The US Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS; jointly, the Services) just finalized a rule rescinding the regulatory definition of “harm” under the Endangered Species Act (ESA). This action, once it becomes effective in September 2026, removes the longstanding regulatory language stating that habitat modification or degradation can potentially lead to take under the ESA.
The Services indicate that the ESA’s statutory prohibition on take remains unchanged, but the removal of the definition of harm may influence how impacts to listed species and habitats are evaluated and regulated moving forward. The practical implications of this rescission are expected to evolve as federal agencies interpret and implement the change.
In summary:
• The regulatory definition of “harm” has been rescinded
• The ESA’s prohibition on take remains in place
• The rule removes language that previously specified that take can result from habitat modification and degradation
• Additional guidance and interpretation may emerge as federal agencies respond to the change
• Lawsuits challenging this decision are anticipated
Infrastructure, energy, transportation, and natural resource projects may wish to consider how this change could influence future ESA compliance, permitting, consultation, and conservation planning strategies. The implications for your projects will vary depending on project specifics, the species in question, and regulatory contexts. WEST is actively monitoring these developments and our team is available to help clients navigate regulatory uncertainty, assess project-specific considerations, and develop practical, science-based compliance and conservation strategies that remain aligned with evolving federal policy.
