Endangered Species Act of 1973

Endangered Species Act of 1973

Other short titles	Endangered Species Act of 1973
Long title	An Act to provide for the conservation of endangered and threatened species of fish, wildlife, and plants, and for other purposes.
Acronyms (colloquial)	ESA
Nicknames	Endangered Species Conservation Act
Enacted by	the 93rd United States Congress
Effective	December 27, 1973
Citations
Public law	93–205
Statutes at Large	87 Stat. 884
Codification
Titles amended	16 U.S.C.: Conservation
U.S.C. sections created	16 U.S.C. ch. 35 §§ 1531-1544.
Legislative history
Introduced in the Senate as S. 1983 by Harrison A. Williams (D–NJ) on June 12, 1973 Committee consideration by Senate Commerce Committee Passed the Senate on July 24, 1973 (92–0) Passed the House on September 18, 1973 (390–12, in lieu of H.R. 37) Reported by the joint conference committee on December 19, 1973; agreed to by the Senate on December 19, 1973 (agreed) and by the House on December 20, 1973 (355–4) Signed into law by President Richard Nixon on December 28, 1973
Major amendments
Pub. L. 95–632, 92 Stat. 3751, enacted November 10, 1978 Pub. L. 96–159, 93 Stat. 1225, enacted December 28, 1979 Pub. L. 97–304, 96 Stat. 1411, enacted October 13, 1982
United States Supreme Court cases
List Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978) Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995) Bennett v. Spear, 520 U.S. 154 (1997) National Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) Weyerhaeuser Company v. United States Fish and Wildlife Service, No. 17-71, 586 U.S. ___ (2018) United States Fish and Wildlife Service v. Sierra Club, No. 19-547, 592 U.S. ___ (2021)

The Endangered Species Act of 1973 (ESA or "The Act"; 16 U.S.C. § 1531 et seq.) is the primary law in the United States for protecting and conserving imperiled species. Designed to protect critically imperiled species from extinction as a "consequence of economic growth and development untempered by adequate concern and conservation", the ESA was signed into law by President Richard Nixon on December 28, 1973. The Supreme Court of the United States described it as "the most comprehensive legislation for the preservation of endangered species enacted by any nation". The purposes of the ESA are two-fold: to prevent extinction and to recover species to the point where the law's protections are not needed. It therefore "protect[s] species and the ecosystems upon which they depend" through different mechanisms. For example, section 4 requires the agencies overseeing the Act to designate imperiled species as threatened or endangered. Section 9 prohibits unlawful 'take,' of such species, which means to "harass, harm, hunt..." Section 7 directs federal agencies to use their authorities to help conserve listed species. The Act also serves as the enacting legislation to carry out the provisions outlined in The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

In Tennessee Valley Authority v. Hill, the Supreme Court found that "the plain intent of Congress in enacting" the ESA "was to halt and reverse the trend toward species extinction, whatever the cost." The Act is administered by two federal agencies, the United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS). FWS and NMFS have been delegated by the Act with the authority to promulgate any rules and guidelines within the Code of Federal Regulations (CFR) to implement its provisions.

History

Calls for wildlife conservation in the United States increased in the early 1900s because of the visible decline of several species. One example was the near-extinction of the bison, which used to number in the tens of millions. Similarly, the extinction of the passenger pigeon, which numbered in the billions, also caused concern. The whooping crane also received widespread attention as unregulated hunting and habitat loss contributed to a steady decline in its population. By 1890, it had disappeared from its primary breeding range in the north central United States. Scientists of the day played a prominent role in raising public awareness about the losses. For example, George Bird Grinnell highlighted bison decline by writing articles in Forest and Stream.

To address these concerns, Congress enacted the Lacey Act of 1900. The Lacey Act was the first federal law that regulated commercial animal markets. It also prohibited the sale of illegally killed animals between states. Other legislation followed, including the Migratory Bird Conservation Act, a 1937 treaty prohibiting the hunting of right and gray whales, and the Bald and Golden Eagle Protection Act of 1940.

Endangered Species Preservation Act of 1966

Whooping crane

Despite these treaties and protections, many populations still continued to decline. By 1941, only an estimated 16 whooping cranes remained in the wild. By 1963, the bald eagle, the U.S. national symbol, was in danger of extinction. Only around 487 nesting pairs remained. Loss of habitat, shooting, and DDT poisoning contributed to its decline.

The U.S. Fish and Wildlife Service tried to prevent the extinction of these species. Yet, it lacked the necessary Congressional authority and funding. In response to this need, Congress passed the Endangered Species Preservation Act (Pub. L. 89–669) on October 15, 1966. The Act initiated a program to conserve, protect, and restore select species of native fish and wildlife. As a part of this program, Congress authorized the Secretary of the Interior to acquire land or interests in land that would further the conservation of these species.

The Department of Interior issued the first list of endangered species in March 1967. It included 14 mammals, 36 birds, 6 reptiles, 6 amphibians, and 22 fish. A few notable species listed in 1967 were the grizzly bear, American alligator, Florida manatee, and bald eagle. The list included only vertebrates at the time because of the Department of Interior's limited definition of "fish and wildlife."

The Endangered Species Preservation Act was repealed by the Endangered Species Act.

Endangered Species Conservation Act of 1969

Main article: Endangered Species Conservation Act of 1969

The Endangered Species Conservation Act of 1969 (Pub. L. 91–135) amended the Endangered Species Preservation Act of 1966. It established a list of species in danger of worldwide extinction. It also expanded protections for species covered in 1966 and added to the list of protected species. While the 1966 Act only applied to 'game' and wild birds, the 1969 Act also protected mollusks and crustaceans. Punishments for poaching or unlawful importation or sale of these species were also increased. Any violation could result in a $10,000 fine or up to one year of jail time.

Notably, the Act called for an international convention or treaty to conserve endangered species. A 1963 IUCN resolution called for a similar international convention. In February 1973 a meeting in Washington, D.C. was convened. This meeting produced the comprehensive multilateral treaty known as CITES or the Convention on International Trade of Endangered Species of Wild Fauna and Flora.

The Endangered Species Conservation Act of 1969 provided a template for the Endangered Species Act of 1973 by using the term "based on the best scientific and commercial data." This standard is used as a guideline to determine if a species is in danger of extinction.

Passage of the 1973 Act

In 1972, President Nixon declared current species conservation efforts to be inadequate. He called on the 93rd United States Congress to pass comprehensive endangered species legislation. Congress responded with a completely rewritten law, the Endangered Species Act of 1973, which was signed by Nixon on December 28, 1973 (Pub. L. 93–205).

It was written by a team of lawyers and scientists, including Dr. Russell E. Train, the first appointed head of the Council on Environmental Quality (CEQ), an outgrowth of the National Environmental Policy Act (NEPA) of 1969. Dr. Train was assisted by a core group of staffers, including Dr. Earl Baysinger at EPA, Dick Gutting, and Dr. Gerard A. "Jerry" Bertrand, a PhD marine biologist by training (Oregon State University, 1969), who had transferred from his post as the senior scientific adviser to the Commandant of the U.S. Army Corps of Engineers, office of the Commandant of the Corps., to join the newly formed White House Council on Environmental Quality. The staff, under Dr. Train's leadership, incorporated dozens of new principles and ideas into the landmark legislation but also incorporated previous laws, as was desired by Congressman John Dingell (D-Michigan) when he first proposed the idea of an "Endangered Species Act." Among the staff, Dr. Bertrand is credited with having written major parts of the Act, including the infamous "takings" clause, 16 U.S.C. § 1538. "We didn't know what we couldn't do," Dr. Bertrand has said about the Act. "We were doing what we thought was scientifically valid and right for the environment."

New Features of the 1973 Act

Seal of the United States Fish and Wildlife Service

NOAA Fisheries logo

The Endangered Species Act is administered by two federal agencies, the United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS). NMFS 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.

As amended, it consists of 18 sections. Key legal requirements include:

• The federal government must determine whether species are endangered or threatened. If so, they must list the species for protection under the ESA (Section 4).
• If determinable, critical habitat must be designated for listed species (Section 4).
• Absent certain limited situations (Section 10), it is illegal to "take" an endangered species (Section 9). "Take" can mean kill, harm, or harass (Section 3).
• Federal agencies will use their authorities to conserve endangered species and threatened species (Section 7).
• Federal agencies cannot jeopardize listed species' existence or destroy critical habitat (Section 7).
• Any import, export, interstate, and foreign commerce of listed species is generally prohibited (Section 9).
• Endangered fish or wildlife cannot be taken without a take permit. This also applies to certain threatened animals with section 4(d) rules (Section 10).

The 1973 Act is considered a landmark conservation law. Academic researchers have referred to it as "one of the nation's most significant environmental laws." It has also been called "one of the most powerful environmental statutes in the U.S. and one of the world's strongest species protection laws." The Act itself has been amended four times: 1978, 1982, 1988, and 1992. Formal regulations published in the Federal Register that specify how the Act will be implemented have also changed through time. In recent years, U.S. presidential elections that greatly shift environmental priorities have culminated in regulatory shifts in endangered species management back and forth. Congressional elections also affect implementation of the Act via expansions or contractions in annual funding decisions for the agencies.

Plants become eligible for listing

A distinction of the 1973 Act is that, unlike the previous legislation, plants became eligible for listing. Section 12 directed the Smithsonian Institution "to review (1) species of plants which are now or may become endangered or threatened and (2) methods of adequately conserving such species, and to report to Congress, within one year after the date of the enactment of this Act, the results of such review including recommendations for new legislation or the amendment of existing legislation." As a result, the first plant listings occurred in 1977. Fifty years later, significantly more species of plants were listed in the highest category (endangered) than animals: 766 plants and 486 animals.

Torreya Guardians homepage image, with Florida torreya tree photo

Historians attribute this new-found concern for imperiled plants to ongoing global treaty negotiations (especially in 1972 and 1973) toward what would eventually be adopted in 1975 under the title, Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Prior to this time, attention to the conservation needs of native plants had been stalled by complications that do not pertain to animals. How to adequately distinguish plants illegally collected in the wild from plants propagated from seeds or cuttings taken from horticultural specimens was among the points of contention. Ultimately, federal authority over enforcement of endangered plant protections has centered on regulation of interstate commerce of such plants. This legal distinction for plants became controversial in practice when a group of citizens, Torreya Guardians, chose to help an endangered glacial relict plant, Florida Torreya, move to cooler poleward climates before conservation professionals were ready to begin their own experimentation with assisted migration of endangered species. Because movement of seeds and seedlings by this group was noncommercial and based on horticulturally produced specimens, there was no legal apparatus to halt their actions.

Another distinction is that, when an animal is listed as endangered or threatened, "taking" of that animal (by capture or killing) becomes a violation of the Act. For plants, "taking" occurs only within the boundaries of federal properties. Even so, states may choose to legislate and enforce prohibitions even on private lands, as occurred in 2023 when the State of California passed a law that prevented killing or removal of the western variety of Joshua tree wherever it was found. Climate change risk was a key factor in the determination.

Two categories for listing species

The Act distinguished two grades of species for listing: "endangered" and a lesser category called "threatened". An endangered species is in danger of extinction now; a threatened species faces such a threat in "the foreseeable future." The aim for the lesser category is to enable protective actions by federal agencies at an earlier time, such that the causes of population decline might be corrected before emergency concerns develop. Controversy also arises as to whether and what differences in recovery plan elements, and thus management policies and restrictions, should distinguish "threatened" from "endangered."

Five criteria for making listing decisions

The Act specifies the types of causes to be identified in species decline, any one of which might be severe enough to merit listing the species as threatened or endangered. Also known as the "five factors", the set of possible causes entail:

• the present or threatened destruction, modification, or curtailment of its habitat or range
• overutilization for commercial, recreational, scientific, or educational purposes
• disease or predation
• the inadequacy of existing regulatory mechanisms
• other natural or manmade factors affecting its survival

Recovery plans must be made and published

A key provision of the 1973 Act was that "preventing extinction" would no longer be sufficient. Rather "recovery" of listed species, such that "delisting" could become possible was now a stated goal. "Recovery plans" were now to be developed and published by the two agencies in charge: the United States Fish and Wildlife Service and the National Marine Fisheries Service. In practice, recovery plans usually include population targets and "objective, measurable criteria" that would constitute adequate reduction of threats and provision of habitat protection" such that delisting (or down-listing from "endangered" to "threatened") would be warranted.

"Critical habitat" may be designated

The 1973 Act introduced the concept of what is now called "critical habitat" in only one brief passage. Section 7 required federal agencies to ensure that actions they authorized, funded, or carried out would not result in "the destruction or modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical." When the Act was amended in 1978, "critical habitat" was given a definition and basic terms for how it would be determined and used. (As will be seen in the "Controversies" section, this provision was sometimes challenging to implement for both scientific and political reasons.)

Citizens can petition for listing species

A review of the Act published in 2009 recounted the unavoidable problems that arose from granting opportunities even for citizens to submit petitions for species listing:

Soon after the Endangered Species Act was enacted, Congress recognized that at any given time there were likely to be more species potentially eligible for listing than the Service could address through the rule-making process. As a result, Congress in 1979 directed the Service to develop a prioritization system that would enable it to determine which of the potentially eligible species should be considered first. The Service responded with listing priority guidance that established a hierarchy of priorities based first on the magnitude of threat, then upon its imminence, and finally upon taxonomic distinctiveness (with monotypic genera ranked ahead of other species, and full species ranked ahead of subspecies.

Requirements that listing decisions be made based on scientific evidence and considerations, coupled with an inability of the agencies to expand and contract staffing based on shifts in the volume of outstanding petitions, induced Congress in 1982 to amend the Act by establishing deadlines for agency decisions. As of 2023, those deadlines still nominally apply, but in practice it is rare for a petitioner to approach the judicial system to force a decision before the agency is able to finish the job on its own timetable.

Challenges and Controversies

In 2023, with this Congressional act achieving its 50th anniversary, journalists were prompted to report on the Act's outcomes and controversies. Congressional overturning of several recent listings and ability to hamper implementation by restricting agency funding were among the points mentioned by some media. In contrast, a foundation associated with the Western Caucus of U.S. senators and representatives issued a 116-page report in 2023 titled "The Endangered Species Act at 50", with a subtitle expressing its primary criticism that "a record of falsified recoveries underscores a lack of scientific integrity in the federal program." Among the faculty expressing views in a University of Pennsylvania report, one drew attention to an underlying shift in national worldviews during the past half-century: The Act "reflects the confidence of mid-20th century liberal politics that any problem can be fixed with legislation based on scientific data," yet pragmatic solutions that require flexibility have been hindered and polarization has become intense. An academic review paper in 2008 reported that the Act had become "a social, legal, and political battleground" and that "the scientific question of whether the ESA works effectively to protect species remains open." Specific challenges and long-term controversies are summarized in this section.

Economic consequences and perverse incentives

Because the Act allowed species to be listed as endangered without consideration of the economic consequences, it soon became and continues to be controversial. Costs conferred on private landowners and various industries may come in the form of lost opportunity or slowing down operations to comply with the regulations put forth in the Act. Notably, in 1978 the listing of a tiny fish (snail darter) shut down for several years construction of a dam that was already underway on the Little Tennessee River. More broadly, the requirement to consult with the relevant agencies on federal projects has at times slowed operations by the oil and gas industry, including exploration or development on federal lands rich in fossil fuels.

Range map of red-cockaded woodpecker

One widely held opinion thus is that the protections afforded to listed species curtail economic activity. In the extreme, economic consequences can induce perverse incentives by which landowners actively curtail their lands from attracting endangered species. An example in the eastern USA pertains to the endangered red-cockaded woodpecker. A study of some 1,000 privately owned forest plots within the range of the woodpecker found that when landowners observed pine growth maturing to a stage in which it might attract nesting woodpeckers, they were more likely to harvest – regardless of timber prices at the time. This is a form of intentional habitat destruction for avoiding economic consequences.

Legislators have expressed that the ESA has been "weaponized," particularly against western states, constraining state government choices about the use of public lands. The case of the protracted dispute over the greater sage-grouse is one such example, and the spotted owl is another. In the extreme is the largely western saying pertaining to endangered animals, such as wolves: "shoot, shovel, and shut up." In 2018, Rep. Don Young (Alaska), the longest-serving Republican congressman, said, "As the one person in the Congress, the only one, that voted for the Endangered Species Act, please beat me with a whip."

Some economists have stated that finding a way to reduce such perverse incentives would lead to more effective protection of endangered species. One suggestion for ending perverse incentives would be to compensate property owners for protecting endangered species, rather than having an endangered species regarded as a potential financial loss.

As well, while the standard to prevent jeopardy or adverse modification applies only to federal activities, non-federal activities are subject to Section 10 of the Act, and private activities on private lands may require federal discretionary permits (such as those required by the Clean Water Act, Section 404) and thereby triggering Section 7 of the ESA.

Incentives for stopping development

Controversy sometimes roils when the timing of a petition to list a new species overlaps with plans for or initiation of a development project that could be impeded by such a listing. A news editorial marking the 50th anniversary of the Act suggested that "the ESA became the weapon of choice for environmental groups seeking to stop projects or tear down others. Lawsuits by the score have been filed over projects large and small, setting off ill feelings toward environmental groups."

Risk assessment

The Act points to science professionals as "solely" responsible for making extinction risk assessments. Governmental policies as shaped by various and changing public interests are necessarily the arbiters of how numerical statements of extinction risk should be gauged in context of other kinds of national risks and priorities. In a multi-author report published in 2016, the Ecological Society of America explained how this kind of controversy develops:

Any decision to list a species also requires a policy judgment regarding how much risk to that species is acceptable. Science can inform the decision by determining the degree of risk a species faces, but science alone cannot determine whether the risk is acceptable.... Stakeholders with divergent views about acceptable levels of extinction risk frequently mount legal challenges over whether species need to be listed, whether they are endangered or threatened, how much habitat represents a "significant portion" of a species' range, and other key elements of ESA implementation.

Standards are not scalar

Once a species is listed, the statutory imperative to prevent extinction precludes scalar considerations in federal permitting of development projects. Economic or other societal benefits, no matter how significant, are not to impede upon scientific decision-making in assessing the degree to which a project would subject a listed species to additional extinction risk. An historic example is the 1978 judicial decision in favor of a tiny fish (the snail darter) — even though that decision halted construction of a dam that was already underway on the Little Tennessee River.

A listed plant example of non-scalar approaches to endangered species management happened in October 2024. While a federal permit was awarded for a new lithium mining project in Nevada, the purported societal and climate benefits of lithium for electric vehicle manufacturing were not a component of the written decision. Rather, geographic boundaries of operation were set to preclude direct impact on the several populations of the endangered Tiehm's buckwheat.

The buckwheat example also displays the lack of scalar considerations regarding species uniqueness and ecological importance, as these were not components of the 2022 listing decision nor of the environmental permitting decision required for lithium mining. Scientific expertise alone determines if an animal or plant is certified as a distinct species, rather than a mere variety of an existing species. An academic dissertation informing the listing decision for Tiehm's buckwheat concluded that, of all the species of genus Eriogonum in Nevada, "seven of the thirteen non-tiehmii taxa appear to be close relatives." The author included in his final paragraph the challenges of non-scalar approaches to environmental decision-making:

The battle of human need versus habitat conservation is constant. The situation Tiehm’s buckwheat finds itself, stuck between conservation of its ~25,000 individuals or eradication to allow access to needed resources, is certainly complicated. There are potential services it could provide that are yet to be discovered. If mining were to commence it is unlikely to survive and those services could be lost. If the mining operation is halted or modified to protect E. tiehmii, the global need of lithium may begin to outweigh the supply, and potentially cause delays in technological advances that are aimed at reducing CO2 emissions.

Effectiveness

As of 2023, an aggregate of 1,780 species had been listed through the years as "endangered" or a less severe category of "threatened". While 99% of the total species are still alive, critics have pointed out that only 64 species improved enough to be removed from the list ("delisted"). Another 64 improved enough to be "downlisted" from endangered to threatened. Only 11 species have been declared extinct after they were listed, but another 23 species have gone missing for so long that they have been proposed for official designation as extinct.

Some have argued that the recovery of imperiled flesh-eating birds (notably, the bald eagle, brown pelican, and peregrine falcon) should be attributed to the 1972 ban of the pesticide DDT by the EPA, rather than the Endangered Species Act. Supporters of the Act argue that listing of these species as endangered led to additional actions that were also crucial for species recovery (i.e., captive breeding, habitat protection, and protection from disturbance).

Examples of freshwater mussels imperiled in the eastern USA

Among the most difficult species to protect are mussels because they depend on adequate amounts of clean and flowing freshwater. Home to approximately 300 mussel species, the eastern region of the USA is the center of global diversity for these freshwater molluscs. However, 65 percent of them are threatened or endangered.

The 1988 Congressional amendments to the Act included a new section, Section 18, to aid effectiveness evaluations by having each of the two implementing agencies periodically report cumulative federal funding (and, to some degree, state funding) on a species-by-species basis. As of 2023, the most recent report to Congress was by the U.S. Fish and Wildlife Service and presented expenditures cumulative through fiscal year 2020. The report entailed these statistics: "Of the 1,388 status reviews completed, 93 percent (1,294) recommend no change in status for the species, 3 percent (40) recommend reclassifying from endangered to threatened, 3 percent (38) recommend delisting (22 due to extinction, 13 due to recovery, and 3 due to error), 1 percent (13) recommend reclassifying from threatened to endangered, and less than 1 percent (2) recommend a revision to the listed entity."

Recovery and delistings are rare

Critics of the Act have noted that, despite its goal of recovering species to the point of delisting, this has rarely happened. As of 2023 (fifty years after its passage), an aggregate of 1,780 species had been listed through the years as endangered or the less severe category of threatened. Of that total, 64 species improved enough to be removed from the list. Another 64 improved enough to be "downlisted" from endangered to threatened. While 11 species have been declared extinct since implementation of the law began, another 23 species have gone missing for so long that they have been proposed for official designation as extinct.

Leatherback sea turtle returning to the ocean after laying eggs in sand pits it had dug in the upper beach

The National Marine Fisheries Service lists eight species (or populations of a species) as among the most at risk of extinction in the near future. These animals are the Atlantic salmon; the Central California Coast coho salmon; the Cook Inlet beluga whale; the Hawaiian monk seal; the Pacific leatherback sea turtle; the Sacramento River winter-run chinook salmon; the southern resident population of killer whale; and the white abalone. Human activities are presented as the primary cause of extinction threats for all these species. The two implementing agencies have a combined record of changing species status from threatened to endangered on nine occasions, while the number of status improvements from endangered to threatened is greater.

A widely used statistic supporting effectiveness of the Act is that 99 percent of listed species have not gone extinct. In 2012 the Center for Biological Diversity issued a report that surveyed a sample of 110 listed species and concluded that 90 percent of them were recovering "at the rate specified by their federal recovery plan."

On the opposing side of the spectrum, a foundation associated with the Western Caucus of U.S. senators and representatives issued a 116-page report in 2023 that points to data and statements made by the U.S. Fish and Wildlife Service during the past half-century that can be interpreted as disputing proclamations of success. Specifically, statements of numbers of species "recovered" do not distinguish between those delisted owing to actual improvement in populations versus those for which the original population numbers were later found to have been greatly underestimated. Had the science been more in line with reality at the start, this report claims 36 of the 62 species reported by the agency as officially recovered would not have achieved listing at the outset.

Controversy also develops when the science used to support a delisting decision differs from the numerical population thresholds included in the species recovery plan. A 2012 court case upheld that the published recovery criteria are not legally binding for later delisting decisions.

Delays in specifying recovery actions

Listing of a species "triggers two overlapping types of conservation measures: extinction prevention and recovery actions." An official document required by the Act has come to be known as a recovery plan. The Act "gives few guidelines for their preparation and content and does not specify a deadline for how soon after listing the Services must complete recovery plans." A 2023 report on the Act issued by Defenders of Wildlife calculated that "265 species listed under the Act lack recovery guidance of any kind, while 370 additional species lack final recovery guidance." The group also noted that more than half of the existing recovery plans were more than 20 years old.

Besides alleged funding inadequacies, several inherent problems have been pointed to for delays in agency translation of scientific findings into actions beyond extinction prevention and thus actively toward species recovery. One such problem is the "knowledge—action boundary" that distinguishes conservation scientists from conservation managers. That is, how can scientific scholarship be made actionable, and thereby contribute directly to forward-moving policies and practices? Impediments to generating boundary-spanning conservation science include "a reward structure in science that promotes publication and grant income rather than engaging with conservation practitioners." Distrust across the boundary may also develop if conservation managers perceive that ESA funding allocated to research or monitoring reduces what is available for recovery actions.

"Fear of failure in conservation" is another factor that contributes to agency and manager hesitancy to undertake recovery actions for which there is no certainty of success. There are two reasons why scientists themselves may abstain from recommending actions. One is fear that making such recommendations may compromise their status as objective researchers whose conclusions can be trusted. A second is fear that a recommended action that is undertaken but then fails may injure their reputation. These fears may be heightened when recommendations pertain to a species for which controversy has developed or one whose population has declined so drastically that any manipulation of the species or its habitat may later be denounced as contributing to its further decline or extinction. Thus there are multiple reasons why recovery programs for some species "may be trapped in a cycle where more resources are allocated to information gathering versus action."

Failure to implement recovery actions

The U.S. Fish and Wildlife Service itself has recognized that specifying in a written plan the actions to achieve recovery goals falls short of ensuring that such actions will take place. Indeed, the agency recognizes that "Recovery plans are guidance and not regulatory documents, and no agency or entity is required by the Endangered Species Act (ESA) to implement actions in a recovery plan." Therefore, beginning in 2016, the agency augmented standard recovery planning by shifting to a three-part framework. Statutory and regulatory requirements for producing an initial "recovery plan" are still fulfilled, including opportunities for public comments. The plan is to be written and published in the customary way, and it continues to be subject to the "five year review" process. However, two new kinds of working documents can be developed, posted, and updated as needed for each listed species.

"Species Status Assessment Framework" of the U.S. Fish & Wildlife Service

The first updatable document is a "Species Status Assessment" (SSA). It is "a biological risk assessment to aid decision makers who must use the best available scientific information to make policy decisions under the ESA." As new papers are published and rigorous data collected, the SSA can be updated and reposted as warranted. This, in turn, may stimulate changes in the third part of the new framework: the "Recovery Implementation Strategy" (RIS). While recovery actions are policy level decisions that will continue to be delineated in the official recovery plan, the RIS serves as "a short-term, more flexible operational document focused on how, when, and with whom the recovery actions will be implemented." A single species may ultimately have a number of RIS documents posted — each pertaining to a different entity, such as a land trust or botanical garden, that steps forward (with or without federal funding) to voluntarily engage in one or more specific recovery actions:

The RIS is to be developed with conservation partners outside of the agency, and focuses on the period of time and scope of activities that work best for those collaborators to achieve recovery goals. Many RISs can be developed, specific to partners and/or activities, and can cover varying timeframes, as needed. If multiple RISs are developed, an 'umbrella framework' (an overarching RIS) outlining the relationships and priorities among the individual RISs is developed to ensure strategic implementation of the overall recovery program for the species.

Allocating funds among listed species

The Fish & Wildlife Service has developed a four-factor prioritization system for analyzing tradeoffs in distributing funds among the listed species: degree of threat, potential for recovery, taxonomic uniqueness, and conflict with human activities. Even so, the 2016 special report on the Act by the Ecological Society of America concluded that the agency's decisions on apportioning funds are "more often driven by political and social factors, including congressional representation, the number of employees in field offices, staff workload, and opportunities to form partnerships and secure matching funds." As well, the report stated, "Critics point out that recovery efforts are focused disproportionately on charismatic species, to the detriment of others, particularly plants."

As well, there is no requirement that federal agencies (or any other institution) implement any of the actions specified in the recovery plan.

Stakeholder initiatives (with or without listing)

With or without listing, there are opportunities for stakeholders themselves to begin actions on their own. This especially applies to habitat improvements. If suitable habitat for a species can be found on private, state, municipal, or tribal lands, there is no need to wait for the federal agency to offer or specify in-place actions. The parties can expand and improve such habitats on their own. For example, a National Park Service report in 2023 in behalf of the endangered Karner blue butterfly included a recommendation to "encourage entities (city, state, county, tribal, federal) with sandy soils north of the current range to plant Lupinus perennis and nectar plants" in anticipation of future authorization for "managed relocation" of populations threatened by heat and drought in southerly portions of the butterfly's historical range.

While there are legal limitations on what citizens and other stakeholders can do directly for listed animal species, the field is wide open for obtaining horticulturally produced seeds and specimens of listed plants and then conducting plantings on their own. A well-known example is a network of citizens who call themselves Torreya Guardians. Florida Torreya is a glacial relict species of subcanopy tree that was listed as endangered in 1984. Since 2004, the citizen group has been using seeds from mature plantings on private lands in North Carolina to engage in a form of assisted migration poleward of this climate-endangered plant.

Historically native range of the Whitebark Pine

Prior to listing of a species, stakeholders who wish to act in its behalf have freedom to engage with not only habitat but with the species itself. A well-known example entails actions taken in behalf of the subalpine Whitebark Pine of the northern Rocky Mountains soon after vast stands suddenly began to die in Yellowstone National Park and elsewhere. A petition for listing was submitted in 2008, but status as "threatened" was not conferred until 2022. By then, collaboration among concerned parties was well underway without agency direction. Supportive research and actions were undertaken by the conservation organization American Forests as well as a new organization specific to the tree: the Whitebark Pine Ecosystem Foundation. Other collaborators include research scientists within the U.S. Forest Service, geneticists at the University of California, Davis, and the Confederated Salish and Kootenai Tribes. The U.S. Bureau of Land Management and the National Park Service were also involved in consultation prior to listing by the agency in charge of endangered species: the U.S. Fish and Wildlife Service.

Controversy is also apparent, though rare, when stakeholders entail activists who regard the "political-economic regime" not as the source of solutions but as "the root cause of biodiversity loss." In such instances guerrilla rewilding of rare species has been known to occur.

Collaborative planning on private lands

The 1982 amendments to the Act's Section 10 authorized collaborative engagement of the implementing agencies with landowners in producing Habitat Conservation Plans. Such a plan is a required part of an application for an Incidental Take Permit, issued under the Act to private entities undertaking projects that might result in harm to a listed species. The intent is to deter controversy by building into the plan practices for minimizing harm to listed species and their core habitat needs (including seasonal peaks in use). A validated plan then absolves the developer from harms that may incidentally occur to the species, when following the plan. Securing landowner pledges of habitat enhancement measures during the planning process can serve to defuse opposition from the public and other stakeholders.

Piping plover in its Atlantic beach nesting habitat

Habitat conservation plans have been successfully deployed to reduce conflicts between a type of beach-nesting shorebird, piping plover, and recreational beach users in Massachusetts. Such plans also apply to the red-cockaded woodpecker of forests in the southeastern states. In 2023, habitat conservation planning for grizzly bears in the northern Rocky Mountains became controversial when an increase in bear deaths caused by trains was reported, along with acknowledgment by the agency that several million dollars of federal funds for the plan participants had not yet been provided for them to engage in their specified mitigation actions.

Summing up the practical difficulties in a 2023 report on the Act, Defenders of Wildlife pointed to underfunding as a continuing problem and that the agencies "lack adequate resources to develop, approve, and monitor these plans, and there are significant data gaps in how many of these plans are performing."

Species awaiting listing

A 2019 report found that the Fish and Wildlife Service faced a backlog of more than 500 species that have been determined to potentially warrant protection. A 2022 report pointed to severe population declines while species await listing decisions as a major problem impeding eventual recovery success. The decision to list or defer listing of a petitioned species is supposed to take no more than 2 years after a petition is filed. However, on average it takes the agency 12 years to finalize a decision. An analysis published in 2016 by the Ecological Society of America found that approximately 50 species may have gone extinct while awaiting a listing decision. Additional funding might enable the agency to direct more resources toward biological assessments of petitioned species and determine if they merit a listing decision.

An additional issue is that species still listed under the Act may already be extinct. For example, the IUCN Red List declared the Scioto madtom extinct in 2013. It had last been seen alive in 1957. However, FWS still classifies the catfish as endangered.

Critical habitat

As habitat loss is regarded as the primary threat to most imperiled species, Section 4 of the Endangered Species Act of 1973 allowed the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) to designate specific areas as protected critical habitat zones. The designation of critical habitat does not affect land ownership. It does not allow the government to take or manage private property, nor to establish a refuge, reserve, preserve, or other conservation area. Critical habitat designation does not allow unauthorized government access to private land. Such designation can, however, restrict activities allowable on private lands.

In 1978, Congress amended the law to make critical habitat designation a mandatory requirement for all threatened and endangered species. The amendment also added economics into the process of determining such designation. It reads, "...shall designate critical habitat... on the basis of the best scientific data available and after taking into consideration the economic impact, and any other impact, of specifying... area as critical habitat." The congressional report on the 1978 amendment described a potential controversy that might ensue, given that "economic impact" was included in the amendment:

"... the critical habitat provision is a startling section which is wholly inconsistent with the rest of the legislation. It constitutes a loophole which could readily be abused by any Secretary ... who is vulnerable to political pressure or who is not sympathetic to the basic purposes of the Endangered Species Act."-- House of Representatives Report 95-1625, at 69 (1978)

The controversy did arise and thus the 1982 amendment to the Act explicitly prohibited similar economic considerations when determining the status of a species.

In designating critical habitat, the needs of open space for individual and population growth, food, water, light or other nutritional requirements, breeding sites, seed germination and dispersal needs, and lack of disturbances are considered. As itemized within a 2008 review paper on the Endangered Species Act, designation of critical habitat is the first priority for agency action following listing of a species. Next is formulation of a recovery plan. Not all recovery plans, however, specify critical habitat. Setting aside this requirement is authorized if the agency head determines that its designation would not be "prudent."

Sample of federal grants in 2024 for endangered species habitat support

Most provisions of the ESA revolve around preventing extinction. Critical habitat is one of the few that focus on recovery. A 2005 paper published in the journal BioScience concluded that species afforded critical habitat are twice as likely to be recovering than are species without critical habitat. A 2016 report published by the Ecological Society of America stated that data were inconclusive on this matter because "in practice, the Services often exempt habitat degradation from regulation. As a result, designating critical habitat has had limited regulatory effect." Overall, disagreement as to the effectiveness of critical habitat designation is expressed in a number of different reports.

Another controversy arises from the Act specifying that critical habitat designation is required to contain "all areas essential to the conservation" of the imperiled species, and may include private as well as public lands. The Fish and Wildlife Service has a policy limiting designation to lands and waters within the U.S. and both federal agencies may exclude essential areas if they determine that economic or other costs exceed the benefit. The ESA, however, is mute about how such costs and benefits are to be determined.

All 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 one or more federal permits 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.

Finally, the Act's specification of the timing of critical habitat designations has become problematic. 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 NMFS 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 had not yet been replaced, though its use had 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.

Climate adaptation

The seeds of Relict trillium are dispersed by ants, hindering its ability to track climate change.

Although the Endangered Species Act of 1973 did not in itself limit the placement of "experimental populations" to the historically native range of a plant or animal, a regulatory change in 1984 regarding "experimental populations" made prospective translocations more difficult to justify. June 2022, the U.S. Fish and Wildlife Service published a proposed rule in the Federal Register that would "revise section 10(j) regulations under the ESA to better facilitate recovery by allowing for the introduction of listed species to suitable habitats outside of their historical ranges. The proposed change will help improve the conservation and recovery of imperiled ESA-listed species in the coming decades, as growing impacts from climate change and invasive species cause habitats within their historical ranges to shift and become unsuitable." The comment period ended August 2022, with more than 500 comments posted online by supporters and opponents. The final decision was scheduled for publication June 2023.

As reported on the news page of Audubon, adoption of the proposed regulatory change would authorize, for the first time, use of a controversial climate adaptation tool: assisted migration. A 2010 paper in Conservation Letters had pointed out that, while no statutory changes appeared necessary to facilitate this newly proposed form of climate adaptation, "current regulations are an impediment to assisted colonization for many endangered animal species, whereas regulations do not necessarily restrict assisted colonization of endangered plants."

The U.S. Department of Interior on June 30, 2023, announced its decision to modify the section 10(j) "experimental populations" rule generally as proposed a year earlier. The press release summarized the reason for the change as:

At the time the original 10(j) regulations were established, the potential impact of climate change on species and their habitats was not fully realized, yet in the decades since have become even more dramatic. These revisions will help prevent extinctions and support the recovery of imperiled species by allowing the Service and our partners to implement proactive, conservation-based species introductions to reduce the impacts of climate change and other threats such as invasive species.

The rulemaking action includes a section summarizing 25 topics entailed in comments submitted in 2022, along with the agency's official response to each. Pre-existing requirements pertaining to experimental populations in the Code of Federal Regulations (CFR) still apply. Plans to use "Subpart H: experimental populations" for the purpose of climate change adaptation thus require public notice and ultimate placement in the "Species-specific rules" subpart of the CFR regulations of the precise geographic and other details.

Six months after this climate adaptation regulation for listed species was published, the National Park Service issued a 154-page report on recommendations for halting the decline of the endangered Karner blue butterfly in its small and scattered populations across the northeastern states. Among the recommendations were "managed relocation" of populations from the southern parts of its range into northward habitats with suitable conditions and supportive plants. The report justified the managed relocation action by noting that stakeholders and managers "are growing more supportive of novel science-based interventions to save rare species from climate change–driven extirpation."

Reversals in policy track presidential elections

In October 2019, at the urging of the Pacific Legal Foundation and the Property and Environment Research Center, the USFWS and the NMFS under President Donald Trump changed the §4(d) rule to treat "threatened" and "critically endangered" species differently, legalizing private recovery initiatives and habitats for species that are merely "threatened."

Environmental opponents criticized the revision as "crashing like a bulldozer" through the act and "tipping the scales way in favor of industry." Some critics, including the Sierra Club, pointed out that these changes came just months after the IPBES released its Global Assessment Report on Biodiversity and Ecosystem Services, which found that human activity had pushed a million species of flora and fauna to the brink of extinction, and would only serve to exacerbate the crisis. The California legislature passed a bill to raise California regulations to thwart the Trump administration changes; it was vetoed by Governor Newsom. In January 2020, the House Natural Resources Committee reported similar legislation. In December 2020, the Trump administration further rolled back the Endangered Species Act by reducing habitat protections for at-risk species, and thus restricting protections to where they currently live—not where they lived previously or where they might migrate to as a result of climate change.

In June 2021, the Biden administration said it was reviewing the Trump era rollback of the Endangered Species Act and planned to reverse or revise some of the changes, in particular those relating to critical habitat regulations. Such reversals became law in May 2024. A critic commented, "It seems to be one of those rules/regulations/things going on in Washington D.C. that like to flip-flop with each administration while seeing no actual finality."

Chronological list of species controversies

Snail darter

In 1978, a small species of fish in the southeastern USA was listed as endangered. A conflict arose because a dam was already under construction within its native range and was scientifically deemed as damaging to its necessary habitat. What came to be known as the snail darter controversy gained national attention. A U.S. Supreme Court ruling prohibited dam completion, which was then overridden when Congress exempted the Tellico Dam from provisions of the ESA. Subsequently, more populations of the species were discovered in rivers other than the Little Tennessee River where the dam was constructed, and in 2022 the species was removed from the federal endangered list. Nonetheless, the fact that the Endangered Species Act effectively halted major construction underway in behalf of a small species of fish put an end to the wide political support that had accompanied passage of the Act.

California condor

In 1982, despite protests from some environmental organizations, the recovery plan for the endangered California condor began implementing the capture of all 22 wild birds that remained. By the early 1990s, the captive breeding effort was successful enough to begin returning some of the progeny to the wild—including the Grand Canyon from which this carrion-feeding bird had been missing for at least several centuries. In 2001 the first wild nesting was recorded in the Grand Canyon. As of 2022, the species had a wild population of 350 individuals and a captive population of 214.

In 1987 an extirpated eastern relative of the gray wolf was reintroduced into North Carolina following more than a decade of captive breeding. Controversy accelerated when the state wildlife agency liberalized hunting regulations for coyotes. Because the endangered red wolf resembles its coyote relative far more than the larger gray wolf does, the number of mistaken shootings of the endangered species began to seriously impact the population. As well, detractors of red wolf protection pointed to the genetic deterioration of later generations of red wolves in the wild, as they easily interbreed with coyotes.

Northern spotted owl

In 1988 another controversy arose that drew national attention, when the Northern spotted owl was listed as endangered. This species depended on intact and mature coastal forests in the states of Washington, Oregon, and California. And this, in turn, posed new restrictions on logging of national forest lands in those regions—which severely affected workers in small logging towns. Not until 1994 did adoption by the federal government of the Northwest Forest Plan, along with a community financial aid packet, bring a close to peak hostilities between loggers and those defending owl habitat. Preventing human destruction of habitat did not, however, result in species recovery. Natural immigration of a bigger and more aggressive owl species (the barred owl) that was formerly native only to the eastern states became a major cause of continuing population decline of the spotted owl. The government's decision to employ sharpshooters to cull the barred owl population presents a challenging ethical issue within conservation thinking.

Another ESA controversy that erupted in the 1990s entailed the gray wolf (listed as endangered in the Lower 48 states in 1974) and the Mexican wolf (listed as endangered in 1976), when each type was reintroduced into core areas of its former native range in the 1990s. Because wolves are so wide-ranging and can be expected to occasionally prey upon livestock that ranchers legally graze on federal (even wilderness) lands, announcements of intents to restore these predators to particular federal lands in the Rocky Mountain states generated conflicting views at the outset. Ever after, state authority to manage roaming wolves (and authorize takings and hunts) has been controversial, as well.

Climate change became an element of extinction risk assessment and thus controversy when the polar bear was listed as "threatened" in 2010.

Dusky gopher frog

By 2018, critical habitat designation on private land in Louisiana for the Mississippi gopher frog (also known as dusky gopher frog) had become so controversial that the U.S. Supreme Court chose to adjudicate a lower court decision. The result effectively removed the habitat designation as overreach, owing to the species having gone missing from Louisiana a half-century earlier.

In 2022, a 6-inch flowering plant, Tiehm's buckwheat, was listed as endangered and accorded critical habitat protection on 910 acres of federal lands in Nevada. The listing was controversial because mining for lithium (crucial for solar power battery storage) was already underway in the area. Following the required environmental review and agency consultation, the federal government issued a permit in October 2024 that authorized the lithium mining project to move forward.

Wolverine

In 2023, the largest and fiercest member of the weasel family, the wolverine, was listed as threatened for habitat outside of Alaska. The listing was controversial because climate change was invoked as a primary cause of the "rising temperatures and declining snowpack" making successful snow cave denning difficult for the remaining populations in the Cascade Range and Rocky Mountains.

In 2024, climate change was again stated as cause for a listing. The Mount Rainier white-tailed ptarmigan was listed as threatened because: "The Service has determined that the loss and degradation of its habitat resulting from climate change will endanger the bird in the foreseeable future." Lagopus leucurus saxatilis is one of five subspecies of White-tailed ptarmigan that depend on arctic or alpine tundra habitats. Listing was initially petitioned in 2010 by the Center for Biological Diversity.

Section-by-Section Summaries of the 1973 Act

As amended, the Act entails 18 sections. The substantive policy sections are summarized below.

Section 4: Listing and Recovery

Section 4 of the ESA sets forth the process by which species are designated as endangered or threatened. Species with these designations receive protections under federal law. Section 4 also requires critical habitat designation and recovery plans for those species.

Petition and listing

To be considered for listing, the species must meet one of five criteria (section 4(a)(1)):

1. There is the present or threatened destruction, modification, or curtailment of its habitat or range.
2. An over use for commercial, recreational, scientific, or educational purposes.
3. The species is declining due to disease or predation.
4. There is an inadequacy of existing regulatory mechanisms.
5. There are other natural or manmade factors affecting its continued existence.

Potential candidate species are then prioritized, with "emergency listing" given the highest priority. Species that face a "significant risk to their well being" are in this category.

A species can be listed in two ways. The United States Fish and Wildlife Service (FWS) or NOAA Fisheries (also called the National Marine Fisheries Service) can directly list a species through its candidate assessment program, or an individual or organizational petition may request that the FWS or NMFS list a species. A "species" under the act can be a true taxonomic species, a subspecies, or in the case of vertebrates, a "distinct population segment." The procedures are the same for both types except with the person/organization petition, there is a 90-day screening period.

During the listing process, economic factors cannot be considered, but must be " based solely on the best scientific and commercial data available." The 1982 amendment to the ESA added the word "solely" to prevent any consideration other than the biological status of the species. Congress rejected President Ronald Reagan's Executive Order 12291 which required economic analysis of all government agency actions. The House committee's statement was "that economic considerations have no relevance to determinations regarding the status of species."

The very opposite result happened with the 1978 amendment where Congress added the words "...taking into consideration the economic impact..." in the provision on critical habitat designation. The 1978 amendment linked the listing procedure with critical habitat designation and economic considerations, which almost completely halted new listings, with almost 2,000 species being withdrawn from consideration.

Listing process

After receiving a petition to list a species, the two federal agencies take the following steps, or rulemaking procedures, with each step being published in the Federal Register, the US government's official journal of proposed or adopted rules and regulations:

1. If a petition presents information that the species may be imperiled, a screening period of 90 days begins (interested persons and/or organization petitions only). If the petition does not present substantial information to support listing, it is denied.

2. If the information is substantial, a status review is started, which is a comprehensive assessment of a species' biological status and threats, with a result of: "warranted", "not warranted," or "warranted but precluded."

• A finding of not warranted, the listing process ends.
• Warranted finding means the agencies publish a 12-month finding (a proposed rule) within one year of the date of the petition, proposing to list the species as threatened or endangered. Comments are solicited from the public, and one or more public hearings may be held. Three expert opinions from appropriate and independent specialists may be included, but this is voluntary.
• A "warranted but precluded" finding is automatically recycled back through the 12-month process indefinitely until a result of either "not warranted" or "warranted" is determined. The agencies monitor the status of any "warranted but precluded" species.

Essentially the "warranted but precluded" finding is a deferral added by the 1982 amendment to the ESA. It means other, higher-priority actions will take precedence. For example, an emergency listing of a rare plant growing in a wetland that is scheduled to be filled in for housing construction would be a "higher-priority".

3. Within another year, a final determination (a final rule) must be made on whether to list the species. The final rule time limit may be extended for 6 months and listings may be grouped together according to similar geography, threats, habitat or taxonomy.

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. Citizen involvement has been shown to identify species not moving through the process efficiently, and identify more imperiled species. The longer species are listed, the more likely they are to be classified as recovering by the FWS.

Public notice, comments and judicial review

Public notice is given through legal notices in newspapers, and communicated to state and county agencies within the species' area. Foreign nations may also receive notice of a listing. A public hearing is mandatory if any person has requested one within 45 days of the published notice. "The purpose of the notice and comment requirement is to provide for meaningful public participation in the rulemaking process." summarized the Ninth Circuit court in the case of Idaho Farm Bureau Federation v. Babbitt.

Listing status

U.S. Endangered Species Act (ESA)

Listing status and its abbreviations used in Federal Register and by federal agencies like the U.S. Fish and Wildlife Service:

• E = endangered (Sec.3.6, Sec.4.a ) – any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest.
• T = threatened (Sec.3.20, Sec.4.a ) – any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range

Other categories:

• C = candidate (Sec.4.b.3 ) – a species under consideration for official listing
• E(S/A), T(S/A) = endangered or threatened due to similarity of appearance (Sec.4.e ) – a species not endangered or threatened, but so closely resembles in appearance a species which has been listed as endangered or threatened, that enforcement personnel would have substantial difficulty in attempting to differentiate between the listed and unlisted species.
• XE, XN = experimental essential or non-essential population (Sec.10.j ) – any population (including eggs, propagules, or individuals) of an endangered species or a threatened species released outside the current range under authorization of the Secretary. Experimental, nonessential populations of endangered species are treated as threatened species on public land, for consultation purposes, and as species proposed for listing on private land.

Recovery plan

Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) are required to create an Endangered Species 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).

The goal of the law is to make itself unnecessary, and recovery plans are a means toward that goal. Recovery plans became more specific after 1988 when Congress added provisions to Section 4(f) of the law that spelled out the minimum contents of a recovery plan. Three types of information must be included:

• A description of "site-specific" management actions to make the plan as explicit as possible.
• The "objective, measurable criteria" to serve as a baseline for judging when and how well a species is recovering.
• An estimate of money and resources needed to achieve the goal of recovery and delisting.

The amendment also added public participation to the process. There is a ranking order, similar to the listing procedures, for recovery plans, with the highest priority being for species most likely to benefit from recovery plans, especially when the threat is from construction, or other developmental or economic activity. Recovery plans cover domestic and migratory species.

Beginning in 2016, the FWS augmented standard recovery planning by shifting to a three-part framework. Statutory and regulatory requirements for producing an initial "recovery plan" will still be fulfilled, including opportunities for public comments. The plan is to be written and published in the customary way, and it continues to be subject to the "five year review" process. However, two new kinds of working documents are now developed, posted, and updated as needed for each listed species.

"Species Status Assessment Framework" U.S. Fish & Wildlife Service

The first updatable document is a "Species Status Assessment" (SSA). It is "a biological risk assessment to aid decision makers who must use the best available scientific information to make policy decisions under the ESA." As new papers are published and rigorous data collected, the SSA can be updated and reposted as warranted. This, in turn, may stimulate changes in the third part of the new framework: the "Recovery Implementation Strategy" (RIS). While recovery actions are policy level decisions that will continue to be delineated in the official recovery plan, the RIS serves as "a short-term, more flexible operational document focused on how, when, and with whom the recovery actions will be implemented." A single species may ultimately have a number of RIS documents posted — each pertaining to a different entity, such as a land trust or botanical garden, that steps forward (with or without federal funding) to voluntarily engage in one or more specific recovery actions:

The RIS will be developed with our conservation partners, and focus on the period of time and scope of activities that work best for our partners to achieve recovery goals. Many RISs can be developed, specific to partners and/or activities, and can cover varying timeframes, as needed. If multiple RISs are developed, an 'umbrella framework' or overarching RIS, outlining the relationships and priorities among the individual RISs, is developed to ensure strategic implementation of the overall recovery program for the species.

Downlisting and Delisting

Northern flying squirrel

"Downlisting" of a species can take place when important threats have been controlled and the population in the wild meets recovery objectives. Downlisting entails reclassification from "endangered" to "threatened."

To "delist" a species, several factors are considered: control or elimination of threats, population size and growth in the wild, and the stability of habitat quality and quantity. Species can also be delisted if an error (notably, population size) is found in the data used for listing in the first place. More than a dozen species have been delisted under such circumstances.

Two examples of animal species delisted are: the Virginia northern flying squirrel (subspecies) in August 2008, which had been listed since 1985, and the gray wolf (Northern Rocky Mountain DPS). On April 15, 2011, President Obama signed the Department of Defense and Full-Year Appropriations Act of 2011. A section of that Appropriations Act directed the Secretary of the Interior to reissue within 60 days of enactment the final rule published on April 2, 2009, that identified the Northern Rocky Mountain population of gray wolf (Canis lupus) as a distinct population segment (DPS) and to revise the List of Endangered and Threatened Wildlife by removing most of the gray wolves in the DPS.

The US Fish and Wildlife Service's delisting report lists four plants that have recovered:

• 
  Eggert's sunflower (Helianthus eggertii)
• 
  Robbins' cinquefoil (Potentilla robbinsiana), an alpine wildflower found in the White Mountains of New Hampshire
• 
  Maguire daisy (Erigeron maguirei)
• 
  Tennessee purple coneflower (Echinacea tennesseensis)

Section 6: State endangered species lists

Section 6 of the Endangered Species Act provided funding for development of programs for management of threatened and endangered species by state wildlife agencies. Subsequently, lists of endangered and threatened species within their boundaries have been prepared by each state. These state lists often include species which are considered endangered or threatened within a specific state but not within all states, and which therefore are not included on the national list of endangered and threatened species. Examples include Florida, Minnesota, and Maine.

Section 7: Cooperation and Consultation

Overview

Section 7 of the Endangered Species Act requires cooperation among federal agencies to conserve endangered or threatened species. Section 7(a)(1) directs the Secretary of the Interior and all federal agencies to proactively use their authorities to conserve such species. This directive is often referred to as an 'affirmative requirement.' Section 7(a)(2) of the Act requires federal agencies to ensure their actions do not jeopardize listed species or adversely modify critical habitat. Federal agencies (referred to as "action agencies") must consult with the Secretary of the Interior before taking any action which may affect listed species. Section 7(a)(2) is often referred to as the consultation process.

The two agencies that administer the Act are the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS). These two agencies are often collectively referred to as "the Services" and lead the consultation process. FWS is responsible for the recovery of terrestrial, freshwater, and catadromous species. NMFS is responsible for marine species and anadromous fish. NMFS manages recovery for 165 endangered and threatened marine species including 66 foreign species. As of January 2020, the Services have listed 2,273 species worldwide as endangered or threatened. 1,662 of these species occur in the United States.

Section 7(a)(1)

Section 7(a)(1) requires federal agencies to work with FWS and NMFS to coordinate endangered and threatened species conservation. Federal agencies should also account for any effects on endangered or threatened species in planning their activities.

An example of the 7(a)(1) process is the Army Corps of Engineers' management of the Lower Mississippi River. Since the early 2000s, a division of the U.S. Army Corps of Engineers has worked with FWS and the states to resolve endangered species and ecosystem management issues. ESA-listed species in the area include the least tern (Sterna antillarum), pallid sturgeon (Scaphirhynchus albus), and the fat pocketbook (potamilus capax). The goal of this 7(a)(1) conservation plan is to protect listed species while allowing the Corps to carry out its civil works responsibilities. As part of the plan, the Corps undertakes projects that will benefit those species. It also considers species ecology as a part of project design. All three listed species in the Lower Mississippi River have increased in numbers since the plan was established.

Section 7(a)(2)

An action agency is required to consult with the Services if it has reason to believe that a species listed under the ESA may be present in the proposed project area. It also must consult if the agency believes the action will likely affect the species. This requirement, established by section 7(a)(2), is commonly referred to as the consultation process.

Informal consultation phase

Consultation typically begins informally at the request of an action agency in the early stages of project planning. Discussion topics include listed species in the proposed action area and any effect(s) the action may have on those species. If both agencies agree that the proposed action is not likely to affect the species, the project moves forward. However, if the agency's action may affect a listed species, the agency is required to prepare a biological assessment.

Biological assessments

A biological assessment is a document prepared by the action agency. It lays out the project's potential effects, particularly on listed species. The action agency must complete a biological assessment if listed species or critical habitat may be present. The assessment is optional if only proposed species or critical habitat are present.

As a part of the assessment, the action agency conducts on-site inspections to see whether protected species are present. The assessment will also include the likely effects of the action on such species. The assessment should address all listed and proposed species in the action area, not only those likely to be affected.

The biological assessment may also include conservation measures. Conservation measures are actions the agency intends to take to promote the recovery of listed species. These actions may also serve to minimize the projects' effects on species in the project area.

There are three possible conclusions to a biological assessment: "no effect", "not likely to adversely affect", or "likely to adversely affect" listed or proposed species.

The action agency may reach a "no effect" conclusion if it determines the proposed action will not affect listed species or designated critical habitat. The action agency may reach a "not likely to adversely affect" decision if the proposed action is insignificant or beneficial. The Services will then review the biological assessment and either agree or disagree with the agency's findings. If the Services agree the project's potential impacts have been eliminated, they will concur in writing. The concurrence letter must outline any modifications agreed to during informal consultation. If an agreement cannot be reached, the Services advise the action agency to initiate formal consultation.

If the Services or the action agency finds the action "likely to adversely affect" protected species, this triggers formal consultation.

Formal consultation

During formal consultation, the Services establish the project's effects on listed species. Specifically, they address whether the project will jeopardize the continued existence of any listed species or destroy/adversely modify species' designated critical habitat.

"Jeopardy" is not defined in the ESA, but the Services have defined it in regulation to mean "when an action is likely to appreciably reduce a species' likelihood of survival and recovery in the wild." In other words, if an action merely reduces the likelihood of recovery but not survival then the standard of jeopardy is not met.

To assess the likelihood of jeopardy, the Services will review the species' biological and ecological traits. These could include the species' population dynamics (population size, variability and stability), life-history traits, critical habitat, and how any proposed action might alter its critical habitat. They also consider how limited the species' range is and whether the threats that led to species listing have improved or worsened since listing.

The Services have defined adverse modification as "a diminishment of critical habitat that leads to a lower likelihood of survival and recovery for a listed species." The diminishment may be direct or indirect. To assess the likelihood of adverse modification, biologists will first verify the scope of the proposed action. This includes identifying the area likely to be affected and considering the proximity of the action to species or designated critical habitat. The duration and frequency of any disturbance to the species or its habitat is also assessed.

A formal consultation may last up to 90 days. After this time the Services will issue a biological opinion. The biological opinion contains findings related to the project's effects on listed and proposed species. The Services must complete the biological opinion within 45 days of the conclusion of formal consultation. However, the Services may extend this timeline if they require more information to make a determination. The action agency must agree to the extension.

Finding of no jeopardy or adverse modification

The Services may issue a finding of "no jeopardy or adverse modification" if the proposed action does not pose any harm to listed or proposed species or their designated critical habitat. Alternatively, the Service could find that proposed action is likely to harm listed or proposed species or their critical habitat but does not reach the level of jeopardy or adverse modification. In this case, the Services will prepare an incidental take statement. Under most circumstances, the ESA prohibits "take" of listed species. Take includes harming, killing or harassing a listed species. However, the ESA allows for "incidental" take that results from an otherwise lawful activity that is not the direct purpose of the action.

An incidental take statement will be agreed to between the Services and the action agency. The statement should describe the amount of anticipated take due to the proposed action. It will also include "reasonable and prudent measures" to minimize the take. Incidental take cannot pose jeopardy or potential extinction to species.

Finding of jeopardy or adverse modification

Following formal consultation, the Services may determine that the action will result in jeopardy or adverse modification to critical habitat. If this is the case, this finding will be included in the biological opinion.

However, during consultation, the Services may find there are actions that the agency may take to avoid this. These actions are known as reasonable and prudent alternative actions. In the event of a jeopardy or adverse modification finding, the agency must adopt reasonable and prudent alternative actions. However, the Services retain final say on which are included in the biological opinion.

According to regulation, reasonable and prudent alternative actions must:

• Be consistent with the purpose of the proposed project
• Be consistent with the action agency's legal authority and jurisdiction
• Be economically and technically feasible
• In the opinion of the Services, avoid jeopardy

Given a finding of jeopardy or adverse modification, the action agency has several options:

• Adopt one or more of the reasonable and prudent alternative actions and move forward with the modified project
• Elect not to grant the permit, fund the project, or undertake the action
• Request an exemption from the Endangered Species Committee. Another possibility is to re-initiate consultation. The action agency would do this by first proposing to modify the action
• Propose reasonable and prudent alternatives not yet considered

The action agency must notify the Services of its course of action on any project that receives a jeopardy or adverse modification opinion.

In the past ten years, FWS has made jeopardy determinations in three cases (delta smelt, aquatic species in Idaho, and South Florida water management), each of which has included reasonable and prudent alternatives. No project has been stopped as a result of FWS finding a project had no available path forward.

In rare cases, no alternatives to avoid jeopardy or adverse modification will be available. An analysis of FWS consultations from 1987 to 1991 found only 0.02% were blocked or canceled because of a jeopardy or adverse modification opinion with no reasonable and prudent alternatives. In this scenario, the only option that the action agency and applicant are left with is to apply for an exemption. Exemptions are decided upon by the Endangered Species Committee.

Exemptions

An action agency may apply for an exemption if: (1) it believes it cannot comply with the requirements of the biological opinion; or (2) formal consultation yields no reasonable and prudent alternative actions. The exemption application must be submitted to the Secretary of the Interior within 90 days of the conclusion of formal consultation.

The Secretary can then recommend the application to the Endangered Species Committee (informally known as "The God Squad"). This committee is composed of several Cabinet-level members:

• The Secretary of Agriculture
• The Secretary of the Army
• The Secretary of the Interior
• The Chairman of the Council of Economic Advisers
• The Administrator of the Environmental Protection Agency
• The Administrator of the National Oceanic and Atmospheric Administration
• One representative from each affected State (appointed by the President of the United States)

Endangered Species Committee decisions

Northern spotted owl

The governor of each affected state is notified of any exemption applications. The governor will recommend a representative to join the committee for this application decision. Within 140 days of recommending an exemption, the Secretary should submit to the committee a report that gives:

• The availability of reasonable and prudent alternatives
• A comparison of the benefits of the proposed action to any alternative courses of action
• Whether the proposed action is in the public interest or is of national or regional significance
• Available mitigation measures to limit the effects on listed species
• Whether the action agency made any irreversible or irretrievable commitment of resources

Once this information is received, the committee and the secretary will hold a public hearing. The committee has 30 days from the time of receiving the above report to make a decision. In order for the exemption to be granted, five out of the seven members must vote in favor of the exemption. The findings can be challenged in federal court. In 1992, one such challenge was the case of Portland Audubon Society v. Endangered Species Committee heard in the Ninth Circuit Court of Appeals.

The court found that three members had been in illegal ex parte contact with the then-President George H.W. Bush, a violation of the Administrative Procedures Act. The committee's exemption was for the Bureau of Land Management's timber sale and "incidental takes" of the endangered northern spotted owl in Oregon.

Rarely does the Endangered Species Committee consider projects for exemption. The Endangered Species Committee has only met three times since the inception of the ESA. An exemption was granted on two of these occasions.

Section 10: Permitting, Conservation Agreements, and Experimental Populations

Section 10 of the ESA provides a permit system that may allow acts prohibited by Section 9. This includes scientific and conservation activities.  For example, the government may let someone move a species from one area to another. This would otherwise be a prohibited taking under Section 9. Before the law was amended in 1982, a listed species could be taken only for scientific or research purposes. The combined result of the amendments to the Endangered Species Act have created a more flexible ESA.

More changes were made in the 1990s in an attempt by Secretary of the Interior Bruce Babbitt to shield the ESA from a Congress hostile to the law. He instituted incentive-based strategies that would balance the goals of economic development and conservation.

Habitat conservation plans

Section 10 may also allow activities that can unintentionally impact protected species.  A common activity might be construction where these species live. More than half of habitat for listed species is on non-federal property. Under section 10, impacted parties can apply for an incidental take permit (ITP). An application for an ITP requires a Habitat Conservation Plan (HCP). HCPs must minimize and mitigate the impacts of the activity. HCPs can be established to provide protections for both listed and non-listed species. Such non-listed species include species that have been proposed for listing. Hundreds of HCPs have been created. However, the effectiveness of the HCP program remains unknown.

If activities may unintentionally take a protected species, an incidental take permit can be issued. The applicant submits an application with an habitat conservation plan (HCP). If approved by the agency (FWS or NMFS) they are issued an Incidental Take Permit (ITP). The permit allows a certain number of the species to be "taken." The Services have a "No Surprises" policy for HCPs. Once an ITP is granted, the Services cannot require applicants to spend more money or set aside additional land or pay more.

To receive the benefit of the permit the applicant must comply with all the requirements of the HCP. Because the permit is issued by a federal agency to a private party, it is a federal action. Other federal laws will apply such as the National Environmental Policy Act (NEPA) and Administrative Procedure Act (APA). A notice of the permit application action must be published in the Federal Register and a public comment period of 30 to 90 days offered.

Safe Harbor Agreements

The "Safe Harbor" agreement (SHA) is similar to an HCP. It is voluntary between the private landowner and the Services. The landowner agrees to alter the property to benefit a listed or proposed species. In exchange, the Services will allow some future "takes" through an Enhancement of Survival Permit. A landowner can have either a "Safe Harbor" agreement or an HCP, or both. The policy was developed by the Clinton administration. Unlike an HCP the activities covered by a SHA are designed to protect species. The policy relies on the "enhancement of survival" provision of Section §1539(a)(1)(A). Safe harbor agreements are subject to public comment rules of the APA.

Candidate Conservation Agreements With Assurances

HCPs and SHAs are applied to listed species. If an activity may "take" a proposed or candidate species, parties can enter into Candidate Conservation Agreements With Assurances (CCAA). A party must show the Services they will take conservation measures to prevent listing. If a CCAA is approved and the species is later listed, the party with a CCAA gets an automatic "enhancement of survival" permit under Section §1539(a)(1)(A). CCAAs are subject to the public comment rules of the APA.

Experimental populations

Experimental populations are listed species that have been intentionally introduced to a new area. They must be separate geographically from other populations of the same species. Experimental populations can be designated "essential" or "non-essential" "Essential" populations are those whose loss would appreciably reduce the survival of the species in the wild. "Non-essential" populations are all others. Nonessential experimental populations of listed species typically receive less protection than populations in the wild.

Penalties

There are different degrees of violation with the law. The most punishable offenses are trafficking, and any act of knowingly "taking" (which includes harming, wounding, or killing) an endangered species.

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. Lists of violations and exact fines are available through the National Oceanic and Atmospheric Administration web-site.

One provision of this law is that no penalty may be imposed if, by a preponderance of the evidence that the act was in self-defense. The law also eliminates criminal penalties for accidentally killing listed species during farming and ranching activities.

In addition to fines or imprisonment, a license, permit, or other agreement issued by a federal agency that authorized an individual to import or export fish, wildlife, or plants may be revoked, suspended or modified. 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.

Use of money 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, and forest service 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.

See also

• Critical habitat
• Endangered Species Act Amendments of 1978
• List of endangered species in North America
• Tennessee Valley Authority v. Hill
• Lujan v. Defenders of Wildlife
• Marine Mammal Protection Act of 1972
• National Oceanic and Atmospheric Administration
• United States Fish and Wildlife Service list of endangered mammals and birds

References and further reading

• Brown, Gardner M., and Jason F. Shogren. "Economics of the endangered species act." Journal of Economic Perspectives 12.3 (1998): 3-20. online
• Carroll, Ronald, et al. "Strengthening the use of science in achieving the goals of the Endangered Species Act: an assessment by the Ecological Society of America." Ecological Applications 6.1 (1996): 1–11. online
• Corn, M. Lynne and Alexandra M. Wyatt. The Endangered Species Act: A Primer. Congressional Research Service 2016.
• Czech, Brian, and Paul R. Krausman. The endangered species act: history, conservation biology, and public policy (JHU Press, 2001).
• Doremus, Holly. "Listing decisions under the Endangered Species Act: why better science isn't always better policy." Washington U Law Quarterly 75 (1997): 1029+ online
• Doremus, Holly. "Adaptive Management, the Endangered Species Act, and the Institutional Challenges of New Age Environmental Protection." Washburn Law Journal 41 (2001): 50+ online.
• Easter-Pilcher, Andrea. "Implementing the endangered species act." Bioscience 46.5 (1996): 355–363. online
• Goble, Dale; Scott, J. Michael; Davis, F. W., eds. (2006). The Endangered Species Act at Thirty: Vol. 1: Renewing the Conservation Promise. Washington, DC: Island Press. ISBN 1597260096. excerpt
• Green, Alan; The Center for Public Integrity (1999). Animal Underworld: Inside America's Black Market for Rare and Exotic Species. Public Affairs. ISBN 978-1-58648-374-6.
• Leshy, John D. "The Babbitt Legacy at the Department of the Interior: A Preliminary View." Environmental Law 31 (2001): 199–227. online
• Noss, Reed F., Michael O'Connell, and Dennis D. Murphy. The science of conservation planning: habitat conservation under the Endangered Species Act (Island Press, 1997).
• Petersen, Shannon. "Congress and charismatic megafauna: A legislative history of the endangered species act" Environmental Law 29 (1999): 463–491.
• Schwartz, Mark W. "The performance of the endangered species act." in Annual Review of Ecology, Evolution, and Systematics 39 (2008) online.
• Stanford Environmental Law Society (2001). The Endangered Species Act (Illustrated ed.). Stanford University Press. ISBN 0804738432.
• Taylor, Martin FJ, Kieran F. Suckling, and Jeffrey J. Rachlinski. "The effectiveness of the Endangered Species Act: a quantitative analysis." BioScience 55.4 (2005): 360–367. online

External links

• As codified in 16 U.S.C. chapter 35 of the United States Code from the LII
• As codified in 16 U.S.C. chapter 35 of the United States Code from the US House of Representatives
• Endangered Species Act of 1973 (PDF/details) as amended in the GPO Statute Compilations collection
• Cornell University Law School-Babbit v. Sweet Home accessed July 25, 2005, The 1995 decision on whether significant habitat modifications on private property that actually kill species constitute "harm" for purposes of the ESA.
• Center for Biological Diversity accessed July 25, 2005
• Endangered Species Program – US Fish & Wildlife Service accessed June 16, 2012
• Endangered Species Act – National Marine Fisheries Service – NOAA accessed June 16, 2012
• Species Status Categories and Codes – US Fish & Wildlife Service accessed June 16, 2012
• Habitat Conservation Plans – US Fish & Wildlife Service accessed June 16, 2012
• The 1978 decision related to the ESA and the snail darter. accessed July, 2005
• Summary of Listed Species Listed Populations and Recovery Plans – US Fish & Wildlife Service accessed June 16, 2012
• Species Search – US Fish & Wildlife Service accessed June 16, 2012
• Electronic Code of Federal Regulations: List of endangered species accessed June 16, 2012