Endangered Species Act Evolving? A Look At Significant Recent And Upcoming Changes To ESA Administration

Endangered Species Act (ESA) administration has seen significant shifts during the past decade, including changes to ESA implementing regulations, policies and guidance and a number of significant decisions by federal courts, including the U.S. Supreme Court. This post provides a brief overview of important recent developments and what we can expect in the near future.

Recent Developments in ESA Administration

Vacatur of Certain Consultation Regulations under ESA Section 7:

On March 30, 2026, the U.S. District Court for the Northern District of California vacated certain regulations issued by the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, Services) relating to interagency consultation. The court found that the regulations contradicted the language of the ESA or otherwise violated the Administrative Procedure Act (APA). Specifically, the court vacated three consultation-related provisions that were adopted by the Services in 2019:

• definition of “effects of the action”;
• definition of “destruction or adverse modification [of critical habitat]”; and
• a provision clarifying that where the Services weigh beneficial actions proposed or taken by the action agency or applicant to minimize or offset adverse impacts, the action agency or applicant need not provide additional demonstration of binding plans.

The court also vacated a provision adopted by the Services in 2024, which clarified that only the Services (rather than an action agency) may request reinitiation of consultation. As a result of the ruling, the pre-2019 and pre-2024 versions of the vacated regulations apply respectively until the Services issue new regulations. Center for Biological Diversity et al. v. U.S. Fish and Wildlife Service et al., Case No. 4:24-cv-04651 (N.D. Cal.).

National Security Exemption Granted by God Squad for Oil & Gas in the Gulf:

On March 31, 2026, the Endangered Species Committee (colloquially referred to as the “God Squad”) convened for the first time in 30 years to consider providing certain oil and gas activities an exemption from ESA requirements, as requested by Secretary of War Pete Hegseth. The Committee is known as the God Squad because of its authority to exempt activities from ESA requirements even where an exemption could cause extinction of one or more species. Secretary Hegseth requested the exemption on the basis of national security considerations. The Committee unanimously granted the exemption, allowing oil and gas exploration and production in the Gulf of Mexico to bypass certain ESA requirements, potentially affecting the endangered Rice’s whale (Balaenoptera ricei) and sperm whales and sea turtles. A number of groups have challenged the Committee’s exemption in court on procedural and substantive grounds.

Lesser Prairie-Chicken Delisted:

On August 12, 2025, the U.S. District Court for the Western District of Texas vacated the USFWS’ listing rule for both the northern and southern distinct population segments (DPSs) of the lesser prairie-chicken (Tympanuchus pallidicinctus) (LEPC). The listing was vacated at the request of USFWS itself, which indicated there had been an error in the agency’s analysis of the species’ extinction risk. In compliance with the court order, on February 26, 2026, USFWS issued a final rule to withdraw the listings and initiated a 12-month status review in connection with a 2016 petition to list the LEPC. State of Texas v. U.S. Department of Interior, Case No. 7:23-cv-00049-DC (W.D. Tex. Aug. 12, 2025).

Upcoming ESA Regulatory Changes

Regulations Currently at White House OIRA

The White House Office of Information and Regulatory Affairs (OIRA) is currently reviewing final versions of three ESA implementing regulations:

• regulations addressing the process USFWS will follow to exclude areas from critical habitat designations;
• rescission of USFWS’s “blanket” ESA section 4(d) rule; and
• the Services’ rescission of the definition of “harm.”

Economic Analyses for Excluding Areas from Critical Habitat:

ESA section 4(b)(2) allows the Services to exclude areas from critical habitat where the benefits of excluding those areas outweigh the benefits of including them (Exclusion Analysis). In 2020, USFWS issued a regulation setting forth standards by which it would conduct any Exclusion Analysis. That regulation was rescinded in 2022. Under the 2020 rule, the analysis for making that determination allowed consideration of numerous factors, including economic impacts and required that where a finding is made the benefits of exclusion outweigh the benefit of inclusion, USFWS must exclude such areas. USFWS now proposes to reinstate the 2020 rule, with a handful of changes, including a requirement that USFWS must publish a draft economic impact analysis for critical habitat at the same time it publishes the proposed critical habitat designation.

Rescinding the Blanket 4(d) Rule:

ESA section 9 prohibits “take” only of species listed as endangered. For species listed as threatened, ESA section 4(d) authorizes the Services to issue regulations that are necessary and advisable for the species’ conservation. Both Services have issued some species-specific rules pursuant to ESA section 4(d) that extend the “take” prohibition to threatened species. USFWS, however, primarily has relied on a “blanket rule” which automatically prohibits “take” of threatened species unless a species-specific rule is issued. That blanket rule was repealed in 2019, but was reinstated in 2024. Repealing the blanket 4(d) rule will require USFWS to promulgate species-specific 4(d) rules for species listed as threatened.

Rescinding the “Harm” Definition:

On April 9, 2025, President Trump issued a memorandum requiring federal agencies to repeal regulations inconsistent with certain U.S. Supreme Court decisions, including Loper Bright Enterprises v. Raimondo (Loper Bright), which overturned Chevron deference and requires courts to determine the best meaning of ambiguous statutes rather than deferring to agencies’ reasonable interpretations of the same. Under the ESA, the term “take” is defined to mean to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.” By regulation, the Services have defined the term “harm” to include significant modification of species habitat where that modification results in death or injury to the species, including through impairing essential behavioral patterns like breeding, feeding, or sheltering. USFWS’ regulatory definition of “harm” was upheld by the Supreme Court in Babbitt v. Sweet Home Chapter for Communities for a Great Oregon on the basis of Chevron deference.

Following the April 9, 2025 presidential memorandum, the Services determined their respective definitions of harm did not reflect the best reading of the ESA and, therefore, proposed to rescind their respective definitions. In their proposed rules rescinding the definition of “harm,” the Services explained they believe that a prohibited “take” requires an affirmative act directed immediately and intentionally against a particular animal. Because the Services have not proposed to replace their regulatory definitions of “harm” with new definitions, there is some uncertainty as to how the agencies and third parties will enforce the “take” prohibition of the ESA in the future should the proposed rescission be finalized.

Anticipated Regulations in the Services’ Court Filings

In addition to the three rules currently at OIRA, there are at least two additional final rules anticipated to publish before the end of 2026, according to recent court filings by the Services:

Revisions to Regulations for Listings and Critical Habitat Designation:

The Services have proposed to return ESA section 4 implementing regulations to the versions promulgated in 2019 (that were later revised in 2024). As proposed, the regulations will clarify how to analyze the “foreseeable future” when determining whether to list a species as threatened (defined as a species that is likely to become endangered in the foreseeable future).

Other notable revisions include clarifying that in designating critical habitat, where the Services determine that threats faced by the species stem solely from causes that cannot be addressed by management actions identified in an ESA section 7 consultation, the Services should make a finding that designating critical habitat is not prudent. Further, the regulations will limit designation of unoccupied areas as critical habitat only to those circumstances where designation limited to areas occupied by the species would be inadequate to ensure its conservation.

Interagency Consultation Regulations:

The Services have proposed to reinstate ESA Section 7 interagency cooperation regulations that were issued in 2019 (and revised slightly in 2024). Of interest, the regulations as proposed would include the provisions vacated by the U.S District Court for the Northern District of California in March 2026 (discussed above).

Court Cases to Watch

How should the Services assess the environmental baseline in ESA Section 7 consultation?

In National Wildlife Federation v. National Marine Fisheries Service., No. 3:01-CV-640-SI (D. Or. Mar. 2, 2026), plaintiffs sought injunctive relief to require the federal agencies to carry out certain operational activities protective of listed salmon and steelhead in connection with the Federal Columbia River Power System (FCRPS), a system of federally-operated dams and power infrastructure in the Columbia River that provides hydropower to a significant portion of the Pacific Northwest. In the biological opinion at issue, NMFS included general FCRPS operations in the environmental baseline and measured the effects of proposed operational changes against that environmental baseline. Plaintiffs argued and the court agreed, that NMFS improperly failed to distinguish between nondiscretionary operations (which should be included as part of the environmental baseline) and discretionary operations (which should have been analyzed as effects of the action). The court also invalidated NMFS’ approach to comparing the proposed operations to a baseline including existing FCRPS operations. This case is now on appeal to the U.S. Court of Appeals for the Ninth Circuit and will be closely watched by owners and operators of infrastructure projects.

Does a development fee required by a county in compliance with an HCP constitute an unconstitutional taking?

In Colosi v. Charlotte County et al., Case No. 2:24-cv-01004-JES-KCD (M.D. Fla. 2025), a property owner challenges a mandatory development fee required under Charlotte County, Florida’s Habitat Conservation Plan (HCP).

The County’s HCP for the scrub jay (a bird) requires developers to pay mandatory fees in order to develop property within the County. The fees are based on the size of the parcel to be developed (rather than the actual area within the parcel that will be developed) and are used by the County for the benefit of the scrub jay and its habitat. The plaintiff claims the mandatory development fees amount to an unconstitutional taking of his property and that USFWS is violating the commerce clause because the agency is regulating a species with no commercial or economic value that lives solely within the State of Florida. Resolution of this case may have implications for the development and administration of programmatic HCPs. 

ESA Legislation

In March 2026, the U.S. House Committee on Natural Resources recommended the House approve H.R. 1897, the Endangered Species Amendments Act of 2025 (ESA Amendments Act), which contains numerous revisions to the ESA. Some notable aspects of the ESA Amendments Act include:

• Adopting statutory definitions for various terms including “best scientific and commercial data available,” “habitat,” “foreseeable future,” and “environmental baseline.”
• Exempting the Services’ issuance of incidental take permits under ESA section 10 from review under the National Environmental Policy Act and ESA Section 7.
• Codifying that the Services may not add seek additional mitigation measures for actions covered by an HCP.
• Prohibiting the Services from imposing mitigation or offsets in the context of ESA Section 7 consultations.
• Clarifying certain aspects of the ESA Section 7 consultation process to reduce delay.
• Providing a process for states to develop and implement recovery plans with respect to species in their state.
• Limiting the award of attorney fees for repeat ESA litigants.

Taken together, the above actions could result in significant changes to implementation of the ESA in 2026 and beyond, although uncertainty may continue. For example, we anticipate promulgation of final ESA-related regulations would result in nearly immediate legal challenges, potentially with varying results across jurisdictions. Further, while Congressional action to amend the ESA could result in greater certainty for the regulated community, passing legislation to amend the statute likely faces an uphill battle. For project proponents with potential ESA issues, continued close coordination with qualified legal counsel and biological consultants is advised.

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