On November 21st, the U.S. Fish and Wildlife Service released proposals related to endangered and threatened species and their habitat. The proposals would generally reinstate AGC-supported changes made during the first Trump administration that were reversed by the Biden administration. In the course of their work, contractors routinely take steps to avoid or minimize impacts to protected species—those activities should be largely unchanged by these proposals.
The proposals are focused on streamlining how the Service implements the Endangered Species Act: providing some clarity on key definitions (e.g., foreseeable future) as well as boundaries to critical habitat and the scope of impacts considered for agency actions. AGC of America is preparing to respond to the proposals ahead of the December 22nd deadline. Members interested in providing feedback should reach out to that AGC staff contact below.
- Listing Endangered and Threatened Species and Designating Critical Habitat – Proposal would reinstate the 2019 rule, including transparency related to economic or other impacts (although determinations are made solely on the basis of the best scientific and commercial data available) and reverting to the two-step process for designating critical habitat that prioritizes occupied areas over unoccupied areas.
- Endangered and Threatened Species: Interagency Cooperation – Proposal would reinstate the 2019 rule with some additional changes to the definitions of “environmental baseline” and “reasonably certain to occur.” Notably it reverses a 2024 change to include mitigation under “reasonable and prudent measures” (that AGC did not support).
- Endangered and Threatened Wildlife and Plants (Blanket Protections) – Proposal would remove automatic blanket protections for threatened species and instead require the Service to develop species-specific rules, as the Service had under the 2019 rule. Includes a new requirement that each rule provides “a necessary and advisable determination (including consideration of conservation and economic impacts) and will seek public comment on that determination.”
In a related proposal, the Service would revise considerations related to when and how they would exclude an area from designation as critical habitat. This type of exclusion is discretionary. According to the preamble, the Act requires consideration of the economic impact, the impact on national security, and any other relevant impact of designating critical habitat.
For more information, contact Melinda Tomaino at melinda.tomaino@agc.org.