How it works
Recovery Plans and Delisting
Habitat Conservation Plans
Controversy: Is the ESA Effective?
Criticism of the ESA--from both sides
Is the ESA biologically unsound?
Links and References
How the Endangered Species Act Works
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.
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
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.
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
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
for commercial, recreational, scientific, or educational purposes
- losses due to
disease or predation
inadequacies of existing laws and regulations to protect the
organism in question
natural or man-made factors affecting its continuing existence"
(U.S. Fish and Wildlife Service 1988)