Endangered Species Law & Policy

On July 14, 2026, the U.S. Fish and 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 ...

The Fifth Amendment to the U.S. Constitution states, in part, “nor shall private property be taken for public use, without just compensation.” The federal Endangered Species Act deals with a different type of “taking.” Section 9 of the Endangered Species Act generally prohibits any person from “taking” any species of fish or wildlife listed as endangered. 16 U.S.C § 1538. This is a general prohibition, because if a project involves a federal permit or approval, a federal resource agency can prepare a biological opinion under Section 7 of the Endangered Species Act and ...