- The federal government proposes removing habitat loss from the ESA’s “harm” definition.
- Public comments are due by May 19, 2025, on the proposed rule change.
- Supporters say it reduces burdens on landowners; critics warn of habitat destruction.
- Supreme Court’s Chevron doctrine reversal triggered this regulatory rollback.
Tuesday, May 6, 2025 — On April 17, 2025, the U.S. Fish and Wildlife Service and National Marine Fisheries Service proposed eliminating the regulatory definition of “harm” under the Endangered Species Act (ESA)—a pivotal move that could narrow how the federal government protects wildlife. The proposal, published in the Federal Register
and open for public comment until May 19, 2025, would eliminate the longstanding practice of treating significant habitat destruction as a form of harm to endangered species.
As Greenberg Glusker explains on JDSupra, under current regulations, “harm” includes habitat modifications that kill or injure wildlife by disrupting essential behaviors such as breeding, feeding, and sheltering. This approach has been foundational in ESA enforcement since the 1980s and was upheld by the U.S. Supreme Court in the 1995 Babbitt v. Sweet Home decision.
But now, citing the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo, which overturned the Chevron deference doctrine, federal agencies argue they must adhere to the “single, best meaning” of the law. According to the proposal, the statutory definition of “take”—which includes terms like “harass,” “hunt,” and “kill”—does not support interpreting “harm” to include habitat degradation. “We have concluded that our existing regulations…do not match the single, best meaning of the statute,” the proposal states in the Federal Register.
Industry and Agricultural Support.
Support for the change has come from agricultural stakeholders such as the Klamath Irrigation District, which represents over 1,700 farming families in southern Oregon and northern California. In its public comment, the District called the ESA’s harm definition “overly broad and unduly burdensome.”
The District cited years of limited water deliveries due to federal findings of harm to species like endangered suckers and whales, despite what it claims is a lack of evidence. The District argued that water restrictions justified under the current definition have led to losses exceeding $400 million in its region since 2001 and accused federal staff of being aligned with special interest groups.
“The agency has not adequately assessed these socioeconomic impacts and lacks clear evidence linking Klamath Irrigation District operations to species harm,” the District said in its May 1, 2025 public comment.
The District recommends scrapping the habitat-based harm definition and called for updated Section 7 ESA consultations that reflect “current, unbiased scientific data.”
Environmental Advocates Sound the Alarm.
In stark contrast, environmental groups like the Rewilding Institute and the Southern Environmental Law Center (SELC) have issued strong warnings about the implications of the proposed rule. They argue that stripping habitat protections from the ESA would severely undercut conservation efforts.
“Species cannot be managed or protected separately from their habitats,” wrote Nadia Steinzor of the Rewilding Institute. “This proposal is like allowing someone who destroys a farm family’s crops, equipment, and house to claim innocence because they did not kill the farmers themselves.”
The SELC echoed those concerns, warning in an April 16, 2025 statement that removing habitat from the harm definition could be a “death sentence” for imperiled species, particularly in the biologically diverse southeastern United States.
“Limiting the scope of the ESA’s protections to allow habitat destruction…would be a death sentence to many endangered and threatened species,” said SELC Senior Attorney Ramona McGee.
Legal and Economic Implications.
The federal agencies argue the rescission is legally necessary in light of the Loper Bright ruling, which shifted judicial review standards for agency interpretations of ambiguous statutes. They also note that removing the definition may relieve regulatory burdens on small entities like farms and municipalities.
Still, the proposal acknowledges that public comments should address “reliance interests”—the degree to which prior policies may have influenced investments or conservation efforts—and invites discussion of economic and environmental impacts.
How to Submit Comments
Public input on this rule is open until May 19, 2025, and comments can be submitted online at the Federal Register under docket number FWS-HQ-ES-2025-0034. Comments may also be mailed 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
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