Endangered Species Act reform restores property rights and common sense species conservation
The FWS and NMFS were never meant to have this sweeping authority to regulate private lands, as they did with the rescinded harm definition.
For decades, the federal government’s misinterpretation of a single word (“harm”) in the Endangered Species Act (ESA) has had severe effects on private property owners, project development, and species recovery.
Fortunately, on July 14, the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) published a final rule to fix this longstanding problem by rescinding the regulatory definition for the word “harm.”
The purpose of the ESA is to conserve endangered and threatened animal and plant species. In simple terms, under the statute, endangered species are those species that are in danger of extinction, whereas threatened species are those likely to become endangered.
The decision to list a species as “threatened” or “endangered” under the ESA triggers a host of regulations aimed at recovering that species to the point where it can be delisted.
One of the most direct ways that the ESA regulates property owners is by prohibiting the “take” of endangered species. The statute defines “take” as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”
After the ESA became law, the FWS and NMFS chose an expansive regulatory definition for the verb “harm,” found within the definition of “take,” to include actions that pose potential indirect effects on listed species through habitat modification.
Such a broad interpretation meant that even normal activities could be restricted if they might incidentally affect species. As the Pacific Legal Foundation aptly stated, “[i]n broadly defining ‘harm’ to include habitat modification that might incidentally or accidentally affect ESA-listed species, the Services have expanded their authority to regulate ‘take’ to reach all manner of ordinary land-use activities on private lands.”
The agencies’ new final rule, which rescinds the definition of harm, will not only benefit property owners but also create better incentives for people to participate in species conservation.
Under the “harm” definition, modification of habitat constitutes a “taking” of a species which can result in severe penalties to landowners, including imprisonment. So, when private property is deemed habitat for an endangered species, modification of that land could qualify as such a “taking.”
In essence, this means that some unlucky property owners must be told by the government what actions are and are not allowed on their own property, lest they face such penalties. Not only was this policy bad for property owners, it undermined the goal of fostering habitat. It incentivized property owners to intentionally destroy existing habitat on their property that might trigger regulation. Of course, intentional destruction of habitat does not help species conservation.
Further, it means that someone who would otherwise manage their property intentionally to create habitat for an endangered species may decide against it because of the threat of being regulated.
Compounding the problem, habitat modification or degradation has been the most prevalent form of “take” regulated by the agencies. It follows that significant time and resources must be devoted to regulating actions that have an indirect effect on species, even if those resources could be used to conserve species in a more direct, effective way. Perhaps a better use of those resources would be to reward, not punish, property owners for managing endangered species’ habitat.
There are also significant legal problems with the agencies’ now-rescinded harm definition. It was inconsistent with the plain language of the ESA and intent of Congress.