First, FWS backed away from its longstanding regulatory definition of “harm” to no longer include modifications to habitat.

Second, FWS removed its automatic protections for threatened species and developed a new cost-benefit analysis that is friendlier to project developers.

Third, FWS circulated an internal memo that it will interpret “take” under the ESA to apply only to intentional conduct directed toward certain species with knowledge of the harm that will be done.

1. FWS rescinded its longstanding regulatory definition of harm.

Since the mid-1970s—nearly as long as the ESA existed—FWS has defined “harm” in its regulations to include changes to the habitat of species that are listed as endangered or threatened. The Supreme Court upheld this interpretation in 1995.

In making this definitional change, the Trump administration argues that the new definition returns to the original intent of the ESA. This change is significant because habitat destruction is a major cause of the decline of imperiled species. Nevertheless, the broader statutory definition of “take” remains the same in the ESA itself; changing that would require an act of Congress.

2. The removal of automatic protections for threatened species and a new cost-benefit analysis for critical habitat.

For a long time, threatened species—the category below “endangered”—automatically received the strictest protections given to endangered species. The new regulation no longer automatically applies this “blanket rule” protection of the lower category.

Instead, FWS must develop species-specific conservation plans for threatened species. Additionally, when considering whether to designate an area as critical habitat for listed species, FWS now must give weight to economic and national security concerns

3. FWS will interpret “take” under the ESA to apply only to intentional conduct.

In an internal memo, FWS announced that it would interpret “take” under the ESA to apply only to intentional conduct directed toward certain species with knowledge of the harm that will be done. FWS said that habitat modification, by itself, does not constitute a “taking” under the ESA unless it is done with the intent to affect the listed species.

The policy’s emphasis on intent and knowledge means that there is no longer a federal incentive for project proponents to be as cautious when working in an area where they might find endangered species. Some caution is warranted, though, since the FWS’s new interpretation—which was done without a rulemaking—could be struck down in court.

Another caution: the next federal administration could change the interpretation of “take” back to the broader meaning minus a requirement for intent or knowledge. Coupled with the six-year statute of limitations under the ESA, there may be additional enforcement risk in the future.

Bottom line: federal endangered species law has changed and may change again

As you'd expect, these recent regulatory-reform actions are being challenged in court. They could be struck down there or even reversed (again) by the next administration.

An alternative possibility is that under the Loper Bright decision's requirement that agencies regulate according to the “best reading” of the statute, a court ruling approving the Trump administration’s relaxed rules could restrict future administrations from re-expanding the interpretation of “take” and the regulatory definition of “harm.” If that happens, it would take an act of Congress to protect habitats under the ESA.

Even with all the federal changes to endangered species policy, the Massachusetts Endangered Species Act (MESA), administered by the Natural Heritage and Endangered Species Program (NHESP), provides strong state legal protections for imperiled species, including many that are not on the federal lists.

Landowners, managers, operators, contractors, developers, planners, buyers and sellers, and their legal counsel are navigating a shifting federal regulatory landscape, with comparatively stringent Massachusetts requirements remaining in place.

Devin MacGoy is a legal intern at the firm and third-year student at Boston College Law School.