Endangered Species Act
Encyclopedia
The Endangered Species Act of 1973 (ESA; , et seq.) is one of the dozens of United States environmental laws passed in the 1970s. Signed into law by President Richard Nixon
on December 28, 1973, it was designed to protect critically imperiled species
from extinction
as a "consequence of economic growth and development untempered by adequate concern and conservation
."
The Act is administered by two federal agencies, the United States Fish and Wildlife Service
(FWS) and the National Oceanic and Atmospheric Administration
(NOAA).
and the rapidly disappearing passenger pigeon
helped drive the call for wildlife conservation starting in the 1900s. Ornithologist George Bird Grinnell
wrote articles on the subject in the magazine Forest and Stream, while Joel Asaph Allen
, founder of the American Ornithologists' Union
, hammered away in the popular press. The public was introduced to a new concept: extinction
.
Market hunting for the millinery trade and for the table was one aspect of the problem. The early naturalists also killed birds and other wildlife for study, personal curio
collections and museum pieces. While habitat losses continued as communities and farmland grew, the widespread use of pesticides and the introduction of non-native species also affected wildlife. The 1876 introduction of the Asian plant known as kudzu
is one example of a non-native species impact; as it grows vigorously, smothers native plants and can kill trees by girdling
them. With a growth rate capable of one foot per day, it is referred to as "the plant that ate the south"(Samuel Given McClure).
One species in particular received widespread attention—the whooping crane
. The species' historical range extended from central Canada south to Mexico, and from Utah to the Atlantic coast. Unregulated hunting and habitat loss contributed to a steady decline in the whooping crane population until, by 1890, it had disappeared from its primary breeding range in the north central United States. It would be another eight years before the first national law regulating wildlife commerce was signed, and another two years before the first version of the endangered species act was passed. The whooping crane population by 1941 was estimated at about only 16 birds still in the wild.
The Lacey Act of 1900 was the first federal law that regulated commercial animal markets. It prohibited interstate commerce of animals killed in violation of state game laws, and covered all fish and wildlife and their parts or products, as well as plants. Other legislation followed, including the Migratory Bird Conservation Act of 1929 and the Bald Eagle Protection Act
of 1940. The United States' national symbol was declining to the point of needing federal protection.
Whereas the Lacey Act dealt with game animal management and market commerce species, a major shift in focus occurred by 1963 to habitat preservation instead of take regulations. A provision was added by Congress in the Land and Water Conservation Fund Act of 1965 that provided money for the "acquisition of land, waters...for the preservation of species of fish and wildlife that are threatened with extinction."
(P.L. 89-669 ). It authorized the Secretary of the Interior to list endangered domestic fish and wildlife and allowed the United States Fish and Wildlife Service to spend up to $15 million per year to buy habitat for listed species. It also directed federal land agencies to preserve habitat on their lands. Other public agencies were encouraged, but not required, to protect species. The act did not address the commerce in endangered species and parts.
In March, 1967 the first list of endangered species was issued under the act. It included 14 mammals, 36 birds, 6 reptiles and amphibians and 22 fish.
This first list is referred to as the "Class of '67" in The Endangered Species Act at Thirty, Volume 1, which concludes that habitat destruction, the biggest threat to those 78 species, is still the same threat to the currently listed species. It included only vertebrates because the Department of Interior's definition of "fish and wildlife" was limited to vertebrates.
(P. L. 91-135), passed in December, 1969, amended the original law to provide additional protection to species in danger of “worldwide extinction” by prohibiting their importation and subsequent sale in the United States. It expanded the Lacey Act's ban on interstate commerce to include mammals, reptiles, amphibians, mollusks and crustaceans. Reptiles were added mainly to reduce the rampant poaching
of alligator
s and crocodile
s. This law was the first time that invertebrate
s were included for protection.
The amendment called for an international meeting to adopt a convention or treaty to conserve endangered species.
That meeting was held in Washington, D. C. in February, 1973 and produced the comprehensive multilateral treaty known as CITES or Convention on International Trade of Endangered Species of Wild Fauna and Flora.
declared current species conservation efforts to be inadequate and called on the 93rd United States Congress
to pass comprehensive endangered species legislation. Congress responded with a completely rewritten law, the Endangered Species Act of 1973 which was signed by Nixon on December 28, 1973 . It was written by a team of lawyers and scientists, including the first appointed head of the Council on Environmental Quality (CEQ),an outgrowth of NEPA (The "National Environmental Policy Act of 1969" ) Dr. Russell E. Train
. Dr. Train was assisted by a core group of staffers, including Dr. Earl Baysinger at EPA (currently Assistant Chief, Office of Endangered Species and International. Activities), Dick Gutting (U.S. Commerce Dept. lawyer, currently joined NOAA the previous year (1972), and Dr. Gerard A. "Jerry" Bertrand, a marine biologist by training, who had transferred from the United States Army Corps of Engineers to join the newly-formed White House office. The staff, under Dr. Train's leadership, incorporated dozens of new principles and ideas into the landmark legislation; crafting a document that completely changed the direction of environmental conservation in the United States.
The stated purpose of the Endangered Species Act is to protect species and also "the ecosystems upon which they depend." California historian Kevin Starr
was more emphatic when he said: "The Endangered Species Act of 1982 is the Magna Carta of the environmental movement."
The ESA is administered by two federal agencies, the United States Fish and Wildlife Service
(FWS) and the National Oceanic and Atmospheric Administration
(NOAA) (which includes the National Marine Fisheries Service
, or NMFS). NOAA handles marine species, and the FWS has responsibility over freshwater fish and all other species. Species that occur in both habitats (e.g. sea turtles and Atlantic sturgeon
) are jointly managed.
In March 2008, The Washington Post
reported that documents showed that the Bush Administration, beginning in 2001, had erected "pervasive bureaucratic obstacles" that limited the number of species protected under the act:
1. There is the present or threatened destruction, modification, or curtailment of its habitat
or range.
2. An over utilization for commercial, recreational, scientific, or educational purposes.
3. The species is declining due to disease or predation
.
4. There is an inadequacy of existing regulatory mechanisms.
5. There are other natural or manmade factors affecting its continued existence.
Potential candidate species are then prioritized, with "emergency listing" given the highest priority. Species that face a " significant risk to their well being" are in this category.
A species can be listed in two ways. The United States Fish and Wildlife Service
(FWS) or NOAA Fisheries (also called the National Marine Fisheries Service
) can directly list a species through its candidate assessment program, or an individual or organizational petition may request that the FWS or NMFS list a species. A "species" under the act can be a true taxonomic species
, a subspecies
, or in the case of vertebrates, a "distinct population segment
." The procedures are the same for both types except with the person/organization petition, there is a 90-day screening period.
During the listing process, economic factors cannot be considered, but must be " based solely on the best scientific and commercial data available." The 1982 amendment to the ESA added the word "solely" to prevent any consideration other than the biological status of the species. Congress rejected President Ronald Reagan's
Executive Order 12291 which required economic analysis of all government agency actions. The House committee's statement was "that economic considerations have no relevance to determinations regarding the status of species."
The very opposite result happened with the 1978 amendment where Congress added the words "...taking into consideration the economic impact..." in the provision on critical habitat
designation.
The 1978 amendment linked the listing procedure with critical habitat designation and economic considerations, which almost completely halted new listings, with almost 2,000 species being withdrawn from consideration.
, the US government's official journal of proposed or adopted rules and regulations:
1. If a petition presents information that the species is imperiled, a screening period of 90 days begins (interested persons and/or organization petitions only). If the petition does not present substantial information to support listing, it is denied.
2. If the information is substantial, a status review is started, which is a comprehensive assessment of a species' biological status and threats, with a result of : "warranted", "not warranted," or "warranted but precluded."
Essentially the "warranted but precluded" finding is a deferral added by the 1982 amendment to the ESA. It means other, higher-priority actions will take precedence.
For example, an emergency listing of a rare plant growing in a wetland that is scheduled to be filled in for housing construction would be a "higher-priority".
3. Within another year, a final determination (a final rule) must be made on whether to list the species. The final rule time limit may be extended for 6 months and listings may be grouped together according to similar geography, threats, habitat or taxonomy.
The annual rate of listing (i.e., classifying species as "threatened" or "endangered") increased steadily from the Ford
administration (47 listings, 15 per year) through Carter
(126 listings, 32 per year), Reagan
(255 listings, 32 per year), George H. W. Bush
(231 listings, 58 per year), and Clinton
(521 listings, 65 per year) before decline to its lowest rate under George W. Bush
(60 listings, 8 per year as of 5/24/08).
The rate of listing is strongly correlated with citizen involvement and mandatory timelines: as agency discretion decreases and citizen involvement increases (i.e. filing of petitions and lawsuits) the rate of listing increases. The longer species are listed, the more likely they are to be classified as recovering by the FWS.
is given through legal notices in newspapers, and communicated to state and county agencies within the species' area. Foreign nations may also receive notice of a listing.
A public hearing
is mandatory if any person has requested one within 45 days of the published notice.
"The purpose of the notice and comment requirement is to provide for meaningful public participation in the rulemaking process." summarized the Ninth Circuit court in the case of Idaho Farm Bureau Federation v. Babbitt.
is a regulatory link between habitat protection and recovery goals, requiring the identification and protection of all lands, water and air necessary to recover endangered species.
To determine what exactly is critical habitat, the needs of open space for individual and population growth, food, water, light or other nutritional requirements, breeding sites, seed germination and dispersal needs, and lack of disturbances are considered.
As habitat loss is the primary threat to most imperiled species, the Endangered Species Act of 1973 allowed the Fish and Wildlife Service(FWS) and National Marine Fisheries Service(NMFS) to designate specific areas as protected "critical habitat" zones. In 1978, Congress amended the law to make critical habitat designation a mandatory requirement for all threatened and endangered species.
The amendment also added economics
into the process of determining habitat: "...shall designate critical habitat...on the basis of the best scientific data available and after taking into consideration the economic impact, and any other impact, of specifying...area as critical habitat."
The congressional report on the 1978 amendment described the conflict between the new Section 4 additions and the rest of the law:
The amendment of 1978 added economic considerations and the 1982 amendment prevented economic considerations.
Several studies on the effect of critical habitat designation on species' recovery rates have been done between 1997 and 2003. The Taylor study in 2003 found that, "species with critical habitat were... twice as likely to be improving...."
Critical habitats are required to contain "all areas essential to the conservation" of the imperiled species, and may be on private or public lands. The Fish and Wildlife Service has a policy limiting designation to lands and waters within the U.S. and both federal agencies may exclude essential areas if they determine that economic or other costs exceed the benefit. The ESA is mute about how such costs and benefits are to be determined.
All federal agencies are prohibited from authorizing, funding or carrying out actions that "destroy or adversely modify" critical habitats (Section 7(a) (2)). While the regulatory aspect of critical habitat does not apply directly to private and other non-federal landowners, large-scale development, logging
and mining
projects on private and state land typically require a federal permit and thus become subject to critical habitat regulations. Outside or in parallel with regulatory processes, critical habitats also focus and encourage voluntary actions such as land purchases, grant making, restoration, and establishment of reserves
.
The ESA requires that critical habitat be designated at the time of or within one year of a species being placed on the endangered list. In practice, most designations occur several years after listing. Between 1978 and 1986 the FWS regularly designated critical habitat. In 1986 the Reagan Administration
issued a regulation
limiting the protective status of critical habitat. As a result, few critical habitats were designated between 1986 and the late 1990s. In the late 1990s and early 2000s, a series of court order
s invalidated the Reagan regulations and forced the FWS and NMFS to designate several hundred critical habitats, especially in Hawaii, California and other western states. Midwest and Eastern states received less critical habitat, primarily on rivers and coastlines. As of December, 2006, the Reagan regulation has not yet been replaced though its use has been suspended. Nonetheless, the agencies have generally changed course and since about 2005 have tried to designate critical habitat at or near the time of listing.
Most provisions of the ESA revolve around preventing extinction. Critical habitat is one of the few that focuses on recovery. Species with critical habitat are twice as likely to be recovering as species without critical habitat.
More changes were made in the 1990s in an attempt by Secretary of the Interior Bruce Babbitt
to shield the ESA from a Congress hostile to the law. He instituted incentive-based strategies such as candidate conservation agreements and "safe harbor" agreements that would balance the goals of economic development and conservation.
The goal of the law is to make itself unnecessary, and recovery plans are a means toward that goal. Recovery plans became more specific after 1988 when Congress added provisions to Section 4(f) of the law that spelled out the minimum contents of a recovery plan. Three types of information must be included:
The amendment also added public
participation to the process. There is a ranking order, similar to the listing procedures, for recovery plans, with the highest priority being for species most likely to benefit from recovery plans, especially when the threat is from construction, or other developmental or economic activity. Recovery plans cover domestic and migratory species.
The question to be answered is whether a listed species will be harmed by the action and, if so, how the harm can be minimized. If harm cannot be avoided, the project agency can seek an exemption from the Endangered Species Committee, an ad hoc panel composed of members from the executive branch and at least one appointee from the state where the project is to occur. Five of the seven committee members must vote for the exemption to allow taki ng (to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or significant habitat modification, or to attempt to engage in any such conduct) of listed species.
Long before the exemption is considered by the Endangered Species Committee, the Forest Service, and either the FWS or the NMFS will have consulted on the biological implications of the timber harvest. The consultation can be informal, to determine if harm may occur; and then formal if the harm is believed to be likely. The questions to be answered in these consultations are whether the species will be harmed, whether the habitat will be harmed and if the action will aid or hinder the recovery of the listed species.
If harm is likely to occur, the consultation evaluates whether "reasonable and prudent alternatives" exist to minimize harm. If an alternative does not exist, the FWS or NMFS will issue an opinion that the action constitutes "jeopardy" to the listed species either directly or indirectly. The project cannot then occur unless exempted by the Endangered Species Committee.
The Committee must make a decision on the exemption within 30 days, when its findings are published in the Federal Register. The findings can be challenged in federal court. In 1992, one such challenge was the case of Portland Audubon Society v. Endangered Species Committee heard in the Ninth Circuit Court of Appeals.
The court found that three members had been in illegal ex parte contact with the then-President George H.W. Bush, a violation of the Administrative Procedures Act. The committee's exemption was for the Bureau of Land Management
's timber sale and "incidental takes" of the endangered Northern Spotted Owl in Oregon.
There have been six instances as of 2009 in which the exemption process was initiated. Of these six, one was granted, one was partially granted, one was denied and three were withdrawn.
Donald Baur, in The Endangered Species Act: law, policy, and perspectives, concluded," ... the exemption provision is basically a nonfactor in the administration of the ESA. A major reason, of course, is that so few consultations result in jeopardy opinions, and those that do almost always result in the identification of reasonable and prudent alternatives to avoid jeopardy."
or research purposes. The amendment created a permit process to circumvent the take prohibition called a Habitat Conservation Plan
or HCP to give incentives to non-federal land managers and private landowners to help protect listed and unlisted species, while allowing economic development that may harm ("take") the species.
The US Fish and Wildlife Service defines the process as: "The purpose of the habitat conservation planning process associated with the permit is to ensure there is adequate minimizing and mitigating of the effects of the authorized incidental take. The purpose of the incidental take permit is to authorize the incidental take of a listed species, not to authorize the activities that result in take."
The person or organization submits a HCP and if approved by the agency (FWS or NMFS), will be issued an Incidental Take Permit
(ITP) which allows a certain number of "takes" of the listed species. The permit may be revoked at any time and can allow incidental takes for varying amounts of time. For instance, the San Bruno Habitat Conservation Plan/ Incidental Take Permit is good for 30 years and the Wal-Mart store (in Florida) permit expires after one year. Because the permit is issued by a federal agency to a private party, it is a federal action-which means other federal laws can apply, such as the National Environmental Policy Act
or NEPA. A notice of the permit application action is published in the Federal Register and a public comment period of 30 to 90 days begins.
The US Congress was urged to create the exemption by proponents of a conservation plan on San Bruno Mountain
, California that was drafted in the early 1980s and is the first HCP in the nation. In the conference report on the 1982 amendments, Congress specified that it intended the San Bruno plan to act "as a model" for future conservation plans developed under the incidental take exemption provision and that "the adequacy of similar conservation plans should be measured against the San Bruno plan". Congress further noted that the San Bruno plan was based on "an independent exhaustive biological study" and protected at least 87% of the habitat of the listed butterflies that led to the development of the HCP.
Growing scientific recognition of the role of private lands for endangered species recovery and the landmark 1981 court decision in Palila v. Hawaii Department of Land and Natural Resources both contributed to making Habitat Conservation Plans/ Incidental Take Permits "a major force for wildlife conservation and a major headache to the development community", wrote Robert D.Thornton in the 1991 Environmental Law article, Searching for Consensus and Predictability: Habitat Conservation Planning under the Endangered Species Act of 1973.
of endangered species.
To delist species, several factors are considered: the threats are eliminated or controlled, population size and growth, and the stability of habitat quality and quantity. Also, over a dozen species have been delisted due to inaccurate data putting them on the list in the first place.
There is also "downlisting" of a species where some of the threats have been controlled and the population has met recovery objectives, then the species can be reclassified to "threatened" from "endangered"
Two examples of animal species recently delisted are: the Virginia northern flying squirrel
(subspecies) on August, 2008, which had been listed since 1985, and the gray wolf
(Northern Rocky Mountain DPS). On April 15, 2011, President Obama signed the Department of Defense and Full-Year Appropriations Act of 2011. A section of that Appropriations Act directed the Secretary of the Interior to reissue within 60 days of enactment the final rule published on April 2, 2009, that identified the Northern Rocky Mountain population of gray wolf (Canis lupus) as a distinct population segment (DPS) and to revise the List of Endangered and Threatened Wildlife by removing most of the gray wolves in the DPS.
The US Fish and Wildlife Service's delisting report has two plants that have recovered; Eggert's sunflower (Helianthus eggertii) and Robbins' cinquefoil (Potentilla robbinsiana
), an alpine
wildflower found only in the White Mountains
of New Hampshire.
Some have argued that the recovery of DDT-threatened species such as the bald eagle
, brown pelican
and peregrine falcon
should be attributed to the 1972 congressional ban on DDT
rather than the Endangered Species Act, however, the listing of these species as endangered was a substantial cause of Congress instituting the ban and many non-DDT oriented actions were taken on their behalf under the Endangered Species Act (i.e. captive breeding, habitat protection, and protection from disturbance).
As of July 29, 2009, there are 1,890 total (foreign and domestic) species on the threatened and endangered lists. However, many species have become extinct while on the candidate list or otherwise under consideration for listing.
Species which increased in population size since being placed on the endangered list include:
s is the case of a forest owner who, in response to ESA listing of the red-cockaded woodpecker
, increased harvesting and shortened the age at which he harvests his trees to ensure that they do not become old enough to become suitable habitat. While no studies have shown that the Act's negative effects, in total, exceed the positive effects, many economists believe that finding a way to reduce such perverse incentives would lead to more effective protection of endangered species.
and any act of knowingly "taking" (which includes harming, wounding, or killing) an endangered species.
The penalties for these violations can be a maximum fine of up to $50,000 or imprisonment for one year, or both, and civil penalties of up to $25,000 per violation, may be assessed. Lists of violations and exact fines are available through the National Oceanic and Atmospheric Administration
web-site.
One provision of this law is that no penalty may be imposed if, by a preponderance of the evidence that the act was in self defense. The law also eliminates criminal penalties for accidentally killing listed species during farming and ranching activities.
In addition to fines or imprisonment, a license, permit, or other agreement issued by a Federal Agency that authorized an individual to import or export fish, wildlife, or plants may be revoked, suspended or modified. Any federal hunting or fishing permits that were issued to a person who violates the ESA can be canceled or suspended for up to a year.
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...
on December 28, 1973, it was designed to protect critically imperiled species
Endangered species
An endangered species is a population of organisms which is at risk of becoming extinct because it is either few in numbers, or threatened by changing environmental or predation parameters...
from extinction
Extinction
In biology and ecology, extinction is the end of an organism or of a group of organisms , normally a species. The moment of extinction is generally considered to be the death of the last individual of the species, although the capacity to breed and recover may have been lost before this point...
as a "consequence of economic growth and development untempered by adequate concern and conservation
Habitat conservation
Habitat conservation is a land management practice that seeks to conserve, protect and restore, habitat areas for wild plants and animals, especially conservation reliant species, and prevent their extinction, fragmentation or reduction in range...
."
The Act is administered by two federal agencies, the United States Fish and Wildlife Service
United States Fish and Wildlife Service
The United States Fish and Wildlife Service is a federal government agency within the United States Department of the Interior dedicated to the management of fish, wildlife, and natural habitats...
(FWS) and the National Oceanic and Atmospheric Administration
National Oceanic and Atmospheric Administration
The National Oceanic and Atmospheric Administration , pronounced , like "noah", is a scientific agency within the United States Department of Commerce focused on the conditions of the oceans and the atmosphere...
(NOAA).
History
The near-extinction of the bisonBison
Members of the genus Bison are large, even-toed ungulates within the subfamily Bovinae. Two extant and four extinct species are recognized...
and the rapidly disappearing passenger pigeon
Passenger Pigeon
The Passenger Pigeon or Wild Pigeon was a bird, now extinct, that existed in North America and lived in enormous migratory flocks until the early 20th century...
helped drive the call for wildlife conservation starting in the 1900s. Ornithologist George Bird Grinnell
George Bird Grinnell
George Bird Grinnell was an American anthropologist, historian, naturalist, and writer. Grinnell was born in Brooklyn, New York, and graduated from Yale University with a B.A. in 1870 and a Ph.D. in 1880. Originally specializing in zoology, he became a prominent early conservationist and student...
wrote articles on the subject in the magazine Forest and Stream, while Joel Asaph Allen
Joel Asaph Allen
Joel Asaph Allen was an American zoologist and ornithologist, born in Springfield, Massachusetts.He studied at Harvard University under Louis Agassiz...
, founder of the American Ornithologists' Union
American Ornithologists' Union
The American Ornithologists' Union is an ornithological organization in the USA. Unlike the National Audubon Society, its members are primarily professional ornithologists rather than amateur birders...
, hammered away in the popular press. The public was introduced to a new concept: extinction
Extinction
In biology and ecology, extinction is the end of an organism or of a group of organisms , normally a species. The moment of extinction is generally considered to be the death of the last individual of the species, although the capacity to breed and recover may have been lost before this point...
.
Market hunting for the millinery trade and for the table was one aspect of the problem. The early naturalists also killed birds and other wildlife for study, personal curio
Curio
Curio may refer to:* A strange and interesting object which evokes curiosity** Curio , a predominantly glass cabinet with a metal or wood framework used to display collections of curios...
collections and museum pieces. While habitat losses continued as communities and farmland grew, the widespread use of pesticides and the introduction of non-native species also affected wildlife. The 1876 introduction of the Asian plant known as kudzu
Kudzu
Kudzu is a plant in the genus Pueraria in the pea family Fabaceae, subfamily Faboideae. It is a climbing, coiling, and trailing vine native to southern Japan and southeast China. Its name comes from the Japanese name for the plant, . It is a weed that climbs over trees or shrubs and grows so...
is one example of a non-native species impact; as it grows vigorously, smothers native plants and can kill trees by girdling
Girdling
Girdling, also called ring barking or ring-barking, is the complete removal of a strip of bark from around the entire circumference of either a branch or trunk of a woody plant. Girdling results in the death of wood tissues beyond the damage...
them. With a growth rate capable of one foot per day, it is referred to as "the plant that ate the south"(Samuel Given McClure).
One species in particular received widespread attention—the whooping crane
Whooping Crane
The whooping crane , the tallest North American bird, is an endangered crane species named for its whooping sound. Along with the Sandhill Crane, it is one of only two crane species found in North America. The whooping crane's lifespan is estimated to be 22 to 24 years in the wild...
. The species' historical range extended from central Canada south to Mexico, and from Utah to the Atlantic coast. Unregulated hunting and habitat loss contributed to a steady decline in the whooping crane population until, by 1890, it had disappeared from its primary breeding range in the north central United States. It would be another eight years before the first national law regulating wildlife commerce was signed, and another two years before the first version of the endangered species act was passed. The whooping crane population by 1941 was estimated at about only 16 birds still in the wild.
The Lacey Act of 1900 was the first federal law that regulated commercial animal markets. It prohibited interstate commerce of animals killed in violation of state game laws, and covered all fish and wildlife and their parts or products, as well as plants. Other legislation followed, including the Migratory Bird Conservation Act of 1929 and the Bald Eagle Protection Act
Bald and Golden Eagle Protection Act
The Bald and Golden Eagle Protection Act is a legislation in the United States of America that protects two species of eagle. The Bald Eagle was chosen as a national emblem of the United States by the Continental Congress of 1782 and was given legal protection by the Bald Eagle Protection Act of...
of 1940. The United States' national symbol was declining to the point of needing federal protection.
Whereas the Lacey Act dealt with game animal management and market commerce species, a major shift in focus occurred by 1963 to habitat preservation instead of take regulations. A provision was added by Congress in the Land and Water Conservation Fund Act of 1965 that provided money for the "acquisition of land, waters...for the preservation of species of fish and wildlife that are threatened with extinction."
Act of 1966
The predecessor of the ESA was the Endangered Species Preservation Act of 1966Endangered Species Preservation Act of 1966
In the United States the Endangered Species Preservation Act of 1966 was the predecessor to the Endangered Species Act.Passed by Congress, this act permitted the listing of native U.S animal species as endangered and for limited protections upon those animals.This Act caused the Secretary of the...
(P.L. 89-669 ). It authorized the Secretary of the Interior to list endangered domestic fish and wildlife and allowed the United States Fish and Wildlife Service to spend up to $15 million per year to buy habitat for listed species. It also directed federal land agencies to preserve habitat on their lands. Other public agencies were encouraged, but not required, to protect species. The act did not address the commerce in endangered species and parts.
In March, 1967 the first list of endangered species was issued under the act. It included 14 mammals, 36 birds, 6 reptiles and amphibians and 22 fish.
This first list is referred to as the "Class of '67" in The Endangered Species Act at Thirty, Volume 1, which concludes that habitat destruction, the biggest threat to those 78 species, is still the same threat to the currently listed species. It included only vertebrates because the Department of Interior's definition of "fish and wildlife" was limited to vertebrates.
Amendment of 1969
The Endangered Species Conservation ActEndangered Species Act of 1969
The Endangered Species Act of 1969 was an expansion of the Endangered Species Preservation Act of 1966 which authorized the United States Secretary of the Interior to develop a comprehensive list of species or subspecies of animals threatened with worldwide extinction...
(P. L. 91-135), passed in December, 1969, amended the original law to provide additional protection to species in danger of “worldwide extinction” by prohibiting their importation and subsequent sale in the United States. It expanded the Lacey Act's ban on interstate commerce to include mammals, reptiles, amphibians, mollusks and crustaceans. Reptiles were added mainly to reduce the rampant poaching
Poaching
Poaching is the illegal taking of wild plants or animals contrary to local and international conservation and wildlife management laws. Violations of hunting laws and regulations are normally punishable by law and, collectively, such violations are known as poaching.It may be illegal and in...
of alligator
Alligator
An alligator is a crocodilian in the genus Alligator of the family Alligatoridae. There are two extant alligator species: the American alligator and the Chinese alligator ....
s and crocodile
Crocodile
A crocodile is any species belonging to the family Crocodylidae . The term can also be used more loosely to include all extant members of the order Crocodilia: i.e...
s. This law was the first time that invertebrate
Invertebrate
An invertebrate is an animal without a backbone. The group includes 97% of all animal species – all animals except those in the chordate subphylum Vertebrata .Invertebrates form a paraphyletic group...
s were included for protection.
The amendment called for an international meeting to adopt a convention or treaty to conserve endangered species.
That meeting was held in Washington, D. C. in February, 1973 and produced the comprehensive multilateral treaty known as CITES or Convention on International Trade of Endangered Species of Wild Fauna and Flora.
Endangered Species Act
President Richard NixonRichard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...
declared current species conservation efforts to be inadequate and called on the 93rd United States Congress
93rd United States Congress
The Ninety-third United States Congress was a meeting of the legislative branch of the United States federal government, composed of the United States Senate and the United States House of Representatives. It met in Washington, DC from January 3, 1973 to January 3, 1975, during the end of Richard...
to pass comprehensive endangered species legislation. Congress responded with a completely rewritten law, the Endangered Species Act of 1973 which was signed by Nixon on December 28, 1973 . It was written by a team of lawyers and scientists, including the first appointed head of the Council on Environmental Quality (CEQ),an outgrowth of NEPA (The "National Environmental Policy Act of 1969" ) Dr. Russell E. Train
Russell E. Train
Russell Errol Train was the second Administrator of the Environmental Protection Agency , from September 1973 to January 1977, and the Founder Chairman Emeritus of World Wildlife Fund . As head of the EPA under U.S...
. Dr. Train was assisted by a core group of staffers, including Dr. Earl Baysinger at EPA (currently Assistant Chief, Office of Endangered Species and International. Activities), Dick Gutting (U.S. Commerce Dept. lawyer, currently joined NOAA the previous year (1972), and Dr. Gerard A. "Jerry" Bertrand, a marine biologist by training, who had transferred from the United States Army Corps of Engineers to join the newly-formed White House office. The staff, under Dr. Train's leadership, incorporated dozens of new principles and ideas into the landmark legislation; crafting a document that completely changed the direction of environmental conservation in the United States.
The stated purpose of the Endangered Species Act is to protect species and also "the ecosystems upon which they depend." California historian Kevin Starr
Kevin Starr
Kevin Starr is an American historian, best known for his multi-volume series on the history of California, collectively called "Americans and the California Dream."-Life:Kevin Starr was born in San Francisco, California....
was more emphatic when he said: "The Endangered Species Act of 1982 is the Magna Carta of the environmental movement."
The ESA is administered by two federal agencies, the United States Fish and Wildlife Service
United States Fish and Wildlife Service
The United States Fish and Wildlife Service is a federal government agency within the United States Department of the Interior dedicated to the management of fish, wildlife, and natural habitats...
(FWS) and the National Oceanic and Atmospheric Administration
National Oceanic and Atmospheric Administration
The National Oceanic and Atmospheric Administration , pronounced , like "noah", is a scientific agency within the United States Department of Commerce focused on the conditions of the oceans and the atmosphere...
(NOAA) (which includes the National Marine Fisheries Service
National Marine Fisheries Service
The National Marine Fisheries Service is a United States federal agency. A division of the National Oceanic and Atmospheric Administration and the Department of Commerce, NMFS is responsible for the stewardship and management of the nation's living marine resources and their habitat within the...
, or NMFS). NOAA handles marine species, and the FWS has responsibility over freshwater fish and all other species. Species that occur in both habitats (e.g. sea turtles and Atlantic sturgeon
Atlantic sturgeon
The Atlantic sturgeon is a member of the Acipenseridae family and is among one of the oldest fish species in the world. Its range extends from New Brunswick, Canada to the eastern coast of Florida. It was in great abundance when the first settlers came to America, but has since declined due to...
) are jointly managed.
In March 2008, The Washington Post
The Washington Post
The Washington Post is Washington, D.C.'s largest newspaper and its oldest still-existing paper, founded in 1877. Located in the capital of the United States, The Post has a particular emphasis on national politics. D.C., Maryland, and Virginia editions are printed for daily circulation...
reported that documents showed that the Bush Administration, beginning in 2001, had erected "pervasive bureaucratic obstacles" that limited the number of species protected under the act:
- From 2000 to 2003, until a U.S. District Court overturned the decision, Fish and Wildlife Service officials said that if that agency identified a species as a candidate for the list, citizens could not file petitions for that species.
- Interior Department personnel were told they could use "info from files that refutes petitions but not anything that supports" petitions filed to protect species.
- Senior department officials revised a longstanding policy that rated the threat to various species based primarily on their populations within U.S. borders, giving more weight to populations in Canada and Mexico, countries with less extensive regulations than the U.S.
- Officials changed the way species were evaluated under the act by considering where the species currently lived, rather than where they used to exist.
- Senior officials repeatedly dismissed the views of scientific advisers who said that species should be protected.
Preventing extinction
The ESA's primary goal is to prevent the extinction of imperiled plant and animal life, and secondly, to recover and maintain those populations by removing or lessening threats to their survival.Petition and listing
To be considered for listing, the species must meet one of five criteria (section 4(a)(1)):1. There is the present or threatened destruction, modification, or curtailment of its habitat
Habitat
* Habitat , a place where a species lives and grows*Human habitat, a place where humans live, work or play** Space habitat, a space station intended as a permanent settlement...
or range.
2. An over utilization for commercial, recreational, scientific, or educational purposes.
3. The species is declining due to disease or predation
Predation
In ecology, predation describes a biological interaction where a predator feeds on its prey . Predators may or may not kill their prey prior to feeding on them, but the act of predation always results in the death of its prey and the eventual absorption of the prey's tissue through consumption...
.
4. There is an inadequacy of existing regulatory mechanisms.
5. There are other natural or manmade factors affecting its continued existence.
Potential candidate species are then prioritized, with "emergency listing" given the highest priority. Species that face a " significant risk to their well being" are in this category.
A species can be listed in two ways. The United States Fish and Wildlife Service
United States Fish and Wildlife Service
The United States Fish and Wildlife Service is a federal government agency within the United States Department of the Interior dedicated to the management of fish, wildlife, and natural habitats...
(FWS) or NOAA Fisheries (also called the National Marine Fisheries Service
National Marine Fisheries Service
The National Marine Fisheries Service is a United States federal agency. A division of the National Oceanic and Atmospheric Administration and the Department of Commerce, NMFS is responsible for the stewardship and management of the nation's living marine resources and their habitat within the...
) can directly list a species through its candidate assessment program, or an individual or organizational petition may request that the FWS or NMFS list a species. A "species" under the act can be a true taxonomic species
Species
In biology, a species is one of the basic units of biological classification and a taxonomic rank. A species is often defined as a group of organisms capable of interbreeding and producing fertile offspring. While in many cases this definition is adequate, more precise or differing measures are...
, a subspecies
Subspecies
Subspecies in biological classification, is either a taxonomic rank subordinate to species, ora taxonomic unit in that rank . A subspecies cannot be recognized in isolation: a species will either be recognized as having no subspecies at all or two or more, never just one...
, or in the case of vertebrates, a "distinct population segment
Distinct population segment
A distinct population segment is the smallest division of a taxonomic species permitted to be protected under the U.S. Endangered Species Act. Species, as defined in the Act for listing purposes, is a taxonomic species or subspecies of plant or animal, or in the case of vertebrate species, a...
." The procedures are the same for both types except with the person/organization petition, there is a 90-day screening period.
During the listing process, economic factors cannot be considered, but must be " based solely on the best scientific and commercial data available." The 1982 amendment to the ESA added the word "solely" to prevent any consideration other than the biological status of the species. Congress rejected President Ronald Reagan's
Ronald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....
Executive Order 12291 which required economic analysis of all government agency actions. The House committee's statement was "that economic considerations have no relevance to determinations regarding the status of species."
The very opposite result happened with the 1978 amendment where Congress added the words "...taking into consideration the economic impact..." in the provision on critical habitat
Critical habitat
Critical habitat is a habitat area essential to the conservation of a listed species, though the area need not actually be occupied by the species at the time it is designated. This is a specific term and designation within the U.S...
designation.
The 1978 amendment linked the listing procedure with critical habitat designation and economic considerations, which almost completely halted new listings, with almost 2,000 species being withdrawn from consideration.
Listing process
After receiving a petition to list a species, the two federal agencies take the following steps, or rulemaking procedures, with each step being published in the Federal RegisterFederal Register
The Federal Register , abbreviated FR, or sometimes Fed. Reg.) is the official journal of the federal government of the United States that contains most routine publications and public notices of government agencies...
, the US government's official journal of proposed or adopted rules and regulations:
1. If a petition presents information that the species is imperiled, a screening period of 90 days begins (interested persons and/or organization petitions only). If the petition does not present substantial information to support listing, it is denied.
2. If the information is substantial, a status review is started, which is a comprehensive assessment of a species' biological status and threats, with a result of : "warranted", "not warranted," or "warranted but precluded."
- A finding of not warranted, the listing process ends.
- Warranted finding means the agencies publish a 12-month finding (a proposed rule) within one year of the date of the petition, proposing to list the species as threatened or endangered. Comments are solicited from the public, and one or more public hearings may be held. Three expert opinions from appropriate and independent specialists may be included, but is voluntary.
- A "warranted but precluded" finding is automatically recycled back through the 12-month process indefinitely until a result of either "not warranted" or "warranted" is determined. The agencies monitor the status of any "warranted but precluded" species.
Essentially the "warranted but precluded" finding is a deferral added by the 1982 amendment to the ESA. It means other, higher-priority actions will take precedence.
For example, an emergency listing of a rare plant growing in a wetland that is scheduled to be filled in for housing construction would be a "higher-priority".
3. Within another year, a final determination (a final rule) must be made on whether to list the species. The final rule time limit may be extended for 6 months and listings may be grouped together according to similar geography, threats, habitat or taxonomy.
The annual rate of listing (i.e., classifying species as "threatened" or "endangered") increased steadily from the Ford
Gerald Ford
Gerald Rudolph "Jerry" Ford, Jr. was the 38th President of the United States, serving from 1974 to 1977, and the 40th Vice President of the United States serving from 1973 to 1974...
administration (47 listings, 15 per year) through Carter
Jimmy Carter
James Earl "Jimmy" Carter, Jr. is an American politician who served as the 39th President of the United States and was the recipient of the 2002 Nobel Peace Prize, the only U.S. President to have received the Prize after leaving office...
(126 listings, 32 per year), Reagan
Ronald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....
(255 listings, 32 per year), George H. W. Bush
George H. W. Bush
George Herbert Walker Bush is an American politician who served as the 41st President of the United States . He had previously served as the 43rd Vice President of the United States , a congressman, an ambassador, and Director of Central Intelligence.Bush was born in Milton, Massachusetts, to...
(231 listings, 58 per year), and Clinton
William Clinton
Bill Clinton is the 42nd President of the United States. William Clinton may also refer to:*William de Clinton, 1st Earl of Huntingdon , English nobleman from prominent Norman family dating to William the Conqueror; Lord High Admiral as of 1333*William Henry Clinton , British general from...
(521 listings, 65 per year) before decline to its lowest rate under George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
(60 listings, 8 per year as of 5/24/08).
The rate of listing is strongly correlated with citizen involvement and mandatory timelines: as agency discretion decreases and citizen involvement increases (i.e. filing of petitions and lawsuits) the rate of listing increases. The longer species are listed, the more likely they are to be classified as recovering by the FWS.
Public notice, comments and judicial review
Public noticePublic notice
Public notice is a notice given to the public regarding certain types of legal proceedings.-By government:Public notices are issued by a government agency or legislative body in certain rulemaking or lawmaking proceeding....
is given through legal notices in newspapers, and communicated to state and county agencies within the species' area. Foreign nations may also receive notice of a listing.
A public hearing
Hearing (law)
In law, a hearing is a proceeding before a court or other decision-making body or officer, such as a government agency.A hearing is generally distinguished from a trial in that it is usually shorter and often less formal...
is mandatory if any person has requested one within 45 days of the published notice.
"The purpose of the notice and comment requirement is to provide for meaningful public participation in the rulemaking process." summarized the Ninth Circuit court in the case of Idaho Farm Bureau Federation v. Babbitt.
Critical habitat
The provision of the law in Section 4 that establishes critical habitatCritical habitat
Critical habitat is a habitat area essential to the conservation of a listed species, though the area need not actually be occupied by the species at the time it is designated. This is a specific term and designation within the U.S...
is a regulatory link between habitat protection and recovery goals, requiring the identification and protection of all lands, water and air necessary to recover endangered species.
To determine what exactly is critical habitat, the needs of open space for individual and population growth, food, water, light or other nutritional requirements, breeding sites, seed germination and dispersal needs, and lack of disturbances are considered.
As habitat loss is the primary threat to most imperiled species, the Endangered Species Act of 1973 allowed the Fish and Wildlife Service(FWS) and National Marine Fisheries Service(NMFS) to designate specific areas as protected "critical habitat" zones. In 1978, Congress amended the law to make critical habitat designation a mandatory requirement for all threatened and endangered species.
The amendment also added economics
Economy
An economy consists of the economic system of a country or other area; the labor, capital and land resources; and the manufacturing, trade, distribution, and consumption of goods and services of that area...
into the process of determining habitat: "...shall designate critical habitat...on the basis of the best scientific data available and after taking into consideration the economic impact, and any other impact, of specifying...area as critical habitat."
The congressional report on the 1978 amendment described the conflict between the new Section 4 additions and the rest of the law:
"... the critical habitat provision is a startling section which is wholly inconsistent with the rest of the legislation. It constitutes a loophole which could readily be abused by any Secretary ... who is vulnerable to political pressure or who is not sympathetic to the basic purposes of the Endangered Species Act."-- House of Representatives Report 95-1625, at 69 (1978)
The amendment of 1978 added economic considerations and the 1982 amendment prevented economic considerations.
Several studies on the effect of critical habitat designation on species' recovery rates have been done between 1997 and 2003. The Taylor study in 2003 found that, "species with critical habitat were... twice as likely to be improving...."
Critical habitats are required to contain "all areas essential to the conservation" of the imperiled species, and may be on private or public lands. The Fish and Wildlife Service has a policy limiting designation to lands and waters within the U.S. and both federal agencies may exclude essential areas if they determine that economic or other costs exceed the benefit. The ESA is mute about how such costs and benefits are to be determined.
All federal agencies are prohibited from authorizing, funding or carrying out actions that "destroy or adversely modify" critical habitats (Section 7(a) (2)). While the regulatory aspect of critical habitat does not apply directly to private and other non-federal landowners, large-scale development, logging
Logging
Logging is the cutting, skidding, on-site processing, and loading of trees or logs onto trucks.In forestry, the term logging is sometimes used in a narrow sense concerning the logistics of moving wood from the stump to somewhere outside the forest, usually a sawmill or a lumber yard...
and mining
Mining
Mining is the extraction of valuable minerals or other geological materials from the earth, from an ore body, vein or seam. The term also includes the removal of soil. Materials recovered by mining include base metals, precious metals, iron, uranium, coal, diamonds, limestone, oil shale, rock...
projects on private and state land typically require a federal permit and thus become subject to critical habitat regulations. Outside or in parallel with regulatory processes, critical habitats also focus and encourage voluntary actions such as land purchases, grant making, restoration, and establishment of reserves
Nature reserve
A nature reserve is a protected area of importance for wildlife, flora, fauna or features of geological or other special interest, which is reserved and managed for conservation and to provide special opportunities for study or research...
.
The ESA requires that critical habitat be designated at the time of or within one year of a species being placed on the endangered list. In practice, most designations occur several years after listing. Between 1978 and 1986 the FWS regularly designated critical habitat. In 1986 the Reagan Administration
Ronald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....
issued a regulation
Regulation
Regulation is administrative legislation that constitutes or constrains rights and allocates responsibilities. It can be distinguished from primary legislation on the one hand and judge-made law on the other...
limiting the protective status of critical habitat. As a result, few critical habitats were designated between 1986 and the late 1990s. In the late 1990s and early 2000s, a series of court order
Court order
A court order is an official proclamation by a judge that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out of certain steps by one or more parties to a case...
s invalidated the Reagan regulations and forced the FWS and NMFS to designate several hundred critical habitats, especially in Hawaii, California and other western states. Midwest and Eastern states received less critical habitat, primarily on rivers and coastlines. As of December, 2006, the Reagan regulation has not yet been replaced though its use has been suspended. Nonetheless, the agencies have generally changed course and since about 2005 have tried to designate critical habitat at or near the time of listing.
Most provisions of the ESA revolve around preventing extinction. Critical habitat is one of the few that focuses on recovery. Species with critical habitat are twice as likely to be recovering as species without critical habitat.
Plans, permits, and agreements
The combined result of the amendments to the Endangered Species Act have created a law vastly different from the ESA of 1973. It is now a flexible, permitting statute. For example, the law now permits "incidental takes" (accidental killing or harming a listed species). Congress added the requirements for "incidental take statement", and authorized a "incidental take permit" in conjunction with "habitat conservation plans".More changes were made in the 1990s in an attempt by Secretary of the Interior Bruce Babbitt
Bruce Babbitt
Bruce Edward Babbitt , a Democrat, served as United States Secretary of the Interior and as the 16th governor of Arizona, from 1978 to 1987.-Biography:...
to shield the ESA from a Congress hostile to the law. He instituted incentive-based strategies such as candidate conservation agreements and "safe harbor" agreements that would balance the goals of economic development and conservation.
Recovery plan
Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) are required to create an Endangered Species Recovery Plan outlining the goals, tasks required, likely costs, and estimated timeline to recover endangered species (i.e., increase their numbers and improve their management to the point where they can be removed from the endangered list). The ESA does not specify when a recovery plan must be completed. The FWS has a policy specifying completion within three years of the species being listed, but the average time to completion is approximately six years. The annual rate of recovery plan completion increased steadily from the Ford administration (4) through Carter (9), Reagan (30), Bush I (44), and Clinton (72), but declined under Bush II (16 per year as of 9/1/06).The goal of the law is to make itself unnecessary, and recovery plans are a means toward that goal. Recovery plans became more specific after 1988 when Congress added provisions to Section 4(f) of the law that spelled out the minimum contents of a recovery plan. Three types of information must be included:
- A description of "site-specific" management actions to make the plan as explicit as possible.
- The "objective, measurable criteria" to serve as a baseline for judging when and how well a species is recovering.
- An estimate of money and resources needed to achieve the goal of recovery and delisting.
The amendment also added public
Public
In public relations and communication science, publics are groups of individuals, and the public is the totality of such groupings. This is a different concept to the sociological concept of the Öffentlichkeit or public sphere. The concept of a public has also been defined in political science,...
participation to the process. There is a ranking order, similar to the listing procedures, for recovery plans, with the highest priority being for species most likely to benefit from recovery plans, especially when the threat is from construction, or other developmental or economic activity. Recovery plans cover domestic and migratory species.
Exemptions
Exemptions can and do occur. The ESA requires federal agencies to consult with the US Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) if any project occurs in the habitat of a listed species. An example of such a project might be a timber harvest proposed by the US Forest Service. If the timber harvest could impact a listed species, a biological assessment is prepared by the Forest Service and reviewed by the FWS or NMFS or both.The question to be answered is whether a listed species will be harmed by the action and, if so, how the harm can be minimized. If harm cannot be avoided, the project agency can seek an exemption from the Endangered Species Committee, an ad hoc panel composed of members from the executive branch and at least one appointee from the state where the project is to occur. Five of the seven committee members must vote for the exemption to allow taki ng (to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or significant habitat modification, or to attempt to engage in any such conduct) of listed species.
Long before the exemption is considered by the Endangered Species Committee, the Forest Service, and either the FWS or the NMFS will have consulted on the biological implications of the timber harvest. The consultation can be informal, to determine if harm may occur; and then formal if the harm is believed to be likely. The questions to be answered in these consultations are whether the species will be harmed, whether the habitat will be harmed and if the action will aid or hinder the recovery of the listed species.
The Committee must make a decision on the exemption within 30 days, when its findings are published in the Federal Register. The findings can be challenged in federal court. In 1992, one such challenge was the case of Portland Audubon Society v. Endangered Species Committee heard in the Ninth Circuit Court of Appeals.
The court found that three members had been in illegal ex parte contact with the then-President George H.W. Bush, a violation of the Administrative Procedures Act. The committee's exemption was for the Bureau of Land Management
Bureau of Land Management
The Bureau of Land Management is an agency within the United States Department of the Interior which administers America's public lands, totaling approximately , or one-eighth of the landmass of the country. The BLM also manages of subsurface mineral estate underlying federal, state and private...
's timber sale and "incidental takes" of the endangered Northern Spotted Owl in Oregon.
There have been six instances as of 2009 in which the exemption process was initiated. Of these six, one was granted, one was partially granted, one was denied and three were withdrawn.
Donald Baur, in The Endangered Species Act: law, policy, and perspectives, concluded," ... the exemption provision is basically a nonfactor in the administration of the ESA. A major reason, of course, is that so few consultations result in jeopardy opinions, and those that do almost always result in the identification of reasonable and prudent alternatives to avoid jeopardy."
Habitat Conservation Plans
More than half of habitat for listed species is on non-federal property, owned by citizens, states, local governments, tribal governments and private organizations. Before the law was amended in 1982, a listed species could be taken only for scientificBiology
Biology is a natural science concerned with the study of life and living organisms, including their structure, function, growth, origin, evolution, distribution, and taxonomy. Biology is a vast subject containing many subdivisions, topics, and disciplines...
or research purposes. The amendment created a permit process to circumvent the take prohibition called a Habitat Conservation Plan
Habitat Conservation Plan
A Habitat conservation plan is a plan prepared under the Endangered Species Act by nonfederal parties wishing to obtain permits for incidental taking of threatened and endangered species....
or HCP to give incentives to non-federal land managers and private landowners to help protect listed and unlisted species, while allowing economic development that may harm ("take") the species.
The US Fish and Wildlife Service defines the process as: "The purpose of the habitat conservation planning process associated with the permit is to ensure there is adequate minimizing and mitigating of the effects of the authorized incidental take. The purpose of the incidental take permit is to authorize the incidental take of a listed species, not to authorize the activities that result in take."
The person or organization submits a HCP and if approved by the agency (FWS or NMFS), will be issued an Incidental Take Permit
Incidental Take Permit
An incidental take permit is a permit issued under Section 10 of the Federal Endangered Species Act to private, non-federal entities undertaking otherwise lawful projects that might result in the take of an endangered or threatened species...
(ITP) which allows a certain number of "takes" of the listed species. The permit may be revoked at any time and can allow incidental takes for varying amounts of time. For instance, the San Bruno Habitat Conservation Plan/ Incidental Take Permit is good for 30 years and the Wal-Mart store (in Florida) permit expires after one year. Because the permit is issued by a federal agency to a private party, it is a federal action-which means other federal laws can apply, such as the National Environmental Policy Act
National Environmental Policy Act
The National Environmental Policy Act is a United States environmental law that established a U.S. national policy promoting the enhancement of the environment and also established the President's Council on Environmental Quality ....
or NEPA. A notice of the permit application action is published in the Federal Register and a public comment period of 30 to 90 days begins.
The US Congress was urged to create the exemption by proponents of a conservation plan on San Bruno Mountain
San Bruno Mountain
San Bruno Mountain in northern San Mateo County, California is the northernmost part of the Santa Cruz Mountains. Most of the mountain lies within the San Bruno Mountain State Park, a unique open-space island in the midst of the San Francisco Peninsula's urbanization. Next to the state park is the...
, California that was drafted in the early 1980s and is the first HCP in the nation. In the conference report on the 1982 amendments, Congress specified that it intended the San Bruno plan to act "as a model" for future conservation plans developed under the incidental take exemption provision and that "the adequacy of similar conservation plans should be measured against the San Bruno plan". Congress further noted that the San Bruno plan was based on "an independent exhaustive biological study" and protected at least 87% of the habitat of the listed butterflies that led to the development of the HCP.
Growing scientific recognition of the role of private lands for endangered species recovery and the landmark 1981 court decision in Palila v. Hawaii Department of Land and Natural Resources both contributed to making Habitat Conservation Plans/ Incidental Take Permits "a major force for wildlife conservation and a major headache to the development community", wrote Robert D.Thornton in the 1991 Environmental Law article, Searching for Consensus and Predictability: Habitat Conservation Planning under the Endangered Species Act of 1973.
"No Surprises" rule
The "No Surprises" rule is meant to protect the landowner if "unforeseen circumstances" occur which make the landowner's efforts to prevent or mitigate harm to the species fall short. The "No Surprises" policy may be the most controversial of the recent reforms of the law, because once an Incidental Take Permit is granted, the Fish and Wildlife Service (FWS) loses much ability to further protect a species if the mitigation measures by the landowner prove insufficient. The landowner or permittee would not be required to set aside additional land or pay more in conservation money. The federal government would have to pay for additional protection measures."Safe Harbor" agreements
The "Safe Harbor" agreement is a voluntary agreement between the private landowner and FWS. The landowner agrees to alter the property to benefit or even attract a listed or proposed species in exchange for assurances that the FWS will permit future "takes"above a pre-determined level. The policy relies on the "enhancement of survival" provision of Section §1539(a)(1)(A). A landowner can have either a "Safe Harbor" agreement or an Incidental Take Permit, or both. The policy was developed by the Clinton Administration in 1999.Candidate Conservation Agreements
The Candidate Conservation Agreement is closely related to the "Safe Harbor" agreement, the main difference is that the Candidate Conservation Agreements With Assurances(CCA) are meant to protect unlisted species by providing incentives to private landowners and land managing agencies to restore, enhance or maintain habitat of unlisted species which are declining and have the potential to become threatened or endangered if critical habitat is not protected. The FWS will then assure that if, in the future the unlisted species becomes listed, the landowner will not be required to more than already agreed upon in the CCA.Experimental Populations
The Experimental Population Provision encourages introductions of species into formerly occupied or new habitat without the full range of legal restrictions for endangered species. The provision was added to the act in 1982 to encourage landowner support for species survival and recovery. Experimental populations could be used for the assisted migrationAssisted migration
Assisted migration is the practice of deliberately populating members of a species from their present habitat to a new region with the intent of establishing a permanent presence there, generally in response to the degradation of the natural habitat due to human action...
of endangered species.
Delisting
There is also "downlisting" of a species where some of the threats have been controlled and the population has met recovery objectives, then the species can be reclassified to "threatened" from "endangered"
Two examples of animal species recently delisted are: the Virginia northern flying squirrel
Northern Flying Squirrel
The Northern flying squirrel is one of two species of the genus Glaucomys, the only flying squirrels found in North America . Unlike most members of their family, flying squirrels are strictly nocturnal...
(subspecies) on August, 2008, which had been listed since 1985, and the gray wolf
Gray Wolf
The gray wolf , also known as the wolf, is the largest extant wild member of the Canidae family...
(Northern Rocky Mountain DPS). On April 15, 2011, President Obama signed the Department of Defense and Full-Year Appropriations Act of 2011. A section of that Appropriations Act directed the Secretary of the Interior to reissue within 60 days of enactment the final rule published on April 2, 2009, that identified the Northern Rocky Mountain population of gray wolf (Canis lupus) as a distinct population segment (DPS) and to revise the List of Endangered and Threatened Wildlife by removing most of the gray wolves in the DPS.
The US Fish and Wildlife Service's delisting report has two plants that have recovered; Eggert's sunflower (Helianthus eggertii) and Robbins' cinquefoil (Potentilla robbinsiana
Potentilla robbinsiana
Potentilla robbinsiana is a small, yellow-flowered, perennial found exclusively above the tree line in the White Mountains of New Hampshire...
), an alpine
Alpine plant
Alpine plants are plants that grow in the alpine climate, which occurs at high elevation and above the tree line. Alpine plants grow together as a plant community in alpine tundra.-Alpine plant diversity:...
wildflower found only in the White Mountains
White Mountains (New Hampshire)
The White Mountains are a mountain range covering about a quarter of the state of New Hampshire and a small portion of western Maine in the United States. Part of the Appalachian Mountains, they are considered the most rugged mountains in New England...
of New Hampshire.
Positive effects
, fifty-one species have been delisted; twenty-three due to recovery, ten due to extinction (seven of which are believed to have been extinct prior to being listed), ten due to changes in taxonomic classification practices, six due to discovery of new populations, one due to an error in the listing rule, and one due to an amendment to the Endangered Species Act specifically requiring the species delisting. Twenty-five others have been down listed from "endangered" to "threatened" status.Some have argued that the recovery of DDT-threatened species such as the bald eagle
Bald Eagle
The Bald Eagle is a bird of prey found in North America. It is the national bird and symbol of the United States of America. This sea eagle has two known sub-species and forms a species pair with the White-tailed Eagle...
, brown pelican
Brown Pelican
The Brown Pelican is the smallest of the eight species of pelican, although it is a large bird in nearly every other regard. It is in length, weighs from and has a wingspan from .-Range and habits:...
and peregrine falcon
Peregrine Falcon
The Peregrine Falcon , also known as the Peregrine, and historically as the Duck Hawk in North America, is a widespread bird of prey in the family Falconidae. A large, crow-sized falcon, it has a blue-gray back, barred white underparts, and a black head and "moustache"...
should be attributed to the 1972 congressional ban on DDT
DDT
DDT is one of the most well-known synthetic insecticides. It is a chemical with a long, unique, and controversial history....
rather than the Endangered Species Act, however, the listing of these species as endangered was a substantial cause of Congress instituting the ban and many non-DDT oriented actions were taken on their behalf under the Endangered Species Act (i.e. captive breeding, habitat protection, and protection from disturbance).
As of July 29, 2009, there are 1,890 total (foreign and domestic) species on the threatened and endangered lists. However, many species have become extinct while on the candidate list or otherwise under consideration for listing.
- Bald EagleBald EagleThe Bald Eagle is a bird of prey found in North America. It is the national bird and symbol of the United States of America. This sea eagle has two known sub-species and forms a species pair with the White-tailed Eagle...
(increased from 417 to 11,040 pairs between 1963 and 2007); removed from list 2007 - Whooping CraneWhooping CraneThe whooping crane , the tallest North American bird, is an endangered crane species named for its whooping sound. Along with the Sandhill Crane, it is one of only two crane species found in North America. The whooping crane's lifespan is estimated to be 22 to 24 years in the wild...
(increased from 54 to 436 birds between 1967 and 2003) - Kirtland's WarblerKirtland's WarblerKirtland's Warbler is a small songbird of the New World warbler family , named after Jared P. Kirtland, an Ohio doctor and amateur naturalist. Nearly extinct just 50 years ago, it is well on its way to recovery. It requires large areas of dense young jack pine for its breeding habitat...
(increased from 210 to 1,415 pairs between 1971 and 2005) - Peregrine FalconPeregrine FalconThe Peregrine Falcon , also known as the Peregrine, and historically as the Duck Hawk in North America, is a widespread bird of prey in the family Falconidae. A large, crow-sized falcon, it has a blue-gray back, barred white underparts, and a black head and "moustache"...
(increased from 324 to 1,700 pairs between 1975 and 2000); removed from list - Gray WolfGray WolfThe gray wolf , also known as the wolf, is the largest extant wild member of the Canidae family...
(populations increased dramatically in the Northern Rockies, Southwest, and Great Lakes) - Gray WhaleGray WhaleThe gray whale, Eschrichtius robustus, is a baleen whale that migrates between feeding and breeding grounds yearly. It reaches a length of about , a weight of , and lives 50–70 years. The common name of the whale comes from the gray patches and white mottling on its dark skin. Gray whales were...
(increased from 13,095 to 26,635 whales between 1968 and 1998); removed from list (Debated because whaling was banned before the ESA was set in place and that the ESA had nothing to do with the natural population increase since the cease of massive whaling [excluding Native American tribal whaling]) - Grizzly bearGrizzly BearThe grizzly bear , also known as the silvertip bear, the grizzly, or the North American brown bear, is a subspecies of brown bear that generally lives in the uplands of western North America...
(increased from about 271 to over 580 bears in the Yellowstone area between 1975 and 2005); removed from list 3/22/07 - California’s Southern Sea OtterSea OtterThe sea otter is a marine mammal native to the coasts of the northern and eastern North Pacific Ocean. Adult sea otters typically weigh between 14 and 45 kg , making them the heaviest members of the weasel family, but among the smallest marine mammals...
(increased from 1,789 in 1976 to 2,735 in 2005) - San Clemente Indian PaintbrushIndian PaintbrushIndian Paintbrush most often refers to:* Castilleja spp.Indian Paintbrush may also refer to:* Butterfly weed* Hawkweed* Steven Rales' production company, whose productions include The Darjeeling Limited, Towelhead and Fantastic Mr. Fox...
(increased from 500 plants in 1979 to more than 3,500 in 1997) - Red WolfRed WolfThe red wolf is a North American canid which once roamed throughout the Southeastern United States and is a glacial period survivor of the Late Pleistocene epoch...
(increased from 17 in 1980 to 257 in 2003) - Florida's Key DeerKey DeerThe Key Deer is an endangered deer that lives only in the Florida Keys. It is a subspecies of the White-tailed deer .-Physical description and behavior:...
(increased from 200 in 1971 to 750 in 2001) - Big Bend GambusiaBig bend gambusiaThe Big Bend gambusia is a rare species of fish in the Poeciliidae family. It is endemic to the Big Bend region of the Rio Grande of the United States and Mexico. The only known remaining population is in a protected pond in the Big Bend National Park.This livebearer is about 2 inches long. It...
(increased from a couple dozen to a population of over 50,000) - Hawaiian GooseHawaiian GooseThe Nene, also known as Nēnē and Hawaiian Goose, is a species of goose endemic to the Hawaiian Islands. The official bird of the state of Hawaii, the Nene is exclusively found in the wild on the islands of Maui, Kauai and Hawaii...
(increased from 400 birds in 1980 to 1,275 in 2003) - Virginia Big-Eared Bat (increased from 3,500 in 1979 to 18,442 in 2004)
- Black-Footed FerretBlack-footed FerretThe Black-footed Ferret , also known as the American polecat or Prairie Dog Hunter, is a species of Mustelid native to central North America. It is listed as endangered by the IUCN, because of its very small and restricted populations...
(increased from 18 in 1986 to 600 in 2006)
Negative consequences
Opponents of the Endangered Species Act argue that it may encourage preemptive habitat destruction by landowners who fear losing the use of their land because of the presence of an endangered species; known colloquially as "Shoot, Shovel and Shut-Up". One example of such perverse incentivePerverse incentive
A perverse incentive is an incentive that has an unintended and undesirable result which is contrary to the interests of the incentive makers. Perverse incentives are a type of unintended consequences.- Examples :...
s is the case of a forest owner who, in response to ESA listing of the red-cockaded woodpecker
Red-cockaded Woodpecker
The Red-cockaded Woodpecker is a woodpecker found in southeastern North America.- Description :About the size of the Northern Cardinal, it is approximately 8.5 in. long, with a wingspan of about 14 in. and a weight of about 1.5 ounces...
, increased harvesting and shortened the age at which he harvests his trees to ensure that they do not become old enough to become suitable habitat. While no studies have shown that the Act's negative effects, in total, exceed the positive effects, many economists believe that finding a way to reduce such perverse incentives would lead to more effective protection of endangered species.
State endangered species lists
Section 6 of the Endangered Species Act provided funding for development of programs for management of threatened and endangered species by state wildlife agencies. Subsequently, lists of endangered and threatened species within their boundaries have been prepared by each state. These state lists often include species which are considered endangered or threatened within a specific state but not within all states, and which therefore are not included on the national list of endangered and threatened species. Examples include Florida, Minnesota, and Maine.Penalties
There are different degrees of violation with the law. The most punishable offenses are trafficking,and any act of knowingly "taking" (which includes harming, wounding, or killing) an endangered species.
The penalties for these violations can be a maximum fine of up to $50,000 or imprisonment for one year, or both, and civil penalties of up to $25,000 per violation, may be assessed. Lists of violations and exact fines are available through the National Oceanic and Atmospheric Administration
National Oceanic and Atmospheric Administration
The National Oceanic and Atmospheric Administration , pronounced , like "noah", is a scientific agency within the United States Department of Commerce focused on the conditions of the oceans and the atmosphere...
web-site.
One provision of this law is that no penalty may be imposed if, by a preponderance of the evidence that the act was in self defense. The law also eliminates criminal penalties for accidentally killing listed species during farming and ranching activities.
In addition to fines or imprisonment, a license, permit, or other agreement issued by a Federal Agency that authorized an individual to import or export fish, wildlife, or plants may be revoked, suspended or modified. Any federal hunting or fishing permits that were issued to a person who violates the ESA can be canceled or suspended for up to a year.
Use of money received through violations of the ESA
A reward will be paid to any person who furnishes information which leads to an arrest, conviction, or revocation of a license, so long as they are not a local, state, or federal employee in the performance of official duties. The Secretary may also provide reasonable and necessary costs incurred for the care of fish, wildlife, or plant pending the violation caused by the criminal. If the balance ever exceeds $500,000 the Secretary of the Treasury is required to deposit an amount equal to the excess into the cooperative endangered species conservation fund.See also
- Critical habitatCritical habitatCritical habitat is a habitat area essential to the conservation of a listed species, though the area need not actually be occupied by the species at the time it is designated. This is a specific term and designation within the U.S...
- Endangered Species Act Amendments of 1978Endangered Species Act Amendments of 1978The Endangered Species Act was first passed in 1973 and forms the basis of biodiversity and endangered species protection in the United States. The original purpose of the Endangered Species Act of 1973 was to prevent species endangerment and extinction due to the human impact on natural...
- List of endangered species in North America
- Lujan v. Defenders of WildlifeLujan v. Defenders of WildlifeLujan v. Defenders of Wildlife, , was a United States Supreme Court case decided on June 12, 1992, in which the court held that a group of American wildlife conservation and other environmental organizations lacked standing to challenge regulations jointly issued by the U.S...
- Marine Mammal Protection ActMarine Mammal Protection ActThe Marine Mammal Protection Act of 1972 was the first article of legislation to call specifically for an ecosystem approach to natural resource management and conservation. MMPA prohibits the taking of marine mammals, and enacts a moratorium on the import, export, and sale of any marine mammal,...
- National Oceanic and Atmospheric AdministrationNational Oceanic and Atmospheric AdministrationThe National Oceanic and Atmospheric Administration , pronounced , like "noah", is a scientific agency within the United States Department of Commerce focused on the conditions of the oceans and the atmosphere...
External links
- ENDANGERED SPECIES ACT OF 1973 accessed November 11, 2011
- Cornell University Law School-Babbit v. Sweet Home accessed July 25, 2005 The 1995 decision on whether significant habitat modifications on private property that actually kill species constitute "harm" for purposes of the ESA.
- Center for Biological Diversity accessed July 25, 2005
- U.S. Fish and Wildlife web pages discussing Endangered Species Habitat Conservation Planning
- USFWS ESA Main Page accessed October 27, 2004
- Full text of US Code-ESA accessed October 27, 2004
- History and Evolution of the Endangered Species Act of 1973 accessed October, 1996
- The 1978 decision related to the ESA and the snail darter. accessed July, 2005
- USFWS numerical summary of listed species in US and elsewhere