What’s the “harm?” FWS and NOAA publish final rule that would change implementation of the Endangered Species Act.

On July 14, 2026, the U.S. Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA) published a final rule rescinding the regulatory definition of “harm” promulgated under the Endangered Species Act (ESA). How did the two executive agencies come to this decision, and might it mean going forward?

Endangered Species Act and regulations

The Endangered Species Act became law in 1973, with the goal of conserving and protecting endangered and threatened species and their habitats. Among other things, the ESA makes it illegal to “take” any species listed as endangered “within the United States or the territorial sea of the United States.” Under the ESA, the term “take" means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” The FWS and NOAA were charged with implementing the ESA and created rules to help with that implementation. These rules further clarified the definition of “take” by defining additional words like “harm.”

In 1981, the FWS published a rule defining “harm.”  According to the FWS at that time, “‘harm’ under the definition of ‘take’ in the [ESA] 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.” In 1999, on the heels of Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (Sweet Home), in which the Supreme Court of the United States upheld the FWS’ definition of “harm,” NOAA published a rule defining “harm” in the same way.

The agencies’ reasoning for the change

In explaining their reason for rescinding the definition of harm, the agencies reveal that their biggest issue with definition is that it included “significant habitat modification or degradation.” FWS and NOAA say that this language changed the focus of the regulations from protecting endangered animals and plants to regulating land-use.

Interestingly, to bolster their argument for removing the definition of “harm” from the ESA regulations, FWS and NOAA also point to the 1995 Sweet Home decision. At first, it might not make sense that the agencies cite this case, since the Supreme Court upheld the definition of “harm.” However, the new rule cites Justice Scalia’s dissent as the crux of its argument. Scalia’s dissent hinged on the idea that the definition of “take,” throughout history, “when applied to wild animals, means to reduce those animals, by killing or capturing, to human control.” Because the definition of “take” is so well known, the word “harm,” which is part of the definition, should be read in that context—in other words, Scalia argued that taking should require an “affirmative act…directed immediately and intentionally against a particular animal,” and not an “omission that indirectly and accidentally causes injury to a population of animals.” Following this line of thinking, habitat modification and degradation that results in the taking of an endangered species would be an indirect taking of the species, not an affirmative act as Scalia thought was required under the ESA. Scalia also felt that the definition of “harm” in the regulations did not fit with the use of “take” throughout the ESA.

Further helping the agencies’ argument, the precedent relied on by the Supreme Court in Sweet Home was recently overturned. In Sweet Home, the majority of the Court relied on the Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., which established a doctrine that courts should defer to a federal agency’s interpretation of an ambiguous statute if Congress did not directly address the precise issue and if the agency’s interpretation was reasonable. In Sweet Home, the Court found that FWS’ interpretation the ESA was reasonable, and therefore it upheld the agency’s 1981 definition of “harm.”  However, in 2024, the Supreme Court overturned the Chevron doctrine in Loper Bright Enterprises v. Raimondo. Although Loper Bright did not automatically overturn every case that relied on Chevron, according to the agencies, it “left open the possibility that the executive branch could…depart from regulations that do not match the single, best meaning of the statute[.]” Under the current administration, FWS and NOAA do not believe that including the previous definition of “harm” matches the “single, best meaning” of the ESA. This, coupled with Scalia’s dissent in Sweet Home, is the agencies’ basis for rescinding the definition of “harm.”

What’s next?

Unsurprisingly, several groups have already filed lawsuits in federal court against FWS and NOAA’s new rule. In fact, a coalition of environmental groups filed a request for an injunction against the rule in the Western District of Washington on the very day the rule was published. The groups, led by Earthjustice, argue that the new rule goes against the very meaning of the ESA since “any activity that destroys the habitat where imperiled fish and wildlife shelter, sleep, feed, or raise their young just as plainly destroys the species itself.” You can read their full complaint here. The Swinomish Indian Tribal Community, together with the Squaxin Island Tribe also filed a complaint against the rule in the Western District of Washington, alleging that rescinding the definition of “harm” will hurt fisheries that the tribes rely upon, and that the federal government is obligated by treaty to protect. Their complaint is available here. Essentially, the environmental groups and the tribes feel that the rescission of the rule will make it easier for lands with critical endangered species habitat to be opened for development, mining, logging, drilling, ranching, and farming, which will lead to less protection for the species.

On the other hand, FWS, NOAA, and proponents of the rule, such as the American Petroleum Institute, and the Associated General Contractors of America, applaud the rule change for “reduc[ing] unnecessary regulatory burdens.” The Nebraska Farm Bureau also supports the new rule, saying that it “effectively ends the practice of using broad, indirect interpretations of ‘harm’ to regulate land use.” The American Farm Bureau Federation has long found parts of the ESA overbroad, and calls for “modernizing” the Act, as well as promoting voluntary efforts to protect endangered species. In sum, these industry and agricultural interests feel that the rescinding the rule will create less uncertainty for landowners when it comes to endangered species and what constitutes a “taking.” If habitat modification or degradation are off the table, then landowners will have more flexibility to make decisions about their land without the fear of violating the ESA.

It is important to note that statutory language of the Endangered Species Act still requires agencies to consider whether an action would destroy or adversely modify an endangered species’ critical habitat when making decisions, so it remains to be seen how FWS and NOAA will interpret this part of the statute in the future. That being said, Congress is also considering legislation that would limit what land may be designated as critical habitat. That bill, HR 1897, is available here.

While the new rule is set to take effect on September 14, 2026, as always, we will have to wait and see how it plays out. Not only could lawsuits prohibit the new rule from being implemented, but down the line, a new presidential administration could also have the agencies restore the definition of “harm” to the ESA regulations. Congressional amendments to the ESA itself may also come into play.

If you’re interested in further reading on this subject, see the links below.

Final rule

Endangered Species Act

Babbitt v. Sweet Home Chapter of Communities for a Great Oregon

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

Loper Bright Enterprises v. Raimondo