Rescinding the Definition of “Harm” Under the Endangered Species Act

DEPARTMENT OF THE INTERIOR <SUBAGY>Fish and Wildlife Service</SUBAGY> <CFR>50 CFR Part 17</CFR> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 222</CFR> <DEPDOC>[Docket No. FWS-HQ-ES-2025-0034; FXES11110900000-256 FF09E23000; 250411-0064]</DEPDOC> <RIN>RIN 1018-BI38; 0648-BN93</RIN> <SUBJECT>Rescinding the Definition of “Harm” Under the Endangered Species Act</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> U.S. Fish and Wildlife Service, Interior; National Oceanic and Atmospheric Administration, Commerce. <HD SOURCE="HED">ACTION:</HD> Notice of proposed rulemaking; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively referred to as the Services or we) are proposing to rescind the regulatory definition of “harm” in our Endangered Species Act (ESA or the Act) regulations. The existing regulatory definition of “harm,” which includes habitat modification, runs contrary to the best meaning of the statutory term “take.” We are undertaking this change to adhere to the single, best meaning of the ESA. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received by May 19, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> A plain language summary of this proposed rule is available at <E T="03">https://www.regulations.gov</E> in Docket No. FWS-HQ-ES-2025-0034. You may submit comments by one of the following methods: (1) <E T="03">Electronically:</E> Go to the Federal eRulemaking Portal: <E T="03">https://www.regulations.gov.</E> In the Search box, enter FWS-HQ-ES-2025-0034, which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the panel on the left side of the screen, under the Document Type heading, check the Proposed Rule box to locate this document. You may submit a comment by clicking on “Comment.” (2) <E T="03">By hard copy:</E> Submit by U.S. mail to: Public Comments Processing, Attn: FWS-HQ-ES-2025-0034, U.S. Fish and Wildlife Service, MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803. We request that you send comments only by the methods described above. Comments must be submitted to <E T="03">https://www.regulations.gov</E> before 11:59 p.m. (Eastern Time) on the date specified in <E T="02">DATES</E> . We will not consider mailed comments that are not postmarked by the date specified in <E T="02">DATES</E> . We will post your entire comment—including your personal identifying information—on <E T="03">https://www.regulations.gov.</E> If you provide personal identifying information in your comment, you may request at the top of your document that we withhold this information from public review. We cannot guarantee, however, that we will be able to do so. Anonymous comments will be considered. Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on <E T="03">https://www.regulations.gov.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Gina Shultz, Acting Assistant Director, Ecological Services, at 703-358-2171 or <E T="03">ADEcologicalServices@fws.gov</E> with a subject line of “1018-BI38.” Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States. For a summary of the proposed rule, please see the proposed rule summary document in Docket No. FWS-HQ-ES-2025-0034 on <E T="03">https://www.regulations.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Background</HD> The Endangered Species Act (ESA) prohibits the “take” of endangered species. <SU>1</SU> <FTREF/> Under the ESA, “[t]he term `take' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”  <SU>2</SU> <FTREF/> This makes sense in light of the well-established, centuries-old understanding of “take” as meaning to kill or capture a wild animal. <SU>3</SU> <FTREF/> Regulations previously promulgated by FWS expanded the ESA's reach in ways that do not reflect the best reading of the statute, to prohibit actions that impair the habitat of protected species: “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.”  <SU>4</SU> <FTREF/> NMFS' definition is materially identical: “Harm in the definition of `take' in the Act means an act which actually kills or injures fish or wildlife. Such an act may include significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering.”  <SU>5</SU> <FTREF/> <FTNT> <SU>1</SU>  16 U.S.C. 1538(a)(1)(B)-(C). </FTNT> <FTNT> <SU>2</SU>  16 U.S.C. 1532(19). </FTNT> <FTNT> <SU>3</SU>   <E T="03">See, e.g.,</E> 11 Oxford English Dictionary (1933); Webster's New International Dictionary of the English Language (2d ed. 1949); <E T="03">Geer</E> v. <E T="03">Connecticut,</E> 161 U.S. 519, 523 (1896); 2 W. Blackstone, Commentaries 411 (1766). </FTNT> <FTNT> <SU>4</SU>  50 CFR 17.3. </FTNT> <FTNT> <SU>5</SU>  50 CFR 222.102. </FTNT> In <E T="03">Babbitt</E> v. <E T="03">Sweet Home Chapter of Communities for a Great Oregon,</E> 515 U.S. 687 (1995), the Supreme Court upheld FWS' regulation under <E T="03">Chevron</E> deference. <SU>6</SU> <FTREF/> Justice Scalia dissented, joined by Chief Justice Rehnquist and Justice Thomas, and would have held that even under <E T="03">Chevron</E> this interpretation was unsustainable. <SU>7</SU> <FTREF/> As Justice Scalia observed, “[i]f `take' were not elsewhere defined in the Act, none could dispute what it means, for the term is as old as the law itself. To `take,' when applied to wild animals, means to reduce those animals, by killing or capturing, to human control.”  <SU>8</SU> <FTREF/> In addition, under the <E T="03">noscitur a sociis</E> canon, 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.”  <SU>9</SU> <FTREF/> <FTNT> <SU>6</SU>  515 U.S. at 703. Although <E T="03">Sweet Home</E> concerned FWS's regulation at 50 CFR 17.3, it applies equally to 50 CFR 222.102 given the definitions are substantially the same. </FTNT> <FTNT> <SU>7</SU>   <E T="03">Id.</E> at 715. The D.C. Circuit also rejected the Secretary's definition. <E T="03">See Sweet Home Chapter of Communities for a Great Oregon</E> v. <E T="03">Babbitt,</E> 17 F.3d 1463 (D.C. Cir. 1994); <E T="03">id.</E> at 1472 (Sentelle, J., concurring); <E T="03">but see id.</E> at 1473 (Mikva, C.J., dissenting). </FTNT> <FTNT> <SU>8</SU>  515 U.S. at 717. </FTNT> <FTNT> <SU>9</SU>   <E T="03">Id.</E> at 719-20. </FTNT> The Supreme Court, nearly 30 years after <E T="03">Sweet Home,</E> overruled the <E T="03">Chevron</E> doctrine in <E T="03">Loper Bright Enterprises</E> v. <E T="03">Raimondo,</E> 603 U.S. 369, 400 (2024). Under <E T="03">Loper Bright,</E> “the question that matters” is whether “the <E T="03">statute</E> authorizes the challenged agency action.”  <SU>10</SU> <FTREF/> In other words, does the agency's regulation match the single, best meaning of the statute?  <SU>11</SU> <FTREF/> <FTNT> <SU>10</SU>  603 U.S. at 406 (emphasis added). </FTNT> <FTNT> <SU>11</SU>   <E T="03">Id.</E> at 400. </FTNT> We have concluded that our existing regulations, which still contain the definition of “harm” contested in <E T="03">Sweet Home,</E> do not match the single, best meaning of the statute. As Justice Scalia's dissent in <E T="03">Sweet Home</E> explains, the regulations' interpretation of the statutory language violates the <E T="03">noscitur a sociis</E> canon, did not properly account for over a thousand years of history, and is inconsistent with the structure of the ESA. Nor is any replacement definition needed. The ESA itself defines “take,”  <SU>12</SU> <FTREF/> and further elaborating on one subcomponent of that definition—“harm”—is unnecessary in light of the comprehensive statutory definition. <FTNT> <SU>12</SU>  16 U.S.C. 1532(19). </FTNT> We recognize that the Supreme Court held in <E T="03">Loper Bright</E> that its “prior cases that relied on the <E T="03">Chevron</E> framework . . . are still subject to statutory <E T="03">stare decisis.</E> ”  <SU>13</SU> <FTREF/> But under the then-prevailing <E T="03">Chevron</E> framework, <E T="03">Sweet Home</E> held only that the existing regulation is a permissible reading of the ESA, not the only possible such reading. Our rescission of the regulation definition on the ground that it does not reflect the best reading of the statutory text thus would not only effectuate the Executive Branch's obligation to “take Care that the Laws be faithfully executed,”  <SU>14</SU> <FTREF/> but would also be fully consistent with <E ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 24k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━