Download Endangered Species Act (ESA) - Levin College of Law

Endangered Species Act (ESA)
Jeff Wade
Center for Governmental Responsibility
University of Florida Levin College of Law
Definitions & Principles
„
„
Basic definition for biological diversity:
"the full range of variability among living
organisms and the natural communities
in which they occur."
Four hierarchical components: regional
ecosystem diversity; local ecosystem
diversity; species diversity; and genetic
diversity.
1
Interrelated Components
„
„
„
„
„
„
„
„
Regional ecosystem diversity encompasses the pattern of
local ecosystems across the landscape.
Local ecosystem diversity involves the diversity of all
living and nonliving components within a given area and
their interrelationships. Local ecosystems are the critical
biological operating units in nature.
Species diversity describes the variety of individual
species within a local ecosystem.
Genetic diversity refers to the variations within a species,
providing a measure of the species' ability to adapt to
changing environments.
Conserving biodiversity involves identifying and
managing the factors that contribute to the decline
of biodiversity.
Direct physical alteration resulting from resource
development and changing land use is the most
pervasive cause of biodiversity loss.
Physical impacts of development on habitat areas
can destroy, simplify, or fragment an ecosystem and
thereby reduce the diversity within and made
available by the ecosystem.
Other significant contributors to biodiversity
impairment include habitat pollution, over-harvesting
of species or introduction of non-native species.
2
„
So the fundamental goal of biodiversity
conservation is fairly evident: "to
maintain naturally occurring ecosystems,
communities, and native species."
ESA adopted in 1973
„
„
„
The strongest legislative statement of the
importance of biological diversity
Recognizes that habitat protection is vital
to the preservation of species
Administered by the U.S. Fish and
Wildlife Service and National Marine
Fisheries Service
3
Generally
„
„
„
Provides broad protection for species of fish,
wildlife and plants that are listed as threatened
or endangered in the U.S. or elsewhere.
Provisions are made for listing species,
designating critical habitat for listed species, and
for establishment of recovery plans.
The Act outlines procedures for federal agencies
to follow when taking actions that may
jeopardize listed species, and contains
exceptions and exemptions.
Purposes and Policy Sections
„
The purpose and policy sections of the Act
contain specific support for the “means whereby
the ecosystems upon which endangered species
and threatened species depend may be
conserved,” and for Congressional policy that
all federal agencies “...seek to conserve
endangered ...and threatened species.”
4
Basic Approach
1.
listing of endangered and threatened species;
2.
designating critical habitat needed to preserve the listed
species;
3.
requiring the executive branch to develop recovery plans
for listed species (Fish and Wildlife Service);
4.
prohibiting any action carried out, funded or authorized by
a federal agency that is likely to jeopardize the continued
existence of a listed species, including the destruction or adverse
modification of critical habitat; and
5.
prohibiting private actions detrimental to listed species,
including the “taking” of such species, or possession or delivery
of listed species, unless permitted in exceptional cases where
incidental takings of a species will not appreciably reduce the
likelihood of survival.
Section 4: Listing Process
„
„
The Act requires the Secretary of the Interior to list
species as endangered or threatened based on any of a
number of factors, including habitat destruction, overutilization, disease or predation, inadequacy of regulatory
mechanisms, or other natural or man-made factors.
Listing determinations must be made solely on the basis
of the best scientific and commercial data available, after
a review of the status of the species and taking into
account any efforts being made to protect such species by
other jurisdictions.
5
Listing Process
„
„
„
Proposals for listing may be made by the Fish and Wildlife
Service and the National Marine Fisheries Service, or by
petition from any interested person.
Earlier listing procedures only addressed single species,
and often “charismatic” species, such as wolves, bears
and large birds.
In the 1990s, the FWS agreed to take a “multi-species,
ecosystem approach” to the listing of endangered and
threatened species.
Critical Habitat
„
„
„
"Critical habitat" is defined as the specific geographic
areas, occupied by a species, that have the essential
physical and biological features for conservation of the
species and that may require special management
protection.
The designation is made on the basis of the best scientific
data available and taking into consideration the economic
impact and any other relevant impact of specifying a
particular area.
An area may be excluded if it is determined that the
benefits of exclusion outweigh the benefits of designation,
unless the Secretary determines that exclusion will result
in extinction of the species.
6
Critical Habitat
„
„
„
„
A regulation designating critical habitat for the species
being listed must be published at the same time as the
listing of the species, "to the maximum extent prudent
and determinable."
Using this language, the FWS has declined to designate
the critical habitat of about 80% of listed species.
If not published at the time a species is listed, critical
habitat must be designated within two years, however in
practice, this has meant that only an extremely small
number of listings have included concurrent designation
of critical habitat.
There are serious delays in the designation of critical
habitat. The typical time between filing a petition for
listing and Secretarial action is two or three years.
Section 7
„
„
The section most clearly protecting habitat and
generating most litigation is Section 7:
Requires federal agencies to consult with FWS
to insure that any action authorized, funded, or
carried out by an agency is not likely to
jeopardize the continued existence of an
endangered or threatened species or result in
the destruction or adverse modification of
“critical habitat” of such species.
7
Section 7
„
After initiating the required consultation,
an agency or permit applicant may not
make any “irreversible or irretrievable
commitment of resources...which has the
effect of foreclosing the formulation or
implementation of any reasonable and
prudent alternative measures.”
Section 7
„
„
Federal agencies are involved in the
construction, licensing, financing or
authorization of a very large number of projects
throughout the country.
The duty to insure that such activity will not
destroy or adversely modify critical habitat has
the potential to restrict many types of
development activities affecting listed species.
8
TVA v. Hill (1978)
„
„
The most famous Section 7 case, T.V.A. v. Hill
stopped construction of the almost completed
Tellico Dam when it was discovered that the
only known habitat of the endangered
Tennessee snail darter fish would be destroyed
if the dam were closed.
The U.S. Supreme Court said that Section 7
required much more than a simple consultation,
emphasizing that if a project jeopardized a listed
species, the project would not be allowed.
National Wildlife Federation v.
Coleman (1976)
„
„
„
„
The restrictions also extend to federal actions with more
indirect effects than those in Hill.
Coleman case involved an interstate highway authorized
by the Federal Highway Administration (FHWA).
Would have directly removed about 125 hectares of
nesting, roosting and feeding ground for approximately 40
Mississippi sandhill cranes, members of an endangered
sub-species whose only habitat was in that region.
The FHWA had decided that the highway would not
jeopardize the species or its habitat because the loss of
acreage was relatively small, and FHWA control of access
to the highway would eliminate any other threat to the
crane.
9
„
„
„
„
Court stopped the project: “a far more subtle calculation
than merely totaling the number of acres to be asphalted”
is necessary where the environmental impact of a project
is at issue.
“Although it is clear that the crane can survive the direct
loss of 300 acres of habitat, the evidence...shows that it is
questionable whether the crane can survive the additional
loss of habitat caused by the indirect effects of the
highway, coupled with the excavation of and drainage
caused by borrow pits.”
Private development always accompanies major highway
projects; this additional development would be the
primary impact on the crane.
The relevant consideration is the total impact of the
project on the species.
Section 5
„
„
FWS and NMFS can implement more direct habitat
conservation measures through their authority under
section 5 to "establish and implement a program to
conserve fish, wildlife, and plants, including those which
are listed as endangered species or threatened species,"
principally by acquiring land and waters containing the
species' habitat.
However, appropriations have not met funding
requirements, and there is little indication that under
current federal policies the situation will improve.
10
Exemptions to Section 7
„
„
„
If a proposed project will be in unavoidable conflict with a listed species,
the agency, state governor or applicant can apply for an exemption.
The Endangered Species Committee (or “God Squad”), composed of six
cabinet level administrators and a representative from each affected
state, can grant an exemption if it determines that:
(1) there are no reasonable and prudent alternatives;
(2) the benefits of the action clearly outweigh the benefits of
alternative courses of action consistent with the ESA;
(3) the agency action is in the public interest;
(4) the action is of regional or national significance; and
(5) neither the agency nor the applicant has made an irreversible or
irretrievable commitment of resources.
The ESC must also establish reasonable mitigation and enhancement
measures, to minimize adverse effects on the species.
Section 9
„
„
„
When there is no federal involvement in a project, the most
relevant section of the ESA is Section 9, which prohibits any
person subject to the jurisdiction of the United States from
“taking” an endangered fish species or a wildlife species which is
endangered or threatened.
“Person” is broadly defined as “an individual, corporation…or
any other private entity; or any officer, employee…of the
Federal Government, of any State…or any foreign government;
…or any other entity subject to the jurisdiction of the United
States.”
The word “take” means: “to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in
such conduct.”
11
Definition of “Harm”
The ESA does not define the word “harm.” However,
FWS regulations define harm as, “an act which actually
kills or injures wildlife. Such act 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.”
The U.S. Supreme Court has upheld the regulation;
detrimental modification of a listed species’ habitat is
prohibited.
Taking a threatened or endangered species in the course
of development can lead to civil fines of up to $25,000 per
occurrence, and criminal penalties (fine of up to $50,000
and/or up to 1 year in prison).
„
„
„
Palila v. Hawaii Department of
Land and Natural Resources
(1979)
„
„
„
The most famous case which affirmed this definition was Palila
v. Hawaii Department of Land and Natural Resources, a
Section 9 case involving a state program which maintained
feral goats and sheep in native forests, for the benefit of sport
hunters.
The palila bird, an endangered, non-migratory member of the
Hawaiian honeycreeper family, is specifically adapted to and
dependent on the mamane forest ecosystem, which was being
slowly destroyed by the browsing game animals.
In 1977, the remaining ten percent of the bird's original range
had been designated as critical habitat, though this was also
being threatened by the herds of goats and sheep.
12
„
„
„
The court noted that the ESA defines “take” to include “harm,”
and that the FWS defines “harm” to include “significant
environmental modification or degradation.”
The court held that the “undisputed facts bring the acts and
omissions of defendants clearly within these definitions.”
The Ninth Circuit Court of Appeals affirmed the decision in 1981,
approving the district court's interpretation of the Act as being
consistent with Congressional findings that “the greatest threat
to endangered species is the destruction of their natural
habitats.”
Exceptions
„
„
„
The ESA provides for a few limited exceptions to the
taking prohibitions under Section 9
The most controversial is the Incidental Take Permit (ITP)
which allows an “incidental take of a listed species that
results from, but is not the purpose of…an otherwise
lawful activity conducted by the federal agency or
applicant.”
In order to obtain an ITP, an applicant must meet all
criteria for an ITP including adopting a Habitat
Conservation Plan.
13
Habitat Conservation Plan
„
Applicants for an ITP must submit a habitat
conservation plan that indicates:
„
„
„
„
„
„
After a “public comment period” on the plan,
Secretary must find that
„
„
„
„
„
„
the probable impacts from the project;
plans to minimize and mitigate such impacts, including
funding plans;
alternatives that would not result in takings, and the
reasons they are not being utilized; and
other requirements considered necessary or
appropriate by the Secretary of the Interior.
the taking will be incidental,
the applicant will mitigate impacts of the taking “to the
maximum extent practicable,”
the funding of the plan will be adequate, and
the taking will not “appreciably reduce” the likelihood of the
survival and recovery of the species in the wild.
Problems: Mitigation is a term that, as applied in wetlands
permitting cases, can have a wide variety of definitions,
and an equally wide measure of effectiveness.
Requiring mitigation only “to the maximum extent
practicable” allows consideration of economic variables
that can certainly reduce the likelihood of species survival.
14
„
Over 400 habitat conservation plans now
cover about 15 million hectares, and
applications in process could increase
that to over 40 million hectares.
Problems with HCPs
„
„
„
Fish and Wildlife Service, doesn't know whether
the plans are shielding creatures from further
decline or speeding them toward extinction. No
“benchmarks”.
Many plans open the door to permanent
damage of wild places before scientists know
how to best protect vulnerable animals. Most
fail to predict how many creatures will be killed
or harmed.
Few spell out an exit strategy if things go
wrong.
15
„
„
„
Local governments often help developers by
allowing existing parkland to count as
"preserves" or defraying their costs often using
federal dollars.
The public, including independent scientists,
often has little voice in the plans—even some
covering vast acreages—until they are
essentially completed.
HCPs focus on setting aside land to save it from
the bulldozer or chain saw, but sometimes they
do not include enough funding to maintain the
preserves.
Limitations of the ESA
„
„
„
Listing of species
„ very slow process;
„ politically influenced;
„ delays have allowed extinction of about 40 species which
were nominated but never listed.
Critical habitat must be concurrently listed “to the maximum
extent prudent and determinable.”
„ definitional limitations;
„ the process does include economic considerations;
„ does not include entire habitat range of the species;
„ very long delays in designating critical habitats, and some
have never been designated.
Recovery plans required for listed species.
„ Preparation of plans has been even slower than the listing
process. FWS only has recovery plans for approximately
half of the listed species.
16
„
Section 7 applies to federal agencies.
„
„
Any action must not jeopardize listed species or critical
habitat. Very little communication or coordination among
large bureaucratic federal agencies on whether actions will
have affects on listed species.
Section 9 prohibits any "person" to "take" a listed species.
„
If there is an "incidental take" of a species under a
development plan, provisions may allow this if "habitat
conservation plans" are created for that species. However,
very few have been attempted and have not been very
successful.
ESA represents a basically reactive,
not proactive, approach
„
„
„
„
Only addresses a situation when it has reached crisis
proportions.
Is activated only when species populations and habitat
have been reduced so much that heroic efforts are
needed to save them.
Not very successful; usually waits too long for a species to
have good chance of recovery.
Requires drastic and expensive curative measures when
earlier preventive measures might save more species at
lower cost.
17