Agencies Removed Endangered Species Harm Definition
Federal wildlife officials finalized a rule requiring intentional action to constitute a take under the ESA.
Updated on Oct. 2, 2026 in Wildlife
Live Poll
Should federal agencies limit endangered species protections to activities intentionally directed at individual animals?
On July 14, 2026, the USFWS and NMFS published a final rule removing the regulatory definition of harm from the Endangered Species Act. The change, which took effect September 14, 2026, narrows the scope of prohibited take to activities purposefully directed at specific animals.
Why it matters
The agencies now interpret ESA take to require affirmative acts directed intentionally at particular wildlife rather than broader indirect harm. This shift alters how federal authorities regulate land and resource use involving protected species.
The rule mandates that a take must involve an affirmative act directed immediately and intentionally at a particular animal. Seven federal court challenges are currently pending regarding the removal of the harm definition.
The players
United States Fish and Wildlife Service
This federal agency is responsible for the management and conservation of fish, wildlife, and natural habitats.
National Marine Fisheries Service
This division of the National Oceanic and Atmospheric Administration is responsible for the stewardship of living marine resources.
The details
Internal memoranda issued by the USFWS Director and NOAA General Counsel on September 14, 2026, instruct staff to apply this purposeful direction principle to all forms of ESA take. Despite the regulatory repeal, the agencies noted that federal obligations under ESA section 7 consultations remain unchanged.
Timeline
July 14, 2026: The final rule removing the harm definition was published.
September 14, 2026: The final rule took effect and internal agency memos were issued.
Culture Shift
This regulatory update follows the precedent set by the Endangered Species Act Section 7 consultation process. The agency action specifically maintains these existing federal obligations despite narrowing the definition of individual species take.
Landowners and developers may need to reassess how their projects comply with federal wildlife regulations following the shift to a purposeful direction standard. Relying on current interpretations without proper authorization could expose parties to future enforcement actions depending on the outcome of ongoing legal challenges.
The takeaway
The federal government has fundamentally changed the criteria for what constitutes a violation of species protection laws. Stakeholders should monitor pending federal court cases, as a successful ruling could restore the previous definition and potentially invalidate current compliance strategies.
Further reading
For more on the current regulatory environment, visit the United States Wildlife section.
Live Poll
Should federal agencies limit endangered species protections to activities intentionally directed at individual animals?
