ESA Summary

Public Lands and Natural Resources Law: LACJR..................................last update: Dec.12, 1996

Endangered Species Act -- Summary

Resources:

See:

Brennan, Michael J. and Ralph G. Swanson, Wildlife Protection on the Public Lands, a paper presented at the Public Land Law special institute sponsored by the Rocky Mountain Mineral Law Foundation in 1992.

History

The Endangered Species Act (ESA) of 1973, as amended, had precursors in 1966 and 1969...
1973 amendments and those following have intensified the mandate to protect wildlife and other natural resources -- especially threatened and endangered species.

Amendments:

1978: God squad;

1979: federal interagency consulting provisions extended to species proposed for listing;

1982: Section 10 "incidental take" with HCP exemption created; HCPs to take into account non-listed species to avoid need for additional listing, and first substantive protections for plants enacted; and

1988: extends ESA consideration of candidate species, and plants.

16 USC § 1531 et seq.

Responsibilities

The law of the ESA reaches all federal, state and local agencies, and "any person subject to the jurisdiction of the United States". § 1538 (a)(1). Dept. of Interior responsibilities have been delegated to the US FWS for all terrestrial and freshwater species, certain marine mammals, and certain aspects of anadromous fish management; and to the National Marine Fisheries Service for marine species (NMFS works for Dept. of Commerce). FWS and NMFS have developed joint regulations to implement the mandates of the Act.

Summary Outline of Key Sections

The Act contains strong procedural and substantive requirements. A shift toward habitat conservation as opposed to individual species is occurring.

Definitions

Endangered species -- "one in danger of extinction throughout all or a significant portion of its range";

Threatened species -- one "likely to become an endangered species within the foreseeable future throughout all or a portion of its range.

16 USC § 1532 (6), (20).

Section 4

Part (b) Listing process. 50 CFR part 424 (1991)

Extent of threats is key.
Not all range required.
Based "solely on ... the best scientific or commercial data available"
By regulation, published in the Fed Reg., with opportunity for public comment.
Strict time limits on the FWS.
No socio-economic considerations for listing.

Part (b) Designation of critical habitat 16 USC § 1533

Concurrent, not more that one year of listing.
Prudence
Economic considerations enter process of designation ...
Designation primarily affects federal actions; generally does not restrict private use of private lands...

Part (f) Recovery plans. 16 USC § 1533(f)(1).

"plans ... for the conservation and survival" of listed species ...
Contain site-specific management actions, responsibilities, time-frames and funding requirements necessary for reclassification (endangered to threatened) or delisting (removal from the endangered species list).
Team work
Not mandatory.

Section 5

Authorizes land acquistion for purposes of the Act (habitat protection and conservation)..

Section 7

Big impact on Depts. of Interior and Commerce.
Part (a) (2) Jeopardy -- no actions by federal agencies that would jeopardize the continued existence of a listed species or adversely modify or destroy critical habitat.
Interagency consultation required to determine presence, adverse effects, mitigation measures (before action). Process for consultation is at 16 USC § 1536 (a)(2). Formal consultation required for actions that may affect listed species.
No irretrievable or irreversible commitments of resources during consultation. "Major construction activities" require "biological assessment" and probably "biological opinion" by FWS.
Outcome of consulting process will be "jeopardy" biological opinion which will include reasonable and prudent alternatives for pursuing actions, or "no jeopardy" biological opinion.
See flow diagram:
Jeopardy opinion will require conferencing between action agency and FWS to plan mitigation measures...

Section 8

Ratifies international treaty obligations and commitments.

Section 9

Defines prohibited acts: no actions by anyone that would "take" a member of a listed species. 16 USC § 1538 (a)(1).
"Take" prohibition includes "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct" § 1532 (19);
"harm" is defined by FWS rule to be "an act which actually kills or injures wildlife. Such act may include significant habitat modification or degredation where it actually kills or injures wildlife by significantly impairing essential behavior patterns, including breeding, feeding or sheltering." 50 CFR part 17.3.

Section 10

Defines exemptions;

Regulated:
- Collection for scientific research;
- To enhance propogation or survival of species;
- Economic hardships;
- Pre-act endangered species parts;
- Antique articles;
- Certain non-commercial shipments of listed species;
- Experimental populations as conservation technique.
Unregulated:
- Subsistance purposes for Alaskan natives

"Incidental take" -- application to include habitat conservation plan. Terms and conditions will be in statement to minimize affects. 16 USC § 1539 (a)(2)(A), and (a)(4); 50 CFR part 402.10 (a).

Section 11

Defines penalties for violations. Civil and criminal.

Section 12

Protections for endangered plants. These differ significantly from those for animals....

Case Law

Case law is endless. See annual reports of the SONREEL, ABA. Etc.

Prospect for the future.

Revisions in response to property rights advocates? -- economic considerations for listing? -- 5 acre exemption?
Note that 99.9% of all projects reviewed through informal and formal consultations with the FWS ('87 -'91; 1992 GAO report) have been permitted. See the FWS Web pages on general statistics.

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