The Endangered Species Act

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The Endangered Species Act - A Primer

by Patrick W. Ryan and Galen Schuler of Perkins Coie LLP*

Copyright 1998 Perkins Coie LLP, Seattle, Washington
* The authors acknowledge the assistance of Marty Vaughn, Beak Consultants, Inc., for his recommendations on practical considerations for HCPs.

I. Introduction

The ESA and its implementing regulations prohibit any person from harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing or collecting any listed threatened or endangered species. This broad prohibition has been interpreted to prohibit even ordinary land use activities such as farming or forestry or site development if the result of such activities would be significant habitat modification or degradation where it actually kills or injures wildlife by interfering with essential biological functions such as feeding, breeding or sheltering. This paper reviews how a species becomes listed, government responsibilities once it is listed, the impact on private lands and land use activities and options for voluntary habitat management agreements as possible solutions to ESA restrictions.

The ESA has been called the "pitbull" of environmental laws, living up to its reputation by halting major federal construction projects such as dams and major highway extensions, and closing down entire forests to harvesting. With one of its principal purposes to preserve the ecosystems upon which species depend, the ESA has reached private land use activity. In an effort to strike a proper balance between species conservation and private land use, the current Administration has initiated several policies that are presently being formalized as ESA implementing regulations. Legislation reauthorizing the ESA and enacting the current Administration's policies has been introduced in the United States Senate as S. 1180. The ESA is over 20 years old and it faces a somewhat uncertain future as the debate concerning the proper balance between species protection and development ensues in Congress, but the bill under development in the Senate appears to have the bipartisan support of Senate Republicans and the Administration. In any event, landowners and others should recognize that the building blocks of the ESA will likely remain intact. The policy of studying, assessing and listing species will continue as will the battle over habitat protection. Those that can anticipate the conflicts and plan accordingly may be able to fulfill the ESA's goal of bringing all listed species back from the brink of extinction while allowing for growth and development in a sustainable way.

Among the more notorious threatened species affecting land use in the Pacific Northwest are the northern spotted owl, the marbled murrelet, and the grizzly bear. The incidence of protection for these species has fallen primarily on public and private timberland. However, recent and imminent listings of various salmon stocks and bull trout are likely to have a much broader regulatory impact because of the need to protect water quantity and quality as fish habitat, especially in urban areas.

II. Key Definitions and Acronyms

Candidate species are defined differently by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service. The Fish and Wildlife Service defines a candidate species as a species for which the Service has sufficient information on file relative to status and threats to support issuance of a proposed listing. The National Marine Fisheries Service defines a candidate species as a species for which concerns remain regarding their status, but for which more information is needed before they can be proposed for listing.

Conservation means to use and the use of all methods and procedures which are necessary to bring any listed endangered or threatened species to the point at which protection under the ESA is no longer necessary.

An endangered species is "any species which is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6).

ESA is the Endangered Species Act.

Fish and Wildlife Service is the U.S. Fish and Wildlife Service.

Jeopardize the continued existence of a listed species means "to engage in 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, numbers, or distribution of the species." 50 C.F.R. § 402.02.

NMFS is the National Marine Fisheries Service.

No surprises is a policy of the Fish and Wildlife Service and NMFS, now codified into a formal rule (see 63 Fed. Reg. 8859), which allows an applicant for an incidental take permit under Section 10 of the ESA to negotiate for long term assurances that no additional mitigation of impacts to protected species will be required for actions covered by the permit regardless of changing circumstances.

Safeharbor is a policy of the Fish and Wildlife Service and NMFS, now proposed as a formal rule, which provides that an applicant for an incidental take or enhancement of survival permit may negotiate for assurances that voluntary actions that promote recovery and conservation of a protected species will not result in additional risk or liability for take under Section 9 of the ESA.

A species is "any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." 16 U.S.C. § 1532(16).

To take is "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19). The Fish and Wildlife Service has defined "harm" as "an act which actually kills or injures wildlife." 50 C.F.R. § 17.3. The regulation further explains that "[s]uch act may include significant habitat modification where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." Id.

A threatened species is "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. § 1532(20).

III. Requirements

The ESA is jointly administered by the Secretaries of Interior and Commerce. The U.S. Fish and Wildlife Service is responsible for terrestrial species and the NMFS is responsible for marine species including anadromous species of fish.

A. Listing, Deisgnation of Critical Habitat and Recovery Planning

The Listing Process
The process to list a species as threatened or endangered can begin in any of three ways:
- A petition by any U.S. citizen to the Fish and Wildlife Service or NMFS.
- An agency initiation of review of a species.
- Emergency designation of a species as threatened or endangered.
Any of the following five factors may be the basis for listing a species as endangered or threatened:
Once a petition is filed, the agency has 90 days to decide if the petition presents enough data to support further investigation. Once sufficient grounds for investigation are found, then the agency commences a review of the status of the species. That review must be completed in 12 months after which Fish and Wildlife Service or NMFS can make one of three decisions:
- Propose a rule to list the species.
- Extend consideration of the petition for another year.
- Reject the petition.
If a decision is made to propose a rule to list a species, then the agency has an additional year to make the listing decision after proposing the rule. The agency can extend its action date another six months if there is substantial disagreement about the available data. A decision to list a species as endangered or threatened must be made "solely on the basis of the best scientific and commercial data available." 16 U.S.C. § 1533(b)(1)(A). Economics are not considered at this stage of the ESA process, but the protection provided by state and local programs and regulations already in place may be considered in a decision whether to list a species. 16 U.S.C. § 1533(b)(1)(A).
Species may also be listed for a limited time under the emergency listing powers of the Services. The ESA provides that either Service may issue an emergency listing regulation that becomes immediately effective upon publication without complying with the proceeding timelines in response to any emergency posing a significant risk to the well-being of a plant, fish, or wildlife species. Furthermore, the Act provides that rulemaking requirements of the Administrative Procedures Act do not apply to emergency listing rules. Emergency rules, however, cease to be effective after 240 days unless the Service initiates formal rulemaking procedures during the emergency 240 month period. The Service may also withdraw the emergency regulation at any time if substantial evidence exists that such regulation is not warranted.
Decisions on whether to list a species as threatened or endangered are administrative decisions and judicial review of those decisions is limited. To succeed in challenging a listing, one would have to demonstrate that the agency acted in an arbitrary or capricious manner. Few cases have been reported where the listing decision was overturned and in most cases subsequent emergency listing or further action to amend the listing was allowed by the courts. It is also rare and difficult for a person to successfully petition for delisting of a species that has been listed, but delisting is allowed under the ESA. 16 U.S.C. § 1533(b)(3)(A).
Designating Critical Habitat
Critical habitat is designated at the time of listing or within one year thereafter. Critical habitat is defined as the specific geographic areas, whether occupied by the species or not at the time of listing, which contain the physical or biological features essential to the species' conservation and may require special management consideration or protection. The designation of critical habitat must be specified "to the maximum extent prudent and determinable." 16 U.S.C. § 1533(a)(3). The Fish and Wildlife Service has issued regulations that establish two conditions when it is imprudent to designate critical habitat. 50 C.F.R. § 424.12(a)(1)(i)-(ii). First, it is imprudent to designate critical habitat when identification is expected to increase the risk of harm to the species or its habitat. Second, critical habitat designation may be imprudent when there is no benefit to the species Economic impact must be considered when determining critical habitat and that means that an area of otherwise critical habitat may also be excluded if the benefits of exclusion outweigh the benefits of inclusion.
Federal agencies are prohibited from authorizing (e.g., through permits, licenses, easements or contracts), funding or carrying out any action that will result in the destruction or adverse modification of critical habitat. Other than those land use activities with a federal nexus, the designation of critical habitat has no direct effect on private lands. Critical habitat designations, however, may impact private landowners pursuing conservation efforts through habitat plans. As discussed below, habitat plans are subject to Section 7 consultation requirements that prevent federal agencies from approving actions that result in the destruction or adverse modification of critical habitat. Accordingly, the Section 7 process may impose additional restrictions for any private operations under HCPs impacting critical habitat within or even adjacent to the planning area beyond those measures developed and negotiated between the HCP applicant and the federal entities.
Development of Recovery Plans
Recovery plans are to be developed and implemented for conservation and survival of endangered and threatened species unless a finding is made that a recovery plan would not promote the conservation of the species.
Recovery plans are only binding on federal agencies, but here again they may have impact on private activities that involve federal license or permit approval, federal funding or assistance.

B. Government Responsibilities

The federal government and each of its agencies has a statutory mandate to use their powers for the conservation of species. Each agency must ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species in the wild, or destroy or adversely modify its critical habitat. If an agency determines that a proposed action may adversely affect such a species, it must formally consult with the Fish and Wildlife Service or NMFS.

After consultation, the Fish and Wildlife Service or NMFS will issue a biological opinion regarding the effects of the proposed action. If the Fish and Wildlife Service finds jeopardy or critical habitat destruction or modification, it must propose reasonable and prudent alternatives to the action. If the action agency rejects these alternatives, the action is at an end (unless the action agency seeks an exemption from the Endangered Species Committee — a cabinet-level committee rarely used).

The Fish and Wildlife Service or NMFS more often finds no jeopardy and the action can proceed. Even if no jeopardy or adverse modification is found, however, the consulting Service can also propose "conservation recommendations" to the action agency in the biological opinion. "Conservation recommendations" are discretionary measures to suggested to minimize or avoid adverse effects of a proposed action on listed species or critical habitat, to develop information, or assist federal agencies in complying with their obligations under Section 7. Conservation recommendations are usually followed by the action agency and always treated seriously.

If the action will result in the incidental take of a listed species, the biological opinion will be accompanied by an incidental take statement with any measures the Fish and Wildlife Service or NMFS believe necessary to minimize the impact of the taking on the species. As the Act and the recent Bennett v. Spear, 117 S. Ct. 1154 (1997) case make clear, however, any alternatives or measures contained in the biological opinion or incidental take statement must be based on "the best scientific and commercial data available."

A private applicant for a federal permit, whose activities have a federal nexus that triggers Section 7 consultation, has a right to participate in the consultation and to comment on a draft biological opinion before its issuance. Under Bennett, the issuance of a biological opinion is a final agency action that can be judicially challenged by private parties economically damaged by the opinion. Private plaintiffs challenging the contents of a biological opinion can proceed against the Fish and Wildlife Service or NMFS under the Administrative Procedures Act and, depending on the nature of the complaint, the ESA.

The incidental take statement conditions and measures can be in the form of a conservation agreement or landowner plan. Thus, participation early in the process is recommended to achieve the best possible result.

In addition to the consultation requirements of Section 7, federal agencies must also consult with qualifying tribes potentially impacted by ESA-related determinations. Under a recent order issued jointly by the Secretaries of Commerce and the Interior, federal agencies that administer the ESA must now consult with any federally recognized tribe whose lands, trust resources, or treaty rights may be impacted by any decision, determination, or activity implementing the ESA.

Other consultation requirements for both federal and state agencies are also required under new implementing regulations for the 1996 Amendments to the Magnuson-Stevens Fishery Conservation and Management Act. The Amendments, referred to as the Sustainable Fisheries Act, and accompanying new regulations require NMFS and the various fishery management councils ("FMCs") to identify and protect "essential fish habitat" ("EFH") for species managed under the Magnuson Act. EFH can include coastal areas and oceans, and it can also include rivers used by anadromous fish. The Amendments provide that whenever a federal or state approval is required for any activity, including a non-fishing related activity, that may adversely affect EFH, a consultation must be conducted, similar to consultation under the ESA. If it is determined that the activity would adversely affect EFH, the FMC and NMFS will recommend measures to the agency for conserving the habitat. Although the Act does not requires the federal or state agencies to carry out the measures, federal agencies will be required to explain in writing their reasons for not following the recommendations.

C. Prohibitions on Take

"Taking" an endangered species, as defined above, is prohibited under ESA. 16 U.S.C. § 1538. The same prohibitions apply to threatened species (50 C.F.R. § 317.3) under the Fish and Wildlife Service's jurisdiction, but NMFS generally issues species-specific regulations that may allow incidental take — for example, general commercial fishing rules. To "take" means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19). Regulations defining "harm" to include habitat modification have recently been upheld by the U.S. Supreme Court in Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon, 115 S. Ct. 2407 (1995). "Take" is defined under the ESA to include "harm" to a listed species. The U.S. Fish and Wildlife Service ("USFWS") has defined "harm" as "an act which actually kills or injures wildlife." 50 C.F.R. § 17.3. The regulation further explains that "[s]uch act may include significant habitat modification where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." Id. Noting its incorporation of "ordinary requirements of proximate causation and forseeability" to actual death or injury to a listed species, this regulation was upheld by the U.S. Supreme Court in 1995. Sweet Home at 2412 n.9.

The prohibitions against a take do not apply to species that are proposed for listing. Thus, landowners are free to develop or use their property during the review period free of any ESA restriction. However, if any federal permit or funding is required for an activity, the federal agency will have to conference with the Fish and Wildlife Service on NMFS on the possible effects of the action.

These prohibitions can be enforced in a civil action initiated by citizen groups under Section 11(g) of the ESA. The federal government also can initiate a civil action to obtain an injunction against the activity that may result in take (e.g., halting an ongoing forest practice); to obtain civil penalties for a past take; or it can initiate a criminal action if the take is "knowing."

Under Sweet Home, the take must be foreseeable and directly linked to the activity. That is, the activity must be the "proximate cause" of actual death or injury to identifiable wildlife. This does not mean that actual death or injury to protected wildlife must have occurred before an injunction may issue. In Marbled Murrelet v. Pacific Lumber Co., 83 F.3d 1060 (9th Cir. 1996), the Ninth Circuit held that Sweet Home did not require actual death or injury for an injunction, but that such death or injury must be imminent and reasonably certain. Unfortunately, this standard can only be applied on a case-by-case basis and provides little guidance to landowners.

D. Habitat Conservation Planning and Other Permit Options for Incidental Take Authorization

In 1982, Congress amended the ESA to allow a private applicant to commit a take that would otherwise be prohibited under Section 9(a)(1)(B) if such taking was "incidental to, and not [for] the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. § 1539(a)(1)(B). Under Section 10 of the ESA, incidental take is currently authorized under through a variety of voluntary agreements to conserve or minimize and mitigate impacts upon fish and wildlife, including: (1) Candidate Conservation Agreements, (2) Safeharbor Agreements, and (3) Habitat Conservation Plans with Implementation Agreements. Candidate Conservation and Safeharbor Agreements are accompanied by an enhancement of survival permit issued under 16 U.S.C. § 1539(a)(1)(A). Habitat Conservation Plans obtain an incidental take permit issued under 16 U.S.C. § 1539(a)(1)(B). Each agreement must satisfy the Section 7 consultation requirement that the accompanying permit does not jeopardize a listed species, i.e., appreciably reduce the likelihood of survival and recovery of the species in the wild. Section 7 also prohibits issuance a of any permit that would result in the destruction or adverse modification of any listed species' designated critical habitat-not just the species for which the permit is sought. Section 7 consultation thus supplements the following standards for all federal agreements, permits, or plans authorizing incidental take of federally listed species.

There are a myriad of conservation strategies that do not involve the expensive, time-consuming HCP process. Incidental take statements, "no take" agreements or cooperative agreements with state and federal authorities are possible alternatives. Careful evaluation of objectives and legal risks are important in this process because the ESA authorizes citizen suits that can undo the benefits of such an agreement.

Candidate Conservation Agreements
The Fish and Wildlife Service and NMFS offer landowners a policy option of entering into "pre-listing" or Candidate Conservation Agreements ("CCAs") that provide regulatory guarantees to landowners who voluntarily agree to protect habitat for fish and wildlife species before they are listed for protection under the ESA. Under a recently proposed Fish and Wildlife Service rule for CCAs, successful applicants will receive an enhancement of survival permit (ESP) if they agree to actions that will provide a net benefit to specified unlisted species so that listing of the species would be unnecessary if all similarly situated landowners within the range of the species were to manage their land in the same fashion. If species covered by the CCA are eventually listed for protection, the ESP authorizes incidental take of those species by any action in accordance with the CCA.
Safeharbor Agreements
Under another recently proposed rule, the Fish and Wildlife Service offers landowners an incentive to assist in the recovery of a protected species by providing regulatory assurances to persons who agree to improve habitat conditions for species that are already listed under the ESA. Safeharbor Agreements allow a landowner to provide a net conservation benefit that will contribute to recovery of a listed species in exchange for the assurance that a return to the baseline habitat condition at the time of permit inception will not result in liability for unlawful take. As in CCAs, parties to approved Safeharbor Agreements will receive an ESP that authorizes incidental take by actions consistent with the terms of the agreement. Under Safeharbor Agreements, however, no immediate take of existing populations or occupied habitat within the planning area is generally allowed. NMFS offers essentially the same benefits under its Safeharbor policy, but has not proposed formal Safeharbor regulations.
Habitat Conservation Plans
An incidental take permit may be issued by either the Fish and Wildlife Service or NMFS to an applicant who submits a habitat conservation plan ("HCP"). An HCP may address listed and unlisted species, and thereby incorporate benefits similar to those obtained under a CCA or Safeharbor Agreement. For an HCP to be approved, the Secretary must find that, among other things, the applicant will "to the maximum extent practicable, minimize and mitigate the impacts of such taking," the applicant "will ensure that adequate funding for the plan will be provided," the taking "will not appreciably reduce the likelihood of the survival and recovery of the species in the wild," and the agency has received assurances as required that the plan will be implemented (usually means an implementation agreement between the agency and the applicant). 16 U.S.C. § 1539(a)(2)(A) and (B).
In exchange for an HCP, a landowner is authorized to incidentally take protected species by any action consistent with the plan. In addition, an applicant for an HCP may negotiate for long term regulatory assurances that no additional mitigation will be required under the plan regardless of changes in circumstances over the life of the permit. These assurances may be obtained under the No Surprises Policy, which has now been formally codified as a formal rule. (see 63 Fed. Reg. 8859). This rule provides that landowners who adequately cover listed and unlisted species in an HCP (i.e., meet the Section 10 criteria for those species) will not be subject to later mitigation requirements in the form of larger land, water, natural resource or financial commitments if the HCP is being properly implemented, even if the needs of the species change over time. No Surprises has many critics, and the HCP applicant who seeks its benefits should carefully examine whether the HCP satisfies the requirements of both Section 10 and the No Surprises rule.
The Habitat Conservation Planning Handbook issued by the Fish and Wildlife Service and NMFS in 1996 explains that HCPs may be processed under three models. First, a low-effect HCP and incidental take permit is possible where actions proposed under the HCP will have a negligible effect on the species addressed by the plan and on other environmental resources. The degree of effect of the HCP is not necessarily dependent on the size of the area covered by the plan or the number of species addressed. A low-effect HCP is categorically exempt from compliance with the National Environmental Policy Act ("NEPA") and does not require an environmental assessment ("EA") or environmental impact statement ("EIS"). In contrast, moderate and high-effect HCPs require, respectively, an EA or EIS. The Handbook explains that high-effect HCPs are rarely required, but in practice many HCPs are completed with an EIS to reduce the risk of court challenges to the HCP under NEPA. The prototype for the 1982 amendments authorizing the HCP/incidental take permit process was the commercial and residential development of San Bruno Mountain in California. See H.R. Rep. No. 567, 97th Cong., 2d Sess. 15 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2871-72. Thus, habitat conservation planning had its origins in the development community. See Michael Bean et al., Reconciling Conflicts Under the Endangered Species Act: The Habitat Conservation Planning Experience (World Wildlife Fund 1991). Courts have upheld the habitat conservation planning process under Section 10, Friends of Endangered Species, Inc. v. Jantzen, 589 F. Supp. 113 (N.D. Cal. 1984), aff'd, 760 F.2d 976 (9th Cir. 1985), however, the applicability of such planning to ongoing operations such as commercial tree farming, hydroelectric generation, and agriculture remains to be seen even though several incidental take permits under Section 10 have been issued to commercial forest owners.

IV. What to Expect in the Short Term

The high visibility and significant impact of ESA on the Northwest as well as likely Congressional action make this a rapidly evolving area of the law. There is unresolved tension between the current Administration's efforts to use guarantees of regulatory certainty as an incentive for voluntary agreements to protect and conserve fish and wildlife and advocates for strict application and enforcement of the ESA to achieve recovery of protected species. This tension is evident in opposition to the recently finalized and proposed regulations on No Surprises, Candidate Conservation Agreements, and Safe Harbor Agreements, and it will also play out in debate over similar provisions included in the ESA reauthorization debate in 1998. The same tension also exists in efforts by interest groups and some agency officials to reinterpret ESA standards to raise the bar for approval of habitat conservation plans. In addition to these dynamics, the consequences of several recent or imminent listings of Pacific Northwest salmon and other fish species are only beginning to be realized. With the recent surge in salmon listings, a convergence in Clean Water Act and ESA regulation can be expected. Owners and users of affected land and water resources are encouraged to closely monitor these developments and to think and act strategically to achieve ESA compliance with maximum efficiency and minimum regret.

The Fish and Wildlife Service and NMFS have issued a handbook to assist landowners with the preparation of HCPs. The handbook is helpful in understanding the complex requirements of the conservation planning process, but be careful to distinguish guidelines from requirements. Congress intentionally specified only four basic requirements of an HCP in Section 10 of the ESA because they anticipated the myriad of situations under which HCPs would be prepared. They wanted applicants and the agencies to have flexibility in the process. The basic requirements must be met, but the rest of the process is largely negotiable.

The development of an HCP is expensive and time consuming, largely because of the far-reaching implications it has for the applicant, landowners and the agencies. The completed HCP will direct the management of the affected lands and determine the fate of resident fish and wildlife for several decades. It will become the basis for a legal contract, called an "implementation agreement," between the applicant, landowner and the federal government. As a result, much of the time spent in development is devoted to analyzing and negotiating mitigation measures.

V. Resources

A. Recommended Further Reading

The Endangered Species Act: Impact of Section 9 on Private Landowners

Richard Littell, Endangered and Other Protected Species: Federal Law and Regulation (BNA 1992).

United States Fish & Wildlife Service and National Marine Fisheries Service, Habitat Conservation Planning Handbook (November 1996).

B. Contacts

Federal
Fish and Wildlife Service Regional Office
Fish and Wildlife Service Law Enforcement Field Offices
National Marine Fisheries Service
State
Department of Fish and Wildlife
Wildlife Species of Concern - (360) 902-2543
Department of Ecology