Navigating the ESA: What the Narrowed Definition of "Harm" Means for Developers

The US Fish and Wildlife Service and NOAA Fisheries recently finalized a major change to how "harm" is interpreted under the Endangered Species Act. This shift could really change how habitat impacts are treated for development projects.

To get a better handle on what this means in the real world, Transect CEO Robin Laine sat down with Jay Kaminski (PWS, MS, CERP) our Director of Environmental, to discuss what these changes mean to developers both now and in the future. You can see a portion of that discussion in the latest segment of 3-Minute Field Notes below. 

So What Actually Changed?

For decades, the regulatory definition of "harm" meant a project could violate the Endangered Species Act (ESA) not just by directly injuring a listed animal, but also by significantly modifying its habitat. Modifying habitat in a way that resulted in the injury or death of a species, like disrupting breeding or feeding, used to be a clear violation.

Now, USFWS and NOAA Fisheries have rescinded that older definition. They are applying a much narrower interpretation of "harm" under the broader definition of "take". This means habitat modification alone will no longer be treated as prohibited "take" simply because it indirectly injures listed wildlife. The rule is final and takes effect on September 14, and the existing rules apply until then.

The Legal Rationale

Why the change? It is mostly a legal move. Following the Supreme Court's 2024 Loper Bright decision, the agencies took another look at the ESA and decided the old definition of "harm" was no longer the best reading of the law. They leaned into reasoning from Justice Scalia's dissent in the 1995 Sweet Home case, which argued for a narrower interpretation of "take" focused strictly on actions directed at individual animals. It is also in line with the current administration's broader push to streamline permitting and reduce regulatory hurdles for infrastructure and energy development.

What This Means for Developers

The biggest impacts are found under Sections 9 and 10 of the ESA. Section 9 prohibits "take," and Section 10 outlines the pathway for getting an incidental take permit.

Because habitat modification alone will no longer be considered "take," a private project that impacts listed species habitat without expecting direct take will no longer need an incidental take permit for those habitat impacts alone.

Real-World Examples:

Think about clearing longleaf pine habitat used by red-cockaded woodpeckers when no birds are directly injured. Or consider grading grasslands with prairie dog colonies that black-footed ferrets depend on, all without directly injuring a ferret. Under the old rules, these indirect impacts likely required a permit. Now, they will not.

Remaining Protections and Constraints

This creates some welcome flexibility, but it definitely does not mean habitat no longer matters. Several protections are still firmly in place:

• Federal Nexus Projects: Projects involving federal permits, funding, or approvals are still subject to Section 7 consultation.

• Federal Agency Obligations: Federal agencies must still ensure their actions do not jeopardize listed species or adversely modify critical habitat.

• Direct Take: Concerns regarding the direct take of species remain fully in effect.

• State and Local Laws: State endangered species laws can be stricter than the federal ESA, and independent local requirements might still regulate the exact same resources.

Direct Insights from USFWS

Transect reached out directly to IPaC coordinators and USFWS offices to see how this is actually playing out on the ground.

Most offices advised us to continue business as usual until September 14 while they develop new guidance. A Regional IPaC Coordinator confirmed that incidental take permits will not be needed if direct take is not expected. They also noted that IPaC determination keys are not expected to change much because they deal with effect determinations rather than take. Crucially, the rule is prospective. Existing permits and consultations finished before September 14 generally will not need to be reopened just because of this update.

Strategy and Project Planning

The regulatory floor is moving, but the rules of good project planning have not changed.

While some risk-tolerant developers might jump on this new flexibility, there is still a lot of uncertainty. The rule is already facing legal challenges, Senate Democrats are trying to overturn it, and a future administration could easily revert to the old definition. Development projects take years to complete, so the rules in place today might not be the same ones governing your project during construction.

Finally, do not forget about community sentiment. Endangered species habitat is frequently brought up by communities pushing back against new development. Respecting these natural resources can help win community support and de-risk a project's overall success. You still need to know exactly what species and habitats are on your site, catch those constraints early, and navigate the web of federal, state, and local requirements smartly.

If you have more questions about what these ESA updates mean for your day-to-day operations, head over on our Contact Us page to get in touch with Jay and our other environmental experts.