Endangered Species Law & Policy

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, intentionally directed at a particular animal, that operates directly and immediately on that animal. Neither memoranda indicate how NMFS and USFWS will carry out their permitting and consultation responsibilities under section 7 and 10 of the ESA, each of which establishes a mechanism for USFWS and NMFS to authorize incidental take of listed species. The agencies will presumably apply the reasoning in the NMFS Memo, USFWS Memo, and the preamble of the Recission when determining if a specific activity constitutes “take” under the ESA.

As of the time of this writing, the complaint filed in Center for Biological Diversity, et al. v. U.S. Fish and Wildlife Service, et al., Case No. 2:26-cv-02474 (W.D. Wash.) (filed July 14, 2026), one of the seven lawsuits about which we previously reported, has been supplemented to add claims alleging the new interpretation of “take” violates the ESA and Administrative Procedure Act. For more detailed information about the recission of the "harm" definition and current legal challenges to the recission, please see our previous post here.