Rescinding the Definition of “Harm” Under the Endangered Species Act
Key claim: The U.S. Fish and Wildlife Service and National Marine Fisheries Service are rescinding the regulatory definition of “harm” under the Endangered Species Act, removing it from 50 CFR parts 17 and 222.
Abstract
(Rule · Interior Department, Fish and Wildlife Service, Commerce Department, National Oceanic and Atmospheric Administration) We, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS; collectively referred to as the “Services”) rescind the regulatory definition of “harm” in our Endangered Species Act (ESA or the Act) regulations. This rescission removes the regulatory definition of “harm” from the Code of Federal Regulations (CFR) in Title 50 parts 17 and 222.
Why this matters
The rescinded definition of ‘harm’ had for decades brought habitat modification within the ESA’s Section 9 take prohibition, shaping consultation, permitting, and land-use decisions across federal and private actions. Removing it narrows the practical reach of ESA enforcement for activities like logging, development, and resource extraction on non-federal lands, though litigation over the change and its interaction with species-specific listings and critical habitat designations is likely. Downstream effects on other ESA actions (listings, delistings, critical habitat) will depend on how agencies and courts interpret ‘take’ going forward.