In late November, the Untied States Fish and Wildlife Service (“FWS”) together with the National Marine Fisheries Service (“NMFS”) (collectively, “the Services”) released four proposed rules to revise implementation of the Endangered Species Act (“ESA”). The proposed rules are largely identical to changes the Services made in 2019 and 2020 during the first Trump administration which were ultimately revised in 2024. The proposed changes would impact how the Services make decisions regarding the listing of species as threatened or endangered under the ESA, how critical habitat is designated, the process for carrying out interagency consultation, and the protections offered to species listed as threatened. A public comment period for each of the four proposals is currently open through December 22, 2025, with finalized versions of the rules expected sometime next year. Once finalized, the rules will likely face legal challenges.
Background
The ESA was signed into law in 1973 for the purpose of conserving endangered and threatened species and the ecosystems upon which those species depend. 16 U.S.C. § 1531(b). To achieve this goal, the ESA directs the Services to create and maintain a list of species that are classified as either “threatened” or “endangered” depending on the level of threat that a species is currently facing. 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).
When listing a species, the Services also have the option of designating critical habitat for a species. 16 U.S.C. § 1533(a)(3)(A). Critical habitat refers to the “specific areas within the geographical area occupied by the species, at the time it is listed […], on which are found those physical or biological features essential to the conservation of a species” as well as “specific areas outside the geographical area occupied by the species at the time it is listed” which the Services consider “essential for the conservation of the species.” 16 U.S.C. § 1532(5)(A).
Once a species is listed under the ESA, it becomes protected by the statute. Importantly, the ESA makes it illegal to “take” a protected species, with “take” broadly defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(10). The statute also directs all federal agencies to engage in consultation with the Services to ensure that their proposed actions are not likely to jeopardize the continued existence of a protected species or lead to the destruction of 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, if necessary, issue an incidental take permit which authorizes the action agency to take a certain number of protected species without violating the ESA. 16 U.S.C. § 1536(a). If the Services authorize incidental take, they will also issue any reasonable and prudent measures necessary to minimize impacts to listed species. 16 U.S.C. § 1536(b).
Crucially, only species that are listed as endangered will automatically receive all the protections offered under the ESA. When a species is listed as threatened, the Services must specify which ESA protections the species will receive. 16 U.S.C. § 1533(d). However, in the 1970s FWS adopted a regulation known as the Blanket 4(d) rule which allows species it lists as threatened to automatically receive full ESA protection.
In 2019 and 2020, under the first Trump administration, the Services adopted a series of new regulations that made key changes to how the ESA was implemented. Those rules altered the process for listing and delisting species and designating critical habitat, revoked the Blanket 4(d) rule, and added a definition to the term “habitat” for the first time. More information on those rulemakings is available here and here. During the Biden administration, the Services undertook new rulemaking efforts and ultimately reversed many of those changes, including reinstating the Blanket 4(d) rule and removing the definition of “habitat.” Further information on those regulations is available here. Now, the Services are proposing to once again revise several ESA regulations to return to the rules adopted in 2019 and 2020.
Newly Proposed Rules
The regulations proposed by the Services on November 21, 2025, address multiple aspects of ESA implementation. Two of the proposals, those addressing the processes for listing species and conducting interagency consultation, were jointly proposed by FWS and NMFS while the other two proposals, addressing the Blanket 4(d) rule and critical habitat designations, were proposed solely by FWS. All four rules will be open for public comment through December 22, 2025.
Listing Regulation
The Services have jointly proposed a regulation that would make changes to the procedures and criteria both agencies use for listing, reclassifying, and delisting species under the ESA, and for designating critical habitat. The proposal mirrors the listing rule that the Services adopted in 2019. Among other things, the proposed rule would allow for the consideration of economic impacts when making listing decisions, alter the meaning of “foreseeable future” which is used when determining whether to list a species as threatened, and revise the criteria used for designating unoccupied areas as critical habitat.
When determining whether a species should be listed as threatened or endangered, the text of the ESA provides that the Services may base the decision on any one of the following factors: destruction of the species’ habitat; overutilization of the species; threats of disease or predation; the inadequacy of existing regulatory mechanisms to protect the species; other natural or manmade factors affecting the species’ existence. 16 U.S.C. § 1533(a). While this provision of the ESA does not specifically state that the Services should not take economic impacts into account while making listing determinations, the Services have adopted regulatory language providing that such decisions should be made “without reference to possible economic or other impacts of such determination.” In 2019, the Services removed that language from the listing regulations. Although they reinstated that language in 2024, the current proposal would once again remove the language. If finalized, this would allow the Services to take economic impacts into consideration when deciding whether to list a species.
The ESA defines a threated species as one that may become endangered within the “foreseeable future.” 16 U.S.C. § 1532(20). The term “foreseeable future” is not defined in the text of the ESA and prior to 2019 the Services had no regulatory definition for the term. Under the 2019 rules, “foreseeable future” was defined as “extend[ing] only so far into the future as the Services can reasonably determine that both the future threats and the species’ response to those threats are likely.” In 2024, that definition was revised to consider the “foreseeable future” as “extend[ing] as far into the future as the Services can make reasonably reliable predictions about the threats to the species and the species’ responses to those threats.” The Services are now proposing to return to the 2019 definition, claiming that the 2019 rule provided a much clearer interpretation of the term.
Along with making changes to how species are listed, this proposal would also revise the process for designating critical habitat. Specifically, the rule would revert to regulations adopted in 2019 which clarified that unoccupied habitat – that is, habitat for a listed species that is not occupied by members of that species at the time it is listed – may only be designated as critical habitat if such areas are “essential” for the conservation of the species.
The full text of this proposal is available here.
Interagency Consultation
FWS and NMFS have proposed a regulation to revise aspects of the interagency consultation process, also referred to as section 7 consultation. The proposal would primarily affect how the Services determine the environmental baseline for agency actions, and the reasonable and prudent measures that the Services include when authorizing an agency to incidentally take protected species.
The primary purpose of section 7 consultation is to ensure that actions taken by federal agencies will not jeopardize the continued existence of a protected species. To achieve that goal, the Services begin by evaluating the status of any listed species that may be affected by a proposed agency action prior to the action occurring. This is known as the environmental baseline. Although the term “environmental baseline” was defined in ESA regulations prior to 2019, the 2019 rules added language to the definition which emphasized that the term referred to the current conditions at the time a federal action is proposed and includes impacts to species which result from federal activities which the consulting agency has no control over. While the Services reversed these changes in 2024, the current proposal would reinstate them.
Additionally, the proposed rule would revise the types of mitigation activities that the Services could assign as reasonable and prudent measures intended to limit incidental take as the result of an agency action. Specifically, the proposed rule would no longer allow reasonable and prudent measures to include “offsets.” Here, “offsets” refer to activities intended to compensate for the impacts of incidental take on listed species that cannot be avoided. According to FWS, offsetting can include actions such as purchasing credits from an approved conservation bank or contributing to an approved in-lieu fee program and may occur either inside or outside of the action area. In 2019, the Services removed offsetting activities from its rules concerning reasonable and prudent measures. Although offsetting was reinstated in 2024, the currently proposed regulations would once again disallow the inclusion of offsets in reasonable and prudent measures.
The full proposal is available here.
Blanket 4(d) Rule
FWS is proposing to once again revoke its Blanket 4(d) rule which allows the agency to automatically apply all possible ESA protections to threatened species. As previously discussed, the text of the ESA provides that only endangered species automatically receive all ESA protections. When designating a species as threatened, the Services must specifically identify which protections that species will receive. FWS proposed and implemented its Blanket 4(d) rule in the 1970s in part to expedite the process of listing a species as threatened. Although it revoked the rule in 2019, it reinstated the regulation in 2024. Now, FWS is seeking to revoke the Blanket 4(d) rule. Should this proposal be finalized, FWS will need to issue individual regulations for every species it lists as threatened clarifying which ESA protections will be granted to that species.
To read the full proposal, click here.
Critical Habitat Designation
Finally, FWS is proposing a rule to revise how the agency makes critical habitat designations. Specifically, the proposal would alter how FWS determines whether an area should be excluded from a critical habitat designation.
The proposed rule outlines two circumstances in which FWS would conduct an exclusion analysis for a particular area: when a proponent of excluding the area has presented credible information in support of the request, and when FWS chooses evaluate a particular area for potential exclusion from critical habitat. FWS clarifies that “credible information” here refers to “information that constitutes a reasonably reliable indication regarding the existence of a meaningful economic or other relevant impact supporting a benefit of exclusion for a particular area.”
The proposal also provides that when undertaking an exclusionary analysis based on economic considerations, FWS will consider the following costs: any additional administrative or transaction costs associated with future section 7 consultations; costs to federal agencies and other affected parties of any project modification necessary to avoid destruction of critical habitat; and the opportunity cost associated with projects and activities. Like the other three proposed rules, FWS originally adopted this rule in 2019, modified it in 2024, and is now seeking to return to the 2019 version.
To view the full proposal, click here.
Next Steps
All four proposed rules were published in the Federal Register on November 21 and will be open for public comment through December 22. After the public comment period concludes, the Services will review the comments received before publishing the final rule. Once the rules are finalized and go into effect, it is likely that they will be challenged in court as they were in 2019. Because none of the lawsuits challenging the original 2019 ESA rules were decided on the merits, all were resolved after the Services notified the courts that they would be reviewing the challenging regulations, it is unclear how these rules will hold up in court.
To learn more about the ESA and how it impacts agriculture, click here to view NALC’s ESA Manual.
To view the text of the ESA, click here.
For more information about the ESA from NALC, click here.