Feds Propose Rescinding Rule Defining “Harm” in Endangered Species Act

On April 17, 2025, the U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) published a notice of proposed rulemaking to rescind the agencies’ respective regulatory definitions of “harm” as that term appears in the statutory definition of “take” in the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq.  Comments on the proposed rescission are due by May 19, 2025.  See 90 Fed. Reg. 16102 (Apr. 17, 2025).

The ESA is the principal U.S. law protecting plants and animals that have been designated as likely to face extinction.  The statute therefore broadly prohibits the “taking” of an endangered species.  The statute itself defines “take” to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”  16 U.S.C. § 1532(19).  By regulation, FWS further defined the word “harm” to mean “an act which actually kills or injures wildlife.  Such an 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.”  50 C.F.R. § 17.3.  NMFS issued a materially identical definition of “harm.”  50 C.F.R. § 222.102.

The Supreme Court in Babbitt v. Sweet Home Chapter, 515 U.S. 687 (1995), upheld the regulatory definition of “harm,” giving it Chevron deference.  Since Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), overruled Chevron, the agencies now contend that the current definitions do not constitute the “best reading” of the statutory term “harm.”  Instead, the agencies point to the dissenting opinion in Sweet Home, which interpreted “harm” in light of the traditional understanding of “take,” which is to kill or capture a wild animal.  Under this view, “take” requires an affirmative act against the species, not actions that affect the species indirectly.

The agencies recognize that Loper Bright itself stated that prior cases that relied on Chevron are still subject to statutory stare decisis.  However

under the then prevailing Chevron framework, Sweet Home held only that the existing regulation is a permissible reading of the ESA, not the only possible such reading.  Our rescission of the regulation definition on the ground that it does not reflect the best reading of the statutory text thus would not only effectuate the Executive Branch’s obligation to “take Care that the Laws be faithfully executed,” but would also be fully consistent with Sweet Home.

90 Fed. Reg. at 16103

The rescission of the regulatory definition of “harm” seems geared to address scenarios in which, for example, a construction project does not directly kill or injure a species but modifies the species’ habitat and thereby forces it to vacate the area. 

The rulemaking presents several issues worth considering.

First, on the substance, while the agencies propose to rescind the definition of “harm,” they do not propose rescinding the regulatory definition of “harass.”  “Harass” is defined in part to mean “annoying [the species] to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.”  50 C. F. R. § 17.3. (NMFS has no parallel definition of “harass.”)  It would seem that most actions that amount to “harm” on the basis of habitat degradation would also constitute “harassment.”

Second, the rulemaking probably has no impact on endangered species maintained in a captive environment.  Even if the “harm” definition is rescinded, the “harass” definition remains and, as it applies to captive wildlife, “harass” has been consistently defined by FWS to exclude “animal husbandry practices that meet or exceed the minimum standards for facilities and care under the Animal Welfare Act.”  50 C.F.R. § 17.3.  That is, while a captive endangered species cannot be lawfully “harassed” under the ESA, there is no such harassment if the endangered species is held under conditions that comply with the Animal Welfare Act (“AWA”). However, since “harm” was not defined with a link to the AWA, the deletion of the “harm” definition would eliminate the potential ambiguity that a captive species can be “harmed” even if the actions at issue are AWA-compliant.

Third, the rulemaking will likely test the contours of the Loper Bright pronouncement on statutory stare decisisSweet Home was a Chevron-based case, but the agencies seem to be taking the position that statutory stare decisis will not control the outcome because their actions are required by the Executive Branch’s constitutional duty to take care that the laws be faithfully executed.  90 Fed. Reg. at 16103 (citing U.S. Const. art. II, § 3).

“Habitat” Flip Flop – Fish and Wildlife and National Marine Fisheries Services Rescind Trump Administration Definition of “Habitat”

Shortly after the new regulatory definition of “habitat” went into effect, the agencies that promulgated it (the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS)) have rescinded it.

The Endangered Species Act (ESA) has been described as “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.”  Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978).  One of the ways it purports to do so is through the designation and protection of “critical habitat.”  The Secretaries of the Interior (FWS) and Commerce (NMFS) designate “critical habitat” for threatened and endangered species.  16 U.S.C. § 1533(a)(3)(A)(i).  Once “critical habitat” is designated, the ESA requires federal agencies to ensure that none of their activities (such as granting permits) will “result in the destruction or adverse modification” of the “critical habitat.”  16 U.S.C. § 1536(a)(2).

The term “critical habitat” is defined by the ESA itself, 16 U.S.C. § 1532(5)(A), but the broader term “habitat,” is not.  This may seem insignificant, but the difference between “critical habitat” and “habitat” became—one might say, critical—in the Supreme Court’s 2018 opinion Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361 (2018).  There, the Supreme Court held that an area cannot be designated a “critical habitat” unless it is also a “habitat,” which does not have a statutory definition.  Id. at 368-369.  The Supreme Court commented that “the statutory definition of ‘critical habitat’ tells us what makes habitat ‘critical,’ not what makes it ‘habitat.’”  Id. at 368.  The case, however, did not address what is or should qualify as “habitat.”

In response to this decision, FWS and NMFS promulgated the following regulatory definition of “habitat”: “For the purposes of designating critical habitat only, habitat is the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.”  50 C.F.R. § 424.02.  The “habitat definition rule” was published on December 16, 2020 became effective on January 15, 2021.

Then came a change in administration and an about-face on the “habitat definition rule.”  On January 20, 2021 President Biden issued an Executive Order that required agencies to review federal regulations and actions taken between January 20, 2017 and January 20, 2021 (i.e., during the Trump administration) to determine their consistency with the Biden administration’s policy considerations.

Following that review, the agencies (FWS and NMFS) decided to rescind their own “habitat definition rule.”  87 FR 37757.  They noted that the regulatory definition was unclear, confusing, and inconsistent with the conservation purposes of the ESA.  Id.  The agencies’ main criticism of their own previous rule is that it prevented the designation of areas that did not currently meet a species’ needs, even if the area could in the future do so due to natural processes or reasonable restoration.  Id. at 37758.  Rather than replace it with a different definition of “habitat,” however, the agencies determined that there should not be a single regulatory definition and that the determination should be made on a case by case basis.  Id. at 37759.

The agencies gave a somewhat dissatisfying acknowledgement to the Weyerhaeuser case that set off this regulatory whiplash:  “[W]e recognize the importance of the Supreme Court’s ruling in Weyerhaeuser and intend to designate as critical habitat only areas that are habitat for the given listed species.”  Id.  In other words, while the agencies now claim that it is impossible for them to define “habitat,” they apparently know it when they see it.

Seem clear as mud?  We would not be surprised if there is future litigation regarding what constitutes “habitat,” now that the Supreme Court has made it clear that falling within the statutory definition of “critical habitat” is not sufficient and there is not currently a case law, statutory, or regulatory definition of “habitat.”

Supreme Court Addresses When a “Draft Biological Opinion” Really is a “Draft” Under the FOIA

Today, in her first published opinion on the Supreme Court, Justice Barrett delivered the majority opinion in U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., No. 19-547 (U.S. Mar. 4, 2021), a Freedom of Information Act (FOIA) case involving whether draft biological opinions of the Fish and Wildlife Service and National Marine Fisheries Service were exempt from public disclosure.  The Court ruled that they were, and overturned a contrary determination by the Ninth Circuit. Continue reading “Supreme Court Addresses When a “Draft Biological Opinion” Really is a “Draft” Under the FOIA”

Animal Rights Challenge to Fisheries Service Decision on Disclosure of Necropsies Dismissed by Federal District Court

By John M. Simpson.

On March 26, 2020, the U.S. District Court for the District of Columbia dismissed a lawsuit brought by certain animal rights advocates and organizations against several federal defendants challenging a decision of the National Marine Fisheries Service (NMFS) declining to enforce a permit condition allegedly requiring a marine mammal park to submit a necropsy report concerning a killer whale obtained the permit. Marino, et al. v. Nat’l Oceanic and Atmospheric Admin., et al., No. 18-cv-2750 (DLF) (D.D.C. Mar. 26, 2020). Continue reading “Animal Rights Challenge to Fisheries Service Decision on Disclosure of Necropsies Dismissed by Federal District Court”

Fisheries Service Issues Incidental Taking Regulations

by John M. Simpson

The National Marine Fisheries Service (NMFS) published final regulations in the Federal Register on July 27, 2918 governing the unintentional taking of marine mammals incidental to fisheries research conducted in the Pacific Ocean by the NMFS’ Northwest Fisheries Science Center (NWFSC).  83 Fed. Reg. 36370 (July 27, 2018).  The regulations are effective from August 27, 2018 through August 28, 2023.  Continue reading “Fisheries Service Issues Incidental Taking Regulations”

Wildlife Agencies Announce Proposed Endangered Species Act Regulations

by John M. Simpson

On July 19, 2018, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) announced three proposed rulemakings that would revise the regulations pursuant to which the Services have implemented the Endangered Species Act (ESA).  These initiatives were the result of public comments solicited by the Services in response to Executive Order 13777, 82 Fed. Reg. 31576 (July 7, 2017), which sought comments on how federal agencies could improve the effectiveness and efficiency of federal regulations and the regulatory process.   Continue reading “Wildlife Agencies Announce Proposed Endangered Species Act Regulations”

Trump Administration Announces Plan to Consolidate Wildlife Agencies

The Trump Administration recently announced a proposal to merge the operations of the Department of Commerce’s National Marine Fisheries Service (NMFS) into the Department of Interior’s U.S. Fish and Wildlife Service (FWS). Historically, NMFS has been charged with administration of the Marine Mammal Protection Act (MMPA), focusing primarily upon marine mammals, while FWS has administered the Endangered Species Act (ESA) primarily with respect to species located upon land or inland fisheries. The reorganization initiative is part of a larger plan entitled Delivering Government Solutions in the 21st Century: Reform Plan and Reorganization Recommendation, containing proposals affecting several federal agencies. Continue reading “Trump Administration Announces Plan to Consolidate Wildlife Agencies”

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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