The gutting of the Endangered Species Act
On Wednesday, April 16, 2025, US Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) proposed to rescind the rule that habitat destruction counts as "take" for the purposes of agency regulation under the Endangered Species Act (ESA).
Right now, the concept of "take" is how USFWS/NMFS determine if an endangered species is being damaged by an action. "Take" means "to harass, harm [emphasis mine], pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." "Harm" includes destroying or modifying their habitat, since without its habitat an organism by definition can't survive.
Under the new proposed rule, destroying an organism's habitat wouldn't count as "harm" anymore, since you're not actively pursuing a specific individual animal or plant, only allowing them to come to harm through inaction. (Thanks, Scalia)
This is the southwestern willow flycatcher, a federally endangered bird species. It relies on riparian willow forests and other dense river forests as its habitat—it can live and reproduce nowhere else. USFWS designates certain areas as "critical habitat," places that the flycatcher needs for its continued survival as a species.
Critical habitat is designated for every species on the endangered list (about 168,000 square miles for all species combined). In California, species on the state endangered list don't get any critical habitat designated or protected by law—only the organism itself is protected, not its habitat. The federal ESA is the one strong, major law that protects endangered species in California from having their habitat destroyed.
Right now, if you wanted to bulldoze a stand of willow forest in a California river, your action would be regulated as destruction of critical habitat for the flycatcher. USFWS would issue a permit for it and require you to revegetate it, fix it, or (if it's bad enough) not even do it.
Under the new proposed rule, you'd have to actually net, shoot, or crush an individual flycatcher for the federal government to get involved. You could sell their habitat to the highest bidder or burn it down around them and it wouldn't count as "harm."
But it hasn't happened yet. Submit a public comment here (until May 19, 2025) to protest the gutting of the ESA.
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