ESA 4(d) Rules

A systematic review of special rules for ESA-listed species.

Paper

Abstract: Species-specific rules under section 4(d) of the Endangered Species Act (ESA), if properly implemented, should help conserve species and improve the effectiveness of the act. The rules can authorize activities with minor or even beneficial effects on species recovery, without the need for federal wildlife agencies to expend resources reviewing and issuing permits for those activities. By streamlining compliance with the ESA, 4(d) rules can also improve support for the law among the regulated community and their representatives in Congress. The rules, however, are not without risks to conservation. They can impede species recovery if they lack proper safeguards, especially if they cover high-impact land uses.

For this white paper, we analyzed every 4(d) rule issued by the U.S. Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) through May 2016. We found that the Obama administration has covered more species with species-specific 4(d) rules than nearly every other presidential administration. We also found that the rules exempt a wide variety of activities, ranging from habitat restoration to imports of animals and their parts. Some recent rules have been particularly controversial because they are viewed as inadequate to protect species from the threats that contributed to their listing.

To help ensure proper use of 4(d) rules, FWS/NMFS should develop guidance on when and how they will issue those rules for threatened species. The guidance should describe the types of activities that can qualify for coverage under a rule. To encourage this analysis, we identified four types of activities that we believe qualify for coverage, including “conservation neutral” actions and activities that FWS/NMFS can monitor to help determine whether a species is ready for delisting. We also identified conservation measures to incorporate into 4(d) rules, including geographically tailored exemptions that provide management flexibility and triggers for modifying and withdrawing 4(d) rules.

By adopting these and other recommendations, FWS/NMFS can bring greater consistency and predictability to the use of 4(d) rules, reduce public skepticism about the tool, and incentivize recovery measures.

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