On November 19, 2025, four regulatory updates to the federal Endangered Species Act (ESA) were proposed that may change how the U.S. Fish & Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) list and protect imperiled species and their habitats and conduct ESA Section 7 consultations for projects requiring federal permits. If finalized, the changes would only apply to ESA consultations completed after the effective date of the final rule and would not apply retroactiveregulaly to previously completed consultations or require previously completed consultations to be reevaluated. The proposed changes are in response to recent case law and executive orders, including:

• Loper Bright Enterprises v. Raimondo (603 U.S. 369, 2024) Supreme Court case, which overruled the 40-year precedent Chevron S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 case ruling, a doctrine that previously gave deference to agencies’ interpretations for administrative rulemaking if Congress left ambiguities in statutory language, as long as those interpretations are reasonable;
• Executive Order (E.O.) 14154 Unleashing American Energy and associated U.S. Department of the Interior Secretarial Order No. 3418 which required USFWS to revise all relevant critical habitat designations to ensure that such actions are based on the best scientific data available and that they take into consideration the economic impact and impact on national security;
• O. 14181 Emergency Measures to Provide Water Resources in California and Improve Disaster Response in Certain Areas which directed the Secretary of the Interior to ‘promptly review, revise, or rescind any regulations or procedures specific to implementation of section 1536 of title 16 U.S. Code, as needed and consistent with applicable law, to conform with plain meaning of the statute’; and,
• O. 14219 Ensuring Lawful Governance and Implementing the President’s ‘Department of Government Efficiency’ Deregulatory Initiative to identify and rescind regulations that undermine national interests.

The majority of these proposed regulatory revisions involve rolling back rules issued in 2024 and reinstating rules incorporated into the ESA in 2019 and 2020. The topics addressed in the 2025 proposed regulatory revisions include the species listing process, critical habitat designations, and interagency cooperation (Section 7). Comments are due on these rules at Regulations.gov by December 22, 2025.

Species Listing and Delisting Processes

Changes to the species listing and delisting processes include:

• The ‘blanket rule’ that currently provides universal ESA Section 9 protections to threatened species (in lieu of development of species-specific rules) under the existing ESA Section 4(d) rule would be rescinded. The proposed regulatory revision would instead require species-specific 4(d) protective rules to be adopted for all newly listed threatened species, likely concurrent with the final species listing publication.
• Economic and other impacts could be taken into consideration when determining whether to list a species.
• ‘Foreseeable future’ would be defined as extending “only so far into the future as the USFWS can reasonably determine that both the future threats and the species’ responses to those threats are likely” to determine if a species should be listed as threatened. Threatened species would be defined as “any species which is likely to become endangered within the foreseeable future…” and therefore this conjunctive definition clarifies that both criteria (future threat and species response) must be met for threatened listing species.
• The revisions propose reverting back to three circumstances for delisting a species:
  • The species is extinct,
  • The species does not meet the definition of an endangered or threatened species, or
  • The listed entity does not meet the definition of a species.

Refining this list would eliminate the need to directly document that species recovery has occurred based solely on fulfillment of a USFWS Species Recovery Plan.

Overall, these proposed changes would likely increase the timeline for listing threatened species, due to additional task of developing a species-specific list of rules at the time of listing and having to demonstrate that both future threats and the species response to those threats are likely, while also streamlining the delisting process.

Critical Habitat Designations

Changes to critical habitat designations include revisions to the ‘exclusion analysis’ process for critical habitat designations are proposed, such that the Secretaries of the Interior and Commerce would:

• Consider national security, economic, and other relevant impacts of proposed designations; and,
• Identify areas to be considered for exclusion from critical habitat if benefits of exclusion outweigh the benefits of inclusion, as long as exclusion would not result in the extinction of the species.

Interagency Cooperation Process (Section 7)

Changes to the interagency cooperation process would include the following revisions intended to clarify and simplify implementation of the ESA:

• Reasonable and prudent measures (RPMs) – the 2024 definition provided a provision for including “offsetting” RPMs; however, because the words “offset” and “mitigation” are not explicitly mentioned in the ESA and RPMs are required not to impose anything more than “minor changes” to a proposed action, the new rule language proposes to rescind all references to options for offsetting RPMs.
• Environmental baseline – proposed clarified definition that the baseline is “evaluated at the time of the proposed action and refers to the current condition of the listed species or its designated critical habitat in the action area as would reasonably be expected to occur without the consequences to the listed species or designated critical habitat caused by the proposed action.” Additional clarifications are proposed to define effects that are ‘reasonably certain to occur’.
• Effects of the action – proposed changes would “reinsert focus on whether a consequence is remote in time, geographically remote, or may only be reached through a lengthy causal chain” to ensure that only consequences to a listed species or critical habitat that are caused solely by the proposed action (i.e. would not otherwise occur but for the proposed action) and are also reasonably certain to occur are included in the affects determination.

If adopted, the proposed changes to interagency cooperation would likely significantly streamline the Section 7 consultation process by establishing rules for determining both the environmental baseline and effects of the action placing more weight on direct, causal connections for making species effects determinations. In addition, the RPMs definition revision may limit the USFWS’ ability to recommend offsetting RPMs (including mitigation) or major changes to the project design to avoid potential species impacts.

If you have questions on if/how the new ESA rules may affect your project, contact Jackie Rockey at 412-249-3140 jrockey@cecinc.com