Provisions of the Endangered Species Act blamed for slowing down permitting and tying up construction would be rolled back under a Trump Administration proposal.
The changes, announced July 19, are separate from more than a dozen legislative proposals introduced this year to change the 45-year-old law.
Among the changes, the administrative proposals would allow consideration of costs in listing endangered or threatened species; would only allow habitat to be designated “critical” if it is being occupied by an endangered or threatened species; would place a limit on the phrase “foreseeable future;” would limit protections for threatened species; and would require the Interior Dept. and U.S. Fish and Wildlife Services, which co-administer the law, to do so consistently across agencies.
“The issues that federal agencies deal with today weren’t contemplated when the Endangered Species Act,” was passed in 1973, Interior Deputy Secretary David Bernhardt said in a press call on July 19. Bernhardt says the changes will enhance the conservation of species, but also “ameliorate the conflict and uncertainty that are within the current regulatory structure.”
While Bernhardt painted the changes as largely regulatory, environmental groups and Democratic lawmakers said the changes would harm efforts to save threatened and endangered species and their habitat.
“The new regulations included in today’s announcement undercut vital sections of the Endangered Species Act that may harm imperiled species and are yet more examples of the Trump Administration catering to industry instead of the interests of the American people,” said Sen. Tom Carper (D-Del.)
The construction industry has previously voiced its frustration over the Endangered Species Act (ESA) for causing unnecessary delays in construction projects. The Associated General Contractors of America has said ESA requirements delay infrastructure projects and increase costs “while not necessarily providing commensurate species and habitat benefits.”
“AGC is optimistic about the reforms as the agencies are proposing action on some of the very steps that AGC has recommended," says Melinda Tomaino, director of environmental services for AGC. "For example, [Fish and Wildlife Services] is proposing to change its practice of automatically assigning the same protections for threatened as they do for endangered species." Tomaino says that AGC is glad the proposal will account for economic costs. "Additionally, the proposal acknowledges and encourages coordination on choosing the right programmatic approach – issues for which AGC has sought support.”
Nick Goldstein, vice president of regulatory affairs for the American Road and Transportation Builders Association, says changes to the ESA will help streamline the permitting process and can help add some level of certainty for construction projects, pointing to a court order stopping work for 10 days last year on the Longmeadow Parkway in Kane County, Ill., over concerns that work could harm the recently listed rusty-patched bumblebee. The judge eventually found that the there was no evidence construction of the road would harm the bee.
“A few weeks in terms of construction costs and other costs can run up. We’re talking about hundreds of thousands to millions of dollars,” he says. “Anything we can consider beforehand,” can help streamline construction.
In addition to the provisions in the proposals, ARBTA also wants the listing process to use the best available scientific data, a provision that is being addressed through draft legislation introduced by Sen. John Barrasso (R-Wyo.) as well as change to the way litigation occurs under the ESA, Goldstein says.
The federal proposals are open for comment until Sept. 24.
