pecies within the United States or the territorial sea of the United States." 16 U.S.C. § 1538(1)(B) (1996 Supp). The Act defines "take" as meaning to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19). For the purpose of the present situation, the most pertinent terms are "harm" and "harass." While the Act itself does not define "harm," the regulations promulgated by the Department of Interior state that "harm" refers to "an act which actually kills or injures wildlife." This can include significant habitat modification or degradation where it "actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." 50 C.F.R. § 17.3 (1995). These same regulations define "harass" as "an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns," including "breeding, feeding or sheltering." 50 C.F.R. § 17.3.
One of the first cases brought under this part of the Act was Hill v. Tennessee Valley Authority, 549 F.2d 1064 (6th Cir. 1977). This case dealt with the habitat of the snail darter and the development of the Tellico Dam in Tennessee. In this case, the appellate court held that the interpretation of the Act by the Regulations was "reasonable and consistent" with the court's reading of the Act's legislative history. At that time, the Regulations differed slightly from their present form in that they did not emphasize the necessity of actual death or in
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