Interior Looks to Improve Regulatory Programs

Earlier this year, President Obama issued Executive Order 13563 entitled “Improving Regulation and Regulatory Review,” which seeks to make the U.S. Government’s regulatory system work more efficiently. Last week, the Department of the Interior issued a report fulfilling that mandate and explaining its commitment to retrospective review of existing programs. The Department explains it will become “more efficient, by consolidating or eliminating duplicative or unnecessary regulations; less burdensome, by providing more flexibility and simpler means of compliance, where appropriate; more functional, while accomplishing the [Interior] mission and complying with statutes; more transparent, using the Internet to improve access and public participation; and more credible, by ensuring that decisions are based on sound science.” Among the programs to be reviewed is the Endangered Species Act. The Department explains that over the next two years, it will review ESA regulations, many of which have not been updated since the 1970s or 1980s and have been subject to extensive litigation. Among the possible changes are streamlining critical habitat descriptions; clarifying procedures for the development and approval of habitat conservation plans, safe harbor agreements, and candidate conservation agreements; expanding opportunities for states to engage effectively in the implementation of the ESA’s various provisions; and clarifying the definition of the phrase “destruction or adverse modification” of critical habitat and the scope as well as the content of incidental take statements. The regulated community and the public at large can expect opportunities to comment on proposed changes as the review progresses.