Proposed Rule Threatens to Narrow Endangered Species Protections

A Canada Lynx sits in a clearing in Canada. This elusive species was last seen in Vermont in August 2024. | © Josh Dewitt (iNaturalist) licensed under CC-BY-NC

Canada Lynx. Rusty-patched Bumble Bee. Jesup’s Milk-vetch. Red Knot.

Each of these species share two common threads: they’re native to Vermont, and they’re federally listed as threatened or endangered.

Like 1,680 other species on the U.S. Endangered Species List, they receive special protections and conservation support from the Endangered Species Act (ESA).

However, a new rule proposed by the U.S. Fish & Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) throws the future of this law’s protections into question. The new rule threatens to reinterpret the word “harm” to not include habitat destruction.

What Does the Endangered Species Act Do?

For more than 50 years, the ESA has been considered “our nation’s most effective law to protect species from extinction.” According to the World Wildlife Fund, 99% of species listed still survive today and more than 40 species have recovered enough to be delisted. These successes are thanks in large part to teamwork within the conservation community, as well as the regulatory guidance provided by the ESA.

Once a species is listed, two separate sections provide protection. Under section 7, federal agencies are prohibited from taking part in activities that could jeopardize listed species (unless an exemption is granted). For everyone else, section 9 applies. It’s home to the controversial “take prohibition,” which makes it unlawful for any person to “take” a listed species, or “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect.”

The definition of take—particularly the interpretation of the word “harm”—has long been a point of contention. In 1995, the case Babbitt v. Sweet Home — concerning the Northern Spotted Owl and Red-cockaded Woodpecker in the Pacific Northwest—defined harm to include significant modification or degradation of a listed species’ habitat. Even then, the decision was contentious. And it’s this interpretation that the current administration seeks to undo.

The Proposed Change to “Harm” and Its Implications

The rule change proposed by the USFWS and NMFS (which you can read here) would end the current regulatory definition of harm and limit it to instances when an action is expected to affect individual organisms. The agencies argue that this change is needed to adhere to the single, best meaning of the ESA.

If published, this rule would significantly narrow the ESA’s protection for wildlife. Habitat destruction, conversion, and degradation are leading causes of species loss (Evans et al. 2016, The Royal Society 2021, and Hogue & Breon 2022). A species cannot survive without its habitat, and harming a habitat harms every species that depends on it. Hogue and Breon (2022) found that habitat destruction drove the declines in 88% of the nearly 21,000 species in their study, far more than the portion of species affected by the next most dominant threat, overexploitation, at 27%.

If the interpretation of harm only applies to actions that impact individual organisms, rather than indirectly via their habitat, there would be significantly fewer federal government restrictions on projects that degrade species’ habitats. Here in Vermont, regulation of activities based on their impact on species’ habitats has allowed charismatic wildlife such as the Canada Lynx to return to our landscape. In the greater northeastern U.S., the Common Loon—among numerous other species—has made a tremendous comeback, thanks in large part to nesting habitat protection.

Thankfully, Vermont’s endangered species protections explicitly list habitat destruction under the definition of harm. (Read the statute here.) However, for states without such direct language, this change at the federal level could dramatically alter the future of listed species. And as you know, wildlife such as migrating birds don’t choose their habitats based on state borders.

What Happens Next?

The public comment period for this proposal closed on May 19—you can read VCE’s public comment here. Once the USFWS and NMFS have reviewed comments, they will decide whether to publish their proposal as a final rule, release a modified rule, or withdraw the rule completely. The Federal Register doesn’t provide an estimated date for the decision; however, with over 230,000 comments to review, the process could take a while. (Learn more about the rulemaking process.)

In the meantime, we will continue our research and long-term monitoring programs to help ensure that high-quality data are available to support conservation decisions for listed and non-listed species alike. To participate in this essential work, volunteer for one of our crowd-sourced or directed community science projects described at vtecostudies.org/volunteer.