Federal: Habitat damage no longer counts as 'harm' to listed species; states including Connecticut sue
The rescission took effect September 14, 2026 and applies to the four states. Habitat modification alone no longer counts as prohibited take under federal rules, but consultation and critical habitat duties remain. A state coalition including CT, NJ and NY has challenged it.
This is a federal action that applies to every project in New Jersey, New York, Connecticut and Pennsylvania that touches habitat for a federally listed animal. On July 14, 2026 the U.S. Fish and Wildlife Service and the National Marine Fisheries Service published a final rule, Rescinding the Definition of "Harm" Under the Endangered Species Act, 91 Fed. Reg. 43300 (Docket Nos. FWS-HQ-ES-2025-0034 and NMFS-250411-0064), which removes the regulatory definitions of "harm" from 50 C.F.R. Parts 17 and 222. The rule took effect on September 14, 2026.
91 Fed. Reg. 43300 (July 14, 2026) (50 C.F.R. Parts 17 and 222); Docket Nos. FWS-HQ-ES-2025-0034, NMFS-250411-0064; 91 Fed. Reg. 45723 and 91 Fed. Reg. 45662 (July 21, 2026); State of California v. Burgum (N.D. Cal.)