Eastern black rail - final 4(d) ruleOctober 7, 2020
The U.S. Fish and Wildlife Service (Service) under the Endangered Species Act (ESA), has broad authority to issue regulations for the conservation of threatened species. The ESA provides a specific list of prohibitions for endangered species under section 9, but does not automatically provide these same prohibitions to threatened species. Section 4(d) of the ESA allows the Service to establish prohibitions or exceptions to prohibitions for threatened species.
The intent of any 4(d) rule is to provide for the conservation of a threatened species by allowing regulatory flexibility under the ESA. A 4(d) rule allows the Service the flexibility to customize prohibitions and regulate activities to provide for the conservation of threatened species, potentially without involving all of the restrictions that apply to endangered species. The exact prohibitions and exceptions depend on the species’ biology, conservation needs, and threats being managed. Section 4(d) rules do not remove or alter in any way the consultation requirements under section 7 of the ESA. Please consult your local U.S. Fish and Wildlife Service Ecological Services Field Office for consultation guidance.
Eastern black rail 4(d) rule
The primary goals of this 4(d) rule are to minimize incidental take of eastern black rails and ensure that the dense overhead cover that the eastern black rail needs is maintained. The Service has defined dense overhead cover as “the cover that exists in excess of the height of an eastern black rail, and is assessed from above in terms of herbaceous persistent emergent wetland plant cover (as defined by Cowardin et al. 1979, p. 20) versus non-vegetative cover of the ground, including bare ground itself.” Eastern black rails typically occupy areas with overhead cover that permits little or no view of bare ground. Three different means for assessing this type of cover are outlined in the Service’s final rule.
Eastern black rail 4(d) rule - prohibitions and activities excepted from prohibitions
- Purposeful “take” of eastern black rail, to include capture, handling, or other activities.
- Incidental take of an eastern black rail from the following activities: prescribed burns (unless utilizing best management practices – BMPs*); mowing, haying, and other mechanical treatment activities in the bird’s habitat during the nesting or brooding periods; grazing activities on public lands that occur in the bird’s habitat and do not support the maintenance of dense overhead cover in at least 50% of habitat in any given calendar year within a management boundary; and long-term or permanent damage, fragmentation, or conversion of eastern black rail habitat and the contiguous wetland-upland transition zone to other habitat types (such as open water) that do not support the bird.
- Possession and other acts with unlawfully taken eastern black rails.
- Import or export of eastern black rails.
- Possession of unlawfully taken specimens of eastern black rails or conducting any other acts with unlawfully taken specimens of eastern black rails.
- Engaging in interstate or foreign commerce of eastern black rails in the course of commercial activity.
- Selling eastern black rails or offering eastern black rails for sale.
Activities excepted from prohibitions
- Activities expressly permitted by 50 CFR §17.32 (permits issued for scientific purposes, enhancement of propagation or survival, economic hardship, zoological exhibition, educational purposes, incidental taking, or special purposes consistent with the purposes of the ESA).
- “Take” of an eastern black rail during the course of official duties by any employee or agent of the Service, National Marine Fisheries Service, or a State conservation agency, operating a conservation program for the bird.
- Incidental take resulting from haying, mowing or other mechanical treatment activities in persistent emergent wetlands during the nesting and brooding periods that is a maintenance requirement to ensure safety and operational needs. This includes maintaining existing infrastructure such as fire-breaks, roads, rights-of-way, levees, dikes, fence lines, airfields, and surface water irrigation infrastructure (e.g., head gates, ditches, canals, water control structures, and culverts).
- Incidental take resulting from haying, mowing or other mechanical treatment activities in persistent emergent wetlands during the nesting and brooding periods and occur from the control of woody encroachment and other invasive plant species in order to restore degraded eastern black rail habitat.
- Incidental take of an eastern black rail resulting from actions taken to control wildfires.
- Incidental take of an eastern black rail resulting from the establishment of new fire-breaks (for example, to protect wildlands or man-made infrastructure) and new fence lines.
- Incidental take of an eastern black rail resulting from prescribed burns, grazing, and mowing or other mechanical treatment activities in existing moist soil management units or prior converted croplands (e.g., impoundments for rice or other cereal grain production).
*BMPs are defined as
- Regardless of the size of the area under management with prescribed fire, a broad range of habitat conditions should be maintained by burning on a rotational basis, which supports black rail population maintenance and growth. In any given calendar year, at least 50 percent of the eastern black rail habitat within the management boundary should be maintained in order to provide the dense overhead cover required by the subspecies. Management boundaries can include individual landholdings, e.g., a National Wildlife Refuge boundary, or be formed through landscape-level agreements across landholdings of different but contiguous ownerships. This percentage does not apply to landholdings smaller than 640 acres.
- Where eastern black rail are present, the application of prescribed fire uses tactics that provide unburned refugia allowing birds to survive a fire (e.g., using short flanking, backing fires, or similar approaches). Prescribed fire is applied under fuel and weather conditions (e.g., soil moisture and/or relative humidity) that are most likely to result in patchy persistence of unburned habitat to serve as refugia from fire and predators.
- Ignition tactics, rates of spread, and flame lengths should allow for wildlife escape routes to avoid trapping birds in a fire. The application of prescribed fire should avoid fires, such as ring and strip head fires, that have long, unbroken boundaries and/or that come together in a short period of time and that consume essentially all vegetation and prevent black rails from escaping a fire. If aerial ignition is the chosen tool, ignitions should be conducted in such a way that large, fast-moving fires are avoided.
Cowardin, L. M., Carter, V., Golet, F. C., & LaRoe, E. T. (1979). Classification of Wetlands and Deepwater Habitats of the United States. Washington, D.C.: U.S. Department of Interior, Fish and Wildlife Service.
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