FWS Resurrects ESA Rules on Threatened Species Protections and Critical Habitat Exclusions

On July 21, 2026, the U.S. Fish and Wildlife Service (FWS) published two final rules revising its Endangered Species Act (ESA) regulations governing protections for threatened species and exclusions from critical habitat designations. The first eliminates FWS’s “blanket rule” for species newly listed or reclassified as threatened after August 20, 2026. The second creates an FWS-specific framework for deciding whether to exclude particular areas from critical habitat. Both rules take effect on August 20, 2026. The rules largely adopt FWS’s proposed rules previously analyzed here.

Both rules mirror regulatory revisions instituted under the first Trump administration, which the Biden administration subsequently rescinded. The rules also follow on the heels another recent major ESA change on July 14, 2026, when FWS and the National Marine Fisheries Service (NMFS) rescinded their longstanding definitions of “harm.”

Key Takeaways

• Species newly listed or reclassified as threatened under FWS jurisdiction after August 20, 2026, will no longer automatically receive most of the protections applicable to endangered species. FWS will instead establish protections through species-specific ESA Section 4(d) rules. This change will align FWS’s approach for protecting threatened species with NMFS’s longstanding practice.
• The final rule does not change existing blanket-rule and species-specific protections. Those protections will remain in place unless FWS revises them through a separate rulemaking.
• Future species-specific 4(d) rules must include a determination that the protections are “necessary and advisable” for the species’ conservation. That determination must consider both conservation and economic impacts.
• Under ESA Section 4(b)(2), FWS must conduct a critical habitat exclusion analysis when a proponent provides credible information showing a meaningful economic or other relevant impact supporting exclusion of a particular area. If the benefits of exclusion outweigh the benefits of designation, FWS must exclude the area unless doing so would result in the species’ extinction.
• For future critical habitat designations, FWS will publish a draft economic analysis and apply the same general exclusion framework to federal and non-federal lands. The rule does not reopen existing designations or alter NMFS’s critical habitat process.

What Changes for Threatened Species

Section 9 of the ESA establishes specific protections for all species listed as endangered, including the prohibition against unauthorized “take” of such species. Those protections do not automatically extend to threatened species. Instead, Section 4(d) directs FWS to issue regulations it determines are “necessary and advisable” for the conservation of each threatened species and allows FWS to extend some or all applicable Section 9 protections to that species.

Unlike NMFS, which has always implemented Section 4(d) on a species-by-species basis, FWS has historically relied on a “blanket rule” to programmatically extend endangered species protections to threatened wildlife and plants unless FWS adopted a special 4(d) rule for the species. FWS eliminated that blanket rule for newly listed threatened species in 2019, restored it in 2024, and is now eliminating it again for future listings and reclassifications.

Beginning August 20, 2026, species newly listed as threatened, or reclassified from endangered to threatened, will receive only the protections established through a species-specific 4(d) rule. FWS intends to issue those rules concurrently with final listing or reclassification decisions, as it did when the blanket rule was unavailable between 2019 and 2024. The final rule, however, does not require concurrent issuance or establish another deadline for 4(d) rules.

The rule does not immediately change protections for FWS’s currently listed threatened species. Existing blanket-rule and species-specific protections will remain in effect for now. FWS may revise those protections later through individual rulemakings and intends to review them as part of the periodic status reviews required by Section 4(c)(2).

Economic Impacts Will Inform Future 4(d) Rules

Each species-specific 4(d) rule FWS proposes after August 20 must include a determination that the proposed protections are “necessary and advisable” for the species’ conservation. FWS must consider the species’ conservation needs and the conservation and economic impacts of the proposed protections. It must also seek public comment on that determination.

This requirement does not permit FWS to consider economics when deciding whether a species qualifies for listing as endangered or threatened. Listing decisions will continue to be based on the ESA’s statutory factors and the best scientific and commercial data available. Economic impacts will instead inform the separate decision about which activities to prohibit or exempt after FWS determines that a species warrants threatened status.

The new approach gives regulated entities a greater opportunity to shape species-specific protections before they become effective. Project proponents and other stakeholders may submit information about the costs and conservation effects of proposed prohibitions and advocate for tailored exceptions covering activities that benefit the species, have limited conservation effects, or can proceed subject to specified conservation practices.

What Changes for Critical Habitat Exclusions

The separate new rule under ESA Section 4(b)(2) creates a FWS-specific process for excluding areas from its critical habitat designations. Most significantly, FWS must exclude an area if the benefits of exclusion outweigh the benefits of designation, unless exclusion would result in the species’ extinction.

The rule does not change which areas qualify as critical habitat. FWS must still use the best scientific data available to identify occupied areas containing features essential to conservation and unoccupied areas that are themselves essential to conservation. The new framework governs whether FWS should exclude qualifying areas from a critical habitat designation based on economic, national security, or other relevant impacts.

Under the rule, FWS will:

• Publish a draft economic analysis with each proposed designation and identify areas it may consider for exclusion.
• Conduct an exclusion analysis when a proponent submits credible information showing a meaningful, area-specific impact.
• Consider effects on jobs, productivity, property values, permits, leases, public safety, wildfire management, tribes, state and local governments, and existing conservation efforts.
• Give weight to information from entities with relevant expertise or firsthand knowledge unless contrary information rebuts it.
• Apply the same general exclusion framework to federal and non-federal lands.

Existing conservation plans and partnerships may also support exclusion. FWS will consider factors such as implementation history, monitoring, adaptive management, public participation, and whether the plan adequately protects the species and its habitat.

The rule creates a new 50 C.F.R. § 17.90 and applies to FWS critical habitat rules finalized after August 20, 2026. It does not reopen existing designations or change NMFS’s critical habitat designation process.

Practical Next Steps

The rules make early, well-supported participation in species-specific and area-specific proceedings increasingly important.

Stakeholders should evaluate proposed threatened species listings and related Section 4(d) rules separately. For newly listed or reclassified threatened species, the listing decision alone will no longer determine which Section 9 prohibitions apply. Project proponents will need to review the associated species-specific 4(d) rule to identify prohibited activities and available exceptions. Comments on 4(d) rules should address conservation and economic impacts and identify activities that warrant tailored exceptions.

Parties seeking exclusions from proposed critical habitat should identify the specific areas at issue and submit credible evidence of meaningful impacts, such as permitting delays, economic effects, public-safety concerns, or protections provided by existing conservation plans.

Existing threatened-species protections and critical habitat designations remain in effect unless FWS separately revises them. Project proponents should also assess these rules alongside the recent rescission of the regulatory definition of “harm” and other ESA-related reforms, and monitor implementation guidance and expected litigation against these regulatory changes.

Beveridge & Diamond’s Endangered Species and Wildlife Protection practice group provides strategic counseling and compliance advice to project and product proponents in all industries to minimize the impacts of threatened and endangered species listings and critical habitat designations on our clients’ activities. For more information or to discuss strategies for efficiently navigating your project or product through the complex and overlapping federal regulatory programs, please contact the authors.