ESA Rule Changes, Explained

The National Marine Fisheries Service and the U.S. Fish and Wildlife Service have proposed four rule changes to the Endangered Species Act (ESA).  

This episode of “Our Wild Lives” unpacks the four-rule proposal that could narrow ESA consultations, limit critical habitat, remove automatic protections for threatened species, and elevate economic considerations.  

TWS staff members , Cameron Kovach, Kaylyn Zipp and Kelly O’Connor explain why these changes are happening, how they affect wildlife professionals and communities , and how to submit substantive public comments, which can be submitted until December 22, 2025.  

Learn more: 

Proposed Rules: https://www.federalregister.gov/documents/2025/11/21/2025-20549/endangered-and-threatened-wildlife-and-plants-listing-endangered-and-threatened-species-and

TWS ESA News Article: https://wildlife.org/endangered-species-rules-rollback-to-2019/

TWS Position Statement on the ESA: chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://wildlife.org/wp-content/uploads/2023/11/TWS_IssueStatement_USEndangeredSpeciesAct_FINAL_2023.11.pdf

Submit comments about the proposed rules: https://www.regulations.gov/document/FWS-HQ-ES-2025-0039-0001

Become a member of The Wildlife Society: https://wildlife.org/join/

Support Wildlife, Invest in Wildlife Professionals: https://wildlife.org/donate/

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Transcript

[00:00:05] Katie Perkins: The United States Congress passed the Endangered Species Act, or the ESA, as you'll commonly hear it called in 1973 to protect species on the brink of extinction. The ESA is administered by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service. These agencies, when necessary designate or list a species as threatened or endangered.

On November 21st, 2025, these agencies rolled out a four rule regulatory package that would revise species protections and habitat designations for endangered species. They aim to restore the framework from the first Trump administration, narrowing consultations, allowing for economic considerations again, and limiting criteria for critical habitat.

If these changes move forward, they could reshape how the Endangered Species Act is implemented in years to come. In today's episode, TWS staff members will break down what's being proposed and what you can do about it. This is Our Wild Lives brought to you by The Wildlife Society. 

[00:01:16] Ed Arnett: Katie, we're joined by some of our fellow staff members today. We've got Cameron Kovach, the chief program officer for The Wildlife Society, and Kelly O'Connor, our conservation policy manager and Kaylyn Zipp, who's our policy and communications fellow. Welcome folks. Great to have you here on the podcast and, uh, talking about the simple and not so controversial subject That, uh, is the ESA, the Endangered Species Act. Cameron, I think just to start off, let's do just a quick history the Endangered Species Act and a little, maybe even a little bit about, the position of The Wildlife Society.

[00:01:52] Cameron Kovach: Sounds good. The Endangered Species Act was passed in 1973. This came after a period of rapid post-war development that often, came at the expense of the environment and wildlife. And as a result, we saw many wildlife species start to decline during that time, including, one of our nation's symbols, the bald eagle. When, Congress introduced the Endangered Species Act, it was a novel concept in that it not only protected individual animals, but also the habitats upon which they depended. The law was passed with bipartisan support and since has become a cornerstone of biodiversity conservation, not only in the U.S. but also internationally. Uh, it's been integral to the recovery of many species, including the bald eagle, and also in preventing the extinction of hundreds of species. Today there are about a thousand species listed on the threatened and endangered species list under the ESA. And that includes both plants and marine, species as well. 

[00:02:58] Katie Perkins: Thanks Cameron. Kay, let's start big picture. What are we here to talk about today? What are the four main proposed changes that have happened recently for the Endangered Species Act?

[00:03:09] Kaylyn Zipp: First, the agencies wanna change how species are getting listed or delisted and how critical habitat is designated. This will include putting more weight on economic and other non-biological factors, making it harder to designate unoccupied habitat, which can matter for species that have ranges shifting due to climate change.

Secondly, they're rewriting the consultation rules. So that's the process that federal agencies go through to make sure their projects don't jeopardize a listed species. Their proposal will narrow what impacts must be considered. So reviews would focus more on direct immediate effects and less on, cumulative or long-term ones.

Third, the threatened species would no longer get automatic protection. So instead of the blanket four D rule, each threatened species, would now need its own custom rule. Um, this can delay protections in the long run.

And fourth, the agencies would revive a policy that lets them exclude areas from critical habitat if economic or national security costs are judged outweigh the conservation benefits as long as the exclusions don't cause extinction. Um, so taken together these four changes will shift the ESA towards giving agencies more discretion and giving economic considerations a bit more weight. 

[00:04:20] Ed Arnett: So Kelly, why are these proposed changes happening now? I mean, we've had kind of a political pendulum back and forth among administrations, but why are we seeing this happening right now?

[00:04:29] Kelly O'Connor: Yeah, so there are kind of two main drivers that are, are being cited by the agencies in their proposed rulemaking. irst is the Administration's executive order, Unleashing American E nergy that directs all of our federal agencies to review, any regulations that may, slow domestic energy development or add any other procedural hurdles for, large projects at the federal level. Second, the agencies have cited the Supreme Court's, uh, Loper Bright decision which eliminated the Chevron deference. So that is the longstanding principle that courts should defer to agency expertise when they're interpreting, any ambiguity in federal laws. And so without that in place, all of our agencies need more, explicit, narrower, and really highly defensible definitions in rule to ensure that those rules hold up in court. We also have from the agencies, justa sort of general statement that the proposal's meant to increase things like clarity, consistency, um, and just general predictability and Endangered Species Act implementation.

[00:05:36] Katie Perkins: Kelly, are these changes more of a major shift or are they just a technical update?

[00:05:40] Kelly O'Connor: Yeah, so they're framed as technical corrections, but as is often the case with kind of regulatory implementation of a huge piece of legislation like the ESA. In practice, they can represent a really meaningful policy shift. So, um many of the current proposed rules are reverting to, ESA regulations that were in place in 2019 and 2020. They are often narrower definitions, especially like Kay mentioned, for things like consultation and critical habitat designations. So we could really limit, what threats agencies are allowed to consider when it comes to threaten and endangered species recovery and conservation. 

[00:06:20] Katie Perkins: So Kelly, you talk about these key terms. Ed, can you kind of walk us through what some of those key terms are? Things like critical habitat, distinct population segment, best available science. How are we defining those?

[00:06:33] Ed Arnett: So critical habitat refers to specific geographic areas that are essential to the conservation of a listed endangered species. Though the area need not actually be occupied by the species at the time, it's designated, and that's one of the more controversial angles of designating critical habitat when the species may or may not be there. But expansion into that habitat is deemed to be critical for the recovery of that particular species. The distinct population segment is the smallest division of a taxonomic species that's permitted to be protected under the Endangered Species Act. So as defined in the act for listing purposes, it's a taxonomic species or subspecies of plant or animal. In terms of best available science, I think, you know, with the utilization of indigenous knowledge and other forms of knowledge,best available information may become a new term down the road, but I think, best available science, uh, should be, geared toward the individual species and the scientific information that is available, uh, indicating, what the threats are, you know, assessing whether the threats are real, population status, those kinds of metrics that go into making decisions, that are science-based.

[00:07:53] Katie Perkins: When things like this are proposed by agencies, the public has an opportunity for something called a comment period. What exactly is that? Who can comment and why does it matter that people participate in that?

[00:08:05] Kelly O'Connor: If you hear kind of a call to action saying, submit your, you know, submit your comment to the Fish and Wildlife Service, that is the public's formal opportunity to weigh in on a piece of federal rulemaking. nyone from The Wildlife Society as an organization to Katie, if you as an individual wanna submit a comment, um, everyone in between can submit a comment to the agency that's proposing this rulemaking. And those agencies are legally required to review and consider every comment they receive. When we eventually see final rule from NOAA and the Fish and Wildlife Service, they are gonna have to respond to any major themes of the comments that they receive as well as any k ind of substantive issues or critique that they hear from folks who have submitted comments. It all gets posted in the federal register. That's the government's official record of rulemaking. And that's really important for transparency, right? Everyone sees the same rule language, the same, deadlines, the same supporting documents. We all have access to that shared information. And, yeah, the comments are really, really important in what we will eventually see for final rule, all the way from, any kind of scientific gaps that maybe come up, from folks who submit comments, implementation challenges, legal issues that the agency may not fully recognize. That's information that's really valuable during this stage of the process. 

[00:09:26] Katie Perkins: Kelly, if I was as an individual going to submit a comment, what is something that I might say that would influence these people reading the comments, what is something that would have an impact?

[00:09:37] Kelly O'Connor: Yeah, that's a great question. I mean, in general, agencies want to know if the rules that they're proposing are grounded in the best available information. Kind of like Ed pointed to. And if they are, you know legitimately able to be implemented. So you as an individual, maybe wanna speak to the fact that you support a strong, Endangered Species Act and meaningful implementation of the Endangered Species Act on the ground. you might have a species of interest that you focus in on in terms of kind of like Cameron mentioned. What the ESA has done for wildlife conservation historically in the U.S. And you might also point to the fact that the American public in general really supports the ESA right and strong ESA implementation.

[00:10:23] Ed Arnett: Hey Kelly, just a quick follow up on substantive comments 'cause there's kind of the bucket of, I don't like this, so I'm just gonna yell and 

[00:10:30] Kelly O'Connor: Mm-hmm.

[00:10:30] Ed Arnett: scream about it. And then there's real true substantive comments. Could you dig just a little bit deeper in how we go about looking at that and what constitutes substative versus just maybe opinion or, or difference of opinion.

[00:10:44] Kelly O'Connor: Yeah, I mean, in general, if you see a request from TWS to participate in rule making like this, um, we're asking our members to go down the substantive route, right? So. You absolutely could just submit a comment saying, I don't like this piece of rulemaking, but we're looking for members on the ground who are maybe working in critical habitat designation or have experience with section seven consultation, and are able to really speak to how that process is currently working and, and how they think it might work if the proposed rules were to go into effect.

The service is gonna be looking for, data, peer-reviewed literature, other resources, to really back up those comments as opposed to, like you said, at that very kind of generic. "I'm not a fan of this rule."

[00:11:34] Ed Arnett: Yeah. We want to add to the weight of evidence, because all information can have some value. You know, you have everything from a sliding scale of the gold standard of a five year GPS collar study that gives you very pinpoint discussions, but you also have local knowledge, indigenous knowledge. People that have been on the ground, that have seen animals do the same thing year after year, that's still information and it adds to that weight of evidence, that body of evidence that the service needs to, address those comments. So, um, you just mentioned, uh, day-to-day working biologists, Cameron, how do you feel these proposed rules are gonna change the day-to-day angles of our wildlife biologists and managers? Or could it'd be speculative at this point.

[00:12:19] Cameron Kovach: Definitely speculative, but starting to get into some of those substantive components. As you mentioned, the speculative component of that, our team is still looking into what the possible ramifications of these rule changes are, um, especially in light of one of the changes that Kelly mentioned earlier and that is the overturning of the Chevron deference. So the Chevron deference provided broad authority to agencies to interpret ambiguous statutes. And so in many ways, the removal of that resets how courts may interpret the act now that they're relying primarily on the text of the law and not prior agency interpretation.

So some of those definitions you listed earlier, Ed may now come into different interpretation from courts now that Chevron deference has been removed. Um, going down to as simple as the definition of species, what does species mean when a court is interpreting just the text of the Endangered Species Act? Now to answer your question, from my initial take on reading through the rules, I'm seeing that they will result in more work for wildlife biologists with fewer tools and quite frankly, less clarity.

[00:13:27] Ed Arnett: Hmm.

[00:13:27] Cameron Kovach: And so diving into some of the specifics, I think biologists will be limited in what science they can consider when listing a species or designating critical habitat. As the new rules largely exclude the effects of long-term threats like climate change. This may result in fewer landscapes being designated as critical habitat, thus reducing or limiting the influence of biologists in recovering a species. Biologists may now need to list economic impacts alongside scientific considerations that can be potentially belittling for wildlife biologists working on conserving endangered species, as well as increase their work load. And then all of that on top was something Kaylyn mentioned earlier of the need to develop species specific rules now for all, all, threatened species as they're listed and potentially retroactively,in the future. So again, I think there is still a lot of uncertainty in how these rules, might manifest in the day-to-day for wildlife biologists.

But right now I'm reading the changes, uh, to further reducing a biologist's ability to implement proactive conservation measures for threatened and endangered species.

[00:14:39] Katie Perkins: Kelly, how do you think that these changes would affect landowners, outdoor recreationists, and local communities?

[00:14:45] Kelly O'Connor: It will definitely vary kind of place to place and species to species. If we're, you know, narrowing our interpretation of what counts as the effect of an action, that means we may be documenting kind of fewer project related impacts that would trigger something like mitigation or project design change.

So landowners, um, you know, folks associated with those projects may see fewer restrictions on some activities and project elements in kind of the near future. At the same time when we're looking at things like, greater discretion to not designate critical habitat or, you know, conclude that it's not prudent to designate critical habitat that I think, like Cameron pointed to, you could create some really significant kind of down the road uncertainty If we're, not designating that critical habitat early in the listing and recovery process and a species continues to decline as a result. Then maybe down the road we start talking about needing even stronger protections, which could be more disruptive to, um, you know, those same projects and activities. Communities, I think, really benefit from rulemaking that's predictable and, you know, grounded in evidence and science. If our definitions become so narrow that agencies now can't, fully assess threats to its species, that creates a really long-term management challenge that, impacts community planning, infrastructure development, and even, you know, community driven conservation efforts.

[00:16:17] Ed Arnett: Yeah. You know, I think if all of us just independently assess the ESA, I think we could find some changes that would be needed to improve its efficiency and its effectiveness. Right. And some of these changes in my view as I've read them and, and read 'em back in the, in the 2019 era when they came out, were not necessarily as egregious as some, I think are portraying them as, but there are a couple that are challenging for us, and in particular the discussion on economics.

I mean, this goes right against a position statement of The Wildlife Society that says economic factors should not be addressed,in a listing or critical habitat designations. But there are economic and development related implications aren't there in these rule changes. Cameron, what do you think about that particular, piece in the rule making changes that, uh, on economics and factoring those in?

[00:17:14] Cameron Kovach: Introducing economics and politics into considerations that should be reserved for scientific information essentially corrupts the process in my mind. And that is why The Wildlife Society has long tried to separate out those economic components from the scientific components. And now what we're seeing through the rulemaking process is not changing the text of the law. So species determinations still have to be based on the best available science, but scientists are now, potentially having to report back those economic. impacts, uh, in their reports, in their rulemaking. And that is, is quite frankly something that I don't think should be happening through this process.

One thing I can add is that I, I mean, we look at how this process came up referencing the executive orders that, that Kelly mentioned. It's not starting with a balanced discussion on how to improve biodiversity conservation. The administration has clearly articulated that their goal is to remove barriers to the rapid development of energy and mineral resources. Wildlife is not listed as a priority in that. Climate change is not included, amongst the considerations. There is no meeting of the minds here. This is a, a debate with predetermined conclusions. And those conclusions aren't, improving the conservation of biological diversity while finding sustainable pathways for energy development. And that's what concerns me.

[00:18:50] Ed Arnett: Yeah, that's a really good point because think when you take it back to the economic argument, I mean, anyone could make an economic argument that , a listing or a designation of critical habitat is gonna have an economic impact. That's without question, which is why we promote using just the science and the species biology and those kinds of things and the threats.

That's the key thing is the threats to the species. Which may be a result of said, economic impact or development to achieve economic growth. Or it may be completely independent, but that's why we promote what we do, to not factor in those economic impacts. But your point is extremely well taken because of the political pendulum and going back and forth, back and forth.

Wouldn't it be better? To meet in the middle and actually talk about how we come up with durable solutions that increase the efficiency of the Endangered Species Act and actually improve its effectiveness while assessing and addressing all the things that factor in to those decisions at that time. 

People have been trying to change the ESA and, you know, put in the economic argument forever. I've always said that the best way to improve the Endangered Species Act is never have to use it in the first place, and to actually do more proactive conservation on the front end, that's the best way we could improve it.

[00:20:13] Kaylyn Zipp: I like what you mentioned about durable ed, and I think it's important to think about the fact that development projects often last 10 years, and so development projects have seen kind of the flip back and forth of these rulemaking processes, and oftentimes that increases risk t o those projects as well as, their uncertainty.

And so it may work actually against development, because they will have to take into account potential switches back in the future.

[00:20:42] Ed Arnett: In the long run, which is an excellent point. Yep.

[00:20:45] Katie Perkins: We've talked a lot about how this would increase workload, potentially on wildlife professionals. All while we've been seeing a reduction in workforce capacity in the federal government, how does this reduce capacity, affect, or could affect the rollout and enforcement of these rule changes?

[00:21:02] Kaylyn Zipp: We have seen that federal agencies are losing significant capacity, which has potential to impact the implementation of the ESA in all regards. Species specific rules like those proposed sound good in theory. However, there is an expected increase in the workload, and while we're seeing a major contraction in the workforce, this may become problematic.

[00:21:22] Cameron Kovach: Also potentially see it as an entry point for external expertise coming into the equation. So agencies looking to outside sources. And,I have some level of concern over the integrity of those decisions or, that guidance if it's not coming from the agency itself.

The Fish and Wildlife Service, National Marine Fisheries Service should be the. core driver of that biological expertise. And so what happens if they're not able to fulfill that role, um, do we see an erosion of the agency's, osition and establishing these rules and communicating that information.

[00:22:03] Ed Arnett: Right.

[00:22:04] Cameron Kovach: I think already you're gonna see a lot of that information on economic impacts coming from outside sources. That's not going to be from Fish and Wildlife, and that's an entry point for, potentially biased information to get into these consultations and decision makings around Endangered Species Act.

[00:22:21] Ed Arnett: And that very scenario may set up another change to the Endangered Species Act. You know, and the problem with opening up the Endangered Species Act for changes that may be fundamental and really important for increasing effectiveness, or efficiencies. Uh. It gives an opportunity for Congress to hang a lot of ornaments on the Christmas tree as the old saying goes. Rather than using the surgical approach, it can get pretty interesting pretty fast when you open up an act for changes.

[00:22:51] Katie Perkins: So altogether, if these rule changes were to move forward, where would it leave the ESA in terms of strength, flexibility, and effectiveness?

[00:22:58] Kaylyn Zipp: The way that I see it right now is that the ESA becomes more flexible, but this flexibility is tilting more towards economic and land use interest rather than precautionary conservation. And for better or worse, we'll see how that goes, but agencies and stakeholders are gonna get more discretion. Um, the baseline protections for species and habitats would be weaker when the species are listed. And because it relies on the species by species rulings, this may mean that protections have the potential to vary. The lack of automatic protections for some threatened species could delay action until they're far closer to extinction, which I think we should be worried about, because the strength of the ESA is that early intervention, which prevents species from further declining.

[00:23:44] Kelly O'Connor: Yeah, I think my concern when we're looking at kind of increasing efficiency in the short term, but again, is what does long term implementation of the Endangered Species Act look like? And what does this kind of rulemaking do when we're looking at things like long-term or more kind of diffused threats to wildlife in America, right?

So tackling things like climate change and ongoing habitat loss. How do we tackle problems like that when we're also narrowing the implementation of, of the act in the short term?

[00:24:17] Cameron Kovach: To answer your question, about where will it leave the ESA, though: it'll still be a cornerstone for conservation of biological diversity. It will be our best defense against the extinctionof wildlife.

[00:24:27] Ed Arnett: That's the backstop and my hope for the future, to be honest with you, is that we that bit of advice that the best way to fix the ESA is to never have to use it in the first place and put more effort toward proactive conservation. So looking to the future, Kelly, tell us the best way that, uh, folks can stay updated on the ESA rulemaking process as it's unfolding and our comments and how they can help us.

[00:24:55] Kelly O'Connor: So, uh, you can follow TWS policy updates. Both on our web coverage of the issue at wildlife.org. You can subscribe to our Conservation Affairs Network newsletter. That's where we'll broadcast things like, requests for feedback from our members on how this rulemaking might impact the work that they do. But we work really hard to help flag deadlines for comments, translate some of this more kind of complex regulatory language in, in ways that our members can really use that information. And in general, just make it easy for members to, to engage, with these opportunities for public comment. If folks really wanna stay, Kind of real time up to date. You can also, follow individual rules on the federal register so you can sign up for informations on the docket and you'll get updates when there are things like, new pieces of supplemental information or new comments get posted as well. And if, if folks do wanna submit a comment on, any of the rules in this kind of package of rulemaking, the deadline on the federal register is December 22nd. 

[00:25:55] Katie Perkins: Thank you all. I If you wanna learn more about all of these rules, be on the lookout for a three part series on our, news center wildlife.org, written by Kay. And that'll dive into the nitty gritty of each of these proposed rule changes. And you can stay up to date with the Conservation Affairs Network. and we'll have all of this information down in the description for you underneath this episode. So thank you for listening to this episode of the Our Wild Lives Podcast, brought to you by The Wildlife Society.