Just before Thanksgiving, while most Americans were preparing for turkey and stuffing, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service set the table for a major regulatory reset under the Endangered Species Act. And no, turkeys are not threatened or endangered, but the wood stork is, along with 89 other American bird species and more than 2,140 plants and animals currently listed under the 1973 law.

Biodiversity degradation is an existential crisis affecting planetary and human health, but the 1973 Endangered Species Act, as it has been administered, falls short. It is widely accepted that in the five decades the law has been in effect, populations of mammals, birds, amphibians, and fish have dropped a shocking 68 percent.

For those engaged in business in which real estate is an asset, last week’s announcement of four proposed ESA rules is more than administrative housekeeping. It represents a meaningful turn toward restoring the predictability, efficacy, and statutory fidelity that the regulated community relies on to make informed decisions about land and capital under a federal law up to the challenge.

The proposals would roll back Biden era ESA regulations, widely criticized for expanding federal reach, creating unnecessary complexity, and drifting away from the statute’s text, all despite more than five decades of ESA implementation history. These new rules implement Executive Orders 14154 (“Unleashing American Energy”) and 14219 (“Department of Government Efficiency”), as well as Secretary’s Order 3418, which collectively direct agencies to remove regulatory barriers that impede responsible resource development and economic growth while maintaining the conservation mission Congress intended.

As Secretary of the Interior Doug Burgum put it, the administration is “restoring the Endangered Species Act to its original intent, protecting species through clear, consistent and lawful standards that also respect the livelihoods of Americans who depend on our land and resources.”

What the Four Proposed Rules Would Do

1. Listing and Critical Habitat (50 CFR part 424)
   This rule would return the listing process to the 2019 regulatory text. Most significantly, it would once again allow transparent consideration of economic impact information that does not dictate the listing decision but helps the public understand its implications. It also restores clarity to the “foreseeable future” standard and reinstates the longstanding two-step analysis for designating unoccupied habitat. For developers of real estate projects managing timelines and financing, a return to well understood definitions is not trivial.
2. Interagency Cooperation (50 CFR part 402)
   Section 7 consultation has long been the chokepoint where project timelines can stall. The agencies propose to restore the 2019 definitions of “effects of the action” and “environmental baseline,” removing the 2024 “offset” provisions that never fit comfortably within the statute. These revisions directly respond to the Supreme Court’s landmark Loper Bright decision, which ended Chevron deference and reinforced that agencies must adhere to the ESA as written. Clarity in consultation is clarity in project management.
3. Threatened Species Protections (section 4(d))
   FWS proposes to eliminate the “blanket 4(d) rule,” replacing it with species specific rules for threatened species. This aligns FWS with NMFS’s longstanding approach and reflects the best reading of the statute under Loper Bright. Importantly for real estate interests, this ensures that restrictions are narrowly tailored, avoiding one size fits all prohibitions that needlessly burden otherwise routine activities.
4. Critical Habitat Exclusions (section 4(b)(2))
   Finally, FWS proposes to reinstate its 2020 critical habitat exclusion rule governing how economic, national security, and other impacts are considered when evaluating whether to exclude areas from critical habitat. This process had been disrupted by the 2024 rules. The reinstated framework promises transparency and predictability while retaining the agency’s authority to protect species from extinction.

Director Brian Nesvik of FWS emphasized that these actions “restore clarity and predictability” and keep the focus on “recovery outcomes, not paperwork.” That message resonates strongly across industries that depend on stable regulatory expectations.

What These Changes Mean on the Ground

While none of these rules individually upends the ESA landscape, their collective impact is significant. Pending lawsuits challenging the 2024 regulations may become moot or need to be amended, and new challenges are likely. Of particular note: these proposed rules do not address the Service’s recent proposal to rescind the ESA’s definition of “harm,” a high stakes issue to watch closely.

Because all four proposed rules are prospective, current ESA determinations remain valid. Existing consultations, biological opinions, and critical habitat designations continue to control ongoing operations. But regulated entities should anticipate that threatened species protections may shift once species specific 4(d) rules come online, and consultation procedures for new projects will almost certainly change.

In short, the rules promise more clarity, but also more change, both of which will better respond to biodiversity degradation.

Of note, these changes will not impact state laws, like the Maryland Nongame and Endangered Species Act where the state has its own list of protected species not on the federal list, including legislatively (i.e., not through any scientific or data driven process) protecting species not federally listed, like the eastern small footed bat (after the U.S. Fish and Wildlife Service “found that listing was not warranted” because the culprit in its decline was not humans but a fungus), further expanding the state’s regulatory reach and imposing significant economic burdens on landowners in the State with no real benefit to planetary or human health.

A Look Back and Forward

Veterans of ESA practice may recall that the first federal endangered species list included a handful of charismatic megafauna, including the grizzly bear. The ESA’s scope has since expanded dramatically, even as biodiversity loss accelerates. Critics argue the statute has failed to meet the scale of today’s ecological challenges. Supporters emphasize that the law remains one of the strongest conservation tools ever enacted.

Regardless, the regulated community functions best under clear, consistent rules. These proposals aim to deliver just that.

The agencies are accepting comments through December 21, 2025. Stakeholders in real estate, construction, infrastructure, and energy development would be wise to weigh in. When it comes to ESA regulation, clarity is not merely good governance; it is a competitive advantage that is also good for biodiversity degradation.

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Join us for the next in our webinar series at the Intersection of Business, Science, and Law, “Mandatory GHG Disclosures in Real Estate Contracts” on Tues, Dec 16 at 9 am. The webinar is complimentary, but you must register here.