Endangered Species Law & Policy From Nossaman LLP https://www.endangeredspecieslawandpolicy.com/ Wed, 14 Oct 2026 18:50:58 -0400 NMFS Issues “Harm” Recission Guidance https://www.endangeredspecieslawandpolicy.com/nmfs-issues-harm-recission-guidance Emi Lemberg, Rebecca Hays Barho, Paul Weiland nmfs-issues-harm-recission-guidance Fri, 02 Oct 2026 09:00:01 -0400 On September 14, 2026, the National Marine Fisheries Service (NMFS) issued a memorandum (NMFS Memo) describing how that agency would implement the “take” prohibition of Endangered Species Act (ESA), the same day that a rule rescinding the definition of “harm” from U.S. Fish and Wildlife Service (USFWS) and NMFS respective ESA implementing regulations (Rescission) took effect. USFWS has issued an identical memorandum (USFWS Memo), as we previously reported. The two memoranda clarify that the "take" prohibition of ESA section 9 applies only to an affirmative act ...

]]> Rescission of the “Harm” Rule: Where Do We Stand https://www.endangeredspecieslawandpolicy.com/rescission-of-the-harm-rule-where-do-we-stand Paul Weiland, Rebecca Hays Barho, Jennifer Seely rescission-of-the-harm-rule-where-do-we-stand Thu, 24 Sep 2026 09:00:02 -0400 As we previously reported, on July 14, 2026, the U.S. Fish & Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, Services) published a final rule to rescind the definition of “harm” from their Endangered Species Act (ESA) implementing regulations (Final Rule). In the preamble to the final rule, the Services contend that the interpretations of “harm” and “take” set forth by Justice Scalia in his dissent in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995) (Sweet Home) represent the best ...

]]> D.C. Circuit Affirms EPA’s “No Effects” ESA Determination https://www.endangeredspecieslawandpolicy.com/d-c-circuit-affirms-epas-no-effects-esa-determination Paul Weiland d-c-circuit-affirms-epas-no-effects-esa-determination Mon, 31 Aug 2026 09:00:03 -0400 On August 25, 2026, the United States Court of Appeals for the D.C. Circuit issued a notable Endangered Species Act (ESA) decision in Center for Biological Diversity v. EPA, No. 25-1005. The Center for Biological Diversity (CBD) had filed a petition for review challenging a final rule published by the Environmental Protection Agency (EPA), which retained the existing national ambient air quality standard for nitrogen oxides and particulate matter and revised the standard for sulfur oxides. CBD argued that EPA violated the ESA by concluding that the challenged air quality rule ...

]]> Comment Period Closing Soon on the Proposed Listing of Two California Salamanders https://www.endangeredspecieslawandpolicy.com/proposed-listing-of-two-california-salamanders Jennifer Seely, Emi Lemberg, Juliana Tookoian, Summer Associate proposed-listing-of-two-california-salamanders Mon, 03 Aug 2026 09:00:04 -0400 The U.S. Fish & Wildlife Service (USFWS) has reopened the public comment period on its proposals to list the Kern Canyon slender salamander (Batrachoseps simatus) and the relictual slender salamander (Batrachoseps relictus) under the Endangered Species Act (ESA), designate critical habitat for both species, and establish a section 4(d) rule for the Kern Canyon slender salamander.

USFWS states that the reopened comment period will remain open until August 6, 2026, and is intended to solicit feedback on a new exception to the proposed 4(d) rule, its consideration of the ...

]]> Fish and Wildlife Service Proposes to Provide Greater Authority to States and Tribes to Manage Grizzly Bears https://www.endangeredspecieslawandpolicy.com/fish-and-wildlife-service-grizzly-bears Paul Weiland fish-and-wildlife-service-grizzly-bears Thu, 23 Jul 2026 09:00:05 -0400 The U.S. Fish & Wildlife Service (Service) has released a supplemental notice of proposed changes to its regulations for management of the grizzly bear (Ursus arctos horribilis) (the 2026 proposed rule). These proposed changes, if adopted in a final rule, would provide States and Tribes with a greater role in management of the species and set up a tiered management system that provides more flexibility to States, Tribes, and federal land managers when they achieve specified conservation management outcomes. The 2026 proposed rule stops short of delisting the grizzly bear but ...

]]> Agencies Rescind “Harm” Definition https://www.endangeredspecieslawandpolicy.com/agencies-rescind-harm-definition Rebecca Hays Barho agencies-rescind-harm-definition Tue, 21 Jul 2026 09:00:06 -0400 On July 14, 2026, the U.S. Fish & Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, Services) published a final rule to rescind the definition of “harm” from their Endangered Species Act (ESA) implementing regulations (Final Rule). For decades, the Services’ definition of “harm”—which indicated that, under certain circumstances, modifying the habitat of ESA-listed species could result in prohibited “take”—has been the primary means by which the ESA impacts private activities. Following the effective date of the Final ...

]]> Rescission of ESA “Harm” Definition Leaves OIRA https://www.endangeredspecieslawandpolicy.com/rescission-of-esa-harm-definition-leaves-oira Rebecca Hays Barho rescission-of-esa-harm-definition-leaves-oira Wed, 08 Jul 2026 09:00:07 -0400 On July 7, 2026, the Office of Information and Regulatory Affairs (OIRA) completed its review of final rules to rescind the regulatory definition of “harm” under the Endangered Species Act (ESA). The U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services) jointly proposed to rescind their respective definitions of “harm” in April 2025 (Proposed Rule) and received more than 350,000 comments with respect to their proposed actions.  

As we previously reported, ESA section 9 prohibits “take” of species listed as endangered, which is defined as ...

]]> USFWS Designates Critical Habitat for the Rusty Patched Bumble Bee https://www.endangeredspecieslawandpolicy.com/usfws-designates-critical-habitat-for-rusty-patched-bumble-bee Jennifer Seely, Benjamin Rubin usfws-designates-critical-habitat-for-rusty-patched-bumble-bee Tue, 02 Jun 2026 09:00:08 -0400 The U.S. Fish & Wildlife Service (USFWS) has published its final rule designating critical habitat for the endangered rusty patched bumble bee (Bombus affinis).

What Does the Rule Do?

The rule designates more than 1.5 million acres of occupied critical habitat broken into 14 units across 33 counties in six states: Minnesota, Wisconsin, Illinois, Iowa, Virginia, and West Virginia. This designation is intended to protect the landscapes that support the bee’s nesting, foraging, and overwintering needs.

What’s New in the Final Rule?

USFWS made several updates between the ...

]]> Recent Case Grapples with Expert Testimony in Endangered Species Act Litigation https://www.endangeredspecieslawandpolicy.com/recent-case-grapples-with-expert-testimony-in-endangered-species-act-litigation Paul Weiland recent-case-grapples-with-expert-testimony-in-endangered-species-act-litigation Tue, 26 May 2026 09:00:09 -0400 In Conservation Council for Hawaii v. Hawaiian Electric Company, Inc. (D. Haw. Apr. 24, 2026), a federal district court in Hawai’i applied Federal Rule of Evidence 702 regarding the admissibility of expert testimony in the context of a lawsuit alleging unauthorized “take” of species protected under the Endangered Species Act (ESA). The decision reflects the effort of the trial judge to balance the gatekeeping function of the judiciary, which is intended to prevent parties from blurring the line between lay and expert testimony, and the notion that parties are entitled to ...

]]> Endangered Species Act Evolving? A Look at Significant Recent and Upcoming Changes to ESA Administration https://www.endangeredspecieslawandpolicy.com/endangered-species-act-evolving Nur Ibrahim, Rebecca Hays Barho endangered-species-act-evolving Thu, 23 Apr 2026 09:00:10 -0400 Endangered Species Act (ESA) administration has seen significant shifts during the past decade, including changes to ESA implementing regulations, policies and guidance and a number of significant decisions by federal courts, including the U.S. Supreme Court. This post provides a brief overview of important recent developments and what we can expect in the near future.

Recent Developments in ESA Administration

Vacatur of Certain Consultation Regulations under ESA Section 7:

On March 30, 2026, the U.S. District Court for the Northern District of California vacated certain ...

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