Congress passed the Endangered Species Act in 1973 to "provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved, and to provide a program for the conservation of these species."

The Department of the Interior, acting through the U.S. Fish and Wildlife Service, is responsible for the protection of most threatened and endangered species. The Department of Commerce, through the National Marine Fisheries Service, has responsibility for marine mammals and anadromous fish (fish that spend part of their life in freshwater and part in saltwater).

The structure of the ESA can be broken down into the following components:
• listing of species and designation of critical habitat,
• recovery planning,
• prohibitions, and
• exceptions granted by the "God Squad" or through "incidental take permits"

Listing Endangered And Threatened Species

An "endangered" species is any species of animal or plant that is in danger of extinction throughout all or a significant portion of its range. As of November 4, 2002, there were 1821 species on the endangered and threatened species list, 1260 of which exist in the United States.

A "threatened" species is any species of animal, or plant that is likely to become endangered within the foreseeable future throughout all or a significant portion of its range. As of November 2002, there were 375 threatened species listed, 284 of which occur in the United States.

A "candidate" species is a species for which substantial information is available to support a listing proposal, but for which a lack of funding and personnel preclude listing. The Secretary of the Interior is required to publish "notices of review" which list the status of candidate species. There are currently 257 candidate species - many of which have languished on the candidate list for more than a decade. In 1995, the Secretary of the Interior removed more than 4,000 species from the candidate list without any explanation, leaving them in regulatory limbo with no protections whatsoever.

Any person has the right to submit a petition to list a species and the determination as to whether a species should be listed must be made purely on a scientific basis.

Species can be added to the list of endangered or threatened species for five reasons:
(1) current or threatened destruction of habitat;
(2) overuse of the species for commercial, recreational, scientific or educational purposes;
(3) disease or predation;
(4) ineffective regulatory mechanisms; and
(5) other natural or manmade factors affecting the species’ chances of survival.

Upon receipt of a petition to list a species as threatened or endangered, the U.S. Fish and Wildlife Service or National Marine Fisheries Service ("Service") must take the following actions:

1. 90 days after receiving a petition, the Service must decide whether the available information shows that listing the species as threatened or endangered "may be warranted."

2. 12 months after receiving a petition that may warrant listing the Service must decide whether the listing is "warranted," "not warranted," or "warranted but precluded" and publish a notice in the Federal Register.

3. If listing is "warranted," the Service publishes a "proposed rule" and must place the species on the threatened or endangered list within 12 months of the proposed rule. If listing is "warranted but precluded" because the agency lacks the necessary funding and personnel to process a "proposed rule," the species is listed in the "notice of review" as a candidate species.

4. If the Service decides to list a species as threatened or endangered, it must also designate habitat that is critical to the survival of the species. The Service may decline to designate critical habitat if it finds that it is not "prudent" or "determinable." If habitat is "not determinable," the Service has an additional year to determine critical habitat.

Protecting Critical Habitat

Critical habitat is defined as the geographic area containing physical or biological features essential to the conservation of a listed species or an area that may require special management considerations or protection.

Neither federal agencies nor private landowners may destroy or adversely modify critical habitat of any listed species. The Service is required to "take into consideration the economic impact, and any other relevant impact of specifying any area as critical habitat." The US Fish and Wildlife Service has failed to designate critical habitat for 87 percent of all species listed as threatened or endangered.

Recovery Planning For Threatened and Endangered Species

The Endangered Species Act requires the Service to develop and implement recovery plans for all threatened and endangered species that occur in the United States.

Recovery plans set forth what is needed for a species to "recover" to the point that it no longer needs the protections of the ESA. "Recovery teams," made up of experts from public and private agencies and institutions, are convened to prepare the recovery plans. The plans must include specific management recommendations for the species and objective, measurable criteria which, when met, would signal the recovery of the species.

Not surprisingly, experience has shown that species with recovery plans are more likely to recover than those without plans. Currently, 79 percent of listed species have recovery plans, but unfortunately, the endangered species programs of the National Marine Fisheries Service and US Fish and Wildlife Service have been hampered by underfunding and political pressures, making recovery less effective.

Prohibited Actions Under The Endangered Species Act

The Act establishes broad prohibitions against "taking" endangered or threatened species. In other words, on both public and private lands of the US, it is illegal "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect" threatened or endangered animals. The FWS has defined "harm" to include significant destruction of a species' habitat that results in actual death or injury. This would include interference with a species’ essential behavioral patterns such as breeding, feeding and sheltering. While the "take" prohibition does not extend to plants on federal lands, it is illegal to "remove or reduce to possession" or "maliciously damage or destroy" threatened or endangered plants.

Protection for listed plants is significantly weaker on private lands where it is illegal to "remove, cut, dig up, or damage or destroy" plants only when it is "in knowing violation of any state law or in the course of any violation of state criminal trespass law."

Another section of the ESA requires federal agencies to ensure that any action that they authorize, fund or carry out is not likely to jeopardize the continued existence of any threatened or endangered species or adversely modify the critical habitat of any such species.

Any agency proposing a project such as a timber sale or dam must therefore ask the Service if there are any threatened or endangered species in the project area. If a listed species is present, the agency proposing the action must prepare a "biological assessment" that identifies listed species in the area and outlines the nature and extent of the action's impact on these species. The Service then determines if a "formal consultation" is necessary.

If the biological assessment indicates that the proposed project may impact a listed species or its critical habitat, the Service is required to prepare a "biological opinion" (BO) that determines whether the project will "jeopardize" the continued existence of a listed species.

If the BO indicates that there is "no jeopardy" to the listed species or its critical habitat, then the project proceeds. If the BO indicates that the project, as proposed, will jeopardize the continued existence of a threatened or endangered species, then the Service must suggest "reasonable and prudent alternatives" that they believe would not jeopardize the species' existence. If the Service cannot suggest any reasonable and prudent alternatives, then the proposed project is denied.

Exceptions Granted By The "God Squad"

Proposed federal agency actions that have been determined to cause "jeopardy" to any listed species may receive an exemption from the ESA if five members of the federal "Endangered Species Committee," also known as the "God Squad," determine that the action is of regional or national significance, that the benefits of the action clearly outweigh the benefits of conserving the species and that there are no reasonable and prudent alternatives to the action.

The God Squad is comprised of seven members: the Secretary of Agriculture, the Secretary of the Army, the Secretary of the Interior, the Chairman of the Council of Economic Advisors, the Administrator of the National Oceanic and Atmospheric Administration and one individual from the affected state. The God Squad has been convened only a handful of times.

Exceptions Granted By Incidental Take Permits And HCPs

The ESA contains an exception to the strict prohibition against "take" in which the Service may permit a project to go forward and destroy threatened and endangered species and their habitat as long as the taking is "incidental" to, and not the purpose of, the project. This permit is commonly referred to as an "incidental take permit" (ITP).

The Service cannot issue an ITP unless the permit applicant submits a conservation plan (known as a "Habitat Conservation Plan" (HCP) which specifies: (1) the impact to the species from the project; (2) the steps that will be taken to minimize and mitigate the project's impacts, and the funding that will be available to implement such steps; (3) the alternatives to the project and why those alternatives were not adopted; and (4) any other measure the Service has determined necessary for the plan.

In addition, the Service cannot issue an ITP if it finds that the project's impacts on the listed species will appreciably reduce the likelihood of the species survival and recovery in the wild. HCPs may cover hundreds of listed and unlisted species and be in effect for decades at a time. To date, 413 Incidental Take Permits/Habitat Conservation Plans have been approved and more are currently in development.