AGC Comments on Significant Reforms to Regulations that Implement the Endangered Species Act

On Sept. 24, AGC commented on three proposed rules that would significantly affect the applicability and implementation of the Endangered Species Act (ESA).  The proposed revisions 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.  AGC’s comment letters (one, two and three) offered examples of why the current process is unpredictable and adds delay and cost to the permitting and construction of infrastructure projects nationwide.

Overall, AGC offered support for the Services efforts to clarify definitions, refine procedures and streamline process.  Significant reforms would: remove the blanket “take” prohibition from threatened species; re-emphasize the role of unoccupied habitat in critical habitat designations by reversing 2016 regulations implemented by the Obama Administration; make economic impacts publicly available – though not considered – in listing decisions; streamline the interagency consultation process required by Section 7 of the ESA, including the scope, process itself and substance of the consultation. AGC also suggested some additional areas for improvement, drawing from concerns that AGC members have raised in the past.

The U.S. Fish and Wildlife Service (Service) and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (NOAA Fisheries) have stated their intent to implement the Trump Administration’s regulatory reform agenda and the goals of Executive Order 13777 to reduce regulations and control costs.  In addition, several of the proposed changes also appear to respond to actions that have expanded the ESA beyond its intended scope – such as several high-profile court decisions and rules that were implemented by the Obama Administration.   

For more information, please contact AGC’s Melinda Tomaino at

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