A new Endangered Species Act final rule removes improper interpretation of “harm”

On July 14, the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) published an important final rule in the Federal Register that changes how the Endangered Species Act’s (ESA) “take” prohibition is implemented. Specifically, the final rule rescinds the agencies’ definition of the term “harm.” This term appears within the ESA’s definition of “take.”

The ESA prohibits the “take” of any endangered species. The statute defines “take” as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”

Each of these verbs in the “take” definition describes direct, affirmative acts toward an individual member of a species. Unfortunately, decades ago, the FWS and NMFS defined the term “harm” much more broadly to include potential indirect effects on species through habitat modification.

Such an interpretation is inconsistent with the definition of “take.” This is, in part, because one important canon of statutory interpretation holds that a word is given meaning from surrounding, associated words. “Harm” should therefore be interpreted consistently with the other verbs in the “take” definition — that is, as referring to direct, affirmative acts toward an individual member of a species. It should not be interpreted to include actions that may have only an indirect effect on species.

It’s also important to note that another section of the ESA (Section 7) expressly regulates actions that modify habitat. Not only does this mean that actions that modify habitats are still addressed in the statute, but it also suggests that, if Congress wanted habitat modification to be included as a form of “take,” it would have said so.

Under the now-rescinded definition of “harm,” the agencies effectively gave themselves the green light to regulate all manner of ordinary land-use activities on private lands. The federal government is not a local zoning board. This final rule respects private property rights and is consistent with the plain language of the statute.