The Department of Interior is likely to propose a real improvement in policy for threatened wildlife species – allowing protections to be more tailored to individual species’ needs. This will strengthen incentives for conservation and reduce the conflict and controversy that too often comes with Endangered Species Act decisions. A draft of the proposed regulation was leaked to the media earlier this week. It looks like a smart approach that returns to the origins of why the ‘threatened’ category was made part of our endangered species law in the first place – to act earlier to turn declining wildlife around. (Note: the following analysis is based on that leaked version, which is currently under review by other federal agencies. It is possible that additional changes would be made to the draft before it is released to the public.)
For endangered wildlife, the Endangered Species Act (ESA) prohibits import, export, possession or commerce of endangered species and prohibits ‘take.’ Take refers to actions that kill, harm, maim or disturb animals. However, for threatened species, the law does not include such a blanket prohibition. Rather, it directs the agencies to issue whatever regulations are necessary to provide for the conservation of the species and may use those regulations to prohibit take or the other activities that are prohibited for endangered ones.
However, instead of using this authority to create customized, specific rules for individual species, in 1978, the U.S. Fish and Wildlife Service adopted a ‘blanket’ rule that applies the same protections to all threatened species as existed for endangered ones. They have still gone in and adopted special rules for more than 50 wildlife species, but the default is that one category of wildlife is treated just like the other.
The leaked April 2018 draft would not change the status quo for any threatened species already listed, but the ‘blanket’ rule would no longer apply to newly listed threatened wildlife. Instead, the U.S. Fish and Wildlife Service would issue species-specific rules on a case by case, just at NOAA has done for marine species for decades.
The change, if adopted, represents a step forward for wildlife recovery. Here is how:
- It makes it easier to write species-specific rules that tailor protections to the circumstances of each threatened animal.
- By creating meaningful differences between the regulatory requirements for threatened and endangered animals, it incentivizes conservation action by states, landowners and others who can see the benefits of achieving downlisting goals (i.e. getting species from the endangered to the lower threatened category).
- Based on experience with the more than 50 species already covered by USFWS special 4(d) rules, it allows more targeted and less controversial species recovery efforts.
- It lowers political opposition to listing threatened species earlier in their decline because those listings don’t automatically come with perceived land use restrictions.
It may be months before other federal agencies finish their review of the draft, and then there is a public comment period to come, but this change will eventually make it easier to provide targeted protection and stronger incentives for conservation investment in the threatened wildlife that share our lands and waters.