The statute says that the federal agencies "shall" work toward those goals "in consultation with and with the assistance of" the two agencies that supervise the ESA program: the Fish and Wildlife Service (FWS) of the Department of the Interior, and the National Marine Fisheries Service (NMFS) of the Department of Commerce (together: the Services). It has long been within the discretion of the Action Agencies to determine whether a proposed action requires consultation. There was no deadline for the Service to respond to a request for concurrence in the previous regulations. The final version was published December 16, 2008, and took effect January 15, 2009. Omnibus Appropriations Act of 2009 (P.L. A provision of the Omnibus Appropriations Act of 2009 ( P.L. 111-8 ) authorized the Secretaries of the Interior and Commerce to "withdraw or reissue" the revised regulations within 60 days of the act "without regard to any provision of statute or regulation." President Obama issued a memorandum on March 3, 2009, directing the Secretaries of the Interior and Commerce to consider issuing new regulations to "promote the purposes of the ESA." The memorandum also requested that other federal agencies exercise the discretion allowed under the revised regulations to follow the "prior longstanding consultation and concurrence practices" involving the Services, since nothing in the revised regulations prohibited agencies from carrying out a full consultation. How the Regulations Were Revised

The regulations that were in effect from January 15, 2009, to May 4, 2009, had revised the consultation process by: (1) allowing already prepared documents to be used as a BA; (2) allowing Action Agencies greater discretion to determine whether consultation applies; (3) clarifying certain definitions; and (4) making procedural changes to informal consultations. The Services said that the modifications would "reinforce the Services' current view that there is no requirement to consult on [greenhouse gas] emissions' contribution to global warming and its associated impacts on listed species." Six substantive changes were made to the regulations. The alterations included the following:
changing the definition of biological assessment; changing the definition of cumulative effects; changing the definition of effects of the action; changing when a consultation is needed; changing the procedure for informal consultation; and changing the procedure for formal consultation. The standards for consultation before the revisions turned on questions of jeopardizing the continued existence of a listed species and modifying its critical habitat. Those criteria were:
The action has no effect on a listed species or critical habitat; The effects of an action are manifested in global processes and cannot be reliably predicted or measured at the local scale; The effects of an action are manifested in global processes and would result in only an extremely small, insignificant local impact; The effects of an action are manifested in global processes and pose a remote potential risk of harm to species or habitat; The effects of an action are not capable of being meaningfully identified or detected in a manner that permits evaluation; or The effects of an action are wholly beneficial. If it agrees, the Service is required to concur with the Action Agency's determination of "not likely to adversely affect" in writing. Joint regulations were issued in 2003 to address the effects of increasing levels of wildfires on listed species.
The Endangered Species Act (ESA) requires all federal agencies to consult with either the Fish and Wildlife Service or the National Marine Fisheries Service (the Services) to determine whether their actions may jeopardize the continued existence of a listed species or destroy or adversely modify designated critical habitat of listed species. In August 2008, FWS and NMFS proposed changes to the regulations that address the consultation process. Final regulations were published December 16, 2008, and took effect on January 15, 2009. On May 4, 2009, those regulations were withdrawn and the regulations that were in effect before the changes were reinstated. FWS and NMFS were authorized by P.L. 111-8, § 429 to make the substitution. This report explains what changes had been made to the consultation regulations and related issues.
The revisions were intended to do three things, according to the Services: clarify when consultation is applicable; clarify certain definitions; and establish time frames for consultation. The Services argued that the new regulations showed the ESA does not require consultation on greenhouse gas emissions' contribution to global warming and its associated impacts on listed species.
The revised regulations gave federal agencies greater discretion to determine when and how their actions may affect listed species. They also addressed issues of causation—when an agency action truly affects the well-being of listed species or critical habitat. The changes modified definitions and altered the process for consultations. The definitions that were modified include cumulative effects, effects of an action, and biological assessment. The changes added criteria for determining when consultations do not apply. The Action Agency continued to determine whether consultation is required. The processes for formal and informal consultations were revised to include a 60-day deadline (which may be increased to 120 days) for the appropriate Service to concur in writing with an Action Agency's finding during informal consultation. If the Service failed to respond in writing, the project could continue without further consultation at the discretion of the Action Agency.
Congress addressed the regulations. A provision in the 2009 Omnibus Appropriations Act (P.L. 111-8) allowed the Secretaries of the Interior and Commerce to withdraw the regulations without any administrative steps, putting the previous regulations back in effect, provided they acted within 60 days. Additionally, President Obama issued a memorandum directing those Secretaries to decide whether to develop new regulations that would "promote the purposes of the ESA." The memorandum also requested all agencies to exercise the discretion allowed under the revised regulations to "follow the prior longstanding consultation and concurrence practices" of the Services.