How the Endangered Species Act Works

Listing

The decision to list a species, subspecies, or population is made either by the Secretary of the Interior via the U.S. Fish and Wildlife Service, or by the Secretary of Commerce via the NOAA Fisheries (Wilcove et. al.). Individuals or interest groups may also submit a petition to either of these organizations, who will then conduct appropriate scientific research. The Act permits them to list a species for any one of five reasons (see right).

Species may either be listed as "threatened" or "endangered." Threatened species is "any species which is likely to become an endangered species within a foreseeable future throughout all or a significant portion of its range"; an endangered species "is any species which is in danger of extinction throughout all or a significant portion of its range" (U.S. Fish and Wildlife Service 1988).

If either of the USFW or the NOAA Fisheries decides the listing is warranted, an intent to do so is published in the Federal Register and in local news sources. The notice states the reason for listing and solicits public opinion. The final listing decision must be made within a year of publishing the proposal, but under certain circumstances, the initial deadline may be extended up to six months. According to the law, the final decision must be made "solely on the basis of the best scientific and commercial data." A notice of the final decision is posted in the Federal Register, and the rationale of the decision is one again given.

According to Greenwald, the annual rate of listing is strongly correlated with citizen involvement: "as agency discretion decreases and citizen involvement increases (i.e. filing of petitions and lawsuits) the rate of listing increases."

Recovery Plans and Delisting

The USFWS and the NOAA Fisheries are required to create and present a Recovery Plan, presenting the goals, tasks required, likely costs and estimated timeline to recover endangered species. According to Greenwald et al, although the Endangered Species Act does not specify when a recovery plan must be completed, the USFW's policy is three years. The average time to completion is about six years. The definition of "recovery" and procedural guidelines for developing recovery plans are left to the discretion of the Secretary of the Interior. According to the Act, recovery is one of three reasons for which a species may be removed the list; therefore, "recovery plans must contain criteria that, when achieved, will result in delisting by accounting for all the threats that caused a species to initially decline and require listing in the first place" (Kline 2001).

In compliance with USFWS regulations, the same criteria for listing the species must be taken into consideration when delisting the species. This means that a species can only be delisted due to recovery if the factors that led to its listing no longer occur. With regard to the aforementioned Section 4 (listing and delisting decisions must be made with the "best scientific and commercial data available"), the USFWS may not take "possible economic or other aspects" into consideration.

Again, the Endangered Species Act also does not explicitly define "recovery" except as the "improvement in the status of a listed species to the point at which listing in so longer appropriate under the criteria set out in Section 4(a)(1) of the Act." If a species meets the criteria according to data obtained using "the best available scientific evidence," the USFWS may delist the species. The complicated part is determining what the best scientific evidence is. The original Endangered Species Act of 1973 had no specific language for recovery plans and only vague goals and directives that were difficult to enforce. In 1982 and 1988, Congress amended the Act to mitigate these problems. Now, each recovery plan must include "site-specific management actions" necessary to achieve recovery; "objective measurable criteria” that, when met, results in delisting; and estimates the time and cost required to successfully carry out the plan's intermediate steps and achieve its final goal. In addition to requiring implementation of recovery plans, the Act also includes requirements for continued monitoring of a species' status after its listing. The Secretary is required to review all listed species at least one time every five years to determine whether to remove or change the status of a species.

Critical Habitat

The original Endangered Species Act of 1973 recognized that habitat loss is the main threat to imperiled species, and it allowed the USFWS and the NOAA Fisheries to designate specific areas as "critical habitat" zones. Instead of focusing on preventing extinction, the critical habitat clause is one of the few provisions of the Endangered Species Act that focuses on species recovery. Congress amended the Act in 1978 to require the publication of critical habitat maps, except for those species that would be harmed by such maps. According to Section 3.5.A., critical habitats are required to contain "all areas essential to the conservation" of the intended species, be the areas public or private. The Act, in Section 4.b. 2. specifies that the USFWS and the NOAA Fisheries may exclude areas if they determine the economic or other costs exceed the benefit. There are no specifications about how costs and benefits should be determined.

In Section 7.a. 2., the Act states that federal agencies are prohibited from enacting, funding, or authorizing actions that "adversely modify" critical habitats; all large-scale development, logging and mining projects on private and state land require a permit, which generally puts them under critical habitat regulations (Greenwald et al). Although the ESA requires critical habitat to be designated at the time of listing or within one year of listing, most designations come much later (Suckling et al). In 1986, the Reagan Administration issued a regulation limiting the protective status of critical habitat, and, as a result, very few critical habitats were designated between 1986 and the late 1990s. Later, court orders required that the USFWS and NOAA Fisheries designate critical habitat, invalidated the Reagan regulations. In all, however, only 163 of the 1,262 listed species have critical habitat designated (Curtis et al).

Habitat Conservation Plans

During its reauthorization in 1982, Congress amended the Endangered Species Act to provide landowners with incentives to participate in endangered species conservation. Previously, Congress decided that federal agencies that received favorable biological opinions could incidentally "take" listed species, and now needed a way to allow for a similar action for private landowners. A landowner, they decided, could incidentally take a species if s/he developed a Habitat Conservation Plan.

According to Curtis and Davison, "HCPs are intended to minimize take of listed species caused incidentally by non-federal activities and provide measures to mitigate the effects of that take and ensure that it does not appreciably reduce the likelihood of survival and recovery of these species." Corporations, private landowners or state and local governments who want to clear land, cut timber or otherwise alter and/or harm habitat that may incidentally lead to the taking of an endangered species must first obtain a permit by developing a Habitat Conservation Plan.

Criteria for species listing:

present or threatened destruction of habitat
overutilization for commercial, recreational, scientific, or educational purposes
losses due to disease or predation
the inadequacies of existing laws and regulations to protect the organism in question
"other natural or man-made factors affecting its continuing existence" (U.S. Fish and Wildlife Service 1988)

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