On May 19, AGC responded to a proposal to rescind the definition of “harm” in the regulations implementing the Endangered Species Act (ESA). The definition of harm, although long-standing, was added to the initial regulations to include habitat modification—expanding and broadening the reach of the ESA. Contractors routinely take measures to avoid and minimize interactions with protected wildlife as a key part of environmental permitting and approvals for projects.
“Harm” is one of the prohibited activities under the ESA collectively referred to as “take” that also include harass, pursue, hunt, shoot, wound, kill, trap, capture, or collect. The ESA obligates contractors to avoid the “take” of protected species while constructing projects of all types. The prohibition of harm to protected wildlife would remain, and the other prohibitions remain unchanged by the proposal.
As previously reported, the April 17 proposal by the Fish and Wildlife Service and National Marine Fisheries Service (the Services) asserts that the inclusion of habitat modification in the current definition of “harm” is contrary to the single, best meaning of “take” in the statute.
AGC also urged the Services to provide guidance on operating under this new framework. It is unclear at this moment the impact the proposal would have on critical habitat listings and other habitat conservation or protective measures that contractors are obligated to follow.
In a related development, the Trump administration has once again decriminalized the incidental (or accidental) take of migratory birds. The Biden administration had reversed this policy initially advanced in the first Trump administration.
For more information, please contact Melinda Tomaino.