ESA Cooperation Rules Get a Procedural Polish
Published Date: 11/21/2025
Proposed Rule
Summary
The U.S. Fish and Wildlife Service and National Marine Fisheries Service want to update how they work with other agencies to protect endangered plants and animals. These changes clarify rules to keep teamwork smooth and species safe, without adding big costs or delays. If you have thoughts, speak up by December 22, 2025!
Analyzed Economic Effects
5 provisions identified: 4 benefits, 0 costs, 1 mixed.
Removal of 'Offset' Provisions
The Services propose to rescind the 2024 rule changes that allowed the use of 'offset' or 'mitigation' measures in reasonable and prudent measures (RPMs) and to revert those sections to their pre-2024 form. The agencies say the term 'offset' is not used in the statutory text and propose removing the 2024 offset provisions from 50 CFR part 402.
No Significant Small-Business Impact
The Services certify that, if adopted as proposed, this rule would not have a significant economic impact on a substantial number of small entities (small businesses, small organizations, or small governments). The agencies say the proposed rule simply confirms longstanding practices for section 7 consultations under the Endangered Species Act.
No Large Unfunded Mandates
The Services state this proposed rule would not impose a federal mandate costing $100 million or more in any year on State, local, Tribal governments, or private entities. The rule declares it would impose no new obligations on State, local, or Tribal governments.
Rule Applies Only Prospectively
The Services propose that the revised regulations would be prospective only: they would apply to section 7(a)(2) consultations finalized after the final rule's effective date and would not apply retroactively to consultations finalized before that date. The Services say they do not intend to require previously completed consultations to be reevaluated.
Clarifying 'Reasonably Certain' Factors
The Services propose reinstating Sec. 402.17 and adding factors to guide when an activity or consequence is 'reasonably certain to occur.' New items include considering the amount of State, tribal, territorial, or local administrative discretion remaining and whether an agency lacks authority to prevent a consequence.
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