In 1973, Congress passed the Endangered Species Act to "provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved, and to provide a program for the conservation of these species."
The U.S. Fish and Wildlife Service (an agency of the Department of the Interior) and the National Marine Fisheries Service (an agency of the Department of Commerce) are responsible for the protection of the nation's threatened and endangered species. The Fish and Wildlife Service is responsible for all land dwelling listed species and the National Marine Fisheries Service has the responsibility for ocean dwelling listed species including anadromous fish (fish that spend part of their life in freshwater and part in saltwater.)
The structure of the ESA can be broken down into the following components:
- listing of species and designation of critical habitat
- recovery planning
- exceptions to prohibitions
Listing Endangered and Threatened Species
An "endangered" species is any species of animal or plant that is in danger of extinction throughout all or a significant portion of its range. As of April 2001, there were 1488 species on the endangered species list, 971 of which occur in the United States.
A "threatened" species is any species of animal or plant that is likely to become endangered within the foreseeable future throughout all or a significant portion of its range. As of April 2001, there were 313 threatened species, 272 of which occur in the United States.
A "candidate" species is a species for which substantial information is available to support a listing proposal, but for which lack of funding and personnel preclude listing. The Secretary of the Interior is required to publish"notices of review" which list the status of candidate species. There are currently 319 species, many of which have languished on the candidate for more than a decade.
In 1995, the Secretary of the Interior removed over 4,000 species from the candidate list without any explanation, leaving them in regulatory limbo with no protections whatsoever!
Species can be added to the list of endangered or threatened species for five reasons:
Any person had the right to submit a petition to list a species and the determination as to whether a species should be listed must be made purely on a scientific basis. Upon receipt of a petition to list a species as threatened or endangered, the US Fish and Wildlife Service or National Marine Fisheries Serve must take the following actions:
- Current or threatened destruction of habitat
- Overuse of the species for commercial, recreational, scientific or educational purposes
- Disease or predation
- Ineffective regulatory mechanisms
- Other natural or man-made factors affecting the species chances of survival
- within 90 days after receiving a petition, the Service must decide whether the available information shows that listing the species as threatened or endangered "may be warranted."
- within 12 months after receiving a petition that may warrant listing, the Service must decide whether the listing is "warranted," "not warranted," or "warranted but precluded" and publish a notice in the federal register.
- If listing is "warranted," the Service publishes a "proposed rule" and must place the species on the threatened or endangered list within 12 months of the proposed rule. If the listing is "warranted but precluded" because the agency lacks the necessary funding and personnel to process a "proposed rule," the species is listed in the "notice of review" as a candidate species.
- If the Service decides to list a species as threatened or endangered, it must also designate critical habitat - habitat that is critical to the survival of the species. The Service may decline to designate critical habitat if it finds that it is not "prudent" or "determinable." If the habitat is "not determinable," the Service has an additional year to determine critical habitat.
Protecting Critical Habitat
Critical Habitat is defined as the geographic area containing physical or biological features essential to the conservation of a listed species or an area that may require special management considerations or protection.
Neither federal agencies nor private landowners may destroy or adversely modify critical habitat of any listed species. The Service is required to "take into consideration the economic impact, and any other relevant impact of specifying any area as critical habitat." The US Fish and Wildlife Service has failed to designate critical habitat for more than 80 percent of all species listed as threatened or endangered.
Recovery Planning for Threatened and Endangered Species
The Endangered Species Act requires the Service to develop and implement recovery plans for all threatened and endangered species that occur in the United States.
Recovery plans set forth what is needed for a species to "recover" to the point that it no longer needs the protections of the ESA. "Recovery teams," made up of experts from public and private agencies and institutions, are convened to prepare the recovery plans. The plans must include specific management recommendations for the species and objective, measurable criteria which, when met, would signal the recovery of the species.
Not surprisingly, experience has shown that species with recovery plans are more likely to recover than those without plans. Unfortunately, the endangered species programs of the National Marine Fisheries Service and US Fish and Wildlife Service have been hampered by underfunding and political pressures. Consequently, fewer than 60 percent of listed species have recovery plans.
Prohibited Actions Under the Endangered Species Act
The Act establishes broad prohibitions against "taking" endangered or threatened species. In other words, on both public and private lands of the United States, it is illegal "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect" threatened or endangered animals. The FWS has defined "harm" to include significant destruction of a species' habitat that results in actual death or injury. This would include interference with a species essential behavioral patterns such as breeding, feeding and sheltering.
While the "take" prohibition does not extend to plants on federal lands, it is illegal to "remove or reduce to possession" or "maliciously damage or destroy" threatened or endangered plants.
Protection for listed plants is significantly weaker on private lands where it is illegal to "remove, cut, dig up, or damage or destroy" plants only when it is "in knowing violation of any state law or in the course of any violation of state criminal trespass law."
Section 7 of the ESA requires federal agencies to endure that any action that they authorize, fund or carry out is not likely to jeopardize the continued existence of any threatened or endangered species or adversely modify the critical habitat of any such species.
Any agency proposing a project such as a timber sale or dam must therefore ask the Service if there are any threatened or endangered species in the project area. If a listed species is present, the agency proposing the action must prepare a "biological assessment" that identifies listed species in the area and outlines the nature and extent of the action's impact on these species. The Service then determines if a "formal consultation" is necessary.
If the biological assessment indicates that the proposed project may impact a listed species or its critical habitat, the Service is required to prepare a "biological opinion" (BiOp) that determines whether the project will "jeopardize" the continued existence of a listed species. If the Biological Opinion indicates there is "no jeopardy" to the listed species or its critical habitat, then the project proceeds.
If the Biological Opinion indicates that the project, as proposed, will jeopardize the continued existence of a threatened or endangered species, then the Service must suggest "reasonable and prudent alternatives" that they believe would not jeopardize the species' existence. If the Service cannot suggest any reasonable and prudent alternatives, then the project is denied.
Between 1987-1995, the US determined that of the 186,000 consultations, only 600 resulted in "jeopardy" opinions and, of these, only 100 projects (or 0.05 percent of these projects) were stopped outright. The vast majority of projects were allowed to proceed after adoption of reasonable and prudent alternatives.
The "Endangered Species Committee" (or sometimes called "God Squad")
Proposed federal agency actions that have been determined to cause "jeopardy" to any listed species may receive an exemption from the ESA if five members of the federal "Endangered Species Committee" determine that the action is of regional or national significance, that the benefits of the action clearly outweigh the benefits of conserving the species and that there are no reasonable and prudent alternatives to the action.
The "Endangered Species Committee" is comprised of seven members: The Secretary of Agriculture, the Secretary of the Army, the Secretary of the Interior, the Chairman of the Council of Economic Advisors, the Administrator of the National Oceanic and Atmospheric Administration and one individual from the affected state. The "Endangered Species Committee" has been convened only a handful of times.
Incidental Take Permits (ITPs) and Habitat Conservation Plans (HCPs)
The ESA contains an exception to the strict prohibition against "take" in which the Service may permit a project to go forward and destroy threatened and endangered species and their habitat as long as the taking is "incidental" to, and not the purpose of, the project. This permit is commonly referred to as an "incidental take permit" (ITP).
The Service cannot issue an ITP unless the permit applicant submits a conservation plan (known as a "Habitat Conservation Plan") which specifies:
In addition, the Service cannot issue an ITP if it finds that the project's impacts on the listed species will appreciably reduce the likelihood of the species' survival and recovery in the wild. HCP's are increasingly becoming the preferred mechanism for dealing with endangered species issues on non-federal land. HCPs may cover hundreds of listed and unlisted species and be in effect for decades at a time. To date, 346 HCPs have been approved, covering over 30 million acres and protecting 200 threatened or endangered species.
- The impact to the species from the project
- The steps that will be taken to minimize and mitigate the project's impacts, and the funding that will be available to implement such steps
- The alternatives to the project and why these alternatives were not adopted
- Any other measures the Service has determined necessary for the plan.
Glossary of endangered species terms.