Endangered Species Section 7 Update: Federal judge invalidates 4 provisions
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On March 30, 2026, Judge Jon Tigar of the US District Court of Northern California
issued a summary judgment invalidating four provisions of the current ESA Section 7 regulations and directing the government to use the pre-2019 versions of those regulations in their stead.
What will be the impact on infrastructure and other projects concerned about Endangered Species Act approvals? I spent 25-years at the US Fish & Wildlife Service including 22 years with the Division of Law Enforcement. I reached the rank of Deputy Chief for the agency’s Law Enforcement program.
To understand the impact of Judge Tigar’s decision, it helps to go back to the US Supreme Court’s 2023 Sackett decision (here and here) redefining jurisdictional Waters of the United States (WOTUS). This had a limiting effect on projects seeking Endangered Species Act (ESA) Incidental Take Authorization (ITA) through the ESA Section 7 consultation process.
Prior to the ruling, many projects, especially linear projects such as pipelines and highways, had impacts to WOTUS triggering the required federal nexus for an ESA Section 7 consultation.
With a federal nexus, the US Army Corps of Engineers would engage in ESA Section 7 consultations with the United States Fish and Wildlife Service (USFWS) or National Marine Fisheries Service (NMFS). At the conclusion of the consultation between the federal agencies, ITA was conveyed to the project in a Biological Opinion.
With the restricted definition of WOTUS, many projects, especially in arid regions such as oil and gas fields in west Texas, must increasingly contend with the loss of an ESA Section 7 trigger necessary to gain ITA for endangered species.
The problem was exacerbated in Texas with the 2024 federal ESA-listing of the dunes sagebrush lizard found solely in west Texas and eastern New Mexico. An ESA Section 10 Habitat Conservation Plan (HCP) conveying ITA through an Incidental Take Permit is not available for this species, and many other species nationwide.
With the loss of Section 7 triggers and Section 10 HCPs by which projects can obtain ITA for ESA-listed species, project officials increasingly recognize the need to avoid an ESA violation with the development of an ESA Section 9 "take" avoidance plan for their specific project. These plans often include guidance on route selection for linear projects, known occurrences of listed species, habitat assessments, species specific disturbance avoidance measures (DAMs), and the use of monitors during construction.
For companies finding themselves in this position, here are a few things to keep in mind:
With proper guidance, projects can be built in ESA-listed species’ habitat without violating ESA Section 9.
The standard for an ESA Section 9 take violation is far higher than the “adverse affect” standard used in ESA Section 7.
In almost every case, the listed species must be present in the project’s workspace for an ESA Section 9 violation to result, including take through the regulatory definition of “harm.”
In the last year alone, I have seen ESA Compliance Assessments save a few energy companies $5+ million in unnecessary horizontal directional drilling costs.
When ITA is not available, failure to obtain professional guidance on ESA Section 9 can result in a Section 9 violation and/or an injunction stopping construction.
Finally, the USFWS biologists conducting ESA Section 7 consultations are not training in ESA Section 9, they often confuse the ESA Section 7 adverse impact standards with the required elements for an ESA section 9 take violation. ESA Section 9 guidance should be from a current or former USFWS Special Agent.
Gary Mowad
Senior Advisor
Before joining Dawson & Associates in 2025, Gary spent 25 years at the US Fish & Wildlife Service, where he was one of the agency’s top authorities on Endangered Species Act issues.
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