To begin you may try search = rescinding definition of "Harm" under Habitat-Based Protection
Or simply read on.
That search returned to Crabgrass a "search assist" bot statement:
The rescinding of the definition of "harm" under the Endangered Species Act (ESA) means that habitat modifications that do not directly kill or injure wildlife will no longer be regulated as they were previously. This change is expected to reduce regulatory burdens on landowners and businesses while still prohibiting actions that directly harm endangered species.
uwyo.edu
The Federal Register
Those are helpful links. In particular, the FedReg link details things about a rule change. Better as an impartial intro, the lawfirm Holland and Hart (https://www.hollandhart.com/) published an analysis:
July 13, 2026ESA "Harm" Rescission: Implications Far Beyond Habitat
On Friday, July 10, 2026, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, the Services) announced that they have finalized their proposed rescission of the definition of “harm” for purposes of “take” under the Endangered Species Act (ESA). The Federal Register version of the final rule will be issued on July 14, with an effective date of September 12. While the headline-grabbing ramification of this final rule is that the Services will no longer deem habitat degradation or modification to be a form of “take” under the ESA, the Services’ reasoning for rescinding the definition will result in a narrowing of the scope of the ESA’s take prohibition well beyond the habitat context. If the final rule, which is certain to be challenged, ultimately stands, it will fundamentally change how the ESA is implemented.
Overview of the Rescission Decision. The Services originally proposed to rescind the harm definition in April 2025. They received approximately 358,000 public comments on the proposal, which underscores the significance of this action. As in the proposed rule, the Services have declined to provide a replacement definition in the final rule, opting instead to rely on the statutory definition of “take” without further defining any of the ten verbs in the ESA’s definition of take1 (harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect).
In rescinding the definition, the Services expressly state they are “making clear that habitat modification or degradation does not qualify as ‘take.’” This outcome alone would be significant. But the Services’ justification for the rescission will result in wide-reaching effects beyond elimination of the harm definition.
The Services’ final rule relies heavily on two high-profile U.S. Supreme Court cases. First, they cite to the Court’s Loper Bright decision, which overturned Chevron deference and held that the proper focus is on “the single, best reading of a statute.”2 Using that framework, they then rely on Justice Scalia’s dissent in Sweet Home to conclude that the single, best meaning of “take” is an “affirmative act directed immediately and intentionally against a particular animal—not an act or omission that indirectly and accidentally causes injury to a population of animals.”3 They conclude that the regulatory definition of “harm” does not accord with this single, best meaning.
Implications of the Rescission Decision. The obvious implication of the final rule is that habitat degradation and modification will no longer be a source of take requiring incidental take coverage. Thus, going forward, a biological opinion issued under Section 7 may conclude the listed species are likely to be adversely affected by the proposed action’s impacts to habitat, but the Services will not issue an incidental take statement for such habitat impacts, which eliminates the Services’ ability to impose reasonable and prudent measures or terms and conditions for those effects. Likewise, impacts to listed species’ habitat by a project that lacks a federal nexus (i.e., state or private action) would not warrant a Section 10 incidental take permit (ITP).
The Services emphasize, though, that “nothing in this final rule is intended to require that any prior permit or incidental take statement issued by the Services that relied on the prior definition of ‘harm’ be reevaluated on the basis of this final regulation.” They leave open the possibility that a current permittee may choose to return an existing permit if it is mitigating for habitat impacts that are no longer considered prohibited take under the new definition.
However, there is more to this story. By limiting “take” to affirmative acts directed immediately and intentionally against an animal or animals, the Services appear to be eliminating the need for incidental take coverage for virtually all proposed actions that will directly kill or injure ESA-listed species. Because, for instance, pipelines, transmission lines, mines, housing developments, highways, and timber sales, do not involve affirmative acts directed immediately and intentionally against animals, any death or injury caused by these projects—such as through collision, crushing, or exposure to hazardous materials—may not be deemed to be “take” under the final rule.
Several statements in the Services’ final rule support the conclusion that even direct injury or death of a listed species will not be considered a take for the vast majority of proposed actions.
- “The rescission of the regulatory definition of ‘harm’ does not eliminate the Services’ ability to issue ITPs or [enhancement of survival] permits where there is an affirmative conduct intentionally directed against a particular animal or animals.” (emphasis added).
- “Section 10 then creates an incidental-take regime for when such take is nonetheless inevitable in the pursuit of some other activity, as when fishing for a non-endangered species of fish will, inadvertently but inevitably, lead to the catch of an endangered species of fish.”
- “We do not find persuasive the argument that the 1982 amendments to the ESA, which allowed the Secretary of the Interior to issue incidental take permits, suggests that Congress understood section 9 to prohibit indirect as well as deliberate takings. Habitat modification is not the only activity that might incidentally cause a prohibited taking. For example, fishing for unprotected salmon may inadvertently but unavoidably cause takes of an endangered species of salmon (515 U.S. at 729).”
Thus, this rule marks a sea change in the ESA. But because legal challenges are inevitable, and because it remains to be seen how this interpretation of “take” will be implemented in practice by Service biologists, there is still some uncertainty about how far and wide the ripple effects of this rule will be.
1 16 U.S.C. § 1532(19).
2 Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).
3 Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 719-20 (1995) (Scalia, J., dissenting) (cleaned up).
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Further published items deal with the problem.
Strib published a guest op-ed which argued:
Left or right, red or blue, there are some things that we can all agree are simply true. If I burn down your house, have I harmed you? The answer is, of course, yes.
But on July 10, the federal government ruled that doing the same thing to an endangered species — destroying the only home it has left — is not legally “harm.”
The U.S. Fish and Wildlife Service and NOAA finalized a rule rescinding the Endangered Species Act’s 45-year-old definition of “harm.” Since 1981, that definition included significant habitat modification or degradation, and it was upheld by the U.S. Supreme Court in 1995, in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon.
Under the new rule, bulldozing a nest, draining a wetland or clear-cutting the forest on which a species depends no longer counts as harming that species, unless the act also directly and intentionally injures an individual animal.
This matters because habitat loss, not direct violence, is how most endangered species actually disappear.
The greatest threat to animals in the US and globally is the destruction of their habitat — replacing grasslands with farms, cutting forests for timber, building suburbs atop wetlands. It’s the main reason why hundreds of species have been listed under the Endangered Species Act, which gives federal protection to species that are currently at risk of extinction or are about to be.
That’s what makes a recent move by the Trump administration both confusing and — according to many environmental advocates — incredibly alarming.
In a rule published earlier this month, the administration determined that, in many cases, destroying the habitat of federally threatened and endangered species is no longer explicitly illegal, even if doing so could ultimately drive them extinct. The rule upends half a century of regulatory precedent that survived many Republican administrations. Environmental advocates also say it runs counter to the very intent of the Endangered Species Act, which Congress passed in 1973 with near-unanimous bipartisan support (and which Richard Nixon signed into law).
While the Trump administration has made several recent decisions that weaken protections for endangered species — amid what many scientists call an extinction crisis — this one may have the most far-ranging consequences. Here’s why.
Yahoo News carried a Native News Online -guest opinion post:
The Endangered Species Act notably marked its 50th year on December 28, 2023, and I wrote about it here. It is known as one of the most effective environmental statutes for protecting the environment and can halt development projects if they trigger the prohibitions of the Endangered Species Act.
There are two major parts of the Endangered Species Act. Section 4 describes how to list a species as endangered or threatened, the two statutory statuses for a species. Section 7 requires consultation by any federal agency if it anticipates projects affecting endangered or threatened species, and Section 9 prohibits anyone within the jurisdiction of the United States from trading in endangered or threatened species or their parts, or from "taking" an endangered or threatened species. "Take" is defined as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.
At least until September 14, 2026, when the federal government wants to finalize the removal of this definition of "take" from the regulation that further explains the statutory definition. Since 1975, the definition of "take" has included any significant environmental modification or degradation that has such effects, which is included within the meaning of "harm."
The U.S. Supreme Court agreed in 1995 that this definition of "harm" was a reasonable one on the part of the U.S. Fish and Wildlife Service and upheld the regulatory definition. In the recent proposal to change the rule, published July 14, 2026, the Department of the Interior explained that part of its reasoning for rescinding the definition of "harm" was that it was "outdated" and that it preferred Justice Scalia's dissent in the 1995 opinion over the majority opinion.
Because we cannot cherry-pick the dissent we like better and recognize it as the law of the land, surely that is not what the Department intended to suggest. Upon further reading, the logic it applies is, in essence, that because this case was decided using the framework of a case that was later overruled (Chevron), this case must also be overruled. Despite the U.S. Supreme Court specifically stating that overruling Chevron did not overrule cases decided under the Chevron framework, that is the logic being used.
So why does the definition of "harm" matter?
It is the definition of "harm" that extends protection to the habitat of an endangered or threatened species. The proposed withdrawal of the "harm" definition would no longer prevent development projects that destroy the habitat needed for an endangered or threatened species to survive.
For example, the endangered bird in the 1995 case could not survive if the only tree in which it nested were destroyed. Common sense tells you that if the bird cannot nest, it cannot produce another generation, and it eventually becomes extinct. The common sense administration just lost its common sense here.
Oddly, the administration appears to have conflated the regulatory definition (an Executive Branch function) with the statutory definition (a Legislative Branch function). "Harm" is one of the words in the statutory definition of "take," which remains the law. The 1995 opinion addressed the interpretation of the word "harm" in the statute, which, of course, cannot be rescinded by the Executive Branch.
Response to rescinding the regulatory definition of "harm" was immediate
Several organizations immediately sought judicial stays to prevent the Executive Branch from rescinding the rule. A stay, in this case, simply asks the court to stop the agency from taking action until it reviews the legality of that action.
While the agency has taken administrative steps consistent with the Administrative Procedure Act, it must also explain why it is reversing its previous decision from 1975. Whether saying the definition is "outdated," or that Justice Scalia's dissent is more persuasive, provides a sufficient basis to reverse the agency's previous course of action is something the judiciary will determine, consistent with existing case law.
One bot-returned item provides coverage: https://www.uwyo.edu/law/centers/center-for-land-and-water-law/blog/rescinding-definition-harm-esa.html
Crabgrass foresees a host of court challenges, a pissing match back and forth, where things may drift into an Executive and Congressional situation after the 2028 election, i.e. after change starting Jan.20, 2029, where the situation may then still be hanging fire, and where Crabgrass suggests a receptive Dem executive and legislative branch could tinker the statute (online https://www.govinfo.gov/content/pkg/COMPS-3002/pdf/COMPS-3002.pdf). Suggested change being:
DEFINITIONS
SEC. 3. (16 U.S.C. 1532) For the purposes of this Act—[...](19) The term ‘‘take’’ means to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to attempt to engage
in any such conduct.
bearing an added sentence by statutory amendment:
(19) The term ‘‘take’’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. To harass or harm an endangered species includes land use which would result in material adverse impact on a species breeding or survival habitat whether on public or private land.
And to really get into the weeds, there could be a third sentence to that:
Materiality would be a de novo litigation fact question for the court under a totality of circumstances analysis prior to or during implementation of a use, or for two years after an implementation finishes, without deference to administrative outcomes, if any, prior to judicial filing.
That would throw it unbiased into the judiciary without deference to agency adjudication and be recognition of prior restraint remedies as well as granting a grace period to challenge an ongoing or completed land use action.
Is the third sentence a good idea? Likely not.
But if impacts are not resolved suitably after a change of government personnel, the added sentence defining "harass or harm" inclusion would clarify rather than cloud.
UPDATE: In amending the statute, it might prove wise to add that impacting action alone is at issue independent of an actor's scienter (state of mind; intent). Courts have on occasion read-in an unstated scienter requirement; e.g. in Rule 10(b)5 securities fraud litigation.