The Department of the Interior and the Department of Commerce have finalized a rule that narrows the Endangered Species Act’s prohibition on “take” by removing habitat destruction from the statutory meaning of “harm,” federal officials announced. The change rescinds a nearly 50-year practice of treating significant habitat modification as a form of harm to protected species, a shift with wide implications for conservation, industry and regulatory oversight.
What the rule changes
Under the updated interpretation, activities such as logging, mining or oil and gas development may proceed even when they substantially alter or destroy habitat used by listed species, provided those actions do not directly kill or injure an individual animal at the moment the activity occurs. The rule relies in part on a 2024 Supreme Court decision that criticized the broader interpretation of “harm” as a form of federal overreach.
"returns the law to its \u2018original intent\u2019"
Interior Secretary Doug Burgum characterized the revision as restoring the statute’s original scope, according to the agencies’ announcement.
Why scientists and conservationists are alarmed
For decades, courts and conservation biologists interpreted "harm" to include indirect but predictable harms to species caused by habitat loss and ecosystem alteration. That understanding meant that destroying a forested nesting area, damming a stream or otherwise so degrading habitat that a species could no longer feed or reproduce could trigger prohibitions and mitigation requirements under Section 9 of the ESA.
- Scope narrowed: The new rule removes most habitat-based protections previously applied under Section 9.
- Regulatory effect: Projects that alter ecosystems but do not immediately kill animals may not be treated as a “take.”
- Legal foundation: The administration cites a 2024 Supreme Court decision as a central rationale for the change.
Practical consequences
Industry proponents have long argued that the broader interpretation of "harm" imposed onerous constraints on land use and economic activity. Under the finalized rule, entities that alter critical habitat may face fewer federal obstacles, so long as no direct, observable killing or injuring occurs during operations.
Conservation scientists warn that this approach separates species from the ecosystems on which they depend. The practical effect could be to permit destruction of breeding, feeding or shelter areas if no animal is present at the exact moment of disturbance — a distinction that many ecologists say fails to reflect how populations respond to landscape-scale change.
| Previous interpretation | New rule |
|---|---|
| Includes indirect ecosystem modifications that prevent feeding, breeding or sheltering as "harm." | Limits "harm" to direct killing or physical injury; habitat modification alone generally excluded. |
The rule represents a fundamental reinterpretation of how the ESA’s prohibitions operate in practice. Supporters describe it as a clarification that returns the statute to its original meaning; opponents say it undermines the law’s purpose by removing common-sense, ecology-based protections developed over decades of case law.
The administration’s announcement followed legal and political debates over federal authority and the balance between conservation and development. The agencies argue the revision aligns statutory text with judicial guidance, while conservation groups have signaled plans to challenge the change through litigation and legislative advocacy.
The finalized rule will shape how federal agencies and courts evaluate actions that alter landscapes across the United States, with consequences for listed species, land managers and industries that work in or near critical habitat.
