What: On July 14, 2025, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) published a final rule rescinding the definition of “harm” under the Endangered Species Act (ESA).
Why: The prior definition of “harm” used by the FWS and the NMFS extended both to actions that kill or injure wildlife and fish and actions resulting in habitat modification that results in killing or injuring wildlife or fish. The agencies found that this definition does “not accord with the single, best meaning” of the ESA because actions impacting habitat could be taken without any intention to kill or injure a particular species.
The Office of Advocacy submitted a 2025 comment letter in support of the rule, stating that it “would provide clarity for small entities impacted by the ESA by holding parties responsible only for actions which directly impact an endangered species, as opposed to actions impacting the habitat of those species. A species-centered approach is targeted and clean, while focusing on habitat is ambiguous, undefined, and conveys massively misaligned incentives that artificially constrain small businesses.”
Action: Read the final rule, which is effective September 21, 2026.
FINAL RULE:
Rescinding the Definition of “Harm” Under the Endangered Species Act
CONTACT: Nick Goldstein
EMAIL: nick.goldstein@sba.gov
Regulatory Alerts
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