The federal government recently narrowed the definition of “harm” in the Endangered Species Act. Citing the Loper Bright decision, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service have rescinded the “regulatory definition of ‘harm’” and returned to the broader terminology of “take.”
“This action restores common sense, respects private property, provides much-needed certainty for landowners and follows the statute Congress actually passed,” Interior Secretary Doug Burgum said.
Opponents of the rule change suggest that it removes protections for critical habitat areas. When a species is listed as endangered, federal agencies list federal and private land where those species exist as “critical habitat.” If a developer seeks a permit to build on land designated as critical habitat, the developer must explain how it will limit or mitigate harm to those areas. According to opponents of the rule change, the removal of “harm” from the ESA eliminates the protections for critical habitat.
However, even without “harm” specifically defined in the ESA, the law protects critical habitat.
The ESA requires all federal agencies to “insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat which is determined by the Secretary . . . to be critical . . . .” The ESA further allows for the federal government to purchase private property specifically “to conserve fish, wildlife, and plants, including those which are listed as endangered species or threatened species” and bans the “taking” of listed animals by private citizens.
The ESA also clearly defines what “taking” means and expands it beyond the simplified definition of “hunting” to include the following, “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”
The pre-existing structure of the ESA appears provides ample protections for our endangered and threatened wildlife and the places where they can be found.
“Harm” was inserted into the ESA in 1975 and defined as “an act or omission which actually injures or kills wildlife, including acts which annoy it to such an extent as to significantly disrupt essential behavioral patterns, which include, but are not limited to, breeding, feeding, or sheltering; significant environmental modification or degradation …” The additional language appears to be redundant to the original statute by reiterating endangered and threatened species cannot be injured or killed nor can their habitat be altered in such a way as to disrupt their ability to live.
Western states are particularly affected by changes to the ESA. In the 11 contiguous Western states and Alaska, about 47 percent of all land is federally owned, with Nevada leading in federally owned land at 80 percent and Washington state coming in last at 28.6 percent. Most federal land ownership is divided by four agencies: the Bureau of Land Management, the U.S. Forest Service, the National Park Service, and the U.S. Fish and Wildlife Service.
Many of the previous updates to the ESA have focused on updating the treatment of threatened and endangered species, rather than land use. The pivot toward land use discussions may offer a welcome respite for Western ranchers who have been battling wolves, grizzly reintroductions, and sage grouse debates for years. However, if the reception from opponents of the language change is any indicator, there are more legal fights on the way.
