One of the Endangered Species Act’s most fundamental protections for imperiled species is prohibiting unauthorized “take,” a term Congress defined broadly to include killing, harassing, wounding, harming, and more. But in July of this year, the Trump administration eliminated the longstanding regulatory definitions of “harm,” removing the take prohibition for wildlife killed or injured by significant habitat destruction. Exactly two months later, the administration doubled down. In identical memos dated September 14, the US Fish and Wildlife Service and National Oceanic and Atmospheric Administration Fisheries declared that take applies only to affirmative acts intentionally directed at particular animals. This radical reinterpretation substantially narrows what it means to take protected species, and therefore drastically limits how the ESA can protect them.

To understand why this matters, consider how Congress designed the ESA over 50 years ago: not only to prevent extinction, but also to ensure recovery of listed species. A key component of that design is the statute’s expansive definition of take. The Supreme Court later confirmed that take encompasses the whole spectrum of human activities that affect animals—directly and indirectly, intentionally and incidentally—from shooting or trapping them to destroying the places they live, forage, and reproduce. This does not mean that the ESA categorically prohibits development, logging, resource extraction, or other activities. In fact, its incidental take provisions have long provided a way for otherwise lawful activities to proceed, but in a way that reduces impacts on protected species.

The ESA is credited with preventing the extinction of 99% of species placed under its protection. It has conserved habitat for countless species: securing wildlife corridors and crossings for Florida panthers; protecting the mature forests red-cockaded woodpeckers need to survive; and reducing the impacts of development and off-road vehicles on desert tortoises. For more than 50 years, the law has provided a practical framework for protecting species while allowing responsible development to move forward.

We cannot protect wildlife by pretending foreseeable but unintentional take doesn't count.

The administration’s radical reinterpretation of take guts much of that framework.

Under this reinterpretation, take applies only to conduct intentionally directed at a particular animal. So if a bulldozer clearing land for a highway crushes and kills an owl in the process, that's no longer take—because no one meant to kill that owl. And if owls die because the land that was cleared included the old growth trees they need for shelter, that’s no longer take either—because again, no one meant to kill those owls. If an ATV crushes shorebird nests on a beach or a car hits a Florida panther or a boat strikes a right whale, the wildlife agencies say those deaths no longer constitute take under the ESA unless the rider, driver, or boater was aiming their vehicle at an animal, purposefully trying to hurt it.

This reinterpretation isn't a mere technicality. If an action isn’t take, key ESA provisions designed to prevent or minimize the impacts of the action on listed species won’t apply. For example, the reinterpretation threatens to make incidental take permits and incidental take statements unnecessary in many........

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