On August 21, AGC raised concerns with proposed changes to rules that govern the implementation of the Endangered Species Act (ESA) such as the designation of critical habitat (AGC comment letter) and the interagency consultations (AGC comment letter) that are part of the approval process for projects that involve federal permits or funding. The proposed revisions reverse reforms made by the prior administration to streamline the process, change key definitions and concepts, and introduce additional requirements, for example to offset any impacts that cannot be avoided through the “reasonable and prudent measures” (RPMs) that project proponents currently employ.
Individually, some of the changes may appear minor; collectively, however, they signal a concerning trend that the agencies are undermining the safeguards that serve to bookend the consultation and critical habitat processes and reduce uncertainty and unwarranted speculation in the process. The agencies’ assertions that the backtracking and modifications will provide clarity are unfounded. To the contrary, the agencies are exacerbating the uncertainty surrounding these terms. The regulated community is left guessing at the significance of the excised words as well as the reframing of key concepts. For example, the agencies propose to revise “effects of the action,” “environmental baseline,” reasonably certain to occur,” and “foreseeable future” in addition to changes to the RPMs and the critical habitat designation process. AGC urged the agencies to avoid speculation over hypothetical situations/outcomes and illogical results.
AGC also expressed concern that the proposed revisions remove safeguards against the designation of vast, expansive areas of unoccupied critical habitat. The agencies would no longer have to prioritize occupied areas. Furthermore, unoccupied habitat would not need to provide one or more of the physical or biological features essential to the conservation of the species, which contradicts the U.S. Supreme Court’s decision in Weyerhaeuser Co. v. U.S. FWS (2018) that critical habitat must first be habitat. AGC strongly encouraged the agencies to rely on scientific data for critical habitat designation decisions to ensure that unoccupied areas are in fact habitable by the species.
For more information, please contact Melinda Tomaino at Melinda.tomaino@agc.org.