In-depth Look: Endangered Species Act

  1. Current or threatened destruction of habitat
  2. Overuse of the species for commercial, recreational, scientific or educational purposes
  3. Disease or predation
  4. Ineffective regulatory mechanisms
  5. Other natural or man-made factors affecting the species chances of survival

Any person had the right to submit a petition to list a species and the determination as to whether a species should be listed must be made purely on a scientific basis. Upon receipt of a petition to list a species as threatened or endangered, the US Fish and Wildlife Service or National Marine Fisheries Serve must take the following actions:

  • within 90 days after receiving a petition, the Service must decide whether the available information shows that listing the species as threatened or endangered “may be warranted.”
  • within 12 months after receiving a petition that may warrant listing, the Service must decide whether the listing is “warranted,” “not warranted,” or “warranted but precluded” and publish a notice in the federal register.
  • If listing is “warranted,” the Service publishes a “proposed rule” and must place the species on the threatened or endangered list within 12 months of the proposed rule. If the listing is “warranted but precluded” because the agency lacks the necessary funding and personnel to process a “proposed rule,” the species is listed in the “notice of review” as a candidate species.
  • If the Service decides to list a species as threatened or endangered, it must also designate critical habitat – habitat that is critical to the survival of the species. The Service may decline to designate critical habitat if it finds that it is not “prudent” or “determinable.” If the habitat is “not determinable,” the Service has an additional year to determine critical habitat.


Protecting Critical Habitat

Critical Habitat is defined as the geographic area containing physical or biological features essential to the conservation of a listed species or an area that may require special management considerations or protection.

Neither federal agencies nor private landowners may destroy or adversely modify critical habitat of any listed species. The Service is required to “take into consideration the economic impact, and any other relevant impact of specifying any area as critical habitat.” The US Fish and Wildlife Service has failed to designate critical habitat for more than 80 percent of all species listed as threatened or endangered.

Recovery Planning for Threatened and Endangered Species

The Endangered Species Act requires the Service to develop and implement recovery plans for all threatened and endangered species that occur in the United States.

Recovery plans set forth what is needed for a species to “recover” to the point that it no longer needs the protections of the ESA. “Recovery teams,” made up of experts from public and private agencies and institutions, are convened to prepare the recovery plans. The plans must include specific management recommendations for the species and objective, measurable criteria which, when met, would signal the recovery of the species.

Not surprisingly, experience has shown that species with recovery plans are more likely to recover than those without plans. Unfortunately, the endangered species programs of the National Marine Fisheries Service and US Fish and Wildlife Service have been hampered by underfunding and political pressures. Consequently, fewer than 60 percent of listed species have recovery plans.

Prohibited Actions Under the Endangered Species Act

The Act establishes broad prohibitions against “taking” endangered or threatened species. In other words, on both public and private lands of the United States, it is illegal “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect” threatened or endangered animals. The FWS has defined “harm” to include significant destruction of a species’ habitat that results in actual death or injury. This would include interference with a species essential behavioral patterns such as breeding, feeding and sheltering.

While the “take” prohibition does not extend to plants on federal lands, it is illegal to “remove or reduce to possession” or “maliciously damage or destroy” threatened or endangered plants.

Protection for listed plants is significantly weaker on private lands where it is illegal to “remove, cut, dig up, or damage or destroy” plants only when it is “in knowing violation of any state law or in the course of any violation of state criminal trespass law.”

Section 7 of the ESA requires federal agencies to endure that any action that they authorize, fund or carry out is not likely to jeopardize the continued existence of any threatened or endangered species or adversely modify the critical habitat of any such species.
Any agency proposing a project such as a timber sale or dam must therefore ask the Service if there are any threatened or endangered species in the project area. If a listed species is present, the agency proposing the action must prepare a “biological assessment” that identifies listed species in the area and outlines the nature and extent of the action’s impact on these species. The Service then determines if a “formal consultation” is necessary.

If the biological assessment indicates that the proposed project may impact a listed species or its critical habitat, the Service is required to prepare a “biological opinion” (BiOp) that determines whether the project will “jeopardize” the continued existence of a listed species. If the Biological Opinion indicates there is “no jeopardy” to the listed species or its critical habitat, then the project proceeds.

If the Biological Opinion indicates that the project, as proposed, will jeopardize the continued existence of a threatened or endangered species, then the Service must suggest “reasonable and prudent alternatives” that they believe would not jeopardize the species’ existence. If the Service cannot suggest any reasonable and prudent alternatives, then the project is denied.

Between 1987-1995, the US determined that of the 186,000 consultations, only 600 resulted in “jeopardy” opinions and, of these, only 100 projects (or 0.05 percent of these projects) were stopped outright. The vast majority of projects were allowed to proceed after adoption of reasonable and prudent alternatives.