Endangered Species Act (ESA)

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Endangered Species Act (ESA) logo

The Endangered Species Act (ESA) was signed into existence by President Richard Nixon in 1973 with the objective to protect the flora and fauna of the United States from extinction. The ESA approach to animal, plant, and habitat conservation involves listing species as endangered or threatened, protecting their suitable habitats, and restoring healthy populations. The ultimate goal is species removal from the endangered list.[1] The ESA is primarily administered by the US Fish & Wildlife Service (USFWS) and the National Oceanic and Atmospheric Administration (NOAA).

History

Since colonization, the United States has experienced alarming and unprecedented rates of habitat destruction and species extinction. The first notable species to become scarce that was once abundant was the American bison in the 1800s; the disappearance of bison from grasslands caused concern nationwide.[2] Significantly lower numbers of other species, particularly the once-ubiquitous passenger pigeon (now extinct) and symbolic Bald Eagle, spurred the extinction prevention movement.[1] In addition to setting guidelines for extinction prevention, the ESA also addressed previous governmental conservation efforts that were largely ineffective. The first attempt at wildlife conservation in the United States was the Lacey Act in 1900, which prohibited commercial trade of wildlife obtained illegally in or outside the United States.[3] The next two attempts at federal wildlife conservation legislation were precursors to the current ESA, the first being the Endangered Species Preservation Act of 1966, followed three years later by the Endangered Species Conservation Act. There was still a pressing need for more drastic, detailed measures to protect at-risk plant and animal species, thus the ESA was developed.

Previous laws and regulations

Legislation Overview

World map illustration of Special Status Species

Major sections

The ESA has been amended over time, but several sections have continued to hold the most authority. Section 3 defines terms common in the document itself, some for the first time in the United States. Section 4 contains definitions of endangered and threatened species. It also states rules for species listing, critical habitat designation, and recovery plans. Section 6 of the ESA details State cooperation and collaboration; Section 7 lays out rules for federal agencies to avoid adversely affecting listed species and habitats; Section 9 bans the “take” or harm of a listed species. Section 10 describes Habitat Conservation Plans (HCPs), which are required for those interested in applying for Incidental Take Permits (ITPs) added during the 1982 ESA amendments. Section 11 lays out penalties and enforcement of the stipulations of the ESA, and includes information on citizen suits.[4][1][5]

Defining threatened and endangered species

In Section 4 of the ESA, threatened and endangered species, or Special Status Species, are characterized by one or more of the following conditions:[4][1]

  • present or threatened destruction, modification, or curtailment of habitat or range
  • over-utilization for commercial, recreational, scientific, or educational purposes
  • declining populations due to disease and/or predation
  • inadequacy of existing regulatory mechanisms
  • other natural or man-made factors affecting continued existence

Therefore, ESA definitions of threatened and endangered species are not based on a quantitative standard, but rather allow for different species (and some subspecies) to be described according to their unique ecology.[5] Verbatim, the ESA defines a threatened species as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range”.[4] Endangered species are defined as “any species which is in danger of extinction throughout all or a significant portion of its range.” ESA protection encompasses all animals, but is reduced for plant species and nonexistent for organisms classified as neither plant nor animal.[5]

The listing process

There are two avenues for a threatened or endangered species to become listed, that is, to be officially added to the endangered or threatened species lists and afforded protection by the ESA. USFWS and NOAA can directly place a candidate species into the listing procedure; it usually takes around a year to get a species listed.[1][5] Alternatively, individuals, groups, and state agencies can petition to put a species on the threatened or endangered lists by submitting data concerning the ecology, spread, and risk associated with that species. The petition is then reviewed by USFWS or NOAA and more research is conducted to determine if the species is indeed threatened or endangered. After a species is listed, its wellbeing is reviewed every five years.[1]

Critical Habitat

Habitat loss is a leading cause of extinction, and has been addressed accordingly in the ESA. One of the key objectives of the ESA is to identify and protect areas essential to the continued existence of species, termed Critical Habitat. Critical Habitat includes geographic range of the species in question, but also extends to cover areas not currently occupied by the species, yet regarded as crucial to its recovery and survival. Critical Habitat receives protection from development and other human impacts.[1][5] Therefore, under ESA regulations it is not only illegal to harm or kill an individual of a listed species, it is also against the law to harm its Critical Habitat.[6]

Recovery plans and land acquisition

Species recovery, as defined by USFWS, is “the process by which the decline of an endangered or threatened species is arrested or reversed, and threats removed or reduced so that the species’ survival in the wild can be ensured”.[7] In 1978, Congress amended the ESA to require responsible parties (currently USFWS and NOAA) to create and carry out recovery plans for listed species. Congress again amended the ESA in 1988 because recovery plans had been highly unsuccessful and too ambiguous to deliver significant results. With the revisions, recovery plans were obliged to outline site-specific management actions, standards to determine recovery effectiveness, costs associated with completion of plans, and strategy execution schedules.[8] Recovery plans could include land acquisition or the procurement of habitat to preserve listed species. Recovery plans were successfully completed for 1,143 species as of Sept. 2012.[5]

Consultation

Consultation, as laid out in Section 7 of the ESA, is the process by which federal agencies must work with USFWS or NOAA to ensure that none of its actions disadvantage listed species or critical habitats. Federal agencies are required to submit a biological assessment to USFWS or NOAA, whether association to the action in question be through funding, authorization, or operation. Results of the assessment help ascertain whether the agency must continue on to formal consultation. If an action is found to be non-compromising, the agency may continue with the action operating under specific guidelines, called Biological Opinions, to ensure species and habitat safety. Conversely, if an action is deemed potentially harmful to species or habitat, changes or substitutions to the action are typically devised.[4][1][5]

Citizen suits

Section 11 of the ESA describes the consequences of violations of its mandates via civil penalties and criminal violations. It also designates a provision for civil suits. A civil suit may be filed by anyone on the following grounds:

  • to prevent a person or agency suspected to be in violation of the ESA
  • to force the Secretary of the Interior to employ the statutes prohibiting the take of a listed species
  • against the Secretary of the Interior when a suspected failure to list species or designate critical habitat occurs

The accused party must be given a 60-day notification of the citizen’s intent to sue, allowing for a period to address the problem. Citizen suits have been hailed as the powerhouse of the ESA and are responsible for no less than 50% of threatened and endangered species listings. In California, for example, 92% of listings were the effects of citizen enforcement between 1993-2003.[1]

Collaboration with states

Under the ESA, USFWS and NOAA are required to cooperate and collaborate with states to create endangered species and critical habitat plans. If agreements are made, states may receive federal funding to implement state-level measures matching the goals of the ESA through the Cooperative Endangered Species Conservation Fund. However, states must also agree to appropriate funds (usually a minimum 25%).[5] State protection of listed species is required to be at least equal to the protection afforded under the ESA. Private landowners can also enter into collaborative efforts with the federal government to protect listed species and critical habitat, which can also include grants.[1]

Species success stories

American peregrine falcon, delisted in 1999
  • Bald Eagle

Bald eagle population decline was the result of trophy hunting and feather collection in the 1800s, and the use of DDT and other chemical compounds in the late 1940s. However, due to the enactment of the ESA, bald eagle numbers soared from 416 in 1963 to 7,678 in 2003.[9] Population increase led to a proposal for delisting in 2006 and eventually removal from the list on Aug 9, 2007.

  • American Peregrine Falcon

The peregrine falcon was listed in 1970 under the Endangered Species Conservation Act after the use of DDT and other chemical compounds led to a sharp decline in their population. In 1975 there were only 324 known nesting pairs in the U.S. Since the enactment of the ESA there have been over 6,000 falcons released. Recovery was successful and the species was delisted in 1999.[9]

  • Humpback Whale

Commercial whaling during the 19th century was responsible for a rapid decline in humpback whale populations worldwide. Today the species still faces problems with ship impacts and fishing gear entanglement. After multiple species recovery programs, though, NOAA is considering removing 10 of the 14 population segments off the endangered species list.[9]

Notable court cases

Tennessee Valley Authority v. Hill (1978)

The listing of the Snail Darter fish halted construction of Tellico Dam, which was nearly complete and which congress had spent millions funding. In a 6-3 vote, the Supreme Court ruled that the operation of the dam would violate section 7 of the ESA. The Supreme Court noted “it may seem curious to some that the survival of a relatively small number of three-inch fish among the countless millions of species extant would require the permanent halting of a virtually completed dam for which Congress has expended more than $100 million...We conclude, however, that the explicit provision of the ESA requires precisely that result”.[10]


Babbitt v. Sweet Home Chapter of Communities For A Better Oregon (1985)

When spotted owls and red-cockaded woodpeckers in the Pacific Northwest were listed as Special Status Species, a large burden on the timber industry ensued. Respondents of Babbitt V. Sweet Home Chapter of Communities For A Better Oregon argued that inclusion of habitat degradation as part of the definition of "take" limited the ability to log their land.[11] The courts sided with the Secretary, claiming that there is a broad mandate to protect species and their habitat under the ESA.

Endangered species protection in California

The ESA provides means for states and territories to show initiative in protection of listed species and critical habitat. However, prior to ESA’s enactment in 1973, a total of sixteen states had taken legislative measures to protect wildlife, including usual forerunner California.[12] In 1970, the California Assembly passed the California Species Preservation Act (CSPA), and the California Endangered Species Act (CESA), which is considered the most comprehensive of the state endangered species acts.[12] CSPA commissioned the California Department of Fish and Wildlife (CDFW) to produce a list of threatened species along with recommendations for recovery, while CESA gave CDFW the ability to list species as rare or endangered, and laid out protection policies and corresponding violation consequences.[13] CESA was amended in 1984 and 1997, defining the role of the state in responsibility for endangered species preservation, ability and intent to purchase lands for preservation purposes, and launch of mitigation and improvement plans. It is worth noting that California is one of only five states that call for such plans, and one of only two states that require recovery plan enactment deadlines.[12]

Links

References

  1. 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 Citizen's Guide to the Endangered Species Act
  2. The Endangered Species Act: History, Conservation Biology, and Public PolicyISBN 9780801865046
  3. Lacey Act
  4. 4.0 4.1 4.2 4.3 Endangered Species Act
  5. 5.0 5.1 5.2 5.3 5.4 5.5 5.6 5.7 Endangered Species Act: Provisions, Policies, and ConsiderationsISBN 9781626183766
  6. Preemptive Habitat Destruction Under the Endangered Species Act
  7. USFWS Endangered Species Glossary
  8. A Comprehensive Review of Endangered Species Act Recovery Plans
  9. 9.0 9.1 9.2 Measuring the Success of the ESA
  10. U.S. Supreme Court Decision in Tennessee Valley Authority v. Hill et Al., No. 76-1701
  11. Babbitt V. Sweet Home Chapter of Communities For A Better Oregon
  12. 12.0 12.1 12.2 The Endangered Species Act: Law, Policy, & Perspectives
  13. California Endangered Species Act

Disclaimer

This page may contain student work completed as part of assigned coursework. It may not be accurate. It does not necessary reflect the opinion or policy of CSUMB, its staff, or students.