The Nickel Report

On November 21, the US Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (together, the Services) published four proposed rules to amend the Endangered Species Act (ESA) implementing regulations. These proposals would amend the Section 7 Consultation Regulations, Criteria for Listing Species and Designating Critical Habitat, Protections for Threatened Species, and Exclusions from Critical Habitat Designation.

These proposals would amend regulations that were issued in 2024 and, in many cases, would reinstate language from the first Trump Administration’s 2019 regulations. Notably, the proposals would clarify the scope of agency review for ESA section 7 consultation, narrow the criteria for listing species and designating critical habitat, reestablish the practice of promulgating species-specific 4(d) rules for newly listed threatened species, and expand considerations for determining whether an area should be excluded from critical habitat designation. The Services will take public comment on each of the four rules for 30 days, through December 22, 2025. Overall, the proposed changes are expected to be favorable to regulated parties because they will reinstate key clarifications and limitations.

Section 7 Consultation Regulations

Under section 7 of the ESA, federal agencies are required to consult with the Services to ensure federal actions do not jeopardize the continued existence of any listed species or adversely modify designated critical habitats. ESA section 7 consultation is often a key hurdle to timely federal permitting of new infrastructure and development projects. The proposal would largely reinstate the 2019 regulations with a few additions. The Services propose to:

• Reinstate the 2019 definition of “effects of the action,” which removes redundant language and references the proposed § 402.17 to confirm the proximate cause standard for evaluating whether a consequence is appropriately attributable to a proposed action.
• Reinsert § 402.17, titled “Other Provisions,” to provide more clarity on “effects of the action” that are “reasonably certain to occur” and “caused by the proposed action.” Consistent with principles recognized in the Supreme Court’s recent NEPA decision in Seven County Infrastructure Coalition v. Eagle County, Colorado, the Services propose to add language to confirm that the Services need not consider effects that the agency has no ability to prevent.
• Modify the definition of “environmental baseline” to emphasize that the agency looks to the best available scientific information at the time of the proposed action to inform its understanding of the condition of the listed species or its designated critical habitat and make it clear that ongoing actions that the agency has no discretion to prevent are part of the environmental baseline.
• Reinstate the 2019 definition of “reasonable and prudent measures” because the Services find that it is consistent with recent executive orders and caselaw.
• Remove language that encouraged “offsetting” reasonable prudent measures (RPM) (i.e., measures intended to compensate for the impacts of incidental take on listed species).

Criteria for Listing Species and Designating Critical Habitat

Section 4 of the ESA outlines the process for listing endangered and threatened species, delisting species, and designating critical habitats. The Services propose to reinstate the relevant 2019 provisions, which recognized important limits for listing determinations. Specifically, the proposals would:

• Clarify that “foreseeable future” under 50 C.F.R. § 424.11(d) extends only so far as the Services can both determine the future threats to species and species’ responses to those threats.
• Remove extraneous language in the regulations, including examples of when a species should be removed from the lists of endangered or threatened species to clarify that the standard for delisting a species is the same as the standard for listing.
• Clarify that designation of critical habitat may not be prudent where the threats to a species’ habitat stem solely from causes that cannot be addressed by section 7 consultation.
• Reestablish a stepwise approach to designation of unoccupied habitat whereby the Service can only consider designating unoccupied areas where it first determines that a designation limited to occupied areas would be “inadequate to ensure the conservation of species.”

Protections for Threatened Species (FWS only)

Section 4(d) of the ESA directs the Secretary of the Interior to issue protective regulations pertaining to threatened species which, under the act, includes all the protections awarded to endangered species under ESA section 9. Previously, species listed as threatened by FWS automatically received the same protections as endangered species, absent a species-specific rule. This is known as the “blanket rule.” The FWS blanket rule was removed in 2019 and reinstated in 2024. The Services are proposing to remove the 4(d) blanket rule and reinstate a species-specific framework for threatened species protection. If finalized, the proposal would: 

• Remove the 2024 “blanket rule,” which automatically extended all of the section 9 protections to threatened species unless the Service issued a species-specific rule.
• Require FWS to conduct species-specific determinations for newly listed threatened species. The proposal would not impact threatened species that are currently protected by the blanket rule unless they are reclassified in the future.
• Add regulatory text at 50 C.F.R. § 17.71(d) to explain that whenever FWS proposes a species-specific rule, they will ensure that each rule includes necessary and advisable determination (including consideration of conservation and economic impacts) and will seek public comment on that determination.

Exclusions from Critical Habitat Designation (FWS only)

ESA section 4(b)(2) requires consideration of the economic impact, impact on national security, and any other relevant impact of designating any particular area as critical habitat. It also authorizes exclusion of areas from critical habitat if the benefits of excluding the area outweigh the benefits of designating as critical habitat and such exclusion will not result in the extinction of the species. The ESA affords the Services with broad discretion in deciding whether to exclude an area from critical habitat designation. FWS proposes to reinstate 50 C.F.R. § 17.90 pertaining to the impact analysis and exclusions from critical habitat. Notably, this proposal would:

• Articulate when and how FWS will determine whether the benefits of excluding an area outweigh the benefits of designating the area as critical habitat.
• Expand considerations of whether an area should be excluded from critical habitat status to include national security and “other relevant impacts” (g., public health and safety, community interests, and the environment).
• Set out a mandatory requirement that the FWS consider the economic impact, impact on national security, and any other relevant impacts prior to designation.

ESA requirements can be key hurdles to timely federal permitting of mining, development, energy, and infrastructure projects. These proposed changes will likely improve the species listing, critical habitat designation, and consultation processes. Hunton routinely assists clients in navigating the complex ESA requirements and consultation process.