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Endangered Species Act
Overview
(1) Definition of endangered species
(2) Listing decisions and critical habitat
(3) Federal agency consultation
(4) Prohibited acts
(5) Exceptions
What is an endangered species?
Any species which is in danger
of extinction throughout all or a
significant portion of its range
Includes any subspecies of
fish or wildlife or plants
and any distinct
population segment of
interbreeding vertebrates
A species is “threatened” if
likely to become endangered
within the foreseeable future
throughout all or significant
portion of its range
Section 4: Listing Determinations
and Designating Critical Habitat
How do species get listed?
 Anyone
may petition to have a species
listed or delisted
 Agencies may also propose listing
 Listing procedure subject to APA
 Agency has one year to decide whether
listing is warranted, not warranted, or
warranted but precluded
 Upon listing, agency begins to prepare
recovery plan
Listing criteria
 Present
or threatened destruction,
modification, or curtailment of habitat
 Overutilization
 Disease or predation
 Inadequacy of existing regulatory
mechanisms
 Other natural or manmade factors
 Listing decision based “solely on best
scientific and commercial data available”
Designating critical habitat
 CH
designated concurrently with listing
determination “to the maximum extent
prudent and determinable”
 Based on “best scientific data available”
as well as economic impacts
 May exclude certain areas from CH if the
benefits of exclusion outweigh benefits of
inclusion, unless it will result in extinction
Section 7: Agency Consultation
All Federal agencies must ensure that any agency action
is not likely to jeopardize the the continued existence
of any endangered or threatened species or result in
the destruction or modification of critical habitat
Jeopardy/Adverse Modification
(JAM)
 Jeopardy:
An action that would reasonably
be expected, directly or indirectly, to
reduce appreciably the likelihood of the
survival and recovery of a listed species in
the wild
 Adverse modification: A direct or indirect
alteration that appreciably diminishes the
value of critical habitat for both the survival
and recovery of a listed species
Making the jeopardy call under
scientific uncertainty
NO
Not at all
likely
The Jeopardy
Threshold
YES
LIKELIHOOD OF JEOPARDY
Extremely
likely
Agency doesn’t need to know exactly where the action lies on
the jeopardy continuum -- just so long as it can reasonably
justify that it’s above the threshold.
Reasonable and Prudent
Alternatives (RPAs)
 Can
be implemented in a manner
consistent with intended purpose of action
 Are consistent with the scope of agency’s
legal authority and jurisdiction
 Are economically and technologically
feasible
 The USFWS or NMFS believes they will
avoid jeopardy/adverse modification
The Endangered Species
Committee
 Can
decide whether to exempt a proposed
action from the ESA
 Vote of 5 - 2 required to exempt
 Standards for exemption
 If exemption granted, must impose
reasonable mitigation and enhancement
measures
 Invoked very rarely
TVA v. Hill (1978)
Section 9: Prohibited Acts
Prohibited Acts

Import, export, possess, deliver, carry, sell,
transport, ship listed species
 No “take” -- defined in ESA as “harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture,
collect”
 “Harm” is defined by regulations as “an act
which actually kills or injures wildlife” including
“significant habitat modification that significantly
impairs essential behavioral patterns including
breeding, spawning, rearing, migrating, feeding
or sheltering”
Section 10: Exceptions
Incidental Take Permits
 Can
be obtained for take that is incidental
to an otherwise lawful activity
 Applicant must submit a conservation plan
specifying likely impacts and how they will
be minimized and mitigated
 May be revoked for noncompliance
Other exceptions
 Economic
hardship -- applies narrowly to
contracts entered prior to a species being
listed -- only one year
 Alaska Natives living in Alaska or nonnatives engaged in subsistence harvest
 Agency may nevertheless regulate if the
take materially and negatively affects the
species
Safe Harbor Agreements, aka
“No Surprises”

Voluntary agreements between USFWS or
NMFS and private landowners
 Designed to promote voluntary management for
listed species on private property while giving
assurances that no additional future regulatory
restrictions will be imposed
 Agency issues “enhancement of survival” permit
that authorizes incidental take
 Agency cannot enter agreement unless it finds
that the endangered species will receive a “net
conservation benefit”
Candidate Conservation
Agreements
Addresses species that are “warranted but
precluded” or “may be warranted”
 Voluntary agreement between agency and
private parties to address conservation needs of
candidate species before listing
 Goal: remove or reduce threat to species in
order to avoid listing
 Property owners receive assurances that their
conservation efforts will not result in future
regulations in excess to those in Agreement
