On April 17, 2025, the US Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) published a notice in the Federal Register proposing to rescind the regulatory definition of “harm” in the Endangered Species Act (ESA) regulations. The proposed change would eliminate habitat modification or degradation as a basis for regulating impacts on endangered (and many threatened) species under the ESA.
The proposed change stems from the ESA’s prohibition on the “take” of endangered and many threatened species. “Take” is defined to mean, among other things, actions that harass, harm, or kill species. Historically, agencies have interpreted “harm,” which is not defined in the ESA, to mean not just the direct fatality or injury of a species but also a modification of habitat that impairs a species’ ability to feed, breed, or find shelter.
The United States Supreme Court upheld this interpretation in Babbitt v. Sweet Home Chapter of Communities for a Great Oregoni applying Chevron deference. In Babbitt, the court ruled against property owners who had claimed that, while the ESA prohibited them from killing protected wildlife outright, it should not prevent activities like logging that would indirectly impact protected plants and animals. Although the majority agreed with the USFWS’s interpretation and rejected the property owners’ arguments, Justices Scalia, Thomas, and Rehnquist dissented, stating that even under Chevron deference, USFWS regulations, and their interpretation of “harm,” were inconsistent with the structure of the ESA. The recent overturning of Chevron in Loper Bright Enterprises v. Raimondo, eliminated the deference to agency interpretation that was applied in the Babbitt decision. The description of the proposed rule cites the Loper Bright decision and the Babbitt dissent as a basis for “undertaking this change to adhere to the single, best meaning of the ESA.”
There is a 30-day public comment period on the proposal, ending May 19, 2025. Information about how to submit comments can be found on regulations.gov by searching for docket number FWS-HQ-ES-2025-0034.
If finalized, the proposed rule would only apply to future permit activities and not permits that have already been issued. Going forward, the proposed change would have far-reaching impacts on project development nationwide. Barclay Damon’s Environmental Practice Area attorneys will continue to monitor the status of the proposed rule and are available to assist with providing comments.
If you have any questions regarding the content of this alert, please contact Yvonne Hennessey, Environmental Practice Area chair, at yhennessey@barclaydamon.com; Rick Capozza, Outdoor & Wildlife Team co-leader and Energy Practice Area chair, at rcapozza@barclaydamon.com; Mike Oropallo, Outdoor & Wildlife Team co-leader, at moropallo@barclaydamon.com; Dan Krzykowski, associate, at dkrzykowski@barclaydamon.com; Tom Paul, partner, at tpaul@barclaydamon.com; or another member of the firm’s Environmental Practice Area or Outdoor & Wildlife Team.
i515 U.S. 687 (1995).