The 2025–2026 federal rule changes, explained

Two federal changes now shape how bird and endangered species protections apply to land clearing. Here’s what changed, what didn’t, and what it means for your project, in plain language.

For landowners, biologists, and consultants. Reviewed September 25, 2026.

General information, not legal advice. These rules are being challenged in court and could change again. For decisions with legal risk, talk with an attorney, and check current requirements with the U.S. Fish and Wildlife Service or Texas Parks and Wildlife.

The short version

  • Federal agencies now treat “take” as actions aimed at the animals themselves, not habitat changes that indirectly affect them.
  • Deliberately killing, harming, or harassing protected birds, or destroying their active nests, is still prohibited.
  • Projects with federal funding or federal permits still go through federal review, and state, local, and contract requirements still apply.
  • The changes are being challenged in court. A project that relies on them today could face different rules tomorrow.

What changed

Endangered Species Act: “harm” rescinded

  • Final rule published July 14, 2026. In effect since September 14, 2026.
  • The U.S. Fish and Wildlife Service and National Marine Fisheries Service removed their regulatory definition of “harm,” which since 1975 had included significant habitat modification that kills or injures wildlife.
  • The agencies now say “take” covers affirmative conduct directed at the animals, and that habitat modification causing indirect or accidental injury is not take.
  • The law itself still lists “harm” as part of take. What changed is how the agencies interpret it.

Migratory Bird Treaty Act: incidental take

  • Interior legal opinion M-37085, April 11, 2025.
  • Restored the 2017 interpretation that the MBTA prohibits only actions intended to take or kill birds, their nests, or their eggs.
  • Accidental or incidental bird deaths from otherwise lawful activity are not treated as violations under this interpretation.
  • This interpretation has flipped several times since 2017, and courts have disagreed about it.

What didn’t change

Still true for every project

  • The golden-cheeked warbler is still listed as endangered, federally and by Texas.
  • Intentionally killing, capturing, or harassing protected birds is still illegal.
  • Deliberately destroying an active nest with eggs or young is still illegal.
  • Permits, habitat conservation plans, and commitments you already have remain in force.

Other layers that still apply

  • Federal involvement: projects with federal funding, permits, or approvals (for example, a U.S. Army Corps of Engineers permit) still go through Section 7 consultation.
  • Texas law: state protections for listed species and nongame birds still apply.
  • Local rules: county habitat conservation plans, city ordinances, and development approvals.
  • Lenders, buyers, and contracts: many still require wildlife due diligence.

“So can I just cut the trees?”

It’s the question I hear most. Under the current federal interpretation, ordinary land clearing that isn’t aimed at the birds is much less likely to be treated as a federal violation than it was a year ago. But it isn’t a blanket green light:

  • Nests are still the line. Knowingly destroying an active nest is still prohibited. Clearing outside the nesting season avoids most of that risk entirely.
  • The rules may not last. Lawsuits could restore the old definition, and policy has already reversed several times. Clearing is permanent.
  • Federal involvement changes everything. If your project needs a federal permit or uses federal money, the review still happens.
  • Documentation protects you. A dated desktop review or survey shows what you knew and when, whichever way the rules move.

If you’re not sure where your project stands, a free 15-minute call is usually enough to find out.

Book a free 15-minute call See the $395 desktop review

For biologists and consultants

  • Scientific research and recovery permits for surveys are unchanged, including golden-cheeked warbler presence/absence surveys and data reporting.
  • Section 7 consultations, habitat conservation plans, and existing incidental take permits continue.
  • Update client templates and scopes that describe habitat modification as take, and note the pending litigation.
  • Expect clients to ask whether surveys are still needed. The layers above are the honest answer.

More detail on the bird law is in my plain-language MBTA guide.

Sources

Federal Register: Rescinding the definition of “harm” under the Endangered Species Act (July 14, 2026)
U.S. Fish and Wildlife Service press release (July 2026)
National Agricultural Law Center: harm rescission and lawsuits
Akin: Interior Solicitor’s Opinion M-37085 on MBTA incidental take (April 2025)
U.S. Fish and Wildlife Service: Governing the take of migratory birds
16 U.S.C. 1532: ESA definitions