Big Changes Become Final in Federal Endangered Species Regulation—But Litigation is Afoot
As part of a larger deregulatory initiative by the Trump administration, the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (“the Services”) recently rolled back a pair of longstanding rules relating to the protections afforded to threatened and endangered species under the Endangered Species Act (ESA). ESA Section 9 prohibits the “take” of an endangered species without authorization. As discussed below, the new rules face multiple legal challenges but are already impacting aspects of environmental permitting in Florida.
For additional background, please see the overview we published earlier this summer.
Recission of the Harm Rule
The term “take” is defined in the ESA as including “harm” to endangered species, and “harm” was previously defined in Services’ rules as including significant habitat modification. The final rule repealing the regulatory definition of “harm” was rescinded effective September 14, 2026. 91 Fed. Reg. 43300 (July 14, 2026), leaving the term undefined. The Services have declared that, under the best meaning of “harm” as used in the ESA, habitat modification alone should not be considered a prohibited “take”; rather, “harm” should include only direct, immediate and intentional conduct affecting specific animals.
Litigation
Several parties, including environmental groups, federal Indian Tribes, and a coalition of state attorneys general, have filed lawsuits in Washington, California and South Carolina challenging the final rule. On October 7, the Department of Justice filed motions for summary judgement in four of the cases. Notably, the federal government has argued that the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) rejecting Chevron deference requires agencies and courts to “administer statutes according to their single, best meaning.”
The filings go on to say that, once the Services initiated rulemaking, they had no discretion but to rescind the harm definition “as a matter of law, not policy” and therefore “owed no further obligations under the Administrative Procedure Act (APA) or National Environmental Policy Act (NEPA).” While still in the early stages of litigation, a favorable ruling for the government would not only confirm the narrower scope of a “take” under the ESA but could also have far reaching implications related to the procedural requirements for a variety of federal environmental laws.
Bear Warriors – Septic Moratorium Lifted
On October 8, 2026, the 11th Circuit Court of Appeals in Bear Warriors United, Inc. v. Secretary, Florida Department of Environmental Protection, No. 25-11612 (11th Cir. 2026) vacated a permanent injunction granted by the Middle District of Florida in 2025 prohibiting the Florida Department of Environmental Protection (“Department”) from issuing new septic permits in the North Indian River Lagoon watershed. The District Court relied on the now-rescinded definition of “harm” to find that the Department had violated the ESA and issued an injunction to protect the essential foraging habitat of the threatened West Indian Manatee. The 11th Circuit remanded the case to the District Court to determine the effect of the rule rescission on the case.
Practical Effects
How will this affect you? In the short term, the USFWS in Florida, at least, has advised regulated parties it will not be issuing any authorizations to “take” listed species pending receipt of guidance from D.C. explaining how “harm” should be defined. Delays in project implementation are inevitable and litigation likely. In the long term, assuming the rule is upheld by the court, habitat modification or destruction alone will not require federal “take” authorization under the Act. The Florida Fish & Wildlife Commission has given no indication it intends to fill the regulatory gap on this topic, although it has the authority to do so and its rules could be read to require a state permit if the USFWS does not act.
Rescission of the “Blanket Rule”
Effective August 20, 2026, the USFWS also repealed the ESA Section 4(d) “blanket rule,” which automatically provides Section 9 “take” protection to species listed as threatened by the USFWS. 91 Fed. Reg. 45723 (July 21, 2026). Going forward, like NMFS does now, USFWS will adopt species-specific protections during the listing process. The repeal is prospective only and is not expected to have an immediate impact on species permitting in Florida, although it should ultimately lessen regulatory burdens. The rule change has been challenged by environmental groups in the U.S. District Court for the District of Montana.
