On April 17, 2025, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service proposed a rulemaking to rescind the definition of “harm” in the Endangered Species Act regulations. The change is being made to conform to the statutory definition of “take,” which the agencies allege does not include habitat modification.
The Endangered Species Act was established in 1973 and since then has been one of the primary mechanisms to provide for the conservation of threatened and endangered animals and plants. Specifically, the Act requires federal agencies to ensure their actions (and those actions they fund or authorize) are unlikely to jeopardize the continued existence of any listed species. The U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration (within which the National Marine Fisheries Service presides) are the primary agencies tasked with implementing this Act.
The new proposal is being undertaken to reverse what is described as a previous expansion of the Act’s reach, where the Act only described a “take” as meaning “to harass, harm, pursue, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in such conduct.” Under existing regulations, “harm” within the definition of “take” was interpreted to “include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” Per the proposed rulemaking and its reliance on the 1995 Supreme Court decision in Babbit v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995), the definition of “take” should only be construed to require an “affirmative act[] . . . directed immediately and intentionally against a particular animal – not [an] act[] or omission[] that indirectly and accidentally cause[s] injury to a population of animals.” The proposal subsequently does not propose a new definition of “harm,” as “[t]he ESA itself defines ‘take,’ and further elaborating on one subcomponent of that definition – ‘harm’ – is unnecessary in light of the comprehensive statutory definition.”
Critics of the proposal contend it will reduce the scope of the Act’s prohibition on taking threatened and endangered species. The agencies state they “are aware that there are parties who are likely to provide comments concerning their reliance interests on environmental and aesthetic grounds, even as we are aware there are property owners and regulated entities who are likely to provide comments regarding interests in not being subject to a regime Congress may never have authorized.” The proposal therefore seeks “public comment on reliance interests.” Parties seeking to submit comments may do so until May 19, 2025. Comments can be submitted online at https://www.regulations.gov, searching for Docket “FWS-HQ-ES-2025-0034” (available here) or by hard copy to Public Comments Processing, Attn: FWS-HQ-ES-2025-0034, U.S. Fish and Wildlife Service, MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We will continue to monitor this proposal and other federal agency developments in this space at the Corporate Environmental Lawyer blog.
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