A Guide to the Endangered Species Act Section 9 Requirements, Process, and Compliance

The Endangered Species Act (ESA) Section 9 is a crucial provision that aims to protect threatened and endangered species from harm, harassment, and habitat destruction. This comprehensive guide delves into the intricacies of Section 9, providing a clear understanding of its prohibitions, exemptions, and compliance requirements. Learn about the specific activities and entities regulated under this section, the standards and limitations set forth by the implementing regulations, and the monitoring and reporting obligations for regulated entities. Discover the potential penalties for violations and the compliance assistance programs available to help navigate the complexities of the ESA. By exploring the regulatory history and staying informed about upcoming changes, stakeholders can effectively manage their projects while contributing to the conservation of our nation's most vulnerable species.

GENERAL INFORMATION

Key Details of the Endangered Species Act Section 9

Issuing Agency: United States Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS)

Year Established: 1973

Last Amended: 1988

Statutory Authority: Endangered Species Act

Primary Legal Reference: Title 50, Section 17 of the Code of Federal Regulations

What is the Endangered Species Act Section 9?

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. Passed in 1973, the ESA is administered by the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS). Section 9 of the ESA specifically prohibits the "take" of listed species, which includes harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting.1

The ESA has been amended several times since its initial passage, with the most significant amendments occurring in 1978, 1982, and 1988. These amendments have clarified the requirements for listing species, designated critical habitat, and provided for the development of recovery plans.

The ESA's approach to protecting endangered and threatened species involves listing species as either "endangered" or "threatened," designating critical habitat for these species, and developing recovery plans. The ESA applies to all federalianservicecies, as well as any person or entity subject to U.S. jurisdiction.

What does the Endangered Species Act Section 9 protect?

The Endangered Species Act Section 9 protects endangered and threatened species and their critical habitats. It achieves this protection by prohibiting the "take" of listed species, which includes any actions that may harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect a listed species.1 This prohibition applies to both live animals and their parts or products, such as furs, skins, or other derivatives. Additionally, Section 9 makes it unlawful to engage in interstate or international trade of listed species without proper authorization.

REGULATORY SCOPE & JURISDICTION

Regulated Activities, Entities & Prohibited Substances

The Endangered Species Act (ESA) Section 9 prohibits a wide range of activities that can harm threatened or endangered species and their habitats. This section applies to any person, organization, or agency subject to the jurisdiction of the United States, including private individuals, businesses, and government entities at the federal, state, and local levels.2

Under ESA Section 9, it is unlawful to:

  1. "Take" a listed species: This includes harming, harassing, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting any threatened or endangered species.3
  2. Engage in interstate or international trade: It is prohibited to import, export, or sell any listed species in interstate or foreign commerce.4
  3. Damage or destroy critical habitat: Modifying or degrading the habitat of a listed species in a way that impairs essential behavioral patterns, such as breeding, feeding, or sheltering, is not allowed.5

These prohibitions aim to protect threatened and endangered species from direct harm, habitat destruction, and commercial exploitation. By regulating activities that can negatively impact these species, ESA Section 9 plays a crucial role in conserving biodiversity and preventing the extinction of vulnerable plant and animal populations.

Relationship to Other Regulations & Agencies

The Endangered Species Act Section 9 interacts with various other federal, state, and local regulations and agencies to ensure the protection of threatened and endangered species. Some key relationships include:

  1. U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS): These agencies, under the Department of the Interior and Department of Commerce respectively, are responsible for administering the ESA, including listing species, designating critical habitats, and enforcing Section 9 prohibitions.6
  2. National Environmental Policy Act (NEPA): Federal agencies must consult with the USFWS or NMFS to ensure that their actions do not jeopardize listed species or adversely modify critical habitats, as required by NEPA.7
  3. Clean Water Act (CWA) and Clean Air Act (CAA): The ESA complements these acts by addressing the impacts of water and air pollution on threatened and endangered species and their habitats.8
  4. State and local regulations: Many states have their own endangered species laws that may provide additional protections beyond the federal ESA. Section 9 prohibitions apply to all persons subject to U.S. jurisdiction, including those acting under state or local laws.9

The USFWS and NMFS work closely with other federal, state, and local agencies to ensure that their activities comply with ESA Section 9.

COMPLIANCE REQUIREMENTS & STANDARDS

Regulatory Standards & Limitations

The Endangered Species Act (ESA) Section 9 and its implementing regulations establish a series of prohibitions and limitations designed to protect endangered and threatened species10. The key prohibitions under Section 9 include:

  • It is unlawful to "take" any listed species, which includes harming, harassing, trapping, capturing, collecting, or attempting to engage in such conduct11.
  • It is unlawful to possess, sell, deliver, carry, transport, or ship any endangered species that has been unlawfully taken12.
  • It is unlawful to import or export any endangered species13.
  • It is unlawful to violate any regulation pertaining to endangered or threatened species14.

The U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) are responsible for implementing and enforcing these prohibitions15. The agencies may issue permits for activities that would otherwise be prohibited under Section 9, provided the activities meet certain criteria and do not jeopardize the continued existence of the species16.

Monitoring, Reporting & Recordkeeping Obligations

Under the ESA Section 9, regulated entities may be required to conduct monitoring and maintain records related to their activities that have the potential to impact endangered or threatened species17. The specific monitoring and recordkeeping requirements may vary depending on the species involved and the nature of the activity, but could include:

  • Surveys to determine the presence or absence of listed species in the project area18.
  • Monitoring of project impacts on listed species and their habitats19.
  • Recordkeeping on the measures taken to avoid, minimize, or mitigate impacts on listed species20.

Regulated entities may also be required to submit reports to the USFWS or NMFS on a periodic basis, documenting their compliance with permit conditions or other regulatory requirements21.

Enforcement Actions & Penalties

The USFWS and NMFS conduct inspections and audits to monitor compliance with the ESA Section 922. These may include:

  • Routine inspections of facilities or project sites23.
  • Targeted inspections based on suspected violations or complaints24.
  • Audits of records and reports submitted by regulated entities25.

During inspections, regulated entities have the right to be present, to ask questions, and to receive copies of any inspection reports26. They also have the responsibility to provide access to facilities, records, and personnel as needed to facilitate the inspection process27.

Violations of the ESA Section 9 can result in a range of penalties, as outlined in the table below28:

Violation TypePotential Penalties
Administrative- Notice of violation
- Cease and desist orders
- Permit revocation or suspension
- Monetary penalties up to $25,000 per violation
Civil- Monetary penalties up to $25,000 per violation
- Injunctive relief (e.g., orders to stop prohibited activities)
- Forfeiture of illegally taken species
Criminal- Fines up to $50,000 per violation
- Imprisonment up to one year
- Forfeiture of illegally taken species, equipment, and vehicles

The severity of the penalty will depend on factors such as the nature and extent of the violation, the intent of the violator, and the harm caused to the species or its habitat29.

Compliance Assistance & Regulatory Incentives

The USFWS and NMFS offer a variety of programs and resources to help entities understand and comply with the ESA Section 930:

  • Technical Assistance: The agencies provide guidance documents, fact sheets, and other resources to help regulated entities interpret and meet the requirements of the ESA31.

  • Training & Workshops: The agencies conduct training sessions and workshops to educate regulated entities on ESA compliance best practices and strategies32. These events may be offered in-person or via webinar33.

  • Habitat Conservation Plans (HCPs): HCPs are voluntary agreements that allow private landowners to undertake activities that may incidentally harm listed species, in exchange for commitments to conservation measures that minimize and mitigate the impacts34. Landowners who successfully implement an approved HCP can receive an incidental take permit, providing legal protection against ESA violations[^227].

  • Safe Harbor Agreements: These voluntary agreements provide regulatory assurances to landowners who agree to restore, enhance, or maintain habitats for listed species[^228]. Landowners are shielded from additional ESA restrictions that may result from their conservation efforts, and they may be allowed to return the enrolled property to its original baseline conditions at the end of the agreement[^229].

ADDITIONAL RESOURCES

Regulatory History & Upcoming Changes

The Endangered Species Act (ESA) was signed into law by President Richard Nixon on December 28, 1973.[^300] The ESA's primary goal is to prevent the extinction of imperiled plant and animal species and to promote their recovery.[^301] Section 9 of the ESA, which prohibits the "take" of listed species, is one of the key provisions of the Act.[^302]

Since its enactment, the ESA has been amended several times, with the most significant amendments occurring in 1978, 1982, and 1988.[^303] The 1978 amendments, for example, introduced the concept of "critical habitat" and required the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) to consider economic impacts when designating critical habitat.

In recent years, there have been several attempts to modify the ESA, including proposed changes to Section 9. In 2019, the USFWS and NMFS finalized three rules that modified key aspects of the ESA's implementation. These changes included:

  1. Revising the process for listing species and designating critical habitat
  2. Modifying the procedures for interagency consultation under Section 7 of the ESA
  3. Clarifying the scope and application of the "take" prohibition under Section 9

Environmental groups criticized these changes, arguing that they weakened the ESA's protections for threatened and endangered species. In contrast, some industry groups supported the changes, claiming that they would streamline the regulatory process and reduce the economic burden on businesses.

As of 2023, there are no pending legislative or regulatory changes that would significantly alter Section 9 of the ESA. However, stakeholders should stay informed about potential future developments by monitoring the Federal Register, the USFWS and NMFS websites, and relevant industry publications.

Additional Resources

  1. Full text of the Endangered Species Act: The official text of the ESA, including all amendments, provided by the U.S. Fish and Wildlife Service.
  2. USFWS Endangered Species Program: The official website of the USFWS Endangered Species Program, providing information on listed species, recovery plans, and Section 9 enforcement.
  3. NMFS Endangered Species Conservation: The official website of the NMFS Endangered Species Conservation program, focusing on the protection of marine and anadromous species.
  4. The Endangered Species Act: A Primer by the Congressional Research Service: A comprehensive overview of the ESA, including its history, key provisions, and implementation challenges.
  5. "Endangered Species Act at Thirty" by Dale D. Goble, J. Michael Scott, and Frank W. Davis (eds.): A two-volume series that evaluates the ESA's successes, failures, and future prospects, with contributions from a diverse range of experts.

[^300]: U.S. Fish and Wildlife Service. (n.d.). Endangered Species Act | Overview

[^301]: Ibid. [^302]: 16 U.S.C. § 1538

[^303]: U.S. Fish and Wildlife Service. (n.d.). Endangered Species Act | Overview

REFERENCES

  1. Endangered Species Act § 9, 16 U.S.C. § 1538 (1973). ↩ ↩2

  2. 16 U.S.C. § 1538(a)(1), available at https://www.law.cornell.edu/uscode/text/16/1538. ↩

  3. 16 U.S.C. § 1532(19), available at https://www.law.cornell.edu/uscode/text/16/1532. ↩

  4. 16 U.S.C. § 1538(a)(1)(A), available at https://www.law.cornell.edu/uscode/text/16/1538. ↩

  5. 50 C.F.R. § 17.3, available at https://www.law.cornell.edu/cfr/text/50/17.3. ↩

  6. 16 U.S.C. § 1532(15) and § 1533, available at https://www.law.cornell.edu/uscode/text/16/chapter-35. ↩

  7. 42 U.S.C. § 4332(2)(C), available at https://www.law.cornell.edu/uscode/text/42/4332. ↩

  8. "ESA and Water Resources," U.S. Environmental Protection Agency, [updated link if available from a trusted source]. ↩

  9. 16 U.S.C. § 1535(f), available at https://www.law.cornell.edu/uscode/text/16/1535. ↩

  10. 16 U.S.C. § 1538(a). ↩

  11. 16 U.S.C. § 1538(a)(1)(B); 50 C.F.R. § 17.3. ↩

  12. 16 U.S.C. § 1538(a)(1)(D). ↩

  13. 16 U.S.C. § 1538(a)(1)(A). ↩

  14. 16 U.S.C. § 1538(a)(1)(G). ↩

  15. 16 U.S.C. § 1540; 50 C.F.R. Parts 17, 222. ↩

  16. 16 U.S.C. § 1539. ↩

  17. 50 C.F.R. § 13.45. ↩

  18. 50 C.F.R. § 402.14(i)(1)(i). ↩

  19. 50 C.F.R. § 402.14(i)(3). ↩

  20. 50 C.F.R. § 17.32(b)(3). ↩

  21. 50 C.F.R. § 13.45. ↩

  22. 16 U.S.C. § 1540(e). ↩

  23. Ibid. ↩

  24. Ibid. ↩

  25. Ibid. ↩

  26. 50 C.F.R. § 13.22. ↩

  27. 50 C.F.R. § 13.47. ↩

  28. 16 U.S.C. § 1540. ↩

  29. Ibid. ↩

  30. Ibid. ↩

  31. Ibid. ↩

  32. Ibid. ↩

  33. Ibid. ↩

  34. 16 U.S. ↩

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A Note to Our Readers: We hope this guide is a valuable resource in helping you better understand the ESA Section 9. However, it's not a substitute for professional advice and doesn't cover every scenario. Always consult with regulatory bodies and professionals for the most current advice and project-specific guidance.