Creatures in Crisis

Is it still illegal to accidentally kill an endangered species?

Published September 18, 2026

A freshly cut log lying on a mossy forest floor at dawn, with sunlight coming through the trees behind it
Illustration. A felled tree is the example the new federal directive itself uses.

Under federal enforcement policy, mostly no, as of September 14, 2026. A Fish and Wildlife Service directive now says that to "take" a listed animal, a person must act on it on purpose, so animals killed as a side effect of logging, building or other work are no longer treated as prohibited take. Deliberately hunting, trapping, capturing or collecting a listed animal is still illegal, and states and conservation groups are suing to reverse the change.

Two things happened on the same day. A final rule removing the regulatory definition of "harm" from the Endangered Species Act regulations took effect, and the director of the U.S. Fish and Wildlife Service sent staff a directive explaining how the agency will read "take" from now on. Together they rewrite how the Act treats animals killed by accident on private land, a question the Supreme Court last took up in 1995, when it upheld the old harm definition. This page sets out what changed, where the text comes from, what has not changed, and what it means for the animals in this catalog.

What changed on September 14, 2026?

The first change is a rule. On July 14, 2026 the Fish and Wildlife Service and the National Marine Fisheries Service (NOAA Fisheries) published a final rule, Rescinding the Definition of "Harm" Under the Endangered Species Act (91 FR 43300). It deletes the definition of harm from 50 CFR 17.3, which covers the species FWS manages, and from 50 CFR 222.102, which covers the marine species NOAA Fisheries manages. The rule states that it is effective September 14, 2026.

The two agencies did not write a new definition. The rule says plainly that "no replacement definition is needed" because the Act already defines take, and that the agencies will rely on the statute's text as the standard going forward.

The second change is enforcement guidance. On September 14, Fish and Wildlife Service Director Brian Nesvik sent employees a directive on what counts as take. According to GBH News, which quoted the memo after the Center for Biological Diversity made it public, the directive says that for an action to be prohibited, "the person must intend to act on an animal and must do so for the purpose of affecting the animal." The Associated Press reported Nesvik's own example: "Felling a tree is not a take of the bats roosting in it unless the tree is felled for the purpose of killing or capturing them." The Interior Department said in a statement on Thursday, September 17, that the directive will guide how the new rule is put into practice.

What does "take" mean in the Endangered Species Act?

Section 9 of the Act makes it unlawful to take an endangered animal within the United States, its territorial sea or on the high seas. Section 3 defines take as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." The fight has always been over one word in that list: harm.

In 1975 the Fish and Wildlife Service defined harm broadly enough to include environmental modification that disrupted breeding, feeding or sheltering. In 1981 it narrowed that to "an act which actually kills or injures wildlife," adding that such an act "may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." That 1981 wording is the definition that has now been deleted.

The practical meaning was simple. If you drained a wetland, cleared a forest or built a dam, and it could be shown that the work actually killed or injured protected animals, that could be take even though nobody aimed at an animal. Landowners who expected that kind of incidental harm applied for an incidental take permit under section 10 and wrote a habitat conservation plan to go with it. Federal projects got an incidental take statement through section 7 consultation.

Why did the government drop the harm definition?

The rule rests on two Supreme Court cases. In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (1995), the Court upheld the harm definition by deferring to the agency's reading of the Act under the Chevron doctrine. Justice Antonin Scalia dissented, joined by Chief Justice William Rehnquist and Justice Clarence Thomas, arguing that the regulation was not the best reading of the statute and that habitat modification did not belong inside the word take.

In 2024, Loper Bright Enterprises v. Raimondo ended Chevron deference. The final rule argues that after Loper Bright the question is whether a regulation matches the single best reading of the statute, and it concludes that the harm definition does not. It leans heavily on the Sweet Home dissent, and so, according to the AP, does the Nesvik directive.

The rule also points to the structure of the Act. Section 7 already requires federal agencies to avoid jeopardizing listed species and destroying or adversely modifying designated critical habitat, and section 5 lets the government buy land for conservation. On the agencies' reading, those are the Act's habitat tools, and section 9 take is about acts aimed at animals. The rule states that section 7 "remains fully applicable" to federal actions and that the rescission does not change any species classification or critical habitat designation.

The public response was large. By the close of the comment period on May 19, 2025, the agencies had received about 358,000 comments, according to the rule itself.

What is still illegal after the directive?

Deliberate conduct aimed at listed animals is still take. The Interior Department's statement, quoted by the AP, says that "the ESA's prohibition on 'take' continues to prohibit conduct including harassing, pursuing, hunting, shooting, wounding, killing, trapping, capturing or collecting protected wildlife."

The Act's other section 9 prohibitions are separate from the word harm. Under 16 U.S.C. 1538(a)(1) it is unlawful to import or export an endangered species, to possess, sell, carry or ship one that was taken illegally, to deliver, carry or ship one in interstate or foreign commerce in the course of a commercial activity, and to sell or offer one for sale in interstate or foreign commerce. Those bans are written into the statute, and neither the rule nor the directive, as published and reported, touches them.

That matters for the part of the wildlife trade this site covers. Take the bog turtle, recorded in this catalog as Critically Endangered. The Fish and Wildlife Service lists it as threatened and names collection and illegal trade among its threats, alongside the development and overgrowth that have degraded its wetlands. Pulling a bog turtle out of a wetland to sell is capture and collection, which is still prohibited. Filling in the wetland it lives in is the kind of habitat harm the old definition could reach and the new reading does not.

International rules are also untouched. The permits a listed animal needs to cross a border under CITES and the pet trade rules come from a treaty and separate regulations, not from the harm definition.

What this means for habitat and the animals in the catalog

For most species in crisis, the problem is not a hunter. It is the slow loss of the place they live, which is why habitat loss comes up on dossier after dossier in this catalog. The harm definition was the tool that let federal law reach habitat destruction on private land when it could be shown to kill or injure listed animals. That is the tool that has been removed.

The final rule is direct about the consequences for permits. People applying for an incidental take permit will no longer need to describe the impact on a species' habitat or explain how they will minimize and mitigate habitat modification, and in issuing a permit the Secretary of the Interior will no longer consider the effects of the proposed action on the species' habitat. The agencies say requiring that of private parties was unlawful.

Critics say the directive goes further than the rule. "This cuts against the entire history of the Endangered Species Act," Dan Ashe, who led the Fish and Wildlife Service under President Barack Obama and now heads the Association of Zoos and Aquariums, told the AP. "It just creates a huge loophole." Noah Greenwald of the Center for Biological Diversity called it "basically a free-for-all." Erica Fuller, senior counsel at the Conservation Law Foundation, told GBH that the mitigation industries now carry out to avoid killing or harassing animals "wouldn't be enforced."

The AP's examples show where the change bites. Experts quoted in its report said it would let timber companies log in the Pacific Northwest even where they knew imperiled birds in the trees could be killed, and let developers build a dam knowing it would kill salmon. The AP also noted that the Act is credited with bringing back the bald eagle, the American alligator and the California condor from the brink of extinction.

One open question concerns marine species. The harm rule was joint, so it applies to NOAA Fisheries species such as the North Atlantic right whale. The take directive, as reported, is a Fish and Wildlife Service document. We have not seen reporting on whether NOAA Fisheries has issued matching guidance.

What happens to existing permits and conservation plans?

The final rule says that permits or incidental take statements finalized before September 14, 2026 will not be required to be reevaluated because of the rescission, and that it does not invalidate prior conservation agreements or recovery efforts already in effect. Reopening finished permitting decisions, it says, would be highly disruptive for speculative gains.

What changes is the incentive to get new ones. Commenters warned during the rulemaking that without the harm definition, landowners would have much less reason to seek section 10 permits and write habitat conservation plans. Sandi Snodgrass, a Denver attorney with Holland and Hart whose clients include developers, energy companies and utilities, told the AP that under the new reading the only people needing such a permit would be those acting directly against animals, such as hunters, trappers, anglers and perhaps pesticide users. She added that some companies may still seek permits to guard against changes by future administrations or against citizen lawsuits.

Key facts and dates

Will the change survive in court?

Nobody knows yet. "Whether it holds up in court or not is still to be determined," Fuller told GBH. The states' case against the rescission argues, according to the Colorado attorney general's office, that it reduces protection for habitat and makes it easier to damage or destroy places protected species need. The Seattle suit asks the court to restore the old definition.

The directive is also a different kind of document from the rule. It is guidance to staff on how the agency will enforce the law, not a regulation, and the courts have the final word on what the statute means. AP noted that earlier rollbacks of the Act in the first Trump administration were reversed under President Joe Biden and then revived in the second term, so the rules may keep moving.

For anyone reading a species dossier here, the IUCN status on the page does not change with any of this. A Red List category measures extinction risk. It is not a US legal status, and reading an IUCN assessment tells you about the animal, not about what a landowner may do. US listing, US take and US permits are a separate layer, and that layer is what moved this week. If you are asking about a specific project or a specific animal, the Fish and Wildlife Service field office for your area, your state wildlife agency and a lawyer are the people to ask. This page is not legal advice.

Quick answers

Is it now legal to accidentally kill an endangered species in the US?
Under the Fish and Wildlife Service directive of September 14, 2026, the agency treats take as intentional conduct aimed at an animal, so it no longer treats accidental deaths from logging, building or similar work as prohibited take. The change is being challenged in court, and state wildlife laws are separate.
What did the harm rule rescission change?
FWS and NOAA Fisheries removed the regulatory definition of harm from 50 CFR 17.3 and 222.102, effective September 14, 2026. That definition had counted significant habitat modification that actually kills or injures wildlife as harm. No replacement definition was written.
Is it still illegal to capture, collect or sell an endangered animal?
Yes. The Interior Department said take still covers harassing, pursuing, hunting, shooting, wounding, killing, trapping, capturing and collecting protected wildlife. The Act's separate bans on import, export and interstate sale of listed species are written into the statute.
Do existing permits and habitat conservation plans still apply?
The final rule says permits and incidental take statements finalized before September 14, 2026 will not be reevaluated because of the rescission, and it does not invalidate conservation agreements already in effect.
Who is suing over the changes?
Environmental groups represented by Earthjustice sued in federal court in Seattle in July, and in September a coalition of 21 attorneys general filed two lawsuits, one over the harm rescission and one over the critical habitat and threatened species rules.