Government Officially Redefines What 'Harm' Means for Wildlife
Published Date: 7/14/2026
Rule
Summary
The U.S. Fish and Wildlife Service and National Oceanic and Atmospheric Administration are wiping away the official definition of “harm” under the Endangered Species Act starting September 14, 2026. This change affects anyone involved in protecting endangered plants and animals by shifting how “harm” is understood and enforced. It’s a big move that could change how projects and protections are handled, but no new costs or deadlines are added right now.
Analyzed Economic Effects
5 provisions identified: 2 benefits, 0 costs, 3 mixed.
Regulatory 'Harm' Definition Rescinded
The Fish and Wildlife Service and NOAA are removing the regulatory definition of “harm” from 50 CFR parts 17 and 222, effective September 14, 2026. This means the agencies will no longer rely on the rescinded regulatory text and will instead rely on the statutory definition of “take” in the ESA going forward.
Habitat Impacts No Longer 'Take' Basis
Under this final rule, private parties seeking incidental take permits (ITPs) or enhancement-of-survival (EOS) permits will no longer be required to articulate, mitigate for, or have permit terms addressing habitat modification or degradation as a form of ``take.'' The Services say they will not consider habitat effects as part of issuing ITPs under the rescinded regulatory definition.
No Replacement Definition Adopted
The Services decided not to replace the rescinded regulatory definition and will rely on the ESA's statutory definition of ``take,'' interpreting ``harm'' using the statutory text (including the noscitur a sociis canon). This means future interpretations of ``harm'' will be based on the statute rather than a new CFR definition.
Existing Permits Remain Final
Permits and incidental take statements finalized before September 14, 2026, will not be required to be reevaluated solely because of this final rule. The Services say they will not disturb the finality of previously issued permits or conservation agreements for the sake of this rescission.
Section 7 Habitat Rules Unchanged
The rule does not change section 7 of the ESA: Federal agencies must still ``insure'' their actions are not likely to jeopardize listed species or result in destruction or adverse modification of designated critical habitat. The Services also state the rule does not change any species listings or critical habitat designations.
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Key Dates
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