The Endangered Species Act: A Backgrounder

The past, present and future of endangered species restoration

Posted: 27-Apr-2004; Updated: 28-Jun-2005

Only a few decades ago, most of our nation's declining plants and animals had little hope of recovery.  Without legal protection, once common species such as the passenger pigeon and the Carolina parakeet vanished forever and others declined precipitously.

When President Richard Nixon signed the Endangered Species Act (ESA) in December 1973, rare and declining species protection entered a new era.  This landmark legislation followed two less-comprehensive laws enacted in 1966 and 1969.

The Endangered Species Act Today
Three decades later, the ESA remains the world's most powerful law for protecting and recovering plants and animals headed toward extinction.  Under its protection, species as diverse as the majestic peregrine falcon and Robbin's cinquefoil (a New England mountain wildflower) have completely recovered.  For hundreds of other species, ESA recovery actions have either increased their numbers or halted their downward spiral toward extinction.

As of March 2004, 1,285 U.S. species are listed as threatened or endangered under the law.  States with the highest numbers are Hawaii (312), California (290), Alabama (108), Florida (103), Tennessee (96) and Texas (84).  Another 558 foreign species receive some ESA protection, although ESA recovery actions are limited to U.S. species.  An additional 36 species have been proposed for listing, and yet another 256 "candidate" species are further down the queue, awaiting listing at a time when sufficient resources are available.

An "endangered" plant or animal is defined by the ESA as in danger of extinction throughout all or a significant part of its range. The less-imperiled category of "threatened" is applied to species that are considered likely to become endangered in the foreseeable future.  Threatened status offers more flexibility in how the species is protected and managed for recovery.  A species is eligible for ESA listing if it is imperiled by any of the following 5 criteria:

• 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; or
• Other natural or manmade factors affecting its continued existence.

The Department of Interior's U.S. Fish & Wildlife Service (FWS or the Service) has primary responsibility for listing species and enforcing the ESA.  It shares its authority with the Department of Commerce's National Marine Fisheries Service, which has jurisdiction over marine species.

Listing a species as endangered or threatened follows the standard procedure for federal agency rulemaking.  Notices, proposals and decisions are published in the Federal Register.  To initiate an ESA listing, any organization or individual can submit a petition to the Service, or that agency itself can propose protection.  Within 90 days of receiving a petition, FWS must determine whether an ESA listing may be warranted and, if so, initiate a status review.  No longer than a year after receiving a petition, the Service is required to decide whether listing the species is warranted.  If the Service decides it merits listing, FWS publishes a proposed rule and opens a public comment period, generally 60 days.

Within one year of the proposed rule, FWS is required to take one of three actions: (1) publish a final listing rule, based solely on biological criteria, that approves or revises the proposed rule; (2) withdraw the proposed rule if it judges ESA protection is not warranted; or (3) extend the proposal for up to six months, if disagreement is substantial.  Final rules become effective 30 days after publication. If other listing priorities preclude action, the Service may defer the proposal as "warranted but precluded," but it must issue subsequent findings annually until the species is proposed for listing or listing is no longer warranted.

Occasionally, FWS issues an emergency listing for a plant or animal that is declining very rapidly or facing an imminent major threat to its existence. This immediate protection lasts 240 days and is usually published concurrently with a proposed rule for long-term protection.

Once listed as endangered or threatened, a species is eligible for a wide range of protections and recovery actions, including:

• Prohibition against "take," which is defined to include activities that harm the species or its habitat;
• Initiation of the recovery process, which usually includes appointing a recovery team and preparing a recovery plan that specifies recovery criteria and management actions needed to reach those goals;
• State protection in those states that automatically confer additional protection on federally listed species; and
• Restraints on federal activities likely to jeopardize the species, including activities that receive federal funding, even if they are carried out by other entities.

The ESA outlines a delisting procedure for a species that 1) appears to have met the recovery goals outlined by the Service, 2) becomes extinct or 3) no longer warrants protection for other reasons.  This process involves petition, proposal and final rule steps similar to those required to list a species.

Periodically, the ESA is reauthorized by Congress, at which time amendments can be added.  For example, in 1982 the law was broadened to include a provision for issuing an "incidental take" permit, which in some instances allow FWS to authorize inadvertent or "incidental" harm to a listed species as part of otherwise lawful activities, such as land development projects.  Prior to issuing a permit, FWS must approve a habitat conservation plan submitted by the applicant.  The plan outlines mitigation measures, such as preserving habitat for a species at another location.

The Future of the Endangered Species Act
As more species await listing and the ESA awaits reauthorization, the future of many of our nation's rare species is not yet secure.  We know that listing an imperiled plant or animal is only the beginning; bringing a plant or animal back from the brink of extinction requires time, money and cooperative efforts by federal, state and private entities.  What we can accomplish with sufficient resources is demonstrated by the recovery of the bald eagle.  Our national icon appeared doomed in 1963 when a scarce 417 pairs were counted in the continental U.S., and the eagle had vanished entirely from many states.  Today, more than 7,600 pairs nest in the lower 48 states.

Since so many of the country's endangered and threatened species depend on private lands--and many exclusively so--we can't accomplish the ESA's goals by relegating recovery efforts to public lands.  Nor can we expect private landowners to accomplish recovery on their own.  Although the ESA prohibits landowners from harming endangered animals, it doesn't require them to undertake the beneficial management actions that most species require for recovery.  And though most private landowners do care about their land and want to practice good stewardship, they often lack the time and resources to deal with complex regulations and necessary management activities.

Two new conservation tools--Safe Harbor programs and Candidate Conservation Agreements--are demonstrating how regulatory incentives can help a wide variety of at-risk species.  Under Safe Harbor agreements, Texas ranchers were willing to have endangered northern aplomado falcons reintroduced on their land, where many pairs now nest.  Other landowners are using similar agreements to restore habitat for the gopher tortoise, red-cockaded woodpecker, Schaus swallowtail butterfly and a host of other rare species.  As the ESA enters its fourth decade as one of the strongest conservation laws in the world, private landowners will play a crucial role in its future and the species whose lives rely upon the law.