Bottom Line Up Front – If modification/alterations to habitat affect individuals of a listed species indirectly through established ecological pathways, that effect should be described in an Effects of the Action Analysis for Biological Assessments. The Service’s proposed elimination of the regulatory definition for harm as a form of take does not change this analysis approach.

As you might imagine I've received several contacts regarding the Services’ (Fish and Wildlife Service and National Marine Fisheries Service) proposal in April 2025 to drop the regulatory definition of harm from the regulations. I wrote a blog about the history of this term and the proposal in April, which can be read here: Services Propose to Rescind the Regulatory Definition of Harm.

What some of the contacts were concerned about was whether removing the definition of harm (to describe a form of take) would somehow eliminate or alter the action agency’s ability to use impacts to habitat in an Effect of the Action Analysis. This concern stems from the Federal Register notice where the Services suggested that impacts to habitat should not be a pathway to a determination of harm. (This contrasts with the current harm definition which describes harm as potentially coming indirectly through significant habitat modification that impairs breeding, feeding or sheltering and results in actually killing or injuring fish or wildlife.)

The regulatory term harm, as I pointed out in the blog post linked above, is only an issue on the Services’ side of the consultation when they potentially must enumerate anticipated take in an Incidental Take Statement (ITS). It is not germane to the action agency’s description of likely effects to a listed species when an action agency is building a Biological Assessment for a proposed action. The definition of harm as a form of take isn’t even in the 50 CFR 402 regulations on section 7 consultation, but is in an entirely different section of federal regulations (50 CFR 17.3 for Fish and Wildlife Service’s definition and 50 CFR 222.102 for National Marine Fisheries Service’s definition).

Biological Assessments rely on the definition of effects of the action in 50 CFR 402.02. Whatever pathways (direct or indirect) cause the anticipated effects from the project, and however negative they are (even including injury or death), must be described clearly and accurately by the action agency, using whatever commonly used words are appropriate. [Remember to include the rationale supporting the conclusions.] If some of those effects come by way of changes to habitat, they are included in the analysis. This should be done without ever thinking about (or using) the specific list of words (harm, harass, pursue, hunt, shoot, wound, etc.) defined as take by Congress in section 3 of the Act. And the Biological Assessment is therefore not influenced by whether or not there is a regulatory definition of one of those words (e.g. harm or harass).

The Services’ necessary considerations on the issue of harm and take for the ITS comes only AFTER a successful consultation (meaning a finding of No jeopardy, No destruction or adverse modification). (It might be helpful to think of the ITS as the place where the Service sorts and translates some of the more severe effects described in the assessment into a specialized category called “take”.) This point in the process comes long after a Biological Assessment has been assembled and finalized and is totally the responsibility of the Services.

To reiterate the bottom line - Action agencies should continue to write Biological Assessments by exploring and describing any likely effect on individuals of a listed species. This should include likely effects that are caused by habitat alterations. The potential elimination of the definition of harm is disconnected entirely from the Congress’ direction to action agencies for consultation stated at 7(a)(2) and the process for action agencies described in the regulations. The change would only affect the Services' construction of the ITS (if one is even necessary) after consultation has been successfully concluded.