PRESS RELEASE
July 20, 2026
New ESA Rule Marks Significant Shift in Federal “Harm” Policy
Written By: Dan Keppen, Communications Consultant for Klamath Water Users Association
After years of advocacy by the Klamath Water Users Association (KWUA), the Family Farm Alliance (Alliance), and dozens of allied agricultural and water organizations, the U.S. Departments of the Interior and Commerce have finalized a rule rescinding the federal regulatory definition of “harm” under the Endangered Species Act (ESA).
While the change may sound technical, it represents one of the most consequential ESA policy reforms in decades.
“This rule is about restoring a clear connection between ESA regulation and actual impacts to listed species,” said Elizabeth Nielsen, KWUA Executive Director. “It provides an opportunity for future decisions to be based on the law Congress wrote and on sound science.”
For more than 40 years, federal regulations interpreted “harm” to include certain habitat modifications that could indirectly kill or injure protected species. Supporters of the new rule argued that interpretation expanded ESA implementation beyond Congress’s intent, creating uncertainty for landowners, water managers, and federal water projects throughout the West.
Following the U.S. Supreme Court’s 2024 decision in Loper Bright v. Raimondo, the agencies concluded the regulation could no longer be justified. They determined that the ESA’s statutory definition of “take” provides the appropriate legal standard and declined to adopt a replacement definition.
“Importantly, the rule does not change the ESA itself, nor does it reopen existing biological opinions, incidental take statements, or permits issued under the previous regulation,” Ms. Nielsen said. “Instead, it changes how the agencies will interpret and apply the law moving forward.”
For the Klamath Project, the rule could eventually lead to a closer connection between ESA decisions and demonstrable impacts to listed species, rather than speculative or highly attenuated habitat effects.
That issue has been particularly relevant in the Klamath Basin. In comments submitted by the Alliance-led coalition in 2025, supporters pointed to ESA restrictions affecting Klamath Project irrigators that were tied to Southern Resident killer whales hundreds of miles away through a chain of assumptions involving Klamath River Chinook salmon and ocean food availability. The coalition argued this stretched the concept of “harm” well beyond what Congress intended when it enacted the ESA.
KWUA leadership and its legal team played a leading role throughout the rulemaking process. Executive Director Nielsen joined more than 40 agricultural, water, local government, and business organizations in urging the Services to require objectively discernible physical impacts to listed species rather than relying on speculative ecological effects.
“ESA claims based on harm-by-habitat modification legal theories have led to expensive litigation for water users—litigation that has not provided actual benefits for protected species in their habitats. This change lets the word ‘harm’ speak for itself and discourages that type of wasteful litigation.” said Brittany Johnson of Somach Simmons & Dunn, KWUA’s general counsel.
Although the practical effects of the rule will depend on how future ESA consultations and court decisions unfold, KWUA believes the action is an important step toward a more predictable regulatory framework—one made possible through years of coordinated advocacy by western water users, agricultural organizations, and local communities.
“For years, Klamath Project water users have operated under regulatory assumptions that reached far beyond direct impacts to listed species,” said KWUA President Scott Seus. “This reform is an important step toward a more balanced and predictable process.”
Read the final rule: https://www.federalregister.gov/documents/2026/07/14/2026-14195/rescinding-the-definition-of-harm-under-the-endangered-species-act
