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Chapter 1
Introduction
Biological diversity-the variety of living things has been of interest for centuries. In recent
years, it has become apparent that human activities are causing the loss of biological diversity at an
increasing rate: the current rate of extinctions appears to be among the highest in the fossil record.
Although nonhuman organisms can cause extinctions of other species to a small degree, no other
organisms produce such large effects over such wide areas as humans do ant! have done-at least
locally for thousands of years. Habitat alteration and degradation are probably the most severe effects
humans have on other species toclay.
The Endangered Species Act (ESA) of 1973 (16 U.S.C. §§1531-1544 (19881) is a far-reaching
law that provides protection for threatened and endangered species and their habitats. Because of
recent controversies and because the act is being considered! for reauthorization, it has received much
attention recently, which led to the request for this study by the National Research Council (NRC).
HISTORY
The ESA and its subsequent amendments are the latest in a long line of federal legislation
designed to protect wildlife. Perhaps the first of the notable ancestors of the ESA was the Lacey Act of
1900 (Ch. 553 §l,31 Stat. iS7 (1900) (codified as amended at 16 U.S.C. §70l, 3371-3378 and IS
U.S.C. §42 (1988~. It prohibited interstate commerce of animals killed in violation of state game laws
and stated that any dead animals taken across state boundaries were subject to the laws of the state into
which they were imported; it also required the secretary of agriculture to take all measures to ensure
the preservation, introduction, distribution, and restoration of game and wild birds. The Black Bass
Act of 1926 (Ch. 346, 44 Stat. 576 (coclified at 16 U.S.C. §§851-856 (1976) (repealed 19811) was
similar in concept. The Migratory Bird Treaty Act of 1918 (16 U.S.C. §§703-712 (1988~) prohibited
the taking of certain birds protected by convention, ant! the Migratory Bird Conservation Act of 1929
(16 U.S.C. §§715-715s (1988~) proviclect acquisition authority for wildlife refuges and sanctuaries. The
Endangered Species Preservation Act of 1966 (Pub. L. No. 89-669, 80 Stat. 926 (19661) directed the
secretary of the interior to conserve, protect, restore, and propagate selected species of native fish and
wildlife; this act provided authority for the acquisition of land for habitat protection and charged the
secretary to determine whether a species was threatened with extinction. In 1969, the Endangered
Species Conservation Act (Pub. L. No. 91-135, 83 Stat. 275 (19891) supplemented the Endangered
Species Preservation Act by authorizing the secretary to promulgate a list of species or subspecies of
fish and wildlife threatened with worldwide extinction and to prohibit their importation into the United
States. It also amended and strengthened earlier acts.
In 1972, Congress passed the first of two broad, powerful acts that protect wildlife the Marine
Mammal Protection Act (16 U.S.C. §§1361-1407 (1988~. That act prohibited the taking or
importation of any marine mammal, with exceptions available under certain complex conditions. It
also provided for a determination of "depleted" status; clepleted stocks or species were afforded
stronger protection than others. And in 1973, Congress passed the ESA the broadest and most
powerful wilcllife-protection act in U.S. history (Bean, 19831. The act defines three crucial categories:
"endangered" species, "threatened" species, and "critical" habitats. ("Subspecies" of plants and
13
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14
Science and the Endangered Species Act
animals and "distinct population segments" of vertebrates can also qualify for protection as species.)
Endangered species and their critical habitats receive extremely strong protection; it is illegal to take
any encIangerec! species of animal, and plants in some circumstances, in the United States, its territorial
waters, or the high seas. The term "to take" is (lefinect as "to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or attempt to engage in any such conduct." In acI`lition to that
direct prohibition, Section 7 of the act prohibits any federal action likely to jeopardize the future of any
endangered species or to result in destruction or adverse modification of designated critical habitat. The
~ · .~ , · r · , · ~ . · i'
act also requires the secretaries of Interior and commerce to use programs In their agencies In
furtherance of the act and requires other agencies to "utilize their authorities in furtherance of the
purposes of this [act] by carrying out programs for the conservation of endangered species and
threatened species." Amendments to the ESA in 1978 and later established the requirement for
recovery plans to be prepared by the U.S. Fish ant] Wildlife Service for inland and certain marine
species and the National Marine Fisheries Service for other marine species and anaciromous fishes.
Those plans are required to include specific population goals, timetables, and estimated costs.
The power of the ESA lies with its stringent mandates constraining the actions of both private
parties and public agencies. Once a species is listed as enciangered or threatened in accordance with
the ESA, it is sheltered uncler the act's protective umbrella, an impressive and far-reaching array of
provisions (Greenwalt, 19881. Critical habitat must be designated unless overriding concerns for the
species' conservation prevail (Section 4 of the ESA). Recovery plans designed to bring the species to
the point where it no longer needs the act's protections are required unless they will not promote the
conservation of the species (Section 41. Funds for habitat acquisition and cooperative state programs
are authorized (Sections 5 and 6~. Federal agencies must ensure that their actions are not likely to
jeopardize the continued existence of listen} species nor adversely modify their critical habitats (Section
7(a)~211. They are also required to use their authorities to promote endangered species conservation
(Section 7a.
Taking endangered species and, by regulation, threatened species, is prohibited with certain
exceptions (Section 91. For example, listed plants are protected only on federal lands unless their
taking on nonfederal lands violates state law. The act and regulations that implement it define taking
very broadly to cover any activities causing harm to listed species, including habitat destruction if it
interferes with behavior patterns essential to species survival and reproduction (however, the extent of
this last provision will be decided by the Supreme Court, which has agreed to review a case on the
matter)). Limited taking may be allowed under federal permits for research purposes. Taking that
occurs incidentally to otherwise lawful actions of federal agencies is legal if the federal a~encv or its
, ,, in, - - in, - - , -
perm~ttee complies With terms and conditions found In the biological opinion Issued under Section
7(a)~21. Unless nonfederal actions trigger a Section 7 consultation, listed species may be taken only
under authority of a Section 10(a)~11(B) incidental take permit. To obtain the permit, an applicant must
submit a habitat conservation plan, reduce and avoid take within feasible limits, mitigate for any
unavoidable take, show capability to fund the plan's conservation measures, and meet any other
conditions imposed by the secretary of Interior or of Commerce.
The Section 7 prohibition of any federal action likely to jeopardize the continued existence of
an endangered or threatened species or to destroy or adversely modify its critical habitat is the source
of much of the act's power. It has led to controversies, the first of which concerned the Tellico Dam
on the Little Tennessee River. That dam would have flooded all the known habitat of the newly
discovered snail darter (Percina tanasi). The Supreme Court ruled 6-3 in 1978 (TVA v. Hill, 437 U.S.
~ See Chapter 4.
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Introduction
153 (1978~) that Section 7 prohibited the closing of the gates of the dam. Chief Justice Burger wrote
that one "would be hard pressed to find a statutory provision whose terms were any plainer than those
in §7". Although Congress overrules} itself in exempting the Tellico Dam from the provisions of the
ESA, and other natural populations of the snail Carter were subsequently found, an increasing number
of controversies have arisen. A recent controversy, addressee! by the National Research Council,
involved sea turtles and shrimpers (NRC, 19901. A current controversy involves the northern
subspecies of the spotted owl (Strix occidentalis caurina) and the timber industry in the Pacific
Northwest. Another has the potential to intensify if more than 100 stocks of Pacific salmon
(Oncorhynchus species) (see NRC, 1995) and the wiclespreac! but rare bull trout (Salvelinus
confluentus) proposed for listing beome listed as endangered or threatened. (As of January 1995, four
stocks of Pacific salmon were listed as endangered in the Pacific Northwest and California.) These
fishes and their habitats are user! for various economic, social, and recreational activities that adversely
affect their survival in the western United States.
As human activities continue to affect species populations and their habitats, two major
questions arise concerning the ESA. First, is the act soundly based in science as an effective method of
protecting endangered species and their habitats? Congress intencled the act to provide a mechanism
for reversing the endangered or threatened status of species; that is why the processes of "delisting"
species and upgrading them from endangered to threatened are in the act. The second question
concerns the desired public policy with respect to protecting endangered species ant! their habitats, i.e.,
what are the costs and benefits, ant! to what extent is the public willing to incur the costs? This report
focuses on the first question.
To address the first question, we return to the objectives of the ESA as described in the act.
Section 2(b) states that the act's purposes are "to provide a means whereby the ecosystems upon which
endangered species and threatened species depend may be conserved, to provide a program for the
conservation of such endangered species ant} threatened species, ant} to take such steps as may be
appropriate to achieve the purposes of the treaties and conventions set forth in subsection (a) of this
section. "
1 ~
THE PRESENT STUDY
In November of 1991, Senator Mark HatfielcI, Representative Thomas Foley, ant!
Representative Gerry Studds wrote to the Chairman of the National Research Council requesting a
study of "several issues related to the Enclangered Species Act," clearly focusing on scientific matters
related to the act. After receiving funding from the U.S. Fish and Wildlife Service in June 1992, the
NRC's Board on Environmental Studies and Toxicology convened the Committee on Scientific Issues
in the Endangered Species Act. The committee's membership (see Appendix C) includes expertise in
ecology; systematics; population genetics; wildlife management; risk and decision analysis; the legal,
legislative, and administrative history of the Endangered Species Act; economics; and the
implementation of the ESA from public and private perspectives. The committee's statement of task is
based very closely on the letter of request from the three members of Congress (Appendix A).
The committee was asked to review the following issues and evaluate how they relate to the
overall purposes of the Enciangered Species Act:
· Definition of species. The committee was asked to review how the terns species has been
used to implement the ESA, and what taxonomic units would best serve the purposes of the act.
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16
Science and the Endangered Species Act
· Conservation conflicts between species. The committee was asked how frequent or severe
conflicting conservation needs are when more than one species in a geographic area are listed as
endangered or threatened uncler the ESA, and to make recommendations to resolve these conflicts.
· Role of habitat conservation. The committee was asked to evaluate the role of habitat
protection in the conservation of species and to review the relationship between habitat-protection and
other requirements of the act.
· Recovery planning. The committee was asked to review the role of recovery planning
uncler the act and to consider how recovery planning could better contribute to the purposes of the act.
· Risk. The committee was asker! to review the role of risk in decisions made under the ESA
(such as what constitues sufficient "endangerment" to require listing of a species, what constitutes
jeopardy, adverse modifications, reasonable and prudent alternatives, taking, conservation, and
recovery). It was also asked to review whether different degrees of risk ought to apply to different
types of decisions (e.g., should an endangered species be at greater risk than a threatened species to
justify listing?) and to identify practical methods for assessing risk to achieve the purposes of the act
better while providing flexibility in appropriate circumstances to accommodate other objectives as well.
· Issues of timing. The committee was asked to review the timing of key decisions uncler the
ESA ant! to consider ways of improving timing under the act to serve its purposes better while
minimizing otherwise unintended consequences.
The committee met in Washington, D.C., and Irvine, California, where it received briefings
from federal agencies, congressional staff, Senator Mark Hatfield, Secretary of the Interior Bruce
Babbitt, members of private conservation organizations and of private industry, and other experts. It
also made use of many sources of information, including previous NRC reports; government
documents and studies done by other agencies; and relevant publisher! literature from scientific
journals, symposia, and books.
The report begins with a description of the processes of extinction as they have occurred
thrn,~c~h ~P~l~c~irn1 time try the. nr~.nt This is followed hv analyses of the scientific underpinnings of
the ESA the species concept, habitat and its role in species conservation, conservation conflicts
between species, the assessment of extinction risks, decision-making under uncertainty, and those areas
where lack of scientific knowledge or basic uncertainties need to be taken into account. Timing issues,
mostly related to recovery and designation of critical habitat, are discussed in Chapter 4. These
analyses provide the bases for the report's conclusions and recommendations.
~ v ~4 ~ ~ ~ 4_~4 ~-^~ ~^ ~ ~ · ~ ~
REFERENCES
Bean, M. J. 1983. The Evolution of National Wildlife Law. Second Edition. Praeger Publishers,
New York.
Greenawalt, L. A. 1988. Reflections on the power ant! potential of the Endangered Species Act.
Endangered Species Update 5:7-9.
NRC (National Research Council). 1990. Decline of the Sea Turtles: Causes and Prevention.
National Academy Press, Washington, D.C.
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Introduction
NRC (National Research Council). 1995. Upstream: Salmon and Society in the Pacific Northwest.
National Academy Press, Washington, D.C.
17
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Representative terms from entire chapter:
species act
