Proposed federal changes could eliminate penalties for incidental harm, reshaping regulatory liability for commercial fisheries.
A leaked internal memo from U.S. Fish and Wildlife Service (FWS) Director Brian Nesvik outlines a plan to redefine the term “take” under the Endangered Species Act (ESA).
Under the proposed change, the agency would narrow the rule so that only intentional harm to ESA-listed species would be considered illegal or punishable under federal law.
Key Policy Breakdown
- Exemption for Unintentional Harm: Unintended interactions – such as a commercial fishing vessel accidentally striking a whale or incidental species catch during routine, permitted operations – would no longer be classified or penalized as illegal “take.”
- Shift in Permitting Requirements: Currently, federally permitted activities must measure and mitigate their incidental impacts on protected wildlife. The revised rule would remove this burden for unintentional harm.
- Building on Prior ESA Revisions: This move follows a recent administration change redefining “harm” under the ESA, which removed habitat damage from the criteria determining a species’ chance of survival. That prior change is currently facing court challenges from 21 state attorneys general.
Conservation & Legal Pushback
The leaked memo has drawn immediate opposition from conservation groups and environmental legal organizations:
- Pending Lawsuits: Environmental law firm Earthjustice announced plans to file suit against the administration over the proposed redefinition.
- Regulatory Uncertainty: Given the state-level challenges to previous ESA revisions, any finalized rule narrowing “take” is guaranteed to face lengthy federal litigation.
Industry Perspective
Incidental take compliance remains one of the most complex operational issues facing commercial fisheries in California and nationwide. While a narrowed definition of “take” would reduce direct statutory liability for accidental interactions, the high likelihood of immediate legal injunctions means rule changes may face extended delays in court.
CFSI will continue tracking developments from federal regulators and providing updates on how potential policy shifts could impact West Coast fishing permits and operational guidelines.