How Should We Define "Harm?"

We are at a conservation turning point in the United States. The Endangered Species Act is, itself, in danger, with a new rule being proposed that would drastically change the nature of protections that have been in place since 1973. This is something that can be prevented, and we can all help by calling our senators and representatives.

The Endangered Species Act of 1973 was established in response to a growing concern for wild animals and plants that were at risk of extinction, largely because of human activity. Land development, unmitigated hunting and fishing, and lack of conservation initiatives were depleting America's natural resources at an unsustainable rate, so the government enacted the ESA to "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved," and to create programs by which to conserve these species and put the U.S. in compliance with a number of international treaties and conventions. Under the ESA, it is prohibited to "take" a species listed as endangered or threatened in the U.S. "Take" is defined as to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Historically, this definition has also included harming the ecosystem in which endangered species live. This implied meaning was upheld in a 1995 Supreme Court ruling that further clarified that actions with "minimal or unforeseeable" negative consequences on endangered species still fell under the definition of harm.

The American Bald Eagle: an ESA Success Story

The bald eagle has made an epic comeback as a result of the ESA.

Perhaps the most famous benefactor of the Endangered Species Act is our national icon, the bald eagle. Long after being named the national symbol of the U.S., bald eagles suffered a severe population decline due to hunting and loss of their nesting habitat. By the 1960s, fewer than 500 nesting pairs remained in the U.S., and the population faced an even greater threat from the pesticide DDT, which caused eggshells to become so fragile that they often broke before hatching—preventing bald eagles from successfully reproducing. DDT was banned in 1972, and the passage of the ESA enabled conservationists to implement programs like captive breeding and nest site protection. This enabled the bald eagle to make a rapid comeback, and current estimates are at over 70,000 breeding pairs.

The Proposed Change

The U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration have proposed a rule that would limit the definition of "harm" within the definition of "take" to exclude habitat modification. In effect, this would mean that damaging or otherwise negatively impacting the habitat in which endangered species live would not be a violation of the endangered species act.

Let's look at this in the context of the bald eagle. DDT was banned prior to the Endangered Species Act taking effect, but if a new pesticide was created that contaminated eagles' food source via runoff the way DDT did, and that pesticide in turn harmed the eagles or their eggs, the use of that pesticide would not be a violation of the ESA.

Manatees suffered a population decline due to pollution.

A federal judge recently ruled that the state of Florida violated the Endangered Species Act for allowing wastewater to be discharged into the Indian River Lagoon, setting off a chain reaction that resulted in the starvation deaths of hundreds of manatees. The wastewater fed macroalgae in the lagoon, which in turn prevented sunlight from reaching the seagrass manatees eat, choking out the manatees' main food source. Dead manatees were found with empty gastrointestinal tracts, or in some cases, stomachs full of acorns—a desperate attempt to eat anything that might keep them alive. If the proposed change to the definition of harm were to take effect, Florida would not be liable for the deaths of those hundreds of manatees, nor would the state be responsible for implementing a plan to restore the nutrient balance of the Indian River Lagoon, which continues to take on sewage.

It is naive to think that an endangered species can be separated from its ecosystem. As conservationists have proven time and time again, wildlife and humans are interconnected, and biodiversity is essential to conserving protected and unprotected species. The manatees of the Indian River Lagoon are not a unique story—most of the biggest threats facing wildlife today are indirect threats like habitat loss and climate change. Direct threats like poaching are still a major concern, but there is no path to saving endangered species without saving the environment in which they live.

So what can be done? As I mentioned at the top of this post, you can call your representatives and senators to tell them you are opposed to this rule. You can also submit a public comment on the federal register to state your opposition. The comment period closes at 11:59pm EST on May 19, 2025. If you leave a public comment, we'd love it if you let us know here! This is truly a way we can come together to show strength in numbers!