Public health and environmental stability depend on maintaining strong ecosystems in which a wide range of animals and plants can survive. To address these goals, the federal government created the Endangered Species Act in the 1970s. The law is designed to protect wildlife from extinction. It has proved remarkably successful, ensuring the survival of nearly all the species who have received its protections.
Congress has delegated the task of implementing and enforcing the ESA to the US Fish and Wildlife Service and the National Marine Fisheries Service. These two Services employ experts who evaluate whether a species should be protected under federal law and devise appropriate protections. If another federal agency plans to perform an action that might affect a species subject to protection or its habitat, the agency must consult the appropriate Service. The Service will decide whether the proposed action is likely to harm the species and violate the ESA. It may recommend adjustments to the proposed action that would protect the species.
Why Should an Agency Listen to a Service?
A federal agency is not obliged to accept the recommendations of a Service. However, it runs the risk of a court finding that it has violated the ESA if its actions are challenged. Judges give substantial weight to the findings of the Services, since they are staffed by established experts.
Listing and Delisting
The process of securing protection for a species is known as “listing,” while the removal of protection is known as “delisting.” A Service can trigger the listing process, or a state government agency or a member of the public can petition to list a species. The ESA provides for two types of listings: “endangered” or “threatened.” An endangered species is already facing a risk of extinction, while a threatened species is likely to face a risk of extinction in the foreseeable future.
If the challenges facing a species are resolved, the species can be delisted. This means that it is no longer subject to protections under the ESA. In theory, delisting occurs after the successful completion of a recovery plan. However, funding issues have resulted in fewer incidents of delisting than environmental advocates might hope.
Habitats and Recovery Plans
The Service responsible for listing a species usually investigates locations that would be conducive to the survival of the species. These are known as “critical habitats.” In some cases, a critical habitat is not currently occupied by the species, which may already have been driven out of some environments where it traditionally thrived.
Once a Service has listed a species, it will research its situation and devise a strategy known as a recovery plan. The plan will assess the cost and time necessary for recovery, while outlining specific research and management actions that must occur for the species to avoid extinction.
Incidental Take Permits and Agreements With Property Owners
Killing a listed species or harming it in other ways, such as altering its critical habitat, is known as a “take” under the ESA. Non-federal entities, such as property owners, sometimes seek a permit to take an endangered or threatened species. They would need to show that the take was incidental to another lawful activity. For example, a farmer might seek an incidental take permit to plow a field. A habitat conservation plan must accompany an application for an incidental take permit. This plan must describe the expected impact of the take and explain how the impact will be minimized or mitigated.
Some property owners prefer long-term certainty that allows them to manage their land without chronically worrying about whether they are violating the ESA. If a species on their land might become listed in the future, they can reach a candidate conservation agreement with assurances. Under this agreement, the property owner agrees to take certain steps to help conserve a species in exchange for an exemption from further requirements if a Service eventually lists the species. A property owner also might agree to further the recovery of a listed species on their land in exchange for avoiding any additional conservation measures in the future. This is known as a safe harbor agreement.
Key ESA Compliance Options for Property Owners
1Incidental take permit (+ habitat conservation plan) for a specific activity
2Candidate conservation agreement with assurances for a non-listed species