Habitat Modification is No Longer Prohibited "Take" Under the Endangered Species Act

Short summary

On July 14, 2026, FWS and NMFS issued a final rule rescinding the regulatory definition of 'harm' under the ESA, meaning habitat modification is no longer prohibited 'take.' The rule relies on Scalia's Sweet Home dissent and the post-Chevron Loper Bright decision, arguing 'take' requires direct intentional action against specific animals. Three lawsuits have already been filed challenging the rule, which becomes effective September 14, 2026. Project proponents may no longer need incidental take authorization for habitat-modifying activities.

• •FWS and NMFS rescinded the ESA definition of 'harm,' removing habitat modification from 'take' prohibition
• •Rule relies on Loper Bright's elimination of Chevron deference and Scalia's Sweet Home dissent
• •Three lawsuits filed; rule effective September 14, 2026; project proponents may no longer need incidental take permits for habitat impacts

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