Administration proposes to change protection of endangered species

Last week, the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration jointly published a proposed change to their regulations for implementing the Endangered Species Act.

They are proposing to limit the definition of “taking” a threatened or endangered species to the language in the original law. Section 3(19) reads, “The term ‘take’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.“

However, the FWS implementing regs expanded ”take” to prohibit actions that would damage or destroy an endangered or threatened species’ habitat.

The proposed change would eliminate this provision. The Federal Register notice says this is consistent with both the historical definition of “take” and Supreme Court decisions that limit executive agencies’ interpretation of laws to expand their scope.

In 1995, the FWS protection of habitat was upheld in a Supreme Court decision (Babbitt v. Sweet Home Chapter of Communities for a Great Oregon). In this 6-3 decision, the Court ruled that “harm” can be direct or indirect. Destruction or damaging a species habitat would be indirect harm.

However, in 2024, the Supreme Court, in Loper Bright Enterprises v. Raimondo, overturned its previous rule deferring to executive agencies’ interpretation of laws. In this and a companion case, the Court assigned the determination of congressional ambiguity to the judicial branch, with executive agency expertise still to be considered.

Based on this decision, the FWS and NOAA are proposing to eliminate the protection of an endangered species habitat as part of its taking. They argue that the current rule is not the “single, best meaning of the statue.” Consequently, the Federal Register notice proposes to rescind the current definition of “harm” and rely only on the law’s definition of “take.”

“Weakening the definition of harm would cut the heart out of the Endangered Species Act and be a death sentence for plants and animals on the brink of extinction,” said Noah Greenwald, codirector of endangered species at the Center for Biological Diversity in press release.

“Unless habitat destruction is prohibited, spotted owls, sea turtles, salmon and so many more animals and plants won’t have a chance,” Greenwald added. “Humanity’s survival depends on biodiversity and no one voted to fast-track extinction. This is a five-alarm fire.”

Other environmental groups, such as the Sierra Club, also strongly oppose this change.

“The Trump administration is trying to rewrite basic biology — like all of us, endangered species need a safe place to live,” said Earthjustice vice president of litigation for lands, wildlife, and oceans Drew Caputo. “This misguided new proposal threatens a half-century of progress in protecting and restoring endangered species. We are prepared to go to court to ensure that America doesn’t abandon its endangered wildlife.”

The complete Federal Register notice can be found at www.regulations.gov in Docket No. FWS–HQ–ES–2025–0034.

Comments may be submitted either electronically or by mail and are due by May 19.

If you chose to submit them electronically go to the Federal eRulemaking Portal:

www.regulations.gov. In the Search box, enter FWS–HQ–ES–2025–0034, which is the docket number for this rulemaking.

To submit by U.S. mail, address them to: Public Comments Processing, Attn: FWS–HQ–ES–2025–0034, U.S. Fish and Wildlife Service, MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041–3803.