By: Emily Hardiek
On July 14, 2026, the US Fish and Wildlife Service and National Marine Fisheries Service (Services) finalized a rulemaking rescinding their definitions of “harm” under the Endangered Species Act (ESA). The final rule will take effect on September 12, 2026.
The ESA prohibits the “take” of endangered species. Under the ESA, “take” is defined as, among other things, to “harm” an endangered species. Through regulations, the Services defined the word “harm” to include significant habitat modification or degradation. The Services rescinded this definition, stating that the definition did not match the single, best meaning of the statute. The Services did not issue a new definition. Instead, they will interpret the law based only on the Endangered Species Act’s text, following Justice Scalia’s dissent in Sweet Home. Under this approach, a “take” occurs only when someone intentionally engages in direct actions aimed at a specific animal or animals. Habitat changes that indirectly or accidentally harm wildlife would no longer be considered a “take” under the Act.
It should be noted that, while this regulatory rescission removes protections for species habitats, Section 7 of the ESA still prevents federal actions that would result in the destruction or adverse modification of critical habitats of endangered and threatened species.
Straughan will continue to support public and private clients through these ongoing changes. Check back in for updates as they come!