Interior and Commerce rescind the rule that counted habitat destruction as harm to endangered species

The Interior and Commerce departments finalized a rule on Friday that removes habitat destruction from the definition of "harm" under the Endangered Species Act, ending a regulatory interpretation that has been on the books for decades and that the Supreme Court upheld in 1995.

The rule was signed by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, the two agencies that administer the Act. It is scheduled to publish in the Federal Register on Tuesday, July 14, and takes effect 60 days after publication.

What the rule changes

Section 9 of the Endangered Species Act makes it illegal for private citizens to "take" an endangered animal. Section 3 defines "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."

Since the 1970s, the two agencies have defined the word "harm" by regulation to include "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." That definition sat at 50 CFR 17.3 for Fish and Wildlife and 50 CFR 222.102 for the fisheries service.

The final rule strikes both. Nothing replaces them. Going forward, the Services say they will apply the statutory text of "take" directly, which they read to reach conduct aimed at an animal rather than changes to the land, water, or forest around it.

The agencies say the rest of the law is untouched. Directly killing or injuring a listed animal remains prohibited. Permits and incidental take statements issued before the effective date stay valid and will not be reopened, a point the rule states explicitly: disturbing settled permits would be "highly disruptive to settled expectations," the Services wrote, "in return for at most speculative gains." Section 7, which requires federal agencies to avoid destroying or adversely modifying designated critical habitat, is a separate provision and is not amended by this rule.

The legal argument

The Services rest the rescission on Loper Bright Enterprises v. Raimondo, the 2024 Supreme Court decision that ended Chevron deference and requires agencies to apply the single best reading of a statute rather than any permissible one.

In 1995, in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, the Supreme Court upheld the habitat-based definition of harm. Justice Antonin Scalia dissented, joined by Chief Justice William Rehnquist and Justice Clarence Thomas, arguing that "take" describes affirmative acts directed at particular animals.

The rule adopts that dissent. "We adopt Justice Scalia's rationale as articulated in Sweet Home," the Services write, and they argue the majority opinion is not binding here because it was decided under the Chevron framework and held only that the regulation was a permissible reading, not the best one.

Commenters disputed that. The rule records objections that Sweet Home was a merits holding on the statute, that Congress amended the Act after the decision without touching the definition of harm, and that agencies remain bound by the majority opinion until a court says otherwise. The Services responded that they are "engaged in legal interpretation" and that Loper Bright controls.

The comment record

The proposed rule published on April 17, 2025. The comment period ran 30 days and closed on May 19, 2025. The Services received roughly 358,000 comments, from individuals, states, tribes, industry groups, legal foundations, and environmental organizations.

Multiple commenters asked for public hearings. The agencies declined, writing that hearings are not required for this type of rulemaking. Several asked for the 30-day window to be extended. The agencies declined that too, saying 30 days was enough.

For environmental review, the Services applied a categorical exclusion under 43 CFR 46.210(i), meaning no environmental impact statement. Commenters argued the exclusion was not justified for a rule of this reach. The Services said the exclusion applies.

What each side says

Interior Secretary Doug Burgum, in the department's announcement: "For years, federal agencies abused the ESA to obstruct lawful land use and burden American families and businesses. That approach turned routine activity into a regulatory trap, drove up costs that impacted people's lives, and expanded federal authority beyond what Congress intended."

Commerce Secretary Howard Lutnick said the change removes regulations "that have restrained our fishermen for too long." Fish and Wildlife Service Director Brian Nesvik said the agency can "protect species and respect communities at the same time."

Earthjustice attorney Kristen Boyles said the group will sue. "For the first time ever, a presidential administration now claims that species protected by the Endangered Species Act shouldn't be safe from habitat modification that destroys where they live, raise their young, or search for food," she said in a statement. "We will see the Trump administration in court."

Tara Zuardo, a senior campaigner at the Center for Biological Diversity, said habitat loss is the leading threat to listed species: "If animals don't have a place to live, they can't live."

What happens next

The rule is prospective. It does not delist any species, revoke any existing permit, or change any critical habitat designation. What it changes is the scope of enforcement: after the effective date, a landowner or company that alters habitat without killing or injuring an animal directly is not committing an unlawful take under the Services' reading, and does not need an incidental take permit for that alteration alone.

Litigation is expected before the rule takes effect. Earthjustice has said so on the record. The 60-day clock starts when the rule publishes on Tuesday.