On April 17, 2025, the U.S. Fish and Wildlife Service (FWS) and National Oceanic and Atmospheric Administration (NOAA) published a proposed rule Rescinding the Definition of “Harm” Under the Endangered Species Act (ESA). By rescinding the definition of “harm,” the agencies would rely on the already existing definition of “take.”
The agencies explain that this definitional change will allow them to “adhere to the single, best meaning of the ESA.” The change made by the proposed rule would be prospective in nature and would not impact on any permits granted before the rule is finalized.
Regulations promulgated under the ESA can affect a small entity’s daily operations as well as the land they operate on. Additionally, ESA regulations delay infrastructure or other public works projects that small entities help build and benefit from. Advocacy supports the agency’s proposed rule because it will reduce regulatory burdens by bringing much-needed clarity to the scope of the ESA.
Advocacy also suggests the agencies include additional information about the proposed rule’s benefits in the rule’s initial regulatory flexibility analysis. We stand ready to assist in this effort.