In a move that could significantly alter the landscape of wildlife conservation in the United States, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) have proposed a rule that would rescind the regulatory definition of “harm” under the Endangered Species Act (ESA). This proposal, introduced on April 17, 2025, has the potential to redefine what constitutes “take” of a species, a term central to the ESA’s protections.
The ESA, enacted in 1973, aims to conserve endangered species and their ecosystems. The Services are responsible for identifying and protecting species listed as either “threatened” or “endangered.” Once listed, these species receive protections, including a prohibition against “take,” which is defined broadly to include actions like harassing, harming, pursuing, hunting, wounding, killing, trapping, capturing, or collecting a listed species.
The current regulatory definition of “harm,” established in 1975, includes actions that kill or injure wildlife, such as significant habitat modification or degradation. This means that activities modifying or destroying habitat in ways that impair essential behaviors like breeding, feeding, or sheltering can be considered a “take” of the species. This definition has significant implications for private landowners and industries, as it can make certain activities unlawful without a permit from the Services.
The proposed rule aims to rescind this definition entirely. If finalized, “take” would no longer include habitat modification or destruction that indirectly kills or injures wildlife. While direct actions like wounding or killing would still be prohibited, the focus on habitat protection would be diminished. The Services justify this change by referencing the 1995 Supreme Court case Babbit v. Sweet Home Chapter of Communities for a Great Oregon, which upheld the regulatory definition of “harm” but did not declare it the best interpretation of the ESA. The Services also cite the 2024 Supreme Court decision in Loper Bright Enterprises v. Raimondo, which overturned the Chevron deference doctrine that had previously supported the regulatory definition.
Babbit v. Sweet Home involved a coalition of private landowners and logging companies challenging the regulatory definition of “harm.” The Supreme Court upheld the definition, arguing that the ESA’s broad purpose supports including habitat modification in the definition of “harm.” The Court also noted that Congress had amended the ESA to allow permits for incidental “take,” indicating an understanding that “take” includes indirect injury from habitat modification.
The proposed rule’s implications are far-reaching. Environmental advocates argue that rescinding the definition of “harm” could weaken protections for endangered species, as habitat destruction is a significant threat to many species. On the other hand, proponents of the change suggest that it could reduce regulatory burdens on private landowners and industries, potentially encouraging more cooperation with conservation efforts.
As the proposal moves through the regulatory process, stakeholders on all sides will be watching closely. The outcome could shape the future of wildlife conservation in the United States, balancing the need for species protection with the realities of land use and economic development.