The Endangered Species Act

The Endangered Species Act Lauren Gallagher Eric Sirota Courtney Segota

Coverage Administration Principal Elements Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Overview Table of Contents Overview Coverage Administration Principal Elements Links With Other Laws Citizen Involvement & Remedies Effects on Aquatic Resources Limitations and Effectiveness Possibilities for Reform Resources

Coverage Administration Principal Elements Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Overview • The Endangered Species Act (“ESA”) was viewed as the “most comprehensive legislation for the preservation of endangered species ever enacted by any nation” when it was first passed as a law.1 Under the ESA, the Fish and Wildlife Service (“FWS”) has authority to list species in need of protection. Once an animal becomes listed under the ESA, it is then entitled to numerous protections. • Congress identified the purposes of the ESA as… • Providing a means where by the ecosystems upon which endangered species and threatened species depend may be conserved, • Providing a program for the conservation of such endangered species and threatened species, and • Taking such steps as my be appropriate to achieve the purpose of the treaties and conventions that seek to conserve species at the international level which were identified through Congressional findings.2

Coverage Administration Principal Elements Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Overview • Congress recognized that in order to help species on the edge of extinction to recover and avoid slipping closer to extinction, it would require other federal agencies to make proactive efforts - not just to from participating in certain activities. This viewpoint is evident from the policy goals of the ESA: • It is further declared to be the policy of Congress that all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this chapter. • It is further declared to be the policy of Congress that Federal agencies shall cooperate with State and local agencies to resolve water resource issues in concert with conservation of endangered species.1

Coverage Administration Principal Elements Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Overview When the United States Supreme Court examined the ESA, it noted that “[t]he plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost. This is reflected not only in the stated policies of the Act, but in literally every section of the statute. All persons, including federal agencies, are specifically instructed not to ‘take’ endangered species, meaning that no one is ‘to harass, harm, [ ] pursue, hunt, shoot, wound, kill, trap, capture, or collect’ such life forms. Agencies in particular are directed . . . to ‘use all methods and procedures which are necessary’ to preserve endangered species. In addition, the legislative history undergirding § 7 reveals an explicit congressional decision to require agencies to afford first priority to the declared national policy of saving endangered species.”1 In sum, the Court notes that “the plain language of the Act, buttressed by its legislative history, shows clearly that Congress viewed the value of endangered species as ‘incalculable.’”2

Coverage Administration Principal Elements Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Overview Ultimately, the discussions of the ESA have left many with the opinion that it is a very tough and inflexible statute - but in practice, that might not actually be the case. The Act has various loopholes, and its effectiveness is often hampered by under-funding and political considerations.

Overview Administration Principal Elements Links with other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Coverage Who is restricted by the protections under the ESA? The ESA’s main protection which prohibits the “taking” of a listed animal applies to the actions of all individuals, public or private. Therefore, the same restriction applies to individuals as well as any governmental entity. However, § 7 only restricts activities that are considered federal actions. This includes not only actions taken by a federal agency, but also any action that is “authorized, funded, or carried out” by a federal agency. This would include when the agency supplies funding to a private actor to perform the action. It does not apply to state governments or private actors that are acting on their own. Further, § 7 will only apply to actions that are discretionary, and not mandatory actions.

Overview Administration Principal Elements Links with other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Coverage Geographic Scope of the ESA The ESA protections apply throughout the entire jurisdiction of the United States. Therefore, even if one were to find a listed species in an unusual location or outside of designated habitat, all of the protections would still apply.

Overview Coverage Principal Elements Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Administration The agencies that administer the ESA, the Fish and Wildlife Service (“FWS”) and, in the case of certain marine species, the National Marine Fisheries Service (“NMFS” or, more formally, “NOAA Fisheries”) are charged with promulgation of regulations, coordination of efforts, and decisions regarding the application and enforcement of the ESA.1

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements Goals of Listing The initial step in the ESA conservation process is that of identifying and listing species that need protection. Listing is generally in the hands of the FWS the NMFS also plays a large role. Species are listed towards two intimately related ends. As a threshold goal, the FWS lists at risk populations to ensure that those at risk populations avoid extinction. Similarly, the FWS lists population segments for protection in order to increase that segments’ population so that, hopefully, the at risk population can be delisted. The ESA has been largely successful in meeting the first goal, and preventing endangered populations from further diminishing significantly. However, the FWS has been able to de-list few at risk populations.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements Basics of Listing Process Overview To gain protection under the ESA, a population segment must either be endangered or threatened. An endangered population segment is the most significantly at risk of extinction. A threatened population segment is still at risk, though less so than an endangered species. The FWS also extends some protection to population segments which are proposed for listing or are candidates for study, even if those species do not qualify as endangered or threatened. The FWS does so both as a preventative measure to prevent having to officially list a species and in order to protect species that are particularly scientifically useful. The FWS must answer three questions to determine whether to list a population segment and whether, the FWS should list the population as endangered or threatened. First, the FWS must identify the unit of life that it seeks to protect. After selecting the distinct at risk population, the FWS must determine whether that population is endangered or threatened. Lastly, even if the population qualifies as endangered or threatened, the FWS will inquire as to whether listing is necessary. In some situations, the FWS will not list an otherwise qualified segment because that segment already receives protection through means other than the ESA.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements What is the Unit of Life that Should be Protected? Notice that, thus far in the presentation, I have shied away from using the term “species.” This is because the ESA does not use the term “species” strictly to refer to taxonomically classified species. Rather, the ESA defines “species” very broadly. “Species,” in relevant part, refers to “any subspecies and any distinct population segment of . . . vertebrate fish that breed when mature.” Thus, “species,” as defined in the ESA, may refer to a group larger or smaller than a taxonomical species. As such, the courts have on multiple occasions addressed whether the FWS should protect multiple types of fish as a single unit. This has arisen in the context of the classification of the Alabama Sturgeon and the Western Sage Grouse.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements What is the Unit of Life that Should be Protected? Case study 1: The Alabama Sturgeon The FWS classified the Alabama Sturgeon as distinct from the more populous shovelnose sturgeon. If the Alabama Sturgeon is a distinct “species” from the shovelnose sturgeon, the Alabama sturgeon would gain ESA protection as an endangered species. Although the Alabama sturgeon and shovelnose sturgeon are genetically similar, the 11th Circuit upheld the FWS’s classification, acknowledging that other taxonomic factors, beyond genetics, are relevant. These factors include: morphological, chromosomal, biochemical, physiological, behavioral, ecological, biogeographic, and of course, genetic characteristics of the populations.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements What is the Unit of Life that Should be Protected? Case study 2: The Western Sage Grouse The case of the western sage grouse emphasizes that, while they are not controlling, taxonomic classifications still play a fairly dominant role under the ESA. The courts generally give the FWS wide discretion to trust some scientific opinions over others. Nonetheless, the 9th Circuit invalidated the FWS’s decision to classify the western sage grouse as a distinct population segment of sage grouse warranting distinct protection. The 9th Circuit reasoned that the FWS’s classification ignored the opinion of taxonomists and instead gave greater weight to the opinions of wildlife ecologists, but, under the ESA, the opinions of taxonomists should be give more weight. Thus, the FWS should find persuasive the opinion of taxonomists that the western sage grouse does not constitute a distinct subspecies of sage grouse for ESA purposes.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements What is the Unit of Life that Should be Protected? Distinct Population Segments As stated, in many instances the FWS will list, not an entire species, but rather a subgroup, referred to as a distinct population segment. When considering if a unit of fish constitutes a distinct population segment, the FWS evaluates the discreteness of the population segment in relation to the remainder of the species to which it belongs, the significance of the population segment to the species which it belongs, and the populations segment’s conservation status in relation to the ESA’s standard for listing. To qualify as discrete, a population segment must be either separated from the rest of the species due to physical, physiological, ecological or behavioral factors or separated from the rest of the species by international government boundaries with significant differences regarding exploitation, habitat management, conservation status, or regulatory mechanisms.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements What is the Unit of Life that Should be Protected? Distinct Population Segment, cont’d To qualify as a significant population segment, the FWS evaluates: the persistence of the population unit in a unique place for the species, whether the loss of the discrete population would result in a significant gap in the geographic range of the species, whether the segment is the only naturally occurring segment greater than introduced population of the species outside of the species’ historic location, and whether the unit is markedly genetically different from other populations of the species. Regarding the conservation status of the population segment, the FWS simply asks whether the segment, if distinct, would qualify as endangered or threatened under the ESA. The ESA has grouped salmon of different runs as distinct population segments under the ESA. The Pacific Salmon, for example, represents a distinct population segment.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements • Does the unit qualify for listing, either as endangered or threatened? • Basics • The ESA defines ‘endangered’ and ‘threatened species’ as follows: • Endangered species – any species which is in danger of extinction throughout all or a significant part of its range • Threatened species – any species likely to become endangered with the foreseeable • The FWS answers three question when determining if the unit should be listed as endangered, threatened, or not at all. First, the FWS must answer a two-part question: what is the probability that the species will become extinct in a certain period of time, and is that risk acceptable? Second, the FWS must determine if the species is at risk in a significant portion of its range. Finally, the FWS will assess whether present conservation efforts are adequate such that the FWS need not list the species. When considering the listing species of a species, the FWS takes into account the following factors: habitat loss, over harvesting, disease, predation, as well as all other natural or manmade factors affecting the species’ continued existence.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements Does the unit qualify for listing, either as endangered or threatened? What is the probability that the species will become extinct in a certain period of time, and is this risk acceptable? These questions are difficult to answer. As such, the courts grant great discretion to the FWS to make these determinations. As long the FWS does not act arbitrarily and capriciously, and as long as it does not ignore material scientific evidence, the courts will generally uphold the FWS’s decisions. Still, in Western Watershed Project, the Idaho District Court held that the FWS acted inappropriately by refusing to list a species that had a 64% chance of extinction over the next 100 years, even though the FWS thought the 100 time span was not sufficiently imminent to warrant listing the species. Articulating the difficulty of answering these questions, a group of scientists convened by the NMFS opined that species with a 1% chance of extinction over the next 100 years should be listed.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements Does the unit qualify for listing, either as endangered or threatened? Is the species at risk of disappearing “in a significant portion of its range?” The FWS and the federal circuits are largely at odds with each other as to how the “significant portion of its range” requirement should be interpreted and applied. The FWS’s interpretation states that a species should only be listed if the risk “in a significant portion of its range” created an overall risk of extinction for the species. Some courts adhere to the FWS’s interpretation. The Federal District Court of New Mexico applied a similar interpretation regarding whether the Grande cutthroat trout was at risk “in a significant portion of its range.” The Grande trout’s habitat was severely threatened, but several populations of Grande trout continued to thrive. The court held that the Grande trout was not at risk in a significant portion of its range because there was not a sufficient general risk of extinction to warrant listing the species. Most federal courts, however, disagree with the FWS. As stated by the Ninth Circuit and echoed by most other federal courts, “a species can be extinct in a significant portion of its range if there are major geographical areas in which it is no longer viable but once was.”

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements Does the unit qualify for listing, either as endangered or threatened? Are present conservation efforts adequate such that the FWS need not list the species? When determining the risk to a species, the FWS considers “the inadequacy of existing regulatory mechanisms.” Put otherwise, if existing conservation efforts are adequate to address the threats to a species, listing can become unnecessary. The FWS is once again at odds with the courts regarding what types of conservation efforts the FWS may consider. The courts have held that the FWS may not rely on conservation efforts unless those efforts constitute legally binding policies. On the other hand, the FWS is more reluctant to list a species when the FWS has already put in place policies that encourage landowners to protect a species. The FWS takes an extremely pragmatic approach to conservation, as the FWS may encourage landowners to protect an at risk species by giving that land owner assurances that the landowners will not have to conserve more than is necessary – even if this involves permitting the landowner to otherwise violate ESA bans. Still, the FWS is more hesitant to list a species if such an agreement has been reached with a landowner.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements Designating Critical Habitat Definition and Purpose The ESA defines a critical habitat as “a geographic area essential to the conservation of a species which may require special management consideration or protection.” Most species are in decline due to habitat loss or degradation. Conservation of habitat is perhaps the most essential factor in species preservation and repopulation. Thus, the ESA allows the ESA to designate critical habitat for protection. If the FWS is to designate a habitat as critical, it must do so when it lists the species which the habitat designation seeks to protect.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements Designating Critical Habitat Designation Standard The FWS engages in a cost benefit analysis. Thus, even if the habitat otherwise qualifies for designation, the FWS may exclude habitat that would otherwise be critical upon a finding that the benefits of designation are outweighed by the harms. The FWS considers the following factors in its cost benefit analysis: biological evidence regarding the needs of the species; economic costs of designating the habitat, including the affect on economic development as well as social effects of the designation; the effects on national security; and the likelihood that the designation will increase illicit takings by alerting interested parties to the location of an at risk species. The FWS, however, does not engage in this cost benefit analysis if designation of the habitat is necessary to prevent the species’ extinction. In such an instance, the FWS will designate the habitat regardless of how the cost benefit analysis falls. Moreover, in order to prevent illicit takings, the FWS can delay a habitat designation for up to a year.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements Designating Critical Habitat Effects of Designation When the FWS designates a habitat, this serves to prohibit both acts which directly or indirectly jeopardize the continued existence of the species, as well as acts which adversely modify the habitat. Thus, critical habitat designation has served as a critical tool to protect fisheries, even where the FWS does not designate the habitat to protect fish. Indeed, much of the clamor favoring protection of the critical habitats of the spotted owl was motivated by the desire to have fisheries within such critical habitats protected.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements § 9 Protections § 9 is the heart of the ESA and applies to all public and private actors. § 9(a)(1)(B) makes it unlawful to “take” even a single member of a listed species. The ESA defines “take” in very broad terms and includes any action that would “harass, harm, pursues, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” This broad definition and the legislative history makes clear that Congress intended the term to apply broadly to all conduct that directly or indirectly harms the listed species.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements § 9 Protections--Regulations The regulations expand upon the definition of “take” in the statute. They define “harass” as “an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it so such an extent as to significantly disrupt normal behavior patterns, and harm “means an act which actually kills or injures wildlife” and “may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”1

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements § 9 Protections--Habitat Modification as Taking The regulations include harmful habitat modification under the definition of “take.” This would at first seem very helpful to those who are attempting to protect fish populations since much of the harm to the fish are not from directly harming the fish, but instead from altering the waterways themselves, or by altering the landscape around the waterways. And originally courts were willing to find a violation of § 9 if the alterations were significant enough to disrupt breeding activity. However, the trend of courts recently has been to require evidence that particular animals were injured, even though the regulation seems to say that disrupting breeding is enough. § 9 has been read not to permit every activity which through habitat modifications harms the fish population indirectly, it requires a showing that animals have actually been killed or injured to violate § 9 even though the regulation seems to suggest that disrupting breeding is enough to constitute a take.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements § 9 Protections--Habitat Modification as Taking Babbit: Habitat Modification Can be a §9 Take In Babbit v. Sweet Home1, the Supreme Court stated that habitat modification can be reasonably considered a ‘take’ under §9 of the ESA. The Court thus upheld the regulations of the FWS interpreting the term ‘harm’ in §9 to include the more indirect harms cause by habitat modifications. The Court stressed that the common meaning of ‘harm’ does not only refer to direct harm, but also to indirect harm, such as, in this context, habitat modification. Moreover, the Court argued that, in light of the ESA’s purpose to prevent the species extinction, the term harm should be interpreted broadly so as to best effectuate that goal. Thus, the modification of the red-cockaded woodpecker’s habitat could be considered a ‘take’ under the ESA even though the modifying group in no way intentionally harmed the woodpecker.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements § 9 Protections--Habitat Modification as Taking Clarification of Babbit Several courts have grappled with the following question, in interpreting Babbit: does habitat modification constitute a ‘take’ if it likely will injure an animal although it hasn’t yet. Courts have come out different ways on this question. The 9th Circuit in Arizona Cattle Growers’ Association1 held that habitat modification is only a ‘take’ if it actually injures a protected species. The court here relied largely on the FWS’s regulation which stated that “harm,” under §9, “may include significant habitat modification or degradation where it actually kills or injures wildlife.” 50 C.F.R. § 17.3. On the other hand, in Greenpeace v. National Marine Fisheries2, the U.S. Western District of Washington, considered commercial expansion into the habitat of the protected Stellar sea lion to constitute a take, although there was not evidence of actual injury to the sea lion. The court relied on the fact that the potential harm to the sea lion was a relative certainty. Concededly, Greenpeace interpreted the term ‘harm’ in §7, not §9. However, the 9th Circuit, for example, interprets the term ‘harm’ in §7 and §9 synonymously.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements § 9 Protections--Habitat Modification as Taking What Kinds of “Harm” Constitute a “Take?” Indeed, the concept of a “take” through habitat modification encompasses a broad array of harm. In Loggerhead Turtle v. County Council1, both the district and circuit courts took for granted that it constituted a ‘take’ for the county to place beachfront lighting on the beach where the loggerhead turtles lay eggs. Usually baby turtles, upon being born, naturally gravitate towards the water. However, on that beach, turtles began gravitating towards the light. The court considered this disruption in the turtles’ natural behavior harmful to the turtles. Thus, the lighting constituted a §9 take. On the other hand, in Defenders of Wildlife v. Bernal2, the Ninth Circuit held that no take occurred where a school was built in an area near the home of the pygmy owl, according to an expert. Because, however, there was no evidence that pygmy owls actually lived where the school was being built, the court held that the record did not support the finding of a “take.”

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements § 9 Protections and Threatened Species When a species is listed as threatened under the ESA, the FWS has the power, under § 4(d), to issue regulations for their conservation. Unless the regulations for a threatened species specifically state otherwise, the protections of § 9 are fully applicable to the threatened species. However, the FWS cannot issue regulations that would deny § 9 protections to the threatened species without a legitimate purpose, especially if it would decrease the population of the species. It can only issue regulations that would further the conservation of the species. A taking can only be authorized through regulations “in the extraordinary case” that population pressures necessitate takings because they could not otherwise be managed.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements • § 9 Protections--Incidental Take Statement • When FWS issues a biological opinion in response to a federal agency inquiry regarding a proposed action, under § 7, FWS can issue along with it a statement that authorizes the agency to carry out its planned activity, even though the activity will incidentally take listed species. As long as the applying agency complies with the terms of the statement, it will not violate § 9 even when its actions take a member of the species. • For the Statement to be valid, it must include: • “the impact of such incidental taking on the species” • the “reasonable and prudent measures” that the agency can take to minimize the impact • the requirements to report to FWS on incidental takes as well as such other “terms and conditions” as are necessary to minimize the harm • Some courts have required that a precise limit on the number of animals that can be taken must be provided and if it is not possible to give one, the FWS must explain why.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements • § 10 Permits • While § 9 might give the impression that the ESA imposes a very hard and tough restriction that protects listed species, it must be considered alongside § 10 which provides permits for different purposes that will exempt a holder from § 9 liability. Thus, § 10 causes § 9 to lose much of its bite. The permits include: • Safe Harbor Program • CCA Permits • Incidental Take Permits

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements § 10 Permits—§ 10(a)(1)(A) Safe Harbor Program §10(a)(1)(A) authorizes permits “for scientific purposes or to enhance the propagation or survival of the affected species.” While the description seems quite narrow, this section has actually spawned an entire program, under which a landowner can agree to implement conservation measures on her land, aiding or attracting listed species, without incurring a risk of liability under § 9, and guaranteeing that the conservation measures can be undone if the landowner chooses. As long as the landowner is in compliance with the terms of the Safe Harbor Agreement, no liability will be imposed for incidental takes.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements § 10 Permits--§ 10(a)(1)(A) CCA Permit § 10(a)(1)(A) also authorizes permits to be issued in the course of Candidate Conservation Agreements (CCA). A landowner who commits to a CCA can obtain authority to engage in incidental takes of any species that is subsequently listed so long as they continue to comply with the terms of the CCA.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements • § 10 Permits--§ 10(a)(1)(B) Incidental Take Permits • §10(a)(1)(B) authorizes permits to be issued to take a member of a listed species if the take is “incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.” • The process for obtaining this type of permit is public. To obtain a permit under this section, a person must prepare a habitat conservation plan (HCP) that describes in detail: • the impact that the proposed action will have on the species; • steps that will be taken to “minimize and mitigate” such impacts; • the funding that will be available to implement these steps; • alternative actions that the applicant considered and why the alternatives were rejected; and • “such other measures that the Secretary may require as being necessary or appropriate for purposes of the plan.”

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements • § 10 Permits--§ 10(a)(1)(B) Incidental Take Permits • The HCP must be submitted to the FWS for review and it is also made available to the public for comments. The plan will be approved if the FWS finds that: • the taking will be incidental; • the applicant will minimize and mitigate the impacts of such taking “to the maximum extent practicable;” • the plan is adequately and securely funded; and • the taking “will not appreciably reduce the likelihood of the survival and recovery of the species in the wild.” • If the plan is approved, the agency will issue an incidental take permit. The ultimate standard used in approving an HCP includes a no-jeopardy standard that duplicates the language of § 7(a)(2). However, §§ 7 and 10 use different language, so while the standards between the two provisions were previously thought to be the same, a close reading of the statute casts doubt on that interpretation.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements § 10 Permits—The Interaction between §§ 7 and 10 When a permit is issued under § 10, it triggers the consultation process under § 7 because the FWS is a federal agency, and consequently, it must consult with itself. This means that a biological opinion will be required to be issued because the § 10 permit authorizes harm to a species. One court has required that the biological opinion must expressly discuss how the take will affect the recovery of the species and not just its survival. Because the issuance under § 10 triggers § 7, it would seem to mean that the permit can only be issued if both of § 7’s restrictions are met in addition to the requirements of § 10. Thus, although § 10 only expressly includes a no-jeopardy standard, it might indirectly include a ban on modifying critical habitat, which is contained in§ 7, because the duty to consult with the FWS under § 7 consultation has been triggered by the issuance of a permit.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements § 10 Permits—Liability to Holders of a Permit When a permit is issued under either § 10(a)(1)(A) or § 10(a)(1)(B), the individual with the permit will not incur further liability under the ESA as long as they comply with the terms of the permit even if the species declines further in number or if other species on the same property become listed.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements • § 7(a)(2) Protections • § 7(a)(2) bans all federal actions that directly or indirectly: • jeopardize the continued existence of a species or • that adversely modify designated critical habitat. • § 7, however, allows actions to proceed unless the action, when considered alone, imperils the existence of a species. It does not bar activities that merely push the species a bit closer to edge, or actions that interfere with recovery efforts. The no-jeopardy language only applies to the examination of actions that threaten a species. The no-jeopardy rule keeps a species from being pushed too close to the edge of extinction; that habitat provision can halt activities that merely interfere with a species’ recovery. • In its assessments under section 7(a)(2), it appears the FWS must examine the entire operation in which the agency is engaged. The FWS cannot exclude from consideration those aspects that it deems non-discretionary and it cannot siphon the overall action into many parts. • Also, this section only applies to federal actions and therefore, its limitations do not apply to state or local government or private actors. (See Section 2: Coverage).

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements § 7(a)(2) Protections--The No-Jeopardy Provision FWS must decide how much closer to extinction a species will become due to the federal action, but it is currently unclear when this provision is violated. The regulations define the language in the statute, “jeopardiz[ing] the continued existence of” a species, as an action “that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, number or distribution of the species.” Under FWS’ interpretation, this provision would seem to only restrict actions that pushed a species “appreciably” to a point of greater danger, without considering how close to extinction the species already is. Under the regulation, it is the appreciable worsening of a species’ plight that violates the section, not the absolute danger that the species faces. A species could face exceedingly grave danger, and an action worsening its plight would nonetheless be lawful because the action did not make matters appreciably worse. On the other hand, a species could slide downward continuously as a result of many small actions none of which would violate the jeopardy definition because no action, standing alone, would have an appreciable effect.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements § 7(a)(2) Protections--The No-Jeopardy Provision In National Wildlife Federation v. NMFS1, the 9th Circuit seemed to reject the FWS’ interpretation. “Under this approach, a listed species could be gradually destroyed, so long as each step on the path to destruction is sufficiently modest. This type of slow slide into oblivion is one of the very ills the ESA seeks to prevent.” The court interpreted “jeopardy” as a particularly high degree of risk to a species. Any action that pushed the species to this level of risk, however slight the action, violated the no-jeopardy rule. Similarly, an action ran afoul of the statute if it caused any additional harm to a species that was already in jeopardy. Therefore, it is unclear how this provision will be interpreted in the future.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements § 7(a)(2) Protections--No Adverse Modification The FWS definition in the regulations, which has been invalidated by courts, provides that a habitat modification is “adverse” only if it “appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species.” The agency has not yet proposed a new definition in a regulation. In National Wildlife Federation v. NMFS, the NMFS argued that an adverse modification only took place if an action altered “an essential feature of the critical habitat” and if the alteration “appreciably diminishe[d] the value of the critical habitat for survival or recovery.” The court did not comment on this proposed definition.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements § 7(a)(2) Protections--No Adverse Modification The Tenth Circuit, in Center for Native Ecosystems v. Cables1, stated that critical habitat is adversely modified in violation of § 7 by all “actions that adversely affect a species’ recovery and the ultimate goal of delisting.” While this limit might seem to ban all modifications of critical habitat that would diminish its value for recovery, minor violations are routinely overlooked.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements § 7(a)(2) Protections--Consultation Process Because most federal agencies will not be able to determine if their action would violate § 7, Congress created a consultation process to assist the agencies. There is little chance for citizen involvement in the process. It is usually done privately and no information is released to the public until after a final decision is reached. When an agency contemplates an action that might affect a species that is listed or proposed for listing, the agency asks the FWS whether such a species might be present in the action area. If a species might be present, the agency is obligated to undertake a biological assessment to determine whether the planned activity “is likely” to affect it. However, biological assessments are only required for agency actions that are so significant that they trigger the requirement to prepare an environmental impact statement under the National Environmental Policy Act. The content of the biological assessment is at the discretion of the agency, but it must consider the effects on both critical habitat and the listed species. Once the assessment is submitted, FWS has 30 days to determine whether it agrees with the applying agency.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements § 7(a)(2) Protections--Consultation Process If FWS concludes that the action is likely to affect the listed species or critical habitat, then, the applying agency must engage in consultation with FWS to determine wither the action will comply with the jeopardy and habitat modification protections of § 7. If it violates the prohibitions, FWS must suggest “reasonable and prudent alternatives” to the proposed action that would eliminate the violation. During the consultation, the agency applying must refrain from commencing its proposed activity, technically from making “any irreversible and irretrievable commitment of resources” that might foreclose alternative courses of action that could avert violation of § 7(a)(2). If the affected species is not yet listed or the critical habitat is not just designated, but it has been proposed, then a different, less formal process is used. The agency is required to “confer” with FWS rather than consult, and the ban on committing resources during a consultation does not apply.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements § 7(a)(2) Protections--Consultation Process The outcome of an inter-agency consultation generally is an informal approval by FWS of what the agency plans to do, particularly when the action directly complies with § 7(a)(2) or when the agency alters its proposal in response to FWS suggestions to bring it into compliance. If the consultation is not resolved informally, it leads to the issuance of a biological opinion which contains a conclusion on whether the proposed action complies with § 7(a)(2) and, if appropriate, an explanation of reasonable and prudent alternatives. It also includes a detailed Incidental Take Statement, authorizing the agency to engage in activities that would incidentally “take” listed species which would otherwise violate § 9. If after receiving approval from FWS, the applying agency discovers new, relevant facts or decides to alter its planned action, the consultation process must be reinitiated.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements § 7(a)(2) Protections--Consultation Process It is up to the applying agency to decide whether its planned activity will comply with § 7(a)(2); the FWS opinion is merely advisory. However, agencies will routinely defer to the judgment of FWS, due to the agency’s expertise in interpreting the ESA. Courts have generally allowed action agencies to rely on FWS’ opinion so long as the agency is forthcoming in explaining its activity to FWS and complies with recommendations it receives in response.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements • § 7(a)(2) Protections--The God Squad • The God Squad is composed of six cabinet level officials and the governor of the state in which the proposed activity would occur. This Squad has the ability to authorize exemptions to § 7, including exemptions that would result in the extinction of a species. • An exemption can be issued as long as at least 5 of the 7 members agree that: • there are no reasonable and prudent alternatives to the action; • the action is of regional or national significance; and • the benefits of the action clearly outweigh the benefits of alternative courses of action consistent with conserving the listed species or its critical habitat.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements § 7(a)(1) Conservation Duties § 7(a)(1) of the ESA instructs the Interior and Commerce Departments to “utilize” all of their departmental programs to promote the purposes of the ESA. All other units of the federal government are instructed to “carry[] out programs for the conservation of [listed] species” in consultation with FWS. Courts have found this section to impose an obligation on agencies to develop programs to protect listed species. More recently, courts have interpreted § 7(a)(1) to only require that agencies develop conservation “programs,” not that agencies give weight to species conservation in every action that they take as it may have been previously interpreted. Thus, a litigant can only challenge an agency for failing to develop programs.

Overview Coverage Administration Links With Other Laws Citizen Involvement Effects on Aquatic Resources Limitations/ Effectiveness Reform Resources Principal Elements • § 4(f) Recovery Plans • FWS must “develop and implement” a recovery plan for each listed species unless the preparation of such a plan would not promote conservation of the species. Its goal is to provide an overarching plan outlining the efforts to achieve conservation. • The plan must include: • a description of the “site-specific management actions” that are needed to achieve conservation of the species; • “objective, measurable criteria” for determining when recovery has taken place; and • estimates about how long it will take and how much it will cost to achieve full recovery and to achieve “intermediate steps” toward recovery. Implementation can be tough when a species is located on private land. • Courts have determined these plans are not legally binding, just advisory. Therefore, a citizen cannot sue to compel enforcement and FWS cannot require that other parties comply. • Another federal agency however must have a justification for not complying with a plan.

The Endangered Species Act