AGC Submits Comments on Changes to Critical Habitat under the Endangered Species Act

On Dec. 13, AGC submitted comments (click here and here) on two proposals that seek to rescind rules put in place by the Trump Administration governing how the U.S. Fish and Wildlife Service (FWS) designates critical habit for endangered and threatened species.  The first proposal would remove the definition of habitat that was implemented in response to a U.S. Supreme Court ruling that determined critical habitat first be habitat for the species in question.  The second proposal would rescind a rule that guides how the Service considers impacts caused by critical habitat designations and whether it will exclude areas from listing.  

In providing a basis for the repeal actions, the Service asserts that the rules unduly constrain their discretion in determining critical habitat and in administering the Endangered Species Act---which AGC’s comments rebuff.  The current definition of habitat does not infringe on the Service’s ability to designate unoccupied critical habitat.  Furthermore, the current rule follows the statutory text for factors the Service should consider when it evaluates the impacts of a designation. 

The FWS also intends to revise other rules developed under the prior administration, for example that streamlined the consultation process and that required species-specific rules to address threatened species.  The Service will return to using the “blanket 4(d) rule” that automatically applies the same measure of protection for threatened species as it would for an endangered species.  The Service will also look to revise certain definitions, such as "significant portion of its range” and “effects of the action.” (See also the Unified Agenda, updated in early December 2021.) 

For more information, contact Melinda Tomaino at

Industry Priorities