The ESA Edit That Could Affect an $800 Million Species Offset Market and Undermine Decades of Tribal Salmon Recovery
Co-written by Becca Madsen and Nicole Stiffarm
Last month, EPIC submitted detailed public comments opposing a proposed federal rule that would weaken the Endangered Species Act by removing habitat destruction from the definition of "harm." If the Rule goes through, it has profound implications for the restoration economy and Tribal communities. Comment letter originally submitted: May 19, 2025
Under the current ESA, "harm" includes habitat modification that actually kills or injures wildlife. This means developers need permits before impacting habitat for endangered species. The proposed rule would eliminate this protection entirely.
What would this mean? Intentionally kill, shoot, hunt a threatened or endangered species🦊🩻 ➡️ Still need a permit. Destroy habitat🗺️🩻 ➡️ OK. This is a big departure in how the ESA has been regulated.
$800 Million Species Restoration Industry Under Threat
Our research demonstrates significant and quantifiable economic “reliance interests” based on the current definition of "harm," which includes habitat modification. The species restoration economy—built around the current ESA framework—generates approximately $800 million in total economic output and supports thousands of jobs across the country.
Key economic findings from our comment letter:
$541 million in annual ESA mitigation sales alone
$483 million already invested by restoration businesses in species habitat
$300 million in additional planned investment now "chilled" by regulatory uncertainty
Average restoration job pays $81,673 annually
The Ecological Restoration Business Association warned that this rule change could create "stranded investments" and delay conservation projects by a decade or more, as businesses face uncertain regulatory landscapes.
Tribal Sovereignty and Treaty Rights Under Attack
Our work on tribal opportunities in environmental restoration has identified significant reliance interests based on the ESA’s current definition of "harm." We note that our perspective aligns with concerns raised by numerous tribes that have submitted comments to the proposed ESA rule change. While we do not presume to speak for these sovereign nations, our independent research and analysis reinforces the legitimacy of tribal concerns regarding treaty rights, economic investments, and cultural sovereignty that would be compromised by this proposed change.
The Nooksack Tribal Council noted they've "invested millions of federal, state, local and tribal dollars into recovering habitat to support de-listing of our salmon populations" and worry about "millions of dollars of stranded investments."
The Stillaguamish Tribe emphasized that "without habitat and the species that use and depend on those critical habitats, commercial fisheries are at further risk of being reduced or closed altogether."
Treaty Rights
As we’ve written previously, the federal government has a legal and moral obligation to federally recognized tribes. Under its trust responsibility, the federal government is required to act as a fiduciary, safeguarding tribal interests and ensuring the well-being of tribal communities.
“Tribal rights to resource use extend far beyond reservation boundaries. In the treaties, tribes reserved the rights to hunt, fish, gather roots and berries, and pasture livestock on non-reservation lands. Many places where tribes possess these rights are on ceded lands on the millions of acres they gave to the United States in exchange for reservations and other rights and guarantees embodied in the treaties. The tribes also retained rights to fish at “all usual and accustomed places” that lie outside the ceded areas.” (CRITFC treaty rights webpage)
In other words, Tribes reserved rights, resources, and other guarantees to ensure Tribal well-being when they gave lands to the United States. The trust responsibility is the duty of the United States to uphold its end of the agreement.
For Tribal communities, this isn't just about economics—it's about sovereignty, cultural preservation, and the federal government's trust responsibility to honor treaty commitments made when Tribes ceded millions of acres to the United States.
“It's in case law. It's in treaties, which are the supreme law of the land, so I don't know what more obligation than that there could be.” - Lummi Nation Councilmember Lisa Wilson (KUOW article, June 6 2025)
The Salmon Story: Decades of Investment at Risk
Both Tribal and commercial fisheries foundationally need quality habitat, and nowhere are the stakes higher than with Pacific salmon recovery. Tribes, states, and federal agencies have invested hundreds of millions of dollars over decades in habitat restoration—from the recent Klamath Dam removal to countless stream restoration projects across the Pacific Northwest.
The Hoopa Valley Tribe warned that "removing habitat-based protections from the definition of 'Harm' would undermine the substantial investments made by tribes, states, and the federal government to recover salmon populations."
If habitat modification affecting endangered salmon populations no longer requires permits, upstream development could damage decades of Tribal investment in salmon survivability and food sovereignty. Furthermore, any modification that adversely affects habitat will degrade downstream waters. The incalculable effects may extend far beyond impeding salmon recovery efforts.
What's Next
The comment period for this proposed rule has closed, and federal agencies are now reviewing input from stakeholders. If the rule is finalized as proposed, it would significantly reshape the restoration economy and create uncertainty for ongoing conservation investments. For an industry built on long-term ecological planning, regulatory stability matters for business decisions and conservation outcomes alike. For Tribal communities, the proposed changes raise fundamental questions about treaty rights and decades of restoration investments in salmon recovery.
EPIC will continue tracking this proposed rule's progress and working to ensure decision-makers understand the economic and social implications of changes to ESA habitat protections.
Read our full comment letter here.