By Paul DiFiore, Attorney and Travis Audubon Board Member

This is an update to a blog post from May 2025.

Last year the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Administration (NMFS), the two federal agencies tasked with primary implementation and enforcement of the Endangered Species Act, proposed a change to their rules. The proposed rule would rescind the agencies’ current definition of “harm” and replace it with one that does not include habitat loss. After public notice and a comment period, that rule has now been finalized and will go into effect in September 2026. That means the primary threat to endangered species will no longer be considered an illegal taking of a species.

Here in Central Texas, tens of thousands of acres of Golden-cheeked Warbler habitat will soon be subject to potential clearing with effectively no consequence. Under the old definition of harm, those who destroyed a species’ habitat without an “incidental take permit” would have undoubtedly been violating the Endangered Species Act. But with the rule change, it’s uncertain whether the Act will be enforced by the government in any meaningful way going forward. In this new reality, it may be up to private individuals and organizations to go after violators using the Act’s citizen suit provision.

Still, the updated rule might not stand for very long. It contradicts decades of settled law and precedent set by the U.S. Supreme Court in the 1990s. As such, a coalition of environmental and conservation groups recently filed suit in federal district court seeking to have the agencies’ decision reversed by a judge. 

For the foreseeable future, however, endangered species in the U.S. are about to be more at risk than at any time in recent history. 

Photo credit: Connor Teseny