The U.S. Fish and Wildlife Service finalized a rule on July 21 rescinding what is known as the blanket 4(d) rule, according to the final rule published in the Federal Register. Beginning August 20, 2026, newly listed threatened species will no longer automatically receive the same take prohibitions that apply to endangered species. Instead, FWS will decide on a species-by-species basis which protections apply through individual regulations known as 4(d) rules.
The change does not weaken protections for endangered species, nor does it alter protections already in place for existing threatened species; those remain governed by whatever rules currently apply to them. The revised approach affects only species listed as threatened after the rule takes effect, and species later reclassified from endangered to threatened.
What Changes for Companies With Projects Near Protected Habitat
Under the prior blanket rule, newly listed threatened species generally received the same prohibitions as endangered species by default unless FWS adopted a different species-specific rule. FWS has now removed that default, meaning every future threatened-species listing will require its own tailored conservation rule reflecting that species' particular biology, threats, and management needs. For companies developing industrial facilities, energy projects, transmission lines, pipelines, or other infrastructure near protected habitat, the practical effect is that compliance becomes less standardized: each newly listed threatened species will need its own review rather than a uniform, assumed set of restrictions. A recent dispute over a New York solar project shows how contentious wildlife and habitat review can already get even under the current framework, before species-specific rulemaking adds another layer of case-by-case review.
FWS says the species-specific approach targets activities that actually threaten a species' recovery while allowing lower-risk activities to continue, and that it aligns the agency's approach with the National Marine Fisheries Service, which has long used species-specific rules for species under its own jurisdiction. Future 4(d) rules will still go through standard public rulemaking, giving companies and other stakeholders a chance to comment before a specific rule becomes final.
Why This Rule May Not Be the Last Word
This is not the first time FWS has tried to eliminate the blanket rule. The agency rescinded it once in 2019, only for the Biden administration to reinstate it in 2024. Multiple conservation groups, including Humane World for Animals, have criticized the July repeal as removing a safeguard that let FWS respond quickly to emerging threats without waiting for a species-specific rule, and litigation challenging the rule is expected. Companies planning multi-year projects that depend on ESA compliance assumptions should treat the rule as current law rather than settled law, given its history of reversal. The pattern echoes what compliance teams are already navigating with other shifting federal review requirements, such as a recent case where a federal agency added a historic preservation review step mid-project that developers hadn't planned around.
The rescission arrives alongside a separate FWS and National Marine Fisheries Service rule finalized earlier in July that narrows the regulatory definition of "harm" under the ESA, removing habitat modification alone as a basis for a take violation unless an animal is directly killed or injured. Companies tracking one rule should track both, since each affects a different piece of how ESA compliance obligations attach to a project. States and private conservation programs are building their own endangered species infrastructure in parallel with these federal changes, giving companies with biodiversity offset commitments additional channels to work through regardless of how the federal rules ultimately settle.
