Opinion

One of the Endangered Species Act’s most fundamental protections for imperiled species is prohibiting unauthorized “take,” a term Congress defined broadly to include killing, harassing, wounding, harming, and more. But in July of this year, the Trump administration eliminated the longstanding regulatory definitions of “harm,” removing the take prohibition for wildlife killed or injured by significant habitat destruction. Exactly two months later, the administration doubled down. In identical memos dated September 14, the US Fish and Wildlife Service and National Oceanic and Atmospheric Administration Fisheries declared that take applies only to affirmative acts intentionally directed at particular animals. This radical reinterpretation substantially narrows what it means to take protected species, and therefore drastically limits how the ESA can protect them.

To understand why this matters, consider how Congress designed the ESA over 50 years ago: not only to prevent extinction, but also to ensure recovery of listed species. A key component of that design is the statute’s expansive definition of take. The Supreme Court later confirmed that take encompasses the whole spectrum of human activities that affect animals—directly and indirectly, intentionally and incidentally—from shooting or trapping them to destroying the places they live, forage, and reproduce. This does not mean that the ESA categorically prohibits development, logging, resource extraction, or other activities. In fact, its incidental take provisions have long provided a way for otherwise lawful activities to proceed, but in a way that reduces impacts on protected species.