ENDANGERED SPECIES ACT

The federal Endangered Species Act of 1973 (ESA) (16 U.S.C.A. §§ 1531 et seq.) was enacted to protect animal and plant species from extinction by preserving the ecosystems in which they survive and by providing programs for their conservation.

The act classifies species as either endangered or threatened. It defines an endangered species as one "in danger of extinction throughout all or a significant portion of its range" (§ 1532). A threatened species is one that is "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range" (§ 1532). A current detailed listing of endangered and threatened animal and plant species is provided in the code of federal regulations (see 50 C.F.R. §§ 17.11–.12). As of March 2003, the code listed approximately 1,260 endangered and threatened species (up from 1,000 in 1996). Between the years of 1995 and 2002, 12 species were removed from the list.

The ESA is administered by two agencies: the National Marine Fisheries Service, which designates marine fish and certain marine mammals, and the U.S. Fish and Wildlife Service, which has jurisdiction over all other wildlife. These agencies may list a species on their own initiative, or any interested person may submit a petition to have a species considered for listing. In either case, the act requires that the decision to include a species must be based solely on the "best scientific and commercial data available," following a review of the status of the species that takes into account any conservation efforts being made to protect the species (§ 1533 (b)(1)(A)).

If an emergency poses a significant risk to the well-being of a species of fish, wildlife, or plant, the secretary of the interior may bypass standard listing procedures and issue regulations that take effect immediately upon publication in the Federal Register. Emergency regulations remain in force for 240 days. To issue an emergency regulation, the secretary must publish detailed reasons why the regulation is necessary and notify the appropriate state agency in each state where the species is found (§ 1533 (b) (7)).

Critical Habitat

The ESA requires that at the same time the decision is made to list a species, the secretary of the interior must develop a recovery plan for the species and, with certain exceptions, designate the critical habitat of the species. Critical habitat consists of "the specific areas within the geographical area occupied by the species, at the time it is listed … on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection." Critical habitat must be designated on the basis of the best scientific data available and after taking into consideration the economic impact of the designation. An area may be excluded from designation if the benefits of the exclusion outweigh the benefits of the designation, unless the failure to designate will result in the extinction of the species (§ 1533 (b)(2)).

In June 1978 the Supreme Court ruled that provisions of the federal Endangered Species Act prohibited the tennessee valley authority from completing the controversial Tellico Dam. The 6–3 decision was a victory for the snail darter, the tiny endangered fish whose spawning area in the Little Tennessee River would be ruined by the impoundment of a lake. Tennessee Valley Authority v. Hill, 437 U.S. 153, 98 S. Ct. 2279, 57 L. Ed. 2d. 117, 11 ERC 1705, 8 Envtl. L. Rep. 20,513 (1978)(NO. 76-1701).

The issue of the economic impact of designating critical habitat was addressed in Bennett v. Plenert, 63 F.3d 915 (9th Cir. 1995). In Plenert, Oregon ranchers and irrigation districts sued regulators under the ESA over a proposal to change water flow at reservoirs in Oregon and California in order to protect the habitat of two endangered species, the Lost River sucker and the shortnose sucker. They claimed that the proposal did not take economic impact into consideration before designating critical habitat. The district court dismissed the suit. The U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal, holding that because the ranchers and irrigation districts had no interest in preserving the fish under the ESA, they were not within the "zone of interest" protected by the act. As a result, said the court, they lacked standing (a legally protectable interest) to bring a citizen suit.

Taking

Once a fish or wildlife species is listed as endangered or threatened under the ESA, the act prohibits anyone from taking the species; plants are protected under separate provisions of the act. To "take" a species means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct" (§ 1532 (19)).

The federal courts have disagreed about the term harm in the ESA definition of taking which includes the detrimental modification of a species' habitat. For example, the u.s. courts of appeals for the Fifth and Ninth Circuits had interpreted the taking prohibition to include habitat modification (Palila v. Hawaii Department of Land & Natural Resources, 639 F.2d 495 [9th Cir. 1981]; Sierra Club v. Yeutter, 926 F.2d 429 [5th Cir. 1991]). But the U.S. Court of Appeals for the District of Columbia Circuit, in Sweet Home Chapter of Communities for a Great Oregon v. Babbitt, 17 F.3d 1463 (1994), invalidated regulations that included habitat modification within the definition of taking. On appeal of the Sweet Home decision, the U.S. Supreme Court resolved this split, holding that habitat destruction that "actually kills or injures" an endangered or threatened species constitutes a violation of the ESA (Sweet Home, 515 U.S. 687, 115 S. Ct. 2407, 132 L. Ed. 2d 597). In 1999, the ESA published its final rule defining the term harm in the federal register (64 FR 607277).

Violations of the ESA can result in criminal penalties of up to one year in prison and $50,000 in fines. Civil penalties of up to $25,000 for each violation may also be imposed. Private citizens may bring actions against other individuals or government entities for violations of the ESA.

The ESA allows certain exceptions to prohibited activities. For example, the secretary of the interior may issue a permit for a taking of a listed species that is "incidental" to an otherwise lawful activity. The applicant must prepare a conservation plan specifying the probable impact of the taking and the steps the applicant will take to minimize the impact. In the early 1990s, the department of the interior relied on this exception when it began negotiating voluntary habitat conservation agreements with timber companies in the Pacific Northwest. Under these agreements, the landowners can set aside habitat for endangered or threatened species and, in return, avoid prosecution for the incidental taking of a species by accidental killing or other harm. By 1995, the agency had begun negotiating more than forty such plans, covering 5.4 million acres, in Washington and Oregon. For example, Murray Pacific Corporation, a timber company in Tacoma, Washington, negotiated an agreement to set aside 10 percent of its 54,000-acre tree farm and provide buffers to protect spotted owls, salmon, and other species. Plum Creek Timber Company, the second largest private landowner in the Northwest, developed a far-reaching plan to set aside up to 170,000 acres of habitat that was expected to help protect an estimated 284 species of wildlife, including grizzly bears, gray wolves, moles, fishers, and several different kinds of frogs, fish, and birds.

Experimental Populations

In 1982, the ESA was amended to allow the reintroduction of experimental populations of threatened or endangered species into their historic ranges without requiring compliance with many of the act's restrictions (§ 1539 (j)). Currently designated experimental populations are listed in the Code of Federal Regulations (see 50 C.F.R. §§ 17.81–.82). As of March 2003, 35 species were designated as experimental populations, including the red wolf and the gray wolf. The experimental population designation relaxed existing ESA regulations by allowing reintroduced species to be managed or controlled; for example, ranchers could kill reintroduced wolves that threatened livestock.

In the 1990s, the federal government began a program to restore an experimental population of gray wolves to Yellowstone National Park and central Idaho. The program projected the transfer of 90 to 150 Canadian gray wolves into Yellowstone National Park and central Idaho over three to five years. In early 1995, 29 gray wolves from Canada were released into Wyoming and Idaho. The release of the experimental population of gray wolves was controversial and created conflict and lawsuits between environmentalists and livestock ranchers. The goal of the wolf recovery program was to remove wolves from the endangered species list by 2002. This did not happen. As of March 2003, the gray wolf remained listed as a "dual status" species (both threatened and endangered) but delisted status was pending, based on taxonomic revisions.

Proposed Reform

In 1995, Congress, intent on rewriting the ESA to loosen restrictions on private landowners, imposed a moratorium on all new-species listings and critical habitat designations. The moratorium, passed as a rider to the Emergency Supplemental Appropriations and Rescissions for the department of defense to Preserve and Enhance Military Readiness Act of 1995 (Pub. L. No. 104-6, 109 Stat. 73), prohibited Secretary of the Interior Bruce Babbitt from spending funds to identify and list any additional endangered or threatened species.

The 1995 freeze created a backlog of nearly 250 plants and animals awaiting decision on protected status under the ESA. In 1996, as part of an agreement on federal spending for the current fiscal year, Congress agreed to waive the moratorium, and the President bill clinton administration began resolving the backlog, focusing first on species facing immediate extinction, then on species that biologists determined would be most likely to recover if given full protection under the law.

In latter 2000, the National Marine Fisheries Service and the U.S. Fish and Wildlife Service jointly published their final policy, effective October 20, 2000, for the controlled propagation of listed species, pursuant to organized and approved recovery plans, or as necessary to prevent extinction of a species. As of March 2003, 561 distinct approved recovery plans were listed, some of which covered more than one species.

further readings

Cheever, Federico. 1996. "The Road to Recovery: A New Way of Thinking about the Endangered Species Act." Ecology Law Quarterly 23.

Craig, Barbara. "The Federal Endangered Species Act." 1995. Advocate (Idaho) 38 (October).

Department of the Interior, U.S. Fish & Wildlife Service. 2003. "Delisted Species Report." Available online at <ecos.fws.gov/servlet/TESSWebpageDelisted> (accessed April 10, 2003).

——. 2003. "Experimental Populations." Available online at <ecos.fws.gov/TESS/Species Report/generate> (cited on April 10, 2003)

——. 2003. "Summary of Listed Species." Available online at <ecos.fws.gov/tess/html/boxscore/html> (accessed April 10, 2003).

"Endangered Species Act—Judicial Deference to Agency Decision." 1995. Harvard Law Review 109.

Moore, Robert C. 1995. "The Pack Is Back: The Political, Social, and Ecological Effects of the Reintroduction of the Gray Wolf to Yellowstone National Park and Central Idaho." Cooley Law Review 12.

Wolok, Mimi S. 1996. "Experimenting with Experimental Populations." Environmental Law Reporter 26 (January).

cross-references

Environmental Law; Environmental Protection Agency.

Endangered Species Act (1973)

Federico Cheever

The Endangered Species Act (ESA) represents two important legal traditions: environmental law and wildlife law. Congress passed the ESA as part of the explosion of federal legislation enacted between 1970 and 1980 to protect the environment. As a wildlife law, the ESA is part of a thousand-year common law tradition of government regulation of the taking of wildlife.

The United States Constitution grants the federal government no specific authority over wildlife. Congress protects endangered species under the commerce clause authority the Constitution grants it to regulate interstate and foreign commerce. Wildlife is generally a matter of state concern, as it has been since the American Revolution, when the power once invested in the British crown to protect and regulate the taking of wildlife passed to the states. States grant hunting and fishing licenses and monitor and manage wildlife populations.

During the twentieth century, the federal government became increasingly involved in wildlife protection. The Lacey Act of 1900 allowed federal officials to assist in enforcement of state laws against unauthorized takings of wildlife by making interstate transportation of wildlife taken in violation of state law a federal crime. The Migratory Bird Treaty Act of 1918 authorized federal protection of migratory birds, which habitually cross both state and national borders.

In the 1960s the federal government began specifically to protect species in danger of extinction. Congress passed early forms of endangered species protection legislation in 1966 and 1969. Dissatisfaction with this early legislation, coupled with the increased concern for the environment expressed in the demonstrations on the first Earth Day in April 1970, led to the passage of the broader, more powerful, Endangered Species Act of 1973.

NEED FOR THE ESA

Over the course of the twentieth century, scientists became increasingly concerned about the disappearance of once common species of animals and plants. Scientific organizations began to keep lists of extinct and endangered species as an indicator of the health of the environment. By the late twentieth century, most recognized that human activities were driving species to extinction at many times the natural rate. If unchecked, these human activities would result in the annihilation of a significant share of the species inhabiting the planet. The legislative history of the Endangered Species Act of 1973 demonstrates concern about this extinction crisis and a commitment to "the conservation of species and of the ecosystems on which they depend." Many statements in Congress supporting enactment of the law contained references to the extinction crisis. Legislative documents recognized the limited scientific understanding of the crisis and recommended both a "certain humility and sense of urgency" in our efforts to protect the "incalculable" value of biological diversity.

ENFORCEMENT AND CORE PROVISIONS

Two federal agencies administer and enforce the ESA. The United States Fish and Wildlife Service (FWS), in the Department of the Interior, administers the act for all terrestrial and fresh water species. The National Marine Fisheries Service (NMFS), in the Department of Commerce, administers the act for marine and anadromous species (animals, such as shad, that ascend rivers from the sea for breeding).

Four provisions form the core of the ESA. Section 4 requires the federal designation or "listing" of both endangered and threatened species of both plants and animals. Species must be listed as endangered if they are "in danger of extinction throughout all or a significant portion of their range." Species must be listed as threatened if they are "likely to become ... endangered ... within the foreseeable future throughout all or a significant portion of its range." Since 1978, section 4 has also explicitly required the designation of critical habitat for protected species. It also authorizes individuals and groups to petition for the listing of species and notifies the public when a species is subject to the protections of the 1973 act.

Section 7 requires all federal agencies to insure that activities they "authorize, fund or carry out" will not jeopardize the continued existence of any species listed under section 4 or any critical habitat designated under section 4. This obligation must be fulfilled in consultation with the FWS or NMFS. Section 9 forbids any person in the United States or on the high seas from taking any endangered species of fish or wildlife. Take is broadly defined in this section "as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."

The protections offered by section 7 and section 9 differ in three significant ways. First, section 7 protects all listed threatened and endangered species of plants and animals and all designated critical habitat, whereas section 9 protects only endangered species of fish and wildlife. Second, section 7 protects species as a whole, while section 9 protects every member of every species of endangered fish or wildlife. Third, section 7 applies only to actions authorized, funded, or carried out by federal agencies, while section 9 prohibits takings by any person.

Finally, section 10 provides exceptions to the prohibitions of section 9. First, the federal government may grant an exception for scientific purposes or to enhance the propagation or survival of the affected species. Second, since 1982 the federal government may authorize takings of protected species that do not jeopardize the continued existence of the species if (1) the takings occur as part of an otherwise legal action, and (2) the taking results from an activity subject to an approved habitat conservation plan (HCP).

EXPERIENCE UNDER THE ACT

The ESA emerged as a powerful wildlife preservation law in 1978 when the United States Supreme Court in Tennessee Valley Authority v. Hill, affirmed an order stopping construction of the Tellico Dam to protect an endangered fish, the snail darter. A majority of the Court found that "the language, history, and structure of the legislation under review ... indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities." Despite the opinion and other controversy surrounding the project, Congress subsequently passed a law authorizing completion of the Tellico Dam, which resulted in destruction of the snail darters' habitat.

Later in 1978, Congress amended the Endangered Species Act, creating a narrow exception to section 7's prohibition against jeopardizing species or habitats. The exception applies to actions of "regional or national significance" when "the benefits of the action clearly outweigh the benefits of alternative courses of action" and "there is no reasonable and prudent alternative" to the proposed action. Under the amendment, this exception could be invoked by decision of the Endangered Species Committee, which the amendment created. This committee is often called the "God Committee" or "God Squad" because it has the power to sentence an entire species to extinction. The Endangered Species Committee exception has rarely been invoked.

The Supreme Court revisited the Endangered Species Act in 1995 in Sweet Home Communities for Greater Oregon v. Babbitt. In that case, the Court upheld an FWS regulation defining harm in the statutory definition of take to include destruction of habitat essential for species breeding, feeding, or sheltering. This regulation can make destruction of essential habitat a violation of the section 9 taking prohibition.

See also: Plant Variety Protection Act.

BIBLIOGRAPHY

Bean, Michael J., and Melanie J. Rowland. The Evolution of National Wildlife Law, 3d ed. Westport, CT: Praeger, 1997.

Cheever, Federico. "The Road to Recovery: A New Way of Thinking about the Endangered Species Act." 23 Ecology L.Q. 1 (1996).

Hood, Laura C. Frayed Safety: Conservation Planning Under The Endangered Species Act. Washington, DC: Defenders of Wildlife, 1998.

Mann, Charles, and Mark Plummer. Noah's Choice: The Future of Endangered Species. New York: Knopf, 1995.

National Research Council. Science and the Endangered Species Act. Washington DC: National Academy Press, 1995.

Stein, Bruce A., Lynn S. Kutner, and Jonathan S. Adams. Precious Heritage: The Status of Biodiversity in the United States. New York: Oxford University Press, 2000.

Wilson, Edward O. The Diversity of Life. Cambridge, MA: Belknap Press, 1992.

INTERNET RESOURCE

United States Fish and Wildlife Service, Endangered Species Program. <http://www.fws.gov/>.

Why Save Endangered Species?

Beyond the ethical reasons for preserving plant and other animal species, there are many self-interested reasons that humans should protect other forms of life. Plants and animals are the source of chemical compounds used for at least 25 percent of medications. These include, for example, foxglove, which is used to treat heart disease, and the Pacific yew, whose bark contains a substance that may be effective in treating breast and ovarian cancer. In agriculture, only twenty species of the world's plants provide 90 percent of food crops; however, an additional 80,000 edible plants provide options for food sources that are disease-resistant, drought tolerant, more nutritious, or otherwise suitable for reducing hunger in the world. In industry, wild plants are used to produce oil, rubber, and many other products. The richness of plant and animal life also contributes to the health of ecosystems, which humans depend on for food, clean air, and clean water. According to the U.S. Fish and Wildlife Service, the loss of a single plant species can trigger the loss of thirty more in an ecosystem. This chain reaction is evident in the Florida Keys, where pollution is killing off the coral reefs that provide a habitat for hundreds of species of fish, and both commercial fishing and the tourism industry have begun to suffer. Many local and regional economies—and thus people's livelihoods—are based on flora and fauna; in the Pacific Northwest, for example, salmon fishing is responsible for 60,000 jobs and $1 billion in personal income. Finally, the natural world is a mainstay of the American tourism industry, with more than 100 million people taking part in wildlife-related activities annually.

Endangered Species Act (1973)

The Endangered Species Act (ESA) is a law designed to save species from extinction . What began as an informal effort to protect several hundred North American vertebrate species in the 1960s has expanded into a program that could involve hundreds of thousands of plant and animal species throughout the world. As of May 2002, 1,816 species were listed as endangered or threatened, 1,258 in the United States and 558 in other countries. The law has become increasingly controversial as it has been viewed by commercial interests as a major impediment to economic development. This issue recently came to a head in the Pacific Northwest, where the northern spotted owl has been listed as threatened. This action has had significant affects on the regional forest products industry. The ESA was due to be re-authorized in 1992, but this was postponed due to that year's election. Although it expired on October 1, 1992, Congress has allotted enough funds to keep the ESA active.

Government action to protect endangered species began in 1964, with the formation of the Committee on Rare and Endangered Wildlife Species within the Bureau of Sport Fisheries and Wildlife (now the Fish and Wildlife Service [FWS]) in the U.S. Department of the Interior . In 1966, this committee issued a list of 83 native species (all vertebrates) that it considered endangered. Two years later, the first act designed to protect species in danger of extinction, the Endangered Species Preservation Act of 1966, was passed. The Secretary of the Interior was to publish a list, after consulting the states, of native vertebrates that were endangered. This law directed federal agencies to protect endangered species when it was "practicable and consistent with the primary purposes" of these agencies. The taking of listed endangered species was prohibited only within the national wildlife refuge system; that is, species could be killed almost anywhere in the United States. Finally, the law authorized the acquisition of critical habitat for these endangered species.

In 1969, the Endangered Species Conservation Act was passed, which included several significant amendments to the 1966 Act. Species could now be listed if they were threatened with worldwide extinction. This substantially broadened the scope of species to be covered, but it also limited the listing of specific populations that might be endangered in some parts of the United States but not in danger elsewhere (e.g., grizzly bears, bald eagles, timber wolves , all of which flourish in Canada and Alaska). The 1969 law stated that mollusks and crustaceans could now be included on the list, further broadening of the scope of the law. Finally, trade in illegally taken endangered species was prohibited. This substantially increased the protection offered such species, compared to the 1966 law.

The Endangered Species Act of 1973 built upon and strengthened the previous laws. The impetus for the law was a call by President Nixon in his state of the union message for further protection of endangered species and the concern in Congress that the previous acts were not working well enough. The goal of the ESA was to protect all endangered species through the use of "all methods and procedures necessary to bring any endangered or threatened species to the point at which the measures provided pursuant to [the] Act are no longer necessary." In other words, the goal was to bring endangered species to full recovery. This goal, like others included in environmental legislation at the time, was unrealistic. The ESA also expanded the number of species that could be considered for listing to all animals (except those considered pests) and plants. It stipulated that the listing of such species should be based on the best scientific data available. Additionally, it included a provision that allowed groups or individuals to petition the government to list or de-list a species. If the petition contained reasonable support, the agency had to respond to it.

The law created two levels of concern: endangered and threatened. An endangered species was "in danger of extinction throughout all or a significant portion of its range." A threatened species was "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Also, the species did not have to face worldwide extinction before it could be listed. No taking of any kind was allowed for endangered species; limited taking could be allowed for threatened species. Thus, the distinction between "endangered" and "threatened" species allowed for some flexibility in the program.

The 1973 Act divided jurisdiction of the program between the FWS and the National Marine Fisheries Service (NMFS), an agency of the National Oceanic and Atmospheric Administration in the Department of Commerce. The NMFS would have responsibility for species that were primarily marine; responsibility for marine mammals (whales , dolphins , etc.) was shared by the two agencies. The law also provided for the establishment of cooperative agreements between the federal government and the states on endangered species protection. This has not proved very successful due to a lack of funds to entice the states to participate and due to frequent conflict between the states (favoring development and hunting ) and the FWS.

The most controversial aspect of the Act was Section 7, which required that no action by a federal agency, such as the destruction of critical habitat , jeopardize any endangered species. So, before undertaking, funding, or granting a permit for a project, federal agencies had to consult with the FWS as to the effect the action might have on endangered species. This provision proved to have enormous consequences, as many federal developments could be halted due to their affect on endangered species. The most famous and controversial application of this provision involved the snail darter and Tellico Dam in Tennessee. The Tennessee Valley Authority (TVA) was building the nearly completed dam when the snail darter was listed as endangered. Its only known habitat would be destroyed if the dam was completed. The TVA challenged the FWS evidence, but the TVA was itself soon challenged in the courts by environmentalists. In a case that was appealed through the Supreme Court, TVA v. Hill, the courts ruled that the ESA was clear: no federal action could take place that would jeopardize an endangered species. The dam could not be completed.

In response to the conflicts that followed the passage of the ESA, especially the swelling estimates of the number of endangered species and the snail darter-Tellico Dam issue, the 1978 re-authorization of the ESA included heated debate and a few significant changes in the law. Perhaps the most important change was the creation of the Endangered Species Committee, sometimes referred to as the "God Committee." Created in response to the snail darter controversy and the TVA v. Hill decision, this committee could approve federal projects that were blocked due to their harmful effects on endangered species. If an agency's actions were blocked due to an endangered species, they could appeal to this committee for an exemption from the ESA. The committee, which consists of three cabinet secretaries, the administrators of the EPA and NOAA, the chair of the Council of Economic Advisors, and the governor from the state in which the project is located, weigh the advantages and disadvantages of the project and then make a decision as to the appeal. Ironically, the committee heard the appeal for Tellico Dam and rejected it. The committee has only been used three times, and only once, regarding the northern spotted owl and 1,700 acres (689 ha) of land in Oregon, has it approved an appeal. Nonetheless, the creation of the "God Committee" demonstrated that values beyond species survival had to be weighed into the endangered species equation.

Additionally, the 1978 amendments mandated: increased public participation and hearings when species were proposed for listing; a five-year review of all species on the list (to determine if any had improved to the point that they could be removed from the list); a requirement that the critical habitat of a species must be specified at the time the species is listed and that an economic assessment of the critical habitat designation must be done; the mandatory development of a recovery plan for each listed species; and a time limit between when a species was proposed for listing and when the final rule listing the species must be issued. These amendments were designed to do two things: to provide a loophole for projects that might be halted by the ESA and to speed up the listing process. Despite this latter goal, the many new requirements included in the amendments led to a further slowing of the listing process. It should also be noted that these amendments passed with overwhelming majorities in both the House and the Senate; there was still strong support for protecting endangered species, at least in the abstract, in Congress.

The 1982 re-authorization of the ESA did not lead to significant changes in the Act. The law was to have been re-authorized again in 1985, but opposition in the Senate prevented re-authorization until 1988. This demonstrated the growing uneasiness in Congress to the economic repercussions of the ESA. In addition to re-authorizing spending to implement the ESA through 1992, the 1988 amendments also increased the procedural requirements for recovery plans. This further underscored the tension between the desire for public participation at all stages of ESA implementation and the need for the government to move quickly to protect endangered species. Overall, the implementation of the ESA has not been successful. The law has suffered from two main problems: poor administrative capacity and fragmentation. The FWS has suffered from its lack of stature within the bureaucracy, its conflicting institutional mission, a severe lack of funds and personnel, and limited public support. Species assigned to the NMFS have fared even worse, as the agency has shown little interest in the ESA. Fragmentation is demonstrated with the division of responsibilities between the FWS and NMFS, the conflict with other federal agencies due to Section 7, and the federal-state conflicts over jurisdictional responsibility.

[Christopher McGrory Klyza ]

RESOURCES

BOOKS

Harrington, W., and A. C. Fisher. "Endangered Species." In Current Issues in Natural Resource Policy, edited by P. R. Portney. Baltimore: Johns Hopkins University Press, 1982.

Tobin, R. The Expendable Future: U. S. Politics and the Protection of Biological Diversity. Durham, NC: Duke University Press, 1990.

PERIODICALS

Egan, T. "Strongest U. S. Environmental Law May Become Endangered Species." New York Times (26 May 1992): A1.

Endangered Species Act

The Endangered Species Act (ESA) has been described as the most comprehensive legislation for the preservation of endangered species ever enacted by any nation. It is also one of the United States' most controversial natural resource laws.

Purpose and Administration

The 1973 Endangered Species Act replaced earlier laws enacted in 1966 and 1969 that proved insufficient to protect endangered wildlife. Congress enacted the law to protect endangered and threatened species, to conserve their ecosystems , and to promote their recovery. As of November 2002, 517 U.S. species of animals and 745 U.S. species of plants were federally listed as either threatened or endangered, in addition to nearly 560 foreign species.

Two federal agencies administer the Endangered Species Act. The U.S. Fish and Wildlife Service (FWS) is responsible for terrestrial and freshwater species. The U.S. National Marine Fisheries Service (NMFS) coordinates Endangered Species Act activities for marine and anadromous species.

Endangered and Threatened Species.

The Endangered Species Act requires the FWS and NMFS to list endangered or threatened species. A species is endangered if it is in danger of extinction in all or a significant portion of its range. A threatened species is one that is likely to become endangered in the foreseeable future. Endangered species receive greater protection than threatened species. Listings are based solely on the biological status of the species and threats to its existence. Economic considerations are irrelevant in these scientifically based assessments.

Critical Habitats.

The FWS and the NMFS must generally designate a species' critical habitat when an agency lists the species. Critical habitats are areas that require special protection because they contain the physical and biological features essential to the species' existence. The FWS and NMFS must consider the economic impact of critical habitat designations.

Recovery Plans.

After listing a species, the FWS and NMFS must then develop and implement recovery plans for each listed species, unless a recovery plan will not promote the species' conservation. Recovery plans describe the actions necessary to increase a species' numbers and eventually allow for the "delisting" of the species.

Biological Opinions.

Federal agencies must consult with the FWS or NMFS to ensure that their actions do not jeopardize the continued existence of listed species or result in the destruction or adverse modification of their critical habitat. When the FWS or NMFS determines that a proposed action will jeopardize a species, they issue what is called a "biological opinion," offering reasonable alternatives about how to modify the proposed action. If the action cannot be modified to protect the species or its habitat, the agency cannot undertake it.

Takes.

Private citizens and state and local government, as well as the federal government, cannot "take" an individual member of a listed species. The Endangered Species Act defines "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" a species. The FWS defines "harm" as significant habitat modification.

Amendments to the Endangered Species Act authorize the FWS and NMFS to issue "incidental take permits" to take individual members of listed species if the taking occurs while conducting a lawful activity. Permits are issued if the applicant prepares a habitat conservation plan that discusses the impact of "taking," specifies steps to minimize and mitigate the impact on the species, and explains why alternatives are not feasible.

Aquatic Examples

Fresh-water and marine fish, mollusks, crustaceans, amphibians, reptiles, birds, and mammals are among the animals protected by the Endangered Species Act. Aquatic animals include categories such as seals, sea lions, whales, ducks, fish, alligators, crocodiles, turtles, frogs, salamanders, lobsters, clams, and snails. Fresh-water and marine plants also are protected, ranging from lichens to seagrass.

Tellico Dam and the Snail Darter.

One of the earliest and most well-known applications of the 1973 Endangered Species Act involved an aquatic species. When the Tennessee Valley Authority (TVA) was nearing the completion of its Tellico Dam in 1973, scientists discovered a previously unknown species, the snail darter (Percina tanasi ). The dam's completion would have eradicated the only known population of the species. Environmentalists sued and the U.S. Supreme Court was forced to decide whether the ESA's protections for a 2-inch minnow could prevent the completion of a $150-million dam.

In a landmark case (TVA v. Hill ), the court ruled that Congress enacted the Endangered Species Act to "halt and reverse the trend towards species extinction, whatever the cost," and prohibited the dam's completion. Congress later exempted the dam from the act and the dam was completed, but by then, snail darter populations had been discovered in other locations. As of 2002, the snail darter remained federally listed as a threatened species.

see also Amphibian Population Declines; Bivalves; Crustaceans; Ecology, Fresh-Water; Ecology, Marine; Fish; Fish and Wildlife Issues; Fishes, Cartilaginous; Instream Water Issues; Legislation, Federal Water; Marine Mammals; Reptiles; Salmon Decline and Recovery.

Robert W. Malmsheimer

Bibliography

Stanford Environmental Law Society. The Endangered Species Act. Stanford, CA: Stanford University Press, 2001.

Sullins, Tony A. The Endangered Species Act. Chicago: American Bar Association, 2001.

Tennessee Valley Authority v. Hill et al. 437 U.S. 153 (1978), Certiorari to the UnitedStates Court of Appeals for the Sixth Circuit, No. 76-1701, Argued April 18, 1978, Decided June 15, 1978.

Internet Resources

Endangered Species. NOAA Fisheries, National Marine Fisheries Service. <http://www.nmfs.noaa.gov/endangered.htm>.

The Endangered Species Program. U.S. Fish and Wildlife Service. <http://endangered.fws.gov/>.

ENDANGERED SPECIES ACT

Species have evolved throughout the course of natural history, and the fossil record is filled with evidence of extinctions, some of which have been sudden and catastrophic. Ecologists believe that we are in such an era of rapid species extinctions today. The most prominent current cause is human activity, which brings about loss of habitat for species and also causes pollution and overharvesting. For example, the spotted owl is endangered by overharvesting of old growth forests in the Northwest; the bald eagle was nearly rendered extinct in the United States outside of Alaska due to poisoning with DDT and its metabolites; and many species have been hunted to extinction. Species biodiversity has a number of health benefits for people, including maintenance of stable environmental processes that support human life, provision of biological substances that may be useful in pharmaceutical and other applications, and enhancement of the enjoyment of the environment and recreational opportunities.

Enacted in 1973, the Endangered Species Act emerged as a result of concern about extinctions of "various species of fish, wildlife, and plants in the United States" and an understanding that many other species had become "so depleted in numbers that they are in danger of or threatened with extinction." In the act, an endangered species is defined as one for which there is a danger of extinction in "all or a significant portion of its range," unless the species is an insect that has been determined by the secretary of the interior to be a "pest that presents an overwhelming and overriding risk to man." A threatened species is one that is likely to become endangered in the foreseeable future. The Endangered Species Act replaced an earlier statute, the Endangered Species Conservation Act of 1969.

The Endangered Species Act was revolutionary in that it explicitly recognized that to protect species one must conserve "the ecosystems upon which endangered species and threatened species depend." Specifically, "critical habitat" is the area occupied by a species requiring protection that contains the physical or biological features that are essential to the conservation of that species. It does not include the entire potential geographic area that can be occupied by the threatened or endangered species. The Department of the Interior (DOI) is responsible for making determinations of which species are threatened or endangered, and defining the critical habitat for these species. This activity is carried out within the department's Fish and Wildlife Service. The department is also charged with development of protective regulations, recovery plans, and monitoring efforts.

The act explicitly applies to the actions of "all departments and federal agencies" and also requires that the federal government work in concert with state and local agencies to resolve water resource issues involved with the conservation of endangered species. DOI issues "biological opinions" that set the stage for actions to protect endangered species by other agencies.

The act also incorporated provisions for implementation of a number of international agreements, including:

• Migratory bird treaties with Canada and Mexico;
• The Migratory and Endangered Bird Treaty with Japan;
• The Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere;
• The International Convention for the Northwest Atlantic Fisheries;
• The International Convention for the High Seas Fisheries of the North Pacific Ocean;
• The Convention on International Trade in Endangered Species of Wild Fauna and Flora.

The protection of endangered species is very complex and involves inherent conflict and competition over the use of resources. Critical habitat may be in the hands of private owners, and there may therefore be conflicts regarding property rights. The DOI has evolved mechanisms to help minimize these conflicts. Biological opinions and listing decisions written by its biologists receive peer review by outside scientists to provide assurance of a strong scientific basis. Interior has a policy of developing "habitat conservation plans," which seek to bring all the critical players to the table to develop and agree on plans for conserving critical habitat for endangered and threatened species.

Lynn R. Goldman

(see also: Biodiversity; Ecosystems; Environmental Justice; Environmental Movement )

Bibliography

U.S. Congress (1973). Endangered Species Act of 1973. Available at http://endangeredspecies.fus.gov/esa.htm.