A significant update to the Endangered Species Act (ESA) is set to take effect on September 14, 2026, changing how “harm” is defined under the law. The U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) have rescinded the longstanding definition that included habitat modification resulting in injury or death to listed wildlife.

What does this mean for land development and infrastructure projects across Texas?

For private-land projects without a federal nexus, the change may reduce ESA exposure related to habitat clearing, particularly in Central Texas, where species like the golden-cheeked warbler have historically influenced project planning. However, direct take, including killing, injuring, or disturbing active nests, remains prohibited, making seasonal timing just as important as ever.

For projects involving a federal nexus, such as Section 404 permits, federal funding, or work on federal land, the requirements remain largely unchanged. Section 7 consultation is still required, and projects affecting streams, coastal habitats, and federally protected species will continue to follow existing ESA review processes. Likewise, the rule does not affect listed plants, which remain subject to existing protections wherever federal or state regulations apply.

What Should Project Teams Do?

While the rule may provide greater flexibility for some private development projects, it’s not a blanket exemption. WGA recommends:

• Re-screening habitat-clearing projects to determine whether a federal nexus exists.
• Maintaining existing Section 7 and Section 404 review scopes where applicable.
• Continuing nesting-season protections and botanical surveys.
• Monitoring ongoing litigation, as legal challenges to the rule are expected.

As regulatory guidance continues to evolve, early environmental review remains one of the best ways to identify project risks and avoid delays. WGA’s Environmental team can help evaluate how these changes apply to your specific project and develop the most efficient path forward.

Download our one-page guide for a quick overview and recommended next steps.