FWS And NMFS To Rescind ESA "Harm" Definition

Today, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (together, the Services) proposed rescinding the definition of "harm" under the Endangered Species Act (ESA). Harming a listed species will still be a prohibited "take" under the ESA, which includes other activities that harass, pursue, hunt, shoot, wound, kill, trap, capture, or collect a listed species. This proposal is in response to President Trump's April 9 Executive Order, "Directing the Repeal of Unlawful Regulations," and may serve as one of the first test cases for future deregulatory efforts.

The existing regulatory definition of "harm" includes significant habitat modification or degradation that actually kills or injures wildlife. In 1995, relying on Chevron deference, the Supreme Court upheld this regulatory definition. Citing the Supreme Court's recent Loper Bright decision overturning Chevron, the Services concluded the regulatory definition of "harm" is not