Rescission Of The “Harm” Rule: Where Do We Stand

As we previously reported, on July 14, 2026, the U.S. Fish & Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, Services) published a final rule to rescind the definition of “harm” from their Endangered Species Act (ESA) implementing regulations (Final Rule). In the preamble to the final rule, the Services contend that the interpretations of “harm” and “take” set forth by Justice Scalia in his dissent in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995) (Sweet Home) represent the best interpretations of those terms as used in the ESA. Under Justice Scalia’s interpretation, “take” applies only to an affirmative act that is intentionally and purposefully directed at a particular animal.

Effective Date

The final rule became effective on September 14, 2026. The actual, legal consequence of the final rule becoming effective is that the regulatory definition of “harm” is now rescinded.

Agency Guidance

The same day the Final Rule took effect, USFWS issued a memo on the scope of the ESA’s “take” prohibition following the Services' final rule. USFWS reiterated the federal government’s position, which adopted Justice Scalia's dissent in Sweet Home, as the best reading of the statute in light of the Supreme Court's abrogation of Chevron deference in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). Under this framework, USFWS explained that “take” is a common-law term of art requiring an affirmative act intentionally and purposefully directed at a particular, living animal—meaning the actor must deliberately act on the animal itself, and the act must operate directly on the animal without an intervening causal link. The guidance clarifies that the means of take are immaterial so long as the conduct is aimed at the animal, that "immediately" refers to the absence of an intervening cause rather than a temporal limitation, and that modification of unoccupied habitat is never a take regardless of its eventual effect on the species. The final rule emphasizes that habitat-related impacts remain addressed through other provisions in the Act and that previously issued permits and incidental take statements will not be required to be reevaluated under the new rule.

Legal Challenges

Since the Services issued the final rule, several parties have filed lawsuits challenging the rule on various grounds. There are seven pending cases, including three filed in the Northern District of California, three filed in the Western District of Washington, and one filed in the District of South Carolina. The cases are:

• Environmental Protection Information Center, et al. v. National Marine Fisheries Service, et al., Case No. 3:26-cv-07176 (N.D. Cal.) (filed July 14, 2026)
• Defenders of Wildlife v. U.S. Fish and Wildlife Service, et al., Case No. 3:26-cv-07507 (N.D. Cal.) (filed July 20, 2026)
• State of California et al. v. Burgum et al., Case No. 3:26-cv-10071 (N.D. Cal.) (filed September 9, 2026)
• Swinomish Indian Tribal Community, et al. v. National Marine Fisheries Service, et al., Case No. 2:26-cv-02473 (W.D. Wash.) (filed July 14, 2026)
• Puyallup Tribe of Indians v. National Marine Fisheries Service, et al., Case No. 3:26-cv-05788 (W.D. Wash.) (filed July 14, 2026)
• Center for Biological Diversity, et al. v. U.S. Fish and Wildlife Service, et al., Case No. 2:26-cv-02474 (W.D. Wash.) (filed July 14, 2026)
• National Wildlife Federation, et al. v. U.S. Fish and Wildlife Service, et al., Case No. 2:26-cv-02897 (D. S.C.) (filed July 17, 2026)

It remains to be seen whether the cases will proceed in parallel or one or more of the parties will seek to consolidate them in a single venue. The United States is required to file answers to complaints in each case within 60 days of service of the complaint on the federal defendants. The United States filed its first answer denying that the plaintiffs are entitled to relief this week.

Scope of “Take” under the Act

In the administrative context and prospectively, the decision whether a specific action is or is not “take” for the purposes of the ESA will be decided by one of the Services. So, for example, if it is necessary to determine whether to issue an incidental take statement or incidental take permit, the threshold decision will be made by one of the Services. In such circumstances, NMFS will presumably apply the reasoning set forth in the preamble to the final rule, while USFWS will presumably apply that reasoning combined with the memo described above. Of note, in the preamble to the Final Rule, the Services confirmed that those seeking incidental take permits under ESA section 10 will no longer need to describe impacts to species habitat or how impacts to a species’ habitat will be minimized or mitigated, and that USFWS will no longer address habitat impacts in an incidental take permit and will not include in such permits any terms and conditions relating to habitat modification. The preamble also notes that the agencies are reviewing their incidental take permitting regulations to determine whether revisions should be made to reflect the Final Rule.

Ultimately, if there is a dispute regarding whether a specific action is or is not “take” for the purposes of the ESA, and to the degree an affected party elects to bring legal action in federal court, it will be the court—pursuant to Loper Bright—that will determine the best meaning of the term. Reviewing courts can be expected to consider existing caselaw and Congressional intent, as well as the Final Rule when making such a decision. It is foreseeable that different reviewing courts could reach different conclusions regarding the scope of “take” under the ESA until such time as the Circuit Courts issue binding precedent that applies within their respective jurisdictions and, perhaps, the Supreme Court issues an opinion defining the scope of “take” under the Act. Of course, the issue could also be resolved by Congress; however, based on history, any effort to amend the ESA would face daunting odds.

Practical Consequences

For entities that may be subject to regulation under the ESA in the near term while legal challenges to the final rule remain pending, the scope of take under the Act will be uncertain. But even before the recent actions of the Services, the scope of take was by no means crystal clear. And while that uncertainty has increased for the time being, it is also reasonable to expect that in due time the legal challenges to the final rule will result in one or more court decisions that provide greater certainty at least at a local scale. Therefore, we recommend developing a dual track strategy with near-term and long-term components for compliance. Compliance strategies should take into consideration, among other things, development or operational timelines, risk of third party lawsuits, and the willingness of the relevant local office of the Services to engage in creative permitting or compliance strategies to bridge this period of uncertainty.