FWS and NMFS Rescind Endangered Species Act Regulatory Definition of ‘Harm’

Short summary

FWS and NMFS rescinded the regulatory definition of 'harm' under the ESA, adopting Justice Scalia's dissenting view from Sweet Home that 'harm' covers only direct acts against individual animals, not indirect habitat modification. The rescission follows the Supreme Court's Loper Bright decision overruling Chevron deference. The rule takes effect September 12, 2026, and will significantly impact ESA consultation, enforcement, and incidental take permit programs.

• •Services rescinded the regulatory definition of 'harm' that included significant habitat modification as prohibited 'take'
• •New interpretation adopts Justice Scalia's Sweet Home dissent: only direct acts against individual animals qualify as 'harm'
• •Rule effective September 12, 2026; impacts ESA consultation, enforcement, and incidental take permit programs

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