The Nickel Report

The Endangered Species Act (ESA) prohibits “take,” which the Act defines to include (among other things) “harm,” “harass,” “shoot,” “wound,” “capture,” and “kill.” A violation of the take prohibition can result in civil or criminal enforcement or an ESA citizen suit for an injunction and litigation costs. For decades, regulations issued by the US Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) defined one form of take—“harm”—to include significant habitat modification that actually kills or injures wildlife. The Services repealed the harm definition in July, and on September 14 issued internal memos addressing the scope of the ESA “take” prohibition. The July rule and September memos raise questions that extend well beyond removal of the regulatory definition of harm. Agencies still need to evaluate the effects of agency actions on listed species and designated critical habitat during ESA section 7 consultation—even if none of those effects constitute “take” under the Services’ current interpretation. But the critical question for project proponents and federal agencies going forward is whether incidental take coverage is available through an ESA section 7 incidental take statement or an ESA section 10 incidental take permit under the Services’ new reading.

On July 14, 2026, the USFWS and the NMFS published a final rule removing their regulatory definitions of “harm” (as we previously reported). The rule took effect on September 14, 2026. That same day, the USFWS Director and the National Oceanic and Atmospheric Administration (NOAA) General Counsel issued memoranda to their respective agency offices and staff addressing the scope of the ESA’s “take” prohibition. Springboarding from the repeal of the harm definition, the memos assert that “take” generally (not just “harm” in particular) occurs only in connection with activities purposefully directed at particular animals.

Although the July 14 rule itself simply removes the regulatory definition of “harm” from the Services’ regulations, the preamble to the rule elaborates on the repeal by explaining that the Services interpret “harm” to require an affirmative act directed immediately and intentionally at a particular animal. The September 14 USFWS and NOAA memos build and expand on the July 14 preamble by instructing staff to apply the same principle to the broader ESA term “take,” which by statutory definition includes not only “harm” but also “harass,” “pursue,” “hunt,” “shoot,” “wound,” “kill,” “trap,” “capture,” and “collect.” Interpreting all forms of take to require that the activity be purposefully directed at particular animals suggests, for example, that light or noise that significantly disrupts normal behavioral patterns of listed species may not be deemed “harassment” by the Services unless the activity is purposefully directed at particular animals. The memos distinguish between an intent to affect an animal (as an element of take) and a mere intent to carry out an activity that happens to affect a listed species.

The Services’ narrower view of “take” does not, by itself, limit a federal agency’s separate obligation under ESA section 7 to assess whether its action is likely to jeopardize a listed species or destroy or adversely modify designated critical habitat. That analysis considers the effects of a federal action on listed species and critical habitat, not simply whether the action will cause prohibited take. For example, if the US Army Corps of Engineers reviews an application for a Clean Water Act section 404 permit that “may affect” an endangered species, a section 7 consultation will consider the “effects of the action” (which, under the Services’ regulations, include all consequences to listed species or critical habitat caused by the proposed action). The final rule expressly states that ESA section 7 remains applicable to actions that may affect listed species or critical habitat. Likewise, the recent changes to the Services’ interpretation of “take” do not narrow otherwise applicable environmental reviews, including under the National Environmental Policy Act.

Many of the difficult questions ahead will be project-specific. It remains unclear which activities the USFWS will regard as incidental take under the memo and, correspondingly, eligible for incidental take coverage going forward. A project proponent unable to obtain incidental take coverage may face significant uncertainty and legal risk even if the Service currently considers its activity outside the take prohibition. Plaintiffs may bring ESA citizen suits directly against projects without the Services as a party to the case (potentially leaving companies to defend themselves alone), and a future change in the Services’ position (e.g., as a result of current lawsuits challenging the harm repeal or due to a change in Administration) could mean that activities undertaken in reliance on the Services’ interpretation today may require take authorization or face enforcement action in the future. The harm repeal is currently facing seven pending federal court challenges;¹ a successful challenge in any one case could set aside the rule and restore the former definition of harm. The September 14 memos may face challenges too, potentially in connection with a specific project that proceeds without take coverage in reliance on the memos. As those questions and cases unfold, companies may decide to continue to seek coverage for activities traditionally treated as incidental take, if the Services are willing, to protect against the possibility that the Services’ rules or interpretation change once again.

[1] See Ctr. for Biological Diversity v. Burgum, No. 26cv2474 (W.D. Wash. filed on July 14, 2026); Swinomish Indian Tribal Cmty. v. Nat’l Marine Fisheries Serv., No. 26-cv-02473 (W.D. Wash. filed on July 14, 2026); Puyallup Tribe of Indians v. Nat’l Marine Fisheries Serv., No. 26-cv-05788 (W.D. Wash. filed on July 14, 2026); Envtl. Prot. Info. Center v. Nat’l Marine Fisheries Serv., No. 26-cv-07176 (N.D. Cal. filed on July 14, 2026); Defenders of Wildlife v. U.S. Fish & Wildlife Serv., 26-cv-07507 (N.D. Cal. filed on July 20, 2026); Nat’l Wildlife Fed’n v. U.S. Fish & Wildlife Serv., No. 26-cv-02897-RMG (D.S.C. filed on July 17, 2026); California v. Burgum, No. 26cv10071 (N.D. Cal. filed on Sept. 10, 2026).