Endangered Species Act _1973_

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					U.S. Endangered Species Act

• Protects species identified as endangered or threatened with extinction • Attempts to protect the habitat on which they depend

• Administered primarily by the Fish and Wildlife Service (U.S. Department of the Interior)
– The National Marine Fisheries Service (U.S. Department of Commerce) administers the ESA for certain marine species
U.S. Endangered Species Act (1973) 1

General Statistics for Endangered Species
• How many species in the United States are listed as threatened or endangered? • 607 U.S. animal species are listed • 744 U.S. plant species are listed.

• How many species in the United States are proposed for listing as threatened or endangered? • 4 U.S. animal species are currently proposed for listing. • 0 U.S. plant species are currently proposed for listing.
Data current as of 10/28/2007 2

General Statistics for Endangered Species
• How many listed species have designated critical habitat?
– 493 U.S. species have designated critical habitat

• How many candidate species are there?
– 138 animal species are candidates for listing – 140 plant species are candidates for listing

• How many habitat conservation plans (HCPs) have been approved?
– 883 habitat conservation plans have been approved (727 current, 156 expired)

• How many listed species have approved recovery plans?
– 1116 species have approved recovery plans

Data current as of 10/28/2007


ESA History & Evolution
• 1966 Endangered Species Preservation Act
– Listed only native animal species as endangered and provided limited means for the protection of listed species – The Departments of Interior, Agriculture, and Defense were to seek to protect listed species and to preserve the habitats of such species – Land acquisition for protection of endangered species was also authorized
U.S. Endangered Species Act (1973) 4

ESA History & Evolution
• 1969 Endangered Species Conservation Act – Provided additional protection to species in danger of "worldwide extinction" – Prohibited the importation and sale of such species within the U.S. – Called for an international ministerial meeting to adopt a convention on the conservation of endangered species. • A 1973 conference in Washington led to the signing of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which restricted international commerce in plant and animal species believed to be actually or potentially harmed by trade.
U.S. Endangered Species Act (1973) 5

How the ESA ―Works‖
• Species of plants and animals (both vertebrate and invertebrate) are listed as either ―endangered‖ or ―threatened‖ according to assessments of the risk of their extinction • Powerful legal tools are available to aid the recovery of the species and to protect its habitat
U.S. Endangered Species Act (1973) 6

ESA Listing
• As of September 25, 2006, a total of 1,879 species of animals and plants had been listed as either endangered or threatened • 1,311 of these occur in the United States and its territories • Of the U.S. species, 1,070 were covered by recovery plans

U.S. Endangered Species Act (1973)


What is an ―endangered species?‖
• An endangered species is defined as ―any species which is in danger of extinction throughout all or a significant portion of its range....‖

U.S. Endangered Species Act (1973)


What is a ―threatened species?‖
• A threatened species is defined as ―any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.‖

U.S. Endangered Species Act (1973)


Which Animals? Plants? Organisms?
• The protection of the ESA extends to all species and subspecies of animals, not just birds and mammals • More limited protection is available for plant species under the ESA
• There is currently no protection afforded under the ESA for organisms (e.g., Eubacteria, Archaea, viruses) considered neither animal nor plant.
U.S. Endangered Species Act (1973) 10

Basis for Listings
• The ESA defines species as a species, a subspecies, or, — for vertebrates only — a population
– This allows some flexibility as to how to provide different levels of protection to less than a whole species

• Solely on the basis of the best scientific and commercial data available
– ―Commercial data‖ refers to trade data, and is not meant to make economic considerations a part of the listing decision
U.S. Endangered Species Act (1973) 11

• Observers have compared the decision of whether to list a species to diagnosing whether a patient has cancer:
– The diagnosis should be a strictly scientific decision, but other factors can be considered in deciding how to treat the cancer

U.S. Endangered Species Act (1973)


ESA Surrogacy
• The ESA is often a surrogate in quarrels whose primary focus is the allocation of scarce or diminishing lands or resources
– There can be economic interests on the various sides of some vanishing species issues – Other laws often lack the strict substantive provisions that Congress included in the ESA

• Examples: the Tellico Dam and the snail darter; Northwest timber harvest and the spotted owl; coal-methane extraction in northern states and the sage grouse
U.S. Endangered Species Act (1973) 13

Has ESA Been Effective?
• The answer to this question depends very much on the choice of measurement
– 17 species have been delisted due to recovery – 9 species have become extinct since their listing – 16 have been delisted due to improved data

U.S. Endangered Species Act (1973)


How Many Species Have Stabilized or Increased their Populations?
• Most species are listed only once they are very depleted
– Median population of 407 animals for endangered vertebrates

• 41% of listed species have improved or stabilized their population levels • Other species (e.g., red wolves and California condors) might not exist at all without ESA protection, even though the species are still rare

U.S. Endangered Species Act (1973)


Leading Causes of Extinction
• Until recent decades, the focus of the extinction debate was on losses due to overexploitation, generally through hunting, trapping, or fishing
– Passenger pigeons, tigers, wolves

• During the 20th century, a shift of focus and probably of fact occurred: The vast majority of species, including those for which direct taking was probably an early factor in their decline, are generally also at risk due to habitat loss
– tall-grass prairie, fresh and salt water wetlands, old growth forests of most types, free-flowing rivers, coral reefs, undisturbed Endangeredbeaches sandy Species Act U.S. 16

Introduction of NonNative, Invasive Species
• Another high-ranking factor in the demise of many species • The gradual homogenization of the world’s flora and fauna has led to a demise of many species
– Disease vectors or parasites
• Avian malaria in Hawaii, or Asian long-horned beetles in North America

– Predators
• Brown tree snakes in Guam and Hawaii

– Competitors
• Barred owls in the Pacific Northwest
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Non-Native Species
• The introduction of non-native species is now the second greatest threat to native species.
– Habitat loss is the most common reason species are endangered and threatened.

U.S. Endangered Species Act (1973)

Continuing Impact of DDT
• The decline of bird species such as the brown pelican alerted us to the harmful effects of pesticides • Birds were poisoned by DDT when they ate fish from poisoned waterways. This caused pelicans to lay thin shelled eggs that often broke before the chick hatched. • In 1972, the Environmental Protection Agency banned the use of DDT. – However, DDT is still legal in other countries, and many migratory bird are still exposed to the harmful effects of DDT and other pesticides when outside the U.S.
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Is Extinction Normal?
• Geological evidence shows that the vast majority of species that have ever lived on Earth are now extinct • If there are 20 million species now, background levels would be about 2 to 20 species extinctions per year • Common estimates of current extinction rates range from 100 to 10,000 times such background rates
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“Take” or “Taking”
• The term ―take‖ under the ESA means ―to harass, harm, pursue, hunt, shoot, wound, kill, tr ap, capture, or collect, or to attempt to engage in any such conduct‖ • Taking is prohibited
– Controversy over the extent to which the prohibition on taking may include habitat modification – A 1995 Supreme Court decision (Sweet Home) held that the inclusion of significant habitat modification was a reasonable interpretation of the term ―harm‖
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Penalties & Prohibitions
• Threatened or Endangered:
– The prohibitions and penalties of the ESA apply primarily to those species listed as endangered – The Secretary may promulgate special regulations to address the plight of species listed as threatened

• Protections and recovery measures for a particular threatened species can be tailored to particular situations, as was done, for example, with respect to the northern spotted owl • Another regulation also affords threatened species for which a special rule has not been promulgated the same protections as endangered species
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• Those who knowingly break the law through acts of importing or exporting, taking, possessing, selling, delivering, carrying, transporting, or shipping—essentially trafficking endangered species without permission from the Secretary
– Any act of knowingly ―taking‖ (which includes harming, wounding, or killing) an endangered species is also subject to the same penalty

• Maximum fine of up to $50,000, or imprisonment for one year, or both • Civil penalties of up to $25,000 per violation • As your violation history accumulates, you are subject to larger fines and penalties

Excusal from Penalties
• No penalty may be imposed if it can be shown by a preponderance of the evidence that the defendant committed an act based on a good faith belief that he was acting to protect himself or herself or any other individual from bodily harm from any endangered species or threatened species. • The law also eliminates criminal penalties for accidentally killing listed species during farming and ranching activities.

• Species may be listed on the initiative of the appropriate Secretary or by petition from an individual, group, or state agency • The Secretary must decide whether to list the species based only on the best available scientific and commercial information, after an extensive series of procedural steps to ensure public participation and the collection of relevant information.
– The Secretary is expressly forbidden to consider the economic effects that listing may have on the area where the species occurs
• But economic considerations may be considered in later stages
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Delisting and Downlisting
• The same as the processes for listing • The determination to delist, downlist, or uplist a species must be made ―solely on the basis of the best scientific and commercial data available‖
– Without reference to possible economic or other impacts

U.S. Endangered Species Act (1973)


Critical Habitat
• The Secretary must also designate critical habitat:
– Either where the species is found or, if it is not found there, where there are features essential to its conservation

• Supposed to be determined within one year of the listing, but…
– As of September 25, 2006, critical habitat had been designated for 476 listed species
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Designating ―Critical Habitat‖
• Economic factors expressly are a part of designating critical habitat for species • The Secretary ―to the maximum extent prudent and determinable‖ is to designate the critical habitat of the species
– FWS has designated critical habitat for 162 of the 1,262 listed domestic species – FWS has a longstanding disaffection for this provision of the law, viewing its conservation benefit to be low compared to its cost – FWS is sued frequently for its failure to designate critical habitat and consistently loses such suits
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Public Misunderstandings re Critical Habitat v. Takings
• Avoiding adverse modification of critical habitat is an express obligation only for federal agencies and actions, BUT it is frequently misunderstood by the public as the major restriction on a private landowner’s authority to manage land. • The bulk of any restrictions on use of private land come primarily from the ESA’s prohibition on taking of listed species
– Only occasionally are they due to any additional strictures resulting from designated critical habitat
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Is Private Land Affected If Designed to be ―Critical Habit?‖
• Private land is only affected by critical habitat designation if some federal action (e.g., license, loan, permit) is involved

• Federal agencies must avoid ―destruction or adverse modification‖ of critical habitat, either through their direct action or activities that they approve or fund
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Recovery Plans
• The appropriate Secretary must develop recovery plans for the conservation and survival of listed species • Recovery plans are not binding on federal agencies or others • Recovery plans had been completed for 1,070 U.S. species (as of September 25, 2006)
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• If federal actions or actions of non-federal parties that require a federal approval, permit, or funding might affect a listed species, the federal action agencies must complete a biological assessment. • ―Action‖ includes any activity authorized, funded, or carried out by a federal agency, including permits and licenses
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―Actions‖ Requiring ES Protection
• If the appropriate Secretary finds that an action would jeopardize a species or adversely modify critical habitat, the Secretary must suggest reasonable and prudent alternatives that would avoid harm to the species. • If no reasonable and prudent alternatives can be devised to avoid the jeopardy, the agency has three choices:
– (1) choose not to proceed with the action, or – (2) proceed with the action at the risk of penalties, or – (3) apply for a formal exemption for the action
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• An exemption allows the action to go forward without penalties • A high-level Endangered Species Committee of six specified federal officials and a representative of each affected state (commonly called the ―God Squad‖) decides whether to allow the action to proceed despite future harm to a species
– At least five votes are required to pass an exemption – The Committee must grant an exemption if the Secretary of Defense determines that an exemption is necessary for national security – The President may determine whether to exempt a project for the repair or replacement of facilities in declared disaster areas
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Few Exemptions
• There have only been six instances to date in which the exemption process was initiated. • Of these six, one was granted, one was partially granted, one was denied, and three were dropped.
– Graylocks Dam and migrating whooping cranes (granted exemption) – Tellico Dam and the snail darter (denied exemption) – BLM timber sales in Oregon and the northern spotted owl (granted exemption for 13 of the sales)

U.S. Endangered Species Act (1973)


Allowance for an ―Incidental Take‖
• For actions without a federal nexus, such as a loan or permit, the Secretary may issue permits to allow ―incidental take‖ of species for otherwise lawful actions. • The applicant for an incidental take permit must submit a habitat conservation plan (HCP) that shows the likely impact, the steps to minimize and mitigate the impact, the funding for the mitigation, the alternatives that were considered and rejected, and any other measures that the Secretary may require.
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Habitat Conservation Plans
• n 1982, Congress amended the ESA to enhance the permitting provisions of the act to provide landowners with incentives to participate in endangered species conservation. • By preparing "conservation plans" that meet statutory criteria, private landowners can obtain "incidental take permits" that allow otherwise prohibited impacts to endangered, threatened and other species covered in the permitting documents.

• A person may apply for an HCP (Habitat Conservation Plans) if they know they want to develop an area that already has endangered species present. • They are required to apply through the U.S. Fish and Wildlife Service and are required to minimize and fully mitigate the impacts to the species

• Each conservation plan must specify
– the impacts to species that will occur – the steps taken to minimize and mitigate the incidental take – the funding available – alternative actions that were considered but not taken – and other necessary and appropriate measures.

• After review of a proposed conservation plan, FWS or NOAA Fisheries may issue an incidental take permit upon making the statutorily required "findings," including a determination that the incidental taking "will not appreciably reduce the likelihood of the survival and recovery of the species in the wild."

―No Surprises‖ Assurances
• Assurances given to private landowners that if "unforeseen circumstances" arise, FWS or NOAA Fisheries will not require the commitment of land, water or financial compensation or additional restrictions on the use of land, water, or other natural resources beyond the levels otherwise agreed to in the conservation plan, without the consent of the private landowner.

Citizen Suits and the ESA
• The citizen suit provisions have been a driving force in the ESA’s history, and often have been used to force reluctant agencies to provide for species conservation that might otherwise have been neglected.

U.S. Endangered Species Act (1973)


Effectiveness of the ESA
• 41 species have been delisted
– sixteen due to recovery – nine due to extinction (seven of which were extinct prior to being listed) – nine due to changes in taxonomic classification – five due to discovery of new populations – one due to an error in the listing rule – one due to an amendment to the Endangered Species Act specifically requiring the species delisting
Delisting Report:

• Twenty-three other species have been downlisted from "endangered" to "threatened" status. • Few species have become extinct while listed under the Endangered Species Act • 93% of listed species have had their population sizes increase or remain stable since being listed as threatened or endangered.

Listed Species Which Increased In Population Size
• • • • • • • • • • • • Bald Eagle (increased from 417 to 9,250 pairs between 1963 and 2006) Whooping Crane (increased from 54 to 436 birds between 1967 and 2003) Peregrine Falcon (increased from 324 to 1,700 pairs between 1975 and 2000) Gray Wolf (populations increased dramatically in the Northern Rockies, Southwest, and Great Lakes) Gray Whale (increased from 13,095 to 26,635 whales between 1968 and 1998) Grizzly bear (increased from about 271 to over 580 bears in the Yellowstone area between 1975 and 2005). California’s Southern Sea Otter (increased from 1,789 in 1976 to 2,735 in 2005) San Clemente Indian Paintbrush (increased from 500 plants in 1979 to more than 3,500 in 1997) Florida's Red Wolf (increased from 17 in 1980 to 257 in 2003) Florida's Key Deer (increased from 200 in 1971 to 750 in 2001) Hawaiian Goose (increased from 400 birds in 1980 to 1,275 in 2003) Virginia Big-Eared Bat (increased from 3,500 in 1979 to 18,442 in 2004)

Updates on the ESA
• The Bald Eagle was removed from the federal list of threatened and endangered species on June 28th, 2007.
– The eagle’s health will be monitored closely for the next five years, and it can be restored to the list of threatened species if necessary. – It will also continue to enjoy the protections provided by an older law, The Bald and Golden Eagle Protection Act.

• There were 417 breeding pairs in the continental United States in 1967, after a long decline blamed variously on illegal hunting, habitat destruction and the pesticide DDT, which was banned in 1972. Forty years later, according to government figures, that number has grown to nearly 10,000.

• The Grizzly bear (Yellowstone, "Northern Grizzly") was removed March 22nd, 2007.

U.S. Endangered Species Act (1973)


• Florida manatee recommended upgrading of ESA status from endangered to threatened (April 10, 2007)
– This switch could mean changes in boating and development restrictions that were established to protect manatees. – In 2007 the manatee census recorded 2,812 in Florida water. In 1991, the survey’s first year, 1,267 manatees were counted.

U.S. Endangered Species Act (1973)


1. Congressional Research Report RL31654, ―The Endangered Species Act: A Primer‖ (updated September 27, 2006) 2. U.S. Fish & Wildlife Service, ―History and Evolution of the Endangered Species Act of 1973‖ (updated October, 1996) 3. USFWS Summary of Listed Species 4. Marine and Anadromous ESA Species
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