U.S. Endangered Species Act 1973

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U.S. Endangered Species Act(1973)

• Protects species identified as endangered or
  threatened with extinction
• Attempts to protect the habitat on which they
  depend
• Administered primarily by the Fish and Wildlife
  Service (U.S. Department of the Interior)
• The National Marine Fisheries Service (U.S.
  Department of Commerce) administers the ESA for
  certain marine species

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General Statistics for Endangered Species

• How many species in the United States are listed
  as threatened or endangered?
• 607 U.S. animal species are listed
• 744 U.S. plant species are listed.
• How many species in the United States are
  proposed for listing as threatened or endangered?
  
• 4 U.S. animal species are currently proposed for
  listing.
• 0 U.S. plant species are currently proposed for
  listing.

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General Statistics for Endangered Species

• How many listed species have designated critical
  habitat?
• 493 U.S. species have designated critical habitat
• How many candidate species are there?
• 138 animal species are candidates for listing
• 140 plant species are candidates for listing
• How many habitat conservation plans (HCPs) have
  been approved?
• 883 habitat conservation plans have been approved
  (727 current, 156 expired)
• How many listed species have approved recovery
  plans?
• 1116 species have approved recovery plans

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ESA History Evolution

• 1966 Endangered Species Preservation Act
• Listed only native animal species as endangered
  and provided limited means for the protection of
  listed species
• The Departments of Interior, Agriculture, and
  Defense were to seek to protect listed species
  and to preserve the habitats of such species
• Land acquisition for protection of endangered
  species was also authorized

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ESA History Evolution

• 1969 Endangered Species Conservation Act
• Provided additional protection to species in
  danger of "worldwide extinction"
• Prohibited the importation and sale of such
  species within the U.S.
• Called for an international ministerial meeting
  to adopt a convention on the conservation of
  endangered species.
• A 1973 conference in Washington led to the
  signing of the Convention on International Trade
  in Endangered Species of Wild Fauna and Flora
  (CITES), which restricted international commerce
  in plant and animal species believed to be
  actually or potentially harmed by trade.

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How the ESA Works

• Species of plants and animals (both vertebrate
  and invertebrate) are listed as either
  endangered or threatened according to
  assessments of the risk of their extinction
• Powerful legal tools are available to aid the
  recovery of the species and to protect its habitat

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ESA Listing

• As of September 25, 2006, a total of 1,879
  species of animals and plants had been listed as
  either endangered or threatened
• 1,311 of these occur in the United States and its
  territories
• Of the U.S. species, 1,070 were covered by
  recovery plans

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What is an endangered species?

• An endangered species is defined as any species
  which is in danger of extinction throughout all
  or a significant portion of its range....

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What is a threatened species?

• A threatened species is defined as any species
  which is likely to become an endangered species
  within the foreseeable future throughout all or a
  significant portion of its range.

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Which Animals? Plants? Organisms?

• The protection of the ESA extends to all species
  and subspecies of animals, not just birds and
  mammals
• More limited protection is available for plant
  species under the ESA
• There is currently no protection afforded under
  the ESA for organisms (e.g., Eubacteria, Archaea,
  viruses) considered neither animal nor plant.

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Basis for Listings

• The ESA defines species as a species, a
  subspecies, or, for vertebrates only a
  population
• This allows some flexibility as to how to provide
  different levels of protection to less than a
  whole species
• Solely on the basis of the best scientific and
  commercial data available
• Commercial data refers to trade data, and is
  not meant to make economic considerations a part
  of the listing decision

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• Observers have compared the decision of whether
  to list a species to diagnosing whether a patient
  has cancer
• The diagnosis should be a strictly scientific
  decision, but other factors can be considered in
  deciding how to treat the cancer

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ESA Surrogacy

• The ESA is often a surrogate in quarrels whose
  primary focus is the allocation of scarce or
  diminishing lands or resources
• There can be economic interests on the various
  sides of some vanishing species issues
• Other laws often lack the strict substantive
  provisions that Congress included in the ESA
• Examples the Tellico Dam and the snail darter
  Northwest timber harvest and the spotted owl
  coal-methane extraction in northern states and
  the sage grouse

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Has ESA Been Effective?

• The answer to this question depends very much on
  the choice of measurement
• 17 species have been delisted due to recovery
• 9 species have become extinct since their listing
• 16 have been delisted due to improved data

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How Many Species Have Stabilized or Increased
their Populations?

• Most species are listed only once they are very
  depleted
• Median population of 407 animals for endangered
  vertebrates
• 41 of listed species have improved or stabilized
  their population levels
• Other species (e.g., red wolves and California
  condors) might not exist at all without ESA
  protection, even though the species are still rare

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Leading Causes of Extinction

• Until recent decades, the focus of the extinction
  debate was on losses due to over-exploitation,
  generally through hunting, trapping, or fishing
• Passenger pigeons, tigers, wolves
• During the 20th century, a shift of focus and
  probably of fact occurred The vast majority of
  species, including those for which direct taking
  was probably an early factor in their decline,
  are generally also at risk due to habitat loss
• tall-grass prairie, fresh and salt water
  wetlands, old growth forests of most types,
  free-flowing rivers, coral reefs, undisturbed
  sandy beaches

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Introduction of Non-Native, Invasive Species

• Another high-ranking factor in the demise of many
  species
• The gradual homogenization of the worlds flora
  and fauna has led to a demise of many species
• Disease vectors or parasites
• Avian malaria in Hawaii, or Asian long-horned
  beetles in North America
• Predators
• Brown tree snakes in Guam and Hawaii
• Competitors
• Barred owls in the Pacific Northwest

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Non-Native Species

• The introduction of non-native species is now the
  second greatest threat to native species.
• Habitat loss is the most common reason species
  are endangered and threatened.
• http//www.fws.gov/endangered/kids/html/303.html

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Continuing Impact of DDT

• The decline of bird species such as the brown
  pelican alerted us to the harmful effects of
  pesticides
• Birds were poisoned by DDT when they ate fish
  from poisoned waterways. This caused pelicans to
  lay thin shelled eggs that often broke before the
  chick hatched.
• In 1972, the Environmental Protection Agency
  banned the use of DDT.
• However, DDT is still legal in other countries,
  and many migratory bird are still exposed to the
  harmful effects of DDT and other pesticides when
  outside the U.S.

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Is Extinction Normal?

• Geological evidence shows that the vast majority
  of species that have ever lived on Earth are now
  extinct
• If there are 20 million species now, background
  levels would be about 2 to 20 species extinctions
  per year
• Common estimates of current extinction rates
  range from 100 to 10,000 times such background
  rates

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Take or Taking

• The term take under the ESA means to harass,
  harm, pursue, hunt, shoot, wound, kill, trap,
  capture, or collect, or to attempt to engage in
  any such conduct
• Taking is prohibited
• Controversy over the extent to which the
  prohibition on taking may include habitat
  modification
• A 1995 Supreme Court decision (Sweet Home) held
  that the inclusion of significant habitat
  modification was a reasonable interpretation of
  the term harm

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Penalties Prohibitions

• Threatened or Endangered
• The prohibitions and penalties of the ESA apply
  primarily to those species listed as endangered
• The Secretary may promulgate special regulations
  to address the plight of species listed as
  threatened
• Protections and recovery measures for a
  particular threatened species can be tailored to
  particular situations, as was done, for example,
  with respect to the northern spotted owl
• Another regulation also affords threatened
  species for which a special rule has not been
  promulgated the same protections as endangered
  species

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Penalties

• Those who knowingly break the law through acts of
  importing or exporting, taking, possessing,
  selling, delivering, carrying, transporting, or
  shippingessentially trafficking endangered
  species without permission from the Secretary
• Any act of knowingly taking (which includes
  harming, wounding, or killing) an endangered
  species is also subject to the same penalty
• Maximum fine of up to 50,000, or imprisonment
  for one year, or both
• Civil penalties of up to 25,000 per violation
• As your violation history accumulates, you are
  subject to larger fines and penalties

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Excusal from Penalties

• No penalty may be imposed if it can be shown by a
  preponderance of the evidence that the defendant
  committed an act based on a good faith belief
  that he was acting to protect himself or herself
  or any other individual from bodily harm from any
  endangered species or threatened species.
• The law also eliminates criminal penalties for
  accidentally killing listed species during
  farming and ranching activities.

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Listings

• Species may be listed on the initiative of the
  appropriate Secretary or by petition from an
  individual, group, or state agency
• The Secretary must decide whether to list the
  species based only on the best available
  scientific and commercial information, after an
  extensive series of procedural steps to ensure
  public participation and the collection of
  relevant information.
• The Secretary is expressly forbidden to consider
  the economic effects that listing may have on the
  area where the species occurs
• But economic considerations may be considered in
  later stages

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Delisting and Downlisting

• The same as the processes for listing
• The determination to delist, downlist, or uplist
  a species must be made solely on the basis of
  the best scientific and commercial data
  available
• Without reference to possible economic or other
  impacts

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Critical Habitat

• The Secretary must also designate critical
  habitat
• Either where the species is found or, if it is
  not found there, where there are features
  essential to its conservation
• Supposed to be determined within one year of the
  listing, but
• As of September 25, 2006, critical habitat had
  been designated for 476 listed species

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Designating Critical Habitat

• Economic factors expressly are a part of
  designating critical habitat for species
• The Secretary to the maximum extent prudent and
  determinable is to designate the critical
  habitat of the species
• FWS has designated critical habitat for 162 of
  the 1,262 listed domestic species
• FWS has a longstanding disaffection for this
  provision of the law, viewing its conservation
  benefit to be low compared to its cost
• FWS is sued frequently for its failure to
  designate critical habitat and consistently loses
  such suits

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Public Misunderstandings re Critical Habitat v.
Takings

• Avoiding adverse modification of critical habitat
  is an express obligation only for federal
  agencies and actions, BUT it is frequently
  misunderstood by the public as the major
  restriction on a private landowners authority to
  manage land.
• The bulk of any restrictions on use of private
  land come primarily from the ESAs prohibition on
  taking of listed species
• Only occasionally are they due to any additional
  strictures resulting from designated critical
  habitat

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Is Private Land Affected If Designed to be
Critical Habit?

• Private land is only affected by critical habitat
  designation if some federal action (e.g.,
  license, loan, permit) is involved
• Federal agencies must avoid destruction or
  adverse modification of critical habitat, either
  through their direct action or activities that
  they approve or fund

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Recovery Plans

• The appropriate Secretary must develop recovery
  plans for the conservation and survival of listed
  species
• Recovery plans are not binding on federal
  agencies or others
• Recovery plans had been completed for 1,070 U.S.
  species (as of September 25, 2006)

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Consultation

• If federal actions or actions of non-federal
  parties that require a federal approval, permit,
  or funding might affect a listed species, the
  federal action agencies must complete a
  biological assessment.
• Action includes any activity authorized,
  funded, or carried out by a federal agency,
  including permits and licenses

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Actions Requiring ES Protection

• If the appropriate Secretary finds that an action
  would jeopardize a species or adversely modify
  critical habitat, the Secretary must suggest
  reasonable and prudent alternatives that would
  avoid harm to the species.
• If no reasonable and prudent alternatives can be
  devised to avoid the jeopardy, the agency has
  three choices
• (1) choose not to proceed with the action, or
• (2) proceed with the action at the risk of
  penalties, or
• (3) apply for a formal exemption for the action

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Exemptions

• An exemption allows the action to go forward
  without penalties
• A high-level Endangered Species Committee of six
  specified federal officials and a representative
  of each affected state (commonly called the God
  Squad) decides whether to allow the action to
  proceed despite future harm to a species
• At least five votes are required to pass an
  exemption
• The Committee must grant an exemption if the
  Secretary of Defense determines that an exemption
  is necessary for national security
• The President may determine whether to exempt a
  project for the repair or replacement of
  facilities in declared disaster areas

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Few Exemptions

• There have only been six instances to date in
  which the exemption process was initiated.
• Of these six, one was granted, one was partially
  granted, one was denied, and three were dropped.
• Graylocks Dam and migrating whooping cranes
  (granted exemption)
• Tellico Dam and the snail darter (denied
  exemption)
• BLM timber sales in Oregon and the northern
  spotted owl (granted exemption for 13 of the
  sales)

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Allowance for an Incidental Take

• For actions without a federal nexus, such as a
  loan or permit, the Secretary may issue permits
  to allow incidental take of species for
  otherwise lawful actions.
• The applicant for an incidental take permit must
  submit a habitat conservation plan (HCP) that
  shows the likely impact, the steps to minimize
  and mitigate the impact, the funding for the
  mitigation, the alternatives that were considered
  and rejected, and any other measures that the
  Secretary may require.

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Habitat Conservation Plans

• n 1982, Congress amended the ESA to enhance the
  permitting provisions of the act to provide
  landowners with incentives to participate in
  endangered species conservation.
• By preparing "conservation plans" that meet
  statutory criteria, private landowners can obtain
  "incidental take permits" that allow otherwise
  prohibited impacts to endangered, threatened and
  other species covered in the permitting
  documents.

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HCP

• A person may apply for an HCP (Habitat
  Conservation Plans) if they know they want to
  develop an area that already has endangered
  species present.
• They are required to apply through the U.S. Fish
  and Wildlife Service and are required to minimize
  and fully mitigate the impacts to the species

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HCPs

• Each conservation plan must specify
• the impacts to species that will occur
• the steps taken to minimize and mitigate the
  incidental take
• the funding available
• alternative actions that were considered but not
  taken
• and other necessary and appropriate measures.

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HCPs

• After review of a proposed conservation plan, FWS
  or NOAA Fisheries may issue an incidental take
  permit upon making the statutorily required
  "findings," including a determination that the
  incidental taking "will not appreciably reduce
  the likelihood of the survival and recovery of
  the species in the wild."

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No Surprises Assurances

• Assurances given to private landowners that if
  "unforeseen circumstances" arise, FWS or NOAA
  Fisheries will not require the commitment of
  land, water or financial compensation or
  additional restrictions on the use of land,
  water, or other natural resources beyond the
  levels otherwise agreed to in the conservation
  plan, without the consent of the private
  landowner.

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Citizen Suits and the ESA

• The citizen suit provisions have been a driving
  force in the ESAs history, and often have been
  used to force reluctant agencies to provide for
  species conservation that might otherwise have
  been neglected.

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Effectiveness of the ESA

• 41 species have been delisted
• sixteen due to recovery
• nine due to extinction (seven of which were
  extinct prior to being listed)
• nine due to changes in taxonomic classification
• five due to discovery of new populations
• one due to an error in the listing rule
• one due to an amendment to the Endangered Species
  Act specifically requiring the species delisting

Delisting Report http//ecos.fws.gov/tess_public
/DelistingReport.do
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Effectiveness

• Twenty-three other species have been downlisted
  from "endangered" to "threatened" status.
• Few species have become extinct while listed
  under the Endangered Species Act
• 93 of listed species have had their population
  sizes increase or remain stable since being
  listed as threatened or endangered.

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Listed Species Which Increased In Population Size

• Bald Eagle (increased from 417 to 9,250 pairs
  between 1963 and 2006)
• Whooping Crane (increased from 54 to 436 birds
  between 1967 and 2003)
• Peregrine Falcon (increased from 324 to 1,700
  pairs between 1975 and 2000)
• Gray Wolf (populations increased dramatically in
  the Northern Rockies, Southwest, and Great Lakes)
  
• Gray Whale (increased from 13,095 to 26,635
  whales between 1968 and 1998)
• Grizzly bear (increased from about 271 to over
  580 bears in the Yellowstone area between 1975
  and 2005).
• Californias Southern Sea Otter (increased from
  1,789 in 1976 to 2,735 in 2005)
• San Clemente Indian Paintbrush (increased from
  500 plants in 1979 to more than 3,500 in 1997)
• Florida's Red Wolf (increased from 17 in 1980 to
  257 in 2003)
• Florida's Key Deer (increased from 200 in 1971 to
  750 in 2001)
• Hawaiian Goose (increased from 400 birds in 1980
  to 1,275 in 2003)
• Virginia Big-Eared Bat (increased from 3,500 in
  1979 to 18,442 in 2004)

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Updates on the ESA

• The Bald Eagle was removed from the federal list
  of threatened and endangered species on June
  28th, 2007.
• The eagles health will be monitored closely for
  the next five years, and it can be restored to
  the list of threatened species if necessary.
• It will also continue to enjoy the protections
  provided by an older law, The Bald and Golden
  Eagle Protection Act.
• There were 417 breeding pairs in the continental
  United States in 1967, after a long decline
  blamed variously on illegal hunting, habitat
  destruction and the pesticide DDT, which was
  banned in 1972. Forty years later, according to
  government figures, that number has grown to
  nearly 10,000.

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• The Grizzly bear (Yellowstone, "Northern
  Grizzly") was removed March 22nd, 2007.

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• Florida manatee recommended upgrading of ESA
  status from endangered to threatened (April 10,
  2007)
• This switch could mean changes in boating and
  development restrictions that were established to
  protect manatees.
• In 2007 the manatee census recorded 2,812 in
  Florida water. In 1991, the surveys first year,
  1,267 manatees were counted.

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References

• Congressional Research Report RL31654, The
  Endangered Species Act A Primer (updated
  September 27, 2006)
• U.S. Fish Wildlife Service, History and
  Evolution of the Endangered Species Act of 1973
  (updated October, 1996)
• USFWS Summary of Listed Species
• Marine and Anadromous ESA Species

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