DELMARVA - A decades-old interpretation of one of the nation's cornerstone environmental laws has been officially rolled back, narrowing how the federal government enforces certain protections for endangered wildlife.
The U.S. Fish and Wildlife Service and National Marine Fisheries Service published a final rule on Tuesday, July 14, rescinding the regulatory definition of "harm" under the Endangered Species Act. The rule eliminates language that for more than 40 years treated significant habitat destruction as a form of illegal "take” when it ultimately killed or injured protected wildlife. The rule is slated to take effect Sept. 14.
Though the change does not amend the Endangered Species Act itself and only alters the interpretation of one word, conservationists on Delmarva say the rule could have major impacts on the peninsula’s already threatened species.
What changes?
Since 1981, federal regulations have defined "harm" to include "significant habitat modification or degradation" when it actually kills or injures wildlife by impairing essential behaviors such as breeding, feeding, or sheltering.
Under the new rule, federal officials say "take" should instead be interpreted according to what they believe is the law's best reading: direct actions against animals themselves, such as killing, injuring, capturing, or otherwise intentionally acting against a protected animal. Habitat modification, by itself, will no longer be treated as "harm" under the regulatory definition. The agencies also declined to replace the definition with new language, according to the rule published on Tuesday.
The agencies argue the previous interpretation expanded the law beyond what Congress intended.
"The ESA itself defines ‘‘take,’’ and the regulatory elaboration of one subcomponent of that definition — ‘‘harm’’— has had the effect of exceeding the proper bounds of the statute and asserting power that Congress never actually gave to the executive branch, " the rule states.
Why the administration says the change was necessary
Federal officials contend the Endangered Species Act already contains separate provisions governing habitat conservation and critical habitat, particularly through Section 7, which applies to federal projects, and that Congress did not intend for habitat modification itself to be regulated as an illegal "take."
The rule adopts the reasoning from Justice Antonin Scalia's dissent in the Supreme Court's 1995 Babbitt v. Sweet Home decision, arguing that the word "take" historically refers to direct actions against wildlife rather than indirect habitat impacts. While the Supreme Court upheld the broader habitat-based interpretation in 1995, the agencies now say a 2024 ruling allows them to adopt what they consider the statute's single best interpretation.
Supporters of the change, including property rights advocates and some industry groups, have argued the previous definition imposed unnecessary regulatory burdens on landowners, agriculture, forestry, energy development, and infrastructure projects.
What does not change?
The agencies emphasize that several key Endangered Species Act protections remain in place.
Federal agencies must still consult under Section 7 before approving, funding or carrying out projects that could jeopardize listed species or adversely modify designated critical habitat. Existing critical habitat designations also remain in effect.
In addition, permits and incidental take authorizations already issued under the previous interpretation will not be revisited because of the new rule.
What it could mean for Delmarva
Although the practical effects will depend on how courts interpret and apply the new rule, the change could become significant for species whose survival depends heavily on intact habitat.
On Delmarva, those include federally protected shorebirds such as red knots and piping plovers that rely on beaches and coastal habitat, as well as sea turtles that nest or migrate along the Atlantic coast. Offshore species such as Atlantic sturgeon and North Atlantic right whales could also be affected in future permitting or enforcement decisions involving habitat impacts.
Suzanne Thurman, Executive Director of the Marine Education, Research & Rehabilitation Institute in Delaware, tells WBOC the change could further complicate the already-difficult task of protecting local endangered species. By altering the “harm” definition, Thurman argues the federal government has exposed many of these animals, which she and her organization rescue from strandings regularly, to further risk.
“The primary concern is some of the activities that could cause them direct physical harm, but in addition is the indirect impact of affecting their food source and affecting the ability of mothers and their young to even stay together certainly will lead to harm and risk, especially for the younger animals,” Thurman said.
Thurman also says the new rule could lead to expanded disruption of marine habitats as certain industries begin to see previous restrictions loosened.
“Those supporting [this] act tend to be in various industries such as petroleum, for example, and others that will now have it much more wide open to them to engage in activities that include seismic testing, oil drilling, explorations, and other things,” Thurman tells WBOC, saying that these industries now will have “every capability of really having carte blanche to do whatever they want to do within the ocean.”
“By taking the word ‘harm’ out of it, I think it's very telling,” she said.
The Trump Administration, however, assures that federal projects affecting endangered species will continue to undergo Endangered Species Act consultation as Section 7 requirements remain unchanged. Maryland State Senator Mary Beth Carozza tells WBOC she agrees with that assessment and that the “harm” reinterpretation could be a positive for local industries.
“So when I first reviewed this, it struck me that the Endangered Species Act and those protections are still in place, but they're lifting some of the more cumbersome, complicated interpretations of those regulations,” Carozza said. “And the reason I think this is so important is because whether you're a farmer, a fisherman, a landowner, or a local government and you're trying to go through permitting or work on a project, there are multiple regulations in place at every level.”
Carozza has previously navigated the Endangered Species Act and its regulations. In 2025, she sponsored a bill aimed at balancing long-term conservation of endangered bats while supporting Maryland’s forestry industry. Governor Wes Moore ultimately signed the bill into law.
“Now we have a decision made at the federal level to provide some relief with the protections in place,” Carozza said. “It's finding that balance, and I've always said the key to all of our challenges are our partnerships that I believe are working very well here on the shore.”
Environmental groups sue within hours
The rule is already facing legal challenges.
A coalition of conservation organizations filed suit in federal court Tuesday, arguing the rollback violates both the Endangered Species Act and the Administrative Procedure Act. The complaint asks a judge to vacate the rule and block federal agencies from implementing it.
The plaintiffs argue the agencies unlawfully abandoned more than four decades of precedent by eliminating habitat destruction from the regulatory definition of "harm." They also contend the agencies improperly relied on Justice Scalia's dissent in Sweet Home while disregarding the Supreme Court majority opinion that upheld the existing regulation.
The lawsuit further alleges the agencies violated the National Environmental Policy Act by failing to conduct a more comprehensive environmental review before finalizing the rule. The Trump Administration has yet to respond to that suit, and it remains to be seen if a judge will intervene or allow the rule to remain ahead of its September implementation.
