Building A Balance: Endangered Species Act Environmental Education Fact Sheet The Endangered Species Act (ESA or Act) authorizes the federal government to regulate endangered and threatened species and their habitat on private as well as public property. Because the Act's fundamental prohibitions are absolute and driven by biological factors and not - as in other environmental statutes - based on a balancing test that takes into account economic impacts, the ESA is a potent source of federal land-use regulation. With the number of endangered and threatened species protected by the Act rising steadily, the ESA is an increasingly important hurdle for development projects across the country. The ESA declares that the greatest threat to species is the loss of habitat. The stated purpose of the Act is to "provide a means whereby the ecosystems upon which endangered species...depend may be conserved, [and] to provide a program for the conservation of such endangered species." Congress created a multi-faceted program to achieve its ambitious goals. The ESA broadly defines the categories of plants and animals that qualify for federal protection, sets out prohibited acts designed to protect such species as well as provisions for their enforcement, provides for permits, imposes broad duties on federal agencies to promote the survival and recovery of protected species in the wild, and requires the preparation of plans for accomplishing the goal of recovering each species. The Act divides responsibility for the protection of endangered species between the Interior and Commerce Departments. The Commerce Department, through the National Marine Fisheries Service (NMFS), is responsible for marine species (whales, sea turtles, seals and sea lions, anadromous fish such as salmon, etc.); Interior is responsible for all other species, including all terrestrial species and freshwater species. Interior has delegated its authority to administer the ESA to the U.S. Fish and Wildlife Service (the Services). Collectively, NMFS and FWS are known as the Services. The Act embodies a broad view of what types of species should be protected. Species are eligible for the protections of the Act regardless of whether the population of the species has decreased or the species has always been rare. The ESA covers any species of animal, including insects (except insects posing an overwhelming and overriding risk to humans), arachnids, and crustaceans, as well as plants. As a result, the species protected under the Act today include not only the bald eagle and grizzly bear, but also mice, rats, snails, clams, beetles, spiders, and a fly, not to mention over 20 different kinds of cactus. Moreover, under the ESA, "species" is defined to include "any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife that interbreeds when mature." Thus, many of the protected "species" are actually subspecies or distinct populations. Species are accorded the Act's protections by being "listed," i.e., placed on the list of endangered and threatened species maintained by the Services. An endangered species is one "which is in danger of extinction throughout all or a significant portion of its range." A threatened species is one "which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Species are listed through a rulemaking process that provides for public input at various points. The Act requires listing decisions to be based strictly on science; the Service's determination whether to list a species must be made solely on the basis of "the best scientific and commercial data available." The Act details the factors the Services must consider in determining whether a species is endangered, including loss of habitat and other threats to the species. The Services may not consider the economic or social impacts of the listing decision. Concurrently with listing a species, the Services are required to designate areas as "critical habitat" for the species. Critical habitat includes specific areas within and outside the geographic area occupied by the species at the time it is listed which contain physical and biological attributes essential to the conservation of the species and which may require special management considerations and protection. Critical habitat can include private as well as government lands. While the Act contemplates that the Services will designate critical habitat when a species is listed, this almost never happens in practice. The Services may decide that critical habitat is not currently determinable and extend the time for designation for up to a year. In addition, the Services may decide that designating critical habitat would not be prudent. The Services have actually designated critical habitat on relatively few occasions; as of October 1995, only 12 percent of listed species had critical habitat designated. Once species are listed, they automatically become subject to a variety of programs to protect and conserve them. These programs take three principal forms: (1) a set of prohibited acts that apply to all individuals, including builders and developers, and that are designed to protect listed species from acts such as hunting, habitat modification, and commercial exploitation; (2) obligations imposed on federal agencies to conserve listed species and avoid all actions that jeopardize the survival of a species; and (3) a requirement that the Services prepare a recovery plan for each listed species. The ESA contains a variety of prohibitions, including provisions restricting trade in endangered species. However, the prohibition that most affects developers is the proscription against any person "taking" any endangered species of fish or wildlife. Take has been interpreted broadly so that many development activities may be interpreted as violating the Act. The Act states that "take" means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" an endangered animal species, including any "attempt to engage in any such conduct." The Services have extended this same prohibition to threatened species by regulation. Evidence of the actual death of members of a species is not required to prove that an activity has or will constitute a take. "Harm" has been defined by regulation as including acts that result in "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavior patterns." The inclusion of habitat modification as a prohibition was recently upheld by the Supreme Court. Plant species are accorded fewer protections than animal species. The Act prohibits any person from transporting endangered plants across state lines or engaging in trade in any such species, but the ESA does not prohibit the destruction of endangered plants unless such plants occur on federal land or state law protects the plant species. The Act contains detailed enforcement provisions for both the federal government and citizen groups. Knowing violation of the Act's prohibitions may result in a $25,000 fine for each violation. Certain knowing violations may result in criminal fines of up to $50,000 and up to one year in prison. A criminal conviction does not require proof that an individual intended to violate the law, only that the individual knew he or she was engaging in the activity that resulted in the violation. The Services may authorize an otherwise prohibited "take" of a listed species if the "take" is incidental to the proposed activity. The Services provide authorization by issuing a "Section 10(a) permit." The Services may issue the permit if the applicant minimizes and mitigates the impacts of such a taking, and if the taking will not appreciably reduce the likelihood of the survival of the species in the wild. Section 10(a) permits require the preparation of a habitat conservation plan (HCP). HCPs (see Fact Sheet Four) allow a landowner to proceed with an activity that will impact a listed species after putting into place sufficient protection and mitigation measures to ensure that the project's impacts will be minimal. HCPs have taken many different forms. Some have covered a relatively small area and have dealt with only one species. Some have covered thousands of acres and have involved impacts to several species. HCPs have proven to be time consuming and expensive to develop. The second major source of protection for species is the obligations placed on federal agencies by ESA Section 7. Federal agencies must ensure that their actions are not likely to jeopardize the continued existence of a species or destroy or adversely modify its critical habitat. "Jeopardizing" the continued existence of an endangered or threatened species is any action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species. "Destroy or adversely modify" critical habitat is defined in much the same way. The other principal means provided for protecting listed species is the development of "recovery plans." Recovery plans are intended to be blueprints for recovering a species to the point where it can be delisted. The Act requires recovery plans for all listed species except where the Services determines that a plan will not promote conservation of a species. However, the Act does not impose any deadlines for preparation or implementation of plans. As a result, many species are still without recovery plans despite having been on the endangered species list for years and many of the existing plans have not been fully implemented. Many activities on private land have been affected by the requirements of the ESA. Projects that require other types of federal permits, e.g., wetlands permits, have been modified or had mitigation conditions imposed as a result of the permit process. Other projects have been modified or delayed because of the possibility that grading or other activities might take a listed species. The Act's effects are increasingly being felt in many areas of the country, partly because of the growth in the number of listed species. A little over 100 species were on the list when Congress originally passed the ESA in 1973; today, there are well over 900 domestic species on the list while over 3000 species are candidates for listing. These species and their habitats are found all across the country, with particular concentrations of listed species in high growth areas such as California, Florida, Texas, and Hawaii. New species are being added constantly, while very few species have ever been removed from the list. As a result of this steady lengthening of the endangered species list, many development projects today encounter endangered and threatened species or habitat. | 
