A New Era of Opportunities and Challenges
Heather Harl, David Jennings, Andrew Carter - October 2026
Under the Endangered Species Act, threatened and endangered species can receive different statutory protections. Endangered species are those at risk of extinction now, while threatened species are those likely to become endangered in the foreseeable future. Reflecting this difference, Congress gave the U.S. Fish and Wildlife Service and the National Marine Fisheries Service flexibility under ESA section 4(d) to tailor protections for threatened species. This includes deciding whether a threatened species should receive all or some of the same section 9 “take” protections that endangered species receive, and whether to allow exemptions to those prohibitions that will not impede recovery.
Species-specific 4(d) rules are the primary mechanism for tailoring these protections, and they govern management for 183 threatened species, with most of the remaining species covered by full take protections.
The Defenders of Wildlife report, Emerging Trends in Implementation of Section 4(d) of the Endangered Species Act: A New Era of Challenges and Opportunities, analyzes the species-specific 4(d) rules finalized over the past decade. It found that most rules could offer conservation benefits or have negligible adverse effects on species recovery, especially when mitigation is applied. For some species, however, especially those facing industry or political pushback, the rules include exemptions that could hinder recovery. The report offers recommendations to improve how these rules are written and implemented across the United States.
