The U.S. Department of the Interior (DOI) has announced a significant update to the regulatory definition of “harm” under the Endangered Species Act (ESA). Although the rule has been finalized by the agency, stakeholders are still awaiting the publication of the Federal Register notice and additional implementation guidance that will clarify how the change will be applied in practice.
The revised definition removes habitat modification from the regulatory definition of “harm,” representing a notable shift in how the ESA may be enforced. While the announcement has generated considerable discussion across the environmental and development communities, many practical questions remain unanswered.
Understanding the Change
For many years, the definition of “harm” under the ESA included certain actions that significantly modified or degraded habitat if those actions resulted in injury to protected species. The Department of the Interior’s revised interpretation removes habitat alteration from that definition.
However, this does not eliminate protections for federally listed species.
According to the Department’s announcement:
- Actions that directly injure or kill listed wildlife remain prohibited.
- Existing incidental take permits and incidental take statements remain valid.
- Existing Habitat Conservation Plans (HCPs) continue to remain in effect.
In other words, the ESA’s prohibition against unauthorized “take” of listed species continues to apply. The primary question is how the revised definition may influence permitting decisions, project planning, and regulatory enforcement moving forward.
What Could This Mean for Future Projects?
Until additional guidance is issued by the U.S. Fish and Wildlife Service (USFWS) and the Department of the Interior, the full implications remain uncertain.
One area that may receive greater emphasis is documenting whether protected species are actually present on a project site.
If habitat modification alone no longer serves as part of the regulatory definition of “harm,” developers may see increased importance placed on biological field surveys, including presence/absence surveys, to determine whether listed species occupy a property before project activities begin.
For projects located in environmentally sensitive areas, these surveys may become an increasingly valuable component of environmental due diligence and permitting strategies.
Existing Permits and Habitat Conservation Plans Remain in Effect
One important takeaway from the Department’s announcement is that existing regulatory approvals are not being invalidated.
This includes:
- Incidental Take Permits
- Incidental Take Statements
- Habitat Conservation Plans (HCPs)
For Texas projects, regional Habitat Conservation Plans in areas such as Williamson County, Travis County, and Bexar County remain valid under the current announcement.
What remains less clear is whether the revised definition will ultimately change when new permits are required or how future permit applications will be evaluated. Those questions will likely be addressed through future agency guidance and implementation.
The Change Is Not Immediate
Like many federal regulatory actions, implementation does not occur immediately upon announcement.
The final rule must become effective according to its published implementation schedule, and agencies often issue additional guidance documents to explain how new regulations will be interpreted and enforced.
Until that process is complete, project owners should avoid making assumptions about how the revised definition may affect ongoing or future projects.
Legal Challenges Are Expected
Several environmental organizations have already announced plans to challenge the rule in federal court.
Those legal challenges could result in injunctions that delay or temporarily block implementation in certain federal judicial districts.
Recent Supreme Court decisions have made nationwide injunctions less common than in previous years, meaning it is possible that implementation could vary geographically depending on how litigation progresses.
As a result, project owners should continue monitoring developments and work closely with environmental professionals to understand any regional implications.
What Project Owners Should Do Now
Although the long-term impacts remain uncertain, organizations planning development, infrastructure, utility, energy, or commercial projects should continue following established environmental compliance practices.
That includes:
- Evaluating potential endangered species concerns early during project planning.
- Completing biological assessments and presence/absence surveys when appropriate.
- Maintaining compliance with existing permits and Habitat Conservation Plans.
- Monitoring future guidance from the Department of the Interior and the U.S. Fish and Wildlife Service.
- Staying informed as litigation and agency interpretation shape future implementation.
Early environmental planning remains one of the most effective ways to reduce permitting delays and identify potential regulatory considerations before they affect project schedules.
How ESE Partners Can Help
Federal environmental regulations continue to evolve, and understanding how those changes affect individual projects requires both technical expertise and practical experience.
ESE Partners assists clients throughout Texas with endangered species evaluations, biological assessments, environmental permitting, Habitat Conservation Plan coordination, presence/absence surveys, and environmental due diligence. Our team continues to monitor federal and state regulatory developments and can help clients evaluate how changing ESA requirements may influence project planning and permitting strategies.
As additional guidance is released and the Federal Register notice is published, ESE Partners will continue providing updates to help clients navigate these evolving requirements with confidence.
