In a pretty interesting development, 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?
Background
A little background regarding the word harm. Practitioners will remember that harm is one of the words that Congress used to define ”take” in 1973. Congress defined take in section 3 of the Act as “… to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect or to attempt to engage in any such conduct”.
In 1975, two years after the signing of the Act, the Fish and Wildlife Service promulgated a regulatory definition for two of Congress’s words - harm and harass. Then in 1981, shortly after a 9th circuit case that discussed take and harm, the Fish and Wildlife Service modified that 1975 definition of harm. The National Marine Fisheries Service didn’t promulgate a definition for harm until 1999. (Their definition is functionally identical to the Fish and Wildlife Service’s. They have not promulgated one for the term harass.)
In the current proposal, the preamble asserts that the Services’ definitions “…do not match the single, best meaning of the statute.” The proposal claims that the word harm in Congress's definition of take should be viewed more strictly as representing a direct and immediate act toward listed fish and wildlife rather than through some indirect means (i.e. habitat modification). Part of the Services’ rationale for this view comes out of the Supreme Court case of Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995). That case was a facial challenge to the Fish and Wildlife Service’s regulatory definition of harm. The definition was upheld by the majority of the court. They found that the “…Secretary reasonably construed the intent of Congress when he defined “harm” to include “significant habitat modification or degradation that actually kills or injures wildlife.” However, the proposal’s narrower view regarding the word, is supported by the dissent in the case.
7(a)(2) Consultation
Practitioners know that the prime directive of 7(a)(2) is for action agencies to consult with the Services to ensure that their projects are not likely to jeopardize a listed species or be likely to result in the destruction adverse modification of critical habitat. This proposal regarding the term harm will change nothing with regard to that direction from Congress to federal agencies. Nor does it alter the process outlined in the implementing regs at 50 CFR 402. In fact, the word harm does not appear in those regulations. The harm definitions are found in 50 CFR 17.3 and 222.102 for the Fish and Wildlife Service and National Marine Fisheries Service respectively.
Incidental Take Statements
Where the change could alter consultation documents would be in the Incidental Take Statement (ITS) that is often attached to the final Biological Opinion. Now a caution - I offer the following thoughts on the ITS not knowing whether the Services will promulgate a final rule on this rescission and not knowing whether the Services may issue guidance on its application in the ITS.
Currently after a determination that the project has satisfied 7(a)(2), if there are adverse effects that meet the multiple (and different) conditional statements in the definitions of harm or harass, the Services enumerate that take in number of individuals or an appropriate surrogate. (It’s worth remembering that the effect to the species from any adverse effect that is translated into take has already been considered in the 7(a)(2) analysis and Services’ opinion.) After enumerating take, the Services establish required reasonable and prudent measures (RPMs) and terms and conditions (T and Cs) for reducing the effect of that take (see my Blog post: Revisions to the Consultation Regulations for a review of this). An interesting side note is that it wasn't until 1982 that Congress amended the Act to allow for permitting incidental take under section 10(a)(1)(B) for nonfederal entities and requiring, under Section 7 for federal agencies, that an Incidental Take Statement be included with a Biological Opinion if appropriate. Before that amendment opinions were delivered with no ITS.
Depending on the Services’ direction if the rescission is finalized, it seems to me that rarely if ever would a typical federal action meet the proposed view of harm as a form of incidental take. I guess that would result in most opinions being issued with a very sparse and limited ITS and consequently few if any RPMs and T and Cs. I know the form of take – harass is used by some practitioners in ITSs, but I have a feeling that will be the subject of some future direction. Harass has always been difficult to apply and somewhat controversial among practitioners within the Services, and for a short while the Fish and Wildlife Service officially stopped using it as a form of incidental take under 10(a)(1)(B) permits. Also, sometimes capture is a form of take that is enumerated in the ITS typically for salvage and relocation.
Now if you know me you know that I have always been interested in the nuances of take, harm and harass but have never been a fan of Incidental Take Statements. It is very difficult to write them in a way that maintains consistency with the multiple court opinions regarding their strict nature, and they have been lightning rods for scores of lawsuits since at least 2001. Those lawsuits are often lost when the ITS constructed by the Services is found to be arbitrary and capricious. The RPMs and T and Cs are also difficult to write, take additional time, and, because they are compulsory for the action agency, often negatively affect interagency cooperation. The most recent Services expansion of the scope and scale of RPMs (see my Blog post: Reg Changes have been Finalized) has only served to heighten these difficulties. So bottom line, if this proposed rule is finalized, I’m expecting substantially trimmed down Incidental Take Statements attached to future opinions. Oddly enough, that may actually speed up the timeline for Biological Opinion completion by reducing the writing effort associated with an ITS.
As always, we’ll see, but it is an interesting proposal……..