The U.S. Fish and Wildlife Service published two final rules on July 21, 2026, revising Endangered Species Act regulations covering threatened species protections and critical habitat exclusions.
The first rule eliminates FWS’s longstanding “blanket rule” for species newly listed or reclassified as threatened after August 20, 2026, fundamentally changing how protections are applied.
The second rule establishes a FWS-specific framework for deciding whether to exclude particular areas from critical habitat designations, introducing a more structured exclusion process.
Both rules take effect on August 20, 2026, and largely mirror regulatory revisions first introduced under the first Trump administration, which the Biden administration later rescinded.
The changes follow another significant ESA development on July 14, 2026, when FWS and the National Marine Fisheries Service rescinded their longstanding regulatory definitions of “harm.”
Under the new threatened species rule, species newly listed or reclassified as threatened will no longer automatically receive most protections applicable to endangered species under Section 9 of the ESA.
FWS will instead establish protections through species-specific Section 4(d) rules, aligning its approach with the National Marine Fisheries Service’s longstanding practice of handling threatened species on a case-by-case basis.
Each species-specific 4(d) rule proposed after August 20 must include a determination that the protections are “necessary and advisable” for the species’ conservation, factoring in both conservation and economic impacts.
The rule does not immediately alter protections for currently listed threatened species, with existing blanket-rule and species-specific protections remaining in effect unless FWS revises them through separate rulemakings.
The separate critical habitat exclusion rule requires FWS to exclude an area if the benefits of exclusion outweigh the benefits of designation, unless doing so would result in the species’ extinction.
FWS must now publish a draft economic analysis alongside each proposed critical habitat designation and conduct an exclusion analysis when a proponent submits credible information showing a meaningful, area-specific impact.
The agency must also consider effects on jobs, productivity, property values, permits, leases, public safety, wildfire management, tribes, and state and local governments when evaluating potential exclusions.
Existing conservation plans and partnerships may also support exclusion, with FWS weighing factors such as implementation history, monitoring, adaptive management, and public participation.
The new critical habitat rule creates a new 50 C.F.R. Section 17.90 and applies only to FWS critical habitat rules finalised after August 20, 2026, leaving existing designations and NMFS processes unchanged.
For project proponents and regulated entities, the rules make early and well-supported participation in species-specific and area-specific regulatory proceedings increasingly important going forward.
Parties seeking exclusions from proposed critical habitat designations should identify the specific areas at issue and submit credible evidence of meaningful impacts, including permitting delays, economic effects, or public-safety concerns.
Stakeholders should also assess these new rules alongside the recent rescission of the regulatory definition of “harm” and monitor implementation guidance and expected litigation against these regulatory changes.