On April 17, 2025, the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) proposed a significant change to the regulatory framework governing endangered species. This proposal, outlined in the Notice of Proposed Rulemaking (NPRM), aims to rescind the regulatory definition of "harm" under the Endangered Species Act (ESA), thereby potentially altering the landscape of species conservation efforts across the country.
The proposed rule would eliminate habitat modification as a basis for determining an unlawful "take" of a listed species under the Act. Currently, the regulations define "harm" broadly, encompassing not only direct injury or death of protected species but also significant habitat modifications that can kill or injure wildlife by impairing essential behavioral patterns such as breeding, feeding, or sheltering. By reverting to a more restrictive definition, the Services would rely solely on the statutory definition of "take" as outlined in section 3(19) of the ESA, which includes actions that cause direct physical injury or death to listed species but excludes habitat-related impacts unless they cause direct harm.
The Services argue that this change would restore clarity and predictability for regulated entities, such as landowners and developers, who contend that the current interpretation is overly broad and creates uncertainty. They also assert that the proposed rule aligns with pre-1999 interpretations of "take" and aims to reduce litigation risks by minimizing reliance on indirect theories of injury. However, critics of the NPRM are raising alarms about the potential consequences of such a significant regulatory shift.
Environmental advocates warn that rescinding the definition of "harm" could dramatically weaken protections for endangered and threatened species by ignoring the critical role of habitat loss. They cite longstanding judicial interpretations, including the Supreme Court’s ruling in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, which upheld the agencies’ authority to define "harm" to include significant habitat modifications. Critics argue that this proposed change could increase the risk of species extinction by preventing timely interventions when habitat destruction threatens survival.
The debate surrounding this NPRM is set against a backdrop of broader tensions regarding the Endangered Species Act. The Supreme Court's recent decision in Loper Bright Enterprises v. Raimondo has further complicated matters by overhauling the Chevron principle of agency deference in rulemaking. As a result, it remains unclear how the court will view its past interpretation of "harm" in the Babbitt case if the proposed rescission is finalized.
Meanwhile, the Wild Fish Conservancy has taken action of its own, filing a lawsuit against NOAA Fisheries on May 10, 2025, for failing to meet essential legal deadlines under the ESA regarding the protection of Alaskan Chinook salmon. This species, once abundant, is now facing chronic declines in the streams flowing into the Gulf of Alaska, raising concerns about the health of ecosystems, indigenous cultural practices, and food security for local communities that depend on wild salmon.
In January 2024, the Wild Fish Conservancy petitioned NOAA to grant federal ESA protections for Chinook salmon, and on May 24, 2024, NOAA responded positively, confirming that the petition contained substantial information indicating that ESA-listing and protection may be warranted. However, NOAA was mandated to make a determination by January 11, 2025, regarding whether the Gulf of Alaska Chinook salmon should be classified as "threatened" or "endangered." With that deadline now passed, the Conservancy's legal action underscores the urgency of the situation.
Emma Helverson, Executive Director of Wild Fish Conservancy, expressed frustration over the need for litigation to compel the federal government to fulfill its legal responsibilities. “It should not take a lawsuit to make the federal government uphold its legal responsibility, but with the crisis facing Alaskan Chinook, we are out of time and options,” she stated. Helverson emphasized that the ESA sets clear deadlines for a reason: to evaluate extinction risks and trigger actions while recovery is still possible.
Despite Alaska's historical abundance of Chinook salmon, data reveals persistent declines in abundance, size, age, diversity, and spatial structure. Alarmingly, some Alaskan Chinook populations are reportedly in worse condition than other Pacific Northwest populations already listed under the ESA. Factors contributing to these declines include overfishing, bycatch in trawl fisheries, hatchery impacts, habitat degradation, and climate change.
In 2024, the Kenai River, known for its Chinook salmon, recorded just 1,365 early-season fish returning, which is half of what officials had modeled. Late-season numbers were equally concerning, with only 6,930 Chinook returning—far below the historical average of approximately 28,000 over the last four decades. The Karluk River saw only 76 Chinook return to spawn, significantly below the goal of 3,000, while the Ayakulik River recorded just 354 returns, representing a mere 7% of its population goal of 4,800.
Helverson criticized the state of Alaska’s leadership for claiming success in Chinook recovery efforts, stating, “Alaska’s leadership insists it’s taking aggressive steps to recover Chinook and that those efforts are proving successful, but the state’s own data shows this couldn’t be further from the truth.” The ongoing decline of Chinook salmon has led to emergency fishery closures for in-river commercial, recreational, and subsistence fisheries, including for indigenous communities, while large-scale commercial ocean fisheries continue to harvest or kill Chinook as bycatch.
The Wild Fish Conservancy's lawsuit highlights a troubling pattern of NOAA's failure to comply with ESA deadlines and the urgent need for enforcement of statutory requirements to protect species on the brink of extinction. Helverson concluded, “As we advocate for the protection of wild salmon and their ecosystems, we must use legal tools not just to defend what remains, but to reimagine what could be.” With comments on the NPRM due by May 19, 2025, the coming weeks may prove critical for both species conservation and regulatory frameworks under the Endangered Species Act.
