The U.S. Department of the Interior (DOI) has finalized a rule rescinding the regulatory definition of “harm” under the Endangered Species Act (ESA). The rule is scheduled for publication in the Federal Register and is expected to become effective 60 days after publication.
While the rule has generated significant discussion across the environmental and development communities, many practical questions remain about how it will affect project planning, permitting, and enforcement.
What Changed?
Rather than adopting a revised definition of “harm,” the Department of the Interior is removing the regulatory definition from the ESA regulations altogether.
The Department states that the Endangered Species Act itself continues to prohibit the unauthorized “take” of federally listed species. However, the separate regulatory definition of “harm,” which has historically included certain habitat modification that results in injury to protected wildlife, will no longer appear in the regulations.
The practical implications of this change are still uncertain and will likely become clearer as agencies issue guidance and the courts interpret the revised rule.
What We Know Today
According to the Department of the Interior’s announcement and the pre-publication rule:
- The regulatory definition of “harm” is being rescinded rather than replaced.
- Actions that directly injure or kill listed wildlife remain prohibited under the Endangered Species Act.
- Existing Incidental Take Permits remain valid.
- Existing Incidental Take Statements remain valid.
- Existing Habitat Conservation Plans (HCPs) remain in effect.
- The rule is expected to become effective approximately 60 days after publication in the Federal Register.
What Does This Mean for Project Development?
At this stage, there are still more questions than answers.
Because the statutory prohibition on “take” remains unchanged, project owners should not assume endangered species requirements have been eliminated. Federal agencies, the regulated community, and the courts will need time to determine how the rescission affects permitting decisions and enforcement.
One possible outcome is an increased emphasis on biological surveys that document whether protected species are actually present on a project site.
For projects located in environmentally sensitive areas, presence/absence surveys and other biological evaluations may become even more valuable in supporting permitting decisions and environmental due diligence.
Until additional guidance is issued, developers should continue following existing environmental review processes.
Existing Permits Continue to Apply
An important takeaway from the Department’s announcement is that existing authorizations remain in place.
This includes:
- Habitat Conservation Plans (HCPs)
- Incidental Take Permits
- Incidental Take Statements
For projects throughout Texas, regional Habitat Conservation Plans, including those covering portions of Williamson County, Travis County, and Bexar County, remain valid.
What remains uncertain is whether rescinding the regulatory definition of “harm” will influence when future permits are required or how permit applications are evaluated.
Additional Guidance and Litigation Are Likely
Federal agencies often issue implementation guidance following significant regulatory changes, and additional clarification from the U.S. Fish and Wildlife Service is expected.
Legal challenges have already been announced by environmental organizations, meaning implementation of the rule may ultimately be shaped by future court decisions. Depending on the outcome of those cases, enforcement could evolve over time.
What Should Project Owners Do?
Although the regulatory landscape continues to evolve, organizations planning development, infrastructure, utility, energy, and commercial projects should continue to:
- Evaluate endangered species concerns early during project planning.
- Conduct biological assessments and presence/absence surveys when appropriate.
- Maintain compliance with existing permits and Habitat Conservation Plans.
- Monitor future guidance from the Department of the Interior and the U.S. Fish and Wildlife Service.
- Stay informed as litigation and agency interpretation shape implementation of the rule.
Early environmental planning remains one of the best ways to minimize permitting delays and identify potential compliance considerations before they affect project schedules.
How ESE Partners Can Help
Changes to federal environmental regulations often require careful interpretation before their practical impacts become clear. ESE Partners helps clients throughout Texas navigate endangered species compliance, biological assessments, environmental permitting, Habitat Conservation Plan coordination, and environmental due diligence.
As additional guidance is released and the rule moves toward its effective date, our team will continue monitoring developments and helping clients understand what these changes may mean for their projects.
