Highlights
- The U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) propose rescinding the regulatory definition of "harm" under the Endangered Species Act (ESA) that currently includes habitat modification, arguing the current definition is inconsistent with the best interpretation of the statute.
- The proposed rule comes after the U.S. Supreme Court's 2024 decision in Loper Bright Enterprises v. Raimondo that overruled the Chevron doctrine. Under Loper Bright, agencies must ensure their regulations reflect statutory text, and when that text is ambiguous, they should use the single best meaning of the statute, not just a permissible interpretation.
- If adopted, the rule change would limit the ESA's protections to direct actions that harm species and exclude indirect harm such as habitat modification.
- It is unclear how this change would affect other aspects of the ESA such as Section 10 habitat conservation plans.
The U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) on April 17, 2025, published "Rescinding the Definition of 'Harm' Under the Endangered Species Act."1 The main purpose of the proposed rule is to rescind the regulatory definition of "harm" currently found in agency regulations implementing the Endangered Species Act (ESA), which includes significant habitat modification that directly or indirectly harms species by impairing essential behaviors such as breeding, feeding or sheltering. The agencies argue that defining "harm" is extraneous and inconsistent with the best meaning of the term "take" under the ESA, because "take" is already defined under the statute and includes "harm." The effect of the recission, if adopted, would be to narrow the scope of activities requiring permits under the ESA. The comment period for the proposed rule ends May 19, 2025.
Background and Current ESA Interpretation
The ESA prohibits the "take" of endangered species without a permit,2 and the U.S. Congress explicitly defined the term "take" in the statute to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."3
When promulgating the regulations for the ESA, the FWS through its regulation defined "harm" as an act that actually kills or injures wildlife and that the act "may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering"4 (emphasis added).
The NMFS regulation defining "harm" is identical, except that it adds other essential behavioral patterns that can be significantly impaired by the habitat modification such as "spawning, rearing, migrating."5 Few land use activities directly target species. However, activities that result in loss of species habitat are regulated under the "harm" definition, and the loss of such habitat is used as a surrogate to calculate the extent of species "take."
This regulatory interpretation of "harm" has been upheld by the U.S. Supreme Court for almost 30 years.6 When originally challenged, the Court, in applying the Chevron doctrine,7 gave deference to the agency based on its regulatory expertise and allowed the agency to define "harm" to include indirect impacts such as habitat modification and degradation.8
Proposed Regulatory Change as a Consequence of the Overturning of Chevron
The proposed narrowing of the term "take" is based on the Supreme Court's decision to set aside the Chevron doctrine in Loper Bright Enterprises v. Raimondo,9 which held that courts must independently determine the best interpretation of the law rather than deferring to agency interpretation. The government services agencies assert in the proposed recission that the current definition of "harm" does not reflect the best reading of the statute.
The preamble notes that amending 50 C.F.R. Sections 17.3 and 222.102 by removing the definition of "harm" would be consistent with the concept that a "take" means an action that is directed against the animal itself as opposed to the incidental harm from impacting habitat. It further notes that such an amendment is necessary in order to fulfill the executive branch's obligation under the "take care" clause of Article II of the U.S. Constitution,10 which requires that an agency takes care that all laws are faithfully executed.
The proposed rule also relies on arguments presented in Supreme Court Justice Antonin Scalia's dissent in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon to support their proposal: 1) The term "take" historically could not mean anything other than reducing animals to human control by killing or capturing them, and 2) under a noscitur a sociis canon,11 the interpretation of the term implies an affirmative act that is immediately and intentionally directed against a particular animal rather than an act that indirectly causes injury to a species,12 such as habitat destruction.
Implications
The proposed rule change would have sweeping implications for federal land and water policy, including permitting of projects. By removing the definition of "harm," it will also remove the inclusion of the degradation of habitat to qualify as a "take" under the ESA, leaving actions covered by ESA's prohibition on taking to include only those that involve a direct action to kill or injure endangered or threatened species. Presumably, actions that degrade a habitat in a way that then indirectly affects a species' breeding, feeding or sheltering will not be considered "take" of a species.
However, the ESA regulations also have a definition of "harass" that "means an intentional or negligent act or omission that creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns that include, but are not limited to, breeding, feeding, or sheltering."13 Arguably, this definition could include habitat modification (i.e., cutting down all the trees could harass the species to such an extent that it leaves), although that has not been tested because of the definition of "harm."
Habitat protection has been a cornerstone of the ESA permitting, including Section 10 that allows for permits to be issued for "incidental take" of listed species that result from otherwise lawful activities, provided a Habitat Conservation Plan (HCP) is developed and implemented. If "take" related to habitat modification is no longer regulated, then presumably Section 10 loses much of its relevance. In turn, Section 7 consultations for habitat modification would no longer be required. As most authorized takes are not direct, this would substantially reduce the volume of consultations under the ESA. Reduced consultations under Sections 10 and 7 would mean that fewer projects would have the incidental take coverage provided under those sections. One perhaps unintended consequence is that projects that accidentally take species that turn out to be present on a property would not have the take coverage that they would have if they underwent consultation for habitat modification.
Footnotes
1. 90 Fed. Reg. 16102 (April 17, 2025).
2. 16 U.S.C. Section 1538(a)(1)(B)-(C).
3. 16 U.S.C. Section 1532(19).
4. 50 CFR Section 17.3.
5. 50 CFR Section 222.102.
6. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995).
7. Chevron v. NRDC, 467 U.S. 837 (1984).
8. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995) at 703 ("The latitude the ESA gives the Secretary in enforcing the statute, together with the degree of regulatory expertise necessary to its enforcement, establishes that we owe some degree of deference to the Secretary's reasonable interpretation.")
9. Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 400 (2024).
10. U.S. Const. art. II, Section 3.
11. This is a canon of statutory interpretation that states that the meaning of an unclear word or phrase should be determined by the words immediately surrounding it.
12. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995) at 717, 719-20.
13. 50 CFR Section 17.3.
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