Tailored 4(d) Rules for Threatened Species
One of the most controversial parts of the 2019 ESA regulatory changes was FWS's decision to withdraw its default 4(d) rules for animals and plants. These rules were finalized in 1975 and 1977 respectively, soon after Congress enacted the ESA in 1973 and recognized the distinction between "threatened" and "endangered" species. Congress allowed--but did not require--the agencies to adopt protective 4(d) rules to prohibit various activities including trade in or take of threatened animals and trade in threatened plants. The discretionary nature of these protections is the only consequence of the ESA's distinction between threatened and endangered species. The default 4(d) rules automatically extended to threatened species all of the prohibitions that applied to endangered species under section 9 of the ESA. By withdrawing these rules, FWS will need to decide on a case-by-case basis whether to write a 4(d) rule tailored to a threatened species and, if so, what activities to regulate through the rule and how soon those regulations apply.
How FWS applies this new approach remains to be seen. How much will it depart from past practice? As summarized in the dashboard below, we've tracked every 4(d) rule the agency has issued and calculated what percentage of threatened species are covered by a tailored 4(d) rule. Here are our main observations.
- Through August 2019, FWS has issued a tailored 4(d) rule for 48% of the animal species it has listed as threatened. For all but two of those FWS species, the tailored rules eased regulatory restrictions. The Obama administration exercised its 4(d) authority extensively, issuing a tailored rule for 52% of the threatened animal species it listed.
- NMFS has never issued a default 4(d) rule, but has covered 60% of its threatened species with tailored 4(d) rules. Most of the remaining species without 4(d) rules are corals and other species affected by activities that section 9 cannot adequately regulate, particularly activities that occur entirely in foreign countries. FWS also lists many foreign species. We wouldn't be surprised if the agency doesn't issue a 4(d) rule for many of those species in the future, if wildlife trade doesn't threaten the species.
- No agency has issued a tailored rule for a plant species. Because the "take" prohibition doesn't apply to plants, there are far fewer opportunities to tailor section 9 prohibitions for plants, except for the prohibitions on interstate trade or foreign imports and exports. Still, FWS withdrew its default 4(d) rule for plants. Moving forward, when will FWS issue a 4(d) rule for plants and what advantage does this species-by-species approach offer over the default 4(d) rule?
- The contents of FWS's 4(d) rules vary considerably. Some exempt only conservation activities or scientific research, while others exempt activities that contribute to habitat loss. Some rules require land managers to minimize the harmful effects of their exempt activities, while many other rules don't. Moving forward, FWS should strive for rules that incentivize conservation. FWS can create a direct incentive by exempting a conservation practice, thus eliminating the burden of seeking an ESA permit for the activity. FWS can also create an indirect incentive that increases social support or tolerance for conservation. The 4(d) rules that exempt catch-and-release fishing of many threatened fish species enable recreational fishing in rivers, streams, and lakes that might otherwise be closed to fishing (because inadvertently catching a threatened fish would be unauthorized "take"). Allowing fishing in these areas maintains and builds support for conservation investments such as the purchase of easements on streams. The withdrawal of the default 4(d) rule for animals will likely cause FWS to be more thoughtful and deliberate about deciding which activities to regulate for threatened species. We will assess the content of those rules and whether they create incentives for private parties, minimize uncertainty for regulated entities, and facilitate conservation.
- NMFS's rules are generally much more comprehensive than FWS's. The rule for Pacific salmonids is particularly impressive because it includes monitoring and reporting requirements, and standards for maintaining coverage under the rule to ensure that exempt activities are not unduly harming the species. Very few 4(d) rules include these basic elements. Moving forward, we will track whether FWS rules become more complex or comprehensive in ways that mirror NMFS's rules.
- The considerably inconsistencies among 4(d) rules reveal the need for the Services to develop guidance or policy on when to issue tailored 4(d) rules and how to draft those rules to ensure they adequately protect species without unduly restricting human activities that pose minimal or no threats to a species. This guidance was needed many years ago but is all the more important now that FWS has withdrawn its default rules and can no longer rely on inaction to ensure that threatened species are protected. We are developing a suggested framework for such guidance and will post it online soon.
Many conservationists oppose FWS's withdrawals partly because they don't trust FWS to properly classify species as endangered instead of threatened. The fear is that FWS will allow the flexibility of a threatened listing to dominate its classification decisions. Past decisions to list the northern long-eared bat, lesser-prairie chicken, and other species as threatened support this concern. The underlying problem is that the Services have never adopted a consistent, objective approach to classifying species as endangered versus threatened under the ESA, despite decades of calls to do so by scientists. Until this problem is addressed, many listing and 4(d) decisions will remain unpredictable and contentious. In the meantime, FWS can minimize this problem by offering clear guidance on when and how it will issue 4(d) rules.
This dashboard allows you to see which threatened species received a 4(d) rule. Click the "FWS" and "NOAA" checkboxes to turn on/off the results for each agency. Sometimes, the Service issues a 4(d) rule for a species it listed years ago. Those rules appear in gray as an "existing listing."