The federal rule nobody saw coming

What FEMA's October 2026 rule does to endangered species relocations

Updated 6 October 2026

Interim final rule 91 FR 68102, signed 30 September 2026 by FEMA Administrator Jessica Orton and effective 2 December 2026, opens Section 404 hazard mitigation money to state fish and wildlife agencies for the capture, husbandry and release of federally listed species in the 270 days after a presidentially declared disaster. The text, docket FEMA-2025-0042, sits in the Federal Register alongside a parallel consultation memo from the U.S. Fish and Wildlife Service and ends an arrangement that, for two decades, funnelled every such request through one federal desk.

What the rule actually says, and where it sits in the law

Section 404 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act has, since 1988, paid for hazard mitigation projects that reduce the loss of life and property from future disasters. Until October 2026, the category that covered endangered species work, the so-called “aquatic and terrestrial endangered species resource management” line, was administered by the U.S. Fish and Wildlife Service on behalf of FEMA. State agencies that wanted to move a listed animal after a hurricane, wildfire or flood had to ask the Service to ask FEMA. The interim final rule, FEMA-2025-0042, 91 FR 68102, lets a state fish and wildlife agency file the application itself, as long as the work falls inside the 270 day window that begins the day a major disaster declaration is signed.

Three things matter about the location of the rule inside the statute. First, Section 404 is mitigation, not response. Money drawn under it is meant to reduce future loss, which is why the rule ties eligibility to a federally approved species recovery plan or a candidate species assessment. Second, the rule does not change the Endangered Species Act. Any take of a listed species still needs the same section 7, section 10 or section 6 paperwork it needed last week. Third, the rule does not change the CITES export permit chain. A red wolf moved to a captive breeding population in Canada still has to leave the country under the same permit the Service has issued for years.

The interim final rule was signed 30 September 2026 and published 2 October 2026. Because it is interim final, the comment period runs for 60 days from publication and the rule takes effect 2 December 2026 whether or not comments change the language. FEMA has signalled, in the rule's preamble at 91 FR 68104, that it will accept comments on three narrow questions: whether 270 days is the right window, whether the recovery plan test should be replaced with a state wildlife action plan test, and whether tribes should be eligible applicants on the same terms as states. None of those questions are open to negotiation on the underlying authority.

Who can now move an animal after a disaster

Before 2 December 2026, the answer to who could move a listed animal under federal money was: a Service biologist, working through a regional office, with a cooperative agreement signed by the relevant state agency. The interim final rule recognises a new class of eligible applicant, the “state fish and wildlife agency,” defined by reference to the Pittman-Robertson and Dingell-Johnson administrative practice, and a parallel class for tribal wildlife programmes funded under the Tribal Wildlife Grants programme. A state department of transportation, a county parks department or a private zoo cannot apply on its own, even if it has done the field work, but it can be a subrecipient on a state application in the way a city can be a subrecipient on a FEMA flood buyout.

The rule is careful about who counts as the mover of last resort. The text at 91 FR 68107 lists the activities that qualify for funding: capture, transport, holding, veterinary care, captive breeding during the recovery period, release, and post-release monitoring. It does not fund acquisition of land for permanent sanctuary and it does not fund construction of new captive facilities, although it will pay for the use of an existing facility for up to 18 months. The 18 month cap is borrowed from the Service's own section 6 holding policy and is one of the few places in the rule where FEMA explicitly mirrors an existing wildlife agency number rather than writing its own.

For practitioners, the practical change is the same change that came to flood buyouts in 2013, when FEMA let cities apply directly for the first time. The 2013 buyout rule is what convinced FEMA that a state could administer a federal mitigation programme without losing track of the money. The 2026 species rule is built on the same template. The 60 day comment period, the interim final designation and the recovery plan test are all traces of that buyout lineage rather than traces of the Endangered Species Act.

What the parallel U.S. Fish and Wildlife Service memo changes

Published the same day, the Service's memo, FWS/AES/2026-09, sets out the consultation standard the Service will use when a state application crosses Service desks. Under the previous arrangement, consultation was the whole point of the Service's involvement, because the Service was the applicant. Under the new arrangement, the Service is the consultee, and the memo explains what it will look for. Three things stand out. First, the memo confirms that the Service will accept a state-led biological opinion in lieu of a Service-led one for projects under 100,000 dollars, a threshold borrowed from the section 7 categorical exclusion programme. Second, the memo confirms that any capture that involves a species listed under both the Endangered Species Act and CITES Appendix I, which would include animals such as the Scyphozoan corals moved at CITES CoP20 in Samarkand, must be notified to the Service's Office of Law Enforcement before capture so that an export permit chain is open. Third, the memo commits the Service to a 30 day turn-around on the consultation, mirroring the timeline that has applied to informal consultation since 2023.

The 30 day turn-around is the part that the conservation community has noticed. A 30 day turn-around is fast for the Service, which has historically taken 90 to 135 days on formal consultation, and is fast for FEMA, whose own quarterly obligation report averages 88 days. The rule does not say what happens if the Service misses 30 days, and the preamble at 91 FR 68109 declines to write a default rule, citing the difficulty of writing a default for a case that has not been a problem in the buyout context. The Service's own memo at section 4(c) is slightly more candid, noting that the 30 day clock is a working target rather than a deadline and that “complex projects may require a written extension agreed by both agencies.”

What changes for a state fish and wildlife agency on the ground

For a state agency that has spent the last twenty years watching the Service make the call, the rule does three concrete things. It moves the application form from a Service template to FEMA's standard mitigation form, which is the same form used for buyouts and seismic retrofits. It moves the cost share from the Service's 75/25 split, which used the Service's own administrative ceiling, to FEMA's standard 75/25 split for states and 90/10 for states with a FEMA-approved enhanced mitigation plan. And it moves the reporting requirement from the Service's quarterly progress report to FEMA's quarterly progress report, which is filed through the FEMA Grants Portal rather than through the Service's TRACS system.

The cost share change is the one that state directors have been asking for. The 90/10 enhanced mitigation rate is the same rate that has applied to buyouts since 2019, and is available to any state that has a FEMA-approved enhanced mitigation plan. As of October 2026, 27 states have one. For the 23 states that do not, the rule creates a transitional 80/20 rate for the first 18 months of the programme, which is a 5 point improvement over the previous 75/25 and is treated in the preamble as an incentive to apply for the enhanced plan.

The reporting change is less visible but matters more in practice. FEMA's Grants Portal is the system that state emergency managers already use for buyouts, public assistance and hazard mitigation grants, and the species relocation money will now sit alongside the rest of the state's mitigation portfolio. That has two consequences. The state's emergency management agency, rather than its fish and wildlife agency, will own the federal financial reporting. And the state's fish and wildlife agency will need to be ready to explain to the emergency management agency what a species is, why a 270 day window exists, and why a particular animal is worth moving. None of that is impossible, but it is new.

What does not change

Three things are unchanged by the rule and are worth saying out loud. The Endangered Species Act is unchanged. The Section 7 consultation process for federal actions is unchanged. The CITES permit chain for international movement is unchanged. The rule is a funding rule, not a permitting rule, and a state that captures a listed animal without the right section 10 permit has still broken the law, regardless of whether FEMA paid for the capture. The Service's own memo at section 3(b) is explicit on this point, citing the long-standing principle that “funding is not authority.”

Two further things are unchanged in form but are likely to change in practice. The list of who counts as a “state fish and wildlife agency” for the purposes of the rule is, for now, the same list that the Service has used for section 6 grants, which is 56 agencies in the 50 states, the District of Columbia and the five inhabited territories. The preamble at 91 FR 68106 leaves the door open for the list to be expanded to include tribal wildlife programmes that are not currently funded under the Tribal Wildlife Grants programme, but the expansion is not in the interim final rule. And the recovery plan test, which is the substantive test for whether a project qualifies, is the same test the Service has used since 1988, which is that the project must be consistent with a federally approved recovery plan or be a candidate for one. The preamble asks, but does not answer, whether the test should be replaced with the looser state wildlife action plan test.

What the comment period can, and cannot, change

Because the rule is interim final, the comment period closes on 1 December 2026, the day before the rule takes effect. Comments can shape the final rule, which FEMA has committed to publishing within 12 months, but cannot delay the effective date. The three questions FEMA has flagged in the preamble are the three questions on which comments are most likely to be productive. The 270 day window is one. The recovery plan test is another. The tribal eligibility question is the third. Comments on other topics, such as the 100,000 dollar consultation threshold or the 18 month holding cap, will be read but are not, on the face of the preamble, up for renegotiation.

For state agencies, the comment period is also the period in which to negotiate the operational details that will not appear in the final rule but will appear in the FEMA-State agreement that the rule requires. The first of those agreements is expected to be a template, rather than a state-specific document, and FEMA has signalled that the template will be published for comment in November 2026. The 60 day comment window on the rule and the 30 day comment window on the template will, in practice, run at the same time, and the same state biologists who write the rule comments will, in many cases, be the people who write the template comments.

For a wildlife beat, the rule is one of those quiet documents that change who answers the phone when a hurricane makes landfall in the range of an listed animal. The animal is still the cargo, the law that protects it is still the Endangered Species Act, and the international permit chain that allows any cross-border movement is still CITES. What has changed is the cheque writer, and the change is permanent enough that the next species that needs to be moved will, in all likelihood, be moved by a state agency that has been told it can apply for the money directly, rather than by a federal desk that has been told to ask.