[Federal Register Volume 91, Number 133 (Tuesday, July 14, 2026)]
[Rules and Regulations]
[Pages 43300-43317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-14195]
[[Page 43299]]
Vol. 91
Tuesday,
No. 133
July 14, 2026
Part III
Department of Interior
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Fish and Wildlife Service
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50 CFR Part 17
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 222
Rescinding the Definition of ``Harm'' Under the Endangered Species Act;
Final Rule
Federal Register / Vol. 91 , No. 133 / Tuesday, July 14, 2026 / Rules
and Regulations
[[Page 43300]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 222
[Docket No. FWS-HQ-ES-2025-0034; FXES11160900000-267-FF09E23000; Docket
No. NMFS-250411-0064]
RIN 1018-BI38; 0648-BN93
Rescinding the Definition of ``Harm'' Under the Endangered
Species Act
AGENCY: U.S. Fish and Wildlife Service, Interior; National Oceanic and
Atmospheric Administration, Commerce.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (FWS) and the National
Marine Fisheries Service (NMFS; collectively referred to as the
``Services'') rescind the regulatory definition of ``harm'' in our
Endangered Species Act (ESA or the Act) regulations. This rescission
removes the regulatory definition of ``harm'' from the Code of Federal
Regulations (CFR) in Title 50 parts 17 and 222.
DATES: This final rule is effective September 14, 2026.
ADDRESSES: Public comments and materials received, as well as
supporting documentation used in the preparation of this final rule,
are available online at https://www.regulations.gov in Docket No. FWS-
HQ-ES-2025-0034.
FOR FURTHER INFORMATION CONTACT: John Tirpak, Acting Assistant
Director, Ecological Services, at 703-358-2171 or
[email protected] with a subject line of ``1018-BI38.''
Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States.
SUPPLEMENTARY INFORMATION:
Background
The Endangered Species Act, as amended, (hereafter referred to as
ESA or the Act; 16 U.S.C. 1531 et seq.) prohibits the ``take'' of
endangered wildlife under section 9 (16 U.S.C. 1538). This is part of a
detailed statutory scheme that lays different responsibilities, powers,
and prohibitions on the federal government and private citizens, as
part of an overall effort to protect endangered species. Section 7 of
the ESA imposes on the federal government the responsibility 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 . . . .'' (16 U.S.C. 1536(a)(2)). Section 5
empowers the federal government to purchase private property ``to
conserve fish, wildlife, and plants, including those which are listed
as endangered species or threatened species'' (16 U.S.C. 1534). And
section 9 prohibits private citizens from ``tak[ing]'' animals that are
members of an endangered species (16 U.S.C. 1538).
``Take'' is a term with a traditional meaning, i.e., to kill or
capture a wild animal. See Oxford English Dictionary (1933; third
printing in February 1973). The Act provides its own definition in
section 3, which expands that meaning slightly: ``to harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to
attempt to engage in any such conduct'' (16 U.S.C. 1532). This
definition ``make[s] clear'' that ``take,'' as used in the statute,
``include[s] not just a completed taking, but the process of taking,
and all of the acts that are customarily identified with or accompany
that process . . . so as to include attempts'' (Babbitt v. Sweet Home
Chapter of Communities for a Great Oregon, 515 U.S. 687, 718 (1995)
(Scalia, J., dissenting)). This is a slight, sensible, and ``not
unusual[]'' expansion of the traditional definition of ``take''; even
so, the traditional meaning of ``take'' remains plainly the core of
what is being defined (Id.).
Thus, under the statutory scheme as enacted, the government would
``insure'' that its own actions did not ``jeopardize the continued
existence of any endangered species or threatened species'' or ``result
in the destruction or adverse modification of'' critical habitat (a
statutory term that is different from the habitat, simpliciter, of the
species). Meanwhile, where government action is not involved, the Act
protects endangered species in two ways: by directly prohibiting
citizens from killing, injuring, or capturing any member of those
species (or attempting to do so), and by purchasing the land of private
citizens to assist in conservation. To complete this regime, Section 10
then creates an incidental-take regime for when such take is
nonetheless inevitable in the pursuit of some other activity, as when
fishing for a non-endangered species of fish will, inadvertently but
inevitably, lead to the catch of an endangered species of fish.
But starting in 1975, FWS promulgated regulatory definitions of
``harm'' that dramatically expanded the plain meaning of ``take,'' to
sweep in (and thus prohibit) actions that impair the habitat of
protected species. That year, FWS published a final rule that defined
``harm'' 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 which has such effects is
included within the meaning of `harm' (40 FR 44412 at 44416, Sept. 26,
1975) (emphasis added)).\1\ Indeed, the history of this regulation
suggests that FWS's original goal was not to define ``harm,'' but to
prohibit habitat modification by private citizens, irrespective of
means: When the Service first proposed the regulation, it incorporated
a prohibition on habitat modification as part of the definition of a
completely different word, ``harass'' (see 40 FR 28712). Only at the
final-rule stage did FWS shift this prohibition into the definition of
``harm,'' with little to no explanation of why (see 40 FR 44413).\2\
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\1\ It is indicative that the end in mind was prohibiting
habitat modification by private citizens, rather than construing the
meaning of ``harm,'' that the Service initially proposed this rule
in a form that would have made a prohibition on habitat modification
a part of the definition of a completely different word, ``harass.''
See 40 FR 28712.
\2\ What little explanation the final rule provided for this
change suggests that FWS was by that time focused on principles of
intent and causation. The rule noted that FWS was modifying the
definition of ``harass'' and that ``[t]he concept of environmental
damage being considered a `taking' has been retained, but is now
found in a new definition, of the word `harm''' (Id.). It then went
on state that ```[h]arm covers actions or omissions which actually,
(as opposed to potentially), cause injury,'' and that, ``[i]n
addition, the definition of `harass' has been modified by
restricting its application to acts or omissions which are done
intentionally or negligently. In the proposal, `harass' would have
applied to any action, regardless of intent or negligence'' (Id.).
None of this explains why the Services suddenly had concluded that
habitat modification was an intrinsic part of the word ``harm,'' or
why it was no longer part of the word ``harass.''
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In 1981, FWS drew back slightly, redefining ``harm'' in 1981 to
``an act which actually kills or injures wildlife. Such act may include
significant habitat modification or degradation where it actually kills
or injures wildlife by significantly impairing essential
[[Page 43301]]
behavioral patterns, including breeding, feeding or sheltering'' (46 FR
54748 at 54750, Nov. 4, 1981). FWS explained its modification on the
grounds that the previous definition could have been construed as
prohibiting habitat modification even where there was no injury to the
listed endangered or threatened wildlife, which would ``go beyond the
intent of Congress'' (46 FR 54748, November 4, 1981). Nonetheless, the
fundamental shift had already occurred, and the 1981 rulemaking did not
undo it: FWS has transformed section 9 by the issuance of regulatory
definitions from a prohibition on private citizens hunting, capturing,
or otherwise attempting to kill or injure certain specifically
protected animals into a sweeping land-use regulation. Against that
backdrop, section 10's ``incidental take'' regime became a land-use
regime.
NMFS did not define ``harm'' in regulations until 1999 (see 64 FR
60731,Nov. 8, 1999). When it did so, it adopted a definition similar to
FWS's 1981 redefinition but included NMFS-specific modifiers: ``an act
which actually kills or injures fish or wildlife. Such an act may
include significant habitat modification or degradation which actually
kills or injures fish or wildlife by significantly impairing essential
behavioral patterns, including, breeding, spawning, rearing, migrating,
feeding or sheltering'' (Id.).
In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,
515 U.S. 687 (1995; Sweet Home), the Supreme Court rejected a challenge
to FWS's regulation by applying Chevron deference and determining that
FWS's interpretation of the ESA was a ``reasonable''--even if not the
best--interpretation of the statute \3\ (Id. at 697, 703). In a dissent
that has literally become textbook,\4\ Justice Scalia, joined by then-
Chief Justice Rehnquist and Justice Thomas, explained why FWS's
construction was not the best reading of the statute; indeed, Justice
Scalia would have held that FWS's interpretation of ``harm'' was not
even a permissible reading of the statute under Chevron, given its
inconsistency with the structure and text of the ESA. As Justice Scalia
observed, ``[i]f `take' were not elsewhere defined in the Act, none
could dispute what it means, for the term is as old as the law itself.
To `take,' when applied to wild animals, means to reduce those animals,
by killing or capturing, to human control'' (515 U.S. at 717 (Scalia,
J., dissenting)).\5\ And here, under the noscitur a sociis canon, the
term ``harm,'' like the other nine verbs in the definition of ``take,''
should be construed to require an ``affirmative act[] . . . directed
immediately and intentionally against a particular animal--not [an]
act[] or omission[] that indirectly and accidentally cause[s] injury to
a population of animals (515 U.S. at 719-720 (Scalia, J., dissenting);
see also id. at 719 (```Harm' is merely one of 10 prohibitory words in
[the ESA's definition of ``take''], and the other 9 fit the ordinary
meaning of `take' perfectly.'')).
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\3\ The Services are aware that at least one intermediate court
has suggested that Sweet Home did not ground its ruling in Chevron
deference. See Cargill v. Garland, 57 F.4th 447, 467 (5th Cir.
2023), aff'd sub nom. Garland v. Cargill, 602 U.S. 406 (2024). But
cf. Lubow v. U.S. Dep't of State, 783 F.3d 877, 884 (D.C. Cir. 2015)
(citing Babbitt for the proposition that a court can proceed
directly to Chevron Step Two without a threshold determination of
ambiguity). The Services do not agree that Sweet Home was not a
Chevron case. The Court in Sweet Home explained explicitly that it
``need not decide whether the statutory definition of `take' compels
the Secretary's interpretation of `harm,' because [the Court's]
conclusions that Congress did not unambiguously manifest its intent
to adopt respondents' view and that the Secretary's interpretation
is reasonable suffice[d] to decide th[e] case'' (515 U.S. 687, 703
(1995) (citing Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984))). The Court described its
``conclusion that the Secretary's definition of `harm''' as
``rest[ing] on a permissible construction of the ESA'' (515 U.S. at
704 (emphasis added); see also id. at 708 (``When Congress has
entrusted the Secretary with broad discretion, we are especially
reluctant to substitute our views of wise policy for his. See
Chevron, 467 U.S. at 865-66. In this case, that reluctance accords
with our conclusion, based on the text, structure, and legislative
history of the ESA, that the Secretary reasonably construed the
intent of Congress when he defined `harm' to include `significant
habitat modification or degradation that actually kills or injures
wildlife.''')).
Furthermore, the Sweet Home Court explicitly refrained from
``decid[ing] whether the statutory definition of `take' compels the
Secretary's interpretation of `harm''' (Id. at 703). Thus,
regardless of the doctrinal reasoning underlying that conclusion,
Sweet Home does not bear the preclusive effect that some would
ascribe to it.
\4\ See, e.g., Mikva, et al., Legislative Process 749 (5th ed.
2025); Manning & Stephenson, Legislation and Regulation, Cases and
Materials 1201 (5th ed. 2025).
\5\ See, e.g., 11 Oxford English Dictionary (1933) (defining
``take'' as to kill or capture a wild animal); Webster's New
International Dictionary of the English Language (2d ed. 1949) (take
defined as ``to catch or capture by trapping, snaring, etc., or as
prey''); Geer v. Connecticut, 161 U.S. 519, 523 (1896) (``All the
animals which can be taken upon the earth, in the sea, or in the
air, that is to say, wild animals, belong to those who take them'')
(quoting the Digest of Justinian); 2 W. Blackstone, Commentaries 411
(1766) (``Every man . . . has an equal right of pursuing and taking
to his own use all such creatures as are ferae naturae'').
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Justice Scalia also explained that FWS's definition of ``harm''
does not fit with the use of ``take'' throughout the Act, including
where provisions like section 1538(a)(1)(D) which prohibits the
possession, sale, and transport of ``species taken in violation'' of
the Act ``would apply to taking only in the ordinary sense, and are
meaningless as applied to species injured by environmental
modification'' (Id. at 723). Nor does FWS's definition of ``harm'' work
with the ``broader structure of the Act,'' noting that ``Congress's
explicit prohibition of habitat modification in the [Section 7 of the
ESA] would bar the inference of an implicit prohibition of habitat
modification in [Section 9 of the ESA]'' (Id. at 724; see also id.
(stating that statutes should be read as far as possible to give
independent effect to all their provisions)).\6\
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\6\ Although Sweet Home was focused on FWS's regulation at 50
CFR 17.3, NMFS's definition of ``harm'' at 50 CFR 222.102 is
substantially the same.
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The Supreme Court recently abrogated the doctrine of Chevron
deference in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024)
(After Loper Bright), ``the question that matters'' in regulatory
litigation is whether ``the statute authorizes the challenged agency
action'' (603 U.S. at 406 (emphasis added)). In other words, does the
agency's regulation match the single, best meaning of the statute?
We have concluded that the Services' existing regulations, which
contain the definition of ``harm'' contested in Sweet Home, do not
match the single, best meaning of the statute. As Justice Scalia's
dissent in Sweet Home explains, the regulations' interpretation of the
statutory language runs afoul of the noscitur a sociis canon and is
inconsistent with the structure of the ESA. We adopt Justice Scalia's
rationale as articulated in Sweet Home and conclude that the Services'
regulatory definitions are unlawful, notwithstanding the Court's prior
upholding of the regulatory definition under Chevron deference.
We recognize that the Supreme Court held in Loper Bright that its
``prior cases that relied on the Chevron framework . . . are still
subject to statutory stare decisis'' (603 U.S. at 412). But under the
then-prevailing Chevron framework, Sweet Home held only that the
existing regulation is a permissible reading of the ESA, not the only
possible such reading. Indeed, even during the Chevron era, the
Services would have been free to change their interpretation of the
Act, even after a court had applied Chevron deference to uphold that
earlier interpretation, as in Sweet Home. See generally Nat'l Cable &
Telecomms. Ass'n v. Brand X internet Servs., 545 U.S. 967 (2005); see
also Sweet Home, 515 U.S. at 714 (O'Connor, J., concurring)
(``[N]othing the Court says today prevents the agency itself from
narrowing the scope of its
[[Page 43302]]
regulation at a later date.''). That was because a Chevron deference-
grounded precedent did not hold that an agency's ``construction
follow[ed] from the unambiguous terms of the statute and thus l[eft] no
room for agency discretion''; rather, such a precedent only established
that the agency's construction was only one of potentially multiple
permissible interpretations of the statute (Brand X, 545 U.S. at 982
(emphasis added)). Though, in Loper Bright, the Court declared that
statutory stare decisis would protect specific regulations upheld under
Chevron from future litigation challenges, the Court left open the
possibility that the executive branch could itself depart from
regulations that do not match the single, best meaning of the statute--
so long as the new regulations reflect that best meaning (see Loper
Bright, 603 U.S. at 412). This makes particular sense given Loper
Bright's focus on the propriety of executing the laws as written by
Congress and the Executive Branch's constitutional obligation to ``take
Care that the Laws be faithfully executed'' (U.S. Const. art. II,
section 3).
In light of their determination of illegality, the Services have
determined that the best path forward is to rescind the regulatory
definition entirely--instead of keeping part of it--and to refrain from
implementing a replacement definition (see Dep't of Homeland Security
v. Regents, 591 U.S. 1, 25 (2020)).\7\ We have also concluded--after
careful consideration of the alternatives--that no replacement
definition is needed.
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\7\ To be sure, the Services note that both Regents and State
Farm involved two-pronged policies. Here, the Services' rescission
involves a single regulatory definition.
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The Services understand that they are ``not writing on a blank
slate,'' and thus the Services have considered reliance interests--
including those raised in public comments--in maintaining the existing
definition or at least some definition (Regents, 591 U.S. at 33
(requiring such consideration when agency is ``not writing on a blank
slate'')). Below, the Services' responses to public comments address
these reliance interests. At the outset, however, the Services
acknowledge that the existence of a regulatory definition, as such, has
provided some certainty to regulated entities. Further, the Services
acknowledge that, in at least some circumstances, ``longstanding
policies may have `engendered serious reliance interests that must be
taken into account''' (Encino Motorcars, LLC v. Navarro, 579 U.S. 211,
221-22 (2016) (quoting FCC v. Fox Television Stations, Inc., 556 U.S.
502, 515 (2009))).
Having taken these interests into account, the Services have
concluded that such interests do not outweigh the need for a full
rescission. The ESA itself defines ``take,'' which is the operative
term prohibited under section 9 (16 U.S.C. 1532(19)). It is true that
Justice Scalia's dissent in Sweet Home does not call into question the
legality of the first sentence of the regulatory definition of
``harm'': ``Harm in the definition of `take' in the Act means an act
which actually kills or injures wildlife.'' But the current regulations
were promulgated and amended as a single, integrated interpretive
framework. The first sentence has functioned as the introductory clause
to the more-elaborate restrictions that follow, and the Services have
determined that those restrictions are unlawful. Thus, the Services
believe that retaining even part of the unlawful regulation here would
risk creating uncertainty about which aspects of the prior agency
interpretations remain operative and which do not. Moreover,
maintaining the first sentence on its own would not materially enhance
regulatory clarity relative to the statutory text itself. In the
Services' judgment, preserving that sentence as a standalone regulation
therefore would provide limited independent guidance while risking
confusion about the continuing legal significance of the rescinded
portions of the regulation.
Nor do the Services choose to add a new regulatory definition for
``harm.'' Given that ``take'' is defined in the statute, and that the
role and meaning of the term ``harm'' within the larger definition of
``take'' was expertly explicated by Justice Scalia in his Sweet Home
dissent--an interpretation which we have herein adopted--we find that
maintaining a freestanding definition of ``harm'' is unnecessary.
Moreover, at least in this situation and given the history detailed
above, inserting a regulatory definition within a statutory definition
that was otherwise clear appears to have been an attempt to arrogate to
the Services authorities which Congress never granted. Returning to the
statutory definition as the operative language is therefore especially
appropriate.
Because our regulations that define ``harm'' do not accord with the
single, best meaning of the statutory text, the Services published a
proposed rule in the Federal Register to rescind the definitions of
``harm'' from title 50 CFR 17 and 222 (90 FR 16102, April 17, 2025). In
that proposed rule, we provided background and rationale for rescinding
the definitions of ``harm.'' We solicited public comments on the
proposed rule through May 19, 2025.
Following consideration of all public comments received in response
to our proposed rule, and for the reasons outlined in our proposed rule
and in this final rule, we are rescinding the regulatory definition of
``harm.'' By finalizing the rescission of the regulatory definition of
``harm,'' the Services are relying on the plain text of the statute as
the standard going forward, but nothing in this final rule is intended
to require that any prior permit or incidental take statement issued by
the Services that relied on the prior definition of ``harm'' be
reevaluated on the basis of this final regulation. Such incidental-take
statements, and indeed the entire section 7 analysis, were but one
input among many into the ultimate decision whether and how to
authorize a given action (Cf. Seven Cnty. Infrastructure Coal. v. Eagle
Cnty., Colorado, 605 U.S. 168, 180 (2025) (noting that an environmental
impact statement issued under the National Environmental Policy Act is
``only one input into an agency's decision,'' and that the ultimate
locus of analysis, for purposes of administrative law, is ``the
agency's final decision'')). Disturbing the finality of the overall
permitting decision would be highly disruptive to settled expectations,
as well as immensely time-consuming and difficult, in return for at
most speculative gains. Therefore, permits or incidental take
statements finalized prior to the effective date of this rule will not
be required to be reevaluated under this final rule. (For the effective
date of this rule, see DATES, above.)
Public Comments and Responses
By the close of the public comment period on May 19, 2025, we
received approximately 358,000 public comments on the proposed rule to
rescind the regulatory definition of ``harm.'' Comments were received
from a range of sources including individual members of the public,
States, Tribes, industry organizations, legal foundations and firms,
and environmental organizations. During the public comment period, we
received multiple requests for public hearings. However, as public
hearings are not required for this type of rulemaking, we elected not
to hold them. We also received several requests for an extension of the
30-day public comment period. After consideration, we determined that
30 days provided sufficient time for the public to submit
[[Page 43303]]
meaningful comments and therefore we did not extend the comment period.
Some commenters expressed support for the rule while other
commenters requested that the proposed rule not be finalized. Among the
submissions we received were multiple letters from organizations signed
by individuals expressing general opposition to the proposed rule. Many
of the individual comments we received were non-substantive in nature,
expressing either general support for, or opposition to, the proposed
rule with no supporting information or analysis. We also received many
detailed substantive comments expressing support for, or opposition to,
the proposed rule for specific reasons. All public comments were
reviewed and considered prior to developing this final rule. Summaries
of substantive comments and our responses are provided below. Similar
comments are combined where appropriate. We did not, however, consider
or respond to comments that are not relevant to or are beyond the scope
of this particular rulemaking. For example, some commenters responded
to unrelated Federal Register notices and proposed rulemakings (e.g.,
the U.S. Forest Service's Consent for Geothermal Leasing Project),
congressional bills (e.g., H.R. 845 (Pet and Livestock Protection Act
of 2025) and H.R. 1897 (ESA Amendments Act of 2025), or statutory
provisions outside the ESA (e.g., Animal Welfare Act).
Comment 1: Some commenters stated that Congress did not intend for
the ESA prohibition on ``take'' to include habitat modification as
defined under the term ``harm.'' They discussed that the legislative
history show that ``take'' was meant to cover direct, affirmative
actions against individual animals, not indirect, incidental, or
unintentional impacts to species such as habitat modification or
degradation. Several cited Justice Scalia's dissent in Sweet Home and
the removal of habitat language from early drafts of the ESA as
evidence that Congress deliberately chose to address habitat protection
through other provisions, such as sections 5 and 7. Commenters stated
that these sections were designed to address habitat conservation
through land acquisition and Federal agency responsibilities, not
through the ``take'' prohibition in section 9. Commenters also stated
that the Services' current definition of ``harm'' unlawfully expands
the scope of ``take'' beyond congressional intent and creates
regulatory burdens that hinder land management and conservation
practices. Other commenters disagreed, however, asserting that Congress
intended ``harm'' to include habitat destruction or modification that
indirectly or unintentionally results in injury or death to listed
species. They pointed to the broad language of the ESA, its legislative
history, and the statute's overarching goal stated in section 2 of the
Act to conserve ecosystems upon which endangered and threatened species
depend. Several commenters also stated that Congress deliberately
included ``harm'' in the definition of ``take'' to broaden its scope
beyond traditional notions of hunting or capturing, and that the
Services' reinterpretation ignores this legislative intent.
Response: The Services acknowledge the divergent views expressed by
commenters relying on congressional intent. The Services recognize that
the legislative history contains references both to direct actions
against wildlife in section 9 and separately to broader ecosystem
conservation goals in section 2. ``[L]egislative history,'' however,
``is not the law'' (Epic Sys. Corp. v. Lewis, 584 U.S. 497, 523
(2018)).
Upon reevaluation and consideration of comments received, the
Services have concluded that the regulatory definition of ``harm'' is
not the single, best meaning of the text of the statute. As Justice
Scalia's dissent in Sweet Home explains, the regulation's
interpretation of the statutory language runs afoul of the noscitur a
sociis canon, is inconsistent with the structure of the ESA, which
provides distinct mechanisms for habitat protection under sections 5
and 7, and disregards the absence of habitat-related language in the
definition of ``take'' in section 3 itself. For more discussion, see
Background, above. We also affirm our stated position in the proposed
rule that no replacement definition is needed. The ESA itself defines
``take,'' and the regulatory elaboration of one subcomponent of that
definition -- ``harm''-- has had the effect of exceeding the proper
bounds of the statute and asserting power that Congress never actually
gave to the executive branch.
``Even if legislative history were a legitimate and reliable tool
of interpretation,'' moreover, ``[b]oth the Senate and House floor
managers of the bill explained it in terms which leave no doubt that
the problem of habitat destruction on private lands was to be solved
principally by the land acquisition program of section 1534, while
section 1538 solved a different problem altogether the problem of
takings'' (Sweet Home, 515 U.S. at 727-28 (Scalia, J., dissenting)
(citing to relevant legislative history)). ``Habitat modification and
takings, in other words, were viewed as different problems, addressed
by different provisions of the Act'' (Id. at 728).
Accordingly, the Services conclude that rescinding the regulatory
definition of ``harm'' is consistent with the single, best reading of
the ESA and with the statute's overall framework, which clearly
distinguishes between prohibitions on ``take'' and broader habitat
conservation responsibilities.
Comment 2: Multiple commenters stated that the best reading of the
ESA does not support the Services' proposed rule. Several commenters
supported the rescission, citing the Supreme Court's decision in Loper
Bright, which ended Chevron deference and emphasized that courts must
apply the single, best reading of a statute. These commenters aligned
with Justice Scalia's dissent in Sweet Home, asserting that ``take''
under the ESA refers only to direct, affirmative acts against
individual animals themselves, not to indirect effects such as habitat
modification. They opined that the current definition improperly
extends liability to unintended consequences and lacks statutory
grounding under section 9. Others, however, contended that the
Services' proposal misreads the statute and ignores the ESA's
structure, purpose, and legislative history. They asserted that habitat
protection is central to the ESA, citing multiple statutory provisions
and decades of judicial and agency interpretation affirming that
``harm'' includes habitat destruction that results in injury or death
to wildlife. These commenters stated that the Services' reliance on
Sweet Home's dissent is misplaced, as the majority opinion upheld the
current definition based on statutory text, purpose, and legislative
history independent of Chevron. They also noted that Congress amended
the ESA after Sweet Home without altering the definition of ``take,''
implicitly endorsing the broader interpretation. Overall, the comments
reflect a divergence of opinions over whether the best reading of the
ESA supports or rejects the inclusion of habitat modification in a
definition of ``harm.''
Response: After careful review of comments received, the Services
have determined that the regulatory definition of ``harm'' runs
contrary to the single, best reading of the ESA. As stated by Justice
Scalia in his dissenting opinion in Sweet Home, the term ``take,''
defined in section 3, applies to actions that result in actual injury
or death to listed species. The Services find that considering habitat
degradation or modification that kills or
[[Page 43304]]
injures wildlife by significantly impairing improper essential
behavioral patterns stretches the term ``harm'' beyond its natural
meaning and creates overlap with other provisions of the ESA, such as
sections 5 and 7, which are specifically designed to address habitat
conservation.
For more discussion, see Background, above, and our response to
Comment 1. We reject the majority's interpretation of the ESA as
articulated in Sweet Home. The Services conclude that rescinding the
definition of ``harm'' supports the single, best reading of the ESA.
Comment 3: Multiple commenters opined that the rescission of the
definition of ``harm'' would weaken the effectiveness of section 7
consultations by excluding incidental take resulting solely from
habitat modification or degradation. They expressed concern that this
narrower interpretation would lead to incomplete jeopardy analyses and
undermine the legal and scientific basis for ``no jeopardy''
determinations. Commenters asserted that section 7 requires ongoing
oversight and reinitiation of consultation when new information or
changes in actions affect listed species or their designated critical
habitat. They highlighted that incidental take statements are a
critical mechanism for monitoring and limiting ``harm,'' and that these
statements must include enforceable thresholds and measures to minimize
impacts to species. Commenters also pointed to the legislative history
of the ESA, asserting that Congress intended section 7 to encompass
habitat-related impacts as a form of ``take,'' and that this intent is
reflected in the statute's structure and amendments. They contended
that rescinding the definition of ``harm'' and not considering habitat
modification or degradation as a form of ``take'' would contradict this
intent and reduce the ability of Federal agencies to ensure that their
actions do not jeopardize listed species.
Response: The rescission of the definition of ``harm'' does not
alter the statutory requirement that Federal agencies ensure their
actions are not likely to jeopardize the continued existence of listed
species or ``result in the destruction or adverse modification of
[critical] habitat of such species'' (16 U.S.C. 1536(a) (emphasis
added)). ``Destruction or adverse modification'' is a separate
regulatory consideration from ``take.'' Thus, not only is the statutory
prohibition in section 7 against habitat modification not affected at
all by the deletion of the definition of ``harm'' (which itself
defines, in part, ``take''), but the presence of this separate and
distinct provision in the statutory text regarding habitat modification
reinforces the Services' conclusion that habitat modification is not
properly part of the definition of ``take,'' as such a construction
would violate the canon against surplusage. The Services emphasize that
section 7 remains fully applicable to Federal actions that may affect
listed species or their designated critical habitat. This rulemaking
also does not change any species classifications or critical habitat
designations.
The rescission of the regulatory definition of ``harm'' does not
limit the Services' ability to assess impacts to listed species and
critical habitat from all components of the action agency's proposed
action through the section 7 process. Yet, imposing the current
incidental take regime on activities beyond those authorized by the
statute is not an appropriate option that the Services believes they
should avail themselves of (even if it were permissible under Loper
Bright's dicta regarding the statutory-stare-decisis value of prior
cases), given the executive branch's duty to see that the laws are
faithfully executed. What commenters are suggesting is, in short, that
we continue to subject a swath of activities to the incidental-take
regime, which otherwise would not be subject to this regime on the best
reading of the statute, simply because that would allow the Services to
better monitor and accomplish some other goal, i.e., monitoring and
limiting true ``harm.'' The Services reject this invitation as not
being a proper implementation of the law, because it would impose
burdens on the citizenry that are not authorized by statute.
Comment 4: Multiple commenters stated that the proposed rescission
of the definition of ``harm'' would significantly reduce the incentive
for landowners to voluntarily seek permits under section 10(a) and
would weaken the functional basis of section 10 permitting. They
emphasized that the current definition of ``harm'' is essential for
implementing habitat conservation plans (HCPs) and the associated
incidental take permits (ITPs), as well as conservation benefit
agreements (CBAs) and their associated enhancement of survival (EOS)
permits. These tools provide regulatory assurances for landowners and
enable proactive, voluntary conservation. Commenters warned that
removing the definition would reduce incentives to seek ITPs, increase
unpermitted ``take,'' and lead to greater habitat destruction. They
also opined that the change would create legal uncertainty and diminish
the effectiveness of conservation strategies, arguing that section
10(a) permitting depends on a regulatory framework that recognizes
habitat modification or degradation as a form of ``take.''
Response: Commenters are correct that private parties seeking ITPs
and EOS permits pursuant to section 10(a) of the ESA will no longer
need to articulate the ``impact'' to species' habitat, explain how they
will ``minimize and mitigate'' habitat modification or degradation, or
consider alternatives in service of mitigating habitat modification or
degradation in their conservation plans in order to obtain an
incidental take permit. This rulemaking takes the position that the
Services' requiring private parties to do so is unlawful, and thus
impermissible for the agency to require.
Relatedly, in issuing an incidental take permit, the Secretary of
the Interior will no longer consider the effects of a proposed action
on the species' habitat, nor will the permit contain terms and
conditions requiring permittees to take into account habitat
modification and degradation when executing the permitted take. Because
the Services believe that the Act's prohibition on ``take'' does not
properly include habitat modification (and thus have removed the
regulatory definition of ``harm,'' which swept habitat modification
into the statutory definition of ``take''), it follows that permits for
incidental take are no longer required to engage in such activities.
The attempt of at least one Commenter to argue that, because
``conservation plans'' are mandated by section 10, therefore habitat
conservation plans are mandated by statute (and, mutatis mutandis, ITPs
and related instruments must account for habitat modification), gets
the matter precisely backward (16 U.S.C. 1539(a)(1)(B) & (a)(2)(A)).
The word ``habitat'' appears nowhere in section 10. Rather, section
10's incidental-take regime is symmetrical to what would otherwise be
take prohibited as ``take'' under section 9. If habitat modification
were banned as take, then an ITP, along with a conservation plan and
all the other requirements of section 10, would be necessary to modify
such habitat. But because the Act does not ban habitat modification as
take in the first place, therefore no ITP, conservation plan, or other
instrument, is required to engage in such activities.
The same Commenter also charged that the Services' regulations
addressing HCPs are now ``inconsistent'' with the rescission. The
Services are studying the extent to which its regulations governing
such permits, e.g., 50 CFR 17.22, 17.32, may need to be updated to
reflect this final rule and the best
[[Page 43305]]
reading of the Act, though the Services note also that other parts of
the Act affect habitat modification, as noted in this final rule. In
all events, this has not altered the Services' conclusion as to the
best meaning of the text of the Act, which is what has driven this
final rule.
The rescission of the regulatory definition of ``harm'' does not
eliminate the Services' ability to issue ITPs or EOS permits where
there is an affirmative conduct intentionally directed against a
particular animal or animals. Additionally, the Services will continue
to work with applicants to ensure that HCPs and CBAs are developed and
permitted to address species-specific impacts and that conservation and
mitigation measures are commensurate with the ESA's definition of
``take.''
This rulemaking also does not prohibit willing landowners from
implementing conservation plans and agreements that are more
comprehensive than what sections 9 and 10 of the ESA require. Nor does
this rulemaking prohibit entities (including state governments) from
engaging in habitat-conservation efforts that could be supported by
other provisions of the ESA.
Comment 5: Multiple commenters opined that rescinding the
regulatory definition of ``harm'' would introduce significant
regulatory uncertainty and inconsistency in ESA implementation. They
emphasized that the long-standing definition has provided clarity and
stability for decades, supporting conservation programs, permitting
frameworks, and legal agreements across agencies and stakeholders.
Removing it without a clear alternative would lead to confusion,
delays, litigation, and weakened conservation outcomes. Some of these
commenters further asserted that the reasoning of Justice Scalia's
dissent compelled the retention of the first sentence of the
regulations, which--in these commenters' view--would be consistent with
the Trump Administration's policy priorities. In contrast, some
commenters supported the proposed rule, asserting that the current
definition imposes excessive regulatory burdens, particularly through
its inclusion of habitat modification. These supporters argued that
rescission would reduce red tape, alleviate economic impacts on land
use sectors, and allow for more targeted, science-based conservation
efforts.
Response: By rescinding the regulatory definition of ``harm,'' the
Services are aligning the definition of ``take'' with the single, best
reading of the statute, consistent with Loper Bright. Although the
current definition of ``harm'' has been in place for decades, its
inclusion of habitat modification or degradation where it actually
kills or injures wildlife ``by significantly impairing essential
behavioral patterns'' as a form of ``take'' has led to interpretive
challenges and regulatory uncertainty, particularly in determining when
habitat modification rises to the level of ``take.'' Although
rescinding the definition of ``harm'' may reduce inconsistency and
regulatory uncertainty by focusing on acts which actually kill or
injure listed species, the Services are rescinding the definition of
``harm'' because it does not accord with the best meaning of the
statute. The Services have also concluded that no replacement
definition is needed. The ESA itself defines ``take'' (16 U.S.C.
1532(19)), and that definition is clear and robust.
By rescinding the definition of ``harm,'' the Services are relying
on the plain text of the statute as the standard going forward. But
previously issued permits or incidental take statements will not be
required to be reevaluated solely because of this final rule, nor does
this final rule invalidate prior conservation agreements or other
conservation or recovery efforts already in effect. Such incidental-
take statements, and indeed the entire section 7 analysis, were but one
input among many into the ultimate decision whether and how to
authorize a given action (Cf. Seven Cnty. Infrastructure Coal. v. Eagle
Cnty., Colorado, 605 U.S. 168, 180 (2025) (noting that an environmental
impact statement issued under the National Environmental Policy Act is
``only one input into an agency's decision,'' and that the ultimate
locus of analysis, for purposes of administrative law, is ``the
agency's final decision'')). Disturbing the finality of the overall
permitting decision would be highly disruptive to settled expectations,
as well as immensely time-consuming and difficult, in return for at
most speculative gains. Moreover, the regulations governing HCPs
include assurances to permittees in case of changed or unforeseen
circumstances (see 50 CFR 17.22(b)(5), 17.32(b)(5)). The Services have
considered that these regulations reassure permittees that the Services
would not impose additional requirements,\8\ whereas rescinding the
definition of harm might in some situations lessen existing burdens
(e.g., if the permittee is mitigating only for habitat impacts that
were considered prohibited as take when their permit was issued, the
permittee may choose to return their permit in order to not have to
continue expending resources to mitigate). Nonetheless, such situations
are speculative, while the central offer of these regulations to
permittees is repose and certainty. These values counsel very
strongly--and decisively--against not disturbing previously issued
permits.
---------------------------------------------------------------------------
\8\ E.g., 50 CFR 17.22(b)(5)(iii)(A) (``In negotiating a
response to unforeseen circumstances, the Director will not require
the commitment of additional land, water, or financial compensation
or additional restrictions on the use of land, water, or other
natural resources beyond the level otherwise agreed upon for the
species covered by the conservation plan without the consent of the
permittee.'').
---------------------------------------------------------------------------
Comment 6: Multiple commenters requested that if the Services
finalize the proposed rule, they must issue clear guidance on how
``harm'' and ``take'' will be interpreted and applied. Commenters
emphasized that without a regulatory definition, the regulated
community faces uncertainty about what actions may constitute ``take''
under section 9 and when particular requirements will need to be met,
especially in section 7 consultations and permitting under section
10(a). Commenters requested examples and clarification to ensure
consistent implementation and avoid delays or inconsistent decisions.
They also urged the Services to confirm how the rule applies to pending
consultations and to update existing guidance documents or include
clarifications in the final rule's preamble.
Response: The definition of ``take'' in section 3 of the Act
remains unchanged and will stand on its own as the best reading of the
Act. In addition, under the noscitur a sociis canon, the term ``harm,''
like the other nine verbs in the definition of ``take,'' should be
construed to require an ``affirmative act[] . . . directed immediately
and intentionally against a particular animal--not [an] act[] or
omission[] that indirectly and accidentally cause[s] injury to a
population of animals'' (515 U.S. at 719-720).
The Services intend to review each specific situation and species'
response to a proposed action to determine whether it may or may not
constitute ``harm'' to a species. As stated above, this rule is setting
prospective standards only; previously issued permits or incidental
take statements will not be required to be reevaluated solely because
of this final rule. Such incidental-take statements, and indeed the
entire section 7 analysis, were but one input among many into the
ultimate decision whether and how to authorize a given action (Cf.
Seven Cnty. Infrastructure Coal. v. Eagle Cnty., Colorado, 605 U.S.
168, 180 (2025)). Disturbing the finality of the overall permitting
decision would be highly
[[Page 43306]]
disruptive to settled expectations, as well as immensely time-consuming
and difficult, in return for at most speculative gains. For more on
this rule's impact on future section 10(a) permits, see the Services'
responses to Comments 5 and 20. For a description of the ways in which
this rule does not impact future section 7 consultations, see the
Services response to Comment 4.
The Services also acknowledge that reliance interests have built up
around this regulatory definition. Rescinding the regulatory
definition--without a replacement at this time--promotes the lawful
operation of executive branch regulatory programs, and the Services
believe that this core value outweighs the reliance interests that have
built up around the continued maintenance of an unlawful regulatory
definition, even if such were possible. For further responses to
reliance interests, see Comments 13, 16, 18, 20, and 21.
Comment 7: Multiple commenters stated that removing habitat
modification from the definition of ``take'' would severely weaken the
Act's ability to protect imperiled species. They emphasized that
significant habitat modification or degradation often results in injury
or death to wildlife by impairing essential behaviors such as feeding,
breeding, and sheltering. Without recognizing these indirect but
biologically consequential impacts as ``take,'' the Services would be
unable to regulate many of the most common and damaging threats to
species survival. Commenters stated that habitat loss is the leading
driver of species decline and extinction and excluding it from the
definition of ``take'' would eliminate a critical legal mechanism for
preventing such outcomes. They wrote that by narrowing the scope of
what qualifies as ``take,'' the Services would be forced to ignore the
ecological realities that species cannot survive without intact,
functional habitats. Commenters stated that this shift would not only
violate the purpose of the ESA but also increase the likelihood of
extinction for many species by allowing habitat destruction to proceed
without consequence.
Response: The Services emphasize that the rescission of the
regulatory definition of ``harm'' does not diminish the importance of
habitat loss or degradation as a significant threat to many species
listed under the ESA. Habitat protection and conservation play a
critical role in species conservation and recovery efforts. Rather,
this rule clarifies that ``take'' applies only to an ``affirmative
act[] . . . directed immediately and intentionally against a particular
animal--not [an] act[] or omission[] that indirectly and accidentally
cause[s] injury to a population of animals'' (515 U.S. at 719-20
(Scalia, J., dissenting)). Habitat-related impacts are considered and
addressed under other provisions of the ESA, including section 7
consultations section 5 land acquisition, and cooperation with willing
landowners through voluntary conservation programs. The Services will
continue to use these tools to address threats to species and to help
chart the path to recovery and delisting. The rescission of the
definition of ``harm'' intends to align the implementation of the Act
with the single, best reading of the statute by making clear that
habitat modification or degradation does not qualify as ``take.''
Comment 8: Multiple commenters opined that the proposed rule's
basis for rescinding the definition of ``harm'' directly undermines the
purpose and function of critical habitat designations under the ESA.
They emphasized that critical habitat is essential for species survival
and recovery, and rescinding the definition of ``harm'' would lead to
increased degradation of these areas, pushing species closer to
extinction. Commenters also contended that the rule would violate the
agencies' statutory duties to designate and protect critical habitat.
They disagreed with the reliance on a narrow legal interpretation that
disregards the legislative history and structure of the ESA,
particularly the 1982 amendments that clarified the importance of
habitat in incidental take authorizations. These amendments, they
stated, affirm that impacts to habitat can constitute ``take'' and that
section 7 requires Federal agencies to avoid actions that would destroy
or adversely modify critical habitat. Commenters maintained that
without a regulatory definition of ``harm'' that includes habitat
modification or degradation, the Services would not be able to minimize
effects to critical habitat.
Response: The Services recognize the importance of critical habitat
designations in promoting the conservation and recovery of listed
species. The definition of critical habitat in section 3(5)(A) and the
process and requirements of designating critical habitat in section
4(b)(2) of the Act will remain separate and distinct from the
definition of ``take'' in section 3.\9\ The rescission of the
regulatory definition of ``harm'' does not alter the statutory
obligations for the Services to use the best scientific data available
to designate critical habitat under section 4(b)(2) of the Act.
---------------------------------------------------------------------------
\9\ Indeed, the presence of these separate and distinct
provisions in the statutory text regarding habitat modification
reinforces the Services' conclusion that habitat modification is not
properly part of the definition of ``harm'' and, thus, of ``take,''
as such a construction would violate the canon against surplusage.
---------------------------------------------------------------------------
The Services maintain that habitat protection remains a central
component of the ESA's conservation framework. This rescission has no
impact on the requirements of Federal agencies under section 7(a)(2) to
avoid the destruction or adverse modification of designated critical
habitat. We will continue to analyze effects to the physical or
biological features of designated critical habitat.
The Services conclude that ``take'' applies only to an
``affirmative act[] . . . directed immediately and intentionally
against a particular animal--not [an] act[] or omission[] that
indirectly and accidentally cause[s] injury to a population of
animals'' (515 U.S. at 719-20 (Scalia, J., dissenting)). We do not find
persuasive the argument that the 1982 amendments to the ESA, which
allowed the Secretary of the Interior to issue incidental take permits,
suggests that Congress understood section 9 to prohibit indirect as
well as deliberate takings. Habitat modification is not the only
activity that might incidentally cause a prohibited taking. For
example, fishing for unprotected salmon may inadvertently but
unavoidably cause takes of an endangered species of salmon (515 U.S. at
729).
Comment 9: Commenters contended that the Services misinterpreted
Loper Bright as exempting interpretive rulemakings from the National
Environmental Protection Act (NEPA; 42 U.S.C. 4321 et seq.). They
stated that the decision addressed judicial review, not agency
obligations, and that the Services remain bound by prior precedent,
including Sweet Home, until overturned by the courts.
Response: Loper Bright did not alter or exempt agencies from their
responsibilities under NEPA. The Services do not rely on Loper Bright
to justify the use of a categorical exclusion in this rulemaking.
Rather, the Services have independently evaluated the applicability of
NEPA and determined that the rule qualifies for a categorical exclusion
under 43 CFR 46.210(i) and the U.S. Department of the Interior Handbook
of National Environmental Policy Act Implementing Procedures, appendix
2. As the Services noted in the proposed version of this rule, two
recent proposed and final rulemakings addressing a regulatory
definition of ``habitat'' under the Endangered Species Act found that
these categorical exclusions applied. See Endangered and
[[Page 43307]]
Threatened Wildlife and Plants; Regulations for Listing Endangered and
Threatened Species and Designating Critical Habitat, 87 FR 37757, June
24, 2022; Endangered and Threatened Wildlife and Plants; Regulations
for Listing Endangered and Threatened Species and Designating Critical
Habitat, 86 FR 59353, October 27, 2021; Endangered and Threatened
Wildlife and Plants; Regulations for Listing Endangered and Threatened
Species and Designating Critical Habitat, 85 FR 81411, December 16,
2020; Endangered and Threatened Wildlife and Plants; Regulations for
Listing Endangered and Threatened Species and Designating Critical
Habitat, 85 FR 47333, August 5, 2020.
The Services have also concluded that, because this rescission is
compelled by the best reading of the statutory text, ``the proposed
agency action is a nondiscretionary action with respect to which such
agency does not have authority to take environmental factors into
consideration in determining whether to take the proposed action.'' (42
U.S.C. 4336(a)(4); see Dep't of Transp. v. Pub. Citizen, 541 U.S. 752,
766-70 (2004)).
Our rescission of the regulation definition of ``harm'' on the
ground that it does not reflect the best reading of the statutory text
effectuates the Executive Branch's obligation to ``take Care that the
Laws be faithfully executed,'' U.S. Const. art. II, section 3, and is
consistent with Loper Bright and Sweet Home. At bottom, the Services
are engaged in legal interpretation, and the Services have determined
that the bottom-line policy here (the rescission of the regulations) is
nondiscretionary in light of the regulations' unlawfulness, even if the
interstitial particulars of effectuating that policy (e.g., whether to
rescind the whole regulation and whether to implement a new definition,
regardless of what it would say) require an exercise of discretion that
has nothing to do with environmental factors.
Comment 10: Several commenters challenged the Services' use of a
categorical exclusion, asserting that the proposed rule is not merely
procedural and will have significant environmental effects. They opined
that the Services failed to justify the categorical exclusion and did
not evaluate whether extraordinary circumstances apply.
Response: The Services considered whether the proposed rule
qualifies for a categorical exclusion and whether any extraordinary
circumstances exist that would preclude its use. The Services
determined that the proposed agency action is non-discretionary, and in
the alternative, that the proposed regulation changes themselves will
not have a significant individual or cumulative effect on the quality
of the human environment for purposes of NEPA--notwithstanding
potential indirect follow-on economic impacts or impacts on small
entities (Cf. Seven Cnty. Infrastructure Coal. v. Eagle Cnty., 605 U.S.
148, 183 (2025) (``A reviewing court may not `substitute its judgment
for that of the agency as to the environmental consequences of its
actions.''' (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21
(1976)))). The Services have applied a categorical exclusion to comply
with the NEPA. As the Services noted in the proposed rulemaking and
above, two recent proposed and final rulemakings addressing a
regulatory definition of ``habitat'' under the Endangered Species Act
found that the exact same categorical exclusions invoked in this
rulemaking applied. See Endangered and Threatened Wildlife and Plants;
Regulations for Listing Endangered and Threatened Species and
Designating Critical Habitat, 87 FR 37757, June 24, 2022; Endangered
and Threatened Wildlife and Plants; Regulations for Listing Endangered
and Threatened Species and Designating Critical Habitat, 86 FR 59353,
October 27, 2021; Endangered and Threatened Wildlife and Plants;
Regulations for Listing Endangered and Threatened Species and
Designating Critical Habitat, 85 FR 81411, December 16, 2020;
Endangered and Threatened Wildlife and Plants; Regulations for Listing
Endangered and Threatened Species and Designating Critical Habitat, 85
FR 47333, August 5, 2020. The Services have determined that
extraordinary circumstances do not apply. For a detailed discussion of
the Services' NEPA analysis see National Environmental Policy Act in
the Required Determinations section, below, and the environmental
action statement and supporting categorical exclusion documentation
available at https://www.regulations.gov in Docket No. FWS-HQ-ES-2025-
0034.
Comment 11: One commenter stated that the Services' failure to
prepare an EIS violates NEPA, citing Sierra Club v. Marsh, 816 F.2d
1376, 1387 (9th Cir. 1987), as precedent. They emphasized that the
proposed rule would significantly affect the human environment by
weakening habitat protections for endangered species, which-in their
view-meets the threshold for requiring an EIS. Commenters noted that
Sierra Club v. Marsh established that agencies must assess
environmental impacts before making irreversible commitments, and that
deferring such analysis undermines NEPA's core purpose. They asserted
that the Services' reliance on categorical exclusions or claims of
nondiscretionary action does not meet the legal standard set by this
case.
Response: The Services respectfully disagree with the assertion
that the proposed rule constitutes an irreversible commitment of
resources or a major Federal action with significant environmental
effects. This rule does not, by itself, authorize any specific activity
or project. It does not alter the statutory requirements of the ESA,
including the obligation of Federal agencies to consult under section 7
and to avoid jeopardizing listed species or adversely modifying
critical habitat. The Services have determined that the rule qualifies
for a categorical exclusion and that no extraordinary circumstances
exist that would warrant preparation of an EIS.
Comment 12: Multiple commenters contended that the Services are
exercising discretion in proposing to rescind the definition of
``harm,'' and therefore cannot claim the action is nondiscretionary to
avoid NEPA review. They emphasized that interpreting statutory language
involves judgment, and that NEPA applies to discretionary actions with
potential environmental impacts.
Response: The Services acknowledge the comments asserting that the
proposed rule is a discretionary action. As the Services stated in the
proposed rule, we are undertaking this recission because we believe it
is compelled by the best reading of the statutory text. Accordingly, we
believe that ``the proposed agency action is a nondiscretionary action
with respect to which such agency does not have authority to take
environmental factors into consideration in determining whether to take
the proposed action'' (42 U.S.C. 4336(a)(4); see Dep't of Transp. v.
Pub. Citizen, 541 U.S. 752, 766-70 (2004)).
Moreover, commenters have cited no case, and the Services are aware
of none, standing for the proposition that NEPA review applies to
questions of pure legal interpretation. This would be a novel
interpretation that would dramatically expand the scope of NEPA--e.g.,
does it cover briefing in pending cases--and the Services will not,
without more, adopt this new proposition.
In the alternative, the Services applied a categorical exclusion to
comply with NEPA. The Services have determined that the rule qualifies
for a categorical exclusion because it is ``of an administrative,
financial, legal,
[[Page 43308]]
technical or procedural nature'' (43 CFR 46.210(i)). The Services have
also evaluated whether any extraordinary circumstances apply and have
concluded that none are present. Accordingly, the use of a categorical
exclusion is appropriate and consistent with NEPA and applicable agency
regulations and procedures. As the Supreme Court recently held in Seven
County Infrastructure Coal. v. Eagle County, Colorado, ``NEPA is a
purely procedural statute,'' ``not a substantive roadblock,'' and is an
area where ``substantial deference'' is due to ``agency choices so long
as they fall within a broad zone of reasonableness'' (605 U.S. 168,
173, 183 (2025); see id. at 182-83 (``When assessing significant
environmental effects and feasible alternatives for purposes of NEPA,
an agency will invariably make a series of fact-dependent, context-
specific, and policy-laden choices about the depth and breadth of its
inquiry . . . . Courts should afford substantial deference and should
not micromanage those agency choices so long as they fall within a
broad zone of reasonableness.'')). To the extent NEPA applies at all to
this question, the Services believe it is readily satisfied by the
existing categorical exclusion, which has, moreover, been repeatedly
applied, under the administrations of Presidents of both major
political parties, to rulemakings in this exact area, see responses to
Comments 9 and 10.
Comment 13: Multiple commenters stated that the Services'
rescission of the regulatory definition of ``harm'' is arbitrary and
capricious under the APA. Commenters asserted that the Services did not
provide a detailed justification for this reversal, nor did they
address the serious reliance interests built around the existing
definition. Commenters opined that rescinding the current definition of
``harm'' switches course on decades of regulatory and judicial
interpretation, including the Supreme Court's majority opinion in Sweet
Home. Commenters asserted that the proposal appears to be driven by
political motivations rather than sound reasoning or legal necessity,
and that it lacks the transparency and consistency required by the APA.
Response: The Services disagree with the characterization of this
rule as arbitrary and capricious under the APA. The rule is based on a
reevaluation of the statutory text of the ESA. The Services' rescission
of the regulatory definition of ``harm'' on the ground that it does not
reflect the best reading of the statutory text effectuates the
Executive Branch's obligation to ``take Care that the Laws be
faithfully executed'' (U.S. Const. art. II, section 3).
In proposing to rescind our regulatory definition of ``harm,'' the
Services noted that they were ``considering whether there are
legitimate reliance interests on the regulations under reexamination,''
but that ``because it is the President's duty to see that the laws are
faithfully executed, in all but the most unusual cases, we believe that
reliance interests likely will be outweighed by the constitutional
interest in repealing regulations that do not reflect the best reading
of the statute.'' 90 FR 16102, at 16104, (citing Dep't of Homeland Sec.
v. Regents of the Univ. of California, 591 U.S. 1, 30-32 (2020;
Regents)). We asked for comment on reliance interests specifically
(Id.). After reviewing comments we received on reliance interests, the
Services affirm that reliance interests are outweighed by the
constitutional interest in repealing regulations that do not reflect
the best reading of the statute.
Commenters raised four principal arguments regarding reliance
interests. The first is the reliance interests of those who provide
services related to mitigation. Commenters noted that if habitat
modi[filig]cation is no longer regulated under section 9 of the ESA,
then conservation-financing, species-mitigation, and habitat-
restoration markets, participation in which was once necessary to
obtain an incidental take permit under section 10 of the ESA, will be
eliminated. The appetite for these services among permittees will
disappear, leaving existing and pending offsets as essentially stranded
investments without a market. Commenters estimated approximately $483
million has been spent to date on species habitat and that the proposed
rescission alone has chilled an additional $300 million in planned
investments. Additionally, commenters stated the broader economic
impact of habitat-restoration activities is estimated to approach $10
billion overall and supports more than 53,000 jobs.
The Services recognize that a restoration and mitigation industry
has developed under the prior regulatory framework. Commenters are
correct that changes in the regulatory system may influence market
demand for certain mitigation efforts focused on habitat conservation
that were once necessary to obtain an incidental take permit under
section 10 of the ESA. As noted in the preamble, the magnitude of such
impacts is uncertain and not amenable to reliable quantification. What
is more, however, is that the services sold in these markets are
essentially regulatory rents. Where there is no justification in law
for imposing the relevant regulation, imposing such costs is inherently
illegitimate--and pleas to keep them, though cast in the form of
reliance interests, are essentially rent-seeking. The Services
therefore, in accord with Regents, has decided that ``reliance
interests in benefits [i.e., regulatory rents] that it views as
unlawful are entitled to no or diminished weight'' (591 U.S. at 32).
This reliance interest is addressed further at Comment 21.
The second, and closely related, class of reliance interests
articulated by comments is that of those who sell services related to
voluntary conservation programs, multi-year HCPs (including the
investment in planning for an HCP, the investment in implementing the
HCP, and land management practices, including voluntary conservation
measures. Commenters noted that, if habitat modification is no longer
regulated as ``take'' under section 9, then such services will no
longer be needed to obtain an incidental take permit under section 10,
and, as a result, their market will dry up.
The Services recognize that these industries had developed under
the prior regulatory framework. Commenters are correct that changes in
the regulatory system may influence market demand for certain
mitigation efforts focused on habitat conservation that were once
necessary to obtain an incidental take permit under section 10 of the
ESA. This revision is prospective only and does not affect permits that
have been granted as of the date this rule becomes final. That is, no
conservation agreement or habitat management plan that is in effect as
of the date of this rule becomes final will be affected by it. Going
forward, the Services intend to review each specific situation and
species' response to a proposed action to determine whether it may or
may not constitute ``harm'' to a species pursuant to section 3 of the
ESA. The Services will continue to work with applicants to ensure that
HCPs and CBAs are developed and permitted to address species-specific
impacts and that conservation and mitigation measures are commensurate
with the ESA's definition of ``take.'' This rulemaking does not
prohibit willing landowners from implementing conservation plans and
agreements that are more comprehensive than what sections 9 and 10 of
the ESA require. However, yet again, beyond situations in which private
persons voluntarily wish to purchase such mitigation services or need
to purchase them to satisfy other provisions of law, the
[[Page 43309]]
market for such services under sections 9 and 10 is a creation of
regulations that, in the view of the Services, are not authorized by
law--and that, as such, the services sold in these markets are
essentially regulatory rents. Where there is no justification in law
for imposing the relevant regulation, imposing such costs is inherently
illegitimate--and pleas to keep them, though cast in the form of
reliance interests, are essentially rent-seeking. The Services
therefore, in accord with Regents, has decided that ``reliance
interests in benefits [i.e., regulatory rents] that it views as
unlawful are entitled to no or diminished weight'' (591 U.S. at 32).
This reliance interest is addressed further at Comment 18.
The third main class of reliance interests articulated by
commenters is that of persons interested in the protection of wildlife
and habitats. Commenters noted that habitat protections were important
to ecological stability, ecosystem services, pollination, and clean
water; that aesthetic and recreational interests would be injured; that
the wildlife-watching industry would be damaged; and that the sport-
fishing industry would suffer.
The Services emphasize that the rescission of the regulatory
definition of ``harm'' does not diminish the importance of habitat loss
or degradation as a significant threat to many species listed under the
ESA. Habitat protection and conservation play a critical role in
species conservation and recovery efforts. Rather, this rule clarifies
that ``take'' applies only to actions that cause actual injury or death
to listed species. Habitat-related impacts are considered and addressed
under other provisions of the ESA, including section 7 consultations,
critical habitat designations, section 5 land acquisition authorities,
and cooperation with willing landowners through voluntary programs. The
Services will continue to use these tools to address threats to species
and to help chart the path to recovery and delisting. The rescission of
the definition of ``harm'' intends to align the implementation of the
Act with the single, best reading of the statute by removing habitat
modification or degradation as a form of prohibited ``take.'' This
rulemaking does not prohibit willing landowners from implementing
conservation plans and agreements that are more comprehensive than what
sections 9 and 10 of the ESA require. Beyond these responses, the
Services note that much of what such Commenters are casting as reliance
interests are really policy disagreements: Commenters wish that
Congress had, or the Administration would continue to, set the balance
between habitat preservation and the rights of landowners differently
than, in the Service's view, the Act in fact does. The Services are
determined, by contrast, to adhere to what is in their view the best
reading of the law.\10\ These comments are addressed further at
Comments 18 and 20.
---------------------------------------------------------------------------
\10\ One commenter also argued that animal rescue programs would
be increasingly burdened, because without habitat modification being
included in the definition of ``harm,'' more animals would be hurt
and need rescue. As for effects to Animal Rescue Programs,
rescinding the regulatory definition of ``harm'' will not negate the
fact that actions that directly result in injury or death to listed
wildlife still constitutes ``take'' under the ESA. This rule would
not result in the large-scale habitat changes that the commenter
asserts would result in higher instances of animal injury. As stated
above, habitat-related impacts will be addressed under other
provisions of the ESA.
---------------------------------------------------------------------------
The fourth main class of reliance interests articulated by comments
is that of State reliance interests: States wrote to claim that the
existing definition of harm bolsters state laws, or that states rely on
Federal definition of harm when state does not have a law on point, and
that in any event, the existence of the current federal definition of
harm has ensured consistency across state lines.
The Services respond that the rescission of the definition of
``harm'' in the Act does not alter the ability of States to implement
their own conservation programs or to regulate habitat impacts under
State law. Federal law and regulations create a legal floor (or minimum
standard). Congress preserved the authority of any state to enact and
enforce laws or regulations that provide species protections more
stringent than federal protections while maintaining the ESA's
preemption over any state law that would permit what is prohibited
under the ESA or prohibit what is authorized under the ESA (16 U.S.C.
1535(f)). Nor does this final rule affect the Services' commitment to
cooperative federalism and coordination with State agencies, which
takes place pursuant to section 6 cooperative agreements, section 10(a)
permits, and section 7 consultations, not through the implementation of
section 9 take prohibitions. For example, section 6 of the ESA permits
the Secretary of the Interior to ``enter into agreements with any State
for the administration and management of any area established for the
conservation of endangered species or threatened species'' (16 U.S.C.
1535(b)). The Secretary of the Interior may also enter into agreements
with States, that ``establish[ ] and maintain[ ] an adequate and active
program for the conservation of endangered species and threatened
species'' and plants (Id. at 1535(c)).\11\ This rule does not change
any species or critical habitat designations. The Services will
continue to work with States to support species recovery and habitat
protection through section 6 cooperative agreements, section 7
consultations, and other collaborative mechanisms. Beyond these
responses, though, the Services note that much of what these state
commenters are casting as reliance interests are really policy
disagreements: These states wish that Congress had, or the
Administration would continue to, set the federal floor differently
than, in the Service's view, the Act in fact does. The Services are
determined, by contrast, to adhere to what is in their view the best
reading of the law. Indeed, in this particular context, federalism
concerns counsel heavily in favor of rejecting these states' purported
reliance interests, for if the federal government were to maintain the
elevated federal floor these states request (and which is not
authorized by the best reading of the statute), other states would not
have any freedom to try other approaches. These comments are addressed
further at Comment 16.
---------------------------------------------------------------------------
\11\ The Services note, again, that the explicit provisions for
habitat protection in so many other parts of the ESA reinforces
their conviction that the portion of section 9 forbidding ``take''
was not meant to address habitat modification.
---------------------------------------------------------------------------
To return to the commenters' overall point, the Services hold that
reliance on an unlawful regulatory definition is unjustified because
the regulatory certainty provided by an unlawful definition is
illegitimate. Thus, the Services do not believe that these reliance
interests overcome the executive branch's important interest in
maintaining and enforcing only lawful regulations. The Services believe
that a full rescission, without the implementation of a replacement
definition at this time, best achieves this interest. The Services
understand that at least one court has stated that ``an agency must
always consider serious reliance interests, even when it concludes an
earlier policy was unlawful,'' but that the agency may determine that
such reliance interests ``are entitled to no or diminished weight''
because of the unlawfulness of the earlier policy (A.C.R. v. Noem, 809
F. Supp. 3d 103, 122 (E.D.N.Y. 2025)). The Services have considered the
reliance interests and determined that they are entitled to no or
diminished weight.
The Services further acknowledge the well-established principle
that when an agency changes position, ``provid[ing]
[[Page 43310]]
reasoned explanation'' has required that the agency ``display awareness
that it is changing position'' and ``show that there are good reasons
for the new policy'' (FCC v. Fox Television Stations, Inc., 556 U.S.
502, 515 (2009)). We have satisfied that requirement in making this
final decision. In the Services' proposed rule, the Services included a
discussion of the statutory framework, Sweet Home, and our rationale
for concluding that the definition of ``harm'' does not support the
best meaning of the Act, the specific proposed regulation change, and
asked for public comment. We have now reviewed the public comments and
in this final rule have provided responses to unique, substantive
comments. Thus, the process that we used to promulgate this rule
complied with the applicable requirements of the APA.
Comment 14: Multiple commenters asserted that the Services'
proposal lacks the reasoned analysis required by the APA, as
articulated in Motor Vehicle Manufacturers Ass'n v. State Farm Mutual
Automobile Ins. Co., 463 U.S. 29 (1983; State Farm). They assert that
the Services failed to examine relevant information or provide a
satisfactory explanation for abandoning the longstanding definition of
``harm.'' Commenters stated that the Services did not assess the
impacts of the change on species conservation, habitat protection, or
regulatory programs such as ITPs and HCPs. Instead, they assert that
proposal relies on a narrow legal rationale and a misreading of recent
case law, without addressing the statutory purpose of the ESA or the
practical consequences of the change. Commenters concluded that this
failure to consider important aspects of the problem and to offer a
rational connection between the facts found and the choice made renders
the proposal legally deficient under State Farm.
Response: The Services respectfully disagree that the proposed rule
lacks the reasoned analysis required under the APA. To begin,
commenters appear to misapprehend the nature of the arbitrary-and-
capricious standard. That standard simply ``requires that agency action
be reasonable and reasonably explained'' (FCC v. Prometheus Radio
Project, 592 U.S. 414, 423 (2021)). ``Judicial review under that
standard is deferential'': ``A court simply ensures that the agency has
acted within a zone of reasonableness and, in particular, has
reasonably considered the relevant issues and reasonably explained the
decision'' (Id.). In accordance with State Farm, the Services have
provided a reasoned explanation for the proposed rescission of the
regulatory definition of ``harm.'' The Services explained that they
were rescinding the regulatory definition of ``harm'' because it does
not reflect the best reading of the ESA. This includes a detailed
analysis of the statutory text, structure, and purpose of the ESA, as
well as the legal implications of the Supreme Court's decision in Loper
Bright. That is a complete explanation that satisfies State Farm. The
Services have also now considered public comments received. This rule
reflects the agency's view of the best interpretation of the ESA, which
does not permit agencies to factor in habitat modification or
degradation in the context of section 9 prohibited take. The Services
have addressed reliance interests, including reliance interests of
those involved in regulatory programs such as ITPs and HCPs, throughout
responses to comments, including the Services' responses to Comments 5,
13, 20, and 23. The Services have satisfied their obligations under the
arbitrary-and-capricious standard and State Farm.
Comment 15: Multiple commenters contended that the Services must
conduct intraservice consultation under section 7 of the ESA before
finalizing the proposed rescission of the definition of ``harm.'' They
asserted that the action is not exempt from consultation requirements
and may adversely affect numerous listed species, particularly those
species where the primary threat is habitat loss. Commenters cited the
Endangered Species Consultation Handbook and joint regulations, which
require consultation for agency actions, including rulemakings, that
may affect listed species or critical habitat. They asserted that the
Services must prepare a biological opinion evaluating species-specific
impacts and ensure the action does not jeopardize species' continued
existence.
Response: As stated in the Required Determinations section, below,
the Services are acting in their unique statutory role as
administrators of the Act and are engaged in a legal exercise of
interpreting the standards of the Act. The Services' administration of
the Act is not in itself subject to the Act's provisions, including
section 7(a)(2). The Services have a historical practice of issuing
their general regulations under the ESA without undertaking section 7
consultation (see Endangered Species Act in the Required Determinations
section below). This practice accords with the plain language,
structure, and purposes of the ESA, which does not place a consultation
obligation on the Services' administration of the Act. Furthermore,
from a pragmatic point of view, the proposed consultation requirement
would be impracticably elaborate, even nonsensical. Were commenters
correct, the Services would be required to conduct an analysis as to
every single endangered species on the list and speculate as to how the
new legal definition would produce different consequences as to each--
as section 7 still mandated habitat protection through an entirely
different regime that this rule does not touch, see the Services'
response to Comment 3. Little wonder, then, that such a recursive and
reticulated procedure was not undertaken when this rule was promulgated
in 1975 and has never been the Services' practice when it comes to
changes to the ESA implementing regulations themselves.
Comment 16: Multiple commenters asserted that the proposed rule
would create significant inconsistencies with existing State
regulations and undermine State-led conservation efforts. Many states,
such as New Mexico and Oregon, have developed their own definitions of
``take'' or ``harm'' that include habitat modification as a key
component. Commenters opined that the recission would weaken State
protections, disrupt established conservation frameworks, and
jeopardize long-standing agreements. Commenters emphasized that this
change would introduce regulatory uncertainty, delay conservation
planning, and reduce the effectiveness of State investments in species
conservation and habitat protection.
Response: The rescission of the definition of ``harm'' in the Act
does not alter the ability of States to implement their own
conservation programs or to regulate habitat impacts under State law.
Federal law and regulations create a legal floor (or minimum
standards); States may legislate and regulate over and above what
Federal law or regulations permit.
Under the ESA's section 6 ``conflict between Federal and State
laws'' clause, Congress preserved the authority of any state to enact
and enforce laws or regulations that provide species protections more
stringent than federal protections while maintaining the ESA's
preemption over any state law that would permit what is prohibited
under the ESA or prohibit what is authorized under the ESA (16 U.S.C.
1535(f)). Where a state lists a species or designates habitat
protections under a state endangered species law, such as California's
Endangered Species Act, the state protections will apply to those state
listed species as long as the state laws do not conflict with the ESA.
[[Page 43311]]
Consequently, species listed under state laws will retain full
protections under those laws and will remain unaffected by the removal
of an unnecessary federal regulatory layer of protections. For state
and local governments, businesses, organizations, and individuals, the
ESA's cooperative federalism structure provides durable legal security
for long-term reliance interests that will not be upset by the removal
of an unnecessary federal ESA regulation. For example, habitat
mitigation instruments developed to satisfy both federal ESA
requirements and state law mitigation standards create layered
contractual and real estate obligations that persist regardless of
federal ESA regulation. Conservation obligations that run with the land
or are attached to mitigation instruments will remain enforceable
against subsequent landowners, thereby preventing disruption to markets
and organizations that have an interest in ESA protections.
Nor does this final rule affect the Services' commitment to
cooperative federalism and coordination with State agencies, which
takes place pursuant to section 6 cooperative agreements, section 10(a)
permits, and section 7 consultations, not through the implementation of
section 9 take prohibitions. For example, section 6 of the ESA permits
the Secretary of the Interior to ``enter into agreements with any State
for the administration and management of any area established for the
conservation of endangered species or threatened species'' (16 U.S.C.
1535(b)). The Secretary of the Interior may also enter into agreements
with States, that ``establish[] and maintain[] an adequate and active
program for the conservation of endangered species and threatened
species'' and plants (Id. at 1535(c)).\12\ This rule does not change
any species or critical habitat designations. The Services will
continue to work with States to support species recovery and habitat
protection through section 6 cooperative agreements, section 7
consultations, and other collaborative mechanisms. Moreover, other
provisions of the ESA such as sections 5 and 7 are specifically
designed to address habitat conservation will remain unchanged.
---------------------------------------------------------------------------
\12\ The Services note, again, that the explicit provisions for
habitat protection in so many other parts of the ESA reinforces its
conviction that the portion of Section 7 forbidding ``take'' was not
meant to address habitat modification.
---------------------------------------------------------------------------
The Services acknowledge that the States have asserted that this
rulemaking will result in an increased financial and administrative
burden. However, States continuing to implement laws and policies that
go beyond that which is required by the ESA is not germane to this
rulemaking. States may make a policy decision to discontinue
implementing more stringent species protections in order to relieve
themselves of this additional burden. Alternatively, states may choose
to bear the increased costs that go along with their preferred policy
preferences. The Services, however, reject the invitation to ignore the
best meaning of the federal statute passed by Congress (and to impose
increased costs and burdens on other states and individual citizens),
in order to accommodate the policy preferences of this minority of
states.
Comment 17: Commenters emphasize that the rule fails to account for
impacts to ecosystem services (tangible benefits of natural habitats to
human communities), existence values (intangible value placed on
knowing a species or habitat exists), option values (retaining ability
to use a resource in the future), and the cost of recovery (monetary
cost of recovering species or habitats). They also state that habitat
degradation would lead to lost ecosystem services such as pollination,
water filtration, carbon sequestration, and flood prevention. They
state that healthy habitats increase recreational opportunities,
thereby supporting local economies. The commenters argue that these
effects should be included in the analysis.
Response: The Services emphasize that the rescission of the
regulatory definition of ``harm'' does not diminish the importance of
habitat conservation under the ESA. Habitat-related impacts will be
addressed under other provisions of the ESA--as was intended--including
through section 7 consultations and critical habitat designations. The
Services will continue to use these tools to conserve habitat for
listed species and as such will continue to address the importance of
ecosystem services, and other issues raised by the commenters. The
Services have fulfilled their requirements under State Farm, Department
of Homeland Security v. Regents, and all other applicable law (see the
Services' Responses to Comments 13, 15 and 16).
Comment 18: Some commenters stated that significant public
investments--Federal, State, local, and Tribal--have been made in
conservation agreements and habitat management plans that are based the
long-standing interpretation of ``harm'' under the ESA, which includes
habitat modification or degradation. A change in this interpretation
threatens to invalidate or delay these efforts, putting at risk
financial resources, staff positions, and political commitments. The
resulting regulatory uncertainty could lead to the discontinuation of
landowner support programs and a reduction in service levels,
undermining the current and anticipated infrastructure built to support
species recovery.
Commenters stated these investments were designed to meet the needs
of permittees operating under the current ESA framework. If habitat
modification is no longer regulated, the market for conservation
offsets collapses, leaving existing and pending investments stranded.
This shift would not only jeopardize ongoing recovery efforts critical
to delisting species and supporting industries like commercial
fisheries, but it would also erode the economic and environmental
resilience built through decades of coordinated public and private
restoration work. The proposed policy change represents a sudden and
destabilizing departure from decades of consistent ESA implementation.
Commenters state this change could potentially lead to increased
habitat destruction, jeopardizing both Tribal and commercial use of
natural resources. The resulting confusion and regulatory gaps would
place additional economic burdens on communities that depend on
sustainable natural resources.
Response: This comment is incorrect in asserting that habitat
modification is no longer regulated. This rulemaking does not change
any species classifications or critical habitat designations. The
Services will continue to work with States to support species recovery
and habitat protection through section 6 cooperative agreements,
section 7 consultations, and other collaborative mechanisms.
As stated in the response to comment 5, the rescission of the
regulatory definition of ``harm'' does not eliminate the Services'
ability to issue ITPs or EOS permits where there is an affirmative
conduct intentionally directed against a particular animal or animals.
Additionally, the Services will continue to work with applicants to
ensure that HCPs and CBAs are developed and permitted to address
species-specific impacts and that the conservation and mitigation
measures are commensurate with the ESA's definition of ``take.''
This revision is prospective only and does not affect permits that
have been granted as of the date this rule becomes final. That is, no
conservation agreements and habitat management plans that are in effect
as of the date of this rule becomes final are affected. As noted above,
such agreements and plans were but one input among many into the
ultimate decision whether and how
[[Page 43312]]
to authorize a given action (Cf. Seven Cnty. Infrastructure Coal. v.
Eagle Cnty., Colorado, 605 U.S. 168, 180 (2025)). Disturbing the
finality of the overall permitting decision would be highly disruptive
to settled expectations, as well as immensely time-consuming and
difficult, in return for at most speculative gains. It would also
contradict the assurance of repose given to permittees in regulations
governing HCPs (see 50 CFR 17.22(b)(5), 17.32(b)(5); response to
Comment 5, above). Going forward, the Services intend to review each
specific situation and species response to the action to determine
whether it may or may not constitute ``harm'' to a species pursuant to
section 3 of the ESA. The Services will continue to work with
applicants to ensure that HCPs and CBAs are developed and permitted to
address species-specific impacts and that conservation and mitigation
measures are commensurate with the ESA's definition of ``take.'' This
rulemaking does not prohibit willing landowners from implementing
conservation plans and agreements that are more comprehensive than what
sections 9 and 10 of the ESA require.
However, beyond situations in which private persons voluntarily
wish to purchase such mitigation services or need to purchase them in
order to comply with other provisions of law, the market for such
services under ESA sections 9 and 10 is a creation of regulations that,
in the view of the Services, are not authorized by the Act. Where there
is no justification in law for imposing the relevant regulation,
imposing such costs is inherently illegitimate--and pleas to keep them,
though cast in the form of reliance interests, are essentially
regulatory rent-seeking. The Services therefore, in accord with
Regents, has decided that ``reliance interests in benefits [i.e.,
regulatory rents] that it views as unlawful are entitled to no or
diminished weight'' (591 U.S. at 32).
Comment 19: Several commenters stated that Tribal activities
associated with the environment and natural resources are not merely
economic activities but are a deeply rooted cultural, spiritual, and
subsistence practice. For example, treaty fishing rights are essential
to preserving their way of life, with nearly every household
participating in the fish harvest. Communities rely on salmon and other
species for food, income, and cultural continuity. Any weakening of ESA
protections--particularly the definition of ``harm''--would
significantly threaten Tribal abilities to maintain these practices,
leading to widespread negative impacts on their economy and social
fabric.
Response: The Services acknowledge the sovereign status of Tribal
Nations and recognize that Tribal stewardship of natural resources is
deeply rooted in cultural, spiritual, and subsistence traditions that
are integral to Tribal identity and self-determination. The Services
also reaffirm their commitment to honoring tribal treaty rights in
full. However, the requirements imposed by the ESA are separate and
distinct from treaty rights. When it comes to the ESA, the Services
acknowledge the significance of the policy interests articulated by the
tribes, but emphasize that this final rule is a legal correction to
align the regulatory definition of ``harm'' with the single, best
reading of the ESA's statutory text. This action does not change any
species classifications or critical habitat designations and ensures
that the Services' regulations are legally sound and align with the
best reading of the ESA. The ESA, properly understood, addresses
habitat-related impacts through other provisions of the ESA, including
section 7 consultations and section 5 land acquisition authorities. The
Services remain committed to meaningful coordination and consultation
with Tribal Nations to ensure that their voices, knowledge, and
sovereignty are respected in the conservation and recovery of
endangered and threatened species.
Comment 20: Several commenters highlighted the substantial economic
value of healthy habitats and native species, particularly for outdoor
recreation, tourism, and biodiversity-dependent industries. They warned
that weakening protections--such as redefining ``harm'' under the
Endangered Species Act--could lead to wildlife declines, increased
extinction risks, and economic losses for communities reliant on
natural resources. Commenters also criticized the proposed rule as
misleading, arguing it overlooks the effects to small businesses that
benefit from strong wildlife protections, such as eco-tourism
businesses, Tribal communities, research institutions, and conservation
organizations. They called for a thorough economic impact analysis that
includes all affected stakeholders, not just development interests.
Response: The Services disagree that the entities mentioned by the
commenters should be included in an economic impact analysis because
they are not directly regulated entities for the purpose of the
Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.). The businesses
listed by the commenters are not subject to the requirements of the
rule and are only indirectly affected. Only directly regulated entities
are required to be considered under the RFA. The extent to which any
impacts assessed are not limited to development interests as the
commenters suggest.
The Services emphasize that the rescission of the regulatory
definition of ``harm'' does not diminish the importance of habitat loss
or degradation as a significant threat to many species listed under the
ESA. Habitat protection and conservation play a critical role in
species conservation and recovery efforts. Rather, this rule clarifies
that ``take'' applies only to actions that cause actual injury or death
to listed species. Habitat-related impacts are considered and addressed
under other provisions of the ESA, including section 7 consultations,
critical habitat designations, section 5 land acquisition authorities,
and cooperation with willing landowners through voluntary programs. The
Services will continue to use these tools to address threats to species
and to help chart the path to recovery and delisting. The rescission of
the definition of ``harm'' intends to align the implementation of the
Act with the single, best reading of the statute by removing habitat
modification or degradation as a form of prohibited ``take.'' This
rulemaking does not prohibit willing landowners from implementing
conservation plans and agreements that are more comprehensive than what
sections 9 and 10 of the ESA require. The Services have fulfilled their
requirements under State Farm, Department of Homeland Security v.
Regents, and all other applicable law. See the Services' Responses to
Comments 13, 15, and 16.
Comment 21: Commenters emphasized that the existing definition of
``harm'' has supported the growth of a multi-billion-dollar mitigation
and restoration industry. They cited investments in ecological
restoration services, mitigation banking, and conservation offsets,
warning that rescinding the definition could strand existing
investments, reduce demand for offsets, and diminish compliance
options. They argued that such changes would stall new projects,
eliminate markets built around habitat-based regulation, and weaken
both environmental outcomes and related economic activity.
Response: The Services recognize that a restoration and mitigation
industry has developed under the prior regulatory framework. Commenters
are correct that changes in regulatory drivers may influence market
demand
[[Page 43313]]
for certain mitigation efforts focused on habitat conservation that
were once necessary to obtain an incidental take permit under section
10 of the ESA. As noted in the preamble, the magnitude of such impacts
is uncertain and not amenable to reliable quantification. Also, as
noted above in response to Comment 16, state-law regimes remain in
place, and, where applicable, will still support this industry. This
partially mitigates the impact of this rule change on the reliance
interests addressed by these commenters. However, such markets are
essentially regulatory rents. The best reading of sections 9 and 10 of
the Act provide no justification for imposing these costs. As such,
imposing them is inherently illegitimate--and pleas to keep them,
though cast in the form of reliance interests, are essentially rent-
seeking. The Services therefore, in accord with Regents, has decided
that ``reliance interests in benefits [i.e., regulatory rents] that it
views as unlawful are entitled to no or diminished weight'' (591 U.S.
at 32).
The Services note again that this rulemaking does not change the
regulatory regimes for species recovery and habitat protection through
section 4 critical habitat designations, section 5 land acquisition
authorities, section 6 cooperative agreements, section 7 consultations,
and other collaborative mechanisms.
In other words, conservation outcomes will continue through other
legally appropriate mechanisms. Additionally, this rulemaking does not
prohibit willing landowners from implementing conservation plans and
agreements that are more comprehensive than what sections 9 and 10 of
the ESA require.
This revision is prospective only and does not affect permits that
have been granted as of the date this rule becomes final. That is, no
conservation agreements and habitat management plans that are in effect
as of the date of this rule becomes final are affected.
By rescinding the regulatory definition of ``harm,'' the Services
are restoring clarity to the statutory framework by aligning the
definition of ``take'' with the single, best reading of the statute.
The Services are not taking this action on the basis of any potential
economic impacts. The Services have fulfilled their requirements under
State Farm, Department of Homeland Security v. Regents, and all other
applicable law. See the Services' Responses to Comments 15 and 16.
Comment 22: Several commenters stated that reducing habitat
protections now could increase long-term costs to government and
taxpayers. They stressed that preventive measures--such as conserving
intact habitat--are generally more cost-effective than emergency
interventions or species recovery programs after populations have
declined. In their view, the proposed rule shifts costs into the future
by lowering preventive protections today.
Response: The Services acknowledge the general economic principle
that preventive action often reduces the need for more expensive
recovery measures later. Maintaining habitat quality typically requires
fewer resources than restoring degraded ecosystems or supporting
species once they are at risk of extinction. While the Services are not
the sole implementers of habitat protection, we work closely with
Federal, State, Tribal, local, and private partners to support
proactive conservation efforts that reduce long-term risks and costs,
and we remain committed to leveraging these partnerships to achieve
shared conservation outcomes under the ESA.
The Services are restoring clarity to the statutory framework by
aligning the definition of ``take'' with the single, best reading of
the statute. The Services note that other statutory tools, such as
section 5 land acquisition and section 7 consultations, remain in place
to support preventive conservation.
Comment 23: Commenters stated that the proposed rule lacks any
quantitative economic analysis. They emphasized that no cost-benefit
assessment is presented, nor are there empirical estimates of
compliance savings, industry impacts, or foregone ecological and social
benefits. They argued that this absence undermines transparency and
hinders evaluation of trade-offs.
Response: The Services acknowledge that the proposed rule did not
include a formal quantitative cost-benefit analysis. The magnitude of
many potential effects--such as reliance investments-and ecological
outcomes--is unknown and not amenable to reliable monetization with
current data. Rescinding the definition of ``harm'' is expected to
reduce certain regulatory burdens, and the scale of those savings was
determined to be economically significant. A Regulatory Impact Analysis
was conducted, and the Services estimated annualized quantified cost
savings of $361.3 million at a 3 percent discount rate and $521.0
million at a 7 percent discount rate, reflecting reduced planning,
negotiation, mitigation, and implementation costs for HCPs. A
regulatory flexibility analysis is not required if an agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. After conducting both an initial
regulatory flexibility analysis and a final regulatory flexibility
analysis, the Services certify that this rule will not have a
significant economic effect on a substantial number of small entities.
Comment 24: Multiple commenters argued that the proposed rescission
of the regulatory definition of ``harm'' raises constitutional concerns
related to the separation of powers and the faithful execution of laws.
They emphasized that under Article I of the U.S. Constitution, Congress
holds the authority to enact statutes such as the ESA, while Article II
obligates the executive branch to faithfully execute those laws.
Commenters asserted that removing the definition of ``harm'' does not
relieve the Services of their duty to enforce the ESA as written by
Congress, including its provisions for protecting both species and
their habitats. They expressed concern that the proposed rule appears
to disregard longstanding statutory interpretations and judicial
precedent, potentially undermining the legislative intent behind the
ESA. Some commenters argued that eliminating the definition of ``harm''
could weaken key regulatory mechanisms, such as HCPs and section 7
consultations, thereby reducing the effectiveness of the ESA and
violating the executive branch's constitutional responsibility. Others
suggested that the rule may overstep the authority granted to agencies
under Article II by attempting to reinterpret or narrow statutory terms
that Congress has already defined. Overall, commenters maintained that
the Services must uphold their constitutional obligation to implement
the ESA in a manner consistent with congressional intent and judicial
interpretation, and that the proposed rule risks disrupting this
balance of powers.
Response: The Services' current regulatory definition of harm does
not accord with the single, best meaning of the text. Implementing the
text as written by Congress is exactly how the executive branch should
be respecting separation of powers in this instance. Nothing in Loper
Bright prohibits the executive branch from reevaluating prior statutory
interpretations to ensure compliance with the statute's text, and,
given the opinion's insistence on applying the best meaning of the text
of a law, it would be shocking if it did so. This rule rescinds the
regulatory definition of ``harm'' on the grounds that it does not
reflect the best reading of the statutory text, thereby effectuating
the executive branch's obligation to
[[Page 43314]]
``take Care that the Laws be faithfully executed'' (U.S. Const. art.
II, section 3.). This recission is fully consistent with Congress's
definition of ``take'' in section 3 and with the dissent in Sweet Home.
We are executing the law as written by Congress by addressing habitat-
related impacts through other provisions of the ESA, including section
7 consultations and section 5 land acquisition authorities. See our
response to Comment 20 for the Services' discussion on potential
impacts to HCPs.
Comment 25: Several commenters opposed the rescission of the
regulatory definition of ``harm'' and cited a series of judicial
decisions-- Palila v. Hawaii Dep't of Land & Nat. Res., 471 F. Supp.
985 (D. Haw. 1979); Palila v. Hawaii, 639 F.2d 495 (9th Cir. 1981;
Palila), Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991; Yeutter),
Cascadia Wildlands v. Scott Timber Co., 618 F. Supp. 3d 1038 (D. Or.
2022), aff'd, 105 F.4th 1144 (9th Cir. 2024; Cascadia Wildlands),
Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994; Pacific
Rivers Council), and Tennessee Valley Authority v. Hill, 437 U.S. 153
(1978; TVA v. Hill)--as evidence that the ESA has long been interpreted
to prohibit habitat destruction that impairs essential behavioral
patterns of listed species. These commenters stated that the courts in
these cases recognized that habitat modification can constitute a
prohibited ``take'' under the ESA, and that rescinding the regulatory
definition of ``harm'' would be inconsistent with this precedent and
undermine the ESA's conservation mandate.
Response: We acknowledge the cited decisions. However, these cases
do not require the continued use of the regulatory definition of
``harm''.
To begin, two of these cases do not even address the statutory-
construction question at the heart of this rulemaking. Yeutter mentions
the word ``harm'' only in the facts section, see 926 F.2d at 433 & n.2,
while the word ``harm'' does not appear in Pacific Rivers Council at
all. Three other decisions appear only to apply the regulatory
definition of ``harm,'' not to answer the question of whether that
regulatory definition is a correct construction of the statutory text.
See Cascadia Wildlands, 618 F. Supp. 3d. at 1067 (reciting the
statutory and regulatory definitions, noting the holding of Sweet Home,
and applying those definitions); 105 F.4th at 1156-57 (similar);
Palila, 471 F. Supp. at 995. To the extent the remaining decision--the
Ninth Circuit's Palila decision--does address the question of whether
the statutory ``take'' (via ``harm'') correctly includes habitat
destruction, the analysis is extremely cursory and uses outdated modes
of analysis: It addresses the merits of this question in one, spare,
four-sentence paragraph, which relied primarily on ``legislative
history'' (639 F.2d at 497-98).\13\ The bottom line is that the
Services do not find these decisions persuasive.
---------------------------------------------------------------------------
\13\ That the named plaintiff in Palila is a species of bird
also indicates to the Services that its mode of jurisprudence would
not accord with best modern practices.
---------------------------------------------------------------------------
Turning to the two Supreme Court cases cited, TVA v. Hill is not on
point. Its reflections on legislative history and Congressional purpose
are interesting, and taken by the Services for what they are worth. But
Hill does not address or answer the statutory-interpretation question
at answer in this rulemaking. The case that does is Sweet Home. The
majority's holding in that case, applying Chevron, is that the
construction then proffered by the Services was ``reasonable.'' For the
reasons explained pervasively in this final rule and in the proposed
rule, the Services are persuaded instead by Justice Scalia's analysis
as to what the correct construction of the statutory text is.
We recognize that the Supreme Court held in Loper Bright that its
``prior cases that relied on the Chevron framework . . . are still
subject to statutory stare decisis'' (603 U.S. at 412). But under the
then-prevailing Chevron framework, Sweet Home held only that the
existing regulation is a permissible reading of the ESA, not the only
possible such reading. Our rescission of the regulatory definition on
the grounds that it does not reflect the best reading of the statutory
text thus is fully consistent with Sweet Home.
Accordingly, while these decisions illustrate how the prior
regulatory definition of ``harm'' was applied in specific factual
contexts, they did not determine that the regulatory definition of harm
constituted the single best reading of the ESA and thus do not preclude
the Services from rescinding that definition in favor of a reading that
better aligns with the statutory text.
Comment 26: Some commenters cited Skidmore v. Swift & Co., 323 U.S.
134 (1944; Skidmore), and Kimble v. Marvel Entertainment, LLC, 576 U.S.
446 (2015; Kimble), to argue that the Services should retain the
regulatory definition of ``harm'' out of respect for longstanding
agency interpretations and the principle of stare decisis. These
commenters contended that even if Chevron deference no longer applies,
the Services' decades-long interpretation of ``harm'' should still be
afforded weight under Skidmore, and that the principle of stare
decisis, as reaffirmed in Kimble, counsels against rescinding a settled
regulatory interpretation absent a compelling justification.
Response: The Services recognize the importance of consistency and
stability in interpretation of the ESA; however, neither case compels
the retention of the regulatory definition of ``harm,'' which runs
contrary to the text and structure of the ESA.
Under Skidmore, agency interpretations may be entitled to respect
by courts to the extent they have the ``power to persuade.'' It is
true, furthermore, that courts have opined that ``respect'' has been
``especially warranted when an Executive Branch interpretation was
issued roughly contemporaneously with enactment of the statute and
remained consistent over time'' (Loper Bright, 603 U.S. at 386).
```Respect,' though, was just that'' (Id.). A court should never afford
respect to an agency interpretation--under Skidmore or any other
precedent--when that interpretation runs contrary to the text and
structure of the statutory language, as Justice Scalia's Sweet Home
dissent observed. In this rulemaking, the Services have determined that
the prior regulatory definition of ``harm'' does not reflect the best
meaning of the statutory text. Moreover, the Services are, to begin,
not a court, and thus Skidmore deference is arguably inapposite.
As for Kimble, it is inapt, because it addresses the considerations
that courts must consider when repudiating their own prior precedents
regarding how to interpret a statute, i.e., what the best reading of
the statute is. By contrast, the idea of applying stare decisis to
agency action is inconsistent with a core tenet of administrative law:
agencies may change positions. See, e.g., FDA v. Wages & White Lion
Investments, L.L.C., 604 U.S. 542, 569-70 (2025). In other words, there
is no such thing as stare decisis for agency interpretation. Agencies
are permitted to revise or rescind prior interpretations when warranted
by changes in law, policy, or interpretive standards.
Accordingly, while the Services respect the values of consistency
and institutional experience, those values do not override the
obligation to interpret the ESA in accordance with its best reading.
Required Determinations
Regulatory Planning and Review--Executive Orders 12866 and 13563
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) in the Office
[[Page 43315]]
of Management and Budget will review all significant rules. OIRA has
determined that this rule is significant.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the Nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
E.O. 13563 directs agencies to consider regulatory approaches that
reduce burdens and maintain flexibility and freedom of choice for the
public where these approaches are relevant, feasible, and consistent
with regulatory objectives. E.O. 13563 emphasizes further that
regulations must be based on the best available science and that the
rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this final rule in a manner
consistent with these requirements.
Unleashing Prosperity Through Deregulation--E.O. 14192
This final rule is an E.O. 14192 deregulatory action.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; title II
of Pub. L. 104-121, March 29, 1996), whenever a Federal agency is
required to publish a notice of rulemaking for any proposed or final
rule, it must prepare, and make available for public comment, a
regulatory flexibility analysis that describes the effect of the rule
on small entities (i.e., small businesses, small organizations, and
small government jurisdictions). However, no regulatory flexibility
analysis is required if the head of an agency, or that person's
designee, certifies that the rule will not have a significant economic
impact on a substantial number of small entities. SBREFA amended the
RFA to require Federal agencies to provide a statement of the factual
basis for certifying that a rule will not have a significant economic
impact on a substantial number of small entities. We certify that this
rule will not have a significant economic impact on a substantial
number of small entities. The following discussion explains our
rationale.
This final rule is deregulatory and is generally expected to
benefit small entities regulated by the ESA, primarily those entities
that voluntarily seek and are subsequently issued section 10(a)
permits. To the extent that fewer future ESA section 10(a) permits are
issued, lower administrative and recordkeeping costs are likely.
Additionally, to the extent that future permits are not issued or are
issued in a more limited capacity, some portion of otherwise-affected
small entities would benefit by avoiding implementation costs.
Furthermore, dependent on the extent to which a reduced number of
section 10(a) permits are issued, a reduction in activities on the part
of entities engaged in restoration and habitat protection activities
could result. However, we do not expect this potential effect to rise
to the level of a significant economic effect nor affect a substantial
number of small entities. Therefore, we certify that this rule will not
have a significant economic effect on a substantial number of small
entities.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(a) On the basis of information presented under Regulatory
Flexibility Act, above, this rule will not ``significantly or
uniquely'' affect small governments. We have determined and certify
pursuant to the Unfunded Mandates Reform Act that this final rule will
not impose a cost of $100 million or more in any given year on local or
State governments or private entities. A small government agency plan
is not required. As explained above, small governments will not be
affected because the final rule will not place additional requirements
on any city, county, or other local municipalities.
(b) This rule will not produce a Federal mandate on State, local,
or Tribal governments or the private sector of $100 million or greater
in any year; that is, this final rule is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act. This final rule will
impose no obligations on State, local, or Tribal governments.
Takings--E.O. 12630
In accordance with E.O. 12630, this rule will not have significant
takings implications. This rule does not pertain to ``taking'' of
private property interests, nor will it directly affect private
property. A takings implication assessment is not required because this
final rule (1) will not effectively compel a property owner to suffer a
physical invasion of property and (2) will not deny all economically
beneficial or productive use of the land or aquatic resources. This
rule substantially advances a legitimate government interest
(eliminating regulatory definitions that do not align with the best
meaning of the ESA) and will not present a barrier to all reasonable
and expected beneficial use of private property.
Federalism--E.O. 13132
In accordance with E.O. 13132, we have considered whether this rule
will have significant federalism effects and have determined that a
federalism summary impact statement is not required. This rule rescinds
the regulatory definition of ``harm'' and will not have substantial
direct effects on the States, on the relationship between the Federal
Government and the States, or on the distribution of power and
responsibilities among the various levels of government.
Civil Justice Reform--E.O. 12988
This final rule does not unduly burden the judicial system and
meets the applicable standards provided in sections 3(a) and 3(b)(2) of
E.O. 12988. This final rule rescinds the regulatory definition of
``harm''.
Government-to-Government Relationship With Tribes--E.O. 13175
In accordance with the President's memorandum of April 29, 1994
(``Government-to-Government Relations With Native American Tribal
Governments;'' 59 FR 22951, May 4, 1994), E.O. 13175 (``Consultation
and Coordination with Indian Tribal Governments''), the President's
memorandum of November 30, 2022 (``Uniform Standards for Tribal
Consultation;'' 87 FR 74479, December 5, 2022), and the Department of
the Interior's manual at 512 DM 2, and the National Oceanic and
Atmospheric Administration (NOAA) Administrative Order (NAO) 218-8
(April 2012), we considered the possible effects of this rule on
federally recognized Tribes. After the opening of the public comment
period, we received multiple requests for coordination or Government-
to-Government consultation from multiple Tribes: Cheyenne River Sioux
Tribe, Great Lakes Indian Fish and Wildlife Commission, Pueblo of San
Felipe, Fond du Lac Band of Lake Superior Chippewa, Swinomish Indian
Tribal Community, Fallon Paiute Shoshone Tribe, Lower Elwha Klallam
Tribe, Quinault Indian Nation, Confederated Tribes and Bands of the
Yakama Nation, Cowlitz Indian Tribe, and Bishop Paiute Tribe.
The Service concludes that this rule is general in nature and does
not directly affect any specific Tribal lands, treaty rights, or Tribal
trust resources. This
[[Page 43316]]
regulation, which removes the definition of ``harm'' from 50 CFR 17 and
222, does not have direct, substantial effects on one or more Indian
Tribes, as the Services issue permits to Indian Tribes on a very
limited basis, but rather consult and coordinate with Tribes on a case-
by-case basis. This rule is general in nature and does not directly
affect any specific species, Tribal lands, treaty rights, or Tribal
trust resources. Therefore, we conclude that this regulation does not
have ``tribal implications'' under section 1(a) of E.O. 13175 and
formal government-to-government consultation is not required by E.O.
13175 and related policies of the Department of the Interior and the
Department of Commerce. We will continue to collaborate with Tribes on
issues related to federally listed species and work with them as we
implement the provisions of the Act. See Joint Secretary's Order 3206
(``American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act,'' June 5, 1997).
Paperwork Reduction Act (44 U.S.C. 3501 et seq.)
This final rule does not contain any new collection of information
that requires approval by the OMB under the Paperwork Reduction Act of
1995 (44 U.S.C. 3501 et seq.). An agency may not conduct or sponsor,
and a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have analyzed this rule in accordance with the National
Environmental Policy Act (NEPA, 42 U.S.C. 4321 et seq.), the Department
of the Interior National Environmental Policy Act implementing
regulations at 43 CFR part 46, the Department of the Interior Handbook
of National Environmental Policy Act Implementing Procedures (516 DM
1), the NOAA Administrative Order 216-6A, and the NOAA Companion Manual
(CM), ``Policy and Procedures for Compliance with the National
Environmental Policy Act and Related Authorities'' (effective June 30,
2025).
The Services have determined that the ``proposed agency action is a
nondiscretionary action with respect to which such agency does not have
authority to take environmental factors into consideration in
determining whether to take the proposed action'' (42 U.S.C.
4336(a)(4); see Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 766-70
(2004)).
The Services have also determined, in the alternative, that there
will be no significant individual or cumulative effect on the quality
of the human environment with the rescission of the definition of
``harm'' in 50 CFR part 17.3 and have applied a categorical exclusion
to comply with the NEPA, specifically, the Department of the Interior
categorical exclusion for ``Policies, directives, regulations, and
guidelines: that are of an administrative, financial, legal, technical,
or procedural nature; or whose environmental effects are too broad,
speculative, or conjectural to lend themselves to meaningful analysis
and will later be subject to the NEPA process, either collectively or
case-by-case'' (43 CFR 46.210(i)), which NOAA has adopted, consistent
with NOAA's NEPA procedures (NOAA CM V(F)). We have also determined the
extraordinary circumstances listed in 43 CFR 46.215 do not apply to the
direct effects of the proposed action.
We completed an environmental action statement for the categorical
exclusion for the rescission of the definition of ``harm'' in 50 CFR
part 17.3. The environmental action statement and supporting
categorical exclusion documentation is available at https://www.regulations.gov in Docket No. FWS-HQ-ES-2025-0034.
Energy Supply, Distribution or Use--E.O. 13211
E.O. 13211 (Actions Concerning Regulations That Significantly
Affect Energy Supply, Distribution, or Use) requires agencies to
prepare statements of energy effects ``to the extent permitted by law''
when undertaking actions identified as significant energy actions (66
FR 28355; May 22, 2001). E.O. 13211 defines a ``significant energy
action'' as an action that (i) is a significant regulatory action under
E.O. 12866 (or any successor order); and (ii) is likely to have a
significant adverse effect on the supply, distribution, or use of
energy. This final rule is not expected to affect energy supplies,
distribution, and use. Therefore, this action is not a significant
energy action, and there is no requirement to prepare a statement of
energy effects for this action.
Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.)
In finalizing this rule, the Services are acting in their unique
statutory role as administrators of the Act and are engaged in a legal
exercise of interpreting the standards of the Act. The Services'
administration of the Act is not in itself subject to the Act's
provisions, including section 7(a)(2). The Services have a historical
practice of issuing their general regulations under the ESA without
undertaking section 7 consultation. This practice accords with the
plain language, structure, and purposes of the ESA, which does not
place a consultation obligation on the Services' administration of the
Act. Although the Services consult on actions through intra-agency
consultations where appropriate (e.g., issuance of permits under
section 10(a) and actions under statutory authorities other than the
ESA), the Services in those instances are acting principally as an
``action agency'' carrying out provisions of the Act or other statutes.
Here, by contrast, the Services are acting solely in their role as
administrators of the ESA; we are also not administering the Act to
propose or take a specific action. The Services are carrying out the
most fundamental exercise of our role as administrators of the ESA, and
the Act cannot reasonably be construed as requiring the Services to
``consult'' with themselves under section 7(a)(2) in such cases.
Authority
We issue this final rule under the authority of the Endangered
Species Act, as amended (16 U.S.C. 1531 et seq.).
List of Subjects
50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
50 CFR Part 222
Administrative practice and procedure, Endangered and threatened
species, Exports, Reporting and recordkeeping requirements,
Transportation.
Regulation Promulgation
For the reasons set out in the preamble, we hereby amend part 17 of
chapter I and part 222 of chapter II, title 50 of the Code of Federal
Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
[[Page 43317]]
Subpart A--Introduction and General Provisions
Sec. 17.3 [Amended]
0
2. Amend Sec. 17.3 by removing the definition for ``Harm''.
PART 222--GENERAL ENDANGERED AND THREATENED MARINE SPECIES
0
3. The authority citation for part 222 continues to read as follows:
Authority: 16 U.S.C. 1531 et seq.; 16 U.S.C. 742a et seq.
Section 222.403 also issued under 16 U.S.C. 1361 et seq.
Subpart A--Introduction and General Provisions
Sec. 222.102 [Amended]
0
4. Amend Sec. 222.102 by removing the definition for ``Harm''.
Kevin Lilly,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks,
Exercising the Delegated Authority of the Assistant Secretary for Fish
and Wildlife and Parks.
Timothy R. Petty,
Assistant Secretary of Commerce for Oceans and Atmosphere and Deputy
NOAA Administrator, Department of Commerce.
[FR Doc. 2026-14195 Filed 7-10-26; 5:00 pm]
BILLING CODE 3510-22-P-4333-15-P