What happened
On July 14, 2026, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (together, the “Services”) published a final rule rescinding the regulatory definition of “harm” from 50 C.F.R. parts 17 and 222. The rule takes effect September 14, 2026.
Background
Section 9 of the Endangered Species Act (ESA) prohibits the “tak[ing]” of endangered species, and Section 3 defines “take” as meaning “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” This final rule addresses the word “harm.” Starting in 1975, FWS implemented regulatory definitions of “harm” that incorporated habitat modification and degradation as a basis for ESA liability. FWS slightly narrowed this definition in 1981, and the NMFS adopted a similar definition in 1999. In the 1995 case Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, the Supreme Court upheld the regulatory definition of “harm”, consistent with Chevron deference. Notably, Justice Scalia’s dissent found the definition was not a permissible reading of the statute, and that “harm” should be read consistently with the statute’s other nine “take” verbs, all of which require an affirmative, intentional act directed at a particular animal rather than indirect habitat effects on a population.
What the Final Rule Does
Following the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, which struck down the Chevron deference framework, the Services concluded that the “harm” definition does not reflect the single, best meaning of the ESA. Adopting Justice Scalia’s dissent in Babbitt, the Services rescinded, or repealed, the definition of “harm” entirely. The Services declined to issue a replacement definition, reasoning that the statutory definition of “take” is sufficient on its own.
Why the Services Acted
The rescission aligns with the Trump Administration’s broader deregulatory initiative outlined in Executive Order 14192, Ensuring Lawful Governance and Implementing the President’s “Department of Government Efficiency” Deregulatory Initiative. It also reflects the post-Loper Bright mandate that agencies should apply the best reading of statutory text rather than deferring to prior interpretations.
Implications Going Forward
The rescission is prospective only, meaning that existing permits and incidental take statements are unaffected. Section 7 consultations and private parties seeking new incidental take permits (ITPs) will no longer be required to address harm through habitat modification. Critical habitat designations and state-law protections remain intact. Gunster’s Environmental Law Group will continue to monitor for developments related to this final rule. Should you wish to receive timely updates and further information concerning this matter, please contact Gunster’s Environmental Law Practice.
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