During the Trump administration, multiple environmental statutes were subject to regulatory changes, some of them for the first time in decades. While many of the changes were controversial, others were regarded as long overdue. The Endangered Species Act (“ESA”) was one of the statutes that received a regulatory overhaul. Upon taking office, the Biden administration directed all federal agencies to review the regulations that had been passed during the Trump administration to determine which, if any, required modification. The two agencies responsible for administering the ESA, Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) (collectively, “the Services”), completed that review in 2022. Upon completely their review, the Services announced that it intended to repeal some of the regulations adopted during the Trump administration and modify others. On June 22, 2023, the Services issued three proposed rules aimed at either repealing or modifying the last remaining ESA regulations adopted by the Trump administration.


Enacted in 1973, the purpose of the ESA is to conserve endangered and threatened species, and the ecosystems upon which those species rely. 16 U.S.C. § 1531(b). To achieve this goal, the ESA directs FWS and NMFS to make a list of species that are either “threatened” or “endangered” that receive certain protections under the Act. 16 U.S.C. § 1533. The ESA provides that a species should be listed as “endangered,” if it is “in danger of extinction throughout all or a significant portion of its range,” and that a species should be listed as “threatened” if it is “likely to become an endangered species within the foreseeable future[.]” (emphasis added) 16 U.S.C. § 1532(6), (20). While species listed as endangered are automatically granted ESA protections, the Services must specify which protections species listed as threatened will receive. 16 U.S.C. § 1533(d).

Along with identifying species as either threatened or endangered, the ESA also directs the Services to “designate any habitat of such species which is then considered to be critical habitat[.]” 16 U.S.C. § (a)(3)(A)(i). The ESA clarifies that critical habitat for a threatened or endangered species refers to both the areas currently occupied by the species at the time of listing that contain the physical or biological species essential to conserving that species, and areas that are unoccupied by the species but that the Services have determined are essential for conservation of the species. 16 U.S.C. § 1532(5)(A). Once an area is designated as critical habitat, that area becomes protected under the ESA.

Finally, the ESA directs all federal agencies to consult with the Services to ensure that “any action authorized, funded, or carried out” by the agency will not “jeopardize the continued existence” of any endangered or threatened species, or adversely impact designated critical habitat. 16 U.S.C. § 1536. During the consultation process, the Services are required to analyze the impacts of the proposed agency action and issue any reasonable and prudent measures (“RPMs”) that the Services believe are necessary to minimize impact to listed species. 16 U.S.C. § 1536 (b).

During the Trump administration, a variety of regulatory changes were made to the ESA. Those changes included altering the criteria used to determine when a species should receive ESA protection, adding a definition for the term “habitat,” modifications to the consultation process between the Services and other federal agencies, and elimination of a rule that automatically granted species listed as “threatened” the same protections as the species listed as “endangered.” While the Biden administration has already rolled back several of these regulations, others remained in place. On June 22, the FWS published three proposed rules that would, if finalized, effectively roll back the remaining Trump era ESA regulations. Specifically, FWS is proposing to revise the Trump administration “Listing Rule,” “Interagency Consultation Rule,” and the “Blanket Repeal Rule.” All three regulations were passed in 2019.

Listing Rule

The Services adopted the 2019 Listing Rule to amend the regulations that outline the factors that the Services may use to determine whether a species should be added or removed from the federal list of threatened and endangered species. The Listing Rule also made changes to the processes used to decide whether to list a species as threatened, and to designate critical habitat. The newly proposed rule would roll back all of the changes made by the Listing Rule.

Prior to the 2019 Listing Rule, the ESA regulations contained language to clarify that economic factors would not be used to make any listing decisions. This is in line with the text of the ESA, which does not direct the Services to consider economic factors when making listing decisions. The Listing Rule struck the phrase “without reference to possible economic or other impacts of such determination” from the regulations. The newly proposed rule would restore that language in order to clarify that the Services cannot take potential economic impacts into account when deciding whether to add or remove a species to the list of threatened and endangered species.

The Listing Rule also made changes to the factors the Services could consider when deciding whether to list a species as threatened. To list a species as “threatened” under the ESA, the Services must make a determination that the species is likely to becoming endangered within the “foreseeable future.” Before the Listing Rule, there was no regulatory definition for “foreseeable future” in this context.  Under the Listing Rule, the term “foreseeable future” was officially described as “extend[ing] only so far into the future as the Services can reasonably determine that both the future threats and the species’ responses to those threats are likely.” 88 F.R. 40764, 40766. In their new rule, the Services are proposing to either completely repeal the foreseeable future language introduced by the Listing Rule, or to replace the language with the following sentence: “The term foreseeable future extends as far into the future as the Services can reasonably rely on information about the threats to the species and the species’ responses to those threats.” The Services seeking public comment on whether it is more appropriate to repeal the Listing Rule language or the repeal and replace it with the proposed sentence.

Finally, the Services are proposing to roll back changes the Listing Rule made to the regulations governing how the Services designate critical habitat. The ESA permits the Services to designate as critical habitat both areas that are occupied by members of a species at the time the species is listed, or areas that are unoccupied by the species but that the Services have determined are essential for the conservation of that species. In the 2019 Listing Rule, the Services revised the criteria for designating unoccupied so that the Services could only consider designating unoccupied areas as critical habitat if limiting the designation to occupied areas would be inadequate to ensure the conservation of the species. The new rule would replace that requirement with language directing the Services to analyze occupied areas before analyzing unoccupied areas. While the proposal would still require the Services to consider occupied areas for critical habitat designation first, it removes the requirement that unoccupied areas could only be designated as critical habitat if the occupied areas were inadequate for conserving the species.

Interagency Consultation Rule

Consultation between the Services and other federal agencies on how their proposed actions will impact listed species and designated critical habitat is a central function of the ESA. In 2019, the Services adopted the Interagency Consultation Rule which made changes to the regulations that govern how the Services carry out the consultation process. Specifically, the Interagency Consultation Rule made changes to how the Services could assess the effects of an agency’s proposed action by eliminating language that required the Services to identify both the direct and indirect impacts of the action and instead focus on “all consequences of the action, including the consequences of the other activities that are caused by the proposed action.” 88 F.R. 40753, 40755. According to FWS, the purpose of change was to ensure that consultations focused on identifying the full range of the effects of an agency’s proposed action rather than simply categorizing the effects as direct or indirect. 88 F.R. 40753, 40755. The new rule would modify the language change made by the Interagency Consultation Rule to clarify that during consultation, the Services should analyze all consequences to listed species or critical habitat that will be caused by an agency’s proposed action, including consequences that result from other activities that are caused by the proposed action, but are not a part of the action itself.

While the recently proposed rule from the Services primarily seeks to modify changes made under the 2019 Interagency Consultation Rule, it is also suggesting a unique edition to the regulations governing agency consultation that has nothing to do with the changes made in 2019. The Services are seeking to expand the types of reasonable and prudent measures that the Services can propose to agencies during consultation. Previously, the Services have taken the position that the scope RPMs should be limited to actions that avoid or reduce harm to species that is expected to incur inside the “action area,” or the area where the proposed agency action will take place. Under the new proposal, the Services would be able to propose RPMs that offset the impacts of a proposed action by engaging in activity outside the action area. For example, if the proposed action would result in habitat loss for a listed species, the Services could issue an RPM that required the action agency to restore habitat for the species outside the action area.

Blanket Repeal Rule

Finally, the third recently proposed rule from the Services would completely repeal the 2019 Blanket Repeal Rule and reinstate the regulation known as the “Blanket 4(d) Rule.” When the Services designate a species as endangered under the ESA, that species is automatically granted complete ESA protection. However, when a species is designated as threatened, the ESA directs the Services to specify which ESA protections that species will receive. Early in the administration of the ESA, FWS issued the Blanket 4(d) Rule which automatically provides all species listed as threatened by FWS the same protections as species listed as endangered. This was done, in part, to make the listing of threatened species more efficient. The 2019 Blanket Repeal Rule, as its name suggests, repealed the Blanket 4(d) Rule so that FWS was required to specify which ESA protections a species should receive when it is listed as threatened. The new proposal from the Services would fully reinstate the Blanket 4(d) Rule.


Should the Services’ newly proposed rules become finalized, they would effectively roll back most of the last remaining regulatory changes made to the ESA during the Trump administration. However, only one of the proposed rules is a complete repeal of a Trump era regulation. The other two proposals would modify the Trump era regulations instead of completely repealing them. Comments are open on all three proposals until August 21, 2023.


To read the proposal to modify the 2019 Listing Rule, click here.

To read the proposal to modify the 2019 Interagency Consultation Rule, click here.

To read the proposal to repeal the 2019 Blanket Repeal Rule, click here.

To read the text of the ESA, click here.

For more ESA resources from the National Agricultural Law Center, click here.