Disaster aid meets the Endangered Species Act

What the 2026 FEMA relocation rule does to listed species

Updated 6 October 2026

On 1 October 2026, the Federal Emergency Management Agency filed an interim final rule, 'Emergency Relocation of Threatened and Endangered Species,' signed by Acting Administrator Daniel A. Crenshaw and published at 91 FR 71402, that brings species relocations inside the disaster aid system for the first time. The rule, docket FEMA-2025-0042, takes effect on 30 October 2026 and runs alongside, not over, the Endangered Species Act.

What did FEMA actually do on 1 October 2026?

Acting Administrator Crenshaw signed an interim final rule on the last day of fiscal year 2026, and it appeared in the Federal Register two days later. The filing was 91 FR 71402, and the agency docket is FEMA-2025-0042, a proceeding that has sat open since the 2024 hurricane season. The rule is titled 'Emergency Relocation of Threatened and Endangered Species,' and it does what its title says: it builds a federal pathway for moving listed animals, plants, and the habitats they depend on, out of a declared disaster area, and it does so with money and authority that FEMA already had.

Relocation, in the rule's own definitions, means the capture, transport, and release of a listed species, or the physical movement of a population, to a site outside the immediate disaster footprint. The rule covers vertebrates, invertebrates, and plants listed under section 4 of the ESA. It does not cover candidate species, and it does not cover species listed by states. The geographic scope is the area of a major disaster declaration under the Stafford Act, and the time window is the period of the declaration plus 180 days.

Two things matter about the choice of instrument. Interim final rule means the rule is in force on 30 October 2026 without a prior NPRM, but with a 60 day comment period that closes on 29 December 2026. And the rule sits inside FEMA's Public Assistance programme, which is how state, tribal, and local governments are normally reimbursed for emergency work. That makes compliance with the ESA, in practice, a condition of getting federal money after a storm.

What does the rule do to the Endangered Species Act consultation process?

The rule does not waive section 7, and it does not change who the action agency is. It creates a 30 day emergency consultation track inside the US Fish and Wildlife Service for relocations, and a parallel 30 day track inside NOAA Fisheries for listed marine and anadromous species. The clock starts when the state or tribe files a Public Assistance project worksheet, and the clock can be shortened to 15 days when a request comes from a county emergency manager and is supported by a finding from the relevant Service.

For projects that exceed the relocation definition, the standard section 7 process still runs. Incidental take statements still have to quantify take, and section 10(a)(1)(A) permits still have to be issued before any take that is not covered by an existing permit. What the rule changes is the cost layer: reimbursement is now available for the act of relocation itself, including capture, transport, holding, and release, and for the monitoring that follows, when those costs are tied to a section 7 consultation or a section 10 permit.

That last point is the one that wildlife lawyers are reading closely. Public Assistance has historically refused to pay for mitigation, on the ground that mitigation is a federal obligation under the ESA, not a state or local one. The interim final rule draws a line between relocation, which is eligible, and mitigation, which is not, and it defines relocation by reference to the listed species being moved, not to the habitat being restored. The distinction will have to be tested in a disputes case before it is settled.

Who actually moves the animals, and who decides where they go?

The rule names three categories of relocator. The first is a state or tribal wildlife agency with an existing section 6 cooperative agreement. The second is a non profit holding a current section 10(a)(1)(A) recovery permit that authorises the species in question. The third is a federal agency, including the Service itself, NOAA Fisheries, the Forest Service, and the Bureau of Land Management. Private contractors can do the physical work, but only under the direct supervision of one of the three, and only if the contractor is named in the project worksheet.

Receiving sites have to be approved in writing before a release. The default standard is a section 10(a)(2)(A) candidate conservation agreement with assurances, or an existing safe harbour agreement. Where neither is in place, the rule allows a one year enhancement of survival permit, on the model of section 10(a)(1)(A), that runs only for the duration of the disaster declaration. The Service is required to act on a complete application within 21 days, and silence is treated as concurrence only for relocations of fewer than 25 individuals of a single species.

For species whose ranges cross state lines, the rule creates a new role, the federal relocator of record, who is named in the project worksheet and who holds the single section 10 permit covering the cross state movement. The role was modelled on the Service's existing role in whooping crane relocations under the Partnership for the Birds, and it is the part of the rule that conservation groups, including the Association of Fish and Wildlife Agencies, asked for during the 2025 consultations.

What does the rule mean for the ESA take standard, in plain language?

Take is still take. The rule does not redefine the term in section 3 of the ESA, and it does not authorise take that would not otherwise be authorised. What it does is recognise that capture, transport, and release of a listed species during a declared emergency can be take of a kind that is incidental to an otherwise lawful activity, and that the take can be covered by an existing incidental take statement if the action was analysed in the underlying consultation.

Where a relocation is not covered by an existing statement, the project sponsor has two choices. The first is a new section 7 consultation on the relocation itself, with an incidental take statement that names the activity. The second is a new section 10(a)(1)(A) permit, with a habitat conservation plan, or a section 10(a)(1)(B) enhancement of survival permit for a species held by a private party. The rule does not create a third path, and the preamble is explicit that no new take exemption is intended.

For plants, the rule is more permissive in one respect and more restrictive in another. The Service has long taken the view that take of listed plants is limited to removal or damage, and the rule confirms that view. But the rule also requires, for the first time in a federal instrument, that plant relocations be planned to maintain the same genetic stock, and that the receiving site be within the same seed transfer zone, where one has been published. That requirement is borrowed from the Bureau of Land Management's 2024 emergency stabilisation guidance, and it is the part of the rule that native plant societies have welcomed in their comments.

What does this change for hurricane and wildfire response?

In practice, the rule changes the first 72 hours after a major storm or fire, when state and local agencies have historically had to choose between moving animals and filing paperwork. The Florida Fish and Wildlife Conservation Commission's after action report on Hurricane Idalia, filed in February 2024, found that 38 percent of attempted relocations of sea turtles, beach mice, and scrub jays were either unauthorised or undocumented, because the section 7 clock had not started. The new rule shortens that clock to 15 days, when the conditions in subsection (c) are met, and it allows verbal request followed by written follow up within 5 days.

For western wildfires, the change is sharper. The rule pre authorises a single statewide section 7 consultation template for any Service region, on the model of the 2023 template that the Service and the Forest Service negotiated for the Pacific Northwest. States and tribes can opt in to the template, and the rule treats opt in as a standing request for emergency consultation when a fire crosses into a unit where listed species are known to occur. The template was developed in response to the 2020 and 2021 fire seasons, and it has been used informally since 2023.

For inland flooding, the rule is the first federal instrument that expressly addresses the relocation of freshwater mussels, which are the most endangered group of animals in North America and which are routinely stranded by pool and riffle failures. The rule requires that any relocation of a listed mussel species be done by a biologist with documented experience in the genus, and it sets a minimum density for any receiving site, calibrated to the species' life history. That density floor is the part of the rule that has drawn opposition from some state transportation departments, on cost grounds, and support from the Freshwater Mollusk Conservation Society, on biological grounds.

What does the rule not do, and where are the gaps?

The rule does not waive the ESA's prohibition on take, it does not change the standard for listing or delisting, and it does not affect the critical habitat designation process. It also does not address relocations outside a declared disaster area, which means that slow onset events, including sea level rise and drought, are still governed by the pre existing section 7 and section 10 processes. The Service's 2024 policy on drought driven relocations, which is non binding, remains the only federal guidance for those events.

The rule does not create a new pot of money. It routes existing Public Assistance funds, and the new reimbursement categories it creates for relocation are subject to the standard 75 percent federal cost share. The remaining 25 percent is the responsibility of the state, tribe, or local government, and the rule does not waive that share. In a major disaster, the President can raise the federal cost share to 90 or 100 percent, but the rule does not commit the President to do so.

Finally, the rule does not address the question of who owns a relocated animal after the 180 day window. That question is left to the existing section 10 permit, to the receiving state's wildlife code, and, in the case of migratory birds, to the Migratory Bird Treaty Act. The preamble is candid that the question is unresolved, and that the agency will revisit it in a future rulemaking. For now, the default is that the animal is owned by the entity that held it immediately before the relocation, unless a separate agreement is filed with the receiving state's wildlife agency.