Federal Agencies Finalize Change to Species Protections

What happened: The U.S. Fish and Wildlife Service and National Marine Fisheries Service finalized a rule July 14 that changes how the Endangered Species Act (ESA) defines a prohibited “take” of a protected species.

A “take” generally means directly harming, killing, capturing, or otherwise affecting an endangered or threatened animal. For decades, federal agencies also treated certain habitat changes as a “take” when those changes indirectly injured wildlife. The new rule removes that interpretation and relies on the ESA’s statutory definition going forward.

What ARTBA said: ARTBA supported the change, arguing that Congress addressed habitat protection in other parts of the ESA and that the law’s “take” prohibition should apply only to actions that directly affect protected species.

ARTBA said expanding the definition to include habitat modification went beyond what Congress intended. The association also urged federal agencies to provide clear guidance so project owners and contractors understand how the rule will be applied.

What it does: The rule does not eliminate habitat protections under the ESA, nor does it affect existing permits. Federal agencies must still review potential impacts to protected species and designated critical habitat when required.

However, the rule narrows what qualifies as a prohibited “take.” For example, removing trees used by an endangered bat species would no longer automatically be considered a “take” simply because habitat was altered. To qualify as a prohibited “take,” there must now be direct harm to the protected animal, such as injury or death.

Any changes to permitting or project reviews are expected to occur gradually rather than immediately.

What’s next: The rule will take effect in 60 days. For more information, contact ARTBA’s Prianka Sharma.