FWS Mulls Rolling Back Expansion in Endangered Species Act Protection

The U.S. Fish and Wildlife Service is reconsidering a rule extending endangered species protections to threatened species.

FWS has drafted a proposal to rescind the 4(d) blanket rule, which automatically extends to threatened species a prohibition on the “take” of endangered ones, according to a court affidavit submitted by Elizabeth Maclin, the acting deputy assistant director of FWS’s Ecological Services Program. The agency plans to have the proposal ready for publishing in the Federal Register by the end of October.

Two groups — the Rocky Mountain Elk Foundation and the Property and Environment Research Center — had challenged the rule, which was first established in 1975 but rescinded during the first Trump administration only to be put back in place under the Biden administration. The groups’ lawsuit argues the rule “restricts state management of wildlife and habitat, prohibits habitat maintenance and restoration without a costly permit, and reduces incentives for habitat restoration and other recovery efforts.”

Jonathan Wood, PERC’s vice president of law and policy, argues there’s no presumption under the ESA that threatened species should automatically receive the same “take” protections as endangered species, “because Congress anticipated that that might be overkill.”

Congress “wanted to allow for states to have a meaningful role in guiding the recovery of threatened species, and they can’t really do that if the feds have imposed that broad of a prohibition,” Wood told Agri-Pulse.

Environmental groups that include Defenders of Wildlife and the Center for Biological Diversity had intervened in the case in defense of the rule. Lia Comerford, a senior attorney at the Center for Biological Diversity, called the blanket rule “incredibly protective,” noting that nearly a quarter of listed threatened species are currently protected under it. 

She added that the rule helps keep threatened species from reaching endangered status.

“We are deeply disappointed that they are planning to rescind this rule again,” she said of FWS. “It just bodes very poorly for these species that desperately need protection.”

If the agency does move ahead with rescinding the blanket rule, Wood said the agency would develop specific regulations tailored to individual threatened species. He said this would force the agency to be more intentional when crafting recovery plans.

The National Marine Fisheries Service, which regulates marine species, has never enacted a blanket rule, but has seen a recovery rate “almost three times” that of FWS, Wood added. 

“We think that’s pretty compelling evidence that the blanket rule ultimately failed to achieve the ESA goal of species recovery,” Wood said.

This article was originally published by Agri-Pulse. Agri-Pulse is a trusted source in Washington, D.C., with the largest editorial team focused on food and farm policy coverage.