Part 1: Listing species and designating critical habitat
An endangered species
is any species of fish
, or plant
that is in danger
throughout all or a significant portion of its range. Subspecies and distinct population
segments of vertebrate species may also be listed. As of February 2000, there were 1,473 species classified as endangered, 955 of which occur in the United States
A threatened species is any species of fish, animal, or plant that is likely to become an endangered species within the foreseeable future. As of February 2000, there were 307 threatened species, 267 of which occur in the United States.
A candidate species is one whose status warrants listing but whose listing is precluded by lack of administrative resources and/or funding. The Secretary of the Interior is required to publish "notices of review" that list the status of candidate species. A proposed species is one that is undergoing the listing process. As of October 1999, 258 species were considered candidates for listing under the ESA and 56 were considered proposed species.
Species are considered for listing when the Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) receives notification of a species' status from one of the following sources: federal agency surveys; state agency studies; private company research; conservation organization data; academic research; private individual study; or a listing petition.
Species can be added to the list for any one of five reasons: current or threatened destruction, modification, or curtailment of habitat or range; overuse for commercial, recreational, scientific, or educational purposes; disease or predation; ineffective regulatory mechanisms; and other natural or man-made factors affecting survival.
Any "interested person" may file a petition to list a species as threatened or endangered. Upon receipt of a listing petition, the FWS or NMFS must take the following actions.
Within 90 days of receiving a petition, the FWS or NMFS must make a finding on whether or not a listing "may be warranted."
Within 12 months of receiving a petition that may be warranted, the FWS or NMFS must make a finding on whether the listing is "warranted," "not warranted," or "warranted but precluded" and publish a notice in the Federal Register.
If listing is warranted, the FWS or NMFS publishes a "proposed rule" and must list the species within 12 months of the proposed rule.
If listing is warranted but precluded because the agency lacks the necessary funding and personnel, the species is listed in the "notice of review" as a candidate for listing.
Critical habitat is defined as the geographic area containing physical or biological features essential to the conservation of a listed species or as an area that may require special management considerations or protection.
Unless the FWS or NMFS finds that it is not "prudent" or "determinable," critical habitat must be designated concurrently with a species' listing. If "not determinable," the Secretary has an additional year to determine critical habitat. Despite this requirement, the vast majority of species does not have critical habit designation. As of January 2000, critical habitat had been designated for 116 endangered or threatened species--less than 10 percent of all listed species.
Federal agencies may not carry out, fund, or authorize activities that would destroy or adversely modify critical habitat of any listed species. However, the designation of an area as critical habitat does not, by itself, restrict the rights of a private property owner or prevent any particular type of use or development.
The FWS and NMFS are required to "take into consideration the economic impact, and any other relevant impact of specifying any area as critical habitat." The agencies may exclude any area from critical habitat designation if "the benefits of such exclusion outweigh the benefits of specifying such areas as part of the critical habitat, unless the failure to designate such areas as critical habitat will result in the extinction of the species concerned."
Part 2: Recovery plans
The Endangered Species Act requires the Fish and Wildlife Service and National Marine Fisheries Service to develop and implement recovery plans for the conservation and survival of threatened and endangered species that occur in the United States, unless "such a plan will not promote the conservation of the species."
Recovery teams, which include representatives of public and private agencies and institutions, among others, are convened to prepare recovery plans. However, the endangered species recovery program is generally hampered by underfunding and political pressures, and as of February 2000, only about 75 percent of listed species had recovery plans.
Part 3: ESA Prohibitions
The ESA prohibits the "taking" of endangered species. Taking is defined as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" listed species. "Harm" includes destruction of a listed species' habitat.
The act's prohibition on taking does not extend to listed plant species. However, on public lands, it is illegal to "remove or reduce to possession," or to "maliciously damage or destroy" threatened or endangered plants. Protection of listed plants is significantly weaker on private lands, where it is illegal to "remove, cut, dig up, or damage or destroy flora" only when it is "in knowing violation of any state law or in the course of any violation of state criminal trespass law."
In addition, federal agencies are required to consult with the FWS or NMFS to ensure that any action authorized, funded, or carried out by that agency is "not likely to jeopardize the continued existence of any threatened or endangered species" or to destroy the critical habitat of any such species. Any agency proposing a project must therefore ask FWS or NMFS 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. FWS or NMFS then determines if a "formal consultation" is necessary.
If the biological assessment indicates that the proposed project could affect a listed species, the Secretary is required to prepare a "biological opinion" that determines formally whether the project would cause "jeopardy" to the continued existence of a listed species. If the biological opinion indicates no jeopardy, then the project proceeds.
If the opinion indicates that the project, as proposed, would cause jeopardy to listed species, then FWS and NMFS are required to suggest "reasonable and prudent alternatives" that would not jeopardize the species' existence. If the agency cannot suggest reasonable and prudent alternatives, the proposed project is denied.
Of the more than 195,000 federal actions reviewed under the ESA between 1979 and 1995, only about 0.05 percent were withdrawn or canceled because they would have jeopardized a listed species. The vast majority of federal projects continue after consultation with only minor alterations to protect a listed species.
Part 4: Exceptions to ESA prohibitions
A private landowner can receive an "Incidental Take Permit" to "take" threatened or endangered species by submitting a Habitat Conservation Plan (HCP) that minimizes and mitigates the impacts of the proposed action on listed species. The HCP must be approved by the Secretary of the Interior prior to receipt of an Incidental Take Permit. The number of incidental take permits issued by the FWS and NMFS has grown exponentially in recent years. As of April 2000, 301 permits had been approved and more than 200 others were in development.
Proposed actions by federal agencies that have been determined to cause jeopardy to a listed species may receive an exemption from the ESA if five members of the federal "Endangered Species Committee" determine that the action is of regional or national significance, that the benefits of the action clearly outweigh the benefits of conserving the species, and that there are no reasonable and prudent alternatives to the action.
The Endangered Species Committee is comprised of seven members: the Secretary of Agriculture; the Secretary of the Army; the Secretary of the Interior; the Chairman of the Council of Economic Advisors; the Administrator of the National Oceanic and Atmospheric Administration; the Administrator of the Environmental Protection Agency; and one individual from the affected state.