The United States Fish and Wildlife Service and the National Marine Fisheries Service (collectively, Services) proposed last week to rescind the regulatory definition of “harm” under the federal Endangered Species Act (ESA), sparking intense criticism from environmental advocacy groups. If finalized, the rescission would remove a longstanding protection for the habitat of wildlife species listed as threatened or endangered under the ESA, making regulatory compliance easier for many types of projects across the country. But it would also set up a potential collision between the current president’s deregulation efforts and one of several bills that California’s Legislature is considering as a way to compensate for potential “backsliding” of federal environmental protections, with the regulated community in California likely to be among the losers.
Federal Action Would Remove Prohibition on Habitat Modification
Section 9 of the ESA prohibits the “take” of any endangered species, a prohibition extended to many threatened species by regulation. (16 U.S.C. § 1538(a)(1)(B)-(C).) Under the ESA, “take” means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt to engage in any such conduct.” (16 U.S.C. § 1532(19) [italics added].) Existing regulations further define “harm” as “an act that actually kills or injures fish or wildlife … [including] significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” (50 C.F.R. § 17.3 [italics added]; see also § 22.102.)
The Services have proposed to eliminate the regulatory definition of “harm,” leaving only the statutory definition of “take,” which the Services said they interpret as prohibiting only affirmative acts that are intentionally directed toward particular members of a listed wildlife species. Actions that could indirectly harm listed wildlife by modifying their habitat would no longer be prohibited by the ESA, removing a significant source of potential liability for projects that involve clearing, grading, vegetation removal and similar activities. While effects on listed species’ habitat still could trigger a federal agency’s obligation to consult with the Services under Section 7 of the ESA, many projects lacking a federal “handle” such as a federal approval or funding, likely would be able to forgo seeking ESA authorization.
AB 1319 Aims to Combat Federal ‘Backsliding’ Through Emergency State Listings
AB 1319, a bill introduced in the California Assembly in February 2025, would require the California Fish and Game Commission to consider listing under the California Endangered Species Act (CESA) any California-native species that would receive reduced protection as a result of a “federal action” taken under the ESA after January 19, 2025. Such federal actions specifically include, but are not limited to, those relying in whole or in part on amendments to the ESA regulations. The Commission initially would list new species through adoption of an emergency regulation, a process already authorized by the CESA although seldom used, but then would need to promptly evaluate each species for permanent listing under the CESA procedures that apply to “candidate” species.
The California Department of Fish and Wildlife (CDFW) currently identifies 80 wildlife species in California that are ESA-listed but not CESA-listed, nearly all of which could be eligible for emergency listing if AB 1319 becomes law. Adopting emergency regulations to list those species under the CESA may be fairly straightforward, but evaluating the newly listed species as candidates for permanent protection would place an unprecedented workload on the Commission and the Department. The evaluations almost certainly would drag on for years (as many already do), during which time the candidate species would remain subject to the CESA’s take prohibition and permitting requirements, even though an emergency regulation, by law, may remain in effect for no more than 360 days (including conditional extensions).
Far from experiencing regulatory relief, projects in California, even those already fully approved and permitted, would face the prospect of obtaining incidental take permits to cover a slew of species newly listed (or treated as candidates for listing) under the CESA. CDFW, which issues those permits, is already struggling under a workload that reflects the recent addition of two new candidate species that are relatively widespread, the western burrowing owl and the Crotch’s bumble bee. Additional delay for many types of projects is a sure outcome if AB 1319 becomes law.[1] Thus, Governor Newsom will face a difficult choice if AB 1319 clears the Legislature. In 2019, he vetoed a bill containing nearly identical language over concerns about its effects on the state’s water conveyance projects. This year, he will have to choose between his desire to oppose the current federal administration and his need to show that his own administration can deliver the housing, energy, infrastructure and fire preparedness projects that California urgently needs.
FOOTNOTES
[1] AB 1319 is a non-urgency bill; if enacted, it would take effect on January 1, 2026.