Under the proposed rule, habitat-only impacts—such as modifying a wetland or forest without a species physically present—may no longer trigger a requirement for incidental take authorization. This shift could ease permitting burdens for a wide range of sectors, including renewable energy, water infrastructure, telecommunications, and waste management.
The public comment period for the proposed rule runs through May 19, 2025.
Since 1975, federal regulations have interpreted “harm” to include habitat degradation that leads to injury or death of endangered or threatened species. That interpretation was upheld by the Supreme Court in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (1995), which ruled the definition was a reasonable interpretation of the ESA under the Chevron doctrine.
However, the legal landscape changed in 2024 when the Supreme Court, in Loper Bright Enterprises v. Raimondo, overturned Chevron deference. The ruling now requires courts to independently interpret statutory meaning rather than deferring to agency expertise. While Sweet Home remains valid precedent under stare decisis, the Services argue the ESA’s term “take” should no longer be interpreted to encompass habitat-only harm, citing a need to follow the “single, best meaning” of the statute.
No replacement definition has been proposed for "harm." Instead, the Services assert that further clarification is unnecessary given the existing statutory definition of “take.”
The rescission of the harm definition could dramatically reshape how infrastructure projects intersect with species protections:
According to the Center for Biological Diversity, weakening the habitat provisions may “open the door to development in areas essential for species recovery,” even if the species are absent at the time of project review.
On the other hand, proponents of the rule argue it removes ambiguity and excessive permitting burdens for projects with minimal direct species interaction. Industry groups, such as the National Association of Home Builders, have long criticized the inclusion of habitat impacts under “harm” as overreach.
Environmental law experts warn the regulatory shift may result in legal ambiguity. Meanwhile, state agencies and local governments must navigate potential conflicts between federal guidance and existing conservation strategies built on habitat-based impact assessments. For instance, states like California and Washington have invested in habitat conservation plans (HCPs) that may no longer align with federal thresholds if the rule is finalized.
A 2024 report by the Environmental Law Institute found that over 70% of recent ESA incidental take permits were tied to habitat impacts rather than direct harm to individual animals, underscoring the scale of the potential change.
The Services will review comments submitted by May 19, 2025, before finalizing the rule. If adopted, the change could take effect by late summer 2025, depending on legal challenges and implementation timing.
Stakeholders—including environmental groups, state regulators, and infrastructure developers—are expected to weigh in heavily. With growing concerns over biodiversity loss, how the federal government defines “harm” could shape the future of species protection and sustainable development across the U.S.
