The Endangered Species Act (ESA) has long served as a cornerstone of wildlife conservation by prohibiting the unauthorized “take” of threatened and endangered species, including prohibiting acts that indirectly cause harm through habitat modification. However, on April 17, federal wildlife agencies proposed significantly narrowing the scope of what constitutes “harm” under the ESA by eliminating indirect impact to a species as a factor. This change would limit the definition of “harm” to intentional, affirmative acts that injure or kill individual animals. The definition would no longer include impacts to species habitat. This alert explores the implications of the proposed rule for incidental take permitting, the likely legal challenges ahead, and how developers and stakeholders in Florida can prepare for the regulatory uncertainty that may follow.

The ESA currently defines “take” of endangered species to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap capture, or collect, or attempt to engage in any such conduct.” 16 USC 1532(19). Under the ESA, “take” of both threatened and endangered species is prohibited without a federal permit from either the U.S. Fish and Wildlife Service (“FWS”) or the National Marine Fisheries Service (“NMFS”), depending on the species at issue. 

Both FWS and NMFS currently define “harm” under the ESA essentially the same way: “an act which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” 50 CFR 17.3 (FWS), accord 50 CFR 222.102 (NMFS).  Under the current rules, activities not directed at the species (e.g., hunting or capturing), but incidentally resulting in significant habitat modification (e.g., land development) require a federal “incidental take permit.” 

The proposed federal rule would delete the FWS and NMFS definitions of “harm,” asserting that the “single, best meaning” of “harm” in the ESA requires an “affirmative act[]….directed immediately and intentionally against a particular animal…” [quoting Justice Scalia’s dissent in Babbitt v. Sweet Home Chapter]. This means significant habitat modification would no longer trigger permitting if not coupled with an affirmative or intentional act. Challenges to the final rules are inevitable, and the scope of this interpretation of “harm” will be left to the courts.

If these rules are finalized, incidental take permitting will likely shift to the state level unless the Florida Fish & Wildlife Conservation Commission (FWC) changes its own rules. FWC defines “take” to include a “harm” component identical to the existing federal definition of “harm” (R. 68A-27.001) and prohibits “take” of any federally-listed species “except as allowed by specific federal or state permit or authorization.” (R. 68A-27.003(1)). Currently, FWC defers to federal incidental take permitting, requiring FWC incidental take permits only for state listed species. Under existing FWC rules, a state incidental take permit would be required if a federal permit is not available to authorize the take of federal species.

Thus, developers in Florida will still need state authorization for significant modification of the habitat of federally listed species if the federal definition of “harm” is rescinded. It is unknown whether FWC will modify its own rules to match the federal rule change or instead begin issuing take permits for federal species. Developers wishing to comment in support of the proposed rule rescission must do so no later than May 19, 2025, and may also wish to initiate separate discussions with FWC staff to determine FWC’s intentions.