Busy Week for Proposed Rules 

This week, the U.S. Fish and Wildlife Service published three proposed rules that will impact SCI and its members if finalized as proposed.  First, the FWS published the 2023 “Hunt Fish Rule,” which proposes to expand hunting on three National Wildlife Refuges (Cahaba River NWR in Alabama, Everglades Headwaters NWR in Florida, and Minnesota Valley NWR in Minnesota), and also to prohibit use of lead ammo and tackle on eight refuges effective 2026 (Blackwater, Chincoteague, Eastern Neck, Erie, Great Thicket, Patuxent Research Refuge, Rachel Carson, and Wallops Island NWRs).  The proposed rule is fairly limited, both in terms of new openings and the lead closures.  However, the proposed rule demonstrates that the FWS is continuing to push forward with phasing out the use of lead ammo and tackle on refuges.  Comments on this proposed rule are due August 22.

Second, the FWS proposes to reinstate the “blanket 4(d) rule” for threatened species.  Briefly, the Endangered Species Act only contains specific prohibitions (on take, import, export, etc.) for endangered species.  Section 4(d) of the ESA states that the FWS should adopt regulations “necessary and advisable” to provide for the conservation of threatened species.  Years ago, the FWS adopted a “blanket 4(d) rule,” which extended all the same prohibitions as for endangered species to threatened species, unless a separate rule provides otherwise.  The Trump Administration withdrew the blanket 4(d) rule.  This withdrawal meant that the FWS had to adopt a species-specific 4(d) rule for all new listings.  The Biden Administration is proposing to reinstate the blanket 4(d) rule.  According to the FWS, because these species are threatened with extinction, they should be protected with all the same prohibitions as endangered species—even though Congress chose otherwise in drafting the ESA.  SCI opposes this proposal and believes species-specific rules are more appropriate both under the ESA’s terms and to address the challenges unique to each threatened species.  Comments are due August 21.

Third, the FWS is proposing to revise the regulations for implementing Section 4 of the ESA, the section which provides for listing determinations and critical habitat designations.  The proposed rule will roll back changes made in 2019 under the prior Administration.  Most of these changes will not actually affect how listing and delisting decisions are made, but they will affect the information that the FWS considers and includes in any proposed rule regarding a listing.  The last proposal, which revises the criteria for designating critical habitat, contains a substantive change for when the FWS may designate such habitat.  Comments are due August 21.