Reversing Course For Endangered Species Act: Administration Proposes ESA Regulatory Amendments

Highlights

The U.S. Fish and Wildlife Service and National Marine Fisheries Service published four proposed rules in the Federal Register on Nov. 21, 2025, that aim to restore the Endangered Species Act (ESA) regulations promulgated during the first Trump Administration.
The proposed rules demonstrate how the U.S. Supreme Court's decision in Loper Bright can be applied to justify regulatory changes for consistency with the original intent of the statutory text.
If finalized, the changes would prospectively affect listing and critical habitat determinations, the Section 7 consultation framework, threatened species protections and critical habitat exclusions under the ESA.
This Holland & Knight alert summarizes the proposed rules and how they may change the existing ESA framework.

The U.S. Fish and Wildlife Service (FWS) published four proposed rules in the Federal Register on Nov. 21, 2025 – two of which are jointly proposed by the National Marine Fisheries Service (NMFS) – that aim to restore much of the Endangered Species Act (ESA) framework put in place during the first Trump Administration. Broadly, the rules propose to:

eliminate the "blanket" protections for threatened species so that the regulations permit only species-specific prohibitions
revise the species classification regulations to allow for economic and other considerations and limit the foreseeable future analysis for threatened species determinations
provide a process for exclusions of areas from critical habitat designations, allowing consideration of economic, national security and other relevant impacts
prioritize designation of critical habitat in areas actually occupied by the species and impose a higher standard for critical habitat designation of unoccupied areas
revise the Section 7 consultation process to clarify the scope of review, applying principles from the U.S. Supreme Court's decision in Seven County Infrastructure Coalition v. Eagle County¹, and eliminate offset provisions for reasonable and prudent measures

The proposed rules would apply prospectively, leaving decisions finalized prior to their effective dates largely unaffected. Each of the proposed rules is discussed individually in greater detail below. In most cases, the proposed rules seek to put back in place regulations promulgated in 2019 by the first Trump Administration.

Proposed Changes to Critical Habitat Exclusions

FWS proposed changes to 50 C.F.R. Part 17 to add a process for designated critical habitat exclusions (Proposed Exclusion Rule).

The ESA requires that FWS must designate critical habitat, to the maximum extent prudent or determinable, concurrently with or up to one year after listing a species.² Section 4(b)(2) of the ESA permits FWS to exclude an area from critical habitat designation if the benefits of excluding outweigh the benefits of including the area in the critical habitat designation and the exclusion would not result in extinction of the species (the Exclusion Analysis).³ The Proposed Exclusion Rule would amend the existing ESA regulations to reinsert regulatory language promulgated during the first Trump Administration that sets forth criteria and a process for exercising this exclusion. Specifically, the Proposed Exclusion Rule would require that, in conducting the Exclusion Analysis, FWS must:

prepare a draft economic analysis and include it for public comment in the publication of the proposed designation for public comment
identify any national security, economic or other relevant impacts based on the best information available, which may be qualitatively or quantitatively described, including impacts to economy, productivity, jobs, Tribes, states, local governments, public health and safety, community interests, the environment, federal lands, and conservation plans, agreements or partnerships
compare the impacts with and without the designation in accordance with specific weighing factors to conclusively determine whether the benefits of exclusion outweigh the benefits of inclusion

Ultimately, whether an Exclusion Analysis is performed and the scope of such analysis are at the discretion of FWS, except that FWS must conduct the analysis if an exclusion proponent presents credible information supporting a benefit of exclusion.

The Proposed Exclusion Rule makes clear that it would not require review or alteration to any critical habitat already designated if and when the rule is finalized. Lastly, the Proposed Exclusion Rule proposes to revise only FWS regulations and, therefore, would not impact the NMFS process for Exclusion Analysis.

Proposed Changes to Listing, Delisting and Critical Habitat Designation

The agencies jointly proposed revisions to 50 C.F.R. Part 424 that intend to clarify the requirements and processes within Section 4 of the ESA regarding listing of a species, delisting and critical habitat designations (Proposed Classification Rule). The changes would return the regulations to the language promulgated in 2019.

Specifically, with respect to species classification under the ESA, the Proposed Classification Rule:

revises the factors for listing, delisting and reclassifying a species to allow for consideration of economic and other impacts
simplifies the factors for delisting a species to align with the criteria for listing and remove any reference to recovery
limits the "foreseeable future" of when a species is likely to become endangered for purposes of a threatened species determination to what the agency reasonably determines is likely for both the future threat and the species' response

Regarding critical habitat designations, the Proposed Classification Rule:

revises the circumstances in which the agency may find that it is not prudent to designate critical habitat (Not Prudent Determination) to reinsert one circumstance – threats to a species' habitat solely from causes that cannot be addressed through Section 7 consultation – and emphasizes that there is a catch-all category of circumstances for when the agency otherwise makes a Not Prudent Determination based on best scientific data available
prioritizes designation of areas occupied by the species as critical habitat over areas unoccupied by the species by requiring a two-step evaluation that 1) considers occupied areas before unoccupied areas and 2) requires that unoccupied areas can only be designated after a "reasonably certainty" determination that the area will contribute to species conservation and contains essential physical or biological features, thereby creating a higher standard for designated unoccupied areas

The Proposed Classification Rule emphasizes that it would not apply to existing classifications and critical habitat rules finalized prior to the effective date of the rule and would not require any final listing, delisting, reclassifications or critical habitat designations to be reevaluated.

Proposed Changes to Threatened Species Protections

FWS proposed changes to the threatened species regulations to remove the ability for FWS to rely upon a "blanket rule" for protecting newly listed threatened species (Proposed 4(d) Rule).

Under Section 4(d) of the ESA, FWS may apply any of the prohibitions set forth in Section 9 of the ESA (which prohibit importing/exporting, taking, possessing, selling and other actions of an endangered species) to threatened species.⁴ Historically, nearly all of these prohibitions were applied to threatened species automatically (blanket rule). The blanket rules were removed in 2019 and reinstated in 2024.

Now, FWS proposes to again remove the blanket rules in 50 C.F.R. § 17.31 and 50 C.F.R. § 17.71. Citing Loper Bright Enterprises v. Raimondo⁵ to support the change, FWS explained that species-specific prohibition is the best reading of the ESA and what the U.S. Congress intended, along with some policy rationale such as facilitating beneficial conservation actions and making better use of limited resources. The agency also noted that this approach would align with NMFS' long-standing approach of developing specific 4(d) rules for each threatened species.

In addition to removing the blanket rules, the Proposed 4(d) Rule would require that every species-specific rule is made via a "necessary and advisable" determination that includes consideration of conservation and economic impacts, which is made available for public comment, to address a recent court ruling that examined the agency's application of Section 4(d).

The Proposed 4(d) Rule makes clear that FWS will create species-specific rules for all threatened species that are currently protected under a blanket rule and that such species will continue to receive protections under the blanket rule until such species-specific rules are promulgated.

Proposed Changes to Section 7 Consultation

The FWS and NMFS jointly proposed revisions to 50 C.F.R. Part 402 that would reinstate all interagency cooperation regulations in existence during the first Trump Administration – except for the reinitiation of consultation in Section 402.16, which would remain the same as revised during the Biden Administration – with some clarifying revisions (Proposed Consultation Rule).

Section 7 of the ESA requires that federal agencies consult with FWS and NMFS to ensure that any federal action is not likely to jeopardize the continued existence of listed species or result in destruction or adverse modification of critical habitat.⁶ The interagency cooperation regulations provide a framework for how this consultation is performed (Section 7 consultation). If finalized, the Proposed Consultation Rule would:

revert the "Effects of the action" definition to the 2019 rule, limiting effects of an action to a causal response that is reasonably certain to occur and that would not occur but for the proposed action
clarify when effects and activities are "reasonably certain to occur" based on clear and substantial information using the best scientific and commercial data available by providing a non-exhaustive list of factors that must be considered by the agencies:
- Activities reasonably certain to occur include past experience, existing plans, remaining requirements necessary for the project to go forward and the amount of government administrative discretion remains to be exercised.
- Effects reasonably certain to occur as applied in the "effects of the action" definition include whether a consequence is remote in time, geographically remote, may only be reached through a lengthy causal chain, whether the agency has any ability to prevent the consequence based on its statutory authority or whether the consequence would occur regardless of the proposed action.
define "environmental baseline" to refer to the current condition of the species or its designated critical habitat as would reasonably be expected to occur without the consequences caused by the proposed action, evaluated at the time that the proposed action occurs, including past and present impacts, anticipated impacts of federal projects that have already undergone Section 7 consultation, actions contemporaneous with the consultation process and consequences from activities that are not within the agency's discretion
remove the option to offset reasonable and prudent measures (RPMs) in an Incidental Take Statement
remove the language that prioritizes RPMs that avoid or reduce the incidental take anticipated to occur and removes the ability for FWS to set forth additional RPMs and terms and conditions to minimize taking impacts on the species inside and outside of the action area when it is anticipated that the action will cause incidental take that cannot feasibly be avoided or reduced in the action area

The agencies emphasized that components of actions having no discretionary involvement or control by the federal agency are not subject to Section 7 consultation requirements. The Proposed Consultation Rule also makes clear that it does not apply retroactively to require reevaluation of previously completed Section 7 consultations.

What It Means

Although some of these proposed rules may seem individually minor, the changes will collectively alter the current ESA framework. Pending litigation over the 2024 rules may be dismissed or amended, and new litigation may arise over these proposed rules.

Notably, all of the proposed rules are prospective in nature, meaning that determinations taken prior to their effective dates would stand. Thus, the public can rely on ESA determinations made prior to the amendments to continue their operations. But, if the proposed rules become effective, regulated entities should anticipate that protections for already-listed threatened species may change when the blanket rules are replaced with species-specific protection. Ongoing or new consultation for new projects will almost certainly change. Additionally, new litigation may alter the effectiveness of the rules, in which case the 2024 rules may still apply in some fashion.

Conclusion

The agencies are soliciting comments on these proposed rules for 30 days following publication in the Federal Register on Nov. 21, 2025.

Holland & Knight's Environmental Team is tracking these proposed rules and other regulatory actions relevant to ESA implementation. Contact the authors or another member of the Environmental Team for support in assessing the potential regulatory impacts associated with these proposed rules.

Footnotes

1 145 S. Ct. 1497 (2025).

2 16 U.S.C. § 1533(a)(3).

3 16 U.S.C. § 1533(b)(2).

4 16 U.S.C. § 1533(d).

5 603 U.S. 369 (2024).

6 16 U.S.C. § 1536.

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