Endangered Species Act (ESA)

The Endangered Species Act (ESA) establishes a program for the conservation of endangered and threatened species and the habitats in which they are found. The ESA affords broad protection for species of fish, wildlife, and plants that are listed as endangered and threatened in the U.S. and elsewhere. Provisions are made for listing species, as well as for recovery plans and the designation of critical habitat for listed species. Anyone can petition the Fish and Wildlife Service (FWS) to list a species. The ESA strives to conserve ecosystems both through federal action and by encouraging the establishment of state programs. The law outlines procedures for federal agencies to follow when taking actions that may jeopardize listed species or their habitats. The ESA is the enabling legislation for the Convention on International Trade in Endangered Species of Wild Fauna and Flora.

The ESA requires the Secretary of the Interior (Secretary), acting through the FWS, to list species as endangered or threatened when certain factors, including habitat destruction, overutilization, disease or predation, inadequacy of regulatory mechanisms, or other natural or man-made factors, warrant such a listing. In the case of marine plants, fish, or wildlife, the Secretary of Commerce, acting through the Marine Fisheries Service (MFS), determines whether to list a species or change the status of a species. When determining that a species is endangered or threatened, the Secretary must, to the maximum extent prudent and determinable, designate critical habitat. In addition, the Secretary must develop and implement recovery plans for the conservation and survival of endangered and threatened species.

Under the ESA, the Secretary must cooperate to the maximum extent practicable with states, and may enter into management agreements with states for the administration of particular conservation areas. The Secretary is also authorized to enter into cooperative agreements with states that establish and maintain adequate and active programs for conservation of listed species. State laws or regulations may be more, but not less, restrictive than the ESA or its regulations.

When taking federal action, federal agencies must consult with the FWS or MFS to ensure that such action is not likely to jeopardize the continued existence of a listed species, or result in destruction or adverse modification of a critical habitat of a species. If jeopardy or adverse modification is likely, the FWS or MFS must suggest reasonable and prudent alternatives to the agency and the applicant.

The ESA prohibits the taking, possession, import, export, sale, and transport of any listed fish or wildlife species. The term "take" includes harassing, harming, hunting, killing, capturing, and collecting. It is also unlawful to maliciously damage, destroy, or remove from any area under federal jurisdiction, damage or remove from any other area in knowing violation of state law, import, export, or trade, any listed plant species. These prohibitions do not apply to species legally held in captivity or a controlled environment. In addition, the FWS or MFS may permit a prohibited act for scientific purposes, for the establishment and maintenance of experimental populations, or otherwise enhance the propagation and survival of an affected species. The FWS or MFS, by permit, may also allow a taking incidental to an otherwise lawful activity if the applicant submits, and the FWS or MFS approves, a conservation plan addressing the impact of the taking, mitigation measures, funding, and alternative actions considered.

Requirements of the Endangered Species Act may be triggered if local governments conduct activities along these guidelines.

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