INSIDE COMPLIANCE

Foundational values of American property law have been brought to the forefront with recent rulemaking in the post-Chevron Deference era, leading to the erosion of conservation regulation in favor of the rights of landowners. With 70% of all endangered species’ habitats falling on private land, agency regulations now seek an alternative approach to conservation.
In July 2026, the U.S. Fish and Wildlife Service (USFWS) issued a final rule under Section 9 of the Endangered Species Act (ESA), redefining harm within the statute and simultaneously altering private property rights within the scope of the ESA. The new rule rescinded habitat modification or degradation from the well-accepted interpretation of harm under the ESA. Harm was promulgated into the statutory definitions of the ESA to describe the prohibited taking of an endangered species. Although the rescission of one part of the definition of harm under the ESA seems negligible, the change represents further deregulation of private land use that could have extensive impacts on the ability to enforce protections for endangered species’ habitats.