Overview
- The U.S. Fish and Wildlife Service and the National Marine Fisheries Service published a final rule on July 14, 2026 that rescinds the long‑standing regulatory definition of “harm” so habitat modification is no longer treated as a standalone basis for prohibited “take.”
- The Interior Department finalized related changes on July 17 that end the decades‑old “blanket rule” for threatened species and instruct officials to consider economic and other factors when deciding critical habitat.
- The agencies say other ESA tools such as section 7 consultations, land acquisition, voluntary conservation and existing permits will still address habitat impacts and that the rule is prospective and will not automatically reopen prior incidental‑take permits.
- Conservation groups, tribes and scientists argue the moves will weaken habitat protections that drive most species declines and have filed lawsuits seeking injunctions that could block the rules before they take effect on September 14, 2026.
- Industry trade groups praised the changes as easing permitting costs, while coverage of the rule highlights a sharp legal and doctrinal shift driven by the Supreme Court's post‑Chevron guidance and by Justice Scalia’s prior critique of the old definition.