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.
- 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.
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