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Brief History of Species Protection Laws: Historical Background: Federal efforts to
protect endangered species date as far back as the twentieth century. The rapid
decline of the passenger pigeon and other game birds prompted Congress to pass the first
federal wildlife law: the Lacey Act of 1900. This law allowed for the
"preservation, distribution, introduction and restoration of game birds and other
wild birds." Additional steps were taken to protect the endangered species with
the passing of the Migratory Bird Treaty Act of 1918 and the Migratory Bird Conservation
Act of 1929. By the early 1960’s, political and public awareness grew
concerning the growing problem of endangered species as the Department of the Interior
published "Redbook—Rare and Endangered Fish and Wildlife of the United
States—Preliminary Draft".
Discovering a need for a more comprehensive
endangered species legislation, Congress passed the Endangered Species Protection Act of
1966. Although, it espoused the lofty goal of "conserving, protecting,
restoring and propagating selected species of native fish and wildlife," the act had
many weaknesses. This act was soon replaced by later editions, and continues to be
amended today.
The Endangered
Species Act of 1973 (ESA) has become the primary instrument of
federal efforts to protect endangered species in the United States. The purposes of
the Endangered Species Act included conservation of the ecosystem that species species
depend on, and conservation of endangered and threatened species. The four main
commands of the ESA - (1) to conserve listed species, (2) to avoid jeopardization, (3) to
avoid destruction of critical habitat, (4) and to avoid taking—are now firmly
entrenched in public natural resources law. In addition, protection for endangered
species can be found in various other federal statutes (such as, the Marine Mammal
Protection Act of 1976, Conservation Programs on Military Land (1988), Institute of
Tropical Forestry Act (1990) and Driftnet Act Amendments of 1990 among others) and in
numerous international treaties (such as the Convention on International Trade in
Endangered Species of Wild Fauna and Flora) along with many state and law and regulations.
Key features of the Endangered
Species Act
- Listing Procedure: The
ESA provides a formal listing method for species that are determined to be
"threatened" or "endangered" based on the best scientific and/or
commercial data available. Section 4 grants the U.S. Fish and Wildlife Service (FWS)
and the National Marine Fisheries Service (NWFS) shared jurisdiction over implementation
of the ESA. The listing process begins when an individual or group petitions either
office to list a species. After a petition is received, the agencies have 90 days to
decide whether the petition has sufficient information/evidence to indicate that a listing
may be justified. To list a species, the agencies consider "threats to habitat,
overutilization, disease, predation, inadequacy of current protection, and any other
factors affecting the petitioned species’ existence" before any decision is
made. Any determinations are "solely [made] on the basis of the best scientific
and commercial data available" and not so much on the economic impact of their
listings. Two listing categories exist:
- Endangered
– The species is in danger of extinction throughout all or a significant
portion of its range.
- Threatened
– The species is likely to become endangered in the foreseeable future.
- Protection - The
ESA provides for the protection for the listed species. Once a species or group is
formally listed, the species is entitled to numerous protections. For example,
Section 9 prohibits the taking of listed species, where takings are
defined as, "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in any such conduct." This includes any act
that significantly modifies habitat or involves degradation where it actually kills or
injures wildlife by significantly impairing essential behavioral patterns like breeding,
feeding or sheltering. Section 9 prohibits the "import, export, possession,
delivery, receipt, transport, sale and offer for sale of any endangered fish or wildlife,
whether dead or alive (including all parts, like eggs, offspring etc.). The Section
9 provisions apply to all federal agencies, individual people, private agencies and
organizations.
- Subsequent amendments specify the conditions
under which species can be "taken".
- 1982 amendment allows the Fish and Wildlife
Service to issue an "incidental take" permit to non-federal applicants if an
approved Habitat Conservation Plan is presented.
- Habitat Conservation Plans - HCPs can potentially offer pro-active conservation
benefits such as protection of unoccupied habitats of listed species, protection of
unlisted species, and active habitat management. Additionally, due to the fact that HCPs
are voluntary and initiated by the landowner, they have a greater potential for
landowner's having a sincere interest in conservation efforts in comparison to traditional
enforcement mechanisms. HCPs may be developed for multiple landowners in a region,
and as a result have the potential for stimulating comprehensive solutions for the entire
ecosystem. To view a Habitat Conservation fact sheet produced by the National
Audubon Society click here.
An HCP must specify:
1)Impacts likely to result from proposed
taking of federally listed species;
2) Measures the applicant will undertake to
monitor, minimize, and mitigate such impacts; the funding that will be made available to
undertake such measures; and the procedures to deal with unforeseen circumstances;
3) Alternative actions the applicant
considered that would not result in take, and the reasons why such alternatives are not
being utilized; and
4) Additional measures the Service may
require as necessary or appropriate for the purposes of the conservation plan, such as an
Implementing Agreement that spells out the roles and responsibilities of all parties.
- Recovery Plans - The ultimate purpose of the Act is to save species
from extinction, where the service’s goal is to recover species such that they are
removed from the list. This is accomplished through a variety of tools, including recovery
planning, consultation, and scientific and incidental take permits. Listed species are
assigned recovery tasks/plans based on priority. They are classified based tasks necessary
to prevent extinction (priority 1), avoid significant further decline (priority 2), or
other activities necessary to achieve recovery (priority 3). Once recovery tasks are
assigned and a healthy population is achieved, monitoring of recovered species is
continued under State programs funded by section 6 of ESA. Species recovery is a gradual
process, taking several generations of successful reproduction to achieve before a
sufficient number of individuals are present to comprise one or more viable
(self-perpetuating) populations. This may take years, or even decades (depending on
current socio-economic, political and consensus views) in many cases, as it is often
difficult to reverse all the threats affecting the species for the past decades, if not
centuries.
- Consultation -
All agencies, especially Federal must consult with the appropriate Service when any
activity permitted, funded or conducted by that agency may affect a listed species or its
designated critical habitat, or is likely to jeopardize proposed species or adversely
modify proposed critical habitat. To prevent any potential harm the service conducts
several types of consultations on Federal agency activities, including informal, formal,
early and emergency consultations for listed species or designated critical habitats, and
informal and formal conferences for proposed species or proposed critical
habitats—all depending on the critical nature of the matter at hand.
- Incidental Take Permit
- Application for an incidental take permit is voluntary and is subject to a number of
requirements, including preparation by the permit applicant of a "Habitat
Conservation Plan (HCP)".
- Provides enforcement provisions
- Specifies Federal Agencies in charge of
implementing the ESA:
- Provided provisions for assisting States and
private landowners with their endangered species conservation efforts.
- The Secretary of Interior can impose civil
penalties of up to 25,000$ per taking
- The Attorney General can bring criminal
charges and courts may impose criminal penalties of up to $50,000 and one year in prison
- Authorizes the Secretary of Interior and
Agriculture to purchase habitat for listed species.
- The ESA prohibits Federal (& private)
agencies from engaging in actions that would jeopardize listed species or
their critical habitat.
- The ESA allows federal agencies to create
cooperative programs with the states.
Is the Endangered
Species Act working?
This issue is open to debate. The
listing of a species often depends on political factors more than biological factors.
A species may be endangered in fact, and yet the Fish and Wildlife Service may not
list the species. The agency lacks an appropriate budget to list species, identify
critical habitats, develop recovery plans, and begin taking action. For these
reasons, and many others, the private and nonprofit sectors have become involved in the
protection of species.
Sources: Clark 1996, Carriker
and LaForest 1996, and http://www.fws.gov/r9endspp/esasum.html#RecoveryPlanning |
