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Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations see Webster v. Doe, 486 U.S. 592
1988. Conservation is defined in the Act to mean the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Additionally, the second sentence of section 4d of the Act states that the Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 9a1, in the case of fish or wildlife, or section 9a2, in the case of plants. Thus, the combination of the two sentences of section 4d provides the Secretary with wide latitude of discretion to select and promulgate appropriate regulations tailored to the specific conservation needs of the threatened species. The second sentence grants particularly broad discretion to the Service when adopting the prohibitions under section 9.
The courts have recognized the extent of the Secretarys discretion under this standard to develop rules that are appropriate for the conservation of a species. For example, courts have upheld rules developed under section 4d as a valid exercise of agency authority where they prohibited take of threatened wildlife, or include a limited taking prohibition see Alsea Valley Alliance v. Lautenbacher, 2007 U.S.
Dist. Lexis 60203 D. Or. 2007;
Washington Environmental Council v.
National Marine Fisheries Service, 2002
U.S. Dist. Lexis 5432 W.D. Wash.
2002. Courts have also upheld 4d rules that do not address all of the threats a species faces see State of Louisiana v. Verity, 853 F.2d 322 5th Cir. 1988. As noted in the legislative history when the Act was initially enacted, once an animal is on the threatened list, the Secretary has an almost infinite number of options available to him with regard to the permitted activities for those species. He may, for example, permit taking, but not importation of such species, or he may choose to forbid both taking and importation but allow the transportation of such species H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973.
Exercising this authority under section 4d, we have developed a rule that is designed to address the Neuse River waterdogs specific threats and conservation needs. Although the statute does not require the Service to make a necessary and advisable finding with respect to the adoption of specific prohibitions under section 9, we find that this rule as a whole satisfies the requirement in section 4d of the Act to issue regulations deemed necessary and advisable to provide for
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the conservation of the Neuse River waterdog. As discussed above under Summary of Biological Status and Threats, we have concluded that the Neuse River waterdog is likely to become in danger of extinction within the foreseeable future primarily due to habitat degradation from stressors influencing water quality, water quantity, instream habitat, and habitat connectivity. The provisions of this 4d rule will promote conservation of the Neuse River waterdog by encouraging management of the landscape in ways that meet both land management considerations and the conservation needs of the Neuse River waterdog. The provisions of this rule are one of many tools that the Service will use to promote the conservation of the Neuse River waterdog.
Provisions of the 4d Rule This 4d rule will provide for the conservation of the Neuse River waterdog by prohibiting the following activities, except as otherwise authorized or permitted: Importing or exporting; take; possession and other acts with unlawfully taken specimens;
delivering, receiving, transporting, or shipping in interstate or foreign commerce in the course of commercial activity; or selling or offering for sale in interstate or foreign commerce.
Import/export, possession, transportation, sale, and commerce are of concern for many aquatic amphibians, primarily because rare, strange-looking amphibians with frilly external gills like the Neuse River waterdog are highly sought after in the global pet trade. Regulating these activities will help protect the Neuse River waterdog from exploitation.
As discussed above under Summary of Biological Status and Threats, habitat degradation from stressors influencing water quality, water quantity, instream habitat, and habitat connectivity are affecting the status of the Neuse River waterdog. A range of activities have the potential to affect the Neuse River waterdog, including development, pollution, agricultural practices, land conversion, incompatible forest management, invasive species, dams and barriers, and energy production and mining. Regulating incidental take associated with these activities will help preserve the species remaining populations, slow its rate of decline, and decrease synergistic, negative effects from other threats.
Under the Act, take means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Some of these provisions have
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been further defined in regulations at 50
CFR 17.3. Take can result knowingly or otherwise, by direct and indirect impacts, intentionally or incidentally.
Regulating incidental take will help preserve the species remaining populations, slow their rate of decline, and decrease synergistic, negative effects from other threats. Protecting the Neuse River waterdog from direct forms of take, such as physical injury or killing, whether incidental or intentional, will help preserve and recover the species. Therefore, we prohibit intentional take of Neuse River waterdog, including, but not limited to, capturing, handling, trapping, collecting, or other activities. Also, as discussed above under Summary of Biological Status and Threats, habitat degradation from stressors influencing water quality, water quantity, instream habitat, and habitat connectivity are affecting the status of the Neuse River waterdog. Across the species range, stream and water quality have been degraded physically by sedimentation, pollution, contaminants, impoundments, channelization, destruction of riparian habitat, and loss of riparian vegetation due to development, agricultural practices, land conversion, incompatible forest management, invasive species, dams and barriers, and energy production and mining. Other habitat or hydrological alteration, such as ditching, draining, stream diversion, or diversion or alteration of surface or ground water flow, into or out of the stream, will impact the habitat of the species.
Therefore, we prohibit incidental take of the Neuse River waterdog by destroying, altering, or degrading the habitat in the manner described above. Regulating incidental take associated with these activities will help preserve Neuse River waterdog populations, slow the rate of population decline, and decrease synergistic, negative effects from other stressors.
During both public comment periods, the Service received numerous comments on the exception for incidental take resulting from silvicultural practices and forest management activities see Summary of Comments and Recommendations, above. North Carolinas forestry best management practices BMPs, when properly implemented, protect water quality and help conserve aquatic species, including the Neuse River waterdog. Forest landowners who properly implement those BMPs are helping conserve the waterdog, and this 4d rule is an incentive for all landowners to properly implement them
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