This story also appeared in Mountain Journal The U.S. Interior Department will officially drop the definition of the word “harm” from the kinds of actions prohibited by the Endangered Species Act in a Federal Register notice expected to publish T uesday. Like a keystone in a bridge arch, that single word holds together a major portion of the ESA’s power to recover animals and plants from the brink of extinction, according to legal and policy experts interviewed by Mountain Journal. The law prohibits “taking” a protected creature, and uses 10 other words to define “take”: harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect. But of those, only “harm” has an extended definition: “significant environmental modification or degradation” of the protected species’ habitat. The Endangered Species Act was passed almost unanimously by Congress in 1973, and signed by President Richard Nixon. As its procedures were getting worked out, the Nixon and Ford administrations clarified that “harm” referred to habitat damage in 1975, the same year that grizzly bears became the eighth animal added to the Endangered Species List. But according to statements by Interior Secretary Doug Burgum and his agency last Friday, that harm definition has been unfairly limiting the ways people can use their property, if it happens to contain critical habitat for an endangered species. Such regulations can slow or block energy projects, logging, housing development and other economic activity. “For years, federal agencies abused the ESA to obstruct lawful land use and burden American families and businesses,” Burgum said in the Interior release. “That approach turned routine activity into a regulatory trap, drove up costs that impacted people’s lives, and expanded federal authority beyond what Congress intended.” A new federal rule eliminating the definition of the word “harm” would make it easier to approve energy development like this activity in Wyoming’s Wind River Mountains that might encroach on the critical habitat of threatened or endangered species such as grizzly bears. Credit: BLM The Federal Register notice states no replacement for “harm” will be added to the regulation. Instead, federal agencies will concentrate on the species themselves, while stepping away from imposing on private property. “The ESA’s core protections remain firmly in place,” the Interior press release continued. “Actions that directly injure or kill listed wildlife will continue to be prohibited … What ends today is a system that repeatedly punished people for indirect or speculative impacts never contemplated by Congress.” But “indirect or speculative impacts” are exactly what habitat protections provide, according to Chris Servheen, who led the U.S. Fish and Wildlife Service’s national grizzly bear recovery program for 35 years before retiring in 2016. “The whole idea of harm is the substance of habitat protection in the ESA,” Servheen said. “You can have harm to a species without actually killing them. ‘Take’ is the actual killing of the animal — that’s shooting them. But if you build a road, and those disturbances affect the usefulness of the habitat, the productivity of the habitat – that’s harm. We wouldn’t have grizzly bears today if we didn’t have the harm definition for habitat.” The “harm” final rule is just one of a series of potential ESA changes moving through administrative review. A separate proposal would revisit the “blanket rule,” which temporarily grants species on the “threatened” list the same level of protection as “endangered” species until a more specific recovery plan can be developed. Trump’s Interior officials dropped the blanket rule during his first term, and the Biden administration reinstated it. Trump is now moving to eliminate it again. “The whole idea of harm is the substance of habitat protection in the ESA. You can have harm to a species without actually killing them. ‘Take’ is the actual killing of the animal — that’s shooting them.Chris Servheen, former grizzly bear recovery coordinator, U.S. Fish and Wildlife Service Yet another proposed rule would make numerous changes to the ESA regulations, including changing the definition of “foreseeable future,” adding new criteria to delist a species, adding criteria for avoiding designating critical habitat, making it harder to designate unoccupied but essential habitat for a species, and adding consideration of economic impacts. That last item showed up on July 7, when FWS reopened public comment on a 2022 proposed rule for protecting Kern Canyon slender salamanders “for consideration of economic impacts.” The ESA specifically prohibits that in the plain language of the law, according to Tara Zuardo with the Center for Biological Diversity. “That’s a policy change, not a rule,” Zuardo told Mountain Journal. “The law says the agencies must use the best available science, not economic interests.” In its public comment review of the harm definition, FWS noted many commenters cited congressional records calling for habitat protection and defining harm as destruction of habitat.“Legislative history, however, is not the law,” the agency responded. “The Services find that considering habitat degradation or modification that kills or injures wildlife by significantly impairing improper essential behavioral patterns stretches the term “harm” beyond its natural meaning,” the draft version of the Federal Register harm rule states. It concludes that “habitat modification is not properly part of the definition of ‘take.’” “They seem to be going their own direction on everything, with complete disregard to the established law, without regard to Congress,” Zuardo said. “It looks like they want to go straight up to the Supreme Court to get rid of these requirements.” The post Do no ‘harm’: Feds rescind ESA definition protecting habitat appeared first on Montana Free Press. ...read more read less