Two potential regulatory changes to the federal Endangered Species Act (ESA) have been proposed this year that may change how the U.S. Fish & Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) protect listed species and their habitats and conduct ESA Section 7 consultations for projects requiring federal permits.
Rescinding Definition of Harm
The ESA was passed in 1973 and makes it unlawful for any person to “take” (“harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect”) endangered species (16 U.S.C. § 1532). USFWS and NMFS issued a rule on April 17, 2025, to rescind the long-standing ESA “harm” definition (50 CFR § 17.3) that was added in 1999 to clarify that significant habitat modification could constitute take if the activity is reasonably certain to result in the death or injury of listed species by significantly impairing the essential behavioral patterns of listed species. The term “harm” will remain in the definition of take, but will not necessarily be interpreted to mean “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”
Harm by habitat modification is a common standard used by USFWS to regulate proposed federal nexus activities (such as U.S. Army Corps of Engineers and National Environmental Policy Act permitting) that impact potential habitat, and also to require habitat assessments or presence/absence surveys for projects within the known or historic range of a listed species. As a result of this change, it is likely that ESA compliance reviews may be curtailed to only activities that affect “critical habitat” designated by rule for a species or directly cause take (actually killing/injuring species). Adverse modifications to potential habitat, unoccupied critical habitat, or known habitat when the species is not present (e.g., migratory species) might not be considered take and therefore not regulated if the rule is finalized, especially if the USFWS and NMFS are directed not to implement their typical precautionary approach to protecting potential habitat and indirect impacts on the basis of species recovery efforts.
This deregulatory action follows the February 19, 2025, “review-and-repeal” Executive Order 14219 and April 9, 2025, memo that directed agencies to identify regulations targeted for repeal based on justifications from top 10 recent Supreme Court cases resulting in more conservative interpretations and reversals of past legal precedents. The 2024 Chevron overruling (Loper Bright Enterprises v. Raimondo, 603 U.S. 369,400) overturned the 40-year Chevron precedent (Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837), a doctrine that previously gave deference to agencies’ interpretations for administrative rulemaking if Congress left ambiguities in statutory language, as long as those interpretations are reasonable. Abolishing the Chevron doctrine is expected to lead to more lawsuits challenging federal regulations, judicial rulings that may invalidate regulations, and Presidential and Congressional actions to clarify statutory intent.
Act Amendments Proposed
Another effort to modify ESA regulation is the Endangered Species Act Amendments Act of 2025 (H.R.1897), a bill that appears to be working its way out of the U.S. House Committee on Natural Resources for Congressional vote after hearings held in March 2025 by the Subcommittee on Water, Wildlife and Fisheries. This bill could significantly revise the ESA by:
- establishing a structured prioritization and review cycle for species listings and recovery efforts;
- prohibiting USFWS from issuing mandatory project-specific reasonable and prudent mitigation and conservation measures for species impacts;
- constraining jeopardy determinations to “reasonably certain” direct effects of a federal action “without a substantive presumption in favor of the species”;
- requiring economic, national security, and human health and safety factors to be considered during listing;
- providing a path for state-assumption of ESA regulation;
- adding ESA exemptions for Candidate Conservation Agreements and streamlined permitting for “non-detrimental” non-native species; and,
- restricting critical habitat designations from private lands managed under plans similar to Sikes Act (16 U.S.C. 670a) Integrated Natural Resources Management Plans (INRMPs) for military lands.
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