In 2016, the U.S. Fish and Wildlife Service decided against placing severe development restrictions on long-eared bat habitat under the Endangered Species Act (ESA), a move that would have threatened transportation projects and other work in 37 states.

By Nick Goldstein, vice president of regulatory & legal issues, ARTBA

The Trump administration Aug. 12 announced an overhaul of the 45-year-old Endangered Species Act (ESA), including new limits to what areas the government can declare as “critical habitat.” Reforming the critical habitat provisions of the ESA is a priority for ARTBA and was included in our recent recommendations for improving the project delivery process.

The critical habitat provisions of the ESA are especially significant to transportation construction since they designate specific areas where development can be restricted if a species is threatened. In September 2018 comments on the ESA revisions, ARTBA noted, “a determination of critical habitat can literally remove hundreds of miles from the possibility of any type of development.” The new rules reform the critical habitat process by placing a priority on areas where species are actually present, thereby protecting areas necessary for survival without unnecessarily burdening areas where the species is not present.

The new regulations make other reforms to the ESA including allowing economic considerations to be taken into account when deciding to list a species, and revising the process to determine when a species is “endangered” or “threatened.”  Additionally, the regulations stress ARTBA’s priority that the best available science be used when making decisions on how the ESA is applied.

Opponents of the new ESA regulations are expected bring suit in federal court.

(Editor’s Note: ARTBA’s Nick Goldstein was quoted on this regulatory development in Engineering News-Record.)