On June 3, 2024, the New Jersey Department of Environmental Protection announced a rule proposal which would update the endangered species and the nongame species lists promulgated by the Fish & Wildlife Endangered and Nongame Species Program (“ENSP”). These proposed updates would reflect, among other changes, the recategorization of the conservation status of certain species from the ENSP lists along with other structural and organizational amendments.

Primarily, the proposal celebrates the prospective reduced conservation status of three species, including the Peregrine Falcon, Bobcat, and Cope’s Gray Treefrog which each will have their conservation status reduced from “Endangered” to “Threatened.”

More significantly, the Bald Eagle, Red-headed Woodpecker, and Osprey are proposed to have their status reduced to “Special Concern” or “Secure/Stable.” The Department has further proposed partial conservation status reductions for the non-breeding populations of certain bird species including the Yellow-crowned Night-Heron, and Red-headed Woodpecker which have both been reduced to “Special Concern” for non-breeding activities. In effect, these species are being delisted, which is significant for Land Resource permitting under the Coastal Rules and Freshwater Wetlands Protection Act. This also should impact permitting under Pinelands Commission regulations.

Inapposite to those species having their conservation status reduced, the Department has proposed increased conservation designations for thirty (30) species, including select species particularly impactful to development and redevelopment initiatives in New Jersey. Those include three species of bat, the Northern Myotis, Little Brown Bat, and Tricolored Bat, which will each move from an undetermined/unknown status to “Endangered.”

Lastly, the Department proposes moving currently threatened species listed on the nongame species list at N.J.A.C. 7:25-4.17 to the endangered species list at N.J.A.C. 7:25-4.13. This restructuring will leave the species’ conservation status unchanged and includes a number of special species for New Jersey development and redevelopment, such as the Bobolink and Grasshopper Sparrow.

In addition to these conservation status changes, the Department has proposed a new procedure which would allow the addition of species to the list of endangered species by notice of administrative change when that species has been added to the Federal list of endangered and threatened species of wildlife pursuant to the Endangered Species Act of 1973 at 16 U.S.C. § 1531 et seq. and is indigenous to New Jersey. The Department notes this procedure seeks to further the goal of creating a listing that is more consistent with the Federal standard but in doing so the State will obviate the typical Administrative Procedure Act public comment process.

Matthew L. Capone contributed to this article