Regulatory Revisions to the Endangered Species Act
REGULATORY REVISIONS TO THE ENDANGERED SPECIES ACT
*The United States Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) have made changes to their Endangered Species Act (ESA) rules by rescinding the regulatory definition of “harm” as it relates to take of threatened or endangered species*
TIMELINE
July 10, 2026: The Department of the Interior’s United States Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) announced revisions to regulations under the Endangered Species Act (ESA) concerning endangered and threatened species protections via rescinding the definition of “harm”.
July 14, 2026: The Final Rule discussing these changes was published in the Federal Register (91 FR 43300 (50 CFR Parts 17 and 222)).
September 14, 2026: The Final Rule became effective.
REGULATORY REVISIONS
The USFWS and NMFS revised their regulations concerning what constitutes a “take” of threatened or endangered species under the ESA by rescinding their definition of “harm”. While the ESA defines the term “take” as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt to engage in any such conduct, both agencies have historically maintained a separate regulatory definition of “harm”. That definition included habitat modification or degradation where it actually killed or injured species by significantly impairing essential behavioral patterns including breeding, feeding or sheltering.
Rather than amend or replace the regulatory definition of “harm,” both agencies chose to rescind the definition entirely and return to the statutory definition of “take” as the operative language, which the agencies interpret under the traditional meaning of “take.”
CORE INSIGHTS and PROJECT DEVOLOPMENT IMPLICATIONS – Section 4(d)
For project proponents, rescinding the definition of “harm” will possibly have far-reaching effects on how habitat modification is evaluated under the ESA. Historically, the regulatory definition of ‘harm’ included certain significant habitat modification or degradation that actually killed or injured listed wildlife. With that regulatory definition now rescinded, how habitat modification will be evaluated as potential ‘take’ under the ESA remains an important developing issue.
In a July 2026 press release, the Department of Interior stated the changes are intended to reduce unnecessary permitting and compliance costs as well as eliminate confusion for landowners and project proponents. “It brings long overdue financial and regulatory relief to project proponents who faced unpredictable delays and unnecessary costs due solely to interpretations that went far beyond the statute” (Dept. of the Interior Press Release, July 10, 2026).
It is noted that the agencies’ core requirements as they pertain to Section 7 consultation, jeopardy analysis, adverse modification analysis (critical habitat), existing permits, and biological opinions remain effective.
Further, these changes are currently subject to multiple legal challenges, including lawsuits filed by environmental organizations and a coalition of state attorneys general seeking to vacate the rule change. DEA will continue to monitor the litigation and provide information regarding relevant court decisions as they become available.
Project proponents should continue to evaluate the potential effects to all protected species and continue to monitor for any future agency regulation changes.
HOW CAN DEA BE OF ASSISTANCE
DEA is actively tracking regulatory changes that pertain to project proponent concerns and is available to assist with any project-specific needs. Please reach out to DEA for regulatory questions in general or as they relate to your project-specific concerns and how any change may impact projects.
Senior Associates
NEPA Manager
Courtney Gaskill
Office: (877) 968-4787
Cell: (678) 656-6867
cgaskill@dynamicenvironmental.com
Senior Biologist
Jason Stayer
Office: (877) 968-4787
Cell: (512) 914-8615