The Endangered Species Act of 1973

The Endangered Species Act of 1973 (PL 93-205; Dec. 28, 1973)

Brief History 1966 -- Endangered Species Preservation Act Listing of native animal species as endangered, provided means for protection.   1969 -- Endangered Species Conservation Act Expanded conservation to international level for species in danger of worldwide extinction 1973 -- Endangered Species Act (PL 93-205 signed by Nixon) Biological/ecological focus – on all species Much broader than what legislators originally intended Places primary burden on federal agencies and federal lands

ESA: Purposes Provides means where by the ecosystems used by endangered species are conserved Provides program for conservation of endangered species Takes steps appropriate to accomplish treaties and conventions

What does ESA provide? 1. Provides direction for the determination of endangered & threatened species 2. Provides cooperative programs with states for protection and funding mechanism to acquire land 3. Sets up interagency federal cooperation, processes for resolving endangered species conflicts on federal lands 4. Provides mechanisms for financial assistance for international cooperation

What does ESA provide? 5. Specifies what constitutes a taking of an endangered species 6. Sets guidelines for incidental take permits 7. Sets penalties and enforcement guidelines 8. Addresses E&T vertebrates &invertebrates on all lands, plants on federal lands 9. Sets up partnership with Marine Mammal Protection Act, allowing MMPA to be more restrictive than ESA

ESA Administration & Reauthorization Administration of the ESA DOI (U.S. Fish & Wildlife Service) – for freshwater species Dept. of Commerce (National Marine Fisheries Service) – all marine species   Reauthorization of ESA Every 4 years Continuing resolutions and yearly appropriations

The F&WS and ESA Objective of FWS based on ESA: “… to improve the status of endangered or threatened species so that they can be de-listed.”

Definitions Conservation: “the use of all methods and procedures which are necessary to bring any endangered or threatened species to the point at which the measures are no longer necessary.” Endangered species  “any species which is in danger of extinction throughout all or any significant portion of its range.” Threatened species  species “likely to become endangered within the foreseeable future.”

Processes Listing B. Critical habitat designation C. Protection -- Listing process is needed before protection through ESA can be set in motion B. Critical habitat designation C. Protection

A. Listing Listing – selecting species to be put on the endangered species list. 5 criteria for listing as defined by law: present or threatened destruction, modification, or curtailment of its habitat or range overutilization for commercial, recreational, scientific, or educational purposes disease or predation inadequacy of existing regulatory mechanisms other natural or manmade factors affecting its continued existence

B. Critical Habitat Critical habitat  “area occupied by the species at the time of listing and essential to its conservation.” Critical habitat designation – among most controversial aspects of FWS activities! Non-biological factors, including economics, are to be used in determining critical habitat.

C. Protection Protection involves three prohibitions and required consultation among agencies. Prohibitions are: Trade in endangered species without a permit No person may take an endangered species. A federal agency may not act unless it insures that its action will neither jeopardize a species nor adversely affect designated its critical habitat. Term definitions: Take  “to harass, harm pursue, hunt, shoot. Wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Harm  “an act which actually kills of injures wildlife by significantly impairing essential behavior patterns, including breeding, feeding, or sheltering.” Jeopardize  “to engage in an action that reasonably may be expected, directly or indirectly, to reduce the reproduction, numbers, or distribution of the species.”

Economics and the ESA ESA now includes economic concerns (not until spotted owl listing) 1978 amendments  required economic concerns to be considered in designation of critical habitat after listing the species 1988 amendment  requires FWS to report annually on a species-by-species basis all federal expenditures and grants to states for the conservation of species under the act. 1994 Reauthorization

The ES Committee (aka the God Squad) The 1978 amendment created the Endangered Species Committee (or the God Committee, or the God Squad) Decides whether a particular species could be exempted from the ESA May be convened when irreconcilable conflict exists between a development project and species conservation needs Composition: USDA Secretary, USDI Secretary (committee chair), USDoD Secretary Chair of the Council of Economic Advisors EPA administrator NOAA (National Oceanic and Atmospheric Administration) administrator Presidential appointee from each affected state.

Illustration Case: The Snail Darter and the Dam Previous to this Case…. Legislators expressed during hearings that they did not know that ESA will protect everything – they thought it would only protect eagles, bears, and whooping cranes (when they voted for it!) As originally written in 1973, ESA focused only on biological concerns and ignored economics. In 1978, the strictly biological focus of ESA changed because of the snail darter (SD), a 3-inch fish discovered on the Little Tennessee River where a multi-million dollar ($116 M) dam was to be built SD was listed as endangered in 1975. SD is first species to confront economics in a big way! Discovery of SD threatened to stop the almost completed Telllico Dam (a TVA hydroelectric project)

Illustration Case: The Snail Darter and the Dam Supreme Court ruling on Tennessee Valley Authority v. Hill, 437 U.S. 153, 174, 184 (1978): “It may seem curious to some that the survival of a relatively small number of three-inch fish among the countless millions of species extant would require the permanent halting of a virtually completed dam for which Congress has expended more than $100 million….We conclude, however, that the explicit provision of the ESA requires precisely that result.” “Congress intended endangered species to be afforded the highest of priorities… The plain intent of Congress in enacting this stature was to halt and reverse the trend toward species extinction, whatever the cost.”

Illustration Case: The Snail Darter and the Dam Because of the snail darter case, Congress amended ESA in 1978, 1979, and 1982!!!! Delta smelt – another 3-inch fish found on the brackish waters of the Sacramento River estuary was proposed by the FWS to be listed as endangered on Sept. 27, 1991. Actions to protect this fish change the irrigation regime in one of the nation’s most productive agricultural areas. In 1992, several species of salmon were listed, affecting more areas in the PNW. ~ 1300 species listed

Now… ESA Amendments resulted to a law vastly different from 1973 ESA Now more flexible, permitting statute Ex: ESA now permits "incidental takes" (accidental killing or harming a listed species). Congress added requirements for "incidental take statement", and authorized a "incidental take permit" in conjunction with "habitat conservation plans". Changes made in 1990s (DOI Sec Bruce Babbitt) to shield ESA Instituted incentive-based strategies such as candidate conservation agreements and "safe harbor" agreements that would balance economic development and conservation goals

Safe Harbor Agreements Voluntary agreement between private landowner & FWS Landowner agrees to alter property to benefit/attract a listed or proposed species in exchange for assurances that FWS will permit future "takes“ above a pre-determined level Policy relies on "enhancement of survival" provision of Section §1539(a)(1)(A) Landowner can have either a "Safe Harbor" agreement or an Incidental Take Permit, or both. Policy developed by the Clinton Administration in 1999

Candidate Conservation Agreements Closely related to the "Safe Harbor" agreement Main difference: the Candidate Conservation Agreements with Assurances (CCA) are meant to protect unlisted species by providing incentives to private landowners and land-managing agencies to restore, enhance or maintain habitat of unlisted species. Then, FWS assures that if, in the future the unlisted species becomes listed, landowner will not be required to do more than already agreed upon in the CCA

“No Surprises” Rule Rule meant to protect landowner if "unforeseen circumstances" occur which make landowner's efforts to prevent/mitigate harm to the species fall short May be the most controversial of recent ESA reforms -- once an Incidental Take Permit is granted, FWS loses much ability to further protect a species if landowner’s mitigation efforts prove to be insufficient Landowner/permittee not be required to set aside additional land or pay more in conservation money; feds pay for any additional protection measures

Endangered Species Act Always a controversial policy…. Much debates during every re-authorization…..

For a list of E&T species in the US and by state, go to: http://www.fws.gov/endangered/wildlife.html#Species

US E &T Species (F&WS, 2010) Vertebrate Animals (379) Mammals – 86 records Birds – 90 Fish – 138 Amphibians – 25 Reptiles – 40

US E &T Species (F&WS, 2010) Invertebrate animals (198) Non-flowering plants (31) Flowering plants (719)