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A Sept. 14 directive from U.S. Fish and Wildlife Service leadership narrows when the Endangered Species Act bars harm and says incidental — nonintentional — deaths of protected animals will not count as illegal “take” unless they were targeted. The change follows a July rulemaking that tightened the agency's legal standard and leans on a 1995 Supreme Court dissent and a 2024 decision limiting agency interpretations. The directive will guide implementation of the July rule, and states and conservation groups have already filed lawsuits. The memo and its examples were described in reporting by Matthew Brown, as first reported by the Associated Press.
Key takeaways
- Directive date: The Fish and Wildlife Service issued a guidance memo on Sept. 14 that narrows when killing an endangered species counts as an illegal "take."
- Rule change timing: The guidance will govern enforcement of a rule the agency issued in July that tightened the legal interpretation of "harm" under the Endangered Species Act.
- Agency voice: Director Brian Nesvik wrote that felling a tree is not a take unless done with the purpose of killing or capturing the animals roosting in it.
- Opposition: Dan Ashe, former Fish and Wildlife director under President Barack Obama, called the move a "huge loophole," and Noah Greenwald of the Center for Biological Diversity said it is "basically a free-for-all."
Table of contents
- Key takeaways
- What the Sept. 14 directive changes and why it matters
- How companies and developers could be affected
- Environmental groups and former officials warn of extinction risk
- Legal and political pushback is already underway
- How the next year could go
- What to be careful about
- Frequently asked questions
What the Sept. 14 directive changes and why it matters
The Sept. 14 directive clarifies when conduct that injures or kills a protected species qualifies as a legal "take." Under the new interpretation, incidental harms that are not aimed at the animals — for example, cutting a tree that houses bats — are treated as indirect and accidental rather than as prohibited conduct. The memo cites a dissenting opinion from Justice Antonin Scalia in a 1995 case and follows a July rule that tightened the definition of harm.
That shift is procedural as well as legal: the directive is not new legislation but will shape how the Fish and Wildlife Service enforces the Endangered Species Act day to day. The administration presents the change as a return to the statute’s original scope after the 2024 Supreme Court decision that constrained agencies' power to interpret statutes. For regulated industries, the practical effect will be narrower liability for habitat-altering projects unless the agency can show purposeful targeting of protected animals.
How companies and developers could be affected
Timber firms, energy developers and infrastructure builders stand to see fewer automatic penalties for incidental losses of listed species under the directive. The agency’s example — that felling a tree is not a take unless it was done to kill or capture the bats that roost in it — signals regulators will treat many project-related deaths as foreseeable but lawful impacts rather than statutory violations.
Sandi Snodgrass, an attorney at Holland and Hart whose clients include developers and utilities, said companies may still seek incidental-take permits and habitat protection plans because those permits can shield projects from litigation and from policy reversals by later administrations or from suits brought by citizens. That hedging will determine whether the directive lowers transaction costs or merely shifts compliance strategies.
Environmental groups and former officials warn of extinction risk
Dan Ashe, who led the agency under President Barack Obama and currently serves as president of the Association of Zoos and Aquariums, said the guidance amounts to a major retreat from decades of practice that treated habitat destruction and incidental mortality as bases for liability. He said the change "creates a huge loophole" and frees actors from responsibility for harms that could be easily anticipated.
Noah Greenwald of the Center for Biological Diversity called the policy "basically a free-for-all" and warned it could accelerate extinctions by permitting habitat removal where imperiled species live. He said the Endangered Species Act helped bring back species including the California condor, the bald eagle and the American alligator, and he warned that narrowing enforcement could undo those recoveries.
Legal and political pushback is already underway
States and conservation groups have filed lawsuits seeking to overturn the rule and the implementing guidance, making courts the likely battleground for the directive's durability. The administration argues the move responds to the Supreme Court's 2024 limitations on agency interpretations and restores the statute to its original intent, but challengers will press a different legal reading in federal court.
The pace and result of litigation will determine whether the guidance changes long-term practice or is reversed. Meanwhile, company behavior may diverge: some developers could proceed under the narrower enforcement standard, while others will continue to obtain incidental-take permits to reduce legal risk. That split will shape how much immediate conservation harm follows from the guidance.
| Action | Agency position | Who it affects | Legal status |
|---|---|---|---|
| July rule narrowing 'harm' | Defines a narrower scope of compensable harm | Projects that alter habitat | Published by Fish and Wildlife Service |
| Sept. 14 directive | Says incidental, non‑targeted deaths are not a 'take' | Timber, developers, utilities | Guidance to enforce the July rule |
| Lawsuits | Seek to reverse rule and guidance | States and conservation groups | Pending in federal courts |
How the next year could go
The case for
- Courts could uphold the agency's narrower reading, which would reduce incidental-take liability for many projects and lower compliance costs for developers.
- Even with the narrower enforcement standard, many companies may continue to seek incidental-take permits, keeping mitigation and habitat protections in place for sensitive species.
The case against
- Federal and state litigation could block or roll back the guidance, reinstating broader liability and creating sudden compliance costs for projects built under the new standard.
- If permit uptake falls and habitat clearance accelerates, conservation groups warn the policy could increase the extinction risk for vulnerable populations.
What to be careful about
- Heightened legal uncertainty as courts consider multiple suits challenging the July rule and the Sept. 14 directive.
- Increased habitat destruction and incidental mortality for species such as bats, spotted owls and salmon if project approvals proceed without mitigation.
- Divergent corporate strategies: some firms may rely on the narrower enforcement standard while others continue to purchase incidental-take permits, fragmenting protections.
The bottom line
The Fish and Wildlife Service’s Sept. 14 directive shifts enforcement toward a narrower conception of illegal "take," treating many project-linked deaths as incidental unless aimed at the animals. The change reflects a legal strategy rooted in a 1995 dissent and the 2024 Supreme Court decision that curtailed broad agency interpretation. Companies will decide whether to rely on the new standard or keep securing incidental‑take permits; conservation groups and multiple states have already moved to block the rule in court. The outcome of that litigation will determine whether the guidance becomes the lasting framework for how the Endangered Species Act is applied.
What to watch
- Watch for federal court rulings on the lawsuits filed by states and conservation groups; no date has been set.
- Watch for permit filings and habitat protection plans from timber and energy companies as they respond to the July rule and Sept. 14 guidance; no date has been set.
Frequently asked questions
What exactly did the Fish and Wildlife Service say on Sept. 14?
The Sept. 14 guidance says incidental harms that are not committed for the purpose of killing or capturing protected animals will be treated as indirect and accidental and therefore typically will not qualify as a prohibited "take" under the Endangered Species Act.
How does this follow recent regulatory steps?
The guidance implements a narrower July rule that tightened the definition of "harm" under the Act and relies on legal reasoning tied to a 1995 Supreme Court dissent and the 2024 Supreme Court decision that limited agency interpretive authority.
Who is challenging the change?
States and conservation groups have filed lawsuits seeking to overturn the July rule and the Sept. 14 guidance; those cases are pending in federal court.
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