Endangered Species Act

Posted: Apr 14, 2010

 

The Endangered Species Act (ESA) is one of the most powerful of this nation's environmental laws. Passed in 1973, the act's purpose is to both conserve and restore species that have been listed by the federal government as either endangered or threatened (referred to as "listed" species). The act has several provisions that promote those goals:

  • First, the act broadly prohibits anyone from doing anything that would kill, harm, or harass an endangered species. Those prohibitions even apply when listed animal species are on private lands.
  • Second, federal agencies have a special obligation to ensure that they do nothing that would harm a listed species. That obligation significantly affects activities on federal lands, like grazing, logging, and mining. But it also means that a federal agency has to assess whether its actions could affect a listed species before the agency signs off on projects like a new highway or a dam on non-federal land.
  • Third, the act tells federal agencies to develop plans that show how the listed species could be restored—or "recovered"—so that it no longer needs the act's protections ("delisted").

Key Concepts

Endangered Species

If an animal or plant species is listed as "endangered," the species is considered to be in danger of extinction throughout a large part of its range. It is possible that a species can be listed as endangered, the highest level of protection the act provides, in one place but not another. The U.S.Fish and Wildlife Service (USFWS) maintains a list of endangered species.

Threatened Species

For a species to be listed as "threatened," there must be a significant risk that the species is going to become endangered. Threatened species have a lower risk of extinction than do "endangered" species. As a result, state and federal agencies may have some greater flexibility in how they manage a threatened species than an endangered species. The USFWS maintains a list of threatened species.

Species

Generally speaking, a "species" is a group of related plants or animals that can interbreed to produce offspring. Under the ESA, the word "species" is used more broadly to include any "subspecies" of fish, wildlife, or plants, and also any "distinct population segment" of fish and wildlife species that can interbreed.

  • "subspecies" is a subdivision of a species, which is genetically different from other subspecies and often is geographically separated. Examples of subspecies are the Mexican and the Northern Spotted Owls.
  • A "distinct population segment" is not genetically different from the species as a whole, but it has very specific habitat or reproduction habits. An example of a distinct population segment is a particular group of salmon, which, after spending their formative years in the ocean, return to the same mountain stream in which they were born. Thus, the winter run of the Chinook salmon on the Sacramento River in California is endangered, and many other runs of Chinook salmon are threatened, but the spring run of Chinook up the Clackamas River in Oregon and Washington is neither endangered nor threatened.

Federal Agencies Responsible for Endangered species

The Secretary of the Interior has delegated most of his or her duties under the ESA to the U.S.Fish and Wildlife Service (USFWS), which is responsible for all land-based species. The Secretary of Commerce has delegated most of his or her responsibilities for sea life and salmon and steelhead ("anadromous fish" that spawn in inland waters, migrate to the ocean for several years, and then return to their spawning grounds) to the National Marine Fisheries Service (NMFS).

Tribes and the ESA

Secretarial Order Principles:

  1. Work directly with Indian Tribes on a government-to-government basis to promote healthy ecosystems
  2. Recognize that Indian lands are not subject to the same controls as federal public lands.
  3. Assist Indian tribes in developing and expanding tribal programs so that healthy ecosystems are promoted and conservation restrictions are unnecessary.
  4. Be sensitive to Indian culture, religion and spirituality.
  5. Make available to Indian tribes information related to tribal trust resources and Indian lands and, to facilitate the mutual exchange of information, strive to protect sensitive tribal information from disclosure.

Many tribes believe that the ESA should not apply to tribal lands both because the Act itself is silent on its applicability to tribes, and due to the special legal status of tribal lands. Additionally they saw conflict between their proposed economic development projects and enforcement of the ESA and felt that implementation of the ESA was giving control of their lands to persons living hundreds of miles away. As a result of these concerns, there were extensive negotiations between tribal representatives and federal officials that resulted in a 1997 Secretarial Order outlining the policy to be followed by the Departments of Commerce (for NMFS) and the Interior (for USFWS).

The Secretarial Order sets out five principles for the Departments. The order also includes explanatory text that emphasizes the sovereignty of tribes including a provision that "the Departments shall give deference to tribal conservation and management plans." Overall, the Order seeks to "ensure that Indian tribes do not bear a disproportionate burden for the conservation of listed species."

An example of the success of this cooperative approach is the experience of the White Mountain Apache Tribe in Arizona with restoration of the Mexican gray wolf, Apache trout, and Mexican spotted owl. 

Listing

The Best Available Science

The ESA requires that USFWS and NMFS base listing decisions on the best available science and also to use this science as one factor in critical habitat designations.  In 2003, a GAO report found procedures in place at USFWS to base listing decisions on best available science. In that report, however, the GAO cited continued concerns over agency use of best available science in critical habitat designations.

More recently, critics have charged that both listing and critical habitat decisions have been tainted by political interference. In late 2007, an Idaho District Court judge ruled that USFWS must reconsider its refusal to list the greater sage grouse under the ESA and the USFWS decided to revisit a number of decisions on listing, critical habitat and recovery plans that may have been tainted by political interference by Julie MacDonald, a former Department of the Interior political appointee.

"Listing" refers to the process by which a species is formally designated as a threatened or endangered species. Currently there are more than 1,260 species listed as endangered or threatened under the ESA. Anyone can submit apetition to the federal government to have a species listed. However, that petition must include scientific information that explains why listing is necessary. The two federal agencies that receive petitions are the USFWS and the NMFS. These agencies have a year to evaluate the species for listing. Either agency can also start the process without a petition.

After evaluating the species, the agency has three options:

  • It can agree that a species should be listed, that is, it concludes that the listing is "warranted" in all or a specific part of its range.
  • It can decide that listing is not justified, that is "not warranted."
  • It can conclude that while adding the species to the list is
    justified, other species have a higher priority; that is, listing is
    "warranted but precluded."

Regardless of what decision the agency makes, it must publish its
decision in the Federal Register and explain how it reached its
decision.

After years of litigation, the USFWS and several environmental groups announced a proposed settlement agreement in May 2011, under which the agency would make listing decisions on each of the over 250 species on its 2010 candidate list within the next six years. In return, the environmental groups would agree not to sue to compel 90-day and 12-month findings on new listing petitions the group submits and will limit the number of listing petitions it submits per year. In a separate settlement agreement with the Center for Biological Diversity in July 2011 (see CBD's announcement here), the USFWS agreed to specific deadlines to make listing decisions on additional species. See "Wolverine, other species jump to top of endangered review list with agreement," Missoulian, 7/17/11. U.S. District Court Judge Emmet Sullivan approved both settlement agreements on Sep. 9, 2011. See "Federal judge OKs deal on imperiled species," Great Falls Tribune, 9/9/11. In February 2013, the FWS issued a work plan with target dates for these listing decisions over the next five year. See "Endangered or not, but at least no longer waiting," New York Times, 3/6/13.

Endangered or Threatened in Part of its Range

 In March 2007, the USFWS adopted a policy that allows it to list a species in a portion of the species' range.  The policy was controversial with critics claiming that it would allow the agency to avoid listings and restoring species' historic ranges. In December 2009, a  group of scientists sent a letter asking Secretary of Interior Salazar to change the 2007 policy guiding agencies' determination of whether a species is endangered or threatened. The old policy, they argue, wrongly limits the analysis to present habitat range and fails to examine historic range. 

In 2010, litigation concerning the Northern Rockies population of the gray wolf invalidated this policy (see discussion below). The USFWS subsequently withdrew the 2007 memo and announced a draft policy in December 2011 that would end the practice of classifying species differently based on state lines. See Washington Post story on the significance of the change here.

This flowchart depicts the normal listing review process used by the USFWS. For a current list of candidate species for listing, see the USFWS's 11/9/09 Candidate Notice of Review.

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Flowchart courtesy of the U.S. Fish and Wildlife Service

Take, harm

The ESA has broad provisions to prevent extinction of plant and animal species. The act prohibits anyone from "taking" a species that has been listed as threatened or endangered. "Take" can be as simple as hunting, shooting or killing a listed animal species. It can also include "harming" a listed species by activities that cause major changes to habitat and leave an animal unable to feed, breed, or find shelter.

Critical habitat

When the federal government lists a species as endangered, it is also supposed to identify that species' critical habitat. Critical habitat includes those areas that are important for the species' survival or recovery and which need special management. While a designated critical habitat area is not intended to include all of the potential habitat of the species, it can include habitat that is not currently occupied by the species. The federal government is required to use the best available scientific information in making a decision about critical habitat. The agency can also consider economics when deciding what areas should be designated as critical habitat, although it does not consider economic impacts in a species listing decision.

In February 2011, the U.S. Supreme Court declined an opportunity to weigh in on how economic impacts should be considered in critical habitat designation. For a discussion of the issues and the cases presented for review, see "Supreme Court Won't Hear Critical Habitat Cases," Legal Planet, 2/22/11. In April 2012, the Fifth Circuit Court of Appeals ruled that the agency's denial of citizen groups' petitions to designate critical habitat is not subject to judicial review under the Administrative Procedures Act because it is "committed to agency discretion by law." The Eleventh Circuit followed suit in 2012 (Conservancy of Southwest Florida v. U.S. Fish & Wildlife Service, No. 11-11915, April 18, 2012).

The Secretary of the Interior is not allowed to designate critical habitat at a military site if the Secretary decides that the military site has a resource management plan in place that benefits the affected species. In advocating for this relatively new provision, the Pentagon claimed that this provision is necessary to maintain high standards of military training. 

On July 16, 2009, the Interior Department announced plans to withdraw a Bush-era plan for managing forests and protecting spotted owls in the Pacific Northwest because it is "legally indefensible," according to Interior Secretary Ken Salazar.  While it revised the withdrawn proposal, the Department reinstated the Northwest Forest Plan, a landmark 1994 agreement reached by the Clinton administration, timber companies and environmentalists. The Department is also asking a federal district court to vacate the Fish and Wildlife Service's 2008 revision of critical habitat for the spotted owl, on which the forest plan was based.  See "Limits on logging are reinstated," New York Times, 7/17/09. 

 

Recovery plan

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Click to download the GAO report

The federal agency responsible for a listed species must develop a recovery plan. The plan outlines how it will ensure the species' survival and restore it to the point where it no longer needs the act's protections and can be "delisted" or removed from the list of threatened or endangered species. Examples of recovery efforts include reintroduction of a species into formerly occupied habitat (bald eagles), land acquisition (Florida scrub jays), captive propagation (black-footed ferrets and California condors), habitat restoration and protection (Aleutian Canada geese), population assessments and research (Peter's Mountain mallow), technical assistance for landowners and public education. In most cases, the USFWS or NMFS works with state wildlife agencies, user groups, conservationists, and others in developing such a plan. Because developing and implementing recovery plans is expensive, the agencies focus their efforts on species that would most benefit from a plan. While few species have gone extinct since 1973, only nine have been "recovered" or removed from the list because they no longer need the act's protection.

For additional information, see GAO Report: Endangered Species: Time and Costs Required to Recover Species Are Largely Unknown

National Wildlife Federation v. State of Idaho
The 9th Circuit Court of Appeals decided in April 2007 that federal agencies must consider potential impacts of proposed actions on both species survival and on a species' chance of recovery. This analysis is necessary when developing a biological opinion to evaluate whether an agency action will result in jeopardy to the species.

For more information on this case, see Court's salmon ruling strengthens enviros' hand on species recovery.

For text of the decision and more information on the endangered salmon litigation, see National Wildlife Federation v. State of Idaho, No. 0635011p - 04/09/2007.

Experimental Population

An "experimental population" is a group of individuals of an endangered species that has been established outside the current range of the animals. Animals may be reintroduced to their historical range or to new areas because there is insufficient habitat in the animals' traditional range. Experimental populations are considered threatened, not endangered, and "taking" individual animals is permitted under certain circumstances. Protections of experimental populations vary widely, depending on whether the population is considered "essential" or "nonessential" for species survival. Designation as a "nonessential experimental population" under the 10(j) rule of the ESA assures that endangered species are fully protected from intentional harm, but keeps their presence from restricting current and future land management practices. Use of this special designation helped reduce concerns raised by local communities, landowners and political entities about the intentional release of endangered species that might enter and remain on public lands in their region. The reintroduction of gray wolves to their traditional range in Wyoming and the California condor to its historic range in Arizona are examples of experimental populations that are considered "nonessential" to survival of the species.

Delisting

The process for "delisting"—removing a species from either the endangered or threatened list, or changing its status from endangered to threatened—is similar to the formal listing process. The process starts with a notice published in the Federal Register. Delisting may include requirements for special management plans to help ensure a healthy population in the future. 

Consider, for example, the saga of the gray wolf:

  • In 2007, the U.S. Fish and Wildlife Service (USFWS) issued a rule delisting the Western Great Lakes population of the gray wolf.
  • Environmental groups filed a lawsuit (Humane Society of the U.S. v. Kempthorne) challenging this rule, and in a 2008 decision (579 F. Supp. 2d 7 (D.D.C. Sep. 29, 2008)) the U.S. District Court for the District of Columbia invalidated the rule, holding that the ESA's language is ambiguous about the authority of the USFWS to delist a population rather than the species as a whole.
  • The USFWS issued a new delisting rule for the Western Great Lakes population in April 2009. That rule remains in force today, although it too has been challenged.
  • In April 2009, the USFWS issued a rule delisting the Northern Rockies population of the gray wolf, but excepted the "Distinct Population Segment" in Wyoming because that state failed to promulgate an acceptable state management plan for the gray wolf. Several legal challenges followed, with contradictory results:
    • Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207 (D. Mont. Aug. 5, 2010), vacated the Rocky Mountain delisting rule, on the grounds that the ESA prohibits listing or delisting only part of a distinct population segment. In response, the USFWS reversed its earlier rule with a new rule on October 26, 2010 that reinstated regulatory protections.
    • Wyoming v. Dept. of the Interior, 2010 WL 4814950 (D. Wyo. Nov. 18, 2010), declared that the USFWS acted arbitrarily and capriciously by not delisting the wolf in Wyoming. The court remanded the case back to the agency; it did not delist the wolf in Wyoming (but see subsequent action described below).
    • Defenders of Wildlife v. Salazar, 2011 WL 1345670 (D. Mont. Apr. 9, 2011), rejected a proposed settlement that would have delisted the wolves in Montana and Idaho, holding that this settlement would violate the ESA for the same reasons that the court rejected the USFWS rule in its August 2010 ruling.
  • Congress, in its budget compromise bill in April 2011, included a rider requiring the USFWS to reinstate its April 2009 rule delisting the Northern Rockies population in Washington, Oregon, Idaho, Utah, and Montana. The rider excluded Wyoming because that state lacks "adequate regulatory mechanisms" to protect the wolf.
  • The USFWS acted immediately to re-delist the wolves as ordered by Congress. In early May 2011, several environmental groups filed lawsuits attempting to block implementation of the rider on the grounds that it violates constitutional separation of powers, but this argument was rejected by both the District Court and the Ninth Circuit Court of Appeals, so the states proceeded with limited wolf hunting seasons in the fall of 2011. 
  • In July 2011, the state of Wyoming and the Department of Interior reached an agreement "in principle" (finalized in August 2011) on delisting the wolf in that state, providing for a minimum population of 100 wolves and 10 breeding pairs in the Yellowstone region.
  • The USFWS issued its proposed delisting rule for the gray wolf in
    Wyoming on October 4, 2011. For information on this decision, see:
  • Environmental groups filed two federal lawsuits (one in Wyoming, and one in Washington, D.C.) seeking to force the USFWS to relist the wolf in Wyoming, claiming that the state management plan is inadequate to ensure the species' recovery and that the USFWS should have prepared an environmental impact statement before finalizing the delisting. For a summary of the litigation, see "Court: Dual lawsuits proceed over Wyoming wolves," Denver Post, 4/23/13.
  • In a draft plan circulated in April 2013, the USFWS indicated its intention to delist the wolf throughout the lower 48 states. See "Feds draft plan to end protection of wolves," Missoulian, 4/27/13.

Similar battles are underway concerning the USFWS' decision to delist the grizzly bear in the Greater Yellowstone Ecosystem, a decision that was reversed by a federal judge in September 2009 and upheld by the Ninth Circuit Court of Appeals in November 2011, in part based on concerns about habitat changes related to global warming. See:

Anatomy of a Delisting — the Bald Eagle

  • The bald eagle was originally listed as endangered in 1967 (under the Endangered Species Preservation Act of 1966.
  • The eagle was downlisted to threatened in 1995.
  • In 1999, USFWS proposed to delist the bald eagle, but never completed the process.
  • In February 2006, USFWS issued a new proposal to delist and reopened the public comment period.
  • USFWS then extended the comment period to June 2006, but took no final action.
  • In August 2006, a U.S. District Court ordered the USFWS to finalize their decision on delisting by February 2007.
  • In March 2007, delisting was still being discussed because of controversy over the definition of "disturb."
  • On June 28, 2007, the USFWS removed the bald eagle from the list of threatened and endangered species. The two main factors that led to the recovery of the bald eagle were the banning of the pesticide DDT and habitat protection afforded by the Endangered Species Act for nesting sites and important feeding and roost sites.

For more information on the delisting as well as continued eagle protections and management guidelines, see the USFWS website.

Process Essentials: Section 7 Consultation

Section 7 of the ESA has been at the center of much of the debate over endangered species protection. Section 7 says that federal agencies must make sure that none of their actions, or any action they authorize or fund, is likely either to jeopardize the existence of a listed species or to damage its critical habitat. To meet this requirement,federal agencies considering taking some action—from selling timber to re-issuing a grazing permit or permitting a new dam—must "consult" with the U.S. Fish and Wildlife Service (USFWS), for land-based species, or the National Marine Fisheries Service (NMFS), in the case of sea life or salmon and steelhead. The agencies usually use an informal process to determine whether formal consultation is necessary.

Informal Consultation

Typically, the agency that wants to take an action will informally consult with USFWS or NMFS, asking whether there are any proposed or listed threatened or endangered species or critical habitat in the project area. If the answer is "yes," then the consulting agency (also know as the "action agency") must do a biological assessment (BA) to assess what impact its action might have on the species or habitat. (See flowchart below.) The contents of the BA are left to the discretion of the action agency, but USFWS regulations suggest the following:

  • The results of an on-site inspection of the affected area;
  • The views of recognized experts on the species at issue;
  • A review of the literature and other information;
  • An analysis of the effects of the action on the species and habitat;
  • An analysis of alternate actions considered by the action agency.

If the assessment indicates that there will be no impact, and the USFWS or NFMS agrees, then informal consultation is over and the project can go forward. If the BA indicates that the action is likely to have an effect, then informal consultation is over and "formal consultation" begins. During the informal consultation, the USFWS or NMFS may suggest project modifications that the action agency could take to avoid the likelihood of adverse impacts. 

In some cases, federal courts have ruled that consultation is simply not necessary, due to the nature of the decision process. For example:

  • The 10th Circuit Court of Appeals ruled that implementation of a Forest Service land and resource management plan (LRMP) does not necessarily require consultation under the ESA. The standards, guidelines, policies, etc.of a plan are not "agency actions" requiring consultation with USFWS. Forest Guardians v Forsgren, 10th Circuit, February 23, 2007
  • The 9th Circuit Court of Appeals ruled that a Forest Service decision that a proposed mining operation may proceed based on the mining company's "Notice of Intent" does not constitute an "agency action" that triggers ESA consultation. The key point was that the agency decided not to require a plan of operations, and thus this constituted "inaction" rather than "action," according to the appellate court. Karuk Tribe of California v. United States Forest Service, 9th Circuit, No. 05-16801, Apr. 7, 2011.

In December 2003 several land management agencies, USFWS, and NMFS adopted new regulations that exempt National Fire Plan projects from the informal consultation process. For more details on these regulations, see Controversies: Special Rules for National Fire Plan Consultation.

 

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Flowchart courtesy of the U.S. Fish and Wildlife Service

Formal Consultation

If a federal agency informs the USFWS or NMFS that a proposed action might affect any proposed or listed threatened or endangered species or critical habitat (typically done as part of a BA), the agencies begin a formal consultation process. In this process, the USFWS or NMFS prepares a biological opinion (BiOp)—a detailed evaluation of the impacts on the species and critical habitat—based on the BA produced by the action agency. The BiOp thoroughly explains the current status of the species and describes how the proposed action would affect the species. The USFWS (or NMFS) can come to one of three conclusions in its BiOp:

  • Jeopardy with reasonable and prudent alternatives;
  • Jeopardy without such alternative;
  • No jeopardy.

The agency then has to explain how it concluded that the action would, or would not, jeopardize the species that is the subject of the opinion.

  • If the opinion concludes the action will not adversely affect the species (i.e., a "no jeopardy" opinion), the action can go forward.
  • If the BiOp concludes the action could harm the species, the USFWS or NMFS typically proposes a set of mitigation measures ("reasonable and prudent" alternatives) that would allow the activity to proceed.

It is also possible, though rare, that there are no effective mitigation measures. The practical result of such an opinion is that the agency either has to revise its proposal, abandon it altogether, or try to invoke an exemption from the Endangered Species Committee. See 'Exemptions ' section of the Endangered species Act: Consideration of Economic Factors.

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Flowchart courtesy of the U.S. Fish and Wildlife Service

For more information on consultation, see the USFWS ESA web site.

On December 16, 2008, the USFWS and NMFS announced a final rule that changes the consultation process, allowing agencies to skip the wildlife consultation process if they believe there would be little harm to a species. Within two weeks, the State of California filed a lawsuit challenging this rule, claiming that the federal action could put listed species in greater jeopardy and could burden the state financially. In January 2009, members of the 111th Congress joined the call to repeal these controversial changes, and immediately after President Obama's inauguration, his chief of staff issued an order to halt all pending federal regulations until the new White House team conducted a legal and policy review of the last-minute Bush administration rules. In late February, the House of Representatives approved an omnibus appropriations bill that included a provision that authorizes the repeal of this controversial rule, and on March 3, 2009, President Obama announced that he had signed a memorandum directing the Interior and Commerce departments to review the regulation. In early April, 2009, a group of environmental group called on the administration to reverse the controversial rule. They were joined by leading Senate Democrats later that month. Secretary Salazar announced full repeal of the rule on April 28, 2009. 

In a report released in May, 2009, the U.S. Government Accountability Office concluded that the USFWS has no established way to track cumulative threats or injuries to most of the imperiled species the agency is charged with protecting. The report, titled "The U.S. Fish and Wildlife Service Has Incomplete Information about Effects on Listed Species from Section 7 Consultations," found that FWS lacks a systematic way to track required monitoring reports or the harm to or death of protected species. Instead, the agency relies on individual biologists to maintain crucial species information. Thus, the retirement or loss of a biologist could be disastrous for the agency and the species it protects.

Process Essentials: ESA Tools for the Landowner

Participation by private landowners is extremely important to the protection and recovery of listed species because many listed species depend on private lands for habitat during at least part of their lives. Several federal policies and grant programs are designed to help landowners cooperate in protection of listed species.

Habitat Conservation Plan (HCP)

A Habitat Conservation Plan (HCP) is developed to help protect species from being harmed by activities on private lands and, at the same time, to protect private landowners from liability under the ESA. Sometimes, a private landowner finds out that a planned project (for example, a housing development) may harm or "take" an endangered species. By developing an HCP, the non-federal entity can get the permits it needs to proceed. An HCP outlines what actions the private party plans to take in order to minimize, or mitigate, the impact of his or her actions on the endangered species. When the U.S. Fish and Wildlife Service (USFWS) signs off on an HCP, it generally gives permission to the private party to "take" endangered species as an incident to the development activity (issues an "incidental take permit"). Plans can be developed for listed threatened or endangered species and for other rare species. Including unlisted species in an HCP can provide for early protection for the species that might keep it from needing to be listed in the future.

For more information on HCPs, see the USFWS Habitat Conservation Planning website.

A 2011 white paper recommended policy changes to adapt habitat conservation planning in response to climate change. See the summary at Legal Planet, or download the paper here.

No Surprises Policy

Forests and Fish HCP
The largest HCP in the West covers 9.3 million acres of mostly private forest land in Washington — about 20 percent of the state. The plan attempts to protect salmon by:

  • Requiring road maintenance;
  • Establishing stream buffers for landowners with more than 20 acres (100-foot wide forested buffers along fish streams and 50-foot buffers along streams without fish);
  • Requiring timberland owners to reduce the amount of sediment from roads flowing into salmon streams, install fish culverts underneath roads to provide access to historic habitat, and abandon some unneeded roads so habitat can return to a more natural state.

In an effort to encourage private property owners to protect endangered species and their habitat, federal agencies have developed a "no surprises" policy that can be written into an HCP. This policy promises the private landowner that if he or she develops an HCP in good faith and the federal agency later concludes that additional measures (e.g., protection of more land) are needed to protect the endangered species, the federal agency cannot require the private landowner to do anything more than what he or she already has committed to do. In other words, the private party who commits to helping to conserve an endangered species doesn't have to be worried about a "surprise" down the road.

Permit Revocation Rule

When the USFWS approves an HCP plan, they issue an "incidental take" permit that prevents the private property owner from being prosecuted if an endangered species is incidentally killed or injured during the development. Because several conservation groups and an Indian tribe were concerned that there would be no recourse for a species is peril of extinction, the USFWS created a new rule, the permit revocation rule which allows the agency to revoke incidental take permits, despite the "no surprises" policy, when incidental takes would "appreciably reduce the likelihood of survival and recovery of the species in the wild." 

For more information on Incidental Take Permits, see Process Essentials: ESA Exceptions or Exemptions .

Conservation Banks

One way developers can fulfill a promise to mitigate damage to a species is through the use of conservation banks. Conservation banks are lands acquired and managed for specific endangered species. The lands are usually protected permanently by conservation easements. Once a conservation bank is established, the "banker" may sell a fixed number of "mitigation credits" to developers to offset adverse effects of the developer's project on a species. These effects may include destruction of some of the species' habitat or disturbance of the species from increased activity in the area of the development. 

The banks operate on the theory that species conservation will be most effective, and people will be most willing to participate in conservation efforts, if everyone benefits from conserving species. Conservation banking benefits all parties:

  • Species benefit from protection of much-needed, secure habitat.
  • Developers benefit because they can go forward with the development and receive an incidental take permit. Buying credits is easier, and usually more economical, for the developer than developing an individual mitigation project.
  • Owners/managers of the conservation banks benefit monetarily through the developers' purchase of mitigation credits.

Safe Harbor Agreement

Some private landowners are unwilling to adopt conservation measures that improve habitat for threatened or endangered species on their land for fear that their future development decisions would then be limited by the presence of the endangered species. Unfortunately, that restricts the amount of privately owned land available for use by threatened and endangered species. Safe Harbor Agreements are designed to get around this conflict. The agreements assure landowners who voluntarily improve habitat for endangered species that their future land development won't be limited if they attract endangered species to their property or increase their numbers.

Title V of the Healthy Forests Restoration Act requires the Secretary of Agriculture to establish a healthy forests reserve program for the purpose of restoring and enhancing forest ecosystems to improve biodiversity, enhance carbon sequestration, and to promote the recovery of threatened and endangered species. The program provides both funding and technical assistance to landowners who volunteer to enroll their land. Safe harbor agreements and other assurances will be made with the landowners as part of the program.

For more information on the reserve program, see Healthy Forests Restoration Act: Title 5.

Candidate Conservation Agreements with Assurances

Candidate Conservation Agreements with Assurances (CCAA) are agreements made between the USFWS or NMFS and landowners. These formal agreements are created to address the specific conservation needs of a particular species, in hopes of keeping it off of the endangered or threatened species lists. The private parties to these agreements voluntarily commit to manage their land and water to decrease current and future threats to a species, so that the population of that species may thrive without federal protection. In exchange, the owners receive assurances from the agency, much like the "no surprises policy" of an HCP, that they will not be required to do more than what they agreed to when they entered the agreement. In order to receive the assurances, the landowner's management activities must significantly contribute to eliminating the need to list the covered species. Species covered in a CCAA may include both animals and plants, and either candidates for listing or species that have already been proposed as threatened or endangered.

Process Essentials: Categories of Protection

Not all species are created equal under the ESA. Different categories of species receive different protection. There are three types of species in the ESA listing process:

  • Listed species (either as endangered or threatened);
  • Proposed species;
  • Candidate species.

Protection under the ESA also differs between plants and animals, and between species listed with or without a critical habitat designation.

Listed Species: Endangered or Threatened

A "listed species" is any species of fish, wildlife, or plant that has been determined, through the full, formal ESA listing process, to be either threatened or endangered. Endangered species receive the full protections of the ESA—protection from "takings" and other specific prohibited acts (like commercial trade in the species), designations of critical habitat, requirements for Section 7 consultations, and recovery plans. Threatened species are protected with critical habitat designations, Section 7 consultations, and recovery plans, but they are only protected from takings and other prohibited acts if the USFWS or the NMFS decides it is necessary to do so.

Proposed Species

A "proposed species" is any species of fish, wildlife, or plant that has been formally proposed for listing as either a threatened or endangered species under the ESA. The USFWS or the NMFS publishes a proposal to list the species—a "proposed rule"—in the Federal Register, prior to making a final decision to list the species by publishing a "final rule." Proposed species are not protected from "takings" or other prohibited acts, but the USFWS or NMFS can propose critical habitat for them. Federal agencies must follow the Section 7 consultation process for proposed species in order to avoid jeopardizing the species or  destroying its proposed critical habitat.

Candidate Species

"Candidate species"are plants and animals on a "waiting list" for threatened or endangered status. This means the USFWS or NMFS has sufficient information to list these species, but other, higher-priority species have to be listed first—the agency has concluded that a listing is "warranted but precluded." Candidate species are not legally protected under the ESA, but USFWS and the NMFS encourage partnerships to protect them because effective conservation might reverse their decline and ultimately eliminate the need for ESA protection.

Plants and Animals

Under the ESA, plants and animals have the same protections from most"prohibited acts"—import-export, possession, transport, or commercial dealing in the species. They have similar protections from more direct harm: it is illegal to kill, harm, harass, or even hunt (collectively called "take") listed animal species; listed plants cannot be picked, dug up or destroyed. Animals are protected from these actions on all lands, but plants are only protected on federal lands unless there is a state law that also protects them.

Species listed with or without a critical habitat designation

Critical Habitat Working Group
At the request of several Senators interested in ESA reform, The Keystone Center hosted discussions on critical habitat. Much of the group's work explored a potential new approach to habitat protection that would build on three interdependent components:

  • Centralize the role of recovery and recovery planning;
  • Significantly boost the role of landowner incentives; and
  • Revise the §7 consultation standard.

The process did not achieve consensus, but clarified some of the central issues of critical habitat. 

For more information, see The Keystone Center website.

Only about 12 percent of listed species have a designated critical habitat area. According to the USFWS, a critical habitat designation affords little extra protection to most listed species. The agency has, therefore, used its limited staff and funding to list more species rather than spending resources on designating critical habitat. In some cases, the agency decides not to designate critical habitat in order to better protect the species. Sometimes a critical habitat designation may do more harm than good because of public hostility to the designation, because it makes a species like a rare cactus easier to locate, or because of misconceptions about the lack of value to the species of land outside the designated critical area.

Having a critical habitat designation only gives extra protection to a species if there is a federal agency involved, and then only under certain circumstances. If there is no federal agency involved in a project (for example, when a landowner builds a housing development on private land without federal funding or a federal permit), there is no extra protection for the species if the land has been designated as critical habitat. If a federal agency is involved (e.g., in issuing a permit for the housing development), a critical habitat designation may make a difference during the Section 7 consultation process.

In a Section 7 consultation, the agency must consult with the USFWS or NMFS to ensure that its actions will not jeopardize the survival of the species or destroy or adversely modify critical habitat. In most places, ensuring that its actions won't jeopardize survival of the plant or animal, provides at least as much protection as protecting the species' critical habitat. Protecting its critical habitat could provide extra protection to the species if the land being developed were currently "unoccupied" by the species, but were nonetheless important to its future survival.

 rpt.esa.stateofbirds.jpg

Click here for full report in pdf. 

Process Essentials: ESA Exceptions or Exemptions

The ESA provides strong protection for threatened and endangered species, but a few exceptions to the law are available through the USFWS, the NMFS, or the Endangered Species Committee after following a formal application process. These exceptions/exemptions allow individuals or agencies to do a variety of things that are otherwise prohibited, like transporting or even causing the death of a listed animal, without fear of prosecution. The most common exceptions are for:

Scientific Purposes, Including Experimental Populations

The USFWS and the NMFS can issue permits for scientific purposes or for projects that enhance the propagation or survival of the species. For example, the agency might issue a permit for a project designed to establish or maintain a new population of wolf, lynx, or condor. While the intention of the recovery team would be to better understand the species to help it survive, biologists might harass an animal while trying to capture it and might even inadvertently kill it in transport. Or the team might need to intentionally kill it for a special medical test or because an individual from an experimental population threatens livestock.

Incidental takings

USFWS or NMFS can issue permits to either federal agencies or private landowners for taking a species (harming or killing it or destroying its habitat) if the taking is "incidental to," and not the purpose of, the action. To apply for this kind of permit, the individual, corporation, or state or local government has to prepare a Habitat Conservation Plan (HCP). The permit applicant must describe actions he or she will take to minimize and mitigate impacts to the species. The applicant must also justify why there is no reasonable way of completely avoiding a potential taking.

Endangered Species Committee exemptions

Criteria for an exemption:

  • There is no reasonable alternative to the proposed action;
  • It is in the public interest;
  • It is of regional or national significance;
  • Benefits of the action clearly outweigh any alternative action that would comply with the ESA;
  • Neither the agency nor anyone else applying for the permit did anything to foreclose an alternative that would not need an exemption from the ESA.

Federal agencies have a special duty under the ESA to make sure that their actions don't harm threatened or endangered species or their critical habitat. If an agency completes the Section 7 consultation process and is told that its proposed action is likely to jeopardize a species or damage its habitat, the agency can apply for an exemption that would enable it to go ahead with its proposed action (e.g., building a visitor center, operating a dam, or issuing just about any kind of permit or license). The project permitee or licensee, or the governor of the state affected by it,can also apply for the exemption. The final decision on whether to grant an exemption is made by the Endangered Species Committee (the so called "god squad") after following an elaborate public process. The seven-member committee includes several cabinet members, the chairman of the Council on Environmental Quality (CEQ), and other high-level appointees.

When granting an exemption, the committee must develop reasonable mitigation and enhancement measures to minimize the negative impacts of the agency's action. The committee has been convened only three times—for the snail darter fish in Tennessee, the spotted owl in Oregon and the whooping crane in Nebraska.

Controversies

Recovery Crediting

"Recovery crediting" is a conservation tool being proposed to provide incentives for private landowners to conserve endangered species and act as environmental stewards of the nation's natural resources. The recovery crediting system would work like other mitigation banks – the system would create a "bank" of credits that federal agencies can accrue through conservation actions on non-federal lands. Agencies could later use these conservation credits to offset the effects of their actions on the species on federal lands. Proponents argue that agencies will benefit in terms of greater flexibility in their operations on federal land; landowners will benefit from revenue for managing their land for the species; and the species will benefit in having more habitat being managed and protected. Skeptics of the system, like the Center for Biological Diversity, question a program that allows the destruction of habitat on public lands in exchange for arguably less secure protection of the species on private lands. The Center is particularly critical of the Ft. Hood, Texas pilot project where recovery crediting is being tested to mitigate military exercises that threatened the golden-cheeked warbler and other birds. Here, the Center charges that there is little accountability for federal dollars going to private landowners because public knowledge and oversight of the program is very restricted. 

For draft guidance on the USFWS policy, click here.

 

Interaction with Other Laws

The ESA has been described  as the "bulldog" of environmental laws, in part because it applies so broadly and with so little room for administrative discretion. Its mandates may trump or otherwise strongly influence the implementation of other federal laws or programs, as has been the case with forest plans, public land grazing programs, and water management.

On June 1, 2012, the Ninth Circuit Court of Appeals issued a ruling that confirmed the reach of the ESA over activities governed by the Mining Law of 1872, although the court limited the circumstances for this application. The plaintiff in the lawsuit, the Karuk Tribe of California, filed the action to protect the threatened Coho salmon from recreational mining in 35 miles of the Klamath River and its tributaries in Northern California. In July 2005 U.S. District Court Judge Saundra B. Armstrong for the Northern District of California ruled against the tribe, and initially a three-judge panel of the Ninth Circuit upheld that decision.

In the June 2012 decision (Karuk Tribe of California v. U.S. Forest Service), the court said that federal land managers must engage in an ESA Section 7 consultation when considering notices of intent (NOI) to condust hard rock mining activities that "might" disturb the surface lands.

 

Reform by Regulation

Changing agency regulations — rather than enacting new legislation — to change the way public resources are managed is not new. The Clinton administration did it with the Roadless RuleForest Service planning regulations, new mining reclamation regulations, and other executive branch actions. The Bush administration reversed (or tried to reverse) most of those changes and has aggressively used both formal and informal rulemaking processes to make its own changes in public lands management. Examples include agency categorical exclusions from NEPAClean Air Act regulations and proposed grazing regulations

Many of these proposed or final rule changes have been controversial with both the public and Congress. The Bush Administration's draft proposals to substantially change rules regarding endangered species quickly raised the ire of both Congress and the public in early 2007. The draft regulatory changes, included many of the changes that Republicans had unsuccessfully sought to make through ESA reform in previous sessions of Congress. After the draft proposal was leaked in March 2007, the USFWS quickly denied that the proposals represented current thinking on regulatory reform even though the draft, written in June 2006, was revised in February 2007. 

In November of 2008, the Bush Administration indicated its intention to issue new regulations that would change the consultation process significantly, shifting responsibility for determining whether an action would impact protected species to the federal agencies directly involved in the action, not the U.S. Fish & Wildlife Service or the National Marine Fisheries Service. The USFWS and NMFS announced the final rule on December 16, 2008. 

On December 15, 2008, the Interior Inspector General issued a scathing 141-page report, "The Endangered Species Act and the Conflict Between Science and Policy." Singling out former Deputy Assistant Secretary of Fish, Wildlife and Parks Julie MacDonald for criticism, the report blasts the processes by which many ESA decisions were made during her tenure. Another recent report, this one by the General Accountability Office, concludes that the agencies responsible for implementing the ESA have cooperated well with one another but done poorly in decisions regarding critical habitat designation. See Endangered Species Act: Many GAO Recommendations Have Been Implemented, but Some Issues Remain Unresolved, GAO-09-225R, 1/21/09.

Immediately after President Obama's inauguration, his chief of staff issued an order to halt all pending federal regulations while the new White House team conducted a legal and policy review of the last-minute Bush administration rules. In 2009, the Interior and Commerce secretaries withdrew the Bush Administration's relaxed rules on Section 7 consultations (see discussion here). But, in early 2011, the USFWS included a provision in the President's budget bill that requests a cap on the total amount of money the agency can spend to process citizen petitions to list species. For a blog by a law professor critical of this proposal, see "A risky FWS proposal to limit ESA petitions," Legal Planet, 4/4/11.

On May 26, 2011, the Department of the Interior announced a joint process (involving the USFWS and NOAA's Fisheries Service) to improve implementation of the ESA through changes in practices, guidance, policies, and/or regulations, consistent with President Obama's Executive Order 13563, "Improving Regulation and Regulatory Review." The agency is not seeking any changes in legislation, but has identified four areas for regulatory reform to improve implementation of the ESA. See the USFWS Regulatory Reform website for details.

 

Special Rules for National Fire Plan Consultation

In December, 2003, several federal agencies jointly enacted regulations designed to streamline the consultation process on proposed projects that support the National Fire Plan. This alternative consultation process eliminates the need to conduct informal consultation with USFWS and NMFS for National Fire Plan projects. Under the new process, the USFWS or NMFS will develop anAlternative Consultation Agreement (ACA) with action agencies (Forest Service,Bureau of Indian Affairs, Bureau of Land Management and National Park Service). With an agreement in place, USFWS or NMFS will train the agencies to make independent determinations of whether their fire plan projects are likely to adversely affect protected species. Projects might include prescribed fire, thinning and removal of fuels, emergency stabilization, burned area rehabilitation, road maintenance and ecosystem restoration. This process is designed to accelerate the rate at which the agencies process fire projects without changing the actual standards for Section 7 consultations. 

ACA 2006 Update

  • 830+ Forest Service employees have been trained and are currently certified under the ACA process
  • 100+ National Fire Plan projects have used Counterpart Regulations.

Data from Dale Bosworth, Chief, U.S. Forest Service, Congressional Testimony, July 19, 2006

Alternative Conservation Agreements must include:

  • Who will make determinations;
  • Procedures for training to make determinations;
  • Standards for assessing the effects of a project;
  • Provisions for incorporating new information, species, or critical habitat into the analysis;
  • Monitoring and periodic program evaluation; and
  • Provisions for the action agency to maintain a list of Fire Plan Projects for which it has made determinations.

Critics of this exception contend that the ESA requires at least informal consultation and do not believe that the land management agencies will have the expertise—despite the promise of training—to make the proper determinations alone. Even assuming the agencies have sufficient expertise, critics fear that the conflicting missions of the agencies will lead to decisions less protective of species and their critical habitats. A coalition of environmental groups is challenging the new regulations in court.

For a copy of the new regulation and the agencies' justification of it, see Joint Counterpart Endangered Species Act Section 7 Consultation Regulations in the Federal Register. 

For a copy of the ACA, see the USFWS web page on consultation.

For other USFWS recommendations for streamlining Section 7 consultation, see the agency's memorandum on Alternative Approaches to Section 7.

Will fuels reduction projects jeopardize endangered species?
In evaluating the effects of fuels reduction projects on species, the USFWS balances short-term effects of fuels treatment—including destruction of endangered and threatened species' habitat—against long term benefits of the projects. Long-term benefits may include:

  • Reestablishing native vegetation;
  • Reestablishing natural fire regime; and,
  • Reducing risk of catastrophic fires.

Collaboration in Action

Grizzlies on Hold

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Click to download a .pdf copy of this publication

Successful collaboration is hard work, and it depends on having the right folks working on the right issues at the right time. (See the RLCH Collaboration Handbook for specifics on starting and maintaining collaborative processes.) Endangered species issues are more frequently litigated than collaborated, but a few have been tackled in collaborative processes.These processes range from high-level, multi-state and multi-party negotiations to state-level planning processes and more local,project-specific discussions. Political realities and pending or threatened actions prompt and guide collaboration to avoid listing(sage grouse), deal with "warranted but precluded" opinions that delay listing (black-tailed prairie dogs), develop and implement recovery plans (fish and birds on the Platte and Colorado Rivers), and facilitate delisting (gray wolves in Montana, Idaho and Wyoming).Political realities can also make continuing with collaboration futile.

The Bitterroot Mountains of Idaho and Montana provide an example of a highly controversial collaboration on hold. In the Bitterroots, the prospect of grizzly bear reintroduction under the ESA spurred creative collaboration. Many view the bear as a "blood thirsty predator" while others "celebrate it as the living symbol of wilderness." A coalition of conservationists,timber mill owners, and timber workers designed a citizen management committee for the federal government's reintroduction plan. The plan,finalized by USFWS under the Clinton Administration would have established a management committee of fifteen members nominated by the governors of Montana and Idaho and the Nez Perce Tribe. Additional members would also represent the U.S. Forest Service and the USFWS. The plan charged the committee with making decision that would "lead toward recovery of the grizzly bear in the Bitterroot ecosystem and minimize social and economic impacts." If the plan is ever implemented, this committee will be the first of its kind to share management authority with the USFWS. 

While the USFWS adopted the plan in late 2000, the Department of the Interior under Gale Norton initiated a process to kill the plan by proposing to adopt a "no action" alternative for grizzly reintroduction. After receiving thousands of comments in support of the reintroduction, as well as strong opposition to it from Idaho and the Idaho congressional delegation, the Department has neither implemented the plan nor followed through with officially abandoning it.

Sage Grouse Conservation Efforts

In 2010, the U.S. Fish and Wildlife Service issued its decision not to list the Greater sage-grouse as endangered (the agency found that listing was "warranted but precluded" by other priority listing actions). See "No endangered status for Plains bird," New York Times, 3/5/10.

That same year, the USDA Natural Resources Conservation Service launched the Sage Grouse Initiative, which incorporates federal funding for working lands protection (through Farm Bill funding) and a variety of interagency collaborative approaches to protect sage grouse habitat and avoid the need to list the species in the future.

For its part, the Western Governors Association (WGA) adopted a policy position in 2011 urging expansion of this cooperation and support for state and local efforts to implement conservation strategies. In December 2011, the Western Governors Wildlife Council presented a report to the WGA that outlines the measures underway by state and local authorities to conserve sage-grouse habitat, and in the same month the Bureau of Land Management issued instructions for its managers to follow in implementing Greater sage grouse recover, including an interim instruction memorandum (IM) No. 2012-043 and a planning strategy IM No. 2012-044.

In February 2013, the BLM issued a Resource Management Plan for the Lander WY area that is intended to implement the state policy for protecting the Greater sage grouse.

For a case study of the sage grouse partnership on this website (written in 2005), click here.

 

ESA Legislation in the 113th Congress

New information will be added as the Congress takes action.

 

Links

Public Laws and Regulations

Endangered Species Act of 1973, 16 USC sections 1531 to 1544.
The text of the ESA can be viewed at the U.S. Fish and Wildlife Service web site.
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Endangered Species Act Regulations
Can be found in 50 CFR sections 17.1 to 17.23.
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Federal Agencies

U.S. Fish and Wildlife Service
An extensive web site with information on the USFWS's Endangered Species Program, including information on species, and species lists,laws, publications, and links to other agencies and sites about ESA. 
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National Marine Fisheries Service
The NMFS website has general information on the ESA and specific information on the role of the NMFS in implementing it. The site also focuses on marine-related life in general.
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Other Resources

Endangered Species Link
A site listing web links under a wide array of topics. It has good definitions and is very easy to navigate. The web site covers just about every possible aspect of the ESA.
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Defenders of Wildlife
The Defenders web site, has a section on ESA with an explanation of how it works, success stories, and a discussion of misinformation about the ESA and its consequences.
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National Endangered Species Act Reform Coalition 
The National Endangered Species Act Reform Coalition is a group of organizations dedicated to improving the ESA. The web site has information about effects of the ESA, including the negative effects.The site includes news and op-ed pieces, as well as a map linking to lists of species for each state.
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