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Introduction
The first part of
this overview of the Endangered Species Act
of 1973 comes from the
The Red Lodge Clearinghouse, which
is a web-based source of environmental information - to include
information on pertinent environmental law and legislation. This
overview was so thorough and complete that I have chosen to share it
with you in its entirety. However, for a complete analysis and
through overview of the Endangered Species Act, you may want to
review the 2001 report from the Congressional Research Service
entitled "Endangered
Species: Difficult Choices." This provides a very good policy
analysis of this important piece of legislation and how it is
currently fairing.
"The
Endangered Species Act (ESA)
is one of the most powerful of this nation's environmental laws.
Passed in 1973, the act's purpose is to both conserve and
restore species that have been listed by the federal government
as either endangered or threatened (referred to as "listed"
species). The act has several provisions that promote those
goals:
First, the act broadly prohibits anyone from
doing anything that would kill, harm, or harass an endangered
species. Those prohibitions even apply when listed animal
species are on private lands.
Second, federal agencies have a special
obligation to ensure that they do nothing that would harm a
listed species. That obligation significantly affects activities
on federal lands, like grazing, logging, and mining. But it also
means that a federal agency has to assess whether its actions
could affect a listed species before the agency signs off on
projects like a new highway or a dam on non-federal land.
Third, the act tells federal agencies to develop
plans that show how the listed species could be restored—or
"recovered"—so that it no longer needs the act's protections ("delisted").
Key Concepts
Endangered
Species
If an animal or plant species is listed as
"endangered," the species is considered to be in danger of
extinction throughout a large part of its range. It is possible
that a species can be listed as endangered, the highest level of
protection the act provides, in one place but not another. The
U.S. Fish and Wildlife Service (USFWS) maintains a
list of
endangered species.
Threatened Species
For a species to be listed as
"threatened," there must be a significant risk that the species
is going to become endangered. Threatened species have a lower
risk of extinction than do "endangered" species. As a result,
state and federal agencies may have some greater flexibility in
how they manage a threatened species than an endangered species.
The USFWS maintains a
list of
threatened species.
Species
Generally
speaking, a "species" is a group of related plants or animals
that can interbreed to produce offspring. Under the ESA, the
word "species" is used more broadly to include any "subspecies"
of fish, wildlife, or plants, and also any "distinct population
segment" of fish and wildlife species that can interbreed.
A
"subspecies" is a subdivision of a species, which is genetically
different from other subspecies and often is geographically
separated. Examples of subspecies are the Mexican and the
Northern Spotted Owls.
A "distinct population segment" is not genetically
different from the species as a whole, but it has very specific
habitat or reproduction habits. An example of a distinct
population segment is a particular group of salmon, which, after
spending their formative years in the ocean, return to the same
mountain stream in which they were born. Thus, the winter run of
the Chinook salmon on the Sacramento River in
California is endangered, and many other runs of
Chinook salmon are threatened, but the spring run of Chinook up
the Clackamas River in Oregon and Washington is neither
endangered nor threatened.
Federal Agencies Responsible for Endangered
species
The Secretary of the
Interior has delegated most of his or her duties under the ESA
to the U.S. Fish and Wildlife Service (USFWS), which is
responsible for all land-based species. The Secretary of
Commerce has delegated most of his or her responsibilities for
sea life and salmon and steelhead ("anadromous fish" that spawn
in inland waters, migrate to the ocean for several years, and
then return to their spawning grounds) to the National Marine
Fisheries Service (NMFS).
Listing
"Listing" refers to the
process by which a species is formally designated as a
threatened or endangered species. Currently there are more than
1,260 species listed as endangered or threatened under the ESA.
Anyone can submit a
petition to the federal government to have a
species listed. However, that petition must include scientific
information that explains why listing is necessary. The two
federal agencies that receive petitions are the USFWS and the
NMFS. These agencies have a year to evaluate the species for
listing. Either agency can also start the process without a
petition.
After evaluating the species, the agency has
three options:
-
It can agree that a species
should be listed, that is, it concludes that the listing is
"warranted."
-
It can decide that listing is
not justified, that is "not warranted."
-
It can conclude that while
adding the species to the list is justified, other species
have a higher priority; that is, listing is "warranted but
precluded."
Regardless of what decision the agency makes, it
has to publish its decision in the Federal Register and explain
how it reached its decision.
Take, harm
The ESA has broad
provisions to prevent extinction of plant and animal species.
The act prohibits anyone from "taking" a species that has been
listed as threatened or endangered. "Take" can be as simple as
hunting, shooting or killing a listed animal species. It can
also include "harming" a listed species by activities that cause
major changes to habitat and leave an animal unable to feed,
breed, or find shelter.
Critical
habitat
When the federal government lists a species
as endangered, it is also supposed to identify that species'
critical habitat. Critical habitat includes those areas that are
important for the species' survival or recovery and which need
special management. While a designated critical habitat area is
not intended to include all of the potential habitat of the
species, it can include habitat that is not currently occupied
by the species. The federal government is required to use the
best available scientific information in making a decision about
critical habitat. The agency can also consider economics when
deciding what areas should be designated as critical habitat,
although it does not consider economic impacts when it "lists" a
species.
The Secretary of the Interior is not allowed to
designate critical habitat at a military site if the Secretary
decides that the military site has a resource management plan in
place that benefits the affected species. In advocating for this
relatively new provision, the Pentagon claimed that this
provision is necessary to maintain high standards of military
training. that this provision is necessary to maintain high
standards of military training."
Recovery plan
The federal
agency responsible for a listed species must develop a recovery
plan. The plan outlines how it will ensure the species' survival
and restore it to the point where it no longer needs the act's
protections and can be "delisted" or removed from the list of
threatened or endangered species. Examples of recovery efforts
include reintroduction of a species into formerly occupied
habitat (bald eagles), land acquisition (Florida scrub jays),
captive propagation (black-footed ferrets and California
condors), habitat restoration and protection (Aleutian Canada
geese), population assessments and research (Peter's Mountain
mallow), technical assistance for landowners and public
education. In most cases, the USFWS or NMFS works with state
wildlife agencies, user groups, conservationists, and others in
developing such a plan. Because developing and implementing
recovery plans is expensive, the agencies focus their efforts on
species that would most benefit from a plan. While few species
have gone extinct since 1973, only 9 have been "recovered" or
removed from the list because they no longer need the act's
protection. For additional information, see
GAO Report:
Endangered Species: Time and Costs Required to Recover Species
Are Largely Unknown.
Experimental Population
An "experimental population" is a group of individuals of an
endangered species that has been established outside the current
range of the animals. Animals may be reintroduced to their
historical range or to new areas because there is insufficient
habitat in the animals' traditional range. Experimental
populations are considered threatened, not endangered, and
"taking" individual animals is permitted under certain
circumstances. Protections of experimental populations vary
widely, depending on whether the population is considered
"essential" or "nonessential" for species survival. Designation
as a "nonessential experimental population" under the 10(j) rule
of the ESA assures that endangered species are fully protected
from intentional harm, but keeps their presence from restricting
current and future land management practices. Use of this
special designation helped reduce concerns raised by local
communities, landowners and political entities about the
intentional release of endangered species that might enter and
remain on public lands in their region. The reintroduction of
gray wolves to their traditional range in Wyoming and the
California condor to its historic range in Arizona are examples
of experimental populations that are considered "nonessential"
to survival of the species.
Delisting
The process
for "delisting"—removing a species from either the endangered or
threatened list, or changing its status from endangered to
threatened—is similar to the formal listing process. The process
starts with a notice published in the Federal Register.
Delisting may include requirements for special management plans
to help ensure a healthy population in the future. For example,
the states of Montana, Idaho, and Wyoming must all have wolf
management plans in place before the gray wolf is delisted.
Process Essentials: Section
7 Consultation
Purpose
Section 7 of the ESA has been at the center of much of the
debate over endangered species protection. Section 7 says that
federal agencies must make sure that none of their actions, or
any action they authorize or fund, is likely either to
jeopardize the existence of a listed species or to damage its
critical habitat. To meet this requirement, federal agencies
considering taking some action—from selling timber to re-issuing
a grazing permit or permitting a new dam—must "consult" with the
U.S. Fish and Wildlife Service (USFWS), for land-based species,
or the National Marine Fisheries Service (NMFS), in the case of
sea life or salmon and steelhead. The agencies usually use an
informal process to determine whether formal consultation is
necessary.
Informal Consultation
Typically, the agency that wants to take an action will
informally consult with USFWS or NMFS, asking whether there are
any proposed or listed threatened or endangered species or
critical habitat in the project area. If the answer is "yes",
then the consulting agency (also know as the "action agency")
must do a
biological assessment (BA) to assess
what impact its action might have on the species or habitat. The
contents of the BA are left to the discretion of the action
agency, but USFWS regulations suggest the following:
-
The results of an on-site
inspection of the affected area;
-
The views of recognized experts
on the species at issue;
-
A review of the literature and
other information;
-
An analysis of the effects of
the action on the species and habitat;
-
An analysis of alternate actions
considered by the action agency.
If the
assessment indicates that there will be no impact, and the USFWS
or NFMS agrees, then informal consultation is over and the
project can go forward. If the BA indicates that the action is
likely to have an effect, then informal consultation is over and
"formal consultation" begins. During the informal consultation,
the USFWS or NMFS may suggest project modifications that the
action agency could take to avoid the likelihood of adverse
impacts. In December 2003 several land management agencies,
USFWS, and NMFS adopted new regulations that exempt National
Fire Plan projects from the informal consultation process. For
more details on these regulations,
see
Controversies: Special Rules for National Fire Plan Consultation
Formal Consultation
If a federal agency informs the USFWS or NMFS that a proposed
action might affect any proposed or listed threatened or
endangered species or critical habitat (typically done as part
of a BA), the agencies begin a formal consultation process. In
this process, the USFWS or NMFS prepares a
biological opinion (BO)—a detailed evaluation of the impacts on
the species and critical habitat—based on the BA produced by the
action agency. The BO thoroughly explains the current status of
the species and describes how the proposed action would affect
the species. The USFWS (or NMFS) can come to one of three
conclusions in its BO:
The agency then has to explain how it concluded
that the action would, or would not, jeopardize the species that
is the subject of the opinion. If the opinion concludes the
action will not adversely affect the species (i.e., a "no
jeopardy" opinion), the action can go forward. If the BO concludes the
action could harm the species, the USFWS or NMFS typically
proposes a set of mitigation measures ("reasonable and prudent"
alternatives) that would allow the activity to proceed. It is
also possible, though rare, that there are no effective
mitigation measures. The practical result of such an opinion is
that the agency either has to revise its proposal, abandon it
altogether, or try to invoke an exemption from the Endangered
Species Committee
(see "Endangered Species Committee Exemptions").
For more information on consultation, see the
USFWS ESA
web site.
Process Essentials: ESA
Tools for the Landowner
Federal Policies & Programs
Participation by private landowners is extremely
important to the protection and recovery of listed species
because many listed species depend on private lands for habitat
during at least part of their lives. Several federal policies
and grant programs are designed to help landowners cooperate in
protection of listed species.
Habitat Conservation Plans (HCP)
A Habitat Conservation Plan (HCP) is developed to help protect
species from being harmed by activities on private lands and, at
the same time, to protect private landowners from liability
under the ESA. Sometimes, a private landowner finds out that a
planned project (for example, a housing development) may harm or
"take" an endangered species. By developing an HCP, the
non-federal entity can get the permits it needs to proceed. An
HCP outlines what actions the private party plans to take in
order to minimize, or mitigate, the impact of his or her actions
on the endangered species.
When the U.S. Fish and Wildlife Service (USFWS)
signs off on an HCP, it generally gives permission to the
private party to "take" endangered species as an incident to the
development activity (issues an "incidental take permit"). Plans
can be developed for listed threatened or endangered species and
for other rare species. Including unlisted species in an HCP can
provide for early protection for the species that might keep it
from needing to be listed in the future. For more information on
HCPs, see
the USFWS
Habitat Conservation Planning website.
The Habitat Conservation Planning Process
According to Peter
Aengst, et al., (1997) of the University of MIchigan:
"The
planning process has three general stages: development,
approval, and implementation. The development of an HCP
typically requires significant scientific baseline
collection and analysis, often conducted by outside
consultants hired by the applicant. The whole process can
take many years and cost millions of dollars. Usually,
district-level FWS or NMFS staff assist in the applicant's
development of the HCP by providing clarification,
scientific information, and feedback. For many large or
complex HCPs, a steering committee representing affected
stakeholders and scientific and agency interests is formed.
In the
development stage, parties also negotiate the terms of the
agreement. In return for allowing an incidental take of a
species, the parties agree to pursue specific management
protections for the species. Almost all HCPs share a basic
central strategy of identifying and protecting certain high
value habitat areas. In some cases, the landowner sets aside
a portion of his or her own land for conservation purposes;
in others, the landowner or independent parties (e.g.,
private land trusts; local, state, or federal government
entities) purchase the habitat conservation areas. Local
zoning restrictions have also been used to protect
designated areas (Beatley 1994). In addition to these land
protections, HCPs can also include other mitigation actions,
such as public education campaigns, habitat restoration,
land-use restrictions on nearby public lands, control of
exotic species or predation, captive breeding, or changes to
the design or density of landowners' projects.
The
approval stage of the HCP planning process involves both
internal agency analysis and external public review. The
applicant usually submits four documents for agency
approval: (1) a completed permit form which requests the
specified amount and rate of incidental take; (2) the HCP,
which includes the scientific information and details of the
mitigation plan; (3) an implementation agreement which
serves as a binding contract and details how the elements of
the plan will be carried out, paid for, and monitored; and
(4) the appropriate National Environmental Policy Act (NEPA)
documentation (i.e., environmental assessment or
environmental impact statement). The agency in turn will
amend the NEPA documents if necessary and publish notice of
the HCP and a minimum 30-day public comment period in the
Federal Register. If the agency approves the HCP, it
issues the applicant an ITP. This permit action qualifies as
a federal agency action; thus, the agency must engage itself
in a "self-consultation" process to evaluate whether the
proposed action is in compliance with Section 7 of the ESA
(50 Federal Register 39685, Sept. 30, 1985). State
endangered species laws and environmental reviews, as well
as local zoning or planning regulations, may require
additional documentation or public review.
Implementing the HCP involves carrying out the prescribed
mitigation actions, collecting funds, and monitoring take
levels and overall species impacts. Funding for
implementation of the HCP can take many forms and often
involves some combination of federal, state, local, and
private sources, such as per-unit fees on new development,
community-wide taxes, contributions from participating
groups (e.g., The Nature Conservancy), state wildlife funds,
issuance of city bonds, and Federal Land and Water
Conservation Fund appropriations. Monitoring
responsibilities for approved HCPs are usually jointly
shared by the applicant and the FWS or NMFS and often
involve preparation of periodic reports documenting the
amount of development that has occurred, number and type(s)
of listed species taken, and the amount of money generated
and spent to date.
The
Growth of HCPs
Landowners and the agencies initiated relatively few HCPs in
the years following the creation of the Section 10(a)
incidental take provisions in 1982. Traditionally, the
agencies focused their efforts on those projects or actions
that included federal lands or some federal permit approval.
Since the Section 10 process is voluntary, most potential
applicants chose not to participate and appear to have
relied on lax enforcement of the Section 9 take prohibitions
on private property (Houck 1993). Moreover, the HCP process
was historically viewed as procedurally difficult, costly,
plagued with delays, and risky in terms of regulatory
assurances.
Habitat
conservation planning, however, has changed dramatically in
recent years. Growing scientific recognition of the role of
private lands for endangered species recovery and the
landmark 1981 District Court ruling in Palila v. Hawaii
Department of Land and Natural Resources (639 F.2d 495,
9th Cir., 1981) both contributed to making Section 9 "a
major force for wildlife conservation and a major headache
to the development community". Indeed, during the last
decade there has been a significant rise in disputes
concerning Section 9's application to private property.
Perhaps
more importantly, the Clinton Administration has made
several administrative changes in its ESA policies that have
increased the incentive for landowners to engage in the HCP
planning process and led to a dramatic increase in the
number of landowners applying for and receiving approval for
HCPs. Indeed, in an effort to encourage the broader
application of HCPs and to deflate Congressional efforts to
weaken the ESA, the Clinton Administration has sought to
make Section 10 and HCPs "one of the ESA's most important
and innovative conservation programs".
The
result has been a dramatic increase in the number and scope
of HCPs that have been proposed and approved. Prior to 1994
the FWS had approved a total of only 20 HCPs. However, after
the Clinton Administration's efforts to streamline the
planning process and increase landowner incentives to
participate, the FWS approved 174 new plans between 1994 and
1996. At the end of 1996 there were approximately 200 HCPs
at some stage of preparation, and the FWS expects to work on
as many as 400 during FY 1998. In addition, the scale and
scope of HCPs have increased dramatically in recent years.
The FWS and NMFS report that the majority of HCPs developed
prior to 1995 were of less than 1,000 acres in area while
HCPs in development in 1996 included 25 that exceed 10,000
acres, 25 that are more than 100,000 acres, and 18 that
exceed 500,000 acres (FWS 1997b). By September 1997, the U.
S. Department of Interior expects that more than 18.5
million acres of private land and over 300 species will be
covered by HCPs."
No Surprises Policy
In an effort to encourage private property owners to protect
endangered species and their habitat, federal agencies have
developed a "no surprises" policy that can be written into an
HCP. This policy promises the private landowner that if he or
she develops an HCP in good faith and the federal agency later
concludes that additional measures (e.g., protection of more
land) are needed to protect the endangered species, the federal
agency cannot require the private landowner to do anything more
than what he or she already has committed to do. In other words,
the private party who commits to helping to conserve an
endangered species doesn't have to be worried about a "surprise"
down the road.
Permit Revocation Rule
When the
USFWS approves an HCP plan, they issue an "incidental take"
permit that prevents the private property owner from being
prosecuted if an endangered species is incidentally killed or
injured during the development. Because several conservation
groups and an Indian tribe were concerned that there would be no
recourse for a species is peril of extinction, the USFWS created
a new rule, the
permit
revocation rule
which allows the agency to revoke incidental take permits,
despite the "no surprises" policy, when incidental takes would
"appreciably reduce the likelihood of survival and recovery of
the species in the wild." For more information on the
controversial and litigious history of the permit revocation
rule and "no surprises" policy, see
Judge puts
hold on 'No Surprises' rule
and
Court
dismisses FWS appeal over 'No Surprises.'
For more information on Incidental Take Permits, see
Process
Essentials: ESA Exceptions or Exemptions.
Conservation Banks
One way developers can fulfill a promise to mitigate damage to a
species is through the use of conservation banks. Conservation
banks are lands acquired and managed for specific endangered
species. The lands are usually protected permanently by
conservation
easements.
Once a conservation bank is established, the "banker" may sell a
fixed number of
"mitigation
credits" to developers to offset adverse effects of the
developer's project on a species. These effects may include
destruction of some of the species' habitat or disturbance of
the species from increased activity in the area of the
development.
The banks operate on the theory that
species conservation will be most effective, and people will be
most willing to participate in conservation efforts, if everyone
benefits from conserving species. Conservation banking benefits
all parties:
-
Species benefit from protection
of much-needed, secure habitat.
-
Developers benefit because they
can go forward with the development and receive an
incidental take permit. Buying credits is easier, and
usually more economical, for the developer than developing
an individual mitigation project.
-
Owners/managers of the
conservation banks benefit monetarily through the
developers' purchase of mitigation credits.
Safe Harbor Agreements
Some private landowners are unwilling to adopt conservation
measures that improve habitat for threatened or endangered
species on their land for fear that their future development
decisions would then be limited by the presence of the
endangered species. Unfortunately, that restricts the amount of
privately owned land available for use by threatened and
endangered species. Safe Harbor Agreements are designed to get
around this conflict. The agreements assure landowners who
voluntarily improve habitat for endangered species that their
future land development won't be limited if they attract
endangered species to their property or increase their numbers.
Title V of the Healthy Forests Restoration Act requires the
Secretary of Agriculture to establish a healthy forests reserve
program for the purpose of restoring and enhancing forest
ecosystems to improve biodiversity, enhance carbon
sequestration, and to promote the recovery of threatened and
endangered species. The program provides both funding and
technical assistance to landowners who volunteer to enroll their
land. Safe harbor agreements and other assurances will be made
with the landowners as part of the program. For more information
on the reserve program, see
Healthy
Forests Restoration Act: Title 5.
Candidate Conservation Agreements
with Assurances
Candidate Conservation Agreements
with Assurances (CCAA) are agreements made between the USFWS or
NMFS and landowners. These formal agreements are created to
address the specific conservation needs of a particular species,
in hopes of keeping it off of the endangered or threatened
species lists. The private parties to these agreements
voluntarily commit to manage their land and water to decrease
current and future threats to a species, so that the population
of that species may thrive without federal protection. In
exchange, the owners receive assurances from the agency, much
like the "no surprises policy" of an HCP, that they will not be
required to do more than what they agreed to when they entered
the agreement. In order to receive the assurances, the
landowner's management activities must significantly contribute
to eliminating the need to list the covered species. Species
covered in a CCAA may include both animals and plants, and
either candidates for listing or species that have already been
proposed as threatened or endangered.
Process Essentials:
Categories of Protection
Categories of
Species
Not all species are created equal under the
ESA. Different categories of species receive different
protection. There are three types of species in the ESA listing
process:
Protection under the ESA also differs between
plants and animals, and between species listed with or without a
critical habitat designation.
Listed
Species: Endangered or Threatened
A "listed species"
is any species of fish, wildlife, or plant that has been
determined, through the full, formal ESA listing process, to be
either threatened or endangered. Endangered species receive the
full protections of the ESA—protection from "takings" and other
specific prohibited acts (like commercial trade in the species),
designations of critical habitat, requirements for Section 7
consultations, and recovery plans. Threatened species are
protected with critical habitat designations, Section 7
consultations, and recovery plans, but they are only protected
from takings and other prohibited acts if the USFWS or the NMFS
decides it is necessary to do so.
Proposed Species
A "proposed species" is any species
of fish, wildlife, or plant that has been formally proposed for
listing as either a threatened or endangered species under the
ESA. The USFWS or the NMFS publishes a proposal to list the
species—a "proposed rule"—in the Federal Register, prior to
making a final decision to list the species by publishing a
"final rule." Proposed species are not protected from "takings"
or other prohibited acts, but the USFWS or NMFS can propose
critical habitat for them. Federal agencies must follow the
Section 7 consultation process for proposed species in order to
avoid jeopardizing the species or destroying its proposed
critical habitat.
Candidate
Species
"Candidate species" are plants and animals on a
"waiting list" for threatened or endangered status. This means
the USFWS or NMFS has sufficient information to list these
species, but other, higher-priority species have to be listed
first—the agency has concluded that a listing is "warranted but
precluded." Candidate species are not legally protected under
the ESA, but USFWS and the NMFS encourage partnerships to
protect them because effective conservation might reverse their
decline and ultimately eliminate the need for ESA protection.
Plants and Animals
Under the ESA, plants and animals
have the same protections from most
"prohibited acts"—import-export, possession, transport, or
commercial dealing in the species. They have similar protections
from more direct harm: it is illegal to kill, harm, harass, or
even hunt (collectively called "take") listed animal species;
listed plants cannot be picked, dug up or destroyed. Animals are
protected from these actions on all lands, but plants are only
protected on federal lands unless there is a state law that also
protects them.
Species listed with or without a critical habitat
designation
Only about 12 percent of listed species have a
designated critical habitat area. According to the USFWS, a
critical habitat designation affords little extra protection to
most listed species. The agency has, therefore, used its limited
staff and funding to list more species rather than spending
resources on designating critical habitat. In some cases, the
agency decides not to designate critical habitat in order to
better protect the species. Sometimes a critical habitat
designation may do more harm than good because of public
hostility to the designation, because it makes a species like a
rare cactus easier to locate, or because of misconceptions about
the lack of value to the species of land outside the designated
critical area.
Having a critical habitat designation
only gives extra protection to a species if there is a federal
agency involved, and then only under certain circumstances. If
there is no federal agency involved in a project (for example,
when a landowner builds a housing development on private land
without federal funding or a federal permit), there is no extra
protection for the species if the land has been designated as
critical habitat. If a federal agency is involved (e.g., in
issuing a permit for the housing development), a critical
habitat designation may make a difference during the Section 7
consultation process.
In a Section 7 consultation, the
agency must consult with the USFWS or NMFS to ensure that its
actions will not jeopardize the survival of the species or
destroy or adversely modify critical habitat. In most places,
ensuring that its actions won't jeopardize survival of the plant
or animal, provides at least as much protection as protecting
the species' critical habitat. Protecting its critical habitat
could provide extra protection to the species if the land being
developed were currently "unoccupied" by the species, but were
nonetheless important to its future survival.
Process
Essentials: ESA Exceptions or Exemptions
Otherwise Prohibited Activities
The ESA provides strong protection for threatened and
endangered species, but a few exceptions to the law are
available through the USFWS, the NMFS, or the Endangered Species
Committee after following a formal application process. These
exceptions/exemptions allow individuals or agencies to do a
variety of things that are otherwise prohibited, like
transporting or even causing the death of a listed animal,
without fear of prosecution. The most common exceptions are for:
Scientific Purposes, Including Experimental Populations
The USFWS and the NMFS can issue permits for scientific purposes
or for projects that enhance the propagation or survival of the
species. For example, the agency might issue a permit for a
project designed to establish or maintain a new population of
wolf, lynx, or condor. While the intention of the recovery team
would be to better understand the species to help it survive,
biologists might harass an animal while trying to capture it and
might even inadvertently kill it in transport. Or the team might
need to intentionally kill it for a special medical test or
because an individual from an experimental population threatens
livestock.
Incidental takings
USFWS or
NMFS can issue permits to either federal agencies or private
landowners for taking a species (harming or killing it or
destroying its habitat) if the taking is "incidental to," and
not the purpose of, the action. To apply for this kind of
permit, the individual, corporation, or state or local
government has to prepare a Habitat Conservation Plan (HCP). The
permit applicant must describe actions he or she will take to
minimize and mitigate impacts to the species. The applicant must
also justify why there is no reasonable way of completely
avoiding a potential taking.
Endangered Species Committee
exemptions
Federal agencies have a special duty under the
ESA to make sure that their actions don't harm threatened or
endangered species or their critical habitat. If an agency
completes the Section 7 consultation process and is told that
its proposed action is likely to jeopardize a species or damage
its habitat, the agency can apply for an exemption that would
enable it to go ahead with its proposed action (e.g., building a
visitor center, operating a dam, or issuing just about any kind
of permit or license). The project permitee or licensee, or the
governor of the state affected by it, can also apply for the
exemption. The final decision on whether to grant an exemption
is made by the Endangered Species Committee (the so called "god
squad") after following an elaborate public process. The
seven-member committee includes several cabinet members, the
chairman of the Council on Environmental Quality (CEQ), and
other high-level appointees.
When granting an exemption, the committee must
develop reasonable mitigation and enhancement measures to
minimize the negative impacts of the agency's action. The
committee has been convened only three times—for the snail
darter fish in Tennessee, the spotted owl in Oregon and the
whooping crane in Nebraska."
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