THE ENDANGERED SPECIES ACT

The ESA is the federal statute that creates the authority to designate species as threatened or endangered and governs the activities that might affect those species (Endangered Species Act 16 U.S.C. §§ 1531–1544). The ESA is administered and enforced by two federal agencies that have jurisdiction for species in different ecosystems. FWS, in the Department of the Interior, typically is responsible for freshwater and terrestrial species, and NMFS, in the Department of Commerce, typically is responsible for marine and anadromous species (species that migrate from marine to freshwater environments to spawn, such as Pacific salmonids). The two agencies—referred to collectively as the Services and individually as the Service—are responsible for listing species as endangered or threatened under the ESA.

An endangered species is defined as a “species which is in danger of extinction throughout all or a significant portion of its range” [16 U.S.C. § 1532 (6)]. A threatened species is defined as a species that is “likely to become… endangered…within the foreseeable future throughout all or a significant portion of its range” [§ 1532 (20)]. Subspecies of “fish or wildlife or plants and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature” [§ 1532 (16)] are also included in the ESA’s definition of species and thus can be listed. In this report, the terms endangered species, threatened species, and listed species can refer to subspecies or distinct population segments as defined by the ESA. Once a species is listed, the ESA requires that the Services designate critical habitat for each listed species. As of October 15, 2012, critical habitat had been designated for 653 of the 1,434 listed species that occur in the United States.

Endangered species are subject to several protections under the ESA, and threatened species are for the most part subject to the same protections. ESA Section 9 prohibits the “take” of listed species. The statute defines take as “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct” [16 U.S.C. § 1532 (19)]. The Services have further defined harm to include acts that involve substantial habitat modification or degradation that kills or injures listed species by substantially impairing essential behavior patterns, including breeding, feeding, and sheltering. That broad interpretation of harm has been upheld by the US Supreme Court [Babbitt v Sweet Home Chapter of Communities for a Greater Oregon, 515 U.S. 687, 698 (1995)]. The ESA authorizes the Services to assess penalties for unauthorized take of listed species and authorizes courts to impose injunctions to prevent a take from occurring or continuing. A federal agency (such as EPA) is liable for its actions, including, at least according to one court, the issuance of FIFRA registrations that result in a take of a listed species [Defenders of Wildlife v Administrator, EPA, 882 F. 2d 1294 (8th Cir. 1989)].

Section 7 of the ESA includes another important provision that specifically applies to actions of federal agencies. It mandates that federal agencies use their existing authorities to conserve endangered and threatened species and



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