Proposed Rules Will Expand Project Requirements Related to Species

The Biden Administration has proposed new changes to a suite of rules that would significantly affect the applicability and implementation of the Endangered Species Act (ESA).  The proposed revisions reverse reforms made by the prior administration 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. One change, in particular, would upend longstanding policy and require offsets to any impacts that cannot be avoided through the “reasonable and prudent measures” (RPMs) that project proponents currently employ. A summary of the proposed changes follows below.

  • Interagency Cooperation – In addition to requiring offsite mitigation, the proposal would change the definition of “effects of the action,” the application of “reasonably certain to occur” and environmental baseline, and clarify that reinitiation of consult is to occur automatically without request by the Fish and Wildlife Service.
  • Designating Critical Habitat – Modifies definition of “foreseeable future” and may remove completely and relies on a “reasonable degree of confidence in the prediction.” Loosens the requirements respective to designation of critical habitat and unoccupied critical habitat, including removing the requirement that unoccupied habitat be essential to the conservation of the species.
  • ESA Section 4(d) – Reinstates the blanket 4(d) rule that would generally extend the same protections of endangered species to threatened species (instead of developing species-specific protections).

AGC intends to file comments prior to the deadline of August 21, 2023, and welcomes your feedback. AGC is particularly interested in hearing how a requirement to offset impacts would impact your projects, as well as the availability of mitigation banking strategies and services available to you.

To share feedback (by August 16) or for more information, please contact Melinda Tomaino at

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