A public comment on the proposed revisions to Endangered Species Act (ESA) implementing regulations
Dear Director Nesvik,
As nonprofits that support property rights, federalism, and free-market policies, we applaud the Service’s proposed Endangered Species Act reforms, which will eliminate unnecessary and counterproductive burdens on landowners, respect states’ role over wildlife, and advance essential permitting reforms for public and private projects.
In July, President Trump directed the Fish and Wildlife Service to “promote responsible stewardship of natural resources while driving economic growth,” “encourage responsible, voluntary conservation efforts,” “cut bureaucratic delays that hinder effective environmental management,” and “recover America’s fish and wildlife populations through proactive, voluntary, on-the-ground collaborative conservation efforts.”1Exec. Order No. 14,313, Establishing the President’s Make America Beautiful Again Commission, 90 Fed. Reg. 30197 (July 3, 2025). We see these proposed rules as essential steps to fulfilling this direction.
And they are urgently needed. A half-century after the ESA’s enactment, regulations have generated endless conflict but little species recovery, precisely because they infringe property rights, ignore the role of states, and prioritize red tape over voluntary recovery efforts. To date, the Service has recovered only 3percent of listed species (and far fewer species than it expected).2Katherine Wright & Shawn Regan, Missing the Mark: How the Endangered Species Act Falls Short of Its Own Recovery Goals, PERC (2023). A new approach is necessary to change that.
The Service’s proposed critical habitat reforms, for instance, better respect property rights by requiring consideration of the burdens a designation would impose on private landowners and how these burdens compare to conservation benefits. These designations can significantly reduce the value of designated land—with one study finding value reduced by nearly 80 percent—while providing little benefit to species.3See Jonathan Wood & Tate Watkins, Critical Habitat’s ‘Private Land Problem’: Lessons From the Dusky Gopher Frog, 51 Envtl. L. Rep. 10,565 (2021). The proposed rule will avoid these outcomes, which can have the perverse effect of discouraging habitat conservation, by excluding areas from designation where costs exceed benefits.
The proposal to rescind the “blanket rule” will restore states’ leadership role in managing wildlife. It will eliminate a policy that automatically regulates threatened species as if they were endangered, despite Congress explicitly providing for threatened species to be treated differently and giving the Service no authority to reverse its choice. We appreciate the Service acknowledging that the blanket rule is unlawful for that reason. But the blanket rule is also bad policy. Regulating endangered and threatened species differently provides a reward to states and landowners for their role in recovery progress. Indeed, the ESA’s legislative history explains that Congress chose to limit the take prohibition to “those species on the brink of extinction” because it wished to encourage states “to use their discretion to promote the recovery of threatened species.”4Jonathan Wood, The Road to Recovery: How Restoring the Endangered Species Act’s Two-Step Process Can Prevent Extinction and Promote Recovery, PERC Policy Report 12 (2018).
The proposed rules also include much-needed permitting reform. The ESA erects enormous regulatory obstacles to public and private projects, while providing strong incentives for disruptive litigation. The proposed rules will address this in two ways. First, clarifying that the standards for listing and delisting species is the same, and eliminating the misperception of a thumb on the scale against delisting, will ensure that the ESA’s burdensome permitting process is triggered only for species that actually merit listing. Second, the proposal limits the scope of permitting review in light of the Supreme Court’s decision in Seven County. The permitting process should focus on the effects of the permitted action on listed species, rather than be used as a springboard to regulate states and permittees more broadly.
These reforms will make ESA implementation more attentive to species recovery rather than myopically focusing on red tape and burdensome processes. That’s not only a win for states and landowners, but also for the recovery of endangered and threatened species.
Thank you for your leadership on this issue.
- Property and Environment Research Center
- Independent Institute
- Institute for Energy Research
- Pelican Institute for Public Policy
- Prime Mover Institute
- Wyoming Liberty Group
