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The Endangered Species
Act of 1973
Brief History
• 1966 -- Endangered Species Preservation Act
– Listing of native animal species as endangered, provided means for protection.
• 1969 -- Endangered Species Conservation Act
– Expanded conservation to international level for species in danger of worldwide
extinction
• 1973 -- Endangered Species Act (PL 93-205 signed by Nixon)
– Biological/ecological focus – on all species
– Much broader than what legislators originally intended
– Places primary burden on federal agencies and federal lands
What does ESA provide?
1. Provides direction for the determination of endangered &
threatened species
2. Provides cooperative programs with states for protection
and funding mechanism to acquire land
3. Sets up interagency federal cooperation, processes for
resolving endangered species conflicts on federal lands
4. Provides mechanisms for financial assistance for
international cooperation
What does ESA provide?
5. Specifies what constitutes a taking of an endangered
species
6. Sets guidelines for incidental take permits
7. Sets penalties and enforcement guidelines
8. Addresses E&T vertebrates &invertebrates on all lands,
plants on federal lands
9. Sets up partnership with Marine Mammal Protection
Act, allowing MMPA to be more restrictive than ESA
ESA Administration & Reauthorization
Administration of the ESA
• DOI (U.S. Fish & Wildlife Service) – for freshwater species
• Dept. of Commerce (National Marine Fisheries Service) – all
marine species
•
Reauthorization of ESA
• Every 4 years
• Continuing resolutions and yearly appropriations
The F&WS and ESA
Objective of FWS based on ESA:
“… to improve the status of endangered or
threatened species so that they can be delisted.”
Processes
A. Listing
-- Listing process is needed before protection through ESA
can be set in motion
B. Critical habitat designation
C. Protection
A. Listing
Listing – selecting species to be put on the endangered species list.
5 criteria for listing as defined by law:
1. present or threatened destruction, modification, or curtailment of
its habitat or range
2. overutilization for commercial, recreational, scientific, or
educational purposes
3. disease or predation
4. inadequacy of existing regulatory mechanisms
5. other natural or manmade factors affecting its continued
existence
B. Critical Habitat
Critical habitat  “area occupied by the species at the
time of listing and essential to its conservation.”
• Critical habitat designation – among most controversial
aspects of FWS activities!
• Non-biological factors, including economics, are to be used in
determining critical habitat.
C. Protection
Protection involves three prohibitions and required consultation among
agencies. Prohibitions are:
1. Trade in endangered species without a permit
2. No person may take an endangered species.
3. A federal agency may not act unless it insures that its action will neither
jeopardize a species nor adversely affect designated its critical habitat.
Term definitions:
– Take  “to harass, harm pursue, hunt, shoot. Wound, kill, trap, capture, or
collect, or to attempt to engage in any such conduct.”
– Harm  “an act which actually kills of injures wildlife by significantly impairing
essential behavior patterns, including breeding, feeding, or sheltering.”
– Jeopardize  “to engage in an action that reasonably may be expected, directly
or indirectly, to reduce the reproduction, numbers, or distribution of the species.”
Economics and the ESA
• ESA now includes economic concerns (not until spotted owl
listing)
• 1978 amendments  required economic concerns to be
considered in designation of critical habitat after listing the
species
• 1988 amendment  requires FWS to report annually on a
species-by-species basis all federal expenditures and grants
to states for the conservation of species under the act.
• 1994 Reauthorization
The ES Committee (aka the God Squad)
The 1978 amendment created the Endangered Species Committee (or the
God Committee, or the God Squad)
•
Decides whether a particular species could be exempted from the ESA
•
May be convened when irreconcilable conflict exists between a
development project and species conservation needs
•
Composition:
–
USDA Secretary, USDI Secretary (committee chair), USDoD Secretary
–
Chair of the Council of Economic Advisors
–
EPA administrator
–
NOAA (National Oceanic and Atmospheric Administration) administrator
–
Presidential appointee from each affected state.
Illustration Case: The Snail Darter and the Dam
Previous to this Case….
– Legislators expressed during hearings that they did not know that ESA will protect
everything – they thought it would only protect eagles, bears, and whooping cranes
(when they voted for it!)
– As originally written in 1973, ESA focused only on biological concerns and ignored
economics.
In 1978, the strictly biological focus of ESA changed because of the
snail darter (SD), a 3-inch fish discovered on the Little Tennessee
River where a multi-million dollar ($116 M) dam was to be built
– SD was listed as endangered in 1975.
– SD is first species to confront economics in a big way!
– Discovery of SD threatened to stop the almost completed Telllico Dam (a TVA
hydroelectric project)
Illustration Case: The Snail Darter and the Dam
Supreme Court ruling on Tennessee Valley Authority v. Hill, 437 U.S.
153, 174, 184 (1978):
• “It may seem curious to some that the survival of a relatively small
number of three-inch fish among the countless millions of species
extant would require the permanent halting of a virtually completed
dam for which Congress has expended more than $100
million….We conclude, however, that the explicit provision of the
ESA requires precisely that result.”
• “Congress intended endangered species to be afforded the highest
of priorities… The plain intent of Congress in enacting this stature
was to halt and reverse the trend toward species extinction,
whatever the cost.”
Illustration Case: The Snail Darter and the Dam
Because of the snail darter case, Congress amended ESA in 1978, 1979,
and 1982!!!!
•
Delta smelt – another 3-inch fish found on the brackish waters of the
Sacramento River estuary was proposed by the FWS to be listed as
endangered on Sept. 27, 1991. Actions to protect this fish change the
irrigation regime in one of the nation’s most productive agricultural areas.
•
In 1992, several species of salmon were listed, affecting more areas in the
PNW.
•
~ 1300 species listed
Now…
• ESA Amendments resulted to a law vastly different from 1973 ESA
• Now more flexible, permitting statute
– Ex: ESA now permits "incidental takes" (accidental killing or
harming a listed species).
– Congress added requirements for "incidental take statement",
and authorized a "incidental take permit" in conjunction with
"habitat conservation plans".
• Changes made in 1990s (DOI Sec Bruce Babbitt) to shield ESA
– Instituted incentive-based strategies such as candidate conservation
agreements and "safe harbor" agreements that would balance
economic development and conservation goals
Safe Harbor Agreements
• Voluntary agreement between private landowner & FWS
– Landowner agrees to alter property to benefit/attract a listed
or proposed species in exchange for assurances that FWS
will permit future "takes“ above a pre-determined level
– Policy relies on "enhancement of survival" provision of
Section §1539(a)(1)(A)
– Landowner can have either a "Safe Harbor" agreement or
an Incidental Take Permit, or both.
– Policy developed by the Clinton Administration in 1999
Candidate Conservation Agreements
• Closely related to the "Safe Harbor" agreement
– Main difference: the Candidate Conservation Agreements
with Assurances (CCA) are meant to protect unlisted
species by providing incentives to private landowners and
land-managing agencies to restore, enhance or maintain
habitat of unlisted species.
– Then, FWS assures that if, in the future the unlisted
species becomes listed, landowner will not be required to
do more than already agreed upon in the CCA
“No Surprises” Rule
• Rule meant to protect landowner if "unforeseen circumstances"
occur which make landowner's efforts to prevent/mitigate harm
to the species fall short
• May be the most controversial of recent ESA reforms -- once
an Incidental Take Permit is granted, FWS loses much ability to
further protect a species if landowner’s mitigation efforts prove
to be insufficient
• Landowner/permittee not be required to set aside additional
land or pay more in conservation money; feds pay for any
additional protection measures
Endangered Species Act
Always a controversial policy….
Much debates during every reauthorization…..
For a list of E&T species in the US and by
state, go to:
http://www.fws.gov/endangered/wildlife.html
#Species
US E &T Species (F&WS, 2010)
• Vertebrate Animals (379)
– Mammals – 86 records
– Birds – 90
– Fish – 138
– Amphibians – 25
– Reptiles – 40
US E &T Species (F&WS, 2010)
• Invertebrate animals (198)
• Non-flowering plants (31)
• Flowering plants (719)