Federal Fisheries Agencies Propose Rule Rescinding the Regulatory Definition of ‘Harm’ Under the Endangered Species Act

June 2015

California Water Law & Policy Reporter, Volume 35, Number 9

On April 17, 2025, the US. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) (collectively: the Services) published notice of a proposed rule in the Federal Register that would rescind the current definition of “harm” to species under the Services’ federal Endangered Species Act (ESA) regulations.

Background

Enacted in 1973, the ESA is a federal statute designed to conserve species of wildlife, fish, and plants that are considered endangered or threatened. (16 USCA § 1531.) Among the ESA’s key provisions is a list of prohibited acts, which makes it unlawful to engage in certain conduct involving endangered species of fish, wildlife, or plants. (16 USCA §§ 1538, 1533.) For example, the ESA prohibits the sale or offer for sale of listed species in interstate or foreign commerce, as well as their import into or export from the United States. (16 USCA § 1538.) The statute also prohibits the “take” of endangered fish or wildlife, either within the United States, the territorial waters of the United States, or the high seas. (16 USCA § 1538.) The ESA defines “take” to mean harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” (16 USCA § 1532.)

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