Recent Endangered Species Act Rule Deletes Regulatory Definitions Of “Harm”

The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS; together, the Services) recently rescinded without replacement the definitions of “harm” in regulations pertaining to the Endangered Species Act (ESA). The final rule (Rule) became effective September 14, 2026.

Section 9 of the ESA (16 U.S.C. 1531 et seq.) prohibits the “take” of endangered wildlife. “Take” has a statutory definition of “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Under Section 10 of the ESA, a non-federal entity undertaking an otherwise lawful project that might result in the take of an endangered species must seek an incidental take permit, which must be accompanied by, among other things, a conservation plan.