On April 17, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (together Services) published a proposed rule to rescind the long-standing definition of “harm” under the Endangered Species Act (ESA). The proposal appears to be one of the first in response to President Trump’s April 9 Presidential Memorandum, “Directing the Repeal of Unlawful Regulations,” which directs federal agencies to revise or rescind regulations that conflict with the plain meaning of the underlying statute. If adopted, it will significantly change the ESA’s implementation. The FWS and NMFS are taking comments on the proposed rule from April 17 through May 17.

The ESA prohibits “take” of endangered species, which includes, among other acts, harming, harassing, hunting, shooting, or collecting listed species. By regulation, the FWS and NMFS define “harm” to include significant habitat modification that kills or injures species by significantly impairing essential behavior patterns, including breeding, feeding, or sheltering. Harm, or the potential for harm, through habitat modification is the most prevalent form of take and the easiest form of take for the Services to regulate; other forms of take, such as direct mortality, are often difficult, if not impossible, to detect. As such, habitat modification is often the nexus that other federal agencies, such as the Federal Regulatory Energy Commission and U.S. Army Corps of Engineers, use during licensing or permitting actions to establish an ESA consultation nexus (i.e., to perform a Section 7 consultation), or that nonfederal entities consider in deciding whether to seek ESA permits and prepare habitat conservation plans.

The preamble to the proposed rule explains that extending the “harm” element of “take” to include impacts resulting from habitat modification goes beyond the plain language of the ESA. The proposed rule does not offer an alternative definition of harm, concluding the meaning is well understood based on the structure of the ESA. But, the Services further explain that harm requires an affirmative, intentional act. Thus, if finalized, this rule will significantly narrow the scope of actions qualifying as “take,” and therefore requiring consultation or permits under the ESA.

Notably, the proposed rule relies in large part on a 30-year-old dissent written by Justice Scalia in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, a case in which the majority of the Supreme Court upheld the regulatory definition of harm. The proposal also preemptively invokes the Loper Bright decision, which overturned the Chevron doctrine and eliminated the courts’ mandatory deference to a federal agency’s interpretation of ambiguous statutes. The proposed rulemaking is not in response to litigation regarding the existing regulatory definition of harm, and the Supreme Court in Loper Bright expressly sought to preserve prior decisions that invoked Chevron deference.