U.S. Fish & Wildlife Service
ESA Basics
More Than 30 Years of Conserving
Endangered Species
When Congress passed the Endangered
Species Act (ESA) in 1973, it recognized
that our rich natural heritage is of
“esthetic, ecological, educational,
recreational, and scientific value to
our Nation and its people.” It further
expressed concern that many of our
nation’s native plants and animals were in
danger of becoming extinct.
The purpose of the ESA is to protect
and recover imperiled species and the
ecosystems upon which they depend.
It is administered by the Interior
Department’s U.S. Fish and Wildlife
Service (FWS) and the Commerce
Department’s National Marine Fisheries
Service (NMFS). The FWS has
primary responsibility for terrestrial
and freshwater organisms, while the
responsibilities of NMFS are mainly
marine wildlife such as whales and
anadromons fish such as salmon.
Under the ESA, species may be listed
as either endangered or threatened.
“Endangered” means a species is in
danger of extinction throughout all
or a significant portion of its range.
“Threatened” means a species is likely
to become endangered within the
foreseeable future. All species of plants
and animals, except pest insects, are
eligible for listing as endangered or
threatened. For the purposes of the
ESA, Congress defined species to include
subspecies, varieties, and, for vertebrates,
distinct population segments.
As of March 2008, the FWS has listed
1,925 species worldwide as endangered
or threatened, of which 1,351 occur in the
U.S.
How are Species Listed?
Section 4 of the ESA requires species to
be listed as endangered or threatened
solely on the basis of their biological
status and threats to their existence.
When evaluating a species for listing,
the FWS considers five factors: 1)
damage to, or destruction of, a species’
habitat; 2) overutilization of the species
for commercial, recreational, scientific,
or educational purposes; 3) disease or
Tom MacKenzie/USFWS
predation; 4) inadequacy of existing
protection; and 5) other natural or
manmade factors that affect the continued
existence of the species. When one or
more of these factors imperils the survival
of a species, the FWS takes action to
protect it. To ensure the accuracy of the
data, the FWS decides all listings using
sound science and peer review.
Candidates for Listing
The FWS also maintains a list of
“candidate” species. These are species for
which the FWS has enough information to
warrant proposing them for listing but is
precluded from doing so by higher listing
priorities. While listing actions of higher
priority go forward, the FWS works with
States, Tribes, private landowners, private
partners, and other Federal agencies to
carry out conservation actions for these
species to prevent further decline and
possibly eliminate the need for listing.
Protection
The ESA protects endangered and
threatened species and their habitats by
prohibiting the “take” of listed animals
and the interstate or international trade in
listed plants and animals, including their
parts and products, except under Federal
permit. Such permits generally are
available for conservation and scientific
purposes.
What is “Take”?
The ESA makes it unlawful for a person
to take a listed animal without a permit.
Take is defined as “to harass, harm,
pursue, hunt, shoot, wound, kill, trap,
capture, or collect or attempt to engage in
any such conduct.” Through regulations,
the term “harm” is defined 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.” Listed plants
are not protected from take, although it
is illegal to collect or maliciously harm
them on Federal land. Protection from
commercial trade and the effects of
Federal actions do apply for plants. In
addtion, States may have their own
laws restricting activity involving listed
species.
Recovery
The law’s ultimate goal is to “recover”
species so they no longer need protection
under the ESA. Recovery plans describe
the steps needed to restore a species
to ecological health. FWS biologists
write and implement these plans with
the assistance of species experts; other
Federal, State, and local agencies;
Tribes; nongovernmental organizations;
academia; and other stakeholders.
Federal Activities
Section 7 of the ESA requires Federal
agencies to use their legal authorities to
promote the conservation purposes of the
ESA and to consult with the FWS and
NMFS, as appropriate, to ensure that
effects of actions they authorize, fund, or
carry out will not jeopardize the continued
existence of listed species. During
consultation the “action” agency receives
a “biological opinion” or concurrence
letter addressing the proposed action.
Puerto Rican parrot
In the relatively few cases in which
the FWS or NMFS makes a jeopardy
determination, the agency offers
“reasonable and prudent alternatives”
about how the proposed action could be
modified to avoid jeopardy. In almost
all cases solutions can be found; it is
extremely rare that a project ends up
being withdrawn or terminated because
of jeopardy to a listed species.
The ESA also requires the designation
of “critical habitat” for listed species
when “prudent and determinable.”
Critical habitat includes geographic
areas that contain the physical or
biological features that are essential
to the conservation of the species and
may need special management or
protection. Critical habitat designations
affect only Federal agency actions or
federally funded or permitted activities.
Federal agencies are required to avoid
“destruction” or “adverse modification”
of designated critical habitat.
Critical habitat may include areas that
are not occupied by the species at the
time of listing but are essential to its
conservation. An area can be excluded
from critical habitat designation if an
economic analysis determines that the
benefits of excluding it outweigh the
benefits of including it, unless failure
to designate the area as critical habitat
may lead to extinction of the listed
species.
The ESA provides a process for
exempting development projects
from the restrictions of the law if a
Cabinet-level “Endangered Species
Committee” decides the benefits of the
project clearly outweigh the benefits of
conserving a species. Since its creation
in 1978, the Committee has only been
convened three times to make this
decision.
Working with States
Partnerships with States are critical to
our efforts to conserve listed species.
Section 6 of the ESA encourages States
to develop and maintain conservation
programs for threatened and
endangered species. Federal funding is
available to promote State participation.
Some State laws and regulations are
even more restrictive than the ESA in
granting exceptions or permits.
Working with Landowners
Two-thirds of federally listed species
have at least some habitat on private
land. The FWS has developed an array
of tools and incentives to protect the
interests of private landowners while
encouraging management activities that
benefit listed and other at-risk species.
Habitat Conservation Plans
Section 10 of the ESA provides relief to
landowners including private citizens,
corporations, Tribes, States, and
counties who want to develop property
inhabited by listed species. Landowners
can receive a permit to take such
species incidental to otherwise legal
activities, provided they have developed
an approved habitat conservation plan
(HCP). HCPs include an assessment of
the likely impacts on the species from
the proposed action, the steps that the
permit holder will take to minimize and
mitigate the impacts, and the funding
available to carry out the steps.
HCPs may benefit not only landowners
but also species by securing and
managing important habitat.
Safe Harbor Agreements
Safe Harbor Agreements (SHAs)
provide regulatory assurance for non-
Federal landowners who voluntarily
aid in the recovery of listed species
by improving or maintaining wildlife
habitat. Under SHAs, landowners
manage the enrolled property and may
return it to originally agreed-upon
“baseline” conditions for the species and
its habitat at the end of the agreement,
even if this means incidentally taking
the species.
Candidate Conservation Agreements
It is easier to conserve species before
they need to be listed as endangered or
threatened than to try to recover them
when they are in danger of extinction
or likely to become so. Candidate
Conservation agreements (CCAs)
are voluntary agreements between
landowners—including Federal land
management Agencies— and one or
more other parties to reduce or remove
threats to candidate or other at-risk
species. Parties to the CCA work
with the FWS to design conservation
measures and monitor the effectiveness
of plan implementation.
Candidate Conservation Agreements
with Assurances
Under Candidate Conservation
Agreements with Assurances (CCAA),
non-Federal landowners volunteer to
work with the FWS on plans to conserve
candidate and other at-risk species
so that protection of the ESA is not
needed. In return, landowners receive
regulatory assurances that, if a species
covered by the CCAA is listed, they will
not be required to do anything beyond
what is specified in the agreement,
and they will receive an enhancement
of survival permit, allowing incidental
take in reference to the management
activities identified in the agreement .
Conservation Banks
Conservation banks are lands that are
permanently protected and managed
as mitigation for the loss elsewhere of
listed and other at-risk species and their
habitat. Conservation banking is a free-market
enterprise based on supply and
demand of mitigation credits. Credits
are supplied by landowners who enter
into a Conservation Bank Agreement
(CBA) with the FWS agreeing to
protect and manage their lands for one
or more species. Other landowners who
need to mitigate for adverse impacts
to those same species may purchase
conservation bank credits to meet their
mitigation requirements. Conservation
banking benefits species by reducing the
piecemeal approach to mitigation that
often results in many small, isolated and
unsustainable preserves that lose their
habitat functions and values over time.
International Species
The ESA also implements U.S.
participation in the Convention on
International Trade in Endangered
Species of Wild Fauna and Flora
(CITES), a 175-nation agreement
designed to prevent species from
becoming endangered or extinct due to
international trade. Except as allowed
by permit, CITES prohibits importing
or exporting species listed on its three
appendices. A species may require a
permit under the ESA, CITES, or both.
For More Information
For more information, contact the
U.S. Fish and Wildlife Service at the
address below, or visit http://www.fws.
gov/endangered/.
U. S. Fish and Wildlife Service
Endangered Species Program
4401 N. Fairfax Drive, Room 420
Arlington, VA 22203
703-358-2171
http://www.fws.gov/endangered/
February 2009
