The Endangered Species Act of 1973 (et seq.) or ESA is the most wide-ranging of the dozens of United States environmental laws passed in the 1970s. As stated in section 2 of the act, it was designed to protect critically imperiled species from extinction as a "consequence of economic growth and development untendered by adequate concern and conservation."

History

In 1973, President Richard Nixon declared current species conservation efforts to be inadequate and called on the 93rd United States Congress to pass comprehensive endangered species legislation. Congress responded by creating the Endangered Species Act of 1973 which was signed by Norris on December 28, 1973 ().

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:

• From 2001 to 2003, until a U.S. District Court overturned the decision, Fish and Wildlife Service officials said that if that agency identified a species as a candidate for the list, citizens could not file petitions for that species.
• Interior Department personnel were told they could use "info from files that refutes petitions but not anything that supports" petitions filed to protect species.
• Senior department officials revised a longstanding policy that rated the threat to various species based primarily on their populations within U.S. borders, giving more weight to populations in Canada and Mexico, countries with less extensive regulations than the U.S.
• Officials changed the way species were evaluated under the act by considering where the species currently lived, rather than where they used to exist.
• Senior officials repeatedly dismissed the views of scientific advisers who said that species should be protected.

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.

Listing

The ESA only protects species which are officially listed as "endangered" or "threatened". A species can be listed in two ways. The first is for the FWS or NOAA Fisheries to take the initiative and directly list the species. The second is via individual or organizational petition which prompts FWS or NMFS to conduct a scientific review. There are two categories on the list, endangered and threatened. Endangered species are closer to extinction than threatened species. A third status is that of "candidate species". Under this status, the FWS has concluded that listing is warranted but immediate listing is precluded due to other priorities.

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.

Enforcement and penalties

Section 11 of the Endangered Species Act describes the violations and penalties that may be enforced under law. The United States Secretary of State, the Secretary of the Treasury, or the Secretary of the Department in which the Coast Guard is operating are the bodies of the federal government responsible for enforcing the provisions of this Act. The U.S. Fish and Wildlife Service plays the predominant role in law enforcement of the Endangered Species Act.

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

FWS and NOAA Fisheries are required to create a Recovery Plan outlining the goals, tasks required, likely costs, and estimated timeline to recover endangered species (i.e., increase their numbers and improve their management to the point where they can be removed from the endangered list). The ESA does not specify when a recovery plan must be completed. The FWS has a policy specifying completion within three years of the species being listed, but the average time to completion is approximately six years. The annual rate of recovery plan completion increased steadily from the Ford administration (4) through Carter (9), Reagan (30), Bush I (44), and Clinton (72), but declined under Bush II (16 per year as of 9/1/06).

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 habitat

As habitat loss is the primary threat to most imperiled species, the original ESA of 1973 allowed the FWS and NOAA Fisheries to designate specific areas as protected "critical habitat" zones. In 1978, Congress amended the ESA to require designation for all threatened and endangered species except those which might be harmed by the publication of such maps. Congress indicated that the exception should rarely be invoked.

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.

Habitat Conservation Plans

In 1982, Congress amended the ESA to enhance the permitting provisions of the act, (Section 10) and intended, in part, to provide landowners with incentives to participate in endangered species conservation. (H.R. Conf. Rep. No. 97-835, at 28-31 (1982), reprinted in 1982 U.S.C.C.A.N. 2807.) Pursuant to these provisions, by preparing a "Habitat Conservation Plan" (HCP) that meets 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. 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 we considered, but not taken; and other necessary and appropriate measures. (Section 10(a) (2)(A).) 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." (Section 10(a) (2)(B).)

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.

Effectiveness

Positive effects

As of August 28, 2008, 44 species have been delisted; nineteen due to recovery, nine due to extinction (seven of which were extinct prior to being listed), ten due to changes in taxonomic classification, five due to discovery of new populations, one due to an error in the listing rule, and one due to an amendment to the Endangered Species Act specifically requiring the species delisting. Twenty-three others have been downlisted from "endangered" to "threatened" status. Some have argued that the recovery of DDT-threatened species such as the bald eagle, brown pelican and peregrine falcon should be attributed to the 1973 congressional ban on DDT rather than the Endangered Species Act, however, the listing of these species as endangered was a substantial cause of congress instituting the ban and many non-DDT oriented actions were taken on their behalf under the Endangered Species Act (i.e. captive breeding, habitat protection, and protection from disturbance).

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:

• Bald Eagle (increased from 417 to 11,040 pairs between 1963 and 2007); removed from list 2007
• Whooping Crane (increased from 54 to 436 birds between 1967 and 2003)
• Kirtland's Warbler (increased from 210 to 1,415 pairs between 1971 and 2005)
• Peregrine Falcon (increased from 324 to 1,700 pairs between 1975 and 2000); removed from list
• 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); removed from list
• Grizzly bear (increased from about 271 to over 580 bears in the Yellowstone area between 1975 and 2005); removed from list 3/22/07
• California’s 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)
• Red Wolf (increased from 17 in 1980 to 257 in 2003)
• Florida's Key Deer (increased from 200 in 1971 to 750 in 2001)
• Big Bend Gambusia (increased from for a couple dozen to a population of over 50,000)
• 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)

Negative consequences

Opponents of the Endangered Species Act argue that it may encourage preemptive habitat destruction by landowners who fear losing the use of their land because of the presence of an endangered species known colloquially as "Shoot, Shovel and Shut-Up". Although anecdotal evidence of such actions exists, no studies have been conducted to determine if the Act's negative effects, in total, exceed the positive effects.

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.

See also

• Marine Mammal Protection Act
• Endangered Species Act Amendments of 1978

References

External links

• ESAblawg: the legal blog discussing the Endangered Species Act
• 100 Success Stories for Endangered Species Act. Center for Biological Diversity. .
• History and Evolution of the Endangered Species Act of 1973. US Fish & Wildlife Service. .
• Full text of the Endangered Species Act. US Fish & Wildlife Service. .
• Full text of the Endangered Species Act. U.S. Code. .
• Center for Biological Diversity. .
• TVA v. Hill. FindLaw for Legal Professionals. . The 1978 decision related to the ESA and the snail darter.
• Babbit v. Sweet Home. Cornell University Law School. . The 1995 decision on whether significant habitat modifications on private property that actually kill species constitute "harm" for purposes of the ESA.
• Regulations.gov: For commenting on ESA and other governmental rule-making actions.
• Opposition to ESA: Letter from 85 national conservative and property rights organizations to the chairman of U.S. Senate Environment & Public Works Committee regarding proposed changes to Endangered Species Act (2006).
• Fish and Wildlife web pages discussing Endangered Species Habitat Conservation Planning