For decades since it was created in the 1970s, the Endangered Species Act has been interpreted to prohibit any killing of an endangered species, even if unintentional. Now, that’s about to change.
A directive issued on Sept. 14 from the director of the U.S. Fish and Wildlife Service, made public by the Center for Biological Diversity, concerns the definition of what it means to “take” a species. Now, in order for an action to be prohibited, “the person must intend to act on an animal and must do so for the purpose of affecting the animal,” the memo says.
Erica Fuller, senior counsel at the Conservation Law Foundation, said that as a result, individuals and companies will no longer be required to take steps to avoid unintentionally killing animals.
“Under this interpretation of the Endangered Species Act, it would mean that all of that mitigation, and all of the things that industries do to avoid trying to harm or kill or harass animals, wouldn’t be enforced. The only time that someone would actually be liable for a ‘take’ is if they directly and intentionally tried to kill a particular animal.”
These changes could affect endangered species in Massachusetts, such as the piping plover. Lyra Brennan, director of Mass Audubon’s Coastal Waterbird Program, notes that this shorebird, whose population has rebounded in recent decades, is currently protected from unintentional killings in several ways.
“This is a species that was down to 135 pairs in 1986. We are at over 1,200 pairs now in the state of Massachusetts, and that’s because there are regulations in place,” she said. “We’ll put up fencing around these birds. We’ll try to make sure that vehicles don’t run them over and don’t run over their chicks. We’ll ask folks to leash their dogs so the dogs aren’t unintentionally killing chicks.”
But under the new changes to enforcement of the Endangered Species Act, it may get more difficult to enforce compliance with protections like these.
Fuller notes that the new directive also comes at the heels of other changes to the Act, including a removal of the definition of “harm” that was finalized earlier this month, which reduces the government’s ability to protect habitats of endangered species.
She says the administration has “changed the regulations, it’s issued new policies, and it’s removed regulatory definitions like the ‘harm’ definition that were offering a lot of protection.”
However, she noted that the changes are still uncertain. “Whether it holds up in court or not is still to be determined,” she said.
