On May 1, 2019, the Fish and Wildlife Service (“FWS” or “Service”) issued a proposed rule “downlisting” Endangered Species Act (“ESA”) protections for the American burying beetle from endangered to threatened. The burying beetle was listed as endangered in 1989 and its listing has been particularly impactful to oil and gas development in Texas and Oklahoma. Once with a range across thirty-five states, the beetle’s range when listed had been depleted to two just two areas—Oklahoma and Rhode Island. The Service states that, due to the success of mitigation programs, that the beetle now inhabits nine states (Arkansas, Kansas, Massachusetts, Missouri, Nebraska, Oklahoma, Rhode Island, South Dakota, and Texas) warranting the downlisting. The Service states that the downlisting was the result of collaborative work with industry, but opponents argue that that the rollback of protections will negatively affect the species by opening up parts of Oklahoma to drilling and removing obstacles from drillers in Texas.

Section 9 of the ESA affords stringent protections to listed endangered species, preventing the “taking” of such species without a permit (“Incidental Take Permit” or “ITP”). The Service has extended these protections to threatened species through Section 4(d) of the ESA (sometimes referred to as the “Blanket Rule”), which permits FWS to establish special regulations for threatened species. However, the Blanket Rule can be modified to permit activities that might result in a “take,” but do not contribute to the threats causing the species’ decline.

With regard to the American burying beetle, the Service’s proposal states that “[m]any routine activities in the species’ range will not be regulated.” In particular, the Service proposes that in the New England and Northern Plains (Nebraska and South Dakota) analysis areas, incidental take would only be prohibited in suitable habitat when the take is the result of soil disturbance; however, there would be a further carveout for any incidental take associated with ranching and grazing activities in the Northern Plains area. In addition, in the Southern Plains area (Arkansas, Kansas, Oklahoma, and Texas) incidental take would not be prohibited at all unless the take occurred on defined conservation lands. And, there would be a further carveout on conservation lands for activities that comply with a Service-approved management plan.

Notably, even if the beetle is downlisted, because it will still be a listed species, federal agencies will still be required to consult with the Service under ESA Section 7 for federal actions, including projects with a federal nexus. Nevertheless, if finalized, the removal of the prohibition on incidental take for all activities in the Southern Plains region and ranch and grazing activities in the Northern Plains region will significantly reduce the regulatory impact for many project proponents when working in areas with suitable habitat for the beetle.

Comments requested by the Service include a request to supplement the agency’s scientific understanding of the beetle, such as the species’ habitat locations, assessment of future industry land use development that could provide for better risk analysis, temperature range and the potential impact of climate change on beetle populations, and information on the potential acreage threshold below which the prohibitions of the Section 4(d) rule would not be necessary or advisable. Comments are due to the Service 60 days from the proposal’s publication in the Federal Register, which is set for Friday, May 3.