New Defenders Report Analyzes Strengths and Gaps in Section 4(d) Protections for Threatened Species

Defenders of Wildlife today released a report assessing how federal wildlife agencies have applied section 4(d) of the Endangered Species Act over the past decade. The report reviews 4(d) rules for threatened species issued from May 2016 to January 2026 to determine how well they have protected those species.

The report found that most of these rules allow for human activities that are unlikely to hinder recovery or even benefit species, but it also found instances where allowed activities directly contributed to the primary threats to the species.

"Our findings emphasize how important it is that species-specific 4(d) rules be carefully crafted, science-based and designed to promote species recovery," said Heather Harl, conservation policy analyst at Defenders of Wildlife and lead author of the report. "While the federal government has followed these requirements in many 4(d) rules, we've identified cases in which species are not being adequately protected."

The report's recommendations include:

• Increase use of mitigation to limit the extent of harmful impacts from activities covered by 4(d) rules, particularly the cumulative impacts of many such activities.
• Build adaptive management directly into 4(d) rules by easing prohibitions as a species moves closer to recovery. This approach can save time and resources rather than waiting for separate management plans to be updated.
• Increase monitoring, transparency and online tools to support public understanding of 4(d) rules.

Of the 361 animal species listed as threatened under the ESA, 51% are covered by a species-specific 4(d) rule. The U.S. Fish and Wildlife Service has favored these tailored rules for over a decade over their historic practice of providing blanket protections for the vast majority of threatened species. The National Marine Fisheries Service relies solely on species-specific rules.

In principle, 4(d) rules should prevent threatened species from becoming endangered and ultimately promote species recovery while offering flexibility to the regulated community where their activities does not conflict with conservation goals. However, how well a species-specific 4(d) rule works depends on how it is written, whether it is grounded in the best available science and whether it is adequately enforced.

Further, the federal government has recently significantly changed its interpretation of prohibited take under the ESA and no longer considered take incidental to otherwise lawful activities to be prohibited under the ESA. As the vast majority of 4(d) rules overwhelming regulated this "incidental" take, this change will dramatically impact how 4(d) rules are created and enforced if it stands. However, Defenders' recommendations in this report are consistent with the historical regulatory environment for the ESA, and we hope they can inform broader debates about which protections are necessary under the ESA. This report builds on and updates a 2018 Defenders of Wildlife report analyzing 4(d) rules.

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Background:

Under the ESA, species listed as threatened receive different statutory protections than those listed as endangered. A threatened species is one likely to become endangered within the foreseeable future, whereas an endangered species is presently in danger of extinction. Reflecting this distinction, Congress gave FWS and NOAA Fisheries flexibility under section 4(d) to tailor protections for threatened species. This includes deciding whether a species should receive the same section 9 take prohibitions as endangered species and whether to exempt activities that impact a species.

For nearly 80 years, Defenders of Wildlife has worked to protect and restore America's wildlife at risk of extinction, advancing a vision of a future in which wildlife thrives, sustained by broad public support and a resilient network of healthy lands and waters. With a network of more than 2 million supporters, Defenders is an advocate for innovative solutions to safeguard wildlife for generations to come. To learn more, please visit https://defenders.org/newsroom or follow us on Instagram @defendersofwildlife.

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