Appendix A
Endangered Species Act Basics
As part of the set of environmental laws enacted in the 1970s, the United States Congress passed and President Nixon signed the Endangered Species Act (ESA) in 1973. This statute is widely considered to embody the most stringent provisions of any wildlife protection law in the United States (Bean 1983). Its strength derives from the affirmative duty it imposes on federal agencies to protect listed species, its prohibitions against actions that kill, injure, or harm them, and the substantial penalties it imposes on violators.
The ESA is implemented by the Departments of Interior and Commerce through regulatory programs administered by the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS; collectively, the Services). The broad sweep of its protections comes to bear as a result of the initial regulatory action under Section 4 that determines if a species should be listed as threatened or endangered (NRC 1995). The term “species” has a broader meaning under the ESA than in its accepted scientific definition. In addition to taxonomic species, the ESA allows for the listing of any taxonomically described subspecies as well as any distinct population segment (DPS) of vertebrate animals. The policy of FWS for listing distinct population segments allows the agency broad discretion in its interpretation of distinctness criteria. Biological distinctness is not a requisite factor, as the agency is free to use geographical and political boundaries to describe a “species” eligible for listing.
A species is considered endangered if it is “in danger of extinction throughout all or a significant portion” of its range, while a threatened
species, although not endangered, is likely to become so in the foreseeable future. As a practical matter, threatened species are often listed so that the ESA’s protective measures may reduce their chance of declining further into endangered status. As of April 2000, 960 species were listed as endangered and 270 were classed as threatened in the United States.
The listing action is a regulatory process that is usually initiated by the Services, although the agencies must also take into account petitions for listing that may be submitted by private parties. The Services maintain a priority list of species that have enough supporting information to warrant a listing decision, and they are required to review the list of protected species every 5 years to determine if any changes in status should be made. Status changes (delisting or reclassification) also are regulatory actions. The listing process includes provisions for public review and comment to solicit input about the species’ status, the nature and degree of threat, and protective actions that may be needed or are in place. A species may be listed if it is considered threatened or endangered for one or more of the following reasons: habitat reduction, overharvesting, disease or predation, absence of adequate protective measures, and other unspecified factors that may contribute to its imperiled condition.
Listing decisions are to be made solely on the basis of the best scientific and commercial information available at the time, without regard to political or economic interests. The Services must also consider protective measures that are in place by government agencies. For some time, there has been an extensive backlog of species whose listing action is pending because of funding constraints (Doremus 2000). Recent legal decisions that require the FWS to take action on many species that are eligible for listing have also added to the backlog. The result of this hourglass effect on the pace of listing decisions is that many species do not get listed until their populations are substantially reduced. Listing of Atlantic salmon that were designated as a DPS in eight Maine rivers is a recent example.
In response to congressional direction, the Services have adopted priority-setting guidelines to help manage the backlog. FWS guidelines consider the magnitude of threat, the imminence of the threats, and the taxonomic uniqueness of the species. Taxonomic uniqueness is applied hierarchically; first priority is given to monospecific genera, followed by full species, and then subspecies. NMFS guidelines do not include taxonomic factors, but their listing regulations invoke the concept of “evolutionary significant unit” (NRC 1995, Waples 1991b) to define eligible entities for listing below the species level.
At the time of listing, the Services are required to designate critical habitat to the extent that necessary information is available and it is prudent to do so. Critical habitat is the area within the species’ range that contains those physical or biological features essential to the conservation
of the species and that may require special management considerations or protection. Designation of critical habitat is the only decision under the ESA that must consider economic factors. Although it is a statutory requirement for the Services to designate critical habitat, in 1999 the FWS reported that it had designated critical habitat for only 9% of the species under its jurisdiction (Doremus 2000). To justify their lapse, the Services have asserted that critical habitat confers little additional protective advantage beyond the listing action itself. But their resistance is being overturned as a result of losing several recent legal decisions, and they recently have accelerated the rate of critical habitat determinations.
Section 4 of the ESA also provides for the Services to develop and implement recovery plans for listed species. These plans are ultimately designed to improve the species’ status to the level where protections are no longer needed and upgrading or delisting may be warranted. Recovery plans may be prepared within either the FWS or the NMFS or they may be collaborative efforts involving outside experts. They are expected to contain measurable recovery criteria, such as population size and survival rate, replacement or recruitment rate, amount of available and occupied habitat, habitat in protected status, number and distribution of discreet populations, measures to alleviate threats, and other protective and conservation measures to be undertaken by other state and federal agencies. They also need to specify an intended schedule for needed recovery actions and to forecast projected costs. A recovery team has been formed to develop the recovery plan for Atlantic salmon but is still in the early stages of its deliberations. The earlier National Research Council (NRC 1995) report Science and the Endangered Species Act should provide guidance on crafting effective recovery plans.
Section 6 provides for revenue sharing with the states to assist them with implementation of conservation and recovery actions. The Services depend on local activities to complement theirs, and revenue sharing enhances the cooperation needed to carry out coordinated efforts.
The major protective features of the ESA are in Sections 7 and 9. Section 7 mandates all federal agencies to utilize their authorities to promote the conservation of listed species. It also prohibits actions by federal agencies to fund, authorize, or carry out activities that are likely to jeopardize the continued existence of listed species or result in adverse modification of their critical habitat. To determine whether jeopardy may result, the responsible federal agency engages in a three-stage consultation process with the Services. Consultation starts with a request for information about any species that may be affected by its proposed action. The second step is for the action agency to prepare a biological assessment that details the likely effect of the proposed action on listed species. The biological assessment initiates a formal consultation with one or both of the Ser-
vices, the result of which is a biological opinion by the Services that must specify reasonable and prudent alternatives to the proposed action if jeopardy or adverse modification of critical habitat is likely. This Section 7 consultation process must be conducted according to well-defined regulatory procedures. It must also make use of the best scientific and commercial information available at the time. To expedite the process the regulations also allow for informal consultation and early consultation.
Section 7 will come into play for federal actions that may affect Atlantic salmon on DPS rivers. Issuance of Section 404 permits by the U.S. Army Corps of Engineers for dredge and fill activities in wetlands is the most likely trigger. Renewal of federal permits for dam operators, logging activities in national forests, research and habitat improvement measures funded or carried out by the National Oceanographic and Atmospheric Administration (NOAA), and authorization for activities that might impair navigation, such as aquaculture facilities, are also likely to undergo Section 7 consultation.
Section 9 is the part of the ESA that prohibits the taking of or commerce in listed species. “Take” is very broadly defined to include harassment or harm to the species in addition to shooting, trapping, collecting, and other actions. The somewhat vague concept of harm has been legally interpreted to include habitat modification to the extent that it kills or injures listed wildlife or interferes with their essential behavioral functions such as feeding, nesting, and breeding. Taking of endangered species is expressly prohibited in Section 9; that section allows for more flexibility in regulations covering take of threatened species. As the Services’ regulatory programs are administered, the distinction between threatened and endangered species is almost moot except for a few species. Listed plants are not protected on private lands unless their take is banned under state law. In the case of Atlantic salmon, the take prohibition reinforces the earlier state-imposed ban on take—including catchand-release angling—in DPS rivers.
Because the ban on taking is almost absolute, the Services also administer programs that allow for waivers of the taking prohibitions. Before “incidental take” provisions were included in the 1982 amendments to the ESA, actions that might cause take at a level below the jeopardy threshold could not proceed. Incidental take is defined as take that is incidental to but not the purpose of an otherwise lawful action. For federal actions covered by Section 7, the consulting service includes an incidental take statement in the biological opinion. The statement specifies reasonable and prudent measures that must be complied with in order for a certain level of take to be allowed. For nonfederal actions, a separate permitting process is available under Section 10. An applicant must prepare a Habitat Conservation Plan (HCP) in accordance with guidelines issued by the
Services that spells out the nature and extent of the proposed activity, the status of listed species potentially subject to take, and conservation measures to mitigate or offset the effects of the take. Issuance of the incidental take permit depends on Service findings that the taking will be minimized and mitigated to the maximum extent practicable, the taking will not result in jeopardy, and that adequate funding is available to carry out the measures called for in the HCP.
HCPs are becoming more widely used as the Services have developed guidelines to assist with their development. They are viewed skeptically by some environmentalists who question whether the conservation measures adequately protect against and mitigate for taking of protected species (Thomas 2001). Landowners are also often frustrated because of the bureaucratic process involved and inconsistent implementation of the guidelines.
In an effort to reduce the tension and uncertainty of the administrative process surrounding HCPs, the FWS has recently made greater use of specific provisions in the ESA that provide greater flexibility in its implementation. Reintroduced species can be designated as “experimental populations” according to Section 10(j), which provides for treating an experimental population as threatened even if its donor population is endangered. The FWS has also adopted several innovative measures designed to provide greater assurance to landowners that the HCP process protects their interests as well as the species’. The flexibility allowed in Section 4(d) for species protected under state law has enabled adoption of regional natural community conservation plans in California that spell out permitted and prohibited activities that could result in take of threatened species listed under this statutory provision. The “no surprises policy” adopted by the FWS has provided greater assurance for holders of incidental take permits that the conditions agreed to at the time of issuance will remain in place over the life of the permit. HCPs may cover unlisted species so that they are incorporated in the permit if they are listed in the future, provided that the conservation measures specified are sufficient to protect them adequately. Finally, the “safe harbors policy” adopted by the FWS protects landowners who allow listed species to colonize currently unoccupied habitat on their land by authorizing them to carry out certain preexisting activities without an HCP.
HCPs could have a role to play in the conservation and recovery of Atlantic salmon in Maine rivers. The need for private landowners to obtain incidental taking permits depends on the enforcement policy and posture of the Services. Most land uses that may affect Atlantic salmon, such as logging and farming in the watershed, do not cause direct mortality. However, if the Services show that the uses appreciably reduce the likelihood of survival or reproduction as a result of habitat modification
