A Necessary Tool For Conservation: The Case For Section 4(D) of the Endangered Species Act

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 Sectio