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The Getches-Wilkinson Center recently partnered with almost 40 law professors from around the country to defend the Endangered Species Act from a regulatory rollback proposed by the Trump Administration. For more than 40 years, the U.S. Fish and Wildlife Service (FWS) has prohibited the modification of habitat that incidentally causes the “take” of a listed species. Thus, projects like timber sales, dam construction, water withdrawals, pesticide applications, construction projects and other activities that impact habitat for listed species have been regulated by FWS and subject to review and/or modification to mitigate impacts to the species and its habitat.

Recently, however, the Trump Administration is proposing to rollback these long-standing protections for habitat by redefining the term “harm” under the ESA, which is included in the definition of take. Since 1981, FWS has defined “harm” to include modification of habitat that actually harms or injures a listed species – i.e., harm that is “incidental” to otherwise lawful activity. Recently, however, the Trump Administration proposed to rescind that regulatory definition of harm and, in the process, significantly narrow the federal government’s interpretation of the ESA’s protections for imperiled species. Under this new interpretation of the statute, the ESA would prohibit only the “direct application of force” to a listed species and not impacts that result incidentally from modification of habitat.

GWC worked with the law professors to submit detailed comments opposing this new interpretation of the ESA and making two key points.

First, the law professors explained that the FWS’s interpretation of the statute – the definition of “take” – is incorrect. Sections 7 and 10 of the ESA create review and approval processes that explicitly apply to activities that modify habitat, thus demonstrating Congress’s clear intent to prohibit and regulate incidental take.     

Second, the law professors explained that FWS must comply with the National Environmental Policy Act (NEPA) and prepare an environmental impact statement prior to amending the ESA regulations. This substantive change to FWS’s interpretation of the ESA would have far reaching impacts to imperiled species across the country, and FWS must consider and disclose those environmental effects prior to amending the regulation.

You can read the comments here. Please reach out to GWC Executive Director Chris Winter if you have any questions on this evolving issue under the ESA.