By Nick Goldstein, vice president of regulatory and legal issues, ARTBA
Two new Trump administration rules require that federal “critical habitat” designations match the realities of species territory to avoid unnecessarily blocking transportation projects and other development.
The Dec. 16 and Dec. 18 changes to the Endangered Species Act were spurred by a 2018 Supreme Court ruling that the U.S. Fish and Wildlife Service (FWS) was too broad in defining what constituted critical habitat, which can limit land use.
The Dec. 16 rule clarifies that areas set aside as critical habitat must have the necessary features for an endangered species to survive. The Dec. 18 rule clarifies both how FWS considers the economic and national security impacts of a critical habitat designation and whether the agency will decide to exclude the land.
The transportation construction industry has been directly impacted by confusion over the critical habitat process. Proposals to safeguard the long-eared bat (photo) and rusty patched bumble bee have threatened to place multiple states under critical habitat designation and put critical projects at risk.
The new rules go into effect Jan. 15, and Jan. 17, 2021, respectively. The Trump administration is expected to finalize another related critical habitat regulation before it leaves office.