USGS Guide to Federal Environmental Laws and Regulations
ENDANGERED SPECIES
Table of Contents
Purpose
The Endangered Species Act (ESA) of 1973, was written to provide a means for the protection of all endangered and threatened species of life. It is comprehensive in that it also provides for the protection of the critical habitats on which these species depend on for survival. The act then takes the appropriate steps to achieve these goals. The
U.S. Fish and Wildlife Service (FWS), and the National Marine Fisheries Service
(NMFS), are responsible for administering the Act, with FWS covering all non-marine species and NMFS covering all marine species.
Major Provisions by Section
- § 4 (16 U.S.C. 1533), Determination of Endangered Species and Threatened Species
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Provisions are given concerning the listing of endangered or threatened species by the Secretary of the Interior or the Secretary of Commerce. These listings are to be based on the "best scientific and commercial data available". Section 4(b)(3) provides that citizens may petition to modify the lists. Part (f) discusses that the Secretary shall develop and implement recovery plans for the conservation and survival of listed species unless it is found that such a plan will not promote the conservation of the species.
§ 7 (16 U.S.C. 1536), Interagency Cooperation
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Any action falling under the auspices of the ESA requires all Federal agencies to consult with the appropriate wildlife management agencies [U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS)]. It is stated that all federal agencies shall insure that their actions "are not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification" of the critical habitat. If actions are found to contradict the aforementioned, an Endangered Species Committee of six federal officials and a representative from each affected state is available to review applications for an ESA exemption.
§ 9 (16 U.S.C. 1538), Prohibited Acts
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This section makes it unlawful to import, export, possess, sell, deliver, transport, or ship any endangered species. It is also unlawful to take any endangered species. These provisions apply to any listed species, including plants and threatened species. The prohibitions pertain to any "person", including any corporation or government entity.
§ 11 (16 U.S.C. 1540), Penalties and Enforcement
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Both civil and criminal penalties are possible from violations of the ESA. The federal government is given authorization for enforcement. Citizen suits can be brought against any person alleged to be in violation of the act, including the Secretary for failure to perform any non-discretionary duty.
- 19 CFR Part 12.26, Special Classes of Merchandise: Wild Animals, Birds, and Insects,
U.S. Customs Service
This section bans the importation of any species living or dead, including any parts, products, or eggs thereof, appearing on the Endangered Species List. Without a permit authorizing the import by the U.S. Fish and Wildlife Service, customs release of the specimen shall be refused. Specimens entering without a permit shall be immediately exported or destroyed.
- 50 CFR Part 13, General Permit Procedures, U.S. Fish and Wildlife Service
Most of this regulation applies to general wildlife permit procedures. Of particular interest is §12(a)(3) & (b). Here, sections of 50 CFR Part 17 are given for which special exemptive permits may be administered. Examples of reasons for such permits include those actions promising propagation, and similarity of appearance and economic hardship provisions. Permits must be filed with the U.S. Fish and Wildlife Service. Permit administration and conditions are dealt with in subparts C and D, respectively.
- 50 CFR Part 17, Endangered and Threatened Wildlife and Plants, U.S. Fish and Wildlife Service
Subpart A gives an introduction and general provisions. The regulations in this section are to apply to endangered and threatened wildlife and plants. Subpart B identifies all species of wildlife which have been determined to be endangered or threatened. Subparts C (endangered wildlife), D (threatened wildlife), F (endangered plants), and G (threatened plants) state the prohibitions which apply to each listed species. This includes the import or export of such species. No person is allowed to take a listed species. It is also unlawful to deliver, receive, carry, transport, or ship any listed species in interstate or foreign commerce. No listed species shall be sold. Captive-bred endangered wildlife are also covered. Section 17.22 gives permit provisions for scientific purposes, enhancements of propagation or survival, or for incidental taking. Special permits may also be given in certain cases of economic hardship. Some non-listed species may be protected under the ESA because of similarity of appearance to a listed species (Subpart E). Critical habitats are addressed in Subpart I. Finally, Subpart J provides special provisions for manatee areas.
- 50 CFR Part 220, General Permit Procedures, National Marine Fisheries Service
This section concerns the permits that must be obtained when engaging in an activity covered under 50 CFR Parts 217-222 or the ESA. Parts 217 through 222 address marine fish and wildlife only. If any project involves these animals, then a valid permit must be acquired through the National Marine Fisheries Service. For precise coverage, please consult parts 217 through 222.
- 50 CFR Part 402, Interagency Cooperation - Endangered Species Act of 1973, as amended, Joint Regulations on Endangered Species
This part establishes interagency cooperation procedures under
§§ 7(a)-(d) of the ESA. Federal agencies are granted authority
and given requirements to follow regarding endangered or threatened
species of fish, wildlife, or plants and habitats of such species that
have been listed as critical in § 7(a). Federal agencies are here
encouraged to carry out conservation programs for listed species. In
§ 7(a)(2), agencies are directed to insure that any action it
authorizes, funds, or carries out must not jeopardize the continued
existence of any listed species or result in the destruction or
adverse modification of critical habitat. Federal agencies must also
confer with the Secretary of the Interior when any action is likely to
adversely affect proposed critical habitat or a
proposed threatened/endangered species directly.
- 50 CFR Part 424, Listing Endangered and Threatened Species and Designating Critical Habitat, Joint Regulations on Endangered Species
This part presents the rules for revising the Lists of Endangered and
Threatened Wildlife and Plants, and also gives the rules for
designating critical habitats. Any such revision must be performed by
the Secretary of the Interior. Critical habitats shall be specified
at the time a species is proposed for listing, to the maximum extent
possible (§12). In §14, guidelines are given for submitting a
petition to revise the list. Instructions are given as to the
publication of this information, with the final result being a Final
Rule in the Federal Register. The Lists of Endangered and Threatened
Wildlife and Plants shall be reviewed every five years to determine if
a subject should be delisted or reclassified.
- 516 DM 2, Appendix 2 (2.8), U.S. Department of Interior
Environmental documents (i.e. EIS, EAS, FONSI) must be prepared for
actions which may adversely affect a species listed, or proposed to be
listed, on the "List of Endangered or Threatened Species" or so effect
a designated critical habitat for these species.
- Endangered Species
- Any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection...would present an overwhelming and overriding risk to man. (ESA, § 3)
Threatened Species- Any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. (ESA, § 3)
Critical Habitat- For a threatened or endangered species: the specific areas within the geographical area occupied by the species...on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and specific areas outside the geographical area occupied by the species upon determination by the Secretary that such areas are essential for the conservation of the species. (ESA, § 3)
Take- To harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. (ESA, § 3)
Such actions include: Mineral extraction operations, blasting, trenching, drilling, and other actions that create noise or disturb existing land or water conditions.
Summary of Implementation Procedures (Consult 50 CFR Part 402 for details) and Contacts
- Determine if any FWS or NMFS listed endangered or threatened species, or those proposed to be listed, may be present in the area to be affected by the proposed action. If there are no such species present, or if they are present but will not be affected, no further steps need be taken. Federal and state coordination should be initiated as appropriate to satisfy jurisdictional responsibilities. Copies of the FWS lists, updates, and any available maps can be obtained from:
Office of Endangered Species
U.S. Fish and Wildlife Service
Main Interior Building
Washington, D.C. 20240
NMFS information requests can be directed to the:
Office of Protected Resources
1315 East West Hwy.
Silver Spring, MD 20910
Tel: (301) 713-2332
If listed or proposed species may be present, a biological assessment should be conducted to verify the presence any such species and to determine whether the proposed action may affect them. If the proposed action may affect such species, then an Environmental Assessment must also be prepared. The two assessments should be integrated to reduce duplication of effort and paperwork. Formal consultation (initiated by written request to the Regional Director of FWS or NMFS) is necessary only if such species may be affected. No irreversible or irretrievable commitment of resources which could foreclose reasonable options can occur during consultation.
- As a result of formal consultation, the FWS or NMFS will issue a biological opinion. Biological opinions which reach a conclusion that an action is likely to jeopardize the continued existence of listed species or destroy or adversely modify critical habitat must include a discussion of any "reasonable or prudent alternatives" which FWS or NMFS believes would avoid the jeopardy, destruction, or adverse modification.
- Upon consideration of the biological opinion, the agency may implement the proposed action pursuant to the consultation alternatives issued by the FWS or NMFS, or the agency may withdraw the proposed actions.
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U.S. Department of the Interior 
Cultural & Historic Resources