A Guide to the Endangered Species Act Requirements, Process, and Compliance

The Endangered Species Act (ESA) stands as a powerful tool for protecting and recovering vulnerable plant and animal species in the United States. This comprehensive guide dives deep into the intricacies of the ESA, providing a clear understanding of its regulatory scope, compliance requirements, and enforcement mechanisms. Learn about the Act's key provisions, including the listing process, critical habitat designations, and prohibited activities. Explore the roles of federal agencies like the U.S. Fish and Wildlife Service and the National Marine Fisheries Service in administering and enforcing the ESA. Understand the consultation process, permitting requirements, and the importance of Habitat Conservation Plans in navigating the complexities of ESA compliance. With a focus on practical guidance and real-world examples, this guide serves as an invaluable resource for effectively managing the challenges and opportunities associated with the Endangered Species Act in the context of large-scale development projects.

GENERAL INFORMATION

Key Details of the Endangered Species Act

Issuing Agencies: U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) Year Established: 1973 Last Amended: 1988 Statutory Authority: Endangered Species Act Primary Legal References: Title 50, Parts 17 and 402 of the Code of Federal Regulations

What is the Endangered Species Act?

The Endangered Species Act (ESA) is a comprehensive federal law that aims to protect and recover imperiled species and the ecosystems upon which they depend. Administered by the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS), the ESA operates within a broader framework of federal environmental regulations and wildlife conservation laws.¹

Enacted in 1973, the ESA has undergone several amendments, most notably in 1978, 1982, and 1988. The Act's primary goals are to prevent the extinction of endangered and threatened species, and to promote their recovery to the point where ESA protections are no longer necessary.²

The ESA achieves these goals through several key mechanisms, including:

• Listing species as endangered or threatened based on scientific criteria
• Prohibiting the "take" of listed species, which includes harming, harassing, or killing them
• Requiring federal agencies to consult with USFWS or NMFS to ensure their actions do not jeopardize listed species or adversely modify their critical habitat
• Providing funding for conservation efforts and incentives for private landowners to protect listed species

The ESA applies to all lands and waters under U.S. jurisdiction, and its protections extend to all endangered and threatened species, except for pest insects.³

What does the Endangered Species Act protect?

The Endangered Species Act protects plant and animal species that are listed as endangered or threatened, as well as the habitats upon which they depend. An endangered species is one that is "in danger of extinction throughout all or a significant portion of its range," while a threatened species is one that is "likely to become an endangered species within the foreseeable future."⁴

The ESA protects listed species by prohibiting their "take," which is defined as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."⁵ This broad definition encompasses both direct harm to individual members of a species and indirect harm through habitat modification or degradation.

In addition to protecting individual species, the ESA also requires the designation of "critical habitat" for each listed species, which includes areas that are essential for the conservation of the species and may require special management considerations or protection.⁶ Federal agencies must ensure that their actions do not result in the destruction or adverse modification of designated critical habitats.

REGULATORY SCOPE & JURISDICTION

Regulated Activities, Entities & Prohibited Substances

The Endangered Species Act (ESA) is a comprehensive federal law that regulates activities and entities that may impact threatened or endangered species and their habitats. The ESA applies to a wide range of industries and activities, including construction, development, agriculture, forestry, mining, and energy production. The law prohibits any action that may "take" a listed species, which includes harming, harassing, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting the species or attempting to engage in any such conduct.⁷

Prohibited activities and substances under the ESA include:

1. Habitat destruction or modification: Altering or destroying the habitat of a listed species in a way that significantly impairs essential behavioral patterns, such as breeding, feeding, or sheltering.⁸

2. Pollution: Discharging pollutants, chemicals, or other substances that may harm listed species or their habitats, such as pesticides, herbicides, or toxic waste.⁹

3. Introduction of invasive species: Releasing non-native species that may compete with, prey upon, or otherwise harm listed species or their habitats.¹⁰

4. Trade in listed species: Selling, offering for sale, delivering, carrying, transporting, or shipping any listed species in interstate or foreign commerce, unless authorized by a permit.

These prohibitions are essential for protecting threatened and endangered species from further decline and extinction. By regulating activities that may harm listed species or their habitats, the ESA aims to conserve biodiversity and maintain healthy ecosystems for future generations.

Key Sections of the Endangered Species Act

Section 4: Listing, Critical Habitat Designation, and Recovery Plans

• Purpose: Establishes the process for listing species as threatened or endangered and designating critical habitat.
• Requirements: The U.S. Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) must determine if a species is threatened or endangered based on scientific data and analysis. They must also designate critical habitat and develop recovery plans for listed species.¹¹
• Significance: Listing a species triggers the ESA's protections and conservation measures. Critical habitat designation helps protect areas essential for the species' survival and recovery.
• Compliance strategies: Developers should review the list of threatened and endangered species and their critical habitats to determine if their project may impact any listed species. They should also consult with the FWS or NMFS to ensure compliance with the ESA.

Section 7: Interagency Cooperation and Consultation

• Purpose: Requires federal agencies to consult with the FWS or NMFS to ensure their actions do not jeopardize the continued existence of listed species or destroy or adversely modify critical habitat.
• Requirements: Federal agencies must assess the effects of their actions on listed species and critical habitat through a biological assessment. If the action may affect a listed species, the agency must consult with the FWS or NMFS to determine if the action is likely to jeopardize the species or adversely modify critical habitat.¹²
• Significance: Section 7 consultations help ensure that federal actions do not contribute to the extinction of listed species or the destruction of their critical habitat.
• Compliance strategies: Developers should determine if their project requires any federal permits, funding, or authorization that may trigger a Section 7 consultation. They should work closely with the relevant federal agencies and the FWS or NMFS to ensure compliance with the consultation requirements.

Section 9: Prohibited Acts

• Purpose: Prohibits the "take" of any listed species, which includes harming, harassing, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting the species or attempting to engage in any such conduct.
• Requirements: It is unlawful for any person, including private individuals and entities, to engage in any activity that may result in the take of a listed species, unless authorized by a permit.¹³
• Significance: Section 9 is the primary enforcement mechanism of the ESA, ensuring that listed species are protected from direct harm and exploitation.
• Compliance strategies: Developers should carefully assess their project's potential impacts on listed species and take all necessary measures to avoid any unauthorized take. They may need to obtain an incidental take permit under Section 10 if their project may result in the incidental take of a listed species.

Section 10: Exceptions and Permits

• Purpose: Allows for certain exceptions to the ESA's prohibitions, including incidental take permits for non-federal entities.
• Requirements: Non-federal entities may apply for an incidental take permit if their otherwise lawful activities may result in the incidental take of a listed species. To obtain a permit, the applicant must develop a Habitat Conservation Plan (HCP) that minimizes and mitigates the impacts of the take.¹⁴
• Significance: Section 10 provides a pathway for non-federal entities to comply with the ESA while still proceeding with their activities, as long as they take appropriate measures to minimize and mitigate the impacts on listed species.
• Compliance strategies: Developers should determine if their project may result in the incidental take of a listed species and, if so, develop an HCP and apply for an incidental take permit. They should work closely with the FWS or NMFS to ensure their HCP meets the necessary requirements and standards.

Section 11: Penalties and Enforcement

• Purpose: Establishes the penalties for violating the ESA and the enforcement mechanisms available to the FWS and NMFS.
• Requirements: Violations of the ESA can result in civil penalties of up to $25,000 per violation and criminal penalties of up to $50,000 and/or one year in prison per violation. The FWS and NMFS have the authority to investigate and enforce violations of the ESA.

Relationship to Other Regulations & Agencies

The Endangered Species Act interacts with several other federal, state, and local regulations and agencies in the protection of threatened and endangered species and their habitats:

1. National Environmental Policy Act (NEPA): NEPA requires federal agencies to assess the environmental impacts of their proposed actions, including impacts on threatened and endangered species. The NEPA process often involves coordination with the ESA, particularly when a proposed action may affect a listed species or critical habitat.

2. Clean Water Act (CWA): The CWA regulates the discharge of pollutants into waters of the United States, which may include habitats for listed species. The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) work with the FWS and NMFS to ensure that CWA permits and activities do not jeopardize listed species or adversely modify critical habitat.

3. Migratory Bird Treaty Act (MBTA): The MBTA protects migratory birds, some of which may also be listed under the ESA. The FWS administers both the MBTA and the ESA and works to ensure that activities comply with both laws.

4. State and local regulations: Many states and local governments have their own laws and regulations that protect threatened and endangered species and their habitats. These laws may be more stringent than the federal ESA and may require additional permits or approvals.

The primary federal agencies responsible for implementing and enforcing the ESA are:

1. U.S. Fish and Wildlife Service (FWS): The FWS is responsible for the conservation of terrestrial and freshwater species and their habitats. It administers the ESA for these species, including listing, critical habitat designation, recovery planning, and permitting.¹⁵

2. National Marine Fisheries Service (NMFS): The NMFS, a division of the National Oceanic and Atmospheric Administration (NOAA), is responsible for the conservation of marine and anadromous species and their habitats. It administers the ESA for these species, including listing, critical habitat designation, recovery planning, and permitting.

Other federal agencies, such as the EPA, USACE, and U.S. Forest Service, also play important roles in implementing and enforcing the ESA, particularly when their actions or permitting decisions may affect listed species or critical habitat. Effective coordination and consultation among these agencies are essential for ensuring the protection of threatened and endangered species and their habitats.

COMPLIANCE REQUIREMENTS & STANDARDS

Regulatory Standards & Limitations

The Endangered Species Act (ESA) prohibits the "take" of listed species, which is defined as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."¹⁶ The term "harm" is further defined to include significant habitat modification or degradation that actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.¹⁷

The ESA requires federal agencies to consult with the U.S. Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) to ensure that their actions, including permit and license approvals, are not likely to jeopardize the continued existence of any listed species or destroy or adversely modify critical habitat.¹⁸ This consultation process, known as Section 7 consultation, establishes standards for federal agency actions that may affect listed species or their critical habitat.

Private landowners, corporations, and other non-federal entities must also comply with the ESA's prohibition on taking listed species. The FWS and NMFS may issue incidental take permits to allow take that is incidental to, and not the purpose of, carrying out an otherwise lawful activity.¹⁹ To obtain an incidental take permit, applicants must develop a Habitat Conservation Plan (HCP) that specifies:

• The impact that will likely result from the taking
• The steps the applicant will take to minimize and mitigate such impacts, and the funding that will be available to implement such steps
• The alternative actions to such taking the applicant considered and the reasons why such alternatives are not being utilized
• Such other measures that the Secretary may require as being necessary or appropriate for purposes of the plan²⁰

The ESA's standards and limitations are enforced through civil and criminal penalties, as well as citizen suits that allow individuals and organizations to sue alleged violators or the government for failing to properly implement the Act.

Monitoring, Reporting & Recordkeeping Obligations

Entities that obtain incidental take permits under the ESA must comply with monitoring, reporting, and recordkeeping requirements specified in their Habitat Conservation Plans (HCPs) and associated permits. These requirements ensure that the permittee adheres to the terms and conditions of the permit and provide information to the U.S. Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) on the effectiveness of the HCP in minimizing and mitigating take.

Monitoring requirements may include:

• Surveys to assess the status of covered species and their habitat
• Tracking of habitat restoration or enhancement projects
• Monitoring of compliance with avoidance and minimization measures
• Adaptive management triggers and responses²¹

Reporting requirements typically include:

• Annual reports summarizing monitoring results, incidental take, and compliance with permit conditions
• Notifications of non-compliance or changed circumstances that may affect the implementation of the HCP
• Final reports at the conclusion of the permit term²²

Recordkeeping obligations may require permittees to maintain records related to:

• Monitoring data and survey results
• Incidental take and mitigation measures
• Funding expenditures and financial assurances
• Compliance with permit conditions²³

These monitoring, reporting, and recordkeeping requirements are crucial for ensuring compliance with the ESA and evaluating the effectiveness of HCPs in conserving listed species and their habitat. Failure to comply with these obligations may result in permit suspension or revocation, as well as civil or criminal penalties.

Enforcement Actions & Penalties

The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) are responsible for enforcing the Endangered Species Act (ESA) and monitoring compliance with its requirements. These agencies conduct inspections and audits to ensure that regulated entities, including those with incidental take permits, are adhering to the terms and conditions of their permits and complying with the ESA's prohibition on taking listed species.

Inspections may be:

• Routine inspections conducted on a regular basis
• Targeted inspections based on specific concerns or information
• Complaint-driven inspections in response to citizen reports of alleged violations²⁴

During inspections, regulated entities are required to provide access to their facilities, records, and personnel, and to cooperate with agency inspectors. Inspectors may review monitoring data, survey results, and other records to verify compliance with permit conditions and the accuracy of reported information.²⁵

Violations of the ESA can result in a range of enforcement actions and penalties, depending on the nature and severity of the violation. These may include:

²⁶²⁷²⁸

Factors that influence the severity of penalties include the harm caused to listed species, the economic benefit derived from the violation, the violator's cooperation and compliance history, and the need for deterrence.²⁹

Compliance Assistance & Regulatory Incentives

The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) offer various programs, resources, and incentives to help entities understand and comply with the Endangered Species Act (ESA). These include:

1. Technical Assistance: The FWS provides guidance documents, such as the Habitat Conservation Planning Handbook, to help entities develop effective Habitat Conservation Plans (HCPs) and navigate the incidental take permitting process. They also offer pre-application consultations to discuss project plans, potential impacts on listed species, and mitigation options.³⁰³¹

2. Training and Workshops: The FWS conducts training sessions and workshops on ESA compliance, HCP development, and best practices for minimizing and mitigating impacts on listed species. These events provide opportunities for regulated entities to learn from agency experts and share experiences with their peers.³²

3. Cooperative Conservation Initiatives: The FWS partners with landowners, conservation organizations, and other stakeholders to develop and implement voluntary conservation agreements, such as Safe Harbor Agreements and Candidate Conservation Agreements with Assurances. These agreements provide regulatory assurances to participants who commit to conservation actions that benefit listed or at-risk species.

4. Funding Opportunities: The FWS administers several grant programs, such as the Cooperative Endangered Species Conservation Fund and the Partners for Fish and Wildlife Program, that provide financial assistance to states, territories, and private landowners for species and habitat conservation projects. These funds can support the development and implementation of HCPs, as well as other conservation efforts that contribute to ESA compliance.

5. Regulatory Streamlining: In some cases, the FWS may offer expedited permitting or simplified procedures for projects that have minor impacts on listed species or that incorporate pre-approved conservation measures. For example, the FWS has developed Programmatic Biological Opinions for certain types of projects, such as wind energy facilities, that streamline the consultation process and provide greater regulatory certainty for project proponents.

Entities seeking to participate in these compliance assistance and incentive programs should contact their regional FWS or NMFS office for more information on eligibility, application processes, and potential benefits. Additional resources and contact information are available on the FWS Endangered Species Program website and the NMFS.

ADDITIONAL RESOURCES

Regulatory History & Upcoming Changes

The Endangered Species Act (ESA) was signed into law in 1973 and has since been amended several times. The major amendments include:

1. 1978 Amendments³³

   • Established the "God Squad," a committee that could grant exemptions from ESA restrictions.
   • Required designation of "critical habitat" for listed species.

2. 1982 Amendments³⁴

   • Introduced the concept of "incidental take" and established the permitting process for non-federal entities.
   • Required the development of recovery plans for listed species.

3. 1988 Amendments³⁵

   • Increased civil and criminal penalties for ESA violations.
   • Authorized the use of candidate conservation agreements.

The ESA has been a subject of political debate, with some arguing for stronger protections and others advocating for more flexibility for landowners and businesses.³⁶ In recent years, several legislative efforts have sought to modernize the ESA, but none have been enacted into law.

In 2019, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service finalized a series of regulatory changes to the ESA, which included:³⁷

• Revising the process for listing species and designating critical habitat.
• Clarifying the standards for delisting species.
• Modifying the consultation process for federal agencies.

These changes were met with mixed reactions from conservation groups and industry stakeholders. As of 2023, there are no major regulatory changes or pending legislation related to the ESA. However, stakeholders should stay informed about potential future developments by monitoring agency websites, industry publications, and environmental news outlets.

Additional Resources

1. Full text of the Endangered Species Act and its amendments: https://www.fws.gov/law/endangered-species-act³⁸

2. U.S. Fish and Wildlife Service ESA guidance documents and fact sheets:

3. National Marine Fisheries Service ESA resources:

4. "The Endangered Species Act at Thirty" by Dale D. Goble, J. Michael Scott, and Frank W. Davis (Island Press, 2005)³⁹

   • Comprehensive analysis of the ESA's first thirty years, including its successes, challenges, and future prospects.

5. "Endangered Species Act: Law, Policy, and Perspectives" by Donald C. Baur and Wm. Robert Irvin (American Bar Association, 2010)⁴⁰

   • Collection of essays exploring the legal, policy, and practical dimensions of the ESA.

6. Cornell University's Legal Information Institute ESA overview: