U.S. Department of the Interior finalizes major change to Endangered Species Act regulations

Key Takeaways

On July 10, the U.S. Department of the Interior issued a final rule redefining “harm” for the purposes of administering the Endangered Species Act (ESA). The new definition significantly narrows the scope of prohibited actions relating to listed species.

Counties support reforms to the Endangered Species Act that strengthen consultation with local governments, set clear recovery targets and account for the economic impact of listing decisions. The agency’s recent rule will reduce the regulatory burden placed on counties as they make infrastructure siting and land use decisions.

What does the rule change?

The Endangered Species Act prohibits the “take” of protected species, defined by statute as any action that would “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect” a listed species. The U.S. Fish and Wildlife Service (USFWS), which oversees terrestrial ESA protections, previously defined “harm” expansively to include actions that would indirectly affect wildlife through disruptions to habitat or broader environmental conditions.

The July 10 rule rescinds the definition of harm, narrowing the scope of prohibited actions to only those that would directly injure affected species. This limits what actions are considered harmful to endangered or threatened species and therefore limits what actions or projects are prohibited by the ESA. Through the ESA’s prohibitions on incidental take, the definition of harm directly affects what actions are permitted in areas with special-status species.

County Impacts

As co-stewards of the environment and special-status species, counties support the goals of the Endangered Species Act and have advocated for reforms that would restore the law’s original intent and scope, including by establishing clear recovery targets for listed species. The rescinded definition of take will reduce the number of projects and actions that are prohibited under the ESA, although it does not affect the definition of “adverse [habitat] modification” used during consultations with other federal agencies.

NACo encourages federal agencies to examine how ESA regulations can be updated to include stronger collaboration with counties and local governments, including by studying the economic and government revenue impacts of listing decisions.

Next Steps

NACo advocates for reforms to the ESA as part of the National Endangered Species Act Reform Coalition. Several legislative reforms to the ESA have been proposed with the 119th Congress, including the Pet and Livestock Protection Act (H.R. 845) and the ESA Amendments Act (H.R. 1897). Counties should reach out to their members of Congress to share the impact of ESA listing decisions.