A NECESSARY TOOL FOR CONSERVATION: THE CASE FOR SECTION 4(D) OF THE ENDANGERED SPECIES ACT

• Jurisdiction: United States

Endangered Species Act
(Nov 2015)
CHAPTER 7C
A NECESSARY TOOL FOR CONSERVATION: THE CASE FOR SECTION 4(D) OF THE ENDANGERED SPECIES ACT
Sarah Stauffer Curtiss
Associate
Stoel Rives LLP
Portland, OR

[Page 7C-1]

SARAH STAUFFER CURTISS is a lawyer in the Portland office of Stoel Rives LLP, where she maintains an environmental regulatory and permitting practice, with an emphasis on protected species and major project permitting. She joined Stoel Rives after graduating with honors from Lewis and Clark Law School in 2007, where she was an associate editor for Environmental Law. Sarah has significant experience representing clients in matters involving the National Environmental Policy Act, the Endangered Species Act, the Migratory Bird Treaty Act, and the Bald and Golden Eagle Protection Act. She regularly represents clients in the forest products, wind, solar, utility, and oil and gas sectors. Sarah is listed as a Rising Star in Oregon Super Lawyers. She received her BA from Pacific Lutheran University and MA from the University of Chicago. A Montana native, Sarah is an avid hiker and runner, though these days she spends most of her time running around after her two small children.

I. INTRODUCTION

In recent years, no Endangered Species Act ("ESA") issue has divided landowners, project developers, environmental groups, and state and local governments more than ESA Section 4(d). Whereas landowners and project proponents generally view rules promulgated under Section 4(d) as an important and necessary tool to incentivize voluntary conservation measures and soften the sometimes significant economic impact of listing decisions, environmental groups typically view these rules as a means to avoid restricting activities and development when listed species' habitat "overlaps with politically powerful industries."¹ While there is no doubt certain industries, like their environmental non-governmental organization counterparts, have helped shape the contours of recent 4(d) rules, the view that the U.S. Fish and Wildlife Service ("USFWS") and the National Marine Fisheries Service ("NMFS") (together, the "Services") have somehow transformed 4(d) into a "vehicle to authorize takes for threatened species"² discounts the statutory text as well as both the innovative and workable conservation approaches that are possible through Section 4(d) and the many policy reasons to limit application of the ESA's take prohibitions where application of the take prohibitions is not needed to conserve the species. Although 4(d) rules are not appropriate in all instances, this article argues that Section 4(d) grants the Services the necessary discretion to tailor application of ESA take prohibitions to threatened species in a manner that responds to the specific threats to and conservation needs of each species, often resulting in innovative approaches to conserve listed species and their habitat.

II. DISCUSSION

A. Rather than "exempting" or "allowing" acts that would otherwise be prohibited, Section 4(d) enables the Services to customize prohibitions to respond to the circumstances and conservation needs of each species.

When establishing the ESA, Congress applied a blanket prohibition against the "take" of species listed as "endangered" but did not extend the prohibition to species listed as

[Page 7C-2]

"threatened."³ Congress excluded "threatened" species from the Section 9(a) take prohibitions, and placed the burden on the Services to either justify application of the take prohibitions as a reasoned exercise of agency discretion, or to justify the adoption of other measures as "necessary and advisable" to conserve a species. Specifically, Section 4(d) of the ESA provides the Services with two tools to address threatened species: (a) the promulgation of regulations deemed "necessary and advisable" to conserve a threatened species and (b) the application, by rule, of the Section 9(a) take prohibitions to a threatened species.⁴ "Section 4(d) of the ESA thus authorizes the Service to extend any or all of the Section 9 take prohibitions, as well as the necessary protective measures, to any threatened species."⁵

The USFWS and NMFS have implemented Section 4(d) differently. With each species it lists as threatened, NMFS addresses Section 4(d), thereby applying or limiting the ESA's take prohibition to each species on a case-by-case basis. In contrast, USFWS has adopted a blanket rule that extends the ESA take prohibition to all threatened species unless USFWS adopts a species-specific 4(d) rule that essentially withdraws the blanket take prohibition as it applies to a particular threatened species.⁶ However, in each case, Section 4(d) grants the Services the authority and discretion to tailor application of the ESA take prohibition to threatened species in a manner that is specific to the circumstances and conservation needs of each species.⁷

[Page 7C-3]

Although species-specific 4(d) rules are often viewed as permitting or exempting acts that would otherwise be prohibited, the USFWS has noted that it is "more accurate to say that a species-specific 4(d) rule supersedes the blanket 4(d) rule for the species at issue, and extends a more tailored set of prohibitions to the species."⁸ Thus, even though the USFWS frequently uses the terms "exempt" and "allow" in order to clearly convey which activities are not subject to the ESA's take prohibitions, "this use of language is for clarity only."⁹ Thus, provided the species should be listed as "threatened" rather than "endangered"¹⁰ and the agency provides a reasoned basis for the prohibitions and "exceptions" in the rule, a species-specific 4(d) rule that extends a tailored set of prohibitions to conserve the species is consistent with the text and spirit of the statute.

B. Section 4(d) enables the Services to incentivize and recognize pre-listing state and private conservation efforts.

One way that the Services have tailored species-specific 4(d) rules is to recognize long-term pre-listing conservation partnerships with landowners and state and local governments. In the final 4(d) rule for the lesser prairie-chicken (Tympanuchus pallicicinctus) ("LPC"), a species of grouse found in shrublands and grasslands in the southern Great Plains, the USFWS provided that take incidental to activities conducted by a participant in the Lesser Prairie Chicken Range-Wide Conservation Plan ("Range-Wide Plan"), and operating in compliance with the Range-Wide Plan, would not be prohibited.¹¹ The USFWS included this provision in the 4(d) rule "in

[Page 7C-4]

recognition of the significant conservation planning efforts of the five State wildlife agencies within the range of the [LPC]."¹² Although the LPC listing decision was recently vacated by the U.S. District Court for the Western District of Texas,¹³ the LPC 4(d) rule remains illustrative of the extent to which Section 4(d) enables the Services to incentivize and recognize collaborative pre-listing state and private conservation efforts.

The Range-Wide Plan was developed by the Western Association of Fish & Wildlife Agencies ("WAFWA"), which includes representatives of the state wildlife agencies within the LPC's range, and applies to a number of activities, including oil and gas operations, agricultural practices, and wind energy. Although developed prior to USFWS's decision to list the species with the goal of implementing the plan to obviate the need for listing, the Range-Wide Plan was designed with Section 4(d) in mind.¹⁴ Indeed, the Range-Wide Plan was drafted such that, if the USFWS decided to list the LPC, a 4(d) rule could provide that take incidental to activities conducted by a participant enrolled in, and operating in compliance with, the Range-Wide Plan would not be prohibited.¹⁵

Using a support tool (the Critical Habitat Assessment Tool or CHAT) that identifies focal areas and connectivity zones for LPC, the Range-Wide Plan sets forth population and habitat goals, and establishes a mitigation framework administered by WAFWA that allows participants to mitigate any unavoidable impacts. In addition to the mitigation framework, the Range-Wide Plan requires participants to comply with established avoidance and minimization measures. For example, because LPC have been shown to collide with fences, the Range-Wide Plan requires participants to install appropriate fence markings along new fences.¹⁶ Similarly, because power lines serve as potential perch sites for raptors that may prey on LPC, the Range-Wide Plan requires participants to bury distribution lines within 1.25 miles of leks active within the previous five years.¹⁷

[Page 7C-5]

The Range-Wide Plan has already helped stimulate significant private landowner interest and investment. According to WAFWA,

"[s]ince the [Range-Wide Plan] went into effect last year, more than 96,000 acres of [LPC] habitat is being conserved through ten-year landowner agreements. More than 180 oil, gas, wind, electric and pipeline companies have enrolled about 11 million acres across the five states, and have committed $47.5 million for habitat conservation." ¹⁸

To the extent the Services are able, through Section 4(d), to encourage these types of collaborative conservation actions and commitments, which in the case of LPC are occurring primarily on private land, Section 4(d) can become an effective tool to incentivize voluntary pre-listing conservation efforts. Indeed, as Barton H. Thompson Jr. observed, "[t]he nation's efforts to protect and promote biodiversity will be successful only to the degree that those efforts ensure that private landowners, in managing their lands, take into account the needs of the other species that live or could live there."¹⁹ Incentivizing private conservation efforts through Section 4(d) and other similar mechanisms is critical.

This strategy of recognizing pre-listing conservation efforts in 4(d) rules is similar to the USFWS's current practice of...