Endangered Species Act: An Overview

Background

The Endangered Species Act (ESA) was enacted by Congress in 1973 for the purpose of providing federal protection to species of wildlife that are in danger of becoming extinct. The ESA provides a program for the conservation of threatened and endangered plants and animals and the habitats in which they are found. Although the ESA is considered the most powerful piece of legislation dedicated to conserving wildlife, it is not the first piece of legislation with that purpose. In 1966, Congress passed the Endangered Species Preservation Act which authorized the Secretary of the Interior to put together a list of endangered species and provided the Fish & Wildlife Service (FWS) with $15 million per year to buy habitat for the species on that list. In 1969, Congress passed the Endangered Species Conservation Act, which allowed the Secretary of Interior to list foreign species and prohibited the importation of products made from such species. The ESA ultimately replaced the 1969 Act, providing endangered species with more protection than any previous legislation.

The ESA (1) differentiates between “threatened” and “endangered” species; (2) allows listing of a species that is only endangered through part of its range; (3) allows the listing of plant and animal species; (4) makes it illegal to “take” a listed species; and (5) requires that when a species is listed for protection, its habitat has to be protected as well. The ESA is administered by two agencies, the U.S. Fish & Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively “the Services”). FWS is in charge of administering the ESA for all terrestrial and freshwater species while NMFS administers the ESA for all marine species. These agencies are generally referred to as the “listing agencies.”

Federal Regulatory Authority

In the Endangered Species Act, administrative agencies such as USDA/FDA/EPA have been given authority by Congress to create regulations implementing the requirements of the federal law.  In 2024, the Supreme Court of the United States issued two rulings that are expected to have a major impact on how judges decide cases challenging those regulations and that agency authority.

Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024) overruled the long-standing doctrine of deference established in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). Chevron deference was a two-step process that clarified how and when federal courts should defer to an agency regulation interpreting a statute.  Chevron only applied in situations where a court had determined that the statutory language the agency was interpreting was ambiguous.  If it was ambiguous, the court would consider whether the agency’s interpretation of the statutory language was “reasonable”.  If it was reasonable, the court was required to defer to the agency’s interpretation. If it was not, the court would overrule the interpretation.

Loper Bright formally overturned Chevron. In a 6-3 decision, the Supreme Court held that “courts may not defer to an agency interpretation of the law simply because a statute is ambiguous[.]” Following the ruling, courts are instead required to exercise independent judgment in determining whether an administrative agency has acted within its statutory authority.  Courts may still seek guidance from the agencies involved, but courts will no longer be required to defer to an agency’s interpretation of a statute.

In Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 144 S. Ct. 2440 (2024), the Supreme Court extended the period of time during which a party may file a lawsuit challenging federal agency actions. According to 28 U.S.C.S. § 2401(a), the six-year statute of limitations began to run when an administrative agency’s action was “final.”  In Corner Post, the Supreme Court ruled that an action becomes “final” when a plaintiff suffers an injury, rather than when a “final regulation” is released. This ruling expands the potential for plaintiffs to challenge federal agency rules and regulations that have been final for over six years.

While the full effect of these two rulings remains to be seen, it is highly likely that the agricultural industry will be impacted by the Supreme Court’s decisions. Importantly, the rulings fundamentally change how courts will resolve lawsuits challenging agency regulations for misinterpreting the agency’s statutory authority. Impacts are most likely to be felt in areas of the law, such as Endangered Species Act, dominated by statutes with relatively ambiguous language where Congress has relied on agency regulations to fill in specifics.

“Threatened” vs. “Endangered” Species

An important feature of the ESA is its distinction between endangered and threatened species. The ESA defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range.” The ESA defines a threatened species as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The “foreseeable future” can only be only as far into the future as either of the Services can reasonably determine that both the future threats and a species’ responses to those threats are more likely than not. If a species is listed as endangered under the ESA, that species is provided the full protection of the Act. However, if a species is listed as threatened, then the listing agency has the authority to determine which protections should apply to each threatened species.

While listing a species as endangered provides the species with a greater protective status, listing a species as “threatened” provides two major benefits: first, it provides the species with federal protection before the species reaches the point of near-extinction; second, if a species was initially listed as endangered, the threatened status allows the scaling back of ESA protection as the species recovers and is no longer in need of maximum protections.

“Take” and Take Permits

Perhaps one of the most well-known components of the ESA is the section 9 prohibition against take of a species. Under the ESA, the term “take” is quite broadly defined. The Act defines take as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” The term harm is further defined by regulation as “an act which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.”

When a species is listed as endangered under the ESA, any take of that species is expressly prohibited without a take permit. Take permits may be obtained by both public and private parties. An incidental take permit authorizes a taking of a listed species provided that the take is incidental to some other lawful activity. These permits are usually very precise, detailing exactly which species is authorized for incidental take and how many individual members of that species will be covered by the permit. An incidental take permit will only be issued after completion of a Habitat Conservation Plan.

Historically, the ESA automatically extended the prohibition against take to all threatened species by applying what became known as the “blanket 4(d) rule.” The rule, located in section 4 of the Act, extended to threatened species the same protections granted to endangered species. Under the blanket 4(d) rule, endangered and threatened species were treated as essentially the same. Regulations adopted in August 2019 repealed the blanket 4(d) rule and changed the way that the take prohibition applied to threatened species. Under the 2019 regulations, species listed as threatened did not automatically receive the same protections as endangered species. Instead, the listing agency specified which protections the threatened species would receive. Currently, the listing Service that is listing a threatened species must choose whether the blanket 4(d) rule or species-specific protections apply. FWS generally uses the blanket 4(d) rule while NMFS uses species-specific protections.

Habitat Conservation Plans

Habitat Conservation Plans (HCP) are planning documents required under the ESA as part of an application for an incidental take permit. HCPs describe the anticipated effects of the proposed taking, how the impacts of the taking will be minimized or mitigated, and how the HCP will be funded. HCPs are primarily used by private parties carrying out otherwise legal activities that are likely to result in the take of a listed species.

Listing and Delisting

Under the ESA, the appropriate Secretary (either the Secretary of Interior or the Secretary of Commerce depending on whether FWS or NMFS is handling the listing) makes the final decision about whether to list a species. When making a listing decision, the listing Secretary must base the decision solely on the best available scientific and commercial information. When evaluating a species for listing, there are many factors that the listing Secretary may consider, including: (1) damage to or destruction of the species’ habitat; (2) overutilization of the species for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing protection; and (5) other natural or manmade factors that affect the continuation of the species. Prior to 2019, the Services were specifically directed not to take economic impacts into account when deciding whether to list a species. The regulations adopted in 2019 removed the prohibition on economic impacts, meaning that for the first time FWS and NMFS were allowed to consider economic impacts when making a listing decision. However, neither agency is required to do so. The question of whether a species should be listed as threatened or endangered depends on the severity of its population decline and the threats to its continued survival.

Species may be listed on the initiative of the appropriate Secretary, but more commonly a species will be listed by a petition from an individual, group, or state agency. The ESA requires that “to the maximum extent possible,” FWS and NMFS must make an initial determination on a species’ status within 90 days of receiving a listing petition. The 90-day determination period allows the agency to assess whether the petition provides sufficient information to support a finding that the petitioned action may be warranted. If the agency determines that the petition presents sufficient information, then the agency has 12 months to conduct a status review of the species. There are three possible outcomes of a status review: (1) the agency finds that the petitioned action is not warranted; (2) the agency finds that the petitioned action is warranted, and a listing proposal will soon be published in the federal registrar; or (3) the agency finds that the petitioned action is warranted, but the action will not take place because it is precluded by a species with a higher listing priority. As of March 2023, there are 2,381 species listed under the ESA, with 1,683 of those species located within the United States. Out of those 1,683 species located within the United States, 1,389 are listed with active Recovery Plans. Those 1,683 species are composed of 742 animals and 941 plants.

“Delisting” is the term used when a species is removed from the list of threatened and endangered species. A species will be delisted if the Services determine that the species is either extinct, no longer meets the definition of a threatened or endangered species, or it no longer meets the ESA definition of a “species”. The decision to delist a species must be made solely upon the basis of the best available scientific and commercial information, with the decision-maker considering several factors including population size, stability of habitat quality and quantity, and control or elimination of threats. A species will typically be delisted when it has made a sufficient recovery, when new populations of the species are discovered indicating the species is no longer in danger of becoming extinct, or if the species has suffered extinction. As of March 2023, only 104 species have ever been delisted.

Critical Habitat

When a species is listed under the ESA, the listing agency must also designate critical habitat, unless publication of the species’ critical habitat would not be “prudent” under certain circumstances identified by the Services (for example, by encouraging poachers or vandals). Critical habitat is the geographic area that contains the physical or biological features essential to the conservation of the species that the area is designated for. Designation of critical habitat, like all listing decisions, must be made based on the best available scientific and commercial data. Unlike listing determinations, agencies have always been permitted to take economic factors into account when making critical habitat determinations.

Prior to 2019, critical habitat could be a geographical area already occupied by a listed species as well as a geographical area not currently occupied by a listed species so long as the area was necessary for the conservation of a species. However, regulations that were released in August of 2019 altered this rule so that a geographical area unoccupied by the listed species could only be designated as critical habitat if a designation limited to geographical areas occupied by a species would be inadequate to ensure the conservation of the species. Furthermore, for an unoccupied area to be designated as critical habitat, it must be reasonably certain that the area will contribute to the conservation of the species and contains one or more physical or biological features essential to the conservation of the species.

In 2018, the Supreme Court decided that, to meet the definition of critical habitat, an area must be a habitat. In December 2020, the Services published a regulatory definition of “habitat,” that states “for the purposes of designating critical habitat only, habitat is the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.” This definition was intended to include both occupied and unoccupied areas. As of August 2022, this rule has been formally rescinded.

Any habitat, whether federally or privately owned, may be designated as critical habitat. However, a critical habitat designation will only affect private land if some federal action is also involved. The ESA instructs all federal agencies to avoid destruction or adverse modification of critical habitat, either through direct action or through projects that they fund. This same prohibition is not placed upon private landowners who are only required to ensure that they not take a listed species.

Cooperation with Federal Agencies

Section 7 of the ESA requires that all federal agencies must promote the Act’s conservation purposes by consulting with the Services to ensure that any federally authorized, funded, or direct action is not likely to jeopardize the continued survival of any listed species or adversely modify any critical habitat as a whole.

Requests for formal consultation must include descriptions of the proposed action, effects of the action, efforts to offset effects of the action, and several other factors relating the action to the impacted species. The formal consultation process results in a document known as a Biological Opinion (BiOp) which details the effect the proposed federal project would have on any listed species within the project area. Regulations released in August 2019 state that, when preparing a BiOp, the Services can consider proposed activities that will offset the effects of the action. If FWS or NMFS concludes in a BiOp that a proposed project is likely to place a listed species in “jeopardy,” then the consulting agency will offer “reasonable and prudent alternatives” about how the proposed project could be modified to avoid causing harm.

Recovery Plans

In addition to designating critical habitat, FWS and NMFS are tasked with developing recovery plans for every listed species. Recovery plans outline the steps needed to return a species to ecological health. The plans include when and where the steps will need to take place along with the estimated cost of recovery and a general timeline. However, neither the ESA nor its regulations provide a large amount of detail on requirements for the recovery plans, and the plans are not binding on federal agencies.

Public and Private Lands

The ESA has different impacts on public lands than it does on private lands. Critical habitat, prohibition of take, and safe harbor agreements have different rules for private lands than they do for public.

Critical Habitat

Designations of critical habitat can include both public and private land. However, designations only affect federal agency actions or federally funded or permitted activity. Thus, when it comes to taking an action that may impact critical habitat, there are two key questions that must be asked: (1) who is taking the action, and (2) if the person taking the action is a private landowner, is there an underlying federal nexus?

If the answer to the first question is a federal agency, then the decision is simple. The ESA requires federal agencies to ensure that the actions they take will not destroy or adversely modify critical habitat. If a federal agency takes an action, whether on public or private land, it must consult with FWS to ensure that critical habitat will not be destroyed or adversely modified.

If the answer to the first question is a private landowner, then the decision is less straightforward, and the second question must be asked. Generally, private landowners do not need to consult with the Services before taking an action on private land, even if that land has been designated as critical habitat, unless there is an underlying federal nexus. A federal nexus exists when activities on private land require a federal permit or are federally funded. If a federal nexus exists — for example, if the landowner is taking an action that is being funded by a loan from the Farm Service Agency — then the prohibitions against destroying or adversely modifying critical habitat apply to the action, and FWS must be consulted. However, if the landowner is taking an action on private land without an underlying federal nexus, then the critical habitat prohibitions do not apply, and FWS will not need to be consulted.

Designating private land as critical habitat does not affect land ownership, require the government to take or manage the property, establish a conservation area, or allow the government access to the land. It simply means that if there is a federal nexus to an action being taken on that land, FWS must be consulted.

Take

Take of an endangered species is always prohibited by the ESA on both public and private lands (see above for a description of what constitutes “take”). It is unlawful to engage in any take activities on public or private land unless the activities are authorized by a permit. For example, shooting an endangered wolf is always illegal and punishable by fine on all public and private lands in the United States.

Safe Harbor Agreements

Safe Harbor Agreements (SHA) are voluntary agreements between the federal government and non-federal landowners. These agreements are available only on private lands. Under an SHA, the landowner agrees to undertake actions that contribute to the conservation and recovery of listed species. In exchange, the landowner will not be bound by any land use restrictions not included in the SHA, even if the conservation activity leads to an increase in the population of listed species present on the landowner’s property. The SHA will also authorize any incidental take of a listed species as a result of the conservation activities carried out by the landowner. Additionally, the Services cannot require any new or additional land management activities by SHA participants without their consent.

SHAs must be initiated by the private landowner and can take anywhere from six to nine months to develop. After an SHA expires, the landowner may choose to either renew the agreement or let the agreement lapse. If the agreement lapses, the landowner is free to return the property to the baseline conditions that existed before the SHA was in place.