Administration Finalizes AGC Supported Reforms to Implement the Endangered Species Act

The Trump administration has finalized the first steps in AGC supported changes to streamline and modernize the implementation of the Endangered Species Act, which can be unpredictable and add delay and cost to the permitting and construction of infrastructure projects.

The three newly final rules pertain to regulations governing the listing and delisting of species and plants, the designation of critical habitat, and the interagency consultations that are part of the approval process for projects that involve federal permits or funding. A few highlights of AGC-supported changes include:

• Removed automatic assignment of “endangered species level” protections for threatened species in favor of developing tailored species-specific protections. Fish and Wildlife Service intends to finalize species-specific rules concurrent with the final listing or reclassification, an AGC supported goal, but it fell short of making that an official deadline.
• Returned to the “step-wise” approach to designating unoccupied habitat as critical—prioritizing occupied habitat. AGC supported this action and requested a higher threshold for unoccupied habitat. The final rule adds clarity that there needs to be “reasonable certainty” instead of a reasonable “likelihood” that the unoccupied habitat is essential. The final version also adds a requirement that unoccupied critical habitat contain one or more features essential to the conservation of the species.
• Added clarity, as requested by AGC, on the issue of “baseline jeopardy” – adding language that previously approved actions or ongoing activities outside of the discretion of the project sponsor form the environmental baseline.
• Established a deadline for informal consultations, a concept that AGC strongly supported. The final version sets a 60-day time frame for the Service to provide a written concurrence or non-concurrence, unless extended upon mutual consent. Although the time frame is not as aggressive as requested, AGC stressed the importance of clear deadlines that keep the permitting process moving forward.

Overall, the final rules align with much that AGC supported in the proposals (see AGC comment letters, taking crucial steps in streamlining and reforming the implementation of the ESA. According to the Unified Agenda, the Administration will pursue additional reforms to ESA implementation. AGC will engage in that process and continue to bring members’ interests to the forefront. 

For more information, contact Melinda Tomaino at tomainom@agc.org.