On Thursday, December 11, 2008, the Bush Administration issued final regulations that will allow federal agencies to skip having to consult with either the U.S. Fish and Wildlife Service or the National Marine Fisheries Services before making a determination that no harm will come to an endangered species.  This change will have an impact on projects at airports that use federal funds.

In his prepared statement announcing the final regulations, Interior Secretary, Dirk Kempthorne emphasized that the responsibility to initiate consultation will still be with the federal agency undertaking the action.  The only difference, he stated, was when the federal agency determined that when:

  • an action is not anticipated to harass, harm, kill or otherwise “take” a listed species; and
  • The action has no effect what-so-ever on a listed species or critical habitat, such as replacing a culvert when the species is not present; or
  • The action is completely and totally beneficial, such as expanding the no hiking zone from 15 yards to 30 yards around nesting sites; or
  • The effects of the action are so insignificant that they can’t be detected or measured, such as when a federal project generates noise at such low levels that scientists can’t accurately detect its harm to a species; or
  • The effects of the action are the result of global processes that are too broad to measure.

This, however, is a marked change from the current rule where federal agencies first determine if their proposed action may affect a listed species or critical habitat.  If so, they must then proceed with either formal or informal consultation with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service.

How will this affect airport planning?  Since compliance with the Endangered Species Act is part of NEPA requirements, all Environmental Impact Statements are required to state whether the FAA has consulted with the Fish and Wildlife Service or the National Marine Fisheries Service and indicate their response.  Under the new rule, the FAA can make its own determination that the proposed action (i.e., runway expansion, terminal project, etc.) will not harm any endangered species.  The question remains, however, whether federal agencies, like the FAA, have the resources to make such a determination.  Moreover, because the FAA is not an expert in the field of endangered species, it will, most likely, provide another avenue of attack for opponents to a particular proposed project.

An Interior Department spokesman, Chris Paolino, said that the regulations were an "attempt to refocus the resouces, time and manpower of both the U.S. Fish and Wildlife Service and National Marine Fisheries to focus on those projects that have a measurable, adverse impact on endangered species."

Needless to say, environmental groups were not too pleased that in the last hours of the Bush Administration

Andrew Wetzler, Director of the Natural Resources Defense Council’s Endangered Species Program, commented on the NRDC’s website:

This administration has rejected anything with a whiff of science — so before sulking out the back door, they are going after rules that require Fish and Wildlife Service scientists to prevent harm to our last wild animals and places. Despite today’s feel-good statements, we remain convinced that these changes are illegal. We will look at the final language when it is published tomorrow, but I think we will see them in court.
Likewise, the National Wildlife Federation did not have anything good to say about the new regulations.  John Kostyack, Executive Director of Wildlife and Global Warming for the National Wildlife Federation, said:
This action eviscerates key protections that have helped safeguard and recover endangered fish, wildlife and plants for the past 35 years.
Our government is founded in a system of checks, balances and accountability.  President Bush has violated each of these principles by finalizing this rule in his waning days of power.
Word from the President-Elect’s camp is that they will rok to reverse the changes, but since the regulations go into effect before the President-Elect takes office, his administration will have to reopen the rulemaking process.