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the Fish and Wildlife Service and National Marine Fisheries Service (together, Services) propose to remove the regulatory definition of harm from the implementing regulations for the Endangered Species Act (Act) (FR/Vol. 90, No. 73/Thursday, April 17, 2025).So, what might this mean for practitioners of Section 7 consultation under 7(a)(2) of the Act?

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A few key updates and useful links for 2025...

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Well, the US Fish and Wildlife Service and National Marine Fisheries Service have finalized revisions to the regulations for consulting under Section 7 of the Endangered Species Act (ESA)... ...To make sense of what the Services appear to be saying, I’ve put together a brief decision tree which I believe crudely describes the process outlined in the preambles to the proposed and final rules. I offer it below with a couple of caveats...

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The Fish and Wildlife Service and National Marine Fisheries Service (Services) have proposed new revisions to the regulations for consultation under section 7 of the Endangered Species Act... The same day in separate notices, the Services proposed changes to the regulations for listing of species under the Act and to reinstate the 1978 blanket 4(d) rule for threatened species... [One] proposed change is a change that in my view does represent a substantial change in practice and the Service acknowledges as much. The proposal is to edit the definition (402.02) of reasonable and prudent measures (RPMs), to edit 402. 14(i)(1)(i) and (ii), and to add section 14(i)(3) – all to reflect a new interpretation by the Services. Those changes broaden the scope of those measures...

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