Recently I've been asked my reaction to the September 14th internal guidance (Scope of the Endangered Species Act’s “take” prohibition following the Harm Rule (91 Fed. Reg 43300)). This guidance was directed to the U.S. Fish and Wildlife Service and concerned applying the word harm as a form of take. Harm is one of the 10 words used by congress in the ESA to define take (harm, harass, pursue, hunt, shoot, wound, kill, trap, capture, or collect). Congress did not further define any of those terms, but the Fish and Wildlife Service did define harass and harm through regulation in 1975 and a revision in 1981. The National Marine Fisheries Service defined harm through regulation in 1999. Here are my initial thoughts on the guidance (remember, I am not an attorney.)

In July the Services removed their own regulatory definitions for harm. If you have read my blog regarding that action, you’ll know that from a Section 7 perspective, it only changes the incidental take statement (ITS). And the ITS only comes into play after the project that's being consulted on has already satisfied Congress's requirements of 7(a)(2) regarding jeopardy to the species. In other words, only if the project is good to go as proposed before the ITS is constructed. So, in the big scheme of things the rescission of the definition of harm doesn't alter Congress’s most important requirement under 7(a)(2).

Up until now, it was my view that even without a regulatory definition for harm, a biologist constructing an ITS could still find that harm is likely to occur. And that it could occur to individuals of listed fish and wildlife incidentally from effects of a proposed project. The finding would, of course, have to be well-reasoned, rest on established information regarding the species’ biological needs, use the general understanding of what harm means, and rely on specific facts from the project activities reviewed. In short, I believed that you didn't need an explicit regulatory definition for harm if you followed a well-reasoned approach supporting a conclusion of take in the form of harm.

However, with this new guidance it appears the approach suggested above would no longer be viable. As far as I can tell, the guidance seems to be suggesting that in order to make a finding of take in the form of harm from a project’s effects, the take in question can’t be incidental to the carrying out of that project but must be intentionally directed at individuals of the listed species - “…“take” reaches only an affirmative act that is intentionally and purposefully directed at a particular animal.” (September 14, 2026, Internal Guidance). This leaves me perplexed. Here is why.

In 1982 Congress amended the Endangered Species Act (Act) to, among other things, specifically create a mechanism in Section 10 by which a private (non-federal) entity could get a permit for take of a listed species “…if such take is incidental to, and not the purpose of the carrying out of an otherwise lawful activity.” [10(a)(B), Act]. At the same time Congress added a similar mechanism (but different – not a permit) in Section 7 for take that would occur incidentally as part of a federal project. That mechanism consisted of preparing an ITS where the take would be specifically identified and enumerated. “The taking of an endangered species or a threatened species incidental to the agency action will not violate such subsection [7(a)(2)] … the Secretary shall provide the Federal agency…with a written statement that…”7(b)(4)(A) and (C). Then this written statement would be attached to the biological opinion. These mechanisms removed the prohibition on specific incidental take by non-federal entities (through a Section 10 permit) or federal agencies (through a Section 7 ITS).

Acknowledging these mechanisms from the amendments, in 1986 the Services included a definition for incidental take in the regulations for implementing Section 7 “…takings that result from, but are not the purpose of carrying out an otherwise lawful activity conducted by the Federal agency or applicant” 50 CFR 404.02. Also, additional language regarding incidental take statements was included at 50 CFR 402.14(i).

So given Congress's interest in setting up procedures regarding incidental take of listed fish and wildlife with their 1982 amendments to the ESA and the 1986 regulations further codifying that concept, I'm having trouble aligning that background with this internal guidance. The simple reason is this - if Congress in 1982 was addressing incidental take that could occur from a project but wasn't really the purpose of the project - that seems at odds with guidance that suggests harm can only come from an act or a project that intentionally takes fish and wildlife.

I've long been a proponent of the Services being more careful and judicious regarding the determination of whether and how much take is likely to occur from a project when they're writing ITSs. I was a constant critic of what I viewed as many Service biologist's somewhat casual and expansive translation of project effects to take in the ITS. However, the approach of the internal guidance appears to go much further than emphasizing careful establishment of incidental take for an ITS. It seems to be taking the position that harm as a form of take cannot be incidental.

Perhaps there will be more clarification of how to specifically apply this internal guidance to the construction of an ITS for biological opinions and the language regarding take for section 10(a)(1)(B) permits, but currently, for me, the internal guidance raises more questions than answers.