The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) have proposed in a Federal Register notice to rescind the regulatory definition of “harm” in their Endangered Species Act (ESA) regulations. The existing regulatory definition of “harm,” which has been used since 1981, includes habitat modification. The Services have stated in the notice that including habitat modification runs contrary to the best meaning of the statutory term “take.”  The Services are undertaking this change to adhere to the single, best meaning of the ESA. They are seeking public comment on this proposed regulatory change by May 19, 2025.

ESA Take and Harm

The ESA prohibits the “take” of endangered species. As defined in the ESA, 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.” This makes sense in light of the well-established, centuries-old understanding of “take” as meaning to kill or capture a wild animal.

Regulations promulgated by FWS in 1981 expanded the ESA's reach in ways that do not reflect the best reading of the statute, to prohibit actions that impair the habitat of protected species.  Currently the word “Harm in the definition of `take' in the Act means an act which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”

The NMFS' definition is materially identical: “Harm in the definition of `take' in the Act means an act which actually kills or injures fish or wildlife. Such an act may include significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering.” 

Why is it important to comment in support of the proposed regulatory change?

The proposed definition removes the significant environmental modification language. During federal permitting, an agency (e.g., U.S. Army Corps of Engineers, Environmental Protection Agency) may request an ESA Section 7 consultation with FWS or NMFS to determine whether the activity proposed for permitting would “take” a listed species. The adoption of a simpler “harm” definition will result in a faster, less complex analysis by the agencies with individual, general and programmatic general permits being granted in a timelier manner and with less complicated, costly and restrictive permit conditions. 

How to comment by May 19^th

Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-HQ-ES-2025-0034, which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the panel on the left side of the screen, under the Document Type heading, check the Proposed Rule box to locate this document. You may submit a comment by clicking on “Comment.”

(2) By hard copy: Submit by U.S. mail to: Public Comments Processing, Attn: FWS-HQ-ES-2025-0034, U.S. Fish and Wildlife Service, MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.

For a farmer friendly ESA analysis, click the National Agricultural Law Center developed ESA-Manual.pdf. If you have questions, contact the NAA Office at naa@nationalaquaculture.org.