BY STAFF REPORTS
In a significant policy shift, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service have proposed rescinding the regulatory definition of “harm” under the Endangered Species Act (ESA). The current definition, which includes habitat modification that results in injury or death to protected species, would be removed to align more closely with a stricter interpretation of the term “take”—defined by statute as direct actions like killing or capturing.
Citing the Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo, which ended the longstanding Chevron deference to agency interpretations of statutes, the Services argue that their existing regulations do not reflect the “single, best meaning” of the ESA. The agencies maintain that further elaboration on “harm” is unnecessary and not supported by the statutory text.
Environmental advocates are expected to challenge the proposal on ecological grounds, while property owners and regulated industries may support the rollback as a deregulatory relief. The proposed rule would apply prospectively and would not affect already-issued permits.
Public comments on the proposal are being accepted through the Federal eRulemaking Portal at regulations.gov under Docket No. FWS–HQ–ES–2025–0034.
