Endangered Species Act of 1973

Other short titles	Endangered Species Act of 1973
Long title	An Act to provide for the conservation of endangered and threatened species of fish, wildlife, and plants, and for other purposes.
Acronyms (colloquial)	ESA
Nicknames	Endangered Species Conservation Act
Enacted by	the 93rd United States Congress
Effective	December 27, 1973
Citations
Public law	93–205
Statutes at Large	87 Stat. 884
Codification
Titles amended	16 U.S.C.: Conservation
U.S.C. sections created	16 U.S.C. ch. 35 §§ 1531-1544.
Legislative history
Introduced in the Senate as S. 1983 by Harrison A. Williams (D–NJ) on June 12, 1973 Committee consideration by Senate Commerce Committee Passed the Senate on July 24, 1973 (92–0) Passed the House on September 18, 1973 (390–12, in lieu of H.R. 37) Reported by the joint conference committee on December 19, 1973; agreed to by the Senate on December 19, 1973 (agreed) and by the House on December 20, 1973 (355–4) Signed into law by President Richard Nixon on December 28, 1973
Major amendments
Pub. L.Tooltip Public Law (United States) 95–632, 92 Stat. 3751, enacted November 10, 1978 Pub. L.Tooltip Public Law (United States) 96–159, 93 Stat. 1225, enacted December 28, 1979 Pub. L.Tooltip Public Law (United States) 97–304, 96 Stat. 1411, enacted October 13, 1982
United States Supreme Court cases
List Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978) Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995) Bennett v. Spear, 520 U.S. 154 (1997) National Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) Weyerhaeuser Company v. United States Fish and Wildlife Service, No. 17-71, 586 U.S. ___ (2018) United States Fish and Wildlife Service v. Sierra Club, No. 19-547, 592 U.S. ___ (2021)

The Endangered Species Act of 1973 (ESA or "The Act"; 16 U.S.C. § 1531 et seq.) is the primary law in the United States for protecting and conserving imperiled species. Designed to protect critically imperiled species from extinction as a "consequence of economic growth and development untempered by adequate concern and conservation", the ESA was signed into law by President Richard Nixon on December 28, 1973. The Supreme Court of the United States described it as "the most comprehensive legislation for the preservation of endangered species enacted by any nation".^[1] The purposes of the ESA are two-fold: to prevent extinction and to recover species to the point where the law's protections are not needed. It therefore "protect species and the ecosystems upon which they depend" through different mechanisms. For example, section 4 requires the agencies overseeing the Act to designate imperiled species as threatened or endangered. Section 9 prohibits unlawful ‘take,’ of such species, which means to "harass, harm, hunt..." Section 7 directs federal agencies to use their authorities to help conserve listed species. The Act also serves as the enacting legislation to carry out the provisions outlined in The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).^[2] The Supreme Court found that "the plain intent of Congress in enacting" the ESA "was to halt and reverse the trend toward species extinction, whatever the cost."^[1] The Act is administered by two federal agencies, the United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS).^[3] FWS and NMFS have been delegated by the Act with the authority to promulgate any rules and guidelines within the Code of Federal Regulations (CFR) to implement its provisions.

History

Calls for wildlife conservation in the United States increased in the early 1900s because of the visible decline of several species.^[4] One example was the near-extinction of the bison, which used to number in the tens of millions. Similarly, the extinction of the passenger pigeon, which numbered in the billions, also caused concern.^[5] The whooping crane also received widespread attention as unregulated hunting and habitat loss contributed to a steady decline in its population. By 1890, it had disappeared from its primary breeding range in the north central United States.^[6] Scientists of the day played a prominent role in raising public awareness about the losses. For example, George Bird Grinnell highlighted bison decline by writing articles in Forest and Stream.^[7]

To address these concerns, Congress enacted the Lacey Act of 1900. The Lacey Act was the first federal law that regulated commercial animal markets.^[8] It also prohibited the sale of illegally killed animals between states. Other legislation followed, including the Migratory Bird Conservation Act, a 1937 treaty prohibiting the hunting of right and gray whales, and the Bald and Golden Eagle Protection Act of 1940.^[9]

Endangered Species Preservation Act of 1966

Despite these treaties and protections, many populations still continued to decline. By 1941, only an estimated 16 whooping cranes remained in the wild.^[10] By 1963, the bald eagle, the U.S. national symbol, was in danger of extinction. Only around 487 nesting pairs remained.^[11] Loss of habitat, shooting, and DDT poisoning contributed to its decline.

The U.S. Fish and Wildlife Service tried to prevent the extinction of these species. Yet, it lacked the necessary Congressional authority and funding.^[12] In response to this need, Congress passed the Endangered Species Preservation Act (Pub. L.Tooltip Public Law (United States) 89–669) on October 15, 1966. The Act initiated a program to conserve, protect, and restore select species of native fish and wildlife.^[13] As a part of this program, Congress authorized the Secretary of the Interior to acquire land or interests in land that would further the conservation of these species.^[14]

The Department of Interior issued the first list of endangered species in March 1967. It included 14 mammals, 36 birds, 6 reptiles, 6 amphibians, and 22 fish.^[15] A few notable species listed in 1967 were the grizzly bear, American alligator, Florida manatee, and bald eagle. The list included only vertebrates at the time because of the Department of Interior's limited definition of "fish and wildlife."^[14]

The Endangered Species Preservation Act was repealed by the Endangered Species Act.

Endangered Species Conservation Act of 1969

The Endangered Species Conservation Act of 1969 (Pub. L.Tooltip Public Law (United States) 91–135) amended the Endangered Species Preservation Act of 1966. It established a list of species in danger of worldwide extinction. It also expanded protections for species covered in 1966 and added to the list of protected species. While the 1966 Act only applied to ‘game’ and wild birds, the 1969 Act also protected mollusks and crustaceans. Punishments for poaching or unlawful importation or sale of these species were also increased. Any violation could result in a $10,000 fine or up to one year of jail time.^[16]

Notably, the Act called for an international convention or treaty to conserve endangered species.^[17] A 1963 IUCN resolution called for a similar international convention.^[18] In February 1973 a meeting in Washington, D.C. was convened. This meeting produced the comprehensive multilateral treaty known as CITES or the Convention on International Trade of Endangered Species of Wild Fauna and Flora.^[19]

The Endangered Species Conservation Act of 1969 provided a template for the Endangered Species Act of 1973 by using the term "based on the best scientific and commercial data." This standard is used as a guideline to determine if a species is in danger of extinction.

Passage of the 1973 Act

In 1972, President Nixon declared current species conservation efforts to be inadequate.^[20] He called on the 93rd United States Congress to pass comprehensive endangered species legislation. Congress responded with a completely rewritten law, the Endangered Species Act of 1973, which was signed by Nixon on December 28, 1973 (Pub. L.Tooltip Public Law (United States) 93–205).

It was written by a team of lawyers and scientists, including Dr. Russell E. Train, the first appointed head of the Council on Environmental Quality (CEQ), an outgrowth of the National Environmental Policy Act (NEPA) of 1969.^[21][22] Dr. Train was assisted by a core group of staffers, including Dr. Earl Baysinger at EPA, Dick Gutting, and Dr. Gerard A. "Jerry" Bertrand, a Ph.D. marine biologist by training (Oregon State University, 1969), who had transferred from his post as the senior scientific adviser to the Commandant of the U.S. Army Corps of Engineers, office of the Commandant of the Corps., to join the newly formed White House Council on Environmental Quality. The staff, under Dr. Train's leadership, incorporated dozens of new principles and ideas into the landmark legislation but also incorporated previous laws, as was desired by Congressman John Dingell (D-Michigan) when he first proposed the idea of an "Endangered Species Act." Among the staff, Dr. Bertrand is credited with having written major parts of the Act, including the infamous "takings" clause, 16 U.S.C. § 1538. "We didn't know what we couldn't do," Dr. Bertrand has said about the Act. "We were doing what we thought was scientifically valid and right for the environment."^[23]

New Features of the 1973 Act

The Endangered Species Act is administered by two federal agencies, the United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS). NMFS handles marine species, and the FWS has responsibility over freshwater fish and all other species. Species that occur in both habitats (e.g. sea turtles and Atlantic sturgeon) are jointly managed.

It consists of 17 sections. Key legal requirements include:

• The federal government must determine whether species are endangered or threatened. If so, they must list the species for protection under the ESA (Section 4).
• If determinable, critical habitat must be designated for listed species (Section 4).
• Absent certain limited situations (Section 10), it is illegal to "take" an endangered species (Section 9). "Take" can mean kill, harm, or harass (Section 3).
• Federal agencies will use their authorities to conserve endangered species and threatened species (Section 7).
• Federal agencies cannot jeopardize listed species' existence or destroy critical habitat (Section 7).
• Any import, export, interstate, and foreign commerce of listed species is generally prohibited (Section 9).
• Endangered fish or wildlife cannot be taken without a take permit. This also applies to certain threatened animals with section 4(d) rules (Section 10).

The 1973 Act is considered a landmark conservation law.^[4] Academic researchers have referred to it as "one of the nation's most significant environmental laws."^[12] It has also been called "one of the most powerful environmental statutes in the U.S. and one of the world’s strongest species protection laws."^[24] The Act itself has been amended four times: 1978, 1982, 1988,^[12] and 1992.^[25] Formal regulations published in the Federal Register that specify how the Act will be implemented have also changed through time.^[12] In recent years, U.S. presidential elections that greatly shift environmental priorities have culminated in regulatory shifts in endangered species management back and forth.^[26][27] Congressional elections also affect implementation of the Act via expansions or contractions in annual funding decisions for the agencies.^[25]

Plants become eligible for listing

A distinction of the 1973 Act is that, unlike the previous legislation, plants became eligible for listing, with the first listings occurring in 1977.^[28] Fifty years later, significantly more species of plants were listed in the highest category (endangered) than animals: 766 plants and 486 animals.^[29] Historians attribute this new-found concern for imperiled plants to ongoing global treaty negotiations (especially in 1972 and 1973) toward what would eventually be adopted in 1975^[30] under the title, Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

Prior to this time, attention to the conservation needs of native plants had been stalled by complications that do not pertain to animals. How to adequately distinguish plants illegally collected in the wild from plants propagated from seeds or cuttings taken from horticultural specimens was among the points of contention.^[30] Ultimately, federal authority over enforcement of endangered plant protections has centered on regulation of interstate commerce of such plants.^[31] This legal distinction for plants became controversial in practice when a group of citizens, Torreya Guardians, chose to help an endangered glacial relict plant, Florida Torreya, move to cooler poleward climates before conservation professionals were ready to begin their own experimentation with assisted migration of endangered species.^[32] Because movement of seeds and seedlings by this group was noncommercial and based on horticulturally produced specimens, there was no legal apparatus to halt their actions.^[31]

Another distinction is that, when an animal is listed as endangered or threatened, "taking" of that animal (by capture or killing) becomes a violation of the Act. For plants, "taking" occurs only within the boundaries of federal properties.^[28] Even so, states may choose to legislate and enforce prohibitions even on private lands,^[4] as occurred in 2023 when the State of California passed a law that prevented killing or removal of the western variety of Joshua tree wherever it was found. Climate change risk was a key factor in the determination.^[33]

Two categories for listing species

The Act distinguished two grades of species for listing: "endangered" and a lesser category called "threatened". An endangered species is in danger of extinction now; a threatened species faces such a threat in "the foreseeable future."^[4] The aim for the lesser category is to enable protective actions by federal agencies at an earlier time, such that the causes of population decline might be corrected before emergency concerns develop.^[12] Controversy also arises as to whether and what differences in recovery plan elements, and thus management policies and restrictions, should distinguish "threatened" from "endangered."^[12][27]

Recovery plans must be made and published

A key provision of the 1973 Act was that "preventing extinction" would no longer be sufficient. Rather "recovery" of listed species, such that "delisting" could become possible was now a stated goal. "Recovery plans" were now to be developed and published by the two agencies in charge: the United States Fish and Wildlife Service and the National Marine Fisheries Service.^[12] In practice, recovery plans usually include population targets and "objective, measurable criteria" that would constitute adequate reduction of threats and provision of habitat protection" such that delisting (or down-listing from "endangered" to "threatened") would be warranted.^[12]

"Critical habitat" may be designated

The 1973 Act introduced the concept of what is now called "critical habitat" in only one brief passage. Section 7 required federal agencies to ensure that actions they authorized, funded, or carried out would not result in "the destruction or modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical.”^[12] When the Act was amended in 1978, "critical habitat" was given a definition and basic terms for how it would be determined and used.^[12] (As will be seen in the "Controversies" section, this provision was sometimes challenging to implement for both scientific and political reasons.)

Citizens can petition for listing species

A review of the Act published in 2009 recounted the unavoidable problems that arose from granting opportunities even for citizens to submit petitions for species listing:

Soon after the Endangered Species Act was enacted, Congress recognized that at any given time there were likely to be more species potentially eligible for listing than the Service could address through the rule-making process. As a result, Congress in 1979 directed the Service to develop a prioritization system that would enable it to determine which of the potentially eligible species should be considered first. The Service responded with listing priority guidance that established a hierarchy of priorities based first on the magnitude of threat, then upon its imminence, and finally upon taxonomic distinctiveness (with monotypic genera ranked ahead of other species, and full species ranked ahead of subspecies.^[12]

Requirements that listing decisions be made based on scientific evidence and considerations, coupled with an inability of the agencies to expand and contract staffing based on shifts in the volume of outstanding petitions, induced Congress in 1982 to amend the Act by establishing deadlines for agency decisions.^[12] As of 2023, those deadlines still nominally apply, but in practice it is rare for a petitioner to approach the judicial system to force a decision before the agency is able to finish the job on its own timetable.^[12]

Challenges and Controversies

In 2023, with this Congressional act achieving its 50th anniversary, journalists were prompted to report on the Act's outcomes and controversies. Congressional overturning of several recent listings and ability to hamper implementation by restricting agency funding were among the points mentioned by some media.^[34] In contrast, a foundation associated with the Western Caucus of U.S. senators and representatives issued a 116-page report in 2023 titled "The Endangered Species Act at 50", with a subtitle expressing its primary criticism that "a record of falsified recoveries underscores a lack of scientific integrity in the federal program."^[35] Among the faculty expressing views in a University of Pennsylvania report, one drew attention to an underlying shift in national worldviews during the past half-century: The Act "reflects the confidence of mid-20th century liberal politics that any problem can be fixed with legislation based on scientific data," yet pragmatic solutions that require flexibility have been hindered and polarization has become intense.^[36] An academic review paper in 2008 reported that the Act had become "a social, legal, and political battleground" and that "the scientific question of whether the ESA works effectively to protect species remains open."^[37] Specific challenges and long-term controversies are summarized in this section.

Economic consequences and perverse incentives

Because the Act allowed species to be listed as endangered without consideration of the economic consequences, it soon became and continues to be controversial.^[38] Costs conferred on private landowners and various industries may come in the form of lost opportunity or slowing down operations to comply with the regulations put forth in the Act. Notably, in 1978 the listing of a tiny fish (snail darter) shut down for several years construction of a dam that was already underway on the Little Tennessee River.^[39] More broadly, the requirement to consult with the relevant agencies on federal projects has at times slowed operations by the oil and gas industry, including exploration or development on federal lands rich in fossil fuels.^[40]

One widely held opinion thus is that the protections afforded to listed species curtail economic activity.^[41] In the extreme, economic consequences can induce perverse incentives by which landowners actively curtail their lands from attracting endangered species. An example in the eastern USA pertains to the endangered red-cockaded woodpecker. A study of some 1,000 privately owned forest plots within the range of the woodpecker found that when landowners observed pine growth maturing to a stage in which it might attract nesting woodpeckers, they were more likely to harvest — regardless of timber prices at the time.^[42] This is a form of intentional habitat destruction for avoiding economic consequences.

Legislators have expressed that the ESA has been "weaponized," particularly against western states, constraining state government choices about the use of public lands.^[43] The case of the protracted dispute over the greater sage-grouse is one such example,^[44] and the spotted owl is another.^[45] In the extreme is the largely western saying pertaining to endangered animals, such as wolves: "shoot, shovel, and shut up."^[4][46][36] In 2018, Rep. Don Young (Alaska), the longest-serving Republican congressman, said, "As the one person in the Congress, the only one, that voted for the Endangered Species Act, please beat me with a whip."^[47]

Some economists have stated that finding a way to reduce such perverse incentives would lead to more effective protection of endangered species.^[48] One suggestion for ending perverse incentives would be to compensate property owners for protecting endangered species, rather than having an endangered species regarded as a potential financial loss.^[46]

As well, while the standard to prevent jeopardy or adverse modification applies only to federal activities, non-federal activities are subject to Section 10 of the Act,^[49] and private activities on private lands may require federal discretionary permits (such as those required by the Clean Water Act, Section 404) and thereby triggering Section 7 of the ESA.^[50]

Incentives for stopping development

Controversy sometimes roils when the timing of a petition to list a new species overlaps with plans for or initiation of a development project that could be impeded by such a listing. A news editorial marking the 50th anniversary of the Act suggested that "the ESA became the weapon of choice for environmental groups seeking to stop projects or tear down others. Lawsuits by the score have been filed over projects large and small, setting off ill feelings toward environmental groups."^[51]

Risk assessment

The Act points to science professionals as "solely" responsible for making extinction risk assessments. Governmental policies as shaped by various and changing public interests are necessarily the arbiters of how numerical statements of extinction risk should be gauged in context of other kinds of national risks and priorities. In a multi-author report published in 2016, the Ecological Society of America explained how this kind of controversy develops:

Any decision to list a species also requires a policy judgment regarding how much risk to that species is acceptable. Science can inform the decision by determining the degree of risk a species faces, but science alone cannot determine whether the risk is acceptable.... Stakeholders with divergent views about acceptable levels of extinction risk frequently mount legal challenges over whether species need to be listed, whether they are endangered or threatened, how much habitat represents a “significant portion” of a species’ range, and other key elements of ESA implementation.^[4]

Effectiveness

As of 2023, an aggregate of 1,780 species had been listed through the years as "endangered" or a less severe category of "threatened". Of that total, 64 species improved enough to be removed from the list ("delisted"). Another 64 improved enough to be "downlisted" from endangered to threatened. While 11 species have been declared extinct since implementation of the law began, another 23 species have gone missing for so long that they have been proposed for official designation as extinct.^[52]

Some have argued that the recovery of imperiled flesh-eating birds (notably, the bald eagle, brown pelican, and peregrine falcon) should be attributed to the 1972 ban of the pesticide DDT by the EPA, rather than the Endangered Species Act.^[51] Supporters of the Act argue that listing of these species as endangered led to additional actions that were also crucial for species recovery (i.e., captive breeding, habitat protection, and protection from disturbance).^[53][54]

Following is a list of some of the best-known species that increased in population size (with some improving enough for delisting) since being placed on the endangered list:

• Bald eagle (increased from 417 to 11,040 pairs between 1963 and 2007); removed from list 2007
• Whooping crane (increased from 54 to 436 birds between 1967 and 2003)
• Kirtland's warbler (increased from 210 to 1,415 pairs between 1971 and 2005)
• Peregrine falcon (increased from 324 to 1,700 pairs between 1975 and 2000); removed from list 1999
• Gray wolf (populations increased dramatically in the Northern Rockies and Western Great Lakes States)
• Mexican wolf (increased to minimum population of 109 wolves in 2014 in southwest New Mexico and southeast Arizona)
• Red wolf (increased from 17 in 1980 to 257 in 2003)
• Gray whale (increased from 13,095 to 26,635 whales between 1968 and 1998); removed from list (Debated because whaling was banned before the ESA was set in place and that the ESA had nothing to do with the natural population increase since the cease of massive whaling )
• Grizzly bear (increased from about 271 to over 580 bears in the Yellowstone area between 1975 and 2005)
• California's southern sea otter (increased from 1,789 in 1976 to 2,735 in 2005)
• San Clemente Indian paintbrush (increased from 500 plants in 1979 to more than 3,500 in 1997)
• Florida's Key deer (increased from 200 in 1971 to 750 in 2001)
• Big Bend gambusia (increased from a couple dozen to a population of over 50,000)
• Hawaiian goose (increased from 400 birds in 1980 to 1,275 in 2003)
• Virginia big-eared bat (increased from 3,500 in 1979 to 18,442 in 2004)
• Black-footed ferret (increased from 18 in 1986 to 600 in 2006)^{[citation needed]}

The 1988 Congressional amendments to the Act included a new section, Section 18, to aid effectiveness evaluations by having each of the two implementing agencies periodically report cumulative federal funding (and, to some degree, state funding) on a species-by-species basis.^[55] As of 2023, the most recent report to Congress was by the U.S. Fish and Wildlife Service and presented expenditures cumulative through fiscal year 2020.^[56][57] The report entailed these statistics: "Of the 1,388 status reviews completed, 93 percent (1,294) recommend no change in status for the species, 3 percent (40) recommend reclassifying from endangered to threatened, 3 percent (38) recommend delisting (22 due to extinction, 13 due to recovery, and 3 due to error), 1 percent (13) recommend reclassifying from threatened to endangered, and less than 1 percent (2) recommend a revision to the listed entity."^[58]

Recovery and delistings are rare

Critics of the Act have noted that, despite its goal of recovering species to the point of delisting, this has rarely happened. As of 2023 (fifty years after its passage), an aggregate of 1,780 species had been listed through the years as endangered or the less severe category of threatened. Of that total, 64 species improved enough to be removed from the list. Another 64 improved enough to be "downlisted" from endangered to threatened. While 11 species have been declared extinct since implementation of the law began, another 23 species have gone missing for so long that they have been proposed for official designation as extinct.^[52]

The National Marine Fisheries Service lists eight species (or populations of a species) as among the most at risk of extinction in the near future. These animals are the Atlantic salmon; the Central California Coast coho salmon; the Cook Inlet beluga whale; the Hawaiian monk seal; the Pacific leatherback sea turtle; the Sacramento River winter-run chinook salmon; the southern resident population of killer whale; and the white abalone. Human activities are presented as the primary cause of extinction threats for all these species. The two implementing agencies have a combined record of changing species status from threatened to endangered on nine occasions, while the number of status improvements from endangered to threatened is greater.^[59]

A widely used statistic supporting effectiveness of the Act is that 99 percent of listed species have not gone extinct.^[60][61] In 2012 the Center for Biological Diversity issued a report that surveyed a sample of 110 listed species and concluded that 90 percent of them were recovering "at the rate specified by their federal recovery plan."^[62]

On the opposing side of the spectrum, a foundation associated with the Western Caucus of U.S. senators and representatives issued a 116-page report in 2023 that points to data and statements made by the U.S. Fish and Wildlife Service during the past half-century that can be interpreted as disputing proclamations of success.^[35] Specifically, statements of numbers of species "recovered" do not distinguish between those delisted owing to actual improvement in populations versus those for which the original population numbers were later found to have been greatly underestimated. Had the science been more in line with reality at the start, this report claims 36 of the 62 species reported by the agency as officially recovered would not have achieved listing at the outset.^[35]

Controversy also develops when the science used to support a delisting decision differs from the numerical population thresholds included in the species recovery plan. A 2012 court case upheld that the published recovery criteria are not legally binding for later delisting decisions.^[4]

Delays in specifying recovery actions

Listing of a species "triggers two overlapping types of conservation measures: extinction prevention and recovery actions."^[4] An official document required by the Act has come to be known as a recovery plan. The Act "gives few guidelines for their preparation and content and does not specify a deadline for how soon after listing the Services must complete recovery plans."^[4] A 2023 report on the Act issued by Defenders of Wildlife calculated that "265 species listed under the Act lack recovery guidance of any kind, while 370 additional species lack final recovery guidance." The group also noted that more than half of the existing recovery plans were more than 20 years old.^[63]

Besides alleged funding inadequacies,^[4][63] several inherent problems have been pointed to for delays in agency translation of scientific findings into actions beyond extinction prevention and thus actively toward species recovery. One such problem is the "knowledge—action boundary" that distinguishes conservation scientists from conservation managers. That is, how can scientific scholarship be made actionable, and thereby contribute directly to forward-moving policies and practices?^[64] Impediments to generating boundary-spanning conservation science include "a reward structure in science that promotes publication and grant income rather than engaging with conservation practitioners."^[64] Distrust across the boundary may also develop if conservation managers perceive that ESA funding allocated to research or monitoring reduces what is available for recovery actions.^[64]

"Fear of failure in conservation" is another factor that contributes to agency and manager hesitancy to undertake recovery actions for which there is no certainty of success.^[65] There are two reasons why scientists themselves may abstain from recommending actions. One is fear that making such recommendations may compromise their status as objective researchers whose conclusions can be trusted. A second is fear that a recommended action that is undertaken but then fails may injure their reputation. These fears may be heightened when recommendations pertain to a species for which controversy has developed or one whose population has declined so drastically that any manipulation of the species or its habitat may later be denounced as contributing to its further decline or extinction.^[65] Thus there are multiple reasons why recovery programs for some species "may be trapped in a cycle where more resources are allocated to information gathering versus action."^[66]

Allocating funds among listed species

The Fish & Wildlife Service has developed a four-factor prioritization system for analyzing tradeoffs in distributing funds among the listed species: degree of threat, potential for recovery, taxonomic uniqueness, and conflict with human activities. Even so, the 2016 special report on the Act by the Ecological Society of America concluded that the agency's decisions on apportioning funds are "more often driven by political and social factors, including congressional representation, the number of employees in field offices, staff workload, and opportunities to form partnerships and secure matching funds."^[4] As well, the report stated, "Critics point out that recovery efforts are focused disproportionately on charismatic species, to the detriment of others, particularly plants."

As well, there is no requirement that federal agencies (or any other institution) implement any of the actions specified in the recovery plan.^[28]

Stakeholder initiatives (with or without listing)

With or without listing, there are opportunities for stakeholders themselves to begin actions on their own. This especially applies to habitat improvements. If suitable habitat for a species can be found on private, state, municipal, or tribal lands, there is no need to wait for the federal agency to offer or specify in-place actions. The parties can expand and improve such habitats on their own. For example, a National Park Service report in 2023 in behalf of the endangered Karner blue butterfly included a recommendation to "encourage entities (city, state, county, tribal, federal) with sandy soils north of the current range to plant Lupinus perennis and nectar plants" in anticipation of future authorization for "managed relocation" of populations threatened by heat and drought in southerly portions of the butterfly's historical range.^[67]

While there are legal limitations on what citizens and other stakeholders can do directly for listed animal species, the field is wide open for obtaining horticulturally produced seeds and specimens of listed plants and then conducting plantings on their own.^[31] A well-known example is a network of citizens who call themselves Torreya Guardians. Florida Torreya is a glacial relict species of subcanopy tree that was listed as endangered in 1984. Since 2004, the citizen group has been using seeds from mature plantings on private lands in North Carolina to engage in a form of assisted migration poleward of this climate-endangered plant.^[32]

Prior to listing of a species, stakeholders who wish to act in its behalf have freedom to engage with not only habitat but with the species itself. A well-known example entails actions taken in behalf of the subalpine Whitebark Pine of the northern Rocky Mountains soon after vast stands suddenly began to die in Yellowstone National Park and elsewhere. A petition for listing was submitted in 2008, but status as "threatened" was not conferred until 2022. By then, collaboration among concerned parties was well underway without agency direction.^[68] Supportive research and actions were undertaken by the conservation organization American Forests as well as a new organization specific to the tree: the Whitebark Pine Ecosystem Foundation.^[69] Other collaborators include research scientists within the U.S. Forest Service, geneticists at the University of California, Davis, and the Confederated Salish and Kootenai Tribes. The U.S. Bureau of Land Management and the National Park Service were also involved in consultation prior to listing by the agency in charge of endangered species: the U.S. Fish and Wildlife Service.^[68]

Controversy is also apparent, though rare, when stakeholders entail activists who regard the "political-economic regime" not as the source of solutions but as "the root cause of biodiversity loss."^[70] In such instances guerrilla rewilding of rare species has been known to occur.^[71][72]

Collaborative planning on private lands

The 1982 amendments to the Act's Section 10 authorized collaborative engagement of the implementing agencies with landowners in producing Habitat Conservation Plans. Such a plan is a required part of an application for an Incidental Take Permit, issued under the Act to private entities undertaking projects that might result in harm to a listed species. The intent is to deter controversy by building into the plan practices for minimizing harm to listed species and their core habitat needs (including seasonal peaks in use). A validated plan then absolves the developer from harms that may incidentally occur to the species, when following the plan. Securing landowner pledges of habitat enhancement measures during the planning process can serve to defuse opposition from the public and other stakeholders.^[73][74]

Habitat conservation plans have been successfully deployed to reduce conflicts between a type of beach-nesting shorebird, piping plover, and recreational beach users in Massachusetts.^[74] Such plans also apply to the red-cockaded woodpecker of forests in the southeastern states.^[75][42] In 2023, habitat conservation planning for grizzly bears in the northern Rocky Mountains became controversial when an increase in bear deaths caused trains was reported, along with acknowledgment by the agency that several million dollars of federal funds for the plan participants had not yet been provided for them to engage in their specified mitigation actions.^[76]

Summing up the practical difficulties in a 2023 report on the Act, Defenders of Wildlife pointed to underfunding as a continuing problem and that the agencies "lack adequate resources to develop, approve, and monitor these plans, and there are significant data gaps in how many of these plans are performing."^[63]

Species awaiting listing

A 2019 report found that the Fish and Wildlife Service faced a backlog of more than 500 species that have been determined to potentially warrant protection.^[77] The decision to list or defer listing of a petitioned species is supposed to take no more than 2 years after a petition is filed. However, on average it takes the agency 12 years to finalize a decision.^[78] An analysis published in 2016 by the Ecological Society of America found that approximately 50 species may have gone extinct while awaiting a listing decision.^[4] Additional funding might enable the agency to direct more resources toward biological assessments of petitioned species and determine if they merit a listing decision.^[79][80]

An additional issue is that species still listed under the Act may already be extinct. For example, the IUCN Red List declared the Scioto madtom extinct in 2013. It had last been seen alive in 1957.^[81] However, FWS still classifies the catfish as endangered.^[77]

Critical habitatedit

As habitat loss is regarded as the primary threat to most imperiled species,^[4] Section 4 of the Endangered Species Act of 1973 allowed the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) to designate specific areas as protected critical habitat zones.^[82] The designation of critical habitat does not affect land ownership. It does not allow the government to take or manage private property, nor to establish a refuge, reserve, preserve, or other conservation area. Critical habitat designation does not allow unauthorized government access to private land. Such designation can, however, restrict activities allowable on private lands.^[83]

In 1978, Congress amended the law to make critical habitat designation a mandatory requirement for all threatened and endangered species. The amendment also added economics into the process of determining such designation. It reads, "...shall designate critical habitat... on the basis of the best scientific data available and after taking into consideration the economic impact, and any other impact, of specifying... area as critical habitat."^[84] The congressional report on the 1978 amendment described a potential controversy that might ensue, given that "economic impact" was included in the amendment:

"... the critical habitat provision is a startling section which is wholly inconsistent with the rest of the legislation. It constitutes a loophole which could readily be abused by any Secretary ... who is vulnerable to political pressure or who is not sympathetic to the basic purposes of the Endangered Species Act."-- House of Representatives Report 95-1625, at 69 (1978)^[85]

The controversy did arise and thus the 1982 amendment to the Act explicitly prohibited similar economic considerations when determining the status of a species.^[86]

In designating critical habitat, the needs of open space for individual and population growth, food, water, light or other nutritional requirements, breeding sites, seed germination and dispersal needs, and lack of disturbances are considered.^[86] As itemized within a 2008 review paper on the Endangered Species Act, designation of critical habitat is the first priority for agency action following listing of a species. Next is formulation of a recovery plan.^[37] Not all recovery plans, however, specify critical habitat. Setting aside this requirement is authorized if the agency head determines that its designation would not be "prudent."^[87]

Most provisions of the ESA revolve around preventing extinction. Critical habitat is one of the few that focus on recovery. A 2005 paper published in the journal BioScience concluded that species afforded critical habitat are twice as likely to be recovering than are species without critical habitat.^[88] A 2016 report published by the Ecological Society of America stated that data were inconclusive on this matter because "in practice, the Services often exempt habitat degradation from regulation. As a result, designating critical habitat has had limited regulatory effect."^[4] Overall, disagreement as to the effectiveness of critical habitat designation is expressed in a number of different reports.^[89][86][90]

Another controversy arises from the Act specifying that critical habitat designation is required to contain "all areas essential to the conservation" of the imperiled species, and may include private as well as public lands. The Fish and Wildlife Service has a policy limiting designation to lands and waters within the U.S. and both federal agencies may exclude essential areas if they determine that economic or other costs exceed the benefit. The ESA, however, is mute about how such costs and benefits are to be determined.^[4]

All federal agencies are prohibited from authorizing, funding, or carrying out actions that "destroy or adversely modify" critical habitats (Section 7(a) (2)). While the regulatory aspect of critical habitat does not apply directly to private and other non-federal landowners, large-scale development, logging, and mining projects on private and state land typically require one or more federal permits and thus become subject to critical habitat regulations. Outside or in parallel with regulatory processes, critical habitats also focus and encourage voluntary actions such as land purchases, grant making, restoration, and establishment of reserves.^[91]

Finally, the Act's specification of the timing of critical habitat designations has become problematic. The ESA requires that critical habitat be designated at the time of or within one year of a species being placed on the endangered list. In practice, most designations occur several years after listing.^[91] Between 1978 and 1986 the FWS regularly designated critical habitat. In 1986 the Reagan administration issued a regulation limiting the protective status of critical habitat. As a result, few critical habitats were designated between 1986 and the late 1990s. In the late 1990s and early 2000s, a series of court orders invalidated the Reagan regulations and forced the FWS and NMFS to designate several hundred critical habitats, especially in Hawaii, California, and other western states. Midwest and eastern states received less critical habitat, primarily on rivers and coastlines. As of December 2006, the Reagan regulation had not yet been replaced, though its use had been suspended. Nonetheless, the agencies have generally changed course and since about 2005 have tried to designate critical habitat at or near the time of listing.^[91]

Climate adaptationedit

Although the Endangered Species Act of 1973 did not in itself limit the placement of "experimental populations" to the historically native range of a plant or animal, a regulatory change in 1984 regarding "experimental populations" made prospective translocations more difficult to justify.^[92] June 2022, the U.S. Fish and Wildlife Service published a proposed rule in the Federal Register that would "revise section 10(j) regulations under the ESA to better facilitate recovery by allowing for the introduction of listed species to suitable habitats outside of their historical ranges. The proposed change will help improve the conservation and recovery of imperiled ESA-listed species in the coming decades, as growing impacts from climate change and invasive species cause habitats within their historical ranges to shift and become unsuitable."^[93] The comment period ended August 2022, with more than 500 comments posted online by supporters and opponents.^[94] The final decision was scheduled for publication June 2023.^[95]

As reported on the news page of Audubon, adoption of the proposed regulatory change would authorize, for the first time, use of a controversial climate adaptation tool: assisted migration.^[96] A 2010 paper in Conservation Letters had pointed out that, while no statutory changes appeared necessary to facilitate this newly proposed form of climate adaptation, "current regulations are an impediment to assisted colonization for many endangered animal species, whereas regulations do not necessarily restrict assisted colonization of endangered plants."^[97]

The U.S. Department of Interior on June 30, 2023, announced its decision to modify the section 10(j) "experimental populations" rule generally as proposed a year earlier.^[98] The press release summarized the reason for the change as:

At the time the original 10(j) regulations were established, the potential impact of climate change on species and their habitats was not fully realized, yet in the decades since have become even more dramatic. These revisions will help prevent extinctions and support the recovery of imperiled species by allowing the Service and our partners to implement proactive, conservation-based species introductions to reduce the impacts of climate change and other threats such as invasive species.^[99]

The rulemaking action includes a section summarizing 25 topics entailed in comments submitted in 2022, along with the agency's official response to each.^[100]

Six months after this climate adaptation regulation for listed species was published, the National Park Service issued a 154-page report on recommendations for halting the decline of the endangered Karner blue butterfly in its small and scattered populations across the northeastern states. Among the recommendations were "managed relocation" of populations from the southern parts of its range into northward habitats with suitable conditions and supportive plants. The report justified the managed relocation action by noting that stakeholders and managers "are growing more supportive of novel science-based interventions to save rare species from climate change–driven extirpation."^[67] Zdroj:https://en.wikipedia.org?pojem=Endangered_Species_Act_of_1973
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