The U.S. Fish and Wildlife Service (USFWS) has submitted two proposed rules of keen interest to forest landowners. The proposed rules, if implemented, will significantly change USFWS’ implementation of the Endangered Species Act (“ESA”).
Removal of Blanket 4(d) Rule
The first proposed rule would revoke the “Blanket Rule,” a regulation passed in 1978 that made it illegal to kill, capture, or “take” a threatened species. Revocation of this rule would shift the burden to the USFWS to decide on a case-by-case basis whether to extend this protection to threatened species.
Revoking the Blanket Rule would turn the presumption that the incidental take of a threatened species is illegal on its head, shifting the burden to the USFWS to define whether specific actions would constitute an unlawful take on a species-by-species basis. This new system would reduce the regulatory burdens faced by landowners managing for threatened species on their land, clarifying the circumstances under which they may face the risk of liability and providing greater regulatory certainty for forestry activities on private lands.
The language of the ESA itself only makes it illegal to kill, capture, or “take” a species listed as endangered. Under current rules and regulations, this so-called “take prohibition” applies to species listed as threatened through the 1978 Blanket Rule, and for each threatened species the USFWS has the option to create a “4(d) Rule” outlining exceptions where the incidental take of the species is permissible. Under these rules, if a landowner were incidentally to take a threatened species on their land, they would be liable under the ESA unless their actions fell under a specific exception outlined in the 4(d) Rule.
If the USFWS revokes the “Blanket Rule,” threatened species will no longer be automatically protected by the take prohibition. The burden will be placed on the USFWS to create rules as needed, specifying which species require this level of protection as well as defining the circumstances under which the killing, capturing, or taking of a threatened species would be illegal. Under these new rules, if a landowner were incidentally to take a threatened species on their land, they would NOT be liable under the ESA unless the species had a special rule making those specific actions illegal.
Obama-Era Critical Habitat Designation Rule
The second proposal would roll back the USFWS’ current rules for listing/delisting species and critical habitat designation. This rollback would revoke the Obama-era critical habitat rules, which were over-reaching and sweeping. Specifically, in 2016, the Obama administration broadened how the “critical habitat” designation could be applied. The controversy regarding the Rule originates in its provisions that expand the USFWS’s authority to designate land unoccupied by a listed species as critical habitat. Read more.
Further, the Rule grants USFWS the authority to designate critical habitat even if the land does not yet contain the biological factors necessary to support the listed species. The 2016 Critical Habitat Rule remains controversial and, up until recently, was the subject to multi-state litigation in federal court. However, twenty states have dropped a lawsuit against federal wildlife agencies after the Trump administration agreed to reconsider Obama-era updates to critical habitat rules.
“NOAA Fisheries and the Fish and Wildlife Service are working to develop regulations that improve our implementation of the ESA so that it is clear, unambiguous, consistent and flexible to the greatest extent possible, and encourages collaborative conservation from a broad range of partners,” USFWS spokesman Gavin Shire said in a statement.
Led by Alabama, the states filed the lawsuit in 2016, alleging that the changes allowed the federal government to designate “entire states” as habitat for species under the Endangered Species Act.
Before the 2016 update, the agencies would only consider habitat that is not currently home to a species if they determined that the species could not recover without it. But under the new regime, FWS and NOAA Fisheries could consider both occupied and unoccupied habitat at the same time.