NOAA’s National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) have proposed a significant change to how the Endangered Species Act (ESA) is interpreted—one that could impact regulatory obligations for fishing, aquaculture, and related industries.
The proposal would remove the current regulatory definition of “harm,” which includes habitat modification as a form of “take” under the ESA. Instead, the agencies argue that the statutory definition—covering direct actions like harassment, hunting, or killing—should stand on its own without further regulatory elaboration.
“This proposed rule aims to align the definition with the plain text of the ESA,” NMFS said, pointing to legal precedent and the 2024 Supreme Court ruling in Loper Bright v. Raimondo, which rolled back the Chevron deference that historically allowed agencies broad interpretive power.
Why It Matters to the Industry
The current “harm” definition has created legal and operational challenges for the U.S. seafood sector. For instance:
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The Maine lobster fishery was found to violate the ESA in 2020 due to rules that inadequately protected North Atlantic right whales.
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West Coast fisheries have faced closures and restrictions related to whale protections.
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NOAA has faced legal pressure over missed ESA deadlines tied to Chinook salmon protections in Alaska.
By tightening the interpretation of “take,” the proposed rule could reduce exposure to some of these challenges—especially where habitat modification was previously a compliance risk.
However, environmental groups have strongly opposed the move. The Conservation Law Foundation calls it a “direct assault” on the ESA’s intent and warns it could limit recovery efforts for species whose survival depends on habitat protections.
What’s Next?
NMFS and FWS are seeking public comments on the proposal and have emphasized a transparent process. Industry stakeholders are encouraged to review the rule and provide feedback to help shape the outcome.