The U.S. Fish and Wildlife Service and National Marine Fisheries Service (the Services) have jointly proposed removing the definition of “harm” from regulations implementing the Endangered Species Act (ESA).
As stated in the proposal:
“The existing regulatory definition of ‘harm,’ which includes habitat modification, runs contrary to the best meaning of the statutory term ‘take.’ We are undertaking this change to adhere to the single, best meaning of the ESA.”
Read more in the full Regulatory Alert.
What to Watch
The Services have not proposed a new definition for “harm” and do not intend to. However, they may issue future guidance if the rule is finalized.
The courts will ultimately establish the meaning of take under the ESA and whether harm via habitat modification is a prohibited action, but resolving this question may take years to materialize. Court interpretations may also vary across jurisdictions, potentially leading to regional differences in how ESA take is defined and enforced.
The public comment period for the proposed rule ends May 19, 2025, after which the Services may issue a final decision. Given their asserted alignment with prior legal opinions and executive direction, final action may move quickly.
View and Comment on the Proposal.
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