NOAA’s National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) today announced a proposed rule to rescind the regulatory definition of “harm” under the Endangered Species Act (ESA). The current definition, which includes habitat modification as a form of “take,” runs counter to the best reading of “take” under the ESA, as Justice Scalia powerfully reasoned in his canonical dissent in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995). This proposed rule aims to align the definition with the plain text of the ESA, as informed by historical and legal interpretations of “take” as an affirmative act directly affecting wildlife. FWS and NMFS invite public comments on this proposal to ensure a transparent and open rulemaking process.
The proposed rescission would also be consistent with the Supreme Court’s seminal decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 400 (2024), which overruled Chevron deference and held that an agency’s regulation match the single, best meaning of the statute — not an agency’s own preferred interpretation. Here, FWS and NMFS propose that the statutory definition of “take” — encompassing actions like harass, pursue, hunt, or kill — is sufficient without further elaboration of “harm” by regulation. If adopted, this change will apply prospectively and will not affect existing permits. FWS and NMFS invite public comments on reliance interests, examine potential environmental and economic impacts, and encourage stakeholders to provide input on these factors during the comment period.
Comments on the proposed rule regarding language in the Endangered Species Act must be submitted by Monday, May 19, via https://www.federalregister.