ESA “harm” rule reversed: What changes after Interior, NOAA rescind definition
United States Federal Policy and Agency Actions – Interior and NOAA rescind ESA “harm” definition, changing consultation and permitting guidance ahead of Sept. 14.
The federal government has finalized a rule rolling back how agencies define “harm” under the Endangered Species Act, a change that could affect ESA consultation and permitting for land and water projects as the effective date approaches.
In a Federal Register final rule published July 14, 2026, the U.S. Fish and Wildlife Service (FWS) and NOAA’s National Marine Fisheries Service (NMFS) rescind the ESA regulations’ “harm” definition. The rule takes effect September 14, 2026.
Quick context: why “harm” matters under the ESA
Under the ESA, the government (and, in many cases, private parties) must address whether an action could lead to a prohibited “take” of listed species. The ESA statute includes “take” conduct such as “harass” and “harm,” among other actions.
Federal agencies have used regulatory definitions to decide what counts as “harm” in practice—especially in ESA Section 7 consultation and other compliance steps tied to actions that could affect endangered and threatened species and their habitat.
The decision and timeline
According to the Department of the Interior, the administration announced the policy change on July 10, 2026. The final rule was published in the Federal Register on July 14, 2026, and it is scheduled to become effective September 14, 2026.
What exactly the agencies changed
The Federal Register final rule rescinds the regulatory definition of “harm” that had been included in the ESA implementing regulations.
In practical regulatory terms, the rule removes the “harm” definition from the CFR in Title 50 by deleting it from the existing regulatory text in 50 CFR parts 17 and 222.
The agencies say they are relying on the ESA’s “plain text” going forward rather than maintaining a standalone regulatory definition.
What DOI says the rollback will do—and critics’ concerns
Interior and Commerce argue the “harm” definition was an unlawful regulatory expansion and that rescinding it is meant to align ESA implementation with the statute. DOI also frames the change as reducing burdens on landowners and communities by providing more certainty.
Environmental groups and some critics, as reflected in coverage from the Associated Press, warn the rollback could narrow protections in practice—because critics argue habitat impacts have been treated as “harm” for years under the prior regulatory framework.
What to watch next for residents, landowners, and project teams
Even with a future effective date, the immediate question is how agencies and consultants apply the rescission during consultations and related permitting work.
One practical detail matters for planning: the Federal Register final rule states that permits or incidental take statements finalized before the rule’s effective date will not be required to be reevaluated under this final rule.
Going forward, residents and project stakeholders with ESA-covered work—such as land disturbance, habitat-related activities, or federally connected projects—should watch for updated agency guidance, changes in consultation posture, and how field offices interpret “harm” after September 14, 2026.
Because ESA decisions often trigger legal challenges, litigation risk may also remain a practical factor in timelines and approvals, depending on how courts address the rule.
Sources
- Federal Register final rule (GovInfo): rescinding ESA regulatory definition of “harm” (published July 14, 2026)
- U.S. Department of the Interior press release: DOI explains rescission of the ESA “harm” definition (announcement July 10, 2026)
- Associated Press (AP): reported impacts and stakeholder reaction to the ESA “harm” rescission
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