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Endangered Species Act of 1973

December 07, 2023

The Endangered Species Act of 1973 (ESA or "The Act"; 16 U.S.C. § 1531 et seq.) is the primary law in the United States for protecting and conserving imperiled species. Designed to protect critically imperiled species from extinction as a "consequence of economic growth and development untempered by adequate concern and conservation", the ESA was signed into law by President Richard Nixon on December 28, 1973. The Supreme Court of the United States described it as "the most comprehensive legislation for the preservation of endangered species enacted by any nation".[1] The purposes of the ESA are two-fold: to prevent extinction and to recover species to the point where the law's protections are not needed. It therefore "protect[s] species and the ecosystems upon which they depend" through different mechanisms. For example, section 4 requires the agencies overseeing the Act to designate imperiled species as threatened or endangered. Section 9 prohibits unlawful ‘take,’ of such species, which means to "harass, harm, hunt..." Section 7 directs federal agencies to use their authorities to help conserve listed species. The Act also serves as the enacting legislation to carry out the provisions outlined in The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).[2] The Supreme Court found that "the plain intent of Congress in enacting" the ESA "was to halt and reverse the trend toward species extinction, whatever the cost."[1] The Act is administered by two federal agencies, the United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS).[3] FWS and NMFS have been delegated by the Act with the authority to promulgate any rules and guidelines within the Code of Federal Regulations (CFR) to implement its provisions.

Endangered Species Act of 1973
Other short titlesEndangered Species Act of 1973
Long titleAn Act to provide for the conservation of endangered and threatened species of fish, wildlife, and plants, and for other purposes.
Acronyms (colloquial)ESA
NicknamesEndangered Species Conservation Act
Enacted bythe 93rd United States Congress
EffectiveDecember 27, 1973
Citations
Public law93–205
Statutes at Large87 Stat. 884
Codification
Titles amended16 U.S.C.: Conservation
U.S.C. sections created16 U.S.C. ch. 35 §§ 1531-1544.
Legislative history
  • Introduced in the Senate as S. 1983 by Harrison A. Williams (D–NJ) on June 12, 1973
  • Committee consideration by Senate Commerce Committee
  • Passed the Senate on July 24, 1973 (92–0)
  • Passed the House on September 18, 1973 (390–12, in lieu of H.R. 37)
  • Reported by the joint conference committee on December 19, 1973; agreed to by the Senate on December 19, 1973 (agreed) and by the House on December 20, 1973 (355–4)
  • Signed into law by President Richard Nixon on December 28, 1973
Major amendments
  • Pub. L.Tooltip Public Law (United States) 95–632, 92 Stat. 3751, enacted November 10, 1978
  • Pub. L.Tooltip Public Law (United States) 96–159, 93 Stat. 1225, enacted December 28, 1979
  • Pub. L.Tooltip Public Law (United States) 97–304, 96 Stat. 1411, enacted October 13, 1982
United States Supreme Court cases
List

History edit

Calls for wildlife conservation in the United States increased in the early 1900s because of the visible decline of several species. One example was the near-extinction of the bison, which used to number in the tens of millions. Similarly, the extinction of the passenger pigeon, which numbered in the billions, also caused concern.[4] The whooping crane also received widespread attention as unregulated hunting and habitat loss contributed to a steady decline in its population. By 1890, it had disappeared from its primary breeding range in the north central United States.[5] Scientists of the day played a prominent role in raising public awareness about the losses. For example, George Bird Grinnell highlighted bison decline by writing articles in Forest and Stream.[6]

To address these concerns, Congress enacted the Lacey Act of 1900. The Lacey Act was the first federal law that regulated commercial animal markets.[7] It also prohibited the sale of illegally killed animals between states. Other legislation followed, including the Migratory Bird Conservation Act, a 1937 treaty prohibiting the hunting of right and gray whales, and the Bald and Golden Eagle Protection Act of 1940.[8]

Endangered Species Preservation Act of 1966 edit

 
Whooping crane

Despite these treaties and protections, many populations still continued to decline. By 1941, only an estimated 16 whooping cranes remained in the wild.[9] By 1963, the bald eagle, the U.S. national symbol, was in danger of extinction. Only around 487 nesting pairs remained.[10] Loss of habitat, shooting, and DDT poisoning contributed to its decline.

The U.S. Fish and Wildlife Service tried to prevent the extinction of these species. Yet, it lacked the necessary Congressional authority and funding.[11] In response to this need, Congress passed the Endangered Species Preservation Act (Pub. L.Tooltip Public Law (United States) 89–669) on October 15, 1966. The Act initiated a program to conserve, protect, and restore select species of native fish and wildlife.[12] As a part of this program, Congress authorized the Secretary of the Interior to acquire land or interests in land that would further the conservation of these species.[13]

The Department of Interior issued the first list of endangered species in March 1967. It included 14 mammals, 36 birds, 6 reptiles, 6 amphibians, and 22 fish.[14] A few notable species listed in 1967 were the grizzly bear, American alligator, Florida manatee, and bald eagle. The list included only vertebrates at the time because of the Department of Interior's limited definition of "fish and wildlife."[13]

The Endangered Species Preservation Act was repealed by the Endangered Species Act.

Endangered Species Conservation Act of 1969 edit

Main article: Endangered Species Conservation Act of 1969

The Endangered Species Conservation Act of 1969 (Pub. L.Tooltip Public Law (United States) 91–135) amended the Endangered Species Preservation Act of 1966. It established a list of species in danger of worldwide extinction. It also expanded protections for species covered in 1966 and added to the list of protected species. While the 1966 Act only applied to ‘game’ and wild birds, the 1969 Act also protected mollusks and crustaceans. Punishments for poaching or unlawful importation or sale of these species were also increased. Any violation could result in a $10,000 fine or up to one year of jail time.[15]

Notably, the Act called for an international convention or treaty to conserve endangered species.[16] A 1963 IUCN resolution called for a similar international convention.[17] In February, 1973 a meeting in Washington, D.C., was convened. This meeting produced the comprehensive multilateral treaty known as CITES or the Convention on International Trade of Endangered Species of Wild Fauna and Flora.[18]

The Endangered Species Conservation Act of 1969 provided a template for the Endangered Species Act of 1973 by using the term "based on the best scientific and commercial data." This standard is used as a guideline to determine if a species is in danger of extinction.

Passage of the 1973 Act edit

In 1972, President Nixon declared current species conservation efforts to be inadequate.[19] He 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 (Pub. L.Tooltip Public Law (United States) 93–205).

It was written by a team of lawyers and scientists, including Dr. Russell E. Train, the first appointed head of the Council on Environmental Quality (CEQ), an outgrowth of the National Environmental Policy Act (NEPA) of 1969.[20][21] Dr. Train was assisted by a core group of staffers, including Dr. Earl Baysinger at EPA, Dick Gutting, and Dr. Gerard A. "Jerry" Bertrand, a Ph.D. Marine Biologist by training (Oregon State University, 1969), who had transferred from his post as the senior scientific adviser to the Commandant of the U.S. Army Corps of Engineers, office of the Commandant of the Corps., to join the newly formed White House Council on Environmental Quality. The staff, under Dr. Train's leadership, incorporated dozens of new principles and ideas into the landmark legislation but also incorporated previous laws, as was desired by Congressman John Dingle (D-Michigan) when he first proposed the idea of an "Endangered Species Act", crafting a document that completely changed the direction of environmental conservation in the United States. Among the staff, Dr. Bertrand is credited with having written major parts of the Act, including the infamous "takings" clause, 16 U.S.C. § 1538. "We didn't know what we couldn't do," Dr. Bertrand has said about the Act. "We were doing what we thought was scientifically valid and right for the environment."[22]

New Features of the 1973 Act edit

The Endangered Species Act is administered by two federal agencies, the United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS). NMFS 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.

It consists of 17 sections. Key legal requirements include:

  • The federal government must determine whether species are endangered or threatened. If so, they must list the species for protection under the ESA (Section 4).
  • If determinable, critical habitat must be designated for listed species (Section 4).
  • Absent certain limited situations (Section 10), it is illegal to "take" an endangered species (Section 9). "Take" can mean kill, harm, or harass (Section 3).
  • Federal agencies will use their authorities to conserve endangered species and threatened species (Section 7).
  • Federal agencies cannot jeopardize listed species' existence or destroy critical habitat (Section 7).
  • Any import, export, interstate, and foreign commerce of listed species is generally prohibited (Section 9).
  • Endangered fish or wildlife cannot be taken without a take permit. This also applies to certain threatened animals with section 4(d) rules (Section 10).

The 1973 Act is considered a landmark conservation law. Academic researchers have referred to it as "one of the nation's most significant environmental laws."[11] It has also been called "one of the most powerful environmental statutes in the U.S. and one of the world’s strongest species protection laws."[23] The Act itself has been amended four times: 1978, 1982, 1988,[11] and 1992.[24] Formal regulations published in the Federal Register that specify how the Act will be implemented have also changed through time.[11] In recent years, U.S. presidential elections that greatly shift environmental priorities have culminated in regulatory shifts in endangered species management back and forth.[25][26] Congressional elections also affect implementation of the Act via expansions or contractions in annual funding decisions for the agencies.[24]

Plants become eligible for listing edit

A distinction of the 1973 Act was that, unlike the previous legislation, plants were now eligible for listing. Historians attribute this new-found concern for imperiled plants to ongoing global treaty negotiations (especially in 1972 and 1973) toward what would eventually be adopted in 1975[27] under the title, Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Prior to this time, attention to the conservation needs of native plants had been stalled by complications that do not pertain to animals. How to adequately distinguish plants illegally collected in the wild from plants propagated from seeds or cuttings taken from horticultural specimens was among the points of contention.[27] Ultimately, federal authority over enforcement of endangered plant protections has centered on regulation of interstate commerce of such plants.[28] This legal distinction for plants became controversial in practice when a group of citizens, Torreya Guardians, chose to help an endangered glacial relict plant, Florida Torreya, move to cooler poleward climates before conservation professionals were ready to begin their own experimentation with assisted migration of endangered species.[29] Because movements of seeds and seedlings by this group was both noncommercial and based on horticulturally produced seeds and seedlings, there was no legal apparatus to halt their actions.[28]

Two categories for listing species edit

The Act distinguished two grades of species for listing: "endangered" and a lesser category called "threatened". The aim for the lesser category was to enable protective actions by federal agencies at an earlier time, such that the causes of population decline might be corrected before emergency concerns developed.[11] Ever after ensued opposing opinions as to whether and what differences in recovery plan elements and thus management policies and restrictions should distinguish "threatened" from "endangered."[11][26]

Recovery plans must be made and published edit

A key provision of the 1973 Act was that "preventing extinction" would no longer be sufficient. Rather "recovery" of listed species, such that "delisting" could become possible was now a stated goal. "Recovery plans" were now to be developed and published by the two agencies in charge: the United States Fish and Wildlife Service and the National Marine Fisheries Service.[11] In practice, recovery plans usually include population targets and "objective, measurable criteria" that would constitute adequate reduction of threats and provision of habitat protection" such that delisting (or down-listing from "endangered" to "threatened") would be warranted.[11]

"Critical habitat" may be designated edit

The 1973 Act introduced the concept of, what is now called "critical habitat" in only one brief passage. Section 7 required federal agencies to ensure that actions they authorized, funded, or carried out would not result in "the destruction or modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical.”[11] When the Act was amended in 1978, "critical habitat" was given a definition and basic terms for how it would be determined and used.[11] (As will be seen in the "Controversies" section, this provision was sometimes challenging to implement for both scientific and political reasons.)

Citizens can petition for listing species edit

A review of the Act published in 2009 recounted the unavoidable problems that arose from granting opportunities even for citizens to submit petitions for species listing:

Soon after the Endangered Species Act was enacted, Congress recognized that at any given time there were likely to be more species potentially eligible for listing than the Service could address through the rule-making process. As a result, Congress in 1979 directed the Service to develop a prioritization system that would enable it to determine which of the potentially eligible species should be considered first. The Service responded with listing priority guidance that established a hierarchy of priorities based first on the magnitude of threat, then upon its imminence, and finally upon taxonomic distinctiveness (with monotypic genera ranked ahead of other species, and full species ranked ahead of subspecies.[11]

Requirements that listing decisions be made based on scientific evidence and considerations, coupled with an inability of the agencies to expand and contract staffing based on shifts in the volume of outstanding petitions, induced Congress in 1982 to amend the Act by establishing deadlines for agency decisions.[11] As of 2023, those deadlines still nominally apply, but in practice it is rare for a petitioner to approach the judicial system to force a decision before the agency is able to finish the job on its own timetable.[11]

Challenges and Controversies edit

In 2023, with this Congressional act achieving its 50th anniversary, journalists were prompted to report on the act's outcomes and controversies. Congressional overturning of several recent listings and ability to hamper implementation by restricting agency funding are among the points mentioned.[30] Other challenges and long-term controversies are summarized in this section.

Economic consequences and perverse incentives edit

A challenge attributed to the Act, though debated often, is the cost conferred on private land owners and various industries. These costs may come in the form of lost opportunity or slowing down operations to comply with the regulations put forth in the Act. For example, the requirement to consult with the relevant agencies on federal projects has at times slowed operations by the oil and gas industry, including exploration or development on federal lands rich in fossil fuels. [31]

One widely-held opinion thus is that the protections afforded to listed species curtail economic activity.[32] In the extreme, economic consequences can induce perverse incentives by which landowners actively curtail their lands from attracting endangered species. An example in the eastern USA pertains to the endangered red-cockaded woodpecker. A study of some 1,000 privately owned forest plots within the range of the woodpecker found that when landowners observed pine growth maturing to a stage in which it might attract nesting woodpeckers, they were more likely to harvest — regardless of timber prices at the time.[33] This is a form of intentional habitat destruction for avoiding economic consequences.

Legislators have expressed that the ESA has been "weaponized," particularly against western states, constraining state government choices about the use of public lands.[34] The case of the protracted dispute over the greater sage-grouse is one such example,[35] and the spotted owl is another.[36] In the extreme is the largely western saying pertaining to endangered animals, such as wolves: "shoot, shovel, and shut up." [37] In 2018, Rep. Don Young (Alaska), the longest-serving Republican congressman, said, "As the one person in the Congress, the only one, that voted for the Endangered Species Act, please beat me with a whip."[38]

Some economists have stated that finding a way to reduce such perverse incentives would lead to more effective protection of endangered species.[39] One suggestion for ending perverse incentives would be to compensate property owners for protecting endangered species, rather than having an endangered species regarded as a potential financial loss.[37]

As well, while the standard to prevent jeopardy or adverse modification applies only to federal activities, non-federal activities are subject to Section 10 [40] of the Act and private activities on private lands may require federal discretionary permits (such as Clean Water Act Section 404), triggering Section 7 of the ESA.[41]

Effectiveness edit

As of 2023, an aggregate of 1,780 species had been listed through the years as "endangered" or a less severe category of "threatened". Of that total, 64 species improved enough to be removed from the list ("delisted"). Another 64 improved enough to be "downlisted" from endangered to threatened. While 11 species have been declared extinct since implementation of the law began, another 23 species have gone missing for so long that they have been proposed for official designation as extinct.[42]

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 ban on DDT by the EPA rather than the Endangered Species Act. However, the listing of these species as endangered led to many non-DDT oriented actions that were taken under the Endangered Species Act (i.e. captive breeding, habitat protection, and protection from disturbance).[citation needed]

 
Key deer

Species which increased in population size since being placed on the endangered list include:

  • Bald eagle (increased from 417 to 11,040 pairs between 1963 and 2007); removed from list 2007
  • Whooping crane (increased from 54 to 436 birds between 1967 and 2003)
  • Kirtland's warbler (increased from 210 to 1,415 pairs between 1971 and 2005)
  • Peregrine falcon (increased from 324 to 1,700 pairs between 1975 and 2000); removed from list 1999
  • Gray wolf (populations increased dramatically in the Northern Rockies and Western Great Lakes States)
  • Mexican wolf (increased to minimum population of 109 wolves in 2014 in southwest New Mexico and southeast Arizona)
  • Red wolf (increased from 17 in 1980 to 257 in 2003)
  • Gray whale (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 bear (increased from about 271 to over 580 bears in the Yellowstone area between 1975 and 2005)
  • California's southern sea otter (increased from 1,789 in 1976 to 2,735 in 2005)
  • San Clemente Indian paintbrush (increased from 500 plants in 1979 to more than 3,500 in 1997)
  • Florida's Key deer (increased from 200 in 1971 to 750 in 2001)
  • Big Bend gambusia (increased from a couple dozen to a population of over 50,000)
  • Hawaiian goose (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 ferret (increased from 18 in 1986 to 600 in 2006)

The 1988 Congressional amendments to the act included a new section, Section 18, to aid effectiveness evaluations by having the agency annually report cumulative federal funding (and, to some degree, state funding) on a species-by-species basis.[43] As of 2023, the most recent agency report[44] presented expenditures cumulative through fiscal year 2020.[45]

Recovery and delistings are rare edit

Critics of the Act have noted that despite its goal of recovering species so they are no longer listed, this has rarely happened. In its almost 50-year history, less than fifty species have been delisted due to recovery.[46] Since the passage of the ESA, several species that were listed have gone extinct. Many more that are still listed are at risk of extinction despite conservation measures mandated by the Act. As of January 2020 the Services indicate that eleven species have been lost to extinction. These extinct species are the Caribbean monk seal, the Santa Barbara song sparrow; the Dusky seaside sparrow; the Longjaw cisco; the Tecopa pupfish; the Guam broadbill;  the Eastern puma; and the Blue pike.

The National Marine Fisheries Service lists eight species among the most at risk of extinction in the near future. These species are the Atlantic salmon; the Central California Coast coho; the Cook Inlet beluga whale; the Hawaiian monk seal; the Pacific leatherback sea turtle; the Sacramento River winter-run chinook salmon; the Southern resident killer whale; and last, the White abalone. Threats from human activities are the primary cause for most being threatened. The Services have also changed a species’ status from threatened to endangered on nine occasions. Such a move indicates that the species is closer to extinction. The number of status changes from endangered to threatened is greater than vice versa.[47]

Defenders of the Act have argued such criticisms are unfounded. For example, many listed species are recovering at the rate specified by their recovery plan.[48] Research shows that the vast majority of listed species are still extant[49] and hundreds are on the path to recovery.[50]

Species awaiting listing edit

A 2019 report found that FWS faces a backlog of more than 500 species that have been determined to potentially warrant protection. All of these species still await a decision. Decisions to list or defer listing for species are supposed to take 2 years. However, on average it has taken the Fish and Wildlife Service 12 years to finalize a decision.[51] A 2016 analysis found that approximately 50 species may have gone extinct while awaiting a listing decision.[50] More funding might let the Services direct more resources towards biological assessments of these species and determine if they merit a listing decision.[52] An additional issue is that species still listed under the Act may already be extinct. For example, the IUCN Red List declared the Scioto madtom extinct in 2013. It had last been seen alive in 1957.[53] However, FWS still classifies the catfish as endangered.[54]

Critical habitat edit

The designation of critical habitat does not affect land ownership; allow the government to take or manage private property; establish a refuge, reserve, preserve, or other conservation area; or allow government access to private land. But such designation can restrict activities allowable on private lands.[55]

The provision of the law in Section 4 that establishes critical habitat 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.[56] 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.[57]

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."[58] 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)[59]

The amendment of 1978 added economic considerations for critical habitat determinations and the 1982 amendment explicitly prohibited similar economic considerations when determining the status of a species.

Several studies on the effect of critical habitat designation on species' recovery rates have been done between 1997 and 2003. Although it has been criticized,[60] the Taylor study in 2003[61] found that, "species with critical habitat were... twice as likely to be improving...."[62]

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.[63]

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.[63] 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 orders 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 focus on recovery. Species with critical habitat are twice as likely to be recovering as species without critical habitat.[64]

Climate adaptation edit

June 2022, the U.S. Fish and Wildlife Service published a proposed rule in the Federal Register that would "revise section 10(j) regulations under the ESA to better facilitate recovery by allowing for the introduction of listed species to suitable habitats outside of their historical ranges. The proposed change will help improve the conservation and recovery of imperiled ESA-listed species in the coming decades, as growing impacts from climate change and invasive species cause habitats within their historical ranges to shift and become unsuitable."[65] The comment period ended August 2022, with more than 500 comments posted online by supporters and opponents.[66] The final decision was scheduled for publication June 2023.[67] As reported on the news page of Audubon, adoption of the proposed regulatory change will authorize, for the first time, use of a controversial climate adaptation tool: assisted migration.[68] A 2010 paper in Conservation Letters had pointed out that, while no statutory changes appeared necessary to facilitate this newly proposed form of climate adaptation, "current regulations are an impediment to assisted colonization for many endangered animal species, whereas regulations do not necessarily restrict assisted colonization of endangered plants."[69]

The U.S. Department of Interior on June 30, 2023, announced its decision to modify the section 10(j) "experimental populations" rule generally as proposed a year earlier.[70] The press release summarized the reason for the change as, "At the time the original 10(j) regulations were established, the potential impact of climate change on species and their habitats was not fully realized, yet in the decades since have become even more dramatic. These revisions will help prevent extinctions and support the recovery of imperiled species by allowing the Service and our partners to implement proactive, conservation-based species introductions to reduce the impacts of climate change and other threats such as invasive species."[71] The rulemaking action includes a section summarizing 25 topics entailed in comments submitted in 2022, along with the agency's official response to each.[72]

Chronological List of Controversies edit

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:

  • 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.[73]

In 2014, the House of Representatives passed the 21st Century Endangered Species Transparency Act, which would require the government to disclose the data it uses to determine species classification.

In July 2018, lobbyists, Republican legislators, and the administration of President Donald Trump, proposed, introduced, and voted on laws and amendments to the ESA. One example was from the Interior Department which wanted to add economic considerations when deciding if a species should be on the "endangered" or "threatened" list.[74]

In October 2019, at the urging of the Pacific Legal Foundation and the Property and Environment Research Center,[75][76] the USFWS and the NMFS under President Donald Trump changed the §4(d) rule to treat "threatened" and "critically endangered" species differently, legalizing private recovery initiatives and habitats for species that are merely "threatened."[77] Environmental opponents criticized the revision as "crashing like a bulldozer" through the act and "tipping the scales way in favour of industry."[78][79][80] Some critics, including the Sierra Club, have pointed out these changes come just months after the IPBES released its Global Assessment Report on Biodiversity and Ecosystem Services, which found that human activity has pushed a million species of flora and fauna to the brink of extinction, and would only serve to exacerbate the crisis.[81][82][83] The California legislature passed a bill to raise California regulations to thwart Trump's changes, but it was vetoed by Governor Newsom.[84] In January 2020, the House Natural Resources Committee reported similar legislation.[85] In December 2020, the Trump administration further rolled back the Endangered Species Act by reducing habitat protections for at-risk species, and now restricts protections to where they currently live, not where they lived previously or where they might migrate to as a result of climate change.[86] In June 2021, the Biden administration said it was reviewing the Trump era rollback of the Endangered Species Act and plans to reverse or revise some of the changes, in particular those relating to critical habitat regulations. The Biden administration is also considering restoring some protections for those species listed under the act as "threatened".[87] On July 5, 2022, a federal judge reversed many of the Trump administration's rollbacks of the Endangered Species Act.[88]

Section-by-Section Summaries of the 1973 Act edit

Section 4: Listing and Recovery edit

Section 4 of the ESA sets forth the process by which species are designated as endangered or threatened. Species with these designations receive protections under federal law. Section 4 also requires critical habitat designation and recovery plans for those species.

Petition and listing edit

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 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.[89]

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."[90] 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."[91]

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.[58] 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.[92]

Listing process edit

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 Register, the US government's official journal of proposed or adopted rules and regulations:

1. If a petition presents information that the species may be 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 this 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.[93]

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.[94] 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).[95]

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.[95] Citizen involvement has been shown to identify species not moving through the process efficiently,[96] and identify more imperiled species.[97] The longer species are listed, the more likely they are to be classified as recovering by the FWS.[64]

Public notice, comments and judicial review edit

Public notice 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.[98] "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.[99]

Listing status edit

 
U.S. Endangered Species Act (ESA)

Listing status and its abbreviations used in Federal Register and by federal agencies like the U.S. Fish and Wildlife Service:[100][101][102]

  • E = endangered (Sec.3.6, Sec.4.a [100]) – any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest.
  • T = threatened (Sec.3.20, Sec.4.a [100]) – any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range
Other categories:
  • C = candidate (Sec.4.b.3 [100]) – a species under consideration for official listing
  • E(S/A), T(S/A) = endangered or threatened due to similarity of appearance (Sec.4.e [100]) – a species not endangered or threatened, but so closely resembles in appearance a species which has been listed as endangered or threatened, that enforcement personnel would have substantial difficulty in attempting to differentiate between the listed and unlisted species.
  • XE, XN = experimental essential or non-essential population (Sec.10.j [100]) – any population (including eggs, propagules, or individuals) of an endangered species or a threatened species released outside the current range under authorization of the Secretary. Experimental, nonessential populations of endangered species are treated as threatened species on public land, for consultation purposes, and as species proposed for listing on private land.

Recovery plan edit

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).[103] 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.[95] 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).[95]

The goal of the law is to make itself unnecessary, and recovery plans are a means toward that goal.[104] 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.[105]

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.[104] Recovery plans cover domestic and migratory species.[106]

Downlisting and Delisting edit

 
Northern flying squirrel

"Downlisting" of a species can take place when important threats have been controlled and the population in the wild meets recovery objectives. Downlisting entails reclassification from "endangered" to "threatened."[107]

To "delist" a species, several factors are considered: control or elimination of threats, population size and growth in the wild, and the stability of habitat quality and quantity. Species can also be delisted if an error (notably, population size) is found in the data used for listing in the first place. More than a dozen species have been delisted under such circumstances.

Two examples of animal species 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.[108] 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 lists four plants that have recovered:[109]


Section 6: State endangered species lists edit

Section 6 of the Endangered Species Act[110] provided funding for development of programs for management of threatened and endangered species by state wildlife agencies.[111] 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,[112] Minnesota,[113] and Maine.[114]

Section 7: Cooperation and Consultation edit

Overview edit

Section 7 of the Endangered Species Act requires cooperation among federal agencies to conserve endangered or threatened species.[115] Section 7(a)(1) directs the Secretary of the Interior and all federal agencies to proactively use their authorities to conserve such species. This directive is often referred to as an ‘affirmative requirement.’ Section 7(a)(2) of the Act requires federal agencies to ensure their actions do not jeopardize listed species or adversely modify critical habitat. Federal agencies (referred to as "action agencies") must consult with the Secretary of the Interior before taking any action which may affect listed species. Section 7(a)(2) is often referred to as the consultation process.

The two agencies that administer the Act are the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS). These two agencies are often collectively referred to as "the Services" and lead the consultation process. FWS is responsible for the recovery of terrestrial, freshwater, and catadromous species. NMFS is responsible for marine species and anadromous fish. NMFS manages recovery for 165 endangered and threatened marine species including 66 foreign species. As of January 2020, the Services have listed 2,273 species worldwide as endangered or threatened. 1,662 of these species occur in the United States.

Section 7(a)(1) edit

Section 7(a)(1) requires federal agencies to work with FWS and NMFS to coordinate endangered and threatened species conservation. Federal agencies should also account for any effects on endangered or threatened species in planning their activities.

An example of the 7(a)(1) process is the Army Corps of Engineers’ management of the Lower Mississippi River. Since the early 2000s, a division of the U.S. Army Corps of Engineers has worked with FWS and the states to resolve endangered species and ecosystem management issues. ESA-listed species in the area include the least tern (Sterna antillarum), pallid sturgeon (Scaphirhynchus albus), and the fat pocketbook (potamilus capax).[116] The goal of this 7(a)(1) conservation plan is to protect listed species while allowing the Corps to carry out its civil works responsibilities. As part of the plan, the Corps undertakes projects that will benefit those species. It also considers species ecology as a part of project design. All three listed species in the Lower Mississippi River have increased in numbers since the plan was established.

Section 7(a)(2) edit

An action agency is required to consult with the Services if it has reason to believe that a species listed under the ESA may be present in the proposed project area. It also must consult if the agency believes the action will likely affect the species. This requirement, established by section 7(a)(2), is commonly referred to as the consultation process.

Informal consultation phase edit

Consultation typically begins informally at the request of an action agency in the early stages of project planning.[117] Discussion topics include listed species in the proposed action area and any effect(s) the action may have on those species. If both agencies agree that the proposed action is not likely to affect the species, the project moves forward. However, if the agency's action may affect a listed species, the agency is required to prepare a biological assessment.

Biological assessments edit

A biological assessment is a document prepared by the action agency. It lays out the project's potential effects, particularly on listed species. The action agency must complete a biological assessment if listed species or critical habitat may be present. The assessment is optional if only proposed species or critical habitat are present.

As a part of the assessment, the action agency conducts on-site inspections to see whether protected species are present. The assessment will also include the likely effects of the action on such species. The assessment should address all listed and proposed species in the action area, not only those likely to be affected.

The biological assessment may also include conservation measures. Conservation measures are actions the action agency intends to take to promote the recovery of listed species. These actions may also serve to minimize the projects’ effects on species in the project area.

There are three possible conclusions to a biological assessment: "no effect", "not likely to adversely affect", or "likely to adversely affect" listed or proposed species.

The action agency may reach a "no effect" conclusion if it determines the proposed action will not affect listed species or designated critical habitat. The action agency may reach a "not likely to adversely affect" decision if the proposed action is insignificant or beneficial. The Services will then review the biological assessment and either agree or disagree with the agency's findings. If the Services agree the project's potential impacts have been eliminated, they will concur in writing. The concurrence letter must outline any modifications agreed to during informal consultation. If an agreement cannot be reached, the Services advise the action agency to initiate formal consultation.

If the Services or the action agency finds the action "likely to adversely affect" protected species, this triggers formal consultation.

Formal consultation edit

During formal consultation, the Services establish the project's effects on listed species. Specifically, they address whether the project will jeopardize the continued existence of any listed species or destroy/adversely modify species’ designated critical habitat.

"Jeopardy" is not defined in the ESA, but the Services have defined it in regulation to mean "when an action is likely to appreciably reduce a species’ likelihood of survival and recovery in the wild." In other words, if an action merely reduces the likelihood of recovery but not survival then the standard of jeopardy is not met.

To assess the likelihood of jeopardy, the Services will review the species’ biological and ecological traits. These could include the species’ population dynamics (population size, variability and stability), life-history traits, critical habitat, and how any proposed action might alter its critical habitat. They also consider how limited the species’ range is and whether the threats that led to species listing have improved or worsened since listing.

The Services have defined adverse modification as "a diminishment of critical habitat that leads to a lower likelihood of survival and recovery for a listed species." The diminishment may be direct or indirect. To assess the likelihood of adverse modification, biologists will first verify the scope of the proposed action. This includes identifying the area likely to be affected and considering the proximity of the action to species or designated critical habitat. The duration and frequency of any disturbance to the species or its habitat is also assessed.

A formal consultation may last up to 90 days. After this time the Services will issue a biological opinion. The biological opinion contains findings related to the project's effects on listed and proposed species. The Services must complete the biological opinion within 45 days of the conclusion of formal consultation. However, the Services may extend this timeline if they require more information to make a determination. The action agency must agree to the extension.

Finding of no jeopardy or adverse modification edit

The Services may issue a finding of "no jeopardy or adverse modification" if the proposed action does not pose any harm to listed or proposed species or their designated critical habitat. Alternatively, the Service could find that proposed action is likely to harm listed or proposed species or their critical habitat but does not reach the level of jeopardy or adverse modification. In this case, the Services will prepare an incidental take statement. Under most circumstances, the ESA prohibits "take" of listed species. Take includes harming, killing or harassing a listed species. However, the ESA allows for "incidental" take that results from an otherwise lawful activity that is not the direct purpose of the action.

An incidental take statement will be agreed to between the Services and the action agency. The statement should describe the amount of anticipated take due to the proposed action. It will also include "reasonable and prudent measures" to minimize the take. Incidental take cannot pose jeopardy or potential extinction to species.

Finding of jeopardy or adverse modification edit

Following formal consultation, the Services may determine that the action will result in jeopardy or adverse modification to critical habitat. If this is the case, this finding will be included in the biological opinion.

However, during consultation, the Services may find there are actions that the agency may take to avoid this. These actions are known as reasonable and prudent alternative actions. In the event of a jeopardy or adverse modification finding, the agency must adopt reasonable and prudent alternative actions. However, the Services retain final say on which are included in the biological opinion.

According to regulation, reasonable and prudent alternative actions must:

  • be consistent with the purpose of the proposed project
  • be consistent with the action agency's legal authority and jurisdiction
  • be economically and technically feasible
  • in the opinion of the Services, avoid jeopardy

Given a finding of jeopardy or adverse modification, the action agency has several options:

  • Adopt one or more of the reasonable and prudent alternative actions and move forward with the modified project
  • Elect not to grant the permit, fund the project, or undertake the action
  • Request an exemption from the Endangered Species Committee. Another possibility is to re-initiate consultation. The action agency would do this by first proposing to modify the action
  • Propose reasonable and prudent alternatives not yet considered

The action agency must notify the Services of its course of action on any project that receives a jeopardy or adverse modification opinion.

In the past ten years, FWS has made jeopardy determinations in three cases (delta smelt, aquatic species in Idaho, and South Florida water management), each of which has included reasonable and prudent alternatives. No project has been stopped as a result of FWS finding a project had no available path forward.

In rare cases, no alternatives to avoid jeopardy or adverse modification will be available. An analysis of FWS consultations from 1987 to 1991 found only 0.02% were blocked or canceled because of a jeopardy or adverse modification opinion with no reasonable and prudent alternatives.[118] In this scenario, the only option that the action agency and applicant are left with is to apply for an exemption. Exemptions are decided upon by the Endangered Species Committee.

Exemptions edit

An action agency may apply for an exemption if: (1) it believes it cannot comply with the requirements of the biological opinion; or (2) formal consultation yields no reasonable and prudent alternative actions. The exemption application must be submitted to the Secretary of the Interior within 90 days of the conclusion of formal consultation.

The Secretary can then recommend the application to the Endangered Species Committee (informally known as "The God Squad"). This committee is composed of several Cabinet-level members:

Endangered Species Committee decisions edit

 
Northern spotted owl

The governor of each affected state is notified of any exemption applications. The governor will recommend a representative to join the committee for this application decision. Within 140 days of recommending an exemption, the Secretary should submit to the committee a report that gives:

  • the availability of reasonable and prudent alternatives
  • a comparison of the benefits of the proposed action to any alternative courses of action
  • whether the proposed action is in the public interest or is of national or regional significance
  • available mitigation measures to limit the effects on listed species
  • whether the action agency made any irreversible or irretrievable commitment of resources

Once this information is received, the committee and the secretary will hold a public hearing. The committee has 30 days from the time of receiving the above report to make a decision. In order for the exemption to be granted, five out of the seven members must vote in favor of the exemption.[119] 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.[120]

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.[120]

Rarely does the Endangered Species Committee consider projects for exemption. The Endangered Species Committee has only met three times since the inception of the ESA. An exemption was granted on two of these occasions.

Section 10: Permitting, Conservation Agreements, and Experimental Populations edit

Section 10 of the ESA provides a permit system that may allow acts prohibited by Section 9. This includes scientific and conservation activities.  For example, the government may let someone move a species from one area to another. This would otherwise be a prohibited taking under Section 9. Before the law was amended in 1982, a listed species could be taken only for scientific or research purposes. The combined result of the amendments to the Endangered Species Act have created a more flexible ESA.

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 that would balance the goals of economic development and conservation.[121]

Habitat conservation plans edit

Section 10 may also allow activities that can unintentionally impact protected species.  A common activity might be construction where these species live. More than half of habitat for listed species is on non-federal property.[122] Under section 10, impacted parties can apply for an incidental take permit (ITP). An application for an ITP requires a Habitat Conservation Plan (HCP).[123] HCPs must minimize and mitigate the impacts of the activity. HCPs can be established to provide protections for both listed and non-listed species. Such non-listed species include species that have been proposed for listing. Hundreds of HCPs have been created. However, the effectiveness of the HCP program remains unknown.[124]

If activities may unintentionally take a protected species, an incidental take permit can be issued. The applicant submits an application with an habitat conservation plan (HCP). If approved by the agency (FWS or NMFS) they are issued an Incidental Take Permit (ITP). The permit allows a certain number of the species to be "taken." The Services have a "No Surprises" policy for HCPs. Once an ITP is granted, the Services cannot require applicants to spend more money or set aside additional land or pay more.[125]

To receive the benefit of the permit the applicant must comply with all the requirements of the HCP. Because the permit is issued by a federal agency to a private party, it is a federal action. Other federal laws will apply such as the National Environmental Policy Act (NEPA) and Administrative Procedure Act (APA). A notice of the permit application action must be published in the Federal Register and a public comment period of 30 to 90 days offered.[126]

Safe Harbor Agreements edit

The "Safe Harbor" agreement (SHA) is similar to an HCP. It is voluntary between the private landowner and the Services.[127] The landowner agrees to alter the property to benefit a listed or proposed species. In exchange, the Services will allow some future "takes" through an Enhancement of Survival Permit. A landowner can have either a "Safe Harbor" agreement or an HCP, or both. The policy was developed by the Clinton administration.[128] Unlike an HCP the activities covered by a SHA are designed to protect species. The policy relies on the "enhancement of survival" provision of Section §1539(a)(1)(A). Safe harbor agreements are subject to public comment rules of the APA.

Candidate Conservation Agreements With Assurances edit

HCPs and SHAs are applied to listed species. If an activity may "take" a proposed or candidate species, parties can enter into Candidate Conservation Agreements With Assurances (CCAA).[129] A party must show the Services they will take conservation measures to prevent listing. If a CCAA is approved and the species is later listed, the party with a CCAA gets an automatic "enhancement of survival" permit under Section §1539(a)(1)(A). CCAAs are subject to the public comment rules of the APA.

Experimental populations edit

Experimental populations are listed species that have been intentionally introduced to a new area. They must be separate geographically from other populations of the same species. Experimental populations can be designated "essential" or "non-essential"[130] "Essential" populations are those whose loss would appreciably reduce the survival of the species in the wild. "Non-essential" populations are all others. Nonessential experimental populations of listed species typically receive less protection than populations in the wild.

Penalties edit

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 web-site.[131]

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.[132]

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 edit

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, and forest service 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 edit

Footnotes edit

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References and further reading edit

  • Brown, Gardner M., and Jason F. Shogren. "Economics of the endangered species act." Journal of Economic Perspectives 12.3 (1998): 3-20. online
  • Carroll, Ronald, et al. "Strengthening the use of science in achieving the goals of the Endangered Species Act: an assessment by the Ecological Society of America." Ecological Applications 6.1 (1996): 1–11. online
  • Corn, M. Lynne and Alexandra M. Wyatt. The Endangered Species Act: A Primer. Congressional Research Service 2016.
  • Czech, Brian, and Paul R. Krausman. The endangered species act: history, conservation biology, and public policy (JHU Press, 2001).
  • Doremus, Holly. "Listing decisions under the Endangered Species Act: why better science isn't always better policy." Washington U Law Quarterly 75 (1997): 1029+ online
  • Doremus, Holly. "Adaptive Management, the Endangered Species Act, and the Institutional Challenges of New Age Environmental Protection." Washburn Law Journal 41 (2001): 50+ .
  • Easter-Pilcher, Andrea. "Implementing the endangered species act." Bioscience 46.5 (1996): 355–363. online
  • Goble, Dale, and J. Michael Scott, eds. The Endangered Species Act at Thirty (Island Press 2006). excerpt
  • Green, Alan; The Center for Public Integrity (1999). Animal Underworld: Inside America's Black Market for Rare and Exotic Species. Public Affairs. ISBN 978-1-58648-374-6.
  • Leshy, John D. "The Babbitt Legacy at the Department of the Interior: A Preliminary View." Environmental Law 31 (2001): 199+ online.
  • Noss, Reed F., Michael O'Connell, and Dennis D. Murphy. The science of conservation planning: habitat conservation under the Endangered Species Act (Island Press, 1997).
  • Petersen, Shannon. "Congress and charismatic megafauna: A legislative history of the endangered species act." Environmental Law 29 (1999): 463+ .
  • Schwartz, Mark W. "The performance of the endangered species act." in Annual Review of Ecology, Evolution, and Systematics 39 (2008) .
  • Stanford Environmental Law Society (2001). The Endangered Species Act (Illustrated ed.). Stanford University Press. ISBN 0804738432.{{cite book}}: CS1 maint: ref duplicates default (link)
  • Taylor, Martin FJ, Kieran F. Suckling, and Jeffrey J. Rachlinski. "The effectiveness of the Endangered Species Act: a quantitative analysis." BioScience 55.4 (2005): 360–367. online

External links edit

  • As codified in 16 U.S.C. chapter 35 of the United States Code from the LII
  • As codified in 16 U.S.C. chapter 35 of the United States Code from the US House of Representatives
  • Endangered Species Act of 1973 (PDF/details) as amended in the GPO Statute Compilations collection
  • 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
  • Endangered Species Program – US Fish & Wildlife Service accessed June 16, 2012
  • Endangered Species Act – National Marine Fisheries Service – NOAA accessed June 16, 2012
  • Species Status Categories and Codes – US Fish & Wildlife Service accessed June 16, 2012
  • Habitat Conservation Plans – US Fish & Wildlife Service accessed June 16, 2012
  • The 1978 decision related to the ESA and the snail darter. accessed July, 2005
  • accessed June 16, 2012
  • Species Search – US Fish & Wildlife Service accessed June 16, 2012
  • accessed June 16, 2012

December 07, 2023
endangered, species, 1973, 1531, primary, united, states, protecting, conserving, imperiled, species, designed, protect, critically, imperiled, species, from, extinction, consequence, economic, growth, development, untempered, adequate, concern, conservation, . The Endangered Species Act of 1973 ESA or The Act 16 U S C 1531 et seq is the primary law in the United States for protecting and conserving imperiled species Designed to protect critically imperiled species from extinction as a consequence of economic growth and development untempered by adequate concern and conservation the ESA was signed into law by President Richard Nixon on December 28 1973 The Supreme Court of the United States described it as the most comprehensive legislation for the preservation of endangered species enacted by any nation 1 The purposes of the ESA are two fold to prevent extinction and to recover species to the point where the law s protections are not needed It therefore protect s species and the ecosystems upon which they depend through different mechanisms For example section 4 requires the agencies overseeing the Act to designate imperiled species as threatened or endangered Section 9 prohibits unlawful take of such species which means to harass harm hunt Section 7 directs federal agencies to use their authorities to help conserve listed species The Act also serves as the enacting legislation to carry out the provisions outlined in The Convention on International Trade in Endangered Species of Wild Fauna and Flora CITES 2 The Supreme Court found that the plain intent of Congress in enacting the ESA was to halt and reverse the trend toward species extinction whatever the cost 1 The Act is administered by two federal agencies the United States Fish and Wildlife Service FWS and the National Marine Fisheries Service NMFS 3 FWS and NMFS have been delegated by the Act with the authority to promulgate any rules and guidelines within the Code of Federal Regulations CFR to implement its provisions Endangered Species Act of 1973Other short titlesEndangered Species Act of 1973Long titleAn Act to provide for the conservation of endangered and threatened species of fish wildlife and plants and for other purposes Acronyms colloquial ESANicknamesEndangered Species Conservation ActEnacted bythe 93rd United States CongressEffectiveDecember 27 1973CitationsPublic law93 205Statutes at Large87 Stat 884CodificationTitles amended16 U S C ConservationU S C sections created16 U S C ch 35 1531 1544 Legislative historyIntroduced in the Senate as S 1983 by Harrison A Williams D NJ on June 12 1973Committee consideration by Senate Commerce CommitteePassed the Senate on July 24 1973 92 0 Passed the House on September 18 1973 390 12 in lieu of H R 37 Reported by the joint conference committee on December 19 1973 agreed to by the Senate on December 19 1973 agreed and by the House on December 20 1973 355 4 Signed into law by President Richard Nixon on December 28 1973Major amendmentsPub L Tooltip Public Law United States 95 632 92 Stat 3751 enacted November 10 1978Pub L Tooltip Public Law United States 96 159 93 Stat 1225 enacted December 28 1979Pub L Tooltip Public Law United States 97 304 96 Stat 1411 enacted October 13 1982United States Supreme Court casesList Tennessee Valley Authority v Hill 437 U S 153 1978 Lujan v Defenders of Wildlife 504 U S 555 1992 Babbitt v Sweet Home Chapter of Communities for a Great Oregon 515 U S 687 1995 Bennett v Spear 520 U S 154 1997 National Ass n of Home Builders v Defenders of Wildlife 551 U S 644 2007 Weyerhaeuser Company v United States Fish and Wildlife Service No 17 71 586 U S 2018 United States Fish and Wildlife Service v Sierra Club No 19 547 592 U S 2021 Contents 1 History 1 1 Endangered Species Preservation Act of 1966 1 2 Endangered Species Conservation Act of 1969 1 3 Passage of the 1973 Act 2 New Features of the 1973 Act 2 1 Plants become eligible for listing 2 2 Two categories for listing species 2 3 Recovery plans must be made and published 2 4 Critical habitat may be designated 2 5 Citizens can petition for listing species 3 Challenges and Controversies 3 1 Economic consequences and perverse incentives 3 2 Effectiveness 3 3 Recovery and delistings are rare 3 4 Species awaiting listing 3 5 Critical habitat 3 6 Climate adaptation 3 7 Chronological List of Controversies 4 Section by Section Summaries of the 1973 Act 4 1 Section 4 Listing and Recovery 4 1 1 Petition and listing 4 1 2 Listing process 4 1 3 Public notice comments and judicial review 4 1 4 Listing status 4 1 5 Recovery plan 4 1 6 Downlisting and Delisting 4 2 Section 6 State endangered species lists 4 3 Section 7 Cooperation and Consultation 4 3 1 Overview 4 3 2 Section 7 a 1 4 3 3 Section 7 a 2 4 3 4 Informal consultation phase 4 3 5 Biological assessments 4 3 6 Formal consultation 4 3 7 Finding of no jeopardy or adverse modification 4 3 8 Finding of jeopardy or adverse modification 4 3 9 Exemptions 4 3 10 Endangered Species Committee decisions 4 4 Section 10 Permitting Conservation Agreements and Experimental Populations 4 4 1 Habitat conservation plans 4 4 2 Safe Harbor Agreements 4 4 3 Candidate Conservation Agreements With Assurances 4 4 4 Experimental populations 4 4 5 Penalties 4 4 6 Use of money received through violations of the ESA 5 See also 6 Footnotes 7 References and further reading 8 External linksHistory editCalls for wildlife conservation in the United States increased in the early 1900s because of the visible decline of several species One example was the near extinction of the bison which used to number in the tens of millions Similarly the extinction of the passenger pigeon which numbered in the billions also caused concern 4 The whooping crane also received widespread attention as unregulated hunting and habitat loss contributed to a steady decline in its population By 1890 it had disappeared from its primary breeding range in the north central United States 5 Scientists of the day played a prominent role in raising public awareness about the losses For example George Bird Grinnell highlighted bison decline by writing articles in Forest and Stream 6 To address these concerns Congress enacted the Lacey Act of 1900 The Lacey Act was the first federal law that regulated commercial animal markets 7 It also prohibited the sale of illegally killed animals between states Other legislation followed including the Migratory Bird Conservation Act a 1937 treaty prohibiting the hunting of right and gray whales and the Bald and Golden Eagle Protection Act of 1940 8 Endangered Species Preservation Act of 1966 edit nbsp Whooping craneDespite these treaties and protections many populations still continued to decline By 1941 only an estimated 16 whooping cranes remained in the wild 9 By 1963 the bald eagle the U S national symbol was in danger of extinction Only around 487 nesting pairs remained 10 Loss of habitat shooting and DDT poisoning contributed to its decline The U S Fish and Wildlife Service tried to prevent the extinction of these species Yet it lacked the necessary Congressional authority and funding 11 In response to this need Congress passed the Endangered Species Preservation Act Pub L Tooltip Public Law United States 89 669 on October 15 1966 The Act initiated a program to conserve protect and restore select species of native fish and wildlife 12 As a part of this program Congress authorized the Secretary of the Interior to acquire land or interests in land that would further the conservation of these species 13 The Department of Interior issued the first list of endangered species in March 1967 It included 14 mammals 36 birds 6 reptiles 6 amphibians and 22 fish 14 A few notable species listed in 1967 were the grizzly bear American alligator Florida manatee and bald eagle The list included only vertebrates at the time because of the Department of Interior s limited definition of fish and wildlife 13 The Endangered Species Preservation Act was repealed by the Endangered Species Act Endangered Species Conservation Act of 1969 edit Main article Endangered Species Conservation Act of 1969 The Endangered Species Conservation Act of 1969 Pub L Tooltip Public Law United States 91 135 amended the Endangered Species Preservation Act of 1966 It established a list of species in danger of worldwide extinction It also expanded protections for species covered in 1966 and added to the list of protected species While the 1966 Act only applied to game and wild birds the 1969 Act also protected mollusks and crustaceans Punishments for poaching or unlawful importation or sale of these species were also increased Any violation could result in a 10 000 fine or up to one year of jail time 15 Notably the Act called for an international convention or treaty to conserve endangered species 16 A 1963 IUCN resolution called for a similar international convention 17 In February 1973 a meeting in Washington D C was convened This meeting produced the comprehensive multilateral treaty known as CITES or the Convention on International Trade of Endangered Species of Wild Fauna and Flora 18 The Endangered Species Conservation Act of 1969 provided a template for the Endangered Species Act of 1973 by using the term based on the best scientific and commercial data This standard is used as a guideline to determine if a species is in danger of extinction Passage of the 1973 Act edit In 1972 President Nixon declared current species conservation efforts to be inadequate 19 He 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 Pub L Tooltip Public Law United States 93 205 It was written by a team of lawyers and scientists including Dr Russell E Train the first appointed head of the Council on Environmental Quality CEQ an outgrowth of the National Environmental Policy Act NEPA of 1969 20 21 Dr Train was assisted by a core group of staffers including Dr Earl Baysinger at EPA Dick Gutting and Dr Gerard A Jerry Bertrand a Ph D Marine Biologist by training Oregon State University 1969 who had transferred from his post as the senior scientific adviser to the Commandant of the U S Army Corps of Engineers office of the Commandant of the Corps to join the newly formed White House Council on Environmental Quality The staff under Dr Train s leadership incorporated dozens of new principles and ideas into the landmark legislation but also incorporated previous laws as was desired by Congressman John Dingle D Michigan when he first proposed the idea of an Endangered Species Act crafting a document that completely changed the direction of environmental conservation in the United States Among the staff Dr Bertrand is credited with having written major parts of the Act including the infamous takings clause 16 U S C 1538 We didn t know what we couldn t do Dr Bertrand has said about the Act We were doing what we thought was scientifically valid and right for the environment 22 New Features of the 1973 Act editThe Endangered Species Act is administered by two federal agencies the United States Fish and Wildlife Service FWS and the National Marine Fisheries Service NMFS NMFS 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 It consists of 17 sections Key legal requirements include The federal government must determine whether species are endangered or threatened If so they must list the species for protection under the ESA Section 4 If determinable critical habitat must be designated for listed species Section 4 Absent certain limited situations Section 10 it is illegal to take an endangered species Section 9 Take can mean kill harm or harass Section 3 Federal agencies will use their authorities to conserve endangered species and threatened species Section 7 Federal agencies cannot jeopardize listed species existence or destroy critical habitat Section 7 Any import export interstate and foreign commerce of listed species is generally prohibited Section 9 Endangered fish or wildlife cannot be taken without a take permit This also applies to certain threatened animals with section 4 d rules Section 10 The 1973 Act is considered a landmark conservation law Academic researchers have referred to it as one of the nation s most significant environmental laws 11 It has also been called one of the most powerful environmental statutes in the U S and one of the world s strongest species protection laws 23 The Act itself has been amended four times 1978 1982 1988 11 and 1992 24 Formal regulations published in the Federal Register that specify how the Act will be implemented have also changed through time 11 In recent years U S presidential elections that greatly shift environmental priorities have culminated in regulatory shifts in endangered species management back and forth 25 26 Congressional elections also affect implementation of the Act via expansions or contractions in annual funding decisions for the agencies 24 Plants become eligible for listing edit A distinction of the 1973 Act was that unlike the previous legislation plants were now eligible for listing Historians attribute this new found concern for imperiled plants to ongoing global treaty negotiations especially in 1972 and 1973 toward what would eventually be adopted in 1975 27 under the title Convention on International Trade in Endangered Species of Wild Fauna and Flora CITES Prior to this time attention to the conservation needs of native plants had been stalled by complications that do not pertain to animals How to adequately distinguish plants illegally collected in the wild from plants propagated from seeds or cuttings taken from horticultural specimens was among the points of contention 27 Ultimately federal authority over enforcement of endangered plant protections has centered on regulation of interstate commerce of such plants 28 This legal distinction for plants became controversial in practice when a group of citizens Torreya Guardians chose to help an endangered glacial relict plant Florida Torreya move to cooler poleward climates before conservation professionals were ready to begin their own experimentation with assisted migration of endangered species 29 Because movements of seeds and seedlings by this group was both noncommercial and based on horticulturally produced seeds and seedlings there was no legal apparatus to halt their actions 28 Two categories for listing species edit The Act distinguished two grades of species for listing endangered and a lesser category called threatened The aim for the lesser category was to enable protective actions by federal agencies at an earlier time such that the causes of population decline might be corrected before emergency concerns developed 11 Ever after ensued opposing opinions as to whether and what differences in recovery plan elements and thus management policies and restrictions should distinguish threatened from endangered 11 26 Recovery plans must be made and published edit A key provision of the 1973 Act was that preventing extinction would no longer be sufficient Rather recovery of listed species such that delisting could become possible was now a stated goal Recovery plans were now to be developed and published by the two agencies in charge the United States Fish and Wildlife Service and the National Marine Fisheries Service 11 In practice recovery plans usually include population targets and objective measurable criteria that would constitute adequate reduction of threats and provision of habitat protection such that delisting or down listing from endangered to threatened would be warranted 11 Critical habitat may be designated edit The 1973 Act introduced the concept of what is now called critical habitat in only one brief passage Section 7 required federal agencies to ensure that actions they authorized funded or carried out would not result in the destruction or modification of habitat of such species which is determined by the Secretary after consultation as appropriate with affected States to be critical 11 When the Act was amended in 1978 critical habitat was given a definition and basic terms for how it would be determined and used 11 As will be seen in the Controversies section this provision was sometimes challenging to implement for both scientific and political reasons Citizens can petition for listing species edit A review of the Act published in 2009 recounted the unavoidable problems that arose from granting opportunities even for citizens to submit petitions for species listing Soon after the Endangered Species Act was enacted Congress recognized that at any given time there were likely to be more species potentially eligible for listing than the Service could address through the rule making process As a result Congress in 1979 directed the Service to develop a prioritization system that would enable it to determine which of the potentially eligible species should be considered first The Service responded with listing priority guidance that established a hierarchy of priorities based first on the magnitude of threat then upon its imminence and finally upon taxonomic distinctiveness with monotypic genera ranked ahead of other species and full species ranked ahead of subspecies 11 Requirements that listing decisions be made based on scientific evidence and considerations coupled with an inability of the agencies to expand and contract staffing based on shifts in the volume of outstanding petitions induced Congress in 1982 to amend the Act by establishing deadlines for agency decisions 11 As of 2023 those deadlines still nominally apply but in practice it is rare for a petitioner to approach the judicial system to force a decision before the agency is able to finish the job on its own timetable 11 Challenges and Controversies editIn 2023 with this Congressional act achieving its 50th anniversary journalists were prompted to report on the act s outcomes and controversies Congressional overturning of several recent listings and ability to hamper implementation by restricting agency funding are among the points mentioned 30 Other challenges and long term controversies are summarized in this section Economic consequences and perverse incentives edit A challenge attributed to the Act though debated often is the cost conferred on private land owners and various industries These costs may come in the form of lost opportunity or slowing down operations to comply with the regulations put forth in the Act For example the requirement to consult with the relevant agencies on federal projects has at times slowed operations by the oil and gas industry including exploration or development on federal lands rich in fossil fuels 31 One widely held opinion thus is that the protections afforded to listed species curtail economic activity 32 In the extreme economic consequences can induce perverse incentives by which landowners actively curtail their lands from attracting endangered species An example in the eastern USA pertains to the endangered red cockaded woodpecker A study of some 1 000 privately owned forest plots within the range of the woodpecker found that when landowners observed pine growth maturing to a stage in which it might attract nesting woodpeckers they were more likely to harvest regardless of timber prices at the time 33 This is a form of intentional habitat destruction for avoiding economic consequences Legislators have expressed that the ESA has been weaponized particularly against western states constraining state government choices about the use of public lands 34 The case of the protracted dispute over the greater sage grouse is one such example 35 and the spotted owl is another 36 In the extreme is the largely western saying pertaining to endangered animals such as wolves shoot shovel and shut up 37 In 2018 Rep Don Young Alaska the longest serving Republican congressman said As the one person in the Congress the only one that voted for the Endangered Species Act please beat me with a whip 38 Some economists have stated that finding a way to reduce such perverse incentives would lead to more effective protection of endangered species 39 One suggestion for ending perverse incentives would be to compensate property owners for protecting endangered species rather than having an endangered species regarded as a potential financial loss 37 As well while the standard to prevent jeopardy or adverse modification applies only to federal activities non federal activities are subject to Section 10 40 of the Act and private activities on private lands may require federal discretionary permits such as Clean Water Act Section 404 triggering Section 7 of the ESA 41 Effectiveness edit As of 2023 an aggregate of 1 780 species had been listed through the years as endangered or a less severe category of threatened Of that total 64 species improved enough to be removed from the list delisted Another 64 improved enough to be downlisted from endangered to threatened While 11 species have been declared extinct since implementation of the law began another 23 species have gone missing for so long that they have been proposed for official designation as extinct 42 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 ban on DDT by the EPA rather than the Endangered Species Act However the listing of these species as endangered led to many non DDT oriented actions that were taken under the Endangered Species Act i e captive breeding habitat protection and protection from disturbance citation needed nbsp Key deerSpecies which increased in population size since being placed on the endangered list include Bald eagle increased from 417 to 11 040 pairs between 1963 and 2007 removed from list 2007 Whooping crane increased from 54 to 436 birds between 1967 and 2003 Kirtland s warbler increased from 210 to 1 415 pairs between 1971 and 2005 Peregrine falcon increased from 324 to 1 700 pairs between 1975 and 2000 removed from list 1999 Gray wolf populations increased dramatically in the Northern Rockies and Western Great Lakes States Mexican wolf increased to minimum population of 109 wolves in 2014 in southwest New Mexico and southeast Arizona Red wolf increased from 17 in 1980 to 257 in 2003 Gray whale 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 bear increased from about 271 to over 580 bears in the Yellowstone area between 1975 and 2005 California s southern sea otter increased from 1 789 in 1976 to 2 735 in 2005 San Clemente Indian paintbrush increased from 500 plants in 1979 to more than 3 500 in 1997 Florida s Key deer increased from 200 in 1971 to 750 in 2001 Big Bend gambusia increased from a couple dozen to a population of over 50 000 Hawaiian goose 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 ferret increased from 18 in 1986 to 600 in 2006 The 1988 Congressional amendments to the act included a new section Section 18 to aid effectiveness evaluations by having the agency annually report cumulative federal funding and to some degree state funding on a species by species basis 43 As of 2023 the most recent agency report 44 presented expenditures cumulative through fiscal year 2020 45 Recovery and delistings are rare edit Critics of the Act have noted that despite its goal of recovering species so they are no longer listed this has rarely happened In its almost 50 year history less than fifty species have been delisted due to recovery 46 Since the passage of the ESA several species that were listed have gone extinct Many more that are still listed are at risk of extinction despite conservation measures mandated by the Act As of January 2020 the Services indicate that eleven species have been lost to extinction These extinct species are the Caribbean monk seal the Santa Barbara song sparrow the Dusky seaside sparrow the Longjaw cisco the Tecopa pupfish the Guam broadbill the Eastern puma and the Blue pike The National Marine Fisheries Service lists eight species among the most at risk of extinction in the near future These species are the Atlantic salmon the Central California Coast coho the Cook Inlet beluga whale the Hawaiian monk seal the Pacific leatherback sea turtle the Sacramento River winter run chinook salmon the Southern resident killer whale and last the White abalone Threats from human activities are the primary cause for most being threatened The Services have also changed a species status from threatened to endangered on nine occasions Such a move indicates that the species is closer to extinction The number of status changes from endangered to threatened is greater than vice versa 47 Defenders of the Act have argued such criticisms are unfounded For example many listed species are recovering at the rate specified by their recovery plan 48 Research shows that the vast majority of listed species are still extant 49 and hundreds are on the path to recovery 50 Species awaiting listing edit A 2019 report found that FWS faces a backlog of more than 500 species that have been determined to potentially warrant protection All of these species still await a decision Decisions to list or defer listing for species are supposed to take 2 years However on average it has taken the Fish and Wildlife Service 12 years to finalize a decision 51 A 2016 analysis found that approximately 50 species may have gone extinct while awaiting a listing decision 50 More funding might let the Services direct more resources towards biological assessments of these species and determine if they merit a listing decision 52 An additional issue is that species still listed under the Act may already be extinct For example the IUCN Red List declared the Scioto madtom extinct in 2013 It had last been seen alive in 1957 53 However FWS still classifies the catfish as endangered 54 Critical habitat edit The designation of critical habitat does not affect land ownership allow the government to take or manage private property establish a refuge reserve preserve or other conservation area or allow government access to private land But such designation can restrict activities allowable on private lands 55 The provision of the law in Section 4 that establishes critical habitat 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 56 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 57 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 58 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 59 The amendment of 1978 added economic considerations for critical habitat determinations and the 1982 amendment explicitly prohibited similar economic considerations when determining the status of a species Several studies on the effect of critical habitat designation on species recovery rates have been done between 1997 and 2003 Although it has been criticized 60 the Taylor study in 2003 61 found that species with critical habitat were twice as likely to be improving 62 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 63 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 63 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 orders 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 focus on recovery Species with critical habitat are twice as likely to be recovering as species without critical habitat 64 Climate adaptation edit June 2022 the U S Fish and Wildlife Service published a proposed rule in the Federal Register that would revise section 10 j regulations under the ESA to better facilitate recovery by allowing for the introduction of listed species to suitable habitats outside of their historical ranges The proposed change will help improve the conservation and recovery of imperiled ESA listed species in the coming decades as growing impacts from climate change and invasive species cause habitats within their historical ranges to shift and become unsuitable 65 The comment period ended August 2022 with more than 500 comments posted online by supporters and opponents 66 The final decision was scheduled for publication June 2023 67 As reported on the news page of Audubon adoption of the proposed regulatory change will authorize for the first time use of a controversial climate adaptation tool assisted migration 68 A 2010 paper in Conservation Letters had pointed out that while no statutory changes appeared necessary to facilitate this newly proposed form of climate adaptation current regulations are an impediment to assisted colonization for many endangered animal species whereas regulations do not necessarily restrict assisted colonization of endangered plants 69 The U S Department of Interior on June 30 2023 announced its decision to modify the section 10 j experimental populations rule generally as proposed a year earlier 70 The press release summarized the reason for the change as At the time the original 10 j regulations were established the potential impact of climate change on species and their habitats was not fully realized yet in the decades since have become even more dramatic These revisions will help prevent extinctions and support the recovery of imperiled species by allowing the Service and our partners to implement proactive conservation based species introductions to reduce the impacts of climate change and other threats such as invasive species 71 The rulemaking action includes a section summarizing 25 topics entailed in comments submitted in 2022 along with the agency s official response to each 72 Chronological List of Controversies edit 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 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 73 In 2014 the House of Representatives passed the 21st Century Endangered Species Transparency Act which would require the government to disclose the data it uses to determine species classification In July 2018 lobbyists Republican legislators and the administration of President Donald Trump proposed introduced and voted on laws and amendments to the ESA One example was from the Interior Department which wanted to add economic considerations when deciding if a species should be on the endangered or threatened list 74 In October 2019 at the urging of the Pacific Legal Foundation and the Property and Environment Research Center 75 76 the USFWS and the NMFS under President Donald Trump changed the 4 d rule to treat threatened and critically endangered species differently legalizing private recovery initiatives and habitats for species that are merely threatened 77 Environmental opponents criticized the revision as crashing like a bulldozer through the act and tipping the scales way in favour of industry 78 79 80 Some critics including the Sierra Club have pointed out these changes come just months after the IPBES released its Global Assessment Report on Biodiversity and Ecosystem Services which found that human activity has pushed a million species of flora and fauna to the brink of extinction and would only serve to exacerbate the crisis 81 82 83 The California legislature passed a bill to raise California regulations to thwart Trump s changes but it was vetoed by Governor Newsom 84 In January 2020 the House Natural Resources Committee reported similar legislation 85 In December 2020 the Trump administration further rolled back the Endangered Species Act by reducing habitat protections for at risk species and now restricts protections to where they currently live not where they lived previously or where they might migrate to as a result of climate change 86 In June 2021 the Biden administration said it was reviewing the Trump era rollback of the Endangered Species Act and plans to reverse or revise some of the changes in particular those relating to critical habitat regulations The Biden administration is also considering restoring some protections for those species listed under the act as threatened 87 On July 5 2022 a federal judge reversed many of the Trump administration s rollbacks of the Endangered Species Act 88 Section by Section Summaries of the 1973 Act editSection 4 Listing and Recovery edit Section 4 of the ESA sets forth the process by which species are designated as endangered or threatened Species with these designations receive protections under federal law Section 4 also requires critical habitat designation and recovery plans for those species Petition and listing edit 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 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 89 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 90 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 91 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 58 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 92 Listing process edit 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 Register the US government s official journal of proposed or adopted rules and regulations 1 If a petition presents information that the species may be 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 this 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 93 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 94 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 95 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 95 Citizen involvement has been shown to identify species not moving through the process efficiently 96 and identify more imperiled species 97 The longer species are listed the more likely they are to be classified as recovering by the FWS 64 Public notice comments and judicial review edit Public notice 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 98 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 99 Listing status edit nbsp U S Endangered Species Act ESA Listing status and its abbreviations used in Federal Register and by federal agencies like the U S Fish and Wildlife Service 100 101 102 E endangered Sec 3 6 Sec 4 a 100 any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest T threatened Sec 3 20 Sec 4 a 100 any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its rangeOther categories C candidate Sec 4 b 3 100 a species under consideration for official listing E S A T S A endangered or threatened due to similarity of appearance Sec 4 e 100 a species not endangered or threatened but so closely resembles in appearance a species which has been listed as endangered or threatened that enforcement personnel would have substantial difficulty in attempting to differentiate between the listed and unlisted species XE XN experimental essential or non essential population Sec 10 j 100 any population including eggs propagules or individuals of an endangered species or a threatened species released outside the current range under authorization of the Secretary Experimental nonessential populations of endangered species are treated as threatened species on public land for consultation purposes and as species proposed for listing on private land Recovery plan edit 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 103 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 95 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 95 The goal of the law is to make itself unnecessary and recovery plans are a means toward that goal 104 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 105 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 104 Recovery plans cover domestic and migratory species 106 Downlisting and Delisting edit nbsp Northern flying squirrel Downlisting of a species can take place when important threats have been controlled and the population in the wild meets recovery objectives Downlisting entails reclassification from endangered to threatened 107 To delist a species several factors are considered control or elimination of threats population size and growth in the wild and the stability of habitat quality and quantity Species can also be delisted if an error notably population size is found in the data used for listing in the first place More than a dozen species have been delisted under such circumstances Two examples of animal species 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 108 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 lists four plants that have recovered 109 nbsp Eggert s sunflower Helianthus eggertii nbsp Robbins cinquefoil Potentilla robbinsiana an alpine wildflower found in the White Mountains of New Hampshire nbsp Maguire daisy Erigeron maguirei nbsp Tennessee purple coneflower Echinacea tennesseensis Section 6 State endangered species lists edit Section 6 of the Endangered Species Act 110 provided funding for development of programs for management of threatened and endangered species by state wildlife agencies 111 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 112 Minnesota 113 and Maine 114 Section 7 Cooperation and Consultation edit This section needs additional citations for verification Please help improve this article by adding citations to reliable sources in this section Unsourced material may be challenged and removed Find sources Endangered Species Act of 1973 news newspapers books scholar JSTOR December 2020 Learn how and when to remove this template message Overview edit Section 7 of the Endangered Species Act requires cooperation among federal agencies to conserve endangered or threatened species 115 Section 7 a 1 directs the Secretary of the Interior and all federal agencies to proactively use their authorities to conserve such species This directive is often referred to as an affirmative requirement Section 7 a 2 of the Act requires federal agencies to ensure their actions do not jeopardize listed species or adversely modify critical habitat Federal agencies referred to as action agencies must consult with the Secretary of the Interior before taking any action which may affect listed species Section 7 a 2 is often referred to as the consultation process The two agencies that administer the Act are the National Marine Fisheries Service NMFS and the U S Fish and Wildlife Service FWS These two agencies are often collectively referred to as the Services and lead the consultation process FWS is responsible for the recovery of terrestrial freshwater and catadromous species NMFS is responsible for marine species and anadromous fish NMFS manages recovery for 165 endangered and threatened marine species including 66 foreign species As of January 2020 the Services have listed 2 273 species worldwide as endangered or threatened 1 662 of these species occur in the United States Section 7 a 1 edit Section 7 a 1 requires federal agencies to work with FWS and NMFS to coordinate endangered and threatened species conservation Federal agencies should also account for any effects on endangered or threatened species in planning their activities An example of the 7 a 1 process is the Army Corps of Engineers management of the Lower Mississippi River Since the early 2000s a division of the U S Army Corps of Engineers has worked with FWS and the states to resolve endangered species and ecosystem management issues ESA listed species in the area include the least tern Sterna antillarum pallid sturgeon Scaphirhynchus albus and the fat pocketbook potamilus capax 116 The goal of this 7 a 1 conservation plan is to protect listed species while allowing the Corps to carry out its civil works responsibilities As part of the plan the Corps undertakes projects that will benefit those species It also considers species ecology as a part of project design All three listed species in the Lower Mississippi River have increased in numbers since the plan was established Section 7 a 2 edit An action agency is required to consult with the Services if it has reason to believe that a species listed under the ESA may be present in the proposed project area It also must consult if the agency believes the action will likely affect the species This requirement established by section 7 a 2 is commonly referred to as the consultation process Informal consultation phase edit Consultation typically begins informally at the request of an action agency in the early stages of project planning 117 Discussion topics include listed species in the proposed action area and any effect s the action may have on those species If both agencies agree that the proposed action is not likely to affect the species the project moves forward However if the agency s action may affect a listed species the agency is required to prepare a biological assessment Biological assessments edit A biological assessment is a document prepared by the action agency It lays out the project s potential effects particularly on listed species The action agency must complete a biological assessment if listed species or critical habitat may be present The assessment is optional if only proposed species or critical habitat are present As a part of the assessment the action agency conducts on site inspections to see whether protected species are present The assessment will also include the likely effects of the action on such species The assessment should address all listed and proposed species in the action area not only those likely to be affected The biological assessment may also include conservation measures Conservation measures are actions the action agency intends to take to promote the recovery of listed species These actions may also serve to minimize the projects effects on species in the project area There are three possible conclusions to a biological assessment no effect not likely to adversely affect or likely to adversely affect listed or proposed species The action agency may reach a no effect conclusion if it determines the proposed action will not affect listed species or designated critical habitat The action agency may reach a not likely to adversely affect decision if the proposed action is insignificant or beneficial The Services will then review the biological assessment and either agree or disagree with the agency s findings If the Services agree the project s potential impacts have been eliminated they will concur in writing The concurrence letter must outline any modifications agreed to during informal consultation If an agreement cannot be reached the Services advise the action agency to initiate formal consultation If the Services or the action agency finds the action likely to adversely affect protected species this triggers formal consultation Formal consultation edit During formal consultation the Services establish the project s effects on listed species Specifically they address whether the project will jeopardize the continued existence of any listed species or destroy adversely modify species designated critical habitat Jeopardy is not defined in the ESA but the Services have defined it in regulation to mean when an action is likely to appreciably reduce a species likelihood of survival and recovery in the wild In other words if an action merely reduces the likelihood of recovery but not survival then the standard of jeopardy is not met To assess the likelihood of jeopardy the Services will review the species biological and ecological traits These could include the species population dynamics population size variability and stability life history traits critical habitat and how any proposed action might alter its critical habitat They also consider how limited the species range is and whether the threats that led to species listing have improved or worsened since listing The Services have defined adverse modification as a diminishment of critical habitat that leads to a lower likelihood of survival and recovery for a listed species The diminishment may be direct or indirect To assess the likelihood of adverse modification biologists will first verify the scope of the proposed action This includes identifying the area likely to be affected and considering the proximity of the action to species or designated critical habitat The duration and frequency of any disturbance to the species or its habitat is also assessed A formal consultation may last up to 90 days After this time the Services will issue a biological opinion The biological opinion contains findings related to the project s effects on listed and proposed species The Services must complete the biological opinion within 45 days of the conclusion of formal consultation However the Services may extend this timeline if they require more information to make a determination The action agency must agree to the extension Finding of no jeopardy or adverse modification edit The Services may issue a finding of no jeopardy or adverse modification if the proposed action does not pose any harm to listed or proposed species or their designated critical habitat Alternatively the Service could find that proposed action is likely to harm listed or proposed species or their critical habitat but does not reach the level of jeopardy or adverse modification In this case the Services will prepare an incidental take statement Under most circumstances the ESA prohibits take of listed species Take includes harming killing or harassing a listed species However the ESA allows for incidental take that results from an otherwise lawful activity that is not the direct purpose of the action An incidental take statement will be agreed to between the Services and the action agency The statement should describe the amount of anticipated take due to the proposed action It will also include reasonable and prudent measures to minimize the take Incidental take cannot pose jeopardy or potential extinction to species Finding of jeopardy or adverse modification edit Following formal consultation the Services may determine that the action will result in jeopardy or adverse modification to critical habitat If this is the case this finding will be included in the biological opinion However during consultation the Services may find there are actions that the agency may take to avoid this These actions are known as reasonable and prudent alternative actions In the event of a jeopardy or adverse modification finding the agency must adopt reasonable and prudent alternative actions However the Services retain final say on which are included in the biological opinion According to regulation reasonable and prudent alternative actions must be consistent with the purpose of the proposed project be consistent with the action agency s legal authority and jurisdiction be economically and technically feasible in the opinion of the Services avoid jeopardyGiven a finding of jeopardy or adverse modification the action agency has several options Adopt one or more of the reasonable and prudent alternative actions and move forward with the modified project Elect not to grant the permit fund the project or undertake the action Request an exemption from the Endangered Species Committee Another possibility is to re initiate consultation The action agency would do this by first proposing to modify the action Propose reasonable and prudent alternatives not yet consideredThe action agency must notify the Services of its course of action on any project that receives a jeopardy or adverse modification opinion In the past ten years FWS has made jeopardy determinations in three cases delta smelt aquatic species in Idaho and South Florida water management each of which has included reasonable and prudent alternatives No project has been stopped as a result of FWS finding a project had no available path forward In rare cases no alternatives to avoid jeopardy or adverse modification will be available An analysis of FWS consultations from 1987 to 1991 found only 0 02 were blocked or canceled because of a jeopardy or adverse modification opinion with no reasonable and prudent alternatives 118 In this scenario the only option that the action agency and applicant are left with is to apply for an exemption Exemptions are decided upon by the Endangered Species Committee Exemptions edit An action agency may apply for an exemption if 1 it believes it cannot comply with the requirements of the biological opinion or 2 formal consultation yields no reasonable and prudent alternative actions The exemption application must be submitted to the Secretary of the Interior within 90 days of the conclusion of formal consultation The Secretary can then recommend the application to the Endangered Species Committee informally known as The God Squad This committee is composed of several Cabinet level members The Secretary of Agriculture The Secretary of the Army The Secretary of the Interior The Chairman of the Council of Economic Advisers The Administrator of the Environmental Protection Agency The Administrator of the National Oceanic and Atmospheric Administration One representative from each affected State appointed by the President of the United States Endangered Species Committee decisions edit nbsp Northern spotted owlThe governor of each affected state is notified of any exemption applications The governor will recommend a representative to join the committee for this application decision Within 140 days of recommending an exemption the Secretary should submit to the committee a report that gives the availability of reasonable and prudent alternatives a comparison of the benefits of the proposed action to any alternative courses of action whether the proposed action is in the public interest or is of national or regional significance available mitigation measures to limit the effects on listed species whether the action agency made any irreversible or irretrievable commitment of resourcesOnce this information is received the committee and the secretary will hold a public hearing The committee has 30 days from the time of receiving the above report to make a decision In order for the exemption to be granted five out of the seven members must vote in favor of the exemption 119 The findings can be challenged in federal court In 1992 one such challenge was the case ofPortland Audubon Society v Endangered Species Committee heard in the Ninth Circuit Court of Appeals 120 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 120 Rarely does the Endangered Species Committee consider projects for exemption The Endangered Species Committee has only met three times since the inception of the ESA An exemption was granted on two of these occasions Section 10 Permitting Conservation Agreements and Experimental Populations edit Section 10 of the ESA provides a permit system that may allow acts prohibited by Section 9 This includes scientific and conservation activities For example the government may let someone move a species from one area to another This would otherwise be a prohibited taking under Section 9 Before the law was amended in 1982 a listed species could be taken only for scientific or research purposes The combined result of the amendments to the Endangered Species Act have created a more flexible ESA 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 that would balance the goals of economic development and conservation 121 Habitat conservation plans edit Section 10 may also allow activities that can unintentionally impact protected species A common activity might be construction where these species live More than half of habitat for listed species is on non federal property 122 Under section 10 impacted parties can apply for an incidental take permit ITP An application for an ITP requires a Habitat Conservation Plan HCP 123 HCPs must minimize and mitigate the impacts of the activity HCPs can be established to provide protections for both listed and non listed species Such non listed species include species that have been proposed for listing Hundreds of HCPs have been created However the effectiveness of the HCP program remains unknown 124 If activities may unintentionally take a protected species an incidental take permit can be issued The applicant submits an application with an habitat conservation plan HCP If approved by the agency FWS or NMFS they are issued an Incidental Take Permit ITP The permit allows a certain number of the species to be taken The Services have a No Surprises policy for HCPs Once an ITP is granted the Services cannot require applicants to spend more money or set aside additional land or pay more 125 To receive the benefit of the permit the applicant must comply with all the requirements of the HCP Because the permit is issued by a federal agency to a private party it is a federal action Other federal laws will apply such as the National Environmental Policy Act NEPA and Administrative Procedure Act APA A notice of the permit application action must be published in the Federal Register and a public comment period of 30 to 90 days offered 126 Safe Harbor Agreements edit The Safe Harbor agreement SHA is similar to an HCP It is voluntary between the private landowner and the Services 127 The landowner agrees to alter the property to benefit a listed or proposed species In exchange the Services will allow some future takes through an Enhancement of Survival Permit A landowner can have either a Safe Harbor agreement or an HCP or both The policy was developed by the Clinton administration 128 Unlike an HCP the activities covered by a SHA are designed to protect species The policy relies on the enhancement of survival provision of Section 1539 a 1 A Safe harbor agreements are subject to public comment rules of the APA Candidate Conservation Agreements With Assurances edit HCPs and SHAs are applied to listed species If an activity may take a proposed or candidate species parties can enter into Candidate Conservation Agreements With Assurances CCAA 129 A party must show the Services they will take conservation measures to prevent listing If a CCAA is approved and the species is later listed the party with a CCAA gets an automatic enhancement of survival permit under Section 1539 a 1 A CCAAs are subject to the public comment rules of the APA Experimental populations edit Experimental populations are listed species that have been intentionally introduced to a new area They must be separate geographically from other populations of the same species Experimental populations can be designated essential or non essential 130 Essential populations are those whose loss would appreciably reduce the survival of the species in the wild Non essential populations are all others Nonessential experimental populations of listed species typically receive less protection than populations in the wild Penalties edit 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 web site 131 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 132 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 edit 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 and forest service 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 editCritical habitat Endangered Species Act Amendments of 1978 List of endangered species in North America Tennessee Valley Authority v Hill Lujan v Defenders of Wildlife Marine Mammal Protection Act of 1972 National Oceanic and Atmospheric Administration United States Fish and Wildlife Service list of endangered mammals and birdsFootnotes edit a b Tennessee Valley Authority v Hill 437 U S 153 1978 Retrieved 24 November 2015 nbsp This article incorporates public domain material from websites or documents of the United States Government U S Fish and Wildlife Service International Affairs CITES Retrieved on 29 January 2020 nbsp This article incorporates public domain material from websites or documents of the United States Fish and Wildlife Service Summary of the Endangered Species Act Laws amp Regulations US EPA Dunlap Thomas R 1988 Saving America s wildlife Princeton University Press ISBN 0 691 04750 2 Whooping Crane Natural History Notebooks nature ca Retrieved January 29 2020 Punke Michael 2007 Last stand George Bird Grinnell the battle to save the buffalo and the birth of the new West New York Smithsonian Books Collins ISBN 978 0 06 089782 6 OCLC 78072713 Kristina Alexander The Lacey Act protecting the environment by restricting trade Congressional Research Service 2014 online Robert S Anderson The Lacey Act America s premier weapon in the fight against unlawful wildlife trafficking Public Land Law Review 16 1995 27 online Whooping Crane National Geographic Animals November 11 2010 Archived from the original on May 25 2017 Retrieved January 29 2020 Bald Eagle Fact Sheet www fws gov Retrieved January 29 2020 a b c d e f g h i j k l m Bean Michael J April 2009 The Endangered Species Act Science Policy and Politics Annals of the New York Academy of Sciences 1162 1 369 391 doi 10 1111 j 1749 6632 2009 04150 x PMID 19432657 S2CID 40956038 PUBLIC LAW 89 669 OCT 15 1966 PDF a b Goble Endangered Species Act at Thirty p 45 AP March 12 1967 78 Species Listed Near Extinction Udall Issues Inventory With Appeal to Save Them New York Times The Role of the Endangered Species Act and U S Fish and Wildlife Service in the Recovery of the Peregrine Falcon www fws gov Retrieved January 29 2020 Public Law 91 135 Dec 5 1969 PDF GA 1963 RES 005 IUCN Library System portals iucn org Retrieved January 29 2020 What is CITES CITES www cites org Retrieved January 29 2020 Hall Dale July 15 2013 Endangered Species Program Laws amp Policies Endangered Species Act A History of the Endangered Species Act of 1973 The Endangered Species Act at 35 www fws gov Interviewed by Mike Bender Ann Haas Kelly Geer Nan Rollison Archived from the original on October 17 2013 Environmental Protection Agency Archived from the original on February 3 2011 Rinde Meir 2017 Richard Nixon and the Rise of American Environmentalism Distillations 3 1 16 29 Retrieved April 4 2018 Speech by Dr Bertrand to the Lewis amp Clark School of Law on the 50th Anniversary of the Act August 2013 Inside the Effort to Kill Protections for Endangered Animals National Geographic News August 12 2019 Archived from the original on August 14 2019 Retrieved January 29 2020 a b Flesher John August 4 2023 After helping prevent extinctions for 50 years the Endangered Species Act itself may be in peril Associated Press House panel OKs bill to undo Trump changes to Endangered Species Act Cronkite News Retrieved February 14 2020 a b Friedman Lisa Einhorn Catrin June 21 2023 Biden Administration Moves to Restore Endangered Species Protections New York Times a b Campbell Faith September 1988 Legal Protection of Plants in the United States Pace Environmental Law Review 6 1 1 22 doi 10 58948 0738 6206 1382 S2CID 126724280 Retrieved November 29 2022 a b Shirey Patrick D et al April 2013 MINI REVIEW Commercial trade of federally listed threatened and endangered plants in the United States Conservation Letters 6 5 300 316 doi 10 1111 conl 12031 S2CID 83087358 Dalrymple Sarah Elizabeth July 16 2021 Why climate change is forcing conservationists to be more ambitious by moving threatened species to pastures new The Conversation Retrieved November 29 2022 PBS News Hour August 4 2023 After helping prevent extinctions for 50 years the Endangered Species Act itself may be at risk PBS Stephen Dubner and Steven Levitt Unintended Consequences New York Times Magazine 20 January 2008 Blackmon David The Radical Abuse of the ESA Threatens the US Economy Forbes Retrieved February 21 2020 Richard L Stroup 1 Archived October 12 2007 at the Wayback Machine The Endangered Species Act Making Innocent Species the Enemy PERC Policy Series April 1995 Western Caucus Introduces Bipartisan Package Of Bills Aimed To Reform Update ESA Western Wire July 12 2018 Retrieved February 21 2020 Broder John M 2010 03 05 No Endangered Status for Plains Bird Nytimes com Retrieved on 2011 08 07 Boyt Jeb 1993 Struggling to Protect Ecosystems and Biodiversity under NEPA and NFMA The Ancient Forests of the Pacific Northwest and the Northern Spotted Owl Comment Pace Environmental Law Review 10 2 1009 1050 a b Bailey Ronald December 31 2003 Shoot Shovel and Shut Up Reason Magazine Archived from the original on October 30 2006 POLITICO Pro subscriber politicopro com Retrieved November 14 2023 Brown Gardner M Jr Shogren Jason F 1998 Economics of the Endangered Species Act Journal of Economic Perspectives 12 3 3 20 doi 10 1257 jep 12 3 3 S2CID 39303492 Habitat Conservation Plans Section 10 of the Endangered Species Act Midwest Region Endangered Species Endangered Species Consultation Handbook PDF Flesher John August 4 2023 After helping prevent extinctions for 50 years the Endangered Species Act itself may be in peril AP News Retrieved August 4 2023 100th Congress Public Law 100 478 PDF Congress gov U S Government Retrieved September 24 2023 a href Template Cite web html title Template Cite web cite web a CS1 maint numeric names authors list link Frederico Jake September 16 2023 Do wildlife agencies shortchange lesser known species Activists question priorities Arizona Republic Federal and State Endangered and Threatened Species Expenditures Fiscal Year 2020 PDF fws gov U S Fish and Wildlife Service Retrieved September 24 2023 Species Search ecos fws gov Retrieved February 21 2020 Reclassified Species ecos fws gov Retrieved February 21 2020 110 Success Stories for Endangered Species Day 2012 www esasuccess org Retrieved February 21 2020 Greenwald Noah Suckling Kieran F Hartl Brett Mehrhoff Loyal A April 22 2019 Extinction and the U S Endangered Species Act PeerJ 7 e6803 doi 10 7717 peerj 6803 ISSN 2167 8359 PMC 6482936 PMID 31065461 a b Evans Daniel et al Species Recovery in the United States Increasing the Effectiveness of the Endangered Species Act PDF Issues in Ecology Puckett Emily E Kesler Dylan C Greenwald D Noah September 2016 Taxa petitioning agency and lawsuits affect time spent awaiting listing under the US Endangered Species Act Biological Conservation 201 220 229 doi 10 1016 j biocon 2016 07 005 Infographic The ESA needs more than double its current funding PDF Center for Conservation Innovation Defenders of Wildlife Platt John R Tiny Ohio Catfish Species Last Seen in 1957 Declared Extinct Scientific American Blog Network Retrieved February 21 2020 The endangered species list is full of ghosts Popular Science February 25 2019 Retrieved February 21 2020 Critical Habitat under the Endangered Species Act Southeast Region of the U S Fish and Wildlife Service Retrieved February 21 2020 ESA at Thirty p 89 Stanford Environmental Law Society 2001 pp 61 64 a b 16 U S C 1533 b 2 Stanford Environmental Law Society 2001 p 68 U S Endangered Species Act Works Study Finds Archived from the original on October 25 2005 Center for Biological Diversity authors K F Suckling J R Rachlinski Stanford Environmental Law Society 2001 p 86 a b Suckling Kieran M Taylor 2006 Critical Habitat Recovery In D D Goble J M Scott F W Davis eds The Endangered Species Act at 30 Vol 1 Renewing the Conservation Promise Washington D C Island Press p 77 ISBN 1597260096 a b Taylor M T K S Suckling amp R R Rachlinski 2005 The effectiveness of the Endangered Species Act A quantitative analysis BioScience 55 4 360 367 doi 10 1641 0006 3568 2005 055 0360 TEOTES 2 0 CO 2 ISSN 0006 3568 U S Fish and Wildlife Service June 6 2022 Press release Department of the Interior Proposes Expanding Conservation Technique as Climate Change Threatens Greater Species Extinction fws gov St George Zach October 27 2022 Last Resort Moving Endangered Species in Order to Save Them Yale Environment 360 Rulemaking document Endangered and Threatened Wildlife and Plants Designation of Experimental Populations Regulations gov U S Government Retrieved September 8 2022 McKee Jenny June 24 2022 Wildlife Officials Want to Make it Easier to Relocate Climate Imperiled Species Audubon Retrieved September 8 2022 Shirey Patrick D Lamberti Gary A 2010 Assisted colonization under the U S Endangered Species Act Conservation Letters 3 1 45 52 doi 10 1111 j 1755 263X 2009 00083 x Thompson Joanna October 12 2023 Assisted Migration Helps Animals Adapt to Climate Change Sierra Magazine U S Department of Interior June 30 2023 Press release Interior Department Takes Action to Strengthen Endangered Species Protections fws gov U S Department of Interior July 3 2023 Endangered and Threatened Wildlife and Plants Designation of Experimental Populations PDF Federal Register 88 126 42642 42652 Juliet Eilperin Since 01 Guarding Species Is Harder Endangered Listings Drop Under Bush Washington Post March 23 2008 Here s Why the Endangered Species Act Was Created in the First Place Time Retrieved August 13 2019 Interior announces improvements to the Endangered Species Act Pacific Legal Foundation March 23 2018 Retrieved February 14 2020 The Road to Recovery PERC April 24 2018 Retrieved February 14 2020 USFWS and NMFS Approve Changes to Implementation of Endangered Species Act Civil amp Environmental Consultants Inc October 16 2019 Retrieved February 14 2020 Trump to roll back endangered species protections August 12 2019 Retrieved August 13 2019 Lambert Jonathan August 12 2019 Trump administration weakens Endangered Species Act Nature Retrieved August 12 2019 D Angelo Chris August 12 2019 Trump Administration Weakens Endangered Species Act Amid Global Extinction Crisis The Huffington Post Retrieved August 12 2019 Resnick Brian August 12 2019 The Endangered Species Act is incredibly popular and effective Trump is weakening it anyway Vox Retrieved February 16 2020 Colorful Tennessee fish protected as endangered Phys org October 21 2019 Retrieved February 16 2020 Trump Extinction Plan Guts Endangered Species Act Sierra Club August 12 2019 Retrieved February 16 2020 Newsom signals he is rejecting far reaching environmental legislation CalMatters September 15 2019 Retrieved February 14 2020 House panel OKs bill to undo Trump changes to Endangered Species Act Cronkite News Retrieved February 14 2020 Trump Rolls Back Endangered Species Act Removes Habitat Protections of At Risk Animals Democracy Now December 16 2020 Retrieved January 4 2021 Stark Liz June 4 2021 Biden administration plans to undo Trump era curbs to Endangered Species Act protections CNN Retrieved June 15 2021 Judge throws out Trump era rollbacks on endangered species CBS News July 5 2022 Retrieved July 14 2022 Notice Endangered and Threatened Wildlife Final Listing Priority Guidance for FY 2000 Federal Register pp 27114 19 Retrieved July 3 2009 permanent dead link 16 U S C 1533 b 1 A Stanford Environmental Law Society 2001 p 40 Stanford Environmental Law Society 2001 p 23 16 U S C 1533 b 3 C iii ESA at Thirty p 58 a b c d Greenwald Noah K Suckling M Taylor 2006 Factors affecting the rate and taxonomy of species listings under the U S Endangered Species Act In D D Goble J M Scott F W Davis eds The Endangered Species Act at 30 Vol 1 Renewing the Conservation Promise Washington D C Island Press pp 50 67 ISBN 1597260096 Puckett Emily E Kesler Dylan C Greenwald D Noah 2016 Taxa petitioning agency and lawsuits affect time spent awaiting listing under the US Endangered Species Act Biological Conservation 201 220 229 doi 10 1016 j biocon 2016 07 005 Brosi Berry J Biber Eric G N 2012 Citizen Involvement in the U S Endangered Species Act Science 337 6096 802 803 Bibcode 2012Sci 337 802B doi 10 1126 science 1220660 PMID 22903999 S2CID 33599354 U S C 1533 b 5 A E Stanford Environmental Law Society 2001 p 50 a b c d e f ENDANGERED SPECIES ACT OF 1973 PDF U S Senate Committee on Environment amp Public Works Retrieved December 25 2012 Endangered Species Program Species Status Codes U S Fish and Wildlife Service Retrieved December 25 2012 Electronic Code of Federal Regulations Title 50 Wildlife and Fisheries U S Government Printing Office Retrieved December 25 2012 The ESA does allow FWS and NMFS to forgo a recovery plan by declaring it will not benefit the species but this provision has rarely been invoked It was most famously used to deny a recovery plan to the northern spotted owl in 1991 but in 2006 the FWS changed course and announced it would complete a plan for the species a b 16 U S C 1533 f Stanford Environmental Law Society 2001 pp 72 73 Stanford Environmental Law Society 2001 p 198 USFWS Delisting a Species accessed August 25 2009 Archived March 26 2010 at the Wayback Machine Federal Register Volume 76 Issue 87 Thursday May 5 2011 FWS Delisting Report Archived 2007 07 28 at the Wayback Machine 16 U S Code 1535 Cooperation with States 16 U S Code 1535 Florida Endangered amp Threatened Species List Archived from ht tp myfwc com imperiledspecies species htm the original on December 25 2008 Retrieved November 23 2008 a href Template Cite web html title Template Cite web cite web a Check url value help Minnesota Endangered amp Threatened Species List Compare Maine State amp Federal Endangered amp Threatened Species Lists Archived 2008 12 07 at the Wayback Machine with Maine Animals Endangered Species Program Laws amp Policies Endangered Species Act Section 7 Interagency cooperation www fws gov Retrieved March 26 2020 Mississippi Ecological Field Services Office www fws gov Retrieved March 26 2020 U S Fish and Wildlife Service Ecological Services www fws gov Retrieved March 26 2020 Endangered species recovery finding the lessons improving the process Clark Susan G 1942 Reading Richard P Clarke Alice L Washington D C Island Press 1994 ISBN 1 55963 271 2 OCLC 30473323 a href Template Cite book html title Template Cite book cite book a CS1 maint others link on 04 23 2014 Benjamin Rubin Calling on The God Squad www endangeredspecieslawandpolicy com Retrieved March 26 2020 a href Template Cite web html title Template Cite web cite web a CS1 maint numeric names authors list link a b Portland Audubon Societyv Endangered Species Committee Justia Retrieved August 26 2009 John D Leshy The Babbitt Legacy at the Department of the Interior A Preliminary View Environmental Law 31 2001 199 online Stanford Environmental Law Society 2001 p 127 Endangered Species What We Do Habitat Conservation Plans Overview www fws gov Retrieved February 28 2020 Why Isn t Publicly Funded Conservation on Private Land More Accountable Yale E360 Retrieved February 28 2020 Stanford Environmental Law Society 2001 pp 170 171 Stanford Environmental Law Society 2001 pp 147 148 Endangered Species For Landowners Safe Harbor Agreements www fws gov Retrieved February 28 2020 Stanford Environmental Law Society 2001 pp 168 169 Endangered Species Program What We Do Candidate Conservation Candidate Conservation Agreements with Assurances Policy www fws gov Retrieved February 28 2020 Non Essential Experimental Population Southeast Region of the U S Fish and Wildlife Service Retrieved February 28 2020 http www gc noaa gov schedules 6 ESA EnadangeredSpeciesAct pdf bare URL PDF 2 Archived April 6 2010 at the Wayback MachineReferences and further reading editBrown Gardner M and Jason F Shogren Economics of the endangered species act Journal of Economic Perspectives 12 3 1998 3 20 online Carroll Ronald et al Strengthening the use of science in achieving the goals of the Endangered Species Act an assessment by the Ecological Society of America Ecological Applications 6 1 1996 1 11 online Corn M Lynne and Alexandra M Wyatt The Endangered Species Act A Primer Congressional Research Service 2016 Czech Brian and Paul R Krausman The endangered species act history conservation biology and public policy JHU Press 2001 Doremus Holly Listing decisions under the Endangered Species Act why better science isn t always better policy Washington U Law Quarterly 75 1997 1029 online Doremus Holly Adaptive Management the Endangered Species Act and the Institutional Challenges of New Age Environmental Protection Washburn Law Journal 41 2001 50 online Easter Pilcher Andrea Implementing the endangered species act Bioscience 46 5 1996 355 363 online Goble Dale and J Michael Scott eds The Endangered Species Act at Thirty Island Press 2006 excerpt Green Alan The Center for Public Integrity 1999 Animal Underworld Inside America s Black Market for Rare and Exotic Species Public Affairs ISBN 978 1 58648 374 6 Leshy John D The Babbitt Legacy at the Department of the Interior A Preliminary View Environmental Law 31 2001 199 online Noss Reed F Michael O Connell and Dennis D Murphy The science of conservation planning habitat conservation under the Endangered Species Act Island Press 1997 Petersen Shannon Congress and charismatic megafauna A legislative history of the endangered species act Environmental Law 29 1999 463 Schwartz Mark W The performance of the endangered species act in Annual Review of Ecology Evolution and Systematics 39 2008 online Stanford Environmental Law Society 2001 The Endangered Species Act Illustrated ed Stanford University Press ISBN 0804738432 a href Template Cite book html title Template Cite book cite book a CS1 maint ref duplicates default link Taylor Martin FJ Kieran F Suckling and Jeffrey J Rachlinski The effectiveness of the Endangered Species Act a quantitative analysis BioScience 55 4 2005 360 367 onlineExternal links editAs codified in 16 U S C chapter 35 of the United States Code from the LII As codified in 16 U S C chapter 35 of the United States Code from the US House of Representatives Endangered Species Act of 1973 PDF details as amended in the GPO Statute Compilations collection 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 Endangered Species Program US Fish amp Wildlife Service accessed June 16 2012 Endangered Species Act National Marine Fisheries Service NOAA accessed June 16 2012 Species Status Categories and Codes US Fish amp Wildlife Service accessed June 16 2012 Habitat Conservation Plans US Fish amp Wildlife Service accessed June 16 2012 The 1978 decision related to the ESA and the snail darter accessed July 2005 Summary of Listed Species Listed Populations and Recovery Plans US Fish amp Wildlife Service accessed June 16 2012 Species Search US Fish amp Wildlife Service accessed June 16 2012 Electronic Code of Federal Regulations List of endangered species accessed June 16 2012 Retrieved from https en wikipedia org w index php title Endangered Species Act of 1973 amp oldid 1188016080, wikipedia, wiki, book, books, library,

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