Endangered Species May Lose Key Habitat Protections Under New Rule

According to the U.S. Fish & Wildlife Service, the Endangered Species Act exists to protect threatened or endangered fish, wildlife, and plants. Enacted back in 1973, it aids in the recovery of such species through a variety of provisions. The act also protects these species from “harm,” as well as harassment, hunting, killing, capturing, and other forms of “take.”

However, the current administration has proposed to rescind the word “harm” from the Endangered Species Act. This article will outline what is driving this change and what it means for endangered species.

What Does “Harm” Mean?

When defining the term “take,” the Endangered Species Act references “harm,” among other terms. The exact definition of “take” is as follows: “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”

According to the Code of Federal Regulations, “Harm in the definition of ‘take’ in the Act means 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.”

In this context, “harm” essentially refers to any action that might aid in the death or injury of an endangered species. As stated above, this originally included indirect threats like habitat modification or degradation. For example, it might have involved actions like deforestation, which can impact endangered birds residing in the area. However, the definition of “harm” might be changing.

How the Definition of ‘Harm’ Is Changing

Back in April, the U.S. Fish and Wildlife Service and National Marine Fisheries Service proposed the rescinding of the regulatory definition of “harm” in the Endangered Species Act. The services also proposed the idea of changing the interpretation of the word, so it might not include the more indirect forms of harm, like habitat modification. 

The proposed rescission by the services stated the following: “As Justice Scalia observed, ‘To `take,’ when applied to wild animals, means to reduce those animals, by killing or capturing, to human control.’” Additionally, “the definition of ‘harm,’ like the other nine verbs in the definition, should be construed to require an ‘affirmative act[ ] . . . directed immediately and intentionally against a particular animal—not [an] act[ ] or omission[ ] that indirectly and accidentally cause[s] injury to a population of animals.’”

Under the new definition, threats to habitat might not be considered violations. Rather, “harm” might only refer to direct and immediate injuries or killings of endangered species. In other words, endangered species might not receive the same protections as they did prior to this change, particularly in reference to their habitats.