Our Insights

USFWS Proposes to Reclassify the American Burying Beetle under ESA

May 17, 2019

by Ben Bainbridge
Biologist CWB

The American burying beetle (ABB; Nicrophorus americanus) is a federally endangered insect with two large disjunct populations in the Southern Plains in Texas, Oklahoma, Arkansas, and Kansas, and the Northern Plains in Nebraska and South Dakota. A small population also occurs on islands off the coasts of Rhode Island and Massachusetts.

On May 3, 2019, the U.S. Fish and Wildlife Service (USFWS) proposed to reclassify the ABB from federally endangered to federally threatened under the Endangered Species Act (ESA) (84 CFR 19013). The USFWS determined that the ABB is not currently at risk of extinction, and therefore does not meet the definition of endangered.

The proposed reclassification includes the establishment of rules that guide the evaluation of potential project impacts. These rules are often developed for federally threatened species under Section 4d of the ESA, and are typically referred to as “4d rules.” Under most 4d rules, incidental take of a federally threatened species is allowed if the rules are followed.  Incidental take under 4d rules typically includes seasonal restrictions on activities, geographical restrictions, or enrollment in a species-specific conservation plan.

The 4d rule proposed for ABB populations varies greatly between the Southern Plains and Northern Plains.

Northern Plains Population

In the Northern Plains, incidental take from soil disturbance remains largely unchanged under the proposed 4d rule. Incidental take from farming and ranching activities is allowed under the proposed 4d rule; however, proposed projects that would result in soil disturbance within the ABB range would still be required to seek incidental take authorization through formal consultation with the USFWS under Section 7 or Section 10 of the ESA. Soil disturbance is defined as movement or alteration of soil associated with modifying the existing land use, including grading, filling, soil excavating, or stripping of top soil. Presence/absence surveys may be required under consultation with the USFWS for projects in the Northern Plains population. Results of presence/absence surveys may then be considered when determining if incidental take authorization is required.

Southern Plains Population

In the Southern Plains, incidental take is prohibited on four defined conservation areas:

  1. Fort Chaffee, AR
  2. McAlester Army Ammunitions Plant, OK
  3. Camp Gruber/Cherokee Wildlife Management Area, OK
  4. Nature Conservancy’s Tallgrass Prairie Preserve, OK

Proposed projects outside these four defined conservation areas are allowed under the proposed 4d rule and would not require formal consultation under Section 7 or Section 10 of the ESA. However, informal consultation with the USFWS is still recommended to ensure all aspects of the 4d rule are met. While the 4d rule does not address presence/absence surveys for a project, such surveys are not likely necessary as the results would not affect the application of the 4d rule. The 4d rule would still apply and incidental take would not be prohibited even if presence/absence surveys found the ABB within a project area in the Southern Plains population.

In summary, the proposed reclassification of the ABB from federally endangered to federally threatened and the inclusion of the proposed 4d rule would have varying effects on a proposed project depending on that project’s location. Most projects in the Southern Plains population would no longer require incidental take coverage for the ABB as long as they do not occur within the four identified conservation areas.

Conversely, the 4d rule provides little to no regulatory relief in the Northern Plains population because nearly all projects include some form of soil disturbance. Projects in the Northern Plains population would still require formal take authorization through Section 7 or Section 10 of the ESA.

The USFWS will be accepting comments on the proposed reclassification and proposed 4d rule for the ABB until July 2, 2019. A final rule will be published in the Federal Register approximately one year after the close of the comment period. It should be noted that any legal injunctions could delay the publication of the final rule. Until the final rule is published, the ABB remains a federally endangered species, and existing requirements apply.

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About the author:

Ben is a certified wildlife biologist with experience in laboratory and field research with mammal, avian and amphibian species, plant species, wetlands and silviculture. He has experience in population surveys for federal- and state-listed special status species and condition assessment of their habitats. Ben has a clear understanding of the requirements and processes of the National Environmental Policy Act and has applied these principles to field research and the permitting of electrical transmission projects. He is familiar with the wetlands delineation methods of the U.S. Army Corps of Engineers and U.S. Fish and Wildlife Service and Cowardin classifications. Questions regarding the proposed reclassification and 4d rule? Send Ben an email at ben.bainbridge@powereng.com.

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