The rules changes proposed by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, published in the Federal Register June 22, address three rules made in 2019 that had already been vacated last year by a federal judge overseeing a lawsuit filed by environmental advocates. The new proposals are aimed at “ensuring the Endangered Species Act works for both species and people,” Fish and Wildlife Service Director Martha Williams said in a statement.

One of the most significant proposed changes would remove restrictions for designating “critical habitat” for listed species, such as by restoring phrasing to indicate possible economic impacts are not considered when making a classification decision under section 4 of the Endangered Species Act. Federal agencies funding projects must ensure their actions do not impact critical habitats.

Prianka Sharma, vice president and counsel for regulatory affairs with the American Road & Transportation Builders Association, says critical habitat designations have the potential to remove miles of road from development. She said officials need to clarify more about the designation process, what data would be available and what kind of opportunities industry would have to participate. 

“If it were to be finalized as written, it’s just unclear how it’s going to impact specifically Fish and Wildlife decision making, and what information is going to be made available to the public,” Sharma says. 

Fish and Wildlife also proposed reinstating its so-called “blanket rule” to section 4(d) of the Endangered Species Act, which would allow the service to extend the same protections for endangered species to those listed as threatened, such as making it illegal to take them. Officials also proposed a change to section 7 that they say will improve interagency cooperation by clarifying definitions. 

Kristin Boyles, an attorney with Earthjustice, the advocacy group that filed the initial lawsuit over the 2019 rules, said in a statement that the proposed changes “are promising steps toward restoring the purpose and power of the Endangered Species Act.”

For construction, Brian Turmail, vice president of public affairs and strategic initiatives with the Associated General Contractors of America, said in an email that, while the proposals do retain some of the prior reforms, they could add delays and costs to projects. He added that the agencies seem to be working against President Joe Biden’s infrastructure goals by including provisions that would require project planning to factor for actions outside their control and “take expanded measures to reduce impacts, not just those that are reasonable and prudent.” 

“Instead of conducting timely reviews that uphold vigorous protections, his officials want to bog down the process of how federal agencies consult about effects on threatened and endangered species,” Turmail said. 

The agencies are accepting comments on the proposed rules through Aug. 21. The National Association of Home Builders has already requested a 60-day extension of the public comment period.

Outside Historical Ranges

Separately, a new final rule that takes effect next month would also impact the Endangered Species Act. It allows the Fish and Wildlife Service to introduce “experimental populations” of a listed species to a habitat outside of their historical ranges. Previously officials could only take that action if the species’ historical range was already irreversibly altered or destroyed, but Fish and Wildlife officials say the change will allow them to act before populations are severely depleted. 

Williams said in a statement that the update is needed because the potential impacts of climate change were not fully realized at the time the original regulations, under section 10(j) of the Endangered Species Act, were established. Officials highlighted the Florida Key deer found on Big Pine Key as an example—sea level rise is expected to impact their fresh groundwater, and the deer may need to be relocated outside the Florida Keys as a result. 

“These revisions will help prevent extinctions and support the recovery of imperiled species by allowing the service and our partners to implement proactive, conservation-based species introductions to reduce the impacts of climate change and other threats such as invasive species,” Williams said. 

The proposal drew more than 550 comments after it was published last year. The U.S. Chamber of Commerce said in one comment that it supports the Endangered Species Act’s goal, but questioned how the rule change might impact transportation, water, broadband and other infrastructure projects, particularly those funded by the Infrastructure Investment and Jobs Act. 

“The costs associated with project delays from overly expansive and uncoordinated environmental reviews can delay or cancel critical infrastructure projects and discourage private Investment,” the group’s senior vice president of policy, Martin Durbin, wrote. 

Environmental advocates were largely supportive of the rule. In a comment, the Center for Biological Diversity said nearly all listed species are sensitive to climate change, further threatening their existence. 

“As climate change, habitat loss, invasive species, and other threats cause many species’ suitable habitat to shift, it will become increasingly necessary and appropriate to establish experimental populations outside of a species’ historical range to provide for their conservation and help them adapt to the habitat-related impacts of such threats,” the group wrote.