Federal agencies shrink definition of “take” under the ESA

On July 10, 2026, the United States Fish and Wildlife Service and the National Marine Fisheries Service (together, Services) published the final rule (Rule) rescinding the regulatory definition of “harm” under the Endangered Species Act (ESA), found at 50 C.F.R. § 17.3 and 50 C.F.R. § 222.102.

The Rule, originally proposed in April 2025, could effectively eliminate habitat modification and degradation from the federal regulatory definition of the prohibited “take” of ESA-listed species. As a result, the action could narrow the circumstances under which these agencies require permits or consultation and analysis of impacts on protected species for projects under ESA Sections 7 and 10.

In a press statement that accompanied the Rule, the Services characterized the action as restoring the ESA’s “actual text and original intent” while also stating that the “ESA’s core protections remain firmly in place,” insofar as actions “that directly injure or kill listed wildlife will continue to be prohibited.” In the same press statement, the Services further noted that existing “permits and incidental take statements remain valid and unchanged.”

This alert summarizes the legal background of the Rule, discusses the Services’ stated rationale for the change, and highlights the potential implications for developers, landowners, and project proponents.

History of “harm” under the ESA

Originally enacted in 1973, the ESA makes it unlawful to “take” an endangered species. The statute defines “take” to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.” 16 U.S.C. § 1532(19). Since 1975, the Services have interpreted “harm” to include habitat modification or degradation that may result in death or injury to listed species.

In practice, this interpretation has meant that a person or organization risks liability for an unlawful “take” if their activities negatively impact a protected species’ habitat, even if they do not directly kill or injure the species. For example, logging projects have historically evaluated impacts on ESA-listed forest-dwelling species, and dam operators have addressed their impacts on migrating endangered salmon.

For more than five decades, this regulatory definition helped inform the federal government’s implementation of the ESA as well as project permitting, consultation, and conservation planning. It also guided federal policies with potential second-order effects on the habitats of protected species. For example, indirect habitat impacts were analyzed when setting the federal Renewable Fuel Standard because the program had the potential to incentivize conversion of undeveloped or fallow land for agricultural uses.

For development projects, the statute has often required substantial mitigations and lengthy take authorization processes for projects that did not risk direct harm to federally protected species but negatively impacted those species’ confirmed and, in some cases, potential habitats.

Early challenges to “harm” under Chevron deference

The Services’ broad definition of “harm” did not go unchallenged. In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995), a group of landowners, logging companies, and other private parties challenged the regulation, arguing that “take” should be limited to direct, deliberate actions against individual animals, not indirect impacts resulting from habitat modification.

In a 6–3 decision, the US Supreme Court upheld the regulation. Applying the then-governing framework established in Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the Court held that Congress had not clearly defined the scope of “harm” in the ESA and that the Services’ interpretation was a reasonable construction of the statute.

Justice Antonin Scalia authored the dissent. He argued that the term “take” – read alongside the terms “hunt,” “shoot,” “trap,” and “capture” – connotes direct, deliberate action against particular species rather than indirect consequences resulting from habitat modification or degradation. According to the dissent, extending “take” to cover habitat modification departed from the statute’s plain meaning.

The Services rescind the rule following Loper Bright

The legal import of the Services’ interpretation was reduced in June 2024 when the Supreme Court decided Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). In Loper Bright, the Court overruled Chevron and held that the Administrative Procedure Act requires courts to exercise their own independent judgment in interpreting federal statutes, including their definitions, rather than deferring to an agency’s interpretation solely because it is reasonable.

Since Loper Bright, courts have been tasked with determining the best reading of a statute. In the case of the ESA, this means the question is no longer whether the Services’ interpretation of “harm” is reasonable, but whether it reflects the best reading of the term in the context of the statute as a whole.

The Rule expressly references Loper Bright as a motivation for rescinding the regulatory definition of “harm.” According to the Services, the prior definition was an unlawful regulatory overreach that only survived because of Chevron deference. By rescinding the definition, the Services contend they are restoring their own adherence to the statute’s original textual meaning. As a practical matter, given their statements about rescinding the definition, the Services’ position has aligned with the narrower definition advanced in Justice Scalia’s Sweet Home dissent – one limited to direct, deliberate action against a species, not indirect habitat effects.

Practical implications

The practical implications of the Rule could be significant but, with the advent of Loper Bright, may not be straightforward. At the administrative level, the Services explain that applications for incidental take permits under Section 10(a) will no longer need to analyze habitat modification or degradation as the basis for an incidental take. Likewise, applicants may no longer be required to implement measures that avoid, minimize, or mitigate habitat modification or degradation or consider project alternatives designed to reduce impacts to habitat.

In addition, under the current Rule, the Services could no longer require “take” authorization for projects that may have required it under the prior rule. This change could allow authorization for projects that directly or indirectly impact habitat (e.g., through modification or elimination) in a manner that does not risk direct harm to members of the relevant protected species.

Notably, however, the Services’ rescission of the prior “take” definition may not constrain federal courts who now, under Loper Bright, do not need to defer to the Services’ regulatory interpretations, including those that reduce regulatory constraints rather than increase them. How federal district and appellate courts respond may vary by jurisdiction.

Further, the Rule does not eliminate all ESA consideration of potential impacts to habitat. Where interagency consultation is required under Section 7 of the ESA, which applies to projects under the jurisdiction of a federal agency other than the Services, biological opinions will still assess whether there is destruction or adverse modification of a designated critical habitat. As a result, habitat impacts remain a central component of projects subject to Section 7, even if they no longer constitute “harm” for purposes of ESA Section 9’s take prohibition.

State-level actions

In anticipation of possible changes to federal ESA protections following the Rule’s initial announcement, some state environmental agencies have already moved to fill potential gaps in species protection.

In October 2025, California Governor Gavin Newsom signed AB 1319, which creates a new provisional candidate species mechanism under the California Endangered Species Act (CESA). Under AB 1319, if the California Department of Fish and Wildlife determines that a federal action has substantially decreased protections for a species and that provisional listing would reduce that impact, the department must publish findings and add the species to a provisional candidate species list under the CESA. Species on this list receive the same protections as candidate species under state law, which entail full protection under the statute.

Thus, California could expand state-level protections under the CESA to a wider range of federally protected species. Any rapid increase in the number of state-level protected species could have implications for the timing of state-level project approvals in California.

Other states are also taking steps to address potential gaps in their endangered species protection regimes. In April 2026, Maryland enacted HB 0578, which directly codifies several federal ESA-implementing regulations into Maryland law. These include a provision maintaining that “harm” includes an act that significantly modifies or degrades habitat. Similarly, Massachusetts’ Endangered Species Act has long included “the modification, degradation or destruction of Habitat” under its “take” definition. Unlike California’s contingent mechanism under AB 1319, the Maryland and Massachusetts regimes apply immediately and unconditionally regardless of federal action.

Other states are developing habitat protections through administrative regulation. In June 2025, New Hampshire passed HB 2, which requires its Department of Environmental Services to adopt rules and review procedures such that actions of state agencies do not jeopardize the existence or habitats of species protected under the New Hampshire Endangered Species Conservation Act. In May 2024, Colorado enacted HB 24-1117, which gives the state’s Department of Natural Resources the authority to protect, study, and conserve invertebrates and rare plants. Although there are no penalties for the take of invertebrates or rare plants under Colorado law, HB 24-1117 aims to address this gap in conservation coverage.

Looking ahead

Legal challenges to the Services’ rescission of the “harm” definition are already underway. On July 14, 2026, Defenders of Wildlife sent the US Department of the Interior a formal notice of intent to sue over the Rule. Additional challenges from environmental organizations, states, and Tribal nations are also possible.

Challengers may argue that “harm” has been an accepted component of ESA regulation for over 50 years, that Congress effectively ratified the interpretation by repeatedly amending and reauthorizing the ESA without disturbing it, and that the Services failed to provide a reasoned basis for reversing decades of settled policy in violation of the Administrative Procedure Act. The Services may continue to argue that Loper Bright mandates a fresh textual analysis and that the statute’s best reading does not extend to habitat modification.

For developers, landowners, and project proponents, the Rule initially signals opportunities to limit federal ESA review and permitting requirements at the agency level for projects that would have otherwise triggered such obligations under the prior rule.

Affected stakeholders may wish to monitor federal litigation challenging the Rule as well as evolving state-level requirements. The practical impact of the Rule may depend on the facts of a given project, the outcome of any judicial challenges to the Rule, and how states respond by asserting their own broad jurisdictional authority over species and habitat protection.

DLA Piper’s Environmental and Land Use teams are positioned to advise on these changes and their implications for projects and operations. For more information, please contact the authors.