NAHB Backs Trump Administration’s Proposed ESA Reforms

In a move strongly supported by NAHB, the U.S. Interior Department on Nov. 21 announced four proposed regulatory rules regarding reforms to the Endangered Species Act (ESA) that would rescind changes made during the Biden administration that have created regulatory barriers that hinder housing development and economic activity.

The ESA regulatory reforms affect rulemaking regarding the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively referred to below as the “Services”). If adopted, most of these regulatory changes would restore regulatory reforms put into place during the first Trump administration.

Of note to NAHB members, each of the four ESA rulemakings announced today by the Service were also identified by NAHB as deregulatory priorities in letter that NAHB sent to the Office of Management and Budget in May.

Key provisions of each of these four ESA rulemakings include:

• Proposed changes to the species listing and designation of critical habitat processes.
  • Requires the Services to base all species listing and delisting determinations upon the best available scientific and commercial data.
  • Seeks to remove long-term considerations such as possible impacts of climate change when the Services makes a “foreseeable future” determination during a species’ ESA listing determination.
  • Requires the Services to provide the public economic cost impacts when proposing to list a species or designate an area as critical habitat.
  • Reestablishes the Services’ past practice of prioritizing when proposing to designate critical habitat areas actually occupied by the species, as opposed to designating unoccupied and occupied areas simultaneously.
• Proposed revisions to critical habitat exclusion regulations.
  • Proposes to withdraw a regulatory change finalized during the Biden administration that prohibited the Fish and Wildlife Service from sharing with the public the potential economic impact of critical habitat designations.
• Proposed rule rescinding the Fish and Wildlife Service’s “blanket rule” allowing the Service to extend identical protections to “threatened” and “endangered” species.
  • Responds to the U.S. Supreme Court’s 2024 Loper Bright ruling that requires regulations issued by federal agencies to strictly follow federal laws as written, thus overturning regulations based upon the concept of Chevron deference.
  • Requires the Service to follow the plain reading of the ESA statute by requiring the Service when listing a species as “threatened” to concurrently propose a so-called “4(d) special rule” authorizing the “take” of “threatened” species when landowners follow prescribed conservation measures.
• Proposed reforms to the ESA’s Interagency Cooperation Section 7 regulations.
  • Proposes to narrow the scope of required “effects of the action” analysis of the proposed activity undergoing an ESA Section 7 consultation.
  • Seeks to rescind a controversial regulatory change put in place during the Biden administration that allows the Services to impose compensatory mitigation requirements upon developers and builders for unavoidable impacts to species or habitat during the ESA Section 7 formal consultation process.

The Services will be accepting public comment on each of the four ESA rulemakings until Dec. 19, 2025.