The stated purpose of the Endangered Species Act is to protect species and also "the ecosystems upon which they depend." It encompasses plants and invertebrates as well as vertebrates. It does not expressly include fungi, which were widely considered to be plants in 1973.
ESA is administered by two federal agencies, the United States Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA) (which includes the National Marine Fisheries Service NMFS). NOAA handles marine species, and the FWS has responsibility over freshwater fish and all other species. Species that occur in both habitats (e.g. sea turtles and Atlantic sturgeon) are jointly managed.
In March 2008, The Washington Post reported that documents showed that the Bush Administration, beginning in 2001, had erected "pervasive bureaucratic obstacles" that limited the number of species protected under the act:
In August 2008 the George W. Bush administration proposed new regulations that would weaken the Endangered Species Act by allowing federal agencies to determine whether projects will negatively affect endangered species, rather than following the regular protocol of seeking independent reviews from scientists on such issues.
The annual rate of listing (i.e., classifying species as "threatened" or "endangered") increased steadily from the Ford administration (47 listings, 15 per year) through Carter (126 listings, 32 per year), Reagan (255 listings, 32 per year), George H. W. Bush (231 listings, 58 per year), and Clinton (521 listings, 65 per year) before decline to its lowest rate under George W. Bush (60 listings, 8 per year as of 5/24/08).
The rate of listing is strongly correlated with citizen involvement and mandatory timelines: as agency discretion decreases and citizen involvement increases (i.e. filing of petitions and lawsuits) the rate of listing increases. The longer species are listed, the more likely they are to be classified as recovering by the FWS.
Penalties: There are different degrees of violation with the law. The most punishable offense is enforced upon those who knowingly break the law through acts of importing or exporting, taking, possessing, selling, delivering, carrying, transporting, or shipping—essentially 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. The penalties for these violations can be a maximum fine of up to $50,000 or imprisonment for one year, or both, and civil penalties of up to $25,000 per violation, may be assessed. Also note that as your violation history accumulates, you are subject to larger fines and penalties. For lists of violations and exact fines (because fines are based on the degree of the violation) there is a table available through the National Oceanic and Atmospheric Administration web-site: An important provision of this law is that 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.
Further punishment besides fines and imprisonment can be in the form of revocation, suspension, or modification of a license, permit, or other agreement issued by a Federal Agency, that authorized a person to import or export fish, wildlife, or plants. Any federal hunting or fishing permits that were issued to a person who violates the ESA can be canceled or suspended for up to a year by the Secretary who will not be held responsible for any losses that ensue.
What the Secretary does with monies received through violations of the ESA: A reward will be paid to any person who furnishes information which leads to an arrest, conviction, or revocation of a license, so long as they are not a local, state, or federal employee in the performance of official duties. The Secretary may also provide reasonable and necessary costs incurred for the care of fish, wildlife, or plant pending the violation caused by the criminal. If the balance ever exceeds $500,000 the Secretary of the Treasury is required to deposit an amount equal to the excess into the cooperative endangered species conservation fund.
Recovery plans benefit species as indicated by the fact that the longer species have recovery plans, the more likely they are to be classified as improving. The benefit, however, appears to be limited to single-species oriented plans; large multi-species, ecosystem-based plans are not correlated with improving status; perhaps due to their lack of specificity.
Critical habitats are required to contain "all areas essential to the conservation" of the target species (Section 3(5) (A)). Such lands may be private or public. The ESA is mute as to whether critical habitats may encompass lands outside of U.S. jurisdiction, but the FWS has adopted a policy limiting designation to lands and waters within the U.S. The FWS and NOAA Fisheries may exclude essential areas if they determine that economic or other costs exceed the benefit (Section 4(b) (2)). The ESA is mute about how such costs and benefits are to be determined.
Federal agencies are prohibited from authorizing, funding or carrying out actions that "destroy or adversely modify" critical habitats (Section 7(a) (2)). While the regulatory aspect of critical habitat does not apply directly to private and other non-federal landowners, large-scale development, logging and mining projects on private and state land typically require a federal permit and thus become subject to critical habitat regulations. Outside or in parallel with regulatory processes, critical habitats also focus and encourage voluntary actions such as land purchases, grant making, restoration, and establishment of reserves.
The ESA requires that critical habitat be designated at the time of or within one year of a species being placed on the endangered list. In practice, most designations occur several years after listing. Between 1978 and 1986 the FWS regularly designated critical habitat. In 1986 the Reagan Administration issued a regulation limiting the protective status of critical habitat. As a result, few critical habitats were designated between 1986 and the late 1990s. In the late 1990s and early 2000s, a series of court orders invalidated the Reagan regulations and forced the FWS and NOAA Fisheries to designate several hundred critical habitats, especially in Hawaii, California and other western states. Midwest and Eastern states received less critical habitat, primarily on rivers and coastlines. As of December, 2006, the Reagan regulation has not yet been replaced though its use has been suspended. Nonetheless, the agencies have generally changed course and since about 2005 have tried to designate critical habitat at or near the time of listing.
Most provisions of the ESA revolve around preventing extinction. Critical habitat is one of the few that focuses on recovery. Species with critical habitat are twice as likely to be recovering as species without critical habitat.
The Endangered Species Act also empowers FWS or NOAA Fisheries to include "terms and conditions" in the incidental take permits as necessary or appropriate. (Section 10(a) (2)(B)(v).) Among those terms and conditions are "no surprises assurances," issued in accordance with Federal regulations. 50 C.F.R. Part 17. These regulations allow for assurances to be 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 permittee.
Few species have become extinct while listed under the Endangered Species Act, and 93% in the northeastern US have had their population sizes increase or remain stable since being listed as threatened or endangered. As of August, 28, 2008, there are 1,327 species on the threatened and endangered lists. However, many species have become extinct while on the candidate list or otherwise under consideration for listing.
Species which increased in population size since being placed on the endangered list include:
An oft cited anecdote is the red-cockaded woodpecker which nests in trees that are at least 80 years old. Ben Cone is a tree farmer in North Carolina who owns of southern pines. In 1991, the federal government forced him to pay a biologist $8,000 to look for red cockaded woodpeckers on his land After they were found, the government forced him to set aside of his land in order to protect the woodpecker habitat. This cost him an additional $1.8 million. The government did not compensate him for his losses. Originally, his family had allowed the trees to grow for 80 to 100 years before harvesting them. In order to prevent any further financial losses, Cone switched the rest of his acreage to a rotation of only 30 to 40 years, so it would no longer be a suitable habitat to the woodpecker. Randal O'Toole, an economist and public policy analyst who studied this case, stated, "Cone was given no incentive to protect the bird... When landowners face stiff penalties for harboring endangered species, they minimize suitable habitat... The law creates incentives to destroy wildlife."
According to the U.S. Fish and Wildlife Service, however, the total population size of the red-cockaded woodpecker population has increased since being placed on the endangered species list. This may indicate the negative effects in cases like this may be offset by the ESA's positive effects or, as with other cases, there may be no positive correlation between the effects of the ESA and population size.