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ARTICLE · 15 JULY 2026

FWS And NMFS Finalize Rescission Of ESA “Harm” Definition

The U.S. Fish and Wildlife Service and National Marine Fisheries Service have finalized a rule rescinding longstanding regulatory definitions of "harm" under the Endangered Species Act, fundamentally changing how habitat modification is treated under federal wildlife protection law. This regulatory shift eliminates the interpretation that habitat modification or degradation, standing alone, constitutes prohibited "take" of listed species, potentially reducing permitting requirements for landowners and busin

United StatesEnvironment

Today, the U.S. Departments of the Interior and Commerce announced that the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (together, the Services) published a final rule rescinding the agencies’ longstanding regulatory definitions of “harm” under the Endangered Species Act (ESA). The rule finalizes their April 2025 proposal and is scheduled to take effect on September 14, 2026. Once effective, the rule will remove the definitions of “harm” from 50 C.F.R. §§ 17.3 and 222.102 without replacing them with new regulatory text.

Key Takeaways

  • The Services will no longer interpret habitat modification or degradation, standing alone, as a prohibited “take” of listed wildlife.

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