One of the most consequential Endangered Species Act (ESA) developments for project permitting this year may be the Services’ final rule rescinding the regulatory definition of “harm” under the ESA, effective September 12, 2026.

At first glance, the change is about habitat. For decades, the Services’ regulations treated significant habitat modification or degradation as “harm” where it actually killed or injured listed wildlife by impairing essential behaviors such as breeding, feeding, or sheltering. The final rule removes that definition and does not replace it, instead relying on the ESA’s statutory definition of “take.”

The more significant point is that the Services’ reasoning may reach well beyond habitat impacts. By tying “harm” to affirmative acts directed immediately and intentionally against a particular animal, the rule could narrow the take analysis for many project types where impacts are incidental to otherwise lawful activity, including pipelines, transmission lines, mines, housing developments, highways, and timber sales. For a comprehensive analysis of the Services' reasoning and broader implications, see this analysis by my colleagues: https://www.hollandhart.com/esa-harm-rescission-implications-far-beyond-habitat

The Section 7 implications are equally important. A biological opinion may still conclude that listed species are likely to be adversely affected by habitat impacts, and agencies must still address jeopardy and critical habitat obligations. But if those habitat impacts no longer constitute take, the Services would not issue an incidental take statement for them, which limits the ability to impose measures or terms and conditions tied to those effects.

This is not a reason to take species issues off the critical path. Litigation is expected, and the outer bounds will depend on how courts and Service biologists apply the rule. For developers and operators, the near-term task is to revisit ESA risk registers, consultation strategy, and existing permit commitments.