Major changes to Endangered Species Act

San Francisco Chronicle – 12/12/08 Jane Kay, Chronicle Environment Writer

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(12-11) 20:28 PST — Interior Secretary Dirk Kempthorne announced major changes Thursday to the Endangered Species Act, causing environmental groups to charge that the “midnight rules” set to go into effect before President-elect Barack Obama takes office are intended to eviscerate the nation’s premier wildlife-protection law.

The regulations eliminate a requirement that federal agencies seek review by government scientists before approving logging, mining and construction projects to make sure the activities don’t endanger rare animals and plants.

In addition, the regulations say the law could not be used to protect polar bears, walrus, mountain frogs and other species vulnerable to the effects of global warming.

“The Bush administration is using this to go after our most imperiled wildlife and kick them when they are down,” said Janette Brimmer, an attorney with Earthjustice, an environmental group. “The act is our nation’s most important law for protecting wildlife like wolves, grizzlies, salmon and lynx.”

Reid Cherlin, a spokesman for the Obama-Biden transition team, said, “President-elect Obama will review all 11th-hour regulations and will address them once he takes office.” Obama has said he does not favor changing the Endangered Species Act.

Kempthorne, at a news conference in Washington, said that he knew changes to the act would evoke controversy but that he is certain the new rules would clear up confusion over the law that had existed for years.

“Nothing in the regulation relieves a federal agency of its responsibilities to ensure that species are not harmed,” he said.

Law covers 1,400 species The law protects 1,400 species. In the last eight years, there has been a slowdown in adding new plants and animals, building a backlog of hundreds of species waiting for scientific review and approval, including California’s furry Pacific fisher and Sierra Nevada yellow-legged frog.

The Interior Department proposed the new regulations in May and since has received nearly 300,000 comments, the vast majority opposing the changes. Hours after Thursday’s announcement, three environmental groups, Greenpeace, Defenders of Wildlife and Center for Biological Diversity, filed a lawsuit in U.S. District Court in San Francisco seeking to halt regulations that they say are inconsistent with the act.

The regulations don’t require federal agencies to seek consultation with U.S. Fish and Wildlife Service and National Marine Fisheries Service before approving projects, the lawsuit said.

In Congress, Rep. Edward Markey, D-Mass., called a hearing to review the regulations and said members would work to restore the act. Rep. Nick Rahall, D-W.Va., said members may try to eliminate the regulations by using a special congressional act that allows the review of newly adopted administrative rules.

Part of the new regulations prohibit regulators from taking into account the effects of greenhouse gases on habitats and on species. Kempthorne said his legal advisers concluded that considering global warming a threat to the survival of the polar bear would require tracking emissions to a particular factory and determining how that would melt Arctic ice and harm the bear.

“That’s completely wrong, and they’re just making that up,” said attorney Kassie Siegel of the Center for Biological Diversity, which is suing the federal government in an attempt to protect polar bears.

Federal agencies are supposed to look at sources of greenhouse gases from projects they approve, then analyze ways to reduce those emissions, Siegel said. “There’s no requirement to trace any molecule of DDT to the thinning of bald eagle eggs just as there’s no requirement to trace any molecule of carbon dioxide to the death of any particular polar bear,” she said.

In California, the requirement to consult with government biologists before construction projects is particularly crucial, said Mark Rockwell, California state representative of the Endangered Species Coalition, an alliance of 50 environmental, business, hunting and fish and religious groups in the state.

The U.S. Forest Service approves logging plans that might affect coastal coho salmon and steelhead, marbled murrelets and Pacific fishers on national forests. The U.S. Army Corps of Engineers give permits for filling wetlands.

Without the requirement, there’s no incentive for the agencies to seek consultation and a biological opinion, Rockwell said.

For example, the Bureau of Reclamation was forced by the current requirement to seek biological opinions on whether the amount of water being diverted from the southern part of the Sacramento-San Joaquin River Delta would hurt the delta smelt or harm chinook salmon.

Protections found lacking Environmental groups challenged opinions that water flows for the fish were adequate, and won decisions agreeing that the protections were indeed lacking in the plans.

“It was the biological opinions that led to the challenges,” Rockwell said. “If you don’t have an opinion, you have nothing to challenge.”

Under the new regulations, the federal agencies would have the discretion of deciding whether or not to ask for a consultation and opinion, Rockwell said.