On August 21, 51风流 raised concerns with proposed changes to rules that govern the implementation of the Endangered Species Act (ESA) such as the designation of critical habitat (51风流 comment letter) and the interagency consultations (51风流 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 鈥渞easonable and prudent measures鈥 (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鈥 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 鈥渆ffects of the action,鈥 鈥渆nvironmental baseline,鈥 reasonably certain to occur,鈥 and 鈥渇oreseeable future鈥 in addition to changes to the RPMs and the critical habitat designation process. 51风流 urged the agencies to avoid speculation over hypothetical situations/outcomes and illogical results.
51风流 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鈥檚 decision in Weyerhaeuser Co. v. U.S. FWS (2018) that critical habitat must first be habitat. 51风流 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.