Amendments to the Endangered Species Act (ESA) have been proposed by the U.S. Fish and Wildlife Service (FWS) through rulemaking.
There are four proposed changes:
Threatened species protections (50 CFR part 17; section 4(d)): Eliminate the “blanket rule” option and require species-specific 4(d) rules tailored to each threatened species. This approach reflects the best interpretation of the statute under Loper Bright and ensures that protections are necessary and appropriate to conserve each species without imposing unnecessary restrictions on others. It also aligns service policy with the National Marine Fisheries Service’s (NOAA) long-standing species-specific approach.
Listing and critical habitat (50 CFR part 424): Restore the 2019 regulatory text governing listing, delisting, and critical habitat determinations. The proposal ensures that decisions are based on the best scientific and commercial data available while allowing transparent evaluation of economic impacts. It restores the longstanding two-step process for designating unoccupied habitat, clarifies the definition of “foreseeable future,” and brings back flexibility to decide when designating critical habitat is not advisable.
Interagency cooperation (50 CFR part 402): Return to the 2019 consultation framework by reinstating the definitions of “effects of the action” and “environmental baseline,” removing the 2024 “offset” provisions, and restoring section 7 procedures to align with the statutory text. These changes directly respond to the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, which overturned the Chevron deference standard and reaffirmed that agencies must strictly follow the law as written.
Critical habitat exclusions (50 CFR part 17; section 4(b)(2)): Reinstate its 2020 rule clarifying how economic, national security, and other relevant impacts are weighed when determining whether to exclude areas from critical habitat. The revised framework offers transparency and predictability for landowners and project proponents while preserving the service’s authority to prevent exclusions from leading to species extinction.
Read the proposal at https://usark.org/wp-content/uploads/2025/11/25-esa-amendment.pdf.
This will be posted in the Federal Register on November 21 and there will be a 30-day comment period at https://www.federalregister.gov/public-inspection/2025-20549/endangered-and-threatened-species-listing-endangered-and-threatened-species-and-designating-critical.
