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36 Ecology L. Currents 139 (2009)

handle is hein.journals/ecolwcur36 and id is 1 raw text is: Stopping the Conversation: Amended
ESA Section 7 Regulations Put Species
At Risk
By Eric Biber and Cynthia Drew
The Endangered Species Act (ESA) is the primary legal tool in the
United States for the protection of biodiversity. Since its enactment in
1973, it has played a central role in efforts to halt the decline of native
species throughout the country. Central to the ESA's regulatory structure
is Section 7 of the Act, which requires federal agencies to consult with
federal wildlife agencies to insure that their actions do not jeopardize
the existence of species listed for protection under the Act, or adversely
modify designated critical habitat for listed species.
The outgoing Bush Administration proposed significant changes to
the regulations implementing Section 7 of the Act on August 15, 2008.1
Those changes greatly reduce the scope of Section 7's application in two
major ways. First, they reduce the analysis of federal actions pursuant to
Section 7 by making it harder to connect federal actions to potential harm
to listed species. Second, they give federal agencies the ability to
determine    whether   their   actions  might harm      listed  species  and
accordingly whether Section 7 consultation should occur at all.
Copyright 0 2009 by the Regents of the University of California.
* Assistant Professor of Law, University of California, Berkeley, School of Law and
Associate Professor of Law, University of Miami Law School. The professors involved in the
drafting o1 the commcnts that arc the basis o1 the picce arc Hope Babcock (Gcorgctown
University), Rebecca Bratspies (CUNY), Fred Cheever (University of Denver), Dan Farber
(U.C. Berkclcy), Dale Goble (Univcrsity of Idaho), Mikc Harris (Univcrsity of Dcnver), Stcve
Gold (Rutgers Univcrsity), Dave Owen (University o1 Mainc), Edward Lloyd (Columbia
University), Andrew Long (Florida Coastal School of Law), James May (Widener University),
Jocl Mintz (Nova Southeastcrn School o1 Law), Pat Parenteau (Vcrmont Law School), Zygmunt
Plater (Boston Collcge School o1 Law), J.B. Ruhl (Florida State Univcrsity), Leah Russin
(former fellow at Stanford University), and Steve Sheppard (University of Arkansas). The
opinions cxpressed in this piecc are o1 the individual authors and participants alonc, and
institutional affiliations are providcd for idcntification purposcs only. Karrigan B16rk, a student
member of the environmental clinic at Stanford, was also significantly involved in the drafting
process. Any errors or omissions in this summary piecc arc cntirely our own.
1. See 73 Fed. Reg. 47868, 47874 (Aug. 15, 2008).

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