On April 3, 2026, the final rescission of the U.S. Fish & Wildlife Service and National Marine Fisheries Service (together, Services) definitions of the term “harm” from their respective Endangered Species Act (ESA) implementing regulations arrived at the Office of Information and Regulatory Affairs (OIRA) for E.O. 12866 review. E.O. 12866 requires federal agencies submit “significant” proposals to OIRA prior to issuance in order to ensure, among other things, that such proposals analyze costs and benefits, and avoid conflicting policies. There is no deadline by which OIRA must complete its review.
ESA section 9 prohibits “take” of species listed as endangered. “Take” is defined by section 3 of the ESA as to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct” and applies to public and private activities alike. By regulation, the Services have long defined the term “harm” to include significant modification or
