I wrote a hurried comment to meet the Monday deadline. Not that a comment on a rule change in www.federalregister requires flights of soaring rhetoric, but it was important.  I wanted it to be more wise and maybe more compelling because protecting the most vulnerable species from the finality of extinction has a unique gravity that is poorly addressed in regulatory language.

A proposed rule by the Fish and Wildlife Service and the National Oceanic and Atmospheric Administration posted on April 17, 2025 sought to rescind the regulatory definition of “harm” in the Endangered Species Act of 1973 (ESA). The definition shows up in two places. The language is virtually the same in both except that one is a little broader and includes fishes. The language they propose to rescind in the regulations reads like this:

Harm in the definition of “take” in the Act means an act which actually kills or injures fish or wildlife. Such an act may include significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering.

This is important because it interprets what it means to “take” an endangered species which is prominently prohibited in the main language of the act. Under the ESA:

The term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.

Arcane as this may sound, rescinding this definition for “harm” removes the regulatory principle that an endangered species may be imperiled by having its habitat modified or degraded or destroyed. This “eviscerates”¹ the effectiveness of the ESA because:

Habitat loss is the leading cause of species imperilment. Analyses of imperiled species have reported that habitat loss affected 85% of imperiled species including 89% of imperiled mammals, 90% of birds, 97% of reptiles, 87% of amphibians, and 94% of fish, with another study reporting that 95% of imperiled species were affected by habitat loss as a primary factor for their declines. To remove habitat protections from the Act would make it nearly ineffective in carrying out its intended purposes.¹

This language (and citations therein) comes from a letter from The Wildlife Society signed by all of its 21 living past presidents. The Wildlife Society is the premier professional society for wildlife biologists in government agencies, academia, and private practice. I’ve been an active member for 30 years.

As I tell my students, conservation work (read that as “creation care” if you like) is inherently political because policy choices and regulation of potentially damaging human behaviors (e.g. pollution, exploitation, habitat destruction) are how species and ecosystems are conserved and/or recovered at meaningful scales. I find that my students in secular spaces are clearer about this than those in my Christian spaces (and that’s a problem to explore all on its own). 

The definition of “harm” in the current language is one where ecological realities, regulatory purpose, and common sense align. If I destroy your house and cut off your access to potable water, I am clearly causing you harm. Rescinding this language would make it seem that the ESA only prohibits the direct killing of individuals of an endangered species – serving the interests of those who see endangered species as a nuisance standing in the way of “development” (hate that word usage) of remnant bits of habitat where they still exist. The rule change proposal argues that the “direct killing” bit was Congress’s original intent. 

The TWS past presidents’ letter contains a larger argument for why the rule-change advocates have it wrong (too long to quote here) but one only need look at the “purpose” that Congress wrote into the ESA itself. In the introductory chapter, congress’s purpose was:

…to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved…(emphasis added)

Moreover, the first of five criteria that the secretary (Interior or Commerce) is instructed to examine to make a determination of endangered or threatened status is:

1. the present or threatened destruction, modification, or curtailment of its habitat or range. 
   

Seems blindingly clear.

So I dutifully left my comment before the deadline (Monday). I cribbed some language from a conservation organization that I support because I know the authors (one, an international expert in endangered species conservation) and I liked its direct language. Plus, they invited us to do so. But there’s so much more to say.

No one would argue that the ESA is perfect. But, it has been effective at preserving and enhancing critical habitat (which itself has a formal definition in the act) and arguably preventing extinctions in many cases. It may be the US’s best-known environmental law and is widely supported. 

The need for the act is acute (and especially so in the context of a growing climate crisis) and even having it is evidence of our broken relationship with nature. Intellectually, I find the act a bit anachronistic because it justifies the value of non-human species in terms of their instrumental value (“…aesthetic, ecological, educational, historical, recreational, and scientific…”) to the nation when there is emerging consensus that species have intrinsic value apart from human interests. Why this point isn’t a baseline in a country that holds deep cultural connections to Christianity, I’ll never know – provided I can hold my cynicism at bay. One can hardly miss the Godly observation of the intrinsic goodness of creation ringing out like a gong after each creative act in Genesis’ first creation account. 

Goodness loses in increments. Some are small. Some are large and dramatic. Some are hidden in the arcane language of regulations and policy. It can be exhausting. I don’t know what special wisdom there might be, but creation needs us to show up anyway. Again and again.

¹Letter from The Wildlife Society signed by all of its 21 living past presidents. Sources for the statistics quoted are: 1) Wilcove et. al. 2000. Leading Threats to Biodiversity: What’s Imperiling U.S. Species. Pages 239-254 in: Stein, B.A., L. S. Kutner, and J. S. Adams. Precious Heritage: The Status of Biodiversity in the United States. The Nature Conservancy, Oxford University Press. and 2) Flather et. al. 1994, USFS Forest Service General Technical Report RM-241

Photos: Endangered species from the USFWS National Digital Library, Public Domain.