The Endangered Species Act

[Federal Register Volume 74, Number 43 (Friday, March 6, 2009)]
[Presidential Documents]
[Pages 9753-9754]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-4880]

___________________________________________________________________

Title 3--
The President

Memorandum of March 3, 2009

The Endangered Species Act

Memorandum for the Heads of Executive Departments and
Agencies

The Endangered Species Act (ESA), 16 U.S.C. 1531 et
seq., reflects one of the Nation's profound
commitments. Pursuant to that Act, the Federal
Government has long required a process of broad
interagency consultation to ensure the application of
scientific and technical expertise to decisions that
may affect threatened or endangered species. Under that
interagency process, executive departments and agencies
(agencies) contemplating an action that may affect
endangered or threatened species have long been
required, except in certain limited circumstances, to
consult with, and in some circumstances obtain the
prior written concurrence of, the Fish and Wildlife
Service (FWS) and/or the National Marine Fisheries
Service (NMFS)--the expert agencies that have the
primary responsibility to ensure that the ESA is
implemented in accordance with the law.

On December 16, 2008, the Departments of the Interior
and Commerce issued a joint regulation that modified
these longstanding requirements. See 73 Fed. Reg.
76272. This new regulation expands the circumstances in
which an agency may determine not to consult with, or
obtain the written concurrence of, the FWS or NMFS
prior to undertaking an action that may affect
threatened or endangered species. But under the new
regulation, agencies may continue the previous practice
of consulting with, and obtaining the written
concurrence of, the FWS and NMFS as a matter of
discretion.

I hereby request the Secretaries of the Interior and
Commerce to review the regulation issued on December
16, 2008, and to determine whether to undertake new
rulemaking procedures with respect to consultative and
concurrence processes that will promote the purposes of
the ESA.

Until such review is completed, I request the heads of
all agencies to exercise their discretion, under the
new regulation, to follow the prior longstanding
consultation and concurrence practices involving the
FWS and NMFS.

This memorandum is not intended to, and does not,
create any right or benefit, substantive or procedural,
enforceable at law or in equity by any party against
the United States, its departments, agencies, or
entities, its officers, employees, or agents, or any
other person. Agencies shall carry out the provisions
of this memorandum to the extent permitted by law and
consistent with statutory authorities.

The Secretary of the Interior is hereby authorized and
directed to publish this memorandum in the Federal
Register.

THE WHITE HOUSE,

Washington, March 3, 2009