The Trump-Vance Administration’s U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) are proposing to remove the current regulatory definition of “harm” from the Endangered Species Act (ESA). A current open comment period invites the public to provide feedback on this proposed rule. When federal agencies seek public input on proposed policies or decisions, it offers an opportunity for individuals to share their perspectives, experiences, and knowledge.
This shift in language stems from recent legal developments, including the 2024 Supreme Court decision that overturned the Chevron deference, which had previously allowed agencies flexibility in interpreting ambiguous laws. The agencies now say a narrower interpretation of “take”—and therefore of “harm”—is required by law. The term "take" is currently defined as “...to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”
Currently, “harm” includes direct and indirect actions that harm a protected species. This includes destroying or significantly altering habitat—if that habitat loss leads to injury or death of a protected species. This broad interpretation is intended to protect not just animals themselves but the places they need to survive, such as nesting areas, breeding grounds, or migratory corridors.
Under this proposal, that definition would be changed to only apply to direct actions—such as killing or capturing wildlife—rather than indirect effects like habitat destruction.
As with all proposed rules, this is not a final decision. The agencies published this proposed rule to the Federal Register and opened a public comment period to gather input from scientists, landowners, conservationists, businesses, and the public before finalizing the rule.
Submitting Comments
Public comments about the proposed change are due by May 19, 2025.
A plain language summary of this proposed rule is available at https://www.regulations.gov in Docket No. FWS-HQ-ES-2025-0034. You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. 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) By hard copy: 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.
Reminder: Public Comment Period for Monarch Butterfly Endangered Species Act Listing Proposal Closes May 19, 2025
As a reminder, the reopened public comment period for the proposed rule to list the monarch butterfly as a threatened species under the Endangered Species Act will also close on May 19, 2025. Learn more and submit your comments at https://www.fws.gov/press-release/2025-03/comment-period-reopened-monarch-butterfly-listing-proposal
Resources
Proposed Rule: Rescinding the Definition of Harm under the Endangered Species Act
Endangered Species Act of 1973 As Amended through the 108th Congress
Endangered Species Permits: Frequently Asked Questions