Conserving Habitat Has Always Been Central to the Endangered Species Act
Understanding recent changes to a longstanding definition is important because of what they could mean for habitat conservation and bird recovery
Update: On September 14th, 2026, the “harm rule” officially went into effect. On the same day, the U.S. Fish and Wildlife Service (FWS) issued an internal memo providing guidance on how the definition of “take” will be interpreted under the Endangered Species Act (ESA) as a result of the rule. Because the rule change is justified based on a view that “take” only applies to intentional acts of harm, the memo states that FWS will no longer prohibit any “incidental take” under the ESA, similar to its change to the Migratory Bird Treaty Act policy. This means that projects such as energy development, logging, mining, construction, transportation, and more will no longer be held responsible for the deaths of listed endangered species that may occur from their activities. Third parties will also no longer be required to obtain a permit for incidental take, which have helped reduce impacts on endangered birds and other species through mitigation that avoids, minimizes, and offsets anticipated harm to species and the habitat they depend on.
Every bird, and every community, depends on healthy habitat. Forests, grasslands, wetlands, and coasts sustain birds throughout their life cycles while also supporting clean water, resilient communities, and local economies. For more than 50 years, the Endangered Species Act (ESA) has helped conserve both imperiled species and the habitats they depend on, making it one of America’s most successful conservation laws.
Through science-based decision-making, planning, collaboration, and sustained investment, the ESA has protected birds while providing practical tools that encourage partnership, regulatory certainty, and long-term recovery. However, recent changes to the implementation of the ESA raise important questions about how habitat protections will be interpreted moving forward.
A new rule rescinds the longstanding, bipartisan regulatory definition of “harm,” which for decades recognized that significant habitat destruction resulting in the death or injury of protected wildlife could violate the ESA. The definition reflected a fundamental conservation principle: wildlife recovery depends on healthy habitat.
For that reason, Audubon, together with more than 160 affiliated chapters and thousands of members and supporters, urged the agency in 2025 to retain the longstanding definition. Audubon’s comments emphasized that conserving and restoring habitat is essential to the recovery and long-term conservation of birds, including Piping Plovers, Whooping Cranes, California Condors, and nearly one hundred other U.S. bird species.
In adopting the new rule, the agency did not replace the definition with an alternative standard. As a result, important questions remain about how habitat impacts will be evaluated under the ESA. That uncertainty may make it more difficult for agencies, landowners, businesses, and conservation partners to plan with confidence and could affect collaborative conservation tools, including Habitat Conservation Plans and Candidate Conservation Agreements, that provide regulatory certainty while advancing habitat conservation. Maintaining these approaches will remain important to achieving the ESA’s goals.
At a time when North America has lost 3 billion birds since 1970 and habitat loss remains one of the leading drivers of bird declines, we should be making it easier to conserve and restore the places birds and people depend on.
Moving forward, we will continue engaging decision-makers to advance the bipartisan conservation principles that have made the Endangered Species Act one of our nation's most successful conservation laws. Healthy habitat remains the foundation of successful species recovery while supporting the forests, grasslands, wetlands, rivers, and coasts that benefit communities across the country.
