Trump Administration Rescinds The Definition Of “Harm” Under The Endangered Species Act

On July 10, 2026, the United States Fish and Wildlife Service and the National Marine Fisheries Service (collectively the “Agencies”) have adopted a final rule rescinding the regulatory definition of “harm” under the Endangered Species Act (“ESA”). The rule removes the long-standing regulatory language that treated certain habitat modifications as a prohibited “take” when the habitat impacts resulted in injury or death to listed species. The Agencies concluded that the prohibition on “take” applies only to direct actions against protected wildlife and that the expansive regulatory definition of “harm” exceeded the scope of the statute.

Background

The ESA prohibits the “take” of endangered wildlife. “Take” is defined broadly to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.” (16 U.S.C. § 1532(19).) Since 1981, federal regulations defined “harm,” as used in the definition of “take,” to means “an act which actually kills or injures wildlife. Such act may 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.) Under this definition, habitat destruction that indirectly injured listed species could constitute a “take” even where no direct action was taken against the species itself.

The Supreme Court (“SCOTUS”) upheld the C.F.R.’s definition of “harm” in Babbit v. Sweet Home Chapter of Communities for a Great Oregon, (“Sweet Home”), largely deferring to the Agencies’ construction of the statute by applying Chevron deference. (515 U.S. 687, 703-04 (1995).) Following SCOTUS’ decision in Loper Bright, which eliminated Chevron deference, the Agencies reevaluated the regulation and concluded that the statutory definition of “take” is best interpreted to reach only direct actions against protected wildlife.

Legal reasoning for the rescission

The Agencies relied on Justice Scalia’s dissenting opinion in Sweet Home to conclude that the regulatory definition of “harm” improperly expanded the statutory term “take” beyond its ordinary meaning. “Take” as statutorily defined, comprises of terms that describe affirmative acts directed at the animals themselves rather than indirect impacts to the habitat. Further, the ESA provides for habitat conservation through the critical habitat protections under section 7 and other authorities, thus making it unnecessary and inconsistent with the statutory text to treat habitat modification as a form of “take.”

Potential Impacts

Going forward, habitat modification alone will likely not constitute a prohibited “take” under ESA section 9. As a result, project proponents, landowners, and regulated entities will likely see reduced liability exposure from land disturbing activities that do not directly injure or kill listed wildlife.

This rule is already facing legal action. On July 14, 2026, Earthjustice, in conjunction with several conservation groups, filed suit in the United States District Court for the Western District of Washington, Seattle Division, challenging the rescission. Further, it is expected that future litigation will address the extent to which habitat protections can continue to be enforced under the ESA absent the rescinded definition of “harm.”