A regulatory definition that has shaped Endangered Species Act (ESA) enforcement for decades will be removed this fall.
The Department of the Interior and Department of Commerce finalized a rule to rescind the definition of “harm” under the ESA, which included the modification of a species’ habitat.
The action comes following the Supreme Court’s 2024 decision in Loper Bright v. Raimondo, which overruled the Chevron deference doctrine. The high court’s ruling determined that judges can no longer defer to federal agencies’ interpretation of ambiguous statutes.
The U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) determined that under the legally justifiable standard, the prior definition of “harm” was unlawful and interfered with private property rights.
“For years, federal agencies abused the ESA to obstruct lawful land use and burden American families and businesses,” said Interior Secretary Doug Burgum. “That approach turned routine activity into a regulatory trap, drove up costs that impacted people’s lives, and expanded federal authority beyond what Congress intended.”
He continued that the rule restores common sense, while respecting private property and providing certainty for landowners.
Core protections afforded under the ESA will remain in place, the departments said. Actions that directly injure or kill listed species will continue to be prohibited, and existing permits and incidental take statements remain unchanged.
No replacement for “harm” will be included in the new rule, and agencies are directed to focus on the species themselves rather than impose on private property.
“What ends today is a system that repeatedly punished people for indirect or speculative impacts never contemplated by Congress,” the Interior said.
Definition of harm
USFWS and NMFS will rescind “harm” from their regulations effective Sept. 14.
The ESA prohibits the taking of wildlife under Section 9. In 1975, the USFWS announced definitions of “harm” that expanded the plain meaning of “take,” to include habitat modification or degradation that impairs behavioral patterns such as breeding or sheltering.
Historically, agriculture groups have contended that the definition adds regulatory burdens to everyday activities such as fence repair and grazing management practices.
“This Administration is committed to protecting wildlife using Gold Standard Science, the law and the tools Congress actually gave us,” said USFWS Director Brian Nesvik. “We can protect species and respect communities at the same time.”
The definition’s rescission will restore ESA to its “foundational purpose,” according to Department of Commerce Secretary Howard Lutnick.
Environmental backlash
Environmental groups immediately condemned the rule, filing suit in federal court.
“Lost habitat is the very reason most species are listed under the ESA. And habitat loss causes more species to go extinct than any other single factor,” said the Western Environmental Law Center, representing counsel for a coalition of environmental groups and a fishing guide.
The lawsuit filed in the U.S. District Court for the Northern District of California alleges the final rule violates the National Environmental Policy Act and the Administrative
Procedure Act.
Lawsuit plaintiffs include Environmental Protection Information Center, Friends of the Shasta River, Cascadia Wildlands, Klamath-Siskiyou Wildlands Center and a private citizen.
A separate lawsuit, led by Earthjustice, argues the definition recission violates the plain language and overarching purpose of the ESA.
“The Rescission is not compelled by statute, nor is it “nondiscretionary,” and it will have significant impacts on the human environment,” the lawsuit read, which was filed in the U.S. District Court for the Western District of Washington in the Seattle division.
Lawsuit plaintiffs include Center for Biological Diversity, Columbia Riverkeeper, Conservation Law Foundation, Conservation Northwest, Friends of the Wild Swan, Oregon Wild, Sierra Club, Swan View Coalition and WildEarth Guardians. — Anna Miller Fortozo, WLJ managing editor
