Proposed Federal Rule Change to Endangered Species Act Could Make Floodplain Development Easier

5/5/25 – A proposed Federal rule change by the U.S. Fish and Wildlife Service (USFWS) concerning threatened and endangered species could make floodplain development easier.

Changing Definition of ‘Take’

The rule change would limit the Endangered Species Act’s power to protect habitat by deleting the word ‘harm’ from the explanation of what it means to ‘take’ a member of an endangered species.

The definition (page 3, paragraph 12) says, “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.”

‘Harm’ is the only word in that definition applying to habitat. As NPR reported, “For decades, federal agencies have interpreted ‘harm’ broadly, to include actions that modify or degrade habitats in ways that impair endangered species’ ability to feed, breed or find shelter.”

And in the north Houston area, floodplains provide prime habitat.

Many environmentalists point to habitat loss as the major cause of species loss. They also point to habitat protection as the reason for animals, such as bald eagles, being removed recently from the Endangered Species List.

But if the proposed rule change is adopted, only actions that directly hurt or kill actual animals, not the habitats they rely on, would remain covered by the act.

And that could make floodplain development easier because many threatened and endangered species live near water, imposing additional burdens on developers.

Why the Proposed Change?

The Federal Register says, “The existing regulatory definition of ‘harm,’ which includes habitat modification, runs contrary to the best meaning of the statutory term ‘take.’” 

But the definition of ‘take’ has included ‘harm’ for 50+ years. So, clearly this rule change is politically motivated. And in fact, this is the USFWS’s response to Executive Order 14192 of January 31, 2025.

The introduction to the executive order states that the “ever-expanding morass of complicated Federal regulation imposes massive costs on the lives of millions of Americans, creates a substantial restraint on our economic growth and ability to build and innovate, and hampers our global competitiveness.”

Any Change Would Not Be Immediate

Congressman Dan Crenshaw’s office provided this map showing the nine steps necessary in adopting such a rule change.

We are in the early stages of this process.

People born before the Endangered Species Act became law in 1973 may remember the precipitous loss of bald eagle habitat. They may also remember how protection of that habitat helped bring the species back. At one point, there were fewer than 500 nesting pairs in the entire lower 48 states – an estimated 99.5% population collapse.

It’s unclear how the change of this definition in the Endangered Species Act will affect eagles. Eagles are no longer on the endangered species list. But they are protected under other laws, such as the Bald and Golden Eagle Protection Act, also administered by USFWS.

Impact in the San Jacinto Watershed, Floodplains

The Endangered Species Act has hugely affected the oil and gas industry, mining, and land development – all staples of the local economy. So, locally, opinions on this proposed rule change may be sharply divided.

But we also should recognize that many people choose to live in the north Houston area because of the proximity to nature and the abundant wildlife found here. Some of it has survived for the last 50 years because of the Endangered Species Act.

A case in point would be the bald eagle, which can be seen regularly along the shores of the San Jacinto. And where Ryko is planning on building 7,000 homes on 5,500 acres just upstream from Kingwood.

How Do You Feel?

If you would like to add your voice to this debate, here are instructions for submitting a public comment. The page also includes a lengthy discussion of pros and cons from different points of view.

The Federal Register indicates that the public comment period on the proposed rule change will remain open through May 19, 2025. So far, people have submitted more than 26,000 comments.

Posted by Bob Rehak on 5/5/25

2806 Days since Hurricane Harvey

The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.

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