or endangered or when new critical habitat is designated, as long as any actions that could affect the newly listed species or designated critical habitat will be addressed through a separate action-specific consultation.

Last week’s proposal addresses a related issue that arose from that 2015 lawsuit, clarifying that the duty to reinitiate consultation also does not apply to when new information reveals additional or different effects of the plan on already-listed species or previously-designated critical habitat, as long as any further actions under the plan will be subject to consultation.

The USFWS is accepting comments on the proposal until Feb. 11.

Read TWS’ Standing Position on Threatened and Endangered Species in the U.S. and Position Statement on the U.S. Endangered Species Act