Today, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (together, the Services) proposed rescinding the definition of “harm” under the Endangered Species Act (ESA). Harming a listed species will still be a prohibited “take” under the ESA, which includes other activities that harass, pursue, hunt, shoot, wound, kill, trap, capture, or collect a listed species. This proposal is in response to President Trump’s April 9 Executive Order, “Directing the Repeal of Unlawful Regulations,” and may serve as one of the first test cases for future deregulatory efforts.
The existing regulatory definition of “harm” includes significant habitat modification or degradation that actually kills or injures wildlife. In 1995, relying on Chevron deference, the Supreme Court upheld this regulatory definition. Citing the Supreme Court’s recent Loper Bright decision overturning Chevron, the Services concluded the regulatory definition of “harm” is not the best reading of the statute.
The Services do not propose an alternate regulatory definition of “harm” and instead will rely on the definition of “take” that identifies harm without additional explanation. Importantly, the Services’ proposal does not explicitly exclude significant habitat modification or degradation from falling under the ESA’s “take” prohibition.
While the Services claim the revision would be prospective and would not affect existing permits, the proposal could alter ESA liability under Section 9 depending on how courts may interpret the term “harm” absent a definition. For proponents currently navigating ESA consultation or planning future projects, this definition may change the scope of anticipated effects on listed species. Absent clear guidance from the Services, it is difficult to predict whether the proposal would streamline consultations.
In light of the potential implications for existing and future projects, it is critical for stakeholders to submit comments for the administrative record. The Services are accepting comments for 30 days until May 19, 2025.
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