On April 17, 2025, the U.S. Fish and Wildlife Service
("FWS") and the National Marine Fisheries Service
("NMFS") published a notice of proposed rulemaking to
rescind the agencies' respective regulatory definitions of
"harm" as that term appears in the statutory definition
of "take" in the Endangered Species Act
("ESA"), 16 U.S.C. § 1531 et seq. Comments
on the proposed rescission are due by May 19, 2025. See 90 Fed. Reg. 16102 (Apr. 17, 2025).
The ESA is the principal U.S. law protecting plants and animals
that have been designated as likely to face extinction. The statute
therefore broadly prohibits the "taking" of an endangered
species. The statute itself defines "take" to mean
"to harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect, or to attempt to engage in any such
conduct." 16 U.S.C. § 1532(19). By regulation, FWS
further defined the word "harm" to mean "an act
which actually kills or injures wildlife. Such an act may
