The Endangered Species Act

President Obama directs the Secretaries of Interior and Commerce to review a December 2008 Bush administration regulation that relaxed Endangered Species Act consultation requirements, and requests all agency heads to voluntarily continue pre-2008 consultation practices with FWS and NMFS pending that review. The memorandum does not itself revoke the regulation but uses discretionary language to encourage maintaining stricter interagency consultation.

Federal Register Open PDF 74 FR 9753

Impact dates

Date TBD
Review of December 2008 regulation and determination on new rulemaking

Key directives

Secretaries of Interior and Commerce to review December 16, 2008 regulation on ESA consultation
Determine whether to undertake new rulemaking on consultative and concurrence processes
All agency heads to exercise discretion to follow prior longstanding consultation and concurrence practices pending review
Secretary of Interior to publish memorandum in Federal Register

Who is ordered

Timeline

Immediate

Agency heads requested to exercise discretion to follow prior consultation practices

Near term (90d)

Secretaries of Interior and Commerce to review December 2008 regulation; potential new rulemaking

Long term

Possible new rulemaking on ESA consultation and concurrence processes

Risks & tensions

No hard deadline for review completion; 'request' language is non-binding
Memorandum explicitly disclaims creating enforceable rights, weakening legal force
Relies on agency discretion rather than mandatory directive, creating compliance uncertainty
Vague on whether prior administration's regulation will actually be rescinded or merely reviewed