Species listed under the Endangered Species Act are protected so they can recover. For decades, this has included ensuring individual animals are protected from injury and death caused by habitat destruction and ensuring plans are in place to minimize and mitigate the impacts of lawful activities that wound or kill animals - even if that is not the intended purpose of the activity.
FAQ
Section 9 of the ESA prohibits “take” of listed species. Take is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”
“Incidental take” is a legal term that refers to any “take” that results from lawful activity, such as building a road, but is not the purpose of that activity. The U.S. Fish and Wildlife Service and National Marine Fisheries Service may authorize incidental take through permits. Those permits require impact to protected species to be minimized and mitigated.
Essentially, not every project affecting wildlife had to stop, but foreseeable impacts must be addressed.
Under the administration’s new interpretation, explained in the rulemaking rescinding the regulatory definitions of harm and in September 2026 memos to FWS and NMFS staff, an action only counts as “take” if someone meant to kill or hurt the animal.
The memos gave the following examples:
- A vessel that inadvertently strikes a whale has not taken the whale because the vessel was not directed at the whale.
- Cutting down a tree containing protected bats does not constitute take unless the tree was felled for the purpose of killing them.
If an activity is expected to injure or kill endangered wildlife, that should be accounted for, not ignored, even if that injury or death is not intended. An endangered animal is no less dead because its death was predictable rather than purposeful.
“Harm” is one of the actions listed in the definition of “take”. For almost 50 years, the regulatory definitions of “harm” included death or injury to individual members of a protected species as a result of destroying or damaging their habitat.
For example, those regulatory definitions covered damage to habitat that made it hard for animals to find food, raise their young or find shelter. This was one of the most important ways the law protected wildlife.
In July 2026, the government got rid of its regulatory definitions of “harm” and stated it would no longer consider habitat impacts as part of harm. This action took effect in September 2026.
Habitat loss threatens 90% of listed species. The more a species’ habitat is destroyed or degraded, the higher the risk of it going extinct.
This reinterpretation may seem small, but it reflects a significant change in the way the administration will implement ESA that will have major impacts on imperiled species. It will allow extractive and polluting industries to destroy or modify the habitat of imperiled plants and animals — the places they need to feed, shelter, raise their young — even if it results in their death or injury.
Habitat loss is already a leading threat to American wildlife including Florida manatees, salmon, red-cockaded woodpeckers, northern spotted owls, monarch butterflies, bees and so many more. This change will make it harder to address that threat.
This change will also affect people. We rely on healthy ecosystems for everything from access to clean water to disease prevention. Without proper protection and care for habitats, agricultural systems could also be damaged and we may see a reduction to tourism and outdoor recreation.
Learn More
