On The Brink of Extinction: Examining How the U.S. Endangered Species Act Works

A white cloud of mist spouts from the ocean’s surface, followed seconds later by the rise and fall of an enormous fluked tail. A humpback whale is sighted along the West Coast of North America; to witness this endangered species is a rare treat. While humpbacks are spotted infrequently, thousands of gray whales can be seen during their annual migration. But just 70 years ago, gray whales were rarely seen in the Pacific Ocean. Overexploited by commercial whalers, the species was in danger of disappearing from the planet. How did the gray whale go from near-extinction in the 1930s to 21,000 animals today, enough to sustain the long-term survival of the species? Thanks to legal protection given to animals and plants teetering toward extinction, species like the gray whale, bald eagle and American alligator still inhabit the Earth today.

There are many national and international laws protecting animals and plants. One of the strongest and most effective laws in the world is the U.S. Endangered Species Act (ESA) — the focus of this article.

Passed in 1973, the ESA set an ambitious goal: to conserve the ecosystems upon which endangered and threatened species depend, and to provide for the conservation of such species. Under the ESA, an “endangered” species is one that is in danger of extinction within the foreseeable future. A “threatened” species is one that is likely to become endangered within the foreseeable future.

How Do Species Become Endangered?

Before we talk about protecting threatened and endangered species, it’s helpful to understand what factors can lead to their decline. Natural causes such as climate change or a volcanic eruption can alter ecosystems so much that many species adapt and evolve or become extinct. Ice Age animals like the woolly mammoth and saber-toothed tiger are examples of species that perished because of significant changes in the world’s climate. Human activity can also have enormous effects on the well-being of animal and plant species. Overharvesting for food has pushed several whale and fish species to near-extinction. Illegal trade in wildlife threatens the survival of certain species when clothing, jewelry, aphrodisiacs and decorative products made from animals and plants fetch top dollar. The introduction of one species into an ecosystem, whether intentional or by accident, can wreak havoc on the native animals and plants. Housing development, natural resource extraction and pollution can destroy the habitat of many species. If nothing is or can be done to stop or reverse the decline of a species, it may cease to exist. Documented extinctions in the past 20 years include the blue pike and dusky seaside sparrow.

Why Bother?

Why should we protect endangered species, or any species for that matter? Every plant and animal plays an integral role in maintaining the health of its natural environment. If one species goes extinct, it could trigger the loss of others and the collapse of certain ecosystems. Without biodiversity in our oceans, forests, wetlands, rivers, deserts and mountains, we lose important components to our own survival — life-saving drugs and food, crop pollination, and clean air and water.

The ESA can be a powerful tool for protecting threatened and endangered species and helping to ensure their long-term survival. When a species is placed on the federal list of endangered and threatened wildlife and plants, it is called a “listed species” and is entitled to full legal protection under the ESA. In the United States, there are 507 species of animals and 736 species of plants listed under the ESA.

Who’s in Charge?

The responsibility for administering the ESA is a daunting task shared by two government agencies — the Fish & Wildlife Service (FWS) in the Department of Interior, and the National Marine Fisheries Service (NMFS) in the Department of Commerce. NMFS deals with most species in marine environments, and FWS is responsible for land and freshwater species and migratory birds. Both agencies oversee the process for listing species and the development of recovery programs for protected species.

To List or Not to List

How does a species become listed under the ESA? It can happen one of two ways. Any interested person can propose a species for listing, or biologists with FWS and NMFS can identify species for possible listing. The listing process is complex and lengthy. To help understand the process, we’ll use as an example the fictitious purple frog. Let’s say Thelma Smith is concerned that the purple frog is in danger of extinction. Through research, she finds adequate biological evidence to support her claim. She files a formal request, called a “petition,” with the appropriate agency (in this case, FWS oversees frog species) to list the purple frog under the ESA. Within 90 days, FWS must review Thelma’s petition and determine whether there is substantial information that may warrant a listing of the purple frog. In our case, the findings are positive and we move to the next step. A status review must now be conducted within one year from receipt of the petition to determine whether the listing is warranted. In our case, the purple frog listing is indeed warranted, and the proposed listing is published in the Federal Register, a U.S. government publication. Now begins the public review process where all interested parties including the general public, scientific community and other government agencies can comment on the proposed listing. Within one year from the date of publishing the proposed listing, FWS must determine whether to publish a final listing. In our case, the final listing is published in the Federal Register, and 30 days later the purple frog is added to the list of endangered and threatened species.

A listed species may be classified as threatened or endangered in all or part of its “range,” the geographic area a species is known or believed to occupy. For example, let’s say the range of the purple frog is California and Oregon. And sprawling housing development in California has destroyed much of the frog’s natural habitat causing a sharp decline in its numbers. In Oregon, however, the frog has plenty of places to live and its numbers are healthy. In this case, the purple frog would be listed as threatened or endangered only in California.

Listing Priorities

In a perfect world, it can take a little more than two years from the time a petition is received to the actual listing of a species. But we live in a complex world with millions of species and limited funding and staff resources. If it comes down to making a choice between listing the purple frog or — let’s take another example — the fictitious pink whale, how do we decide which species receives priority? The government agencies overseeing the ESA have developed a priority system designed to direct their efforts toward the plants and animals in greatest need of protection. The magnitude of threat is the most important consideration, followed by the immediacy of the threat and the distinctiveness of the species. So if the purple frog were in danger of becoming extinct in a few months and the only species of frog in the world, and the pink whale could survive for several years without protection and was one of 10 whale species, the purple frog would receive listing priority. If data supports the need to list the pink whale but other species are of higher priority, then the pink whale listing is determined to be warranted but precluded. The pink whale is then put on a list of candidate species and must be reviewed annually. At present, there are 90 species of animals and 144 species of plants listed as candidates under the ESA.

Protections for Listed Species

Once an animal or plant is listed, it receives legal protection that applies to the species and its habitat. Protective measures authorized by the ESA include protection from any adverse effects of federal government activities; restrictions on “taking” (see glossary for definition), transporting or selling a species; a requirement that recovery plans are developed and implemented for listed species; authorization to buy important habitat; and federal aid to state and commonwealth wildlife agencies.

A listing also focuses attention on the precarious state of a species. Other countries, government agencies, independent organizations and concerned individuals may voluntarily undertake conservation efforts over and above those required by the ESA.

The Road to Recovery

The ultimate goal of the ESA is to save endangered and threatened species from extinction by ensuring their long-term survival in nature. To accomplish this, the ESA requires that recovery plans be developed for listed species. In our example of the purple frog, a recovery plan would include a prioritized list of actions to address threats to the frog, reverse declines in its numbers and achieve recovery.

Recovery often takes many years of research, restoration, protection and management. For example, in 1970, the American peregrine falcon was listed as endangered. It took the next 29 years of recovery actions and protection to remove, or “delist,” the falcon from the endangered and threatened species list.

Restoring threatened and endangered species presents a tremendous challenge. Many species face multiple threats and have limited habitat. In some cases, the causes of a species’ decline may not be understood, which makes planning for recovery difficult. Complicating the process is that a species’ habitat can include public land at federal, state and local levels, as well as private land. It takes cooperation from many government agencies, private landowners, businesses, tribes and conservation organizations to develop and implement recovery actions. At present, 76 percent of all listed species under the ESA have recovery plans. Those species without recovery plans are still protected, but no action is being taken to ensure their survival.

What About Foreign Species?

Currently, there are 555 foreign species of animals and three foreign species of plants listed under the ESA. Even though listed species like the giant panda, cheetah, and African and Asian elephants are not wild inhabitants in the United States, they are still given full protection under the ESA. Why do we bother listing foreign species if they don’t live in our country? In the United States, there is a huge pet trade in exotic fish, birds, reptiles and primates. An enormous market exists for products made from elephant ivory, sea turtle shells, tiger skins and other endangered species. Under the ESA, all listed species are protected from import or export. This applies to living plants and animals as well as products made from them. Americans are the biggest consumers in the world of wildlife and wildlife-related products. The protection given to endangered foreign species can go a long way to curbing the demand for them in our country and ensuring their survival in the wild.

The process for listing foreign species is the same as that for domestic species. Once listed, foreign species do not require recovery plans because animals and plants native to other countries don’t fall under U.S. jurisdiction. In some circumstances, the ESA allows for import and export of endangered species. Zoos and botanical gardens, for example, must obtain permits to display endangered animals and plants.

Variety is the Spice of Life

There are many reasons why we should protect endangered species. Perhaps the most important one is the simplest — the world would be a lonely place with just humans roaming the earth.

Endangered Species Glossary

The following is a sampling of terms and acronyms used with the United States Endangered Species Act.

Candidate species — Plants and animals that have been studied and proposed by the FWS for addition to the list of endangered and threatened species.

CITES — The 1973 Convention on International Trade in Endangered Species of Wild Flora and Fauna, restricting international commerce between participating nations for plant and animal species believed to be harmed by trade.

Conserve — Carrying out actions to improve the health of a species so it no longer needs to be listed as threatened or endangered.

Critical habitat — Specific geographic areas, whether occupied by listed species or not, that are determined to be essential for the conservation and management of listed species.

Delist — The process of removing an animal or plant from the endangered and threatened species list.

Ecosystem — Dynamic and interrelating complex of plant and animal communities and their associated nonliving environment.

Endangered — The classification provided to an animal or plant in danger of extinction within the foreseeable future throughout all or a significant portion of its range.

ESA — Endangered Species Act of 1973, as amended.

FWS — United States Fish & Wildlife Service.

Habitat — Where a species of plant or animal lives and its surroundings and particular environmental conditions.

Harm — An act that actually kills or injures wildlife. Such acts may include significant modification or degradation when it actually kills or injures wildlife by significantly impairing essential behavior patterns including breeding, feeding or sheltering.

Listed species — A species, subspecies or distinct vertebrate population segment that has been added to the endangered and threatened species list.

Listing — The formal process through which a species is added to the endangered and threatened species list.

NMFS — United States National Marine Fisheries Service.

Petition — A formal request, with the support of adequate biological data, suggesting that a species be listed, reclassified, or delisted, or that critical habitat be revised for a listed species.

Propose — The formal process of publishing a proposed federal regulation in the Federal Register and establishing a comment period for public input into the decision-making process. Plants and animals must be proposed for listing as threatened or endangered species, and the resulting public comments must be analyzed, before a final decision is made.

Range — The geographic area a species is known or believed to occupy.

Reclassify — The process of changing a species’ official threatened or endangered classification.

Recovery — The process by which the decline of an endangered or threatened species is arrested or reversed, or threats to its survival neutralized so that its long-term survival in nature can be ensured.

Species — A population of individuals that are more or less alike, and that are able to breed and produce fertile offspring under natural conditions.

Take — Harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect or to attempt to engage in any such conduct.

Threatened — The classification provided to an animal or plant likely to become endangered within the foreseeable future throughout all or a significant portion of its range.

The Politics of Endangered Species

The Endangered Species Act of 1973 (ESA) is the United States’ most powerful wildlife conservation tool. But where there’s power, there’s controversy. When a species is listed under the ESA, a recovery plan must be developed and implemented to protect the species from extinction. Recovery actions may involve setting aside large tracts of undeveloped land, limiting hunting, fishing and grazing activities, and curtailing natural resource extraction (logging, mining, oil drilling, etc.) in certain areas. While listed species stand to benefit from protection, there may be a few people who stand to lose financially. Money is power and can be the driving force behind the politics of listing and recovering endangered species.

Take salmon, for example. Salmon are born in rivers, swim to the oceans to mature, then return to their birth rivers to spawn the next generation. Salmon need healthy unobstructed rivers and oceans to survive. Logging next to rivers causes runoff that suffocates salmon eggs. Dams obstruct the passageway for salmon. Hydroelectric power diverts water from salmon streams. Overfishing doesn’t allow enough salmon to reproduce. Development along waterways pollutes spawning habitat. All of these factors over time have contributed to the recent listings of five species of salmon as threatened or endangered. Now that salmon are listed, recovery plans must be implemented. But logging companies don’t want to give up any trees, hydroelectric companies don’t want to give up cheap power, commercial fisheries don’t want to give up any salmon and developers don’t want to give up prime waterfront properties. See how fast the issue of endangered species can become political?

Is the Endangered Species Act in Danger of Extinction?

While certain industries and individuals may oppose a particular listing of a species, some are pushing to abolish the ESA altogether. Getting rid of the entire act will be difficult. But limiting its funding and staff resources may be just as effective.

In November 2000, the U.S. Fish & Wildlife Service (FWS) announced a moratorium on listing any new species as threatened or endangered through September 2001. This means that the 43 species proposed for listing will have to wait for protection, the 234 candidate species will not be reviewed and no new petitions will be considered. In the interim, the actions that contribute to species becoming endangered continue: habitat loss, overharvesting for food and products, pollution, etc. For every day endangered species wait for protection, they are another day closer to extinction. According to FWS, the moratorium is necessary because funding isn’t sufficient to address the listing of species, and comply with court orders and settlements arising from lawsuits. Many lawsuits have been filed by citizen groups to force the agency to comply with the ESA by designating “critical habitat” (see glossary for definition) for listed species. At present, only 11 percent of listed species have critical habitat designations.

The most recent attempt to change the ESA comes from the present administration. At press time, the administration had included a provision in the 2002 budget proposal that would restrict how FWS uses its allocated funding for listing endangered species. The agency only would be allowed to: 1) comply with existing court orders, and 2) undertake actions under a priority system to be developed for listing activities. What does this mean for endangered species? Under the current law, anyone can file a petition to list a species as threatened or endangered, and FWS must meet specific deadlines in reviewing the petition. Under the administration’s proposal, the deadlines could be waived if the petition is deemed low priority. As an example, let’s say Thelma Smith files a petition to list the fictitious purple frog as endangered. If FWS determines that the purple frog isn’t a high priority listing, then the petition can be shelved indefinitely — regardless of biological evidence supporting the frog’s listing.

In addition, FWS would not be allowed to spend any money on enforcing new court orders that impose deadlines for lower priority listings and actions. In the example of the purple frog, if Thelma Smith won a court decision stating that the frog petition had to be reviewed, FWS couldn’t spend any money to comply with the order. In the past, citizens have filed suit to enforce the ESA if deadlines were missed or required action wasn’t taken once a species was listed. According to the group Earthjustice Legal Defense Fund, 92 percent of all species listed in California during the last nine years were the result of citizen petition and court order.

The Bush administration says that the proposal is necessary to ensure that available funding is directed to the highest priority listing and critical habitat activities. Citizen groups see the administration’s proposal as an attempt to gut the ESA by shutting the public out of the legal process of protecting endangered species.

Global Statistics

The World Conservation Union (IUCN) tallies the world’s threatened species in its Red List of Threatened Species.

Number of threatened animal and plant species worldwide: 11,046

Countries with the greatest number of threatened species:

1) United States: 998*

2) Malaysia: 805

3) Indonesia: 763

4) Brazil: 609

5) Australia: 524

6) India: 459

7) Mexico: 419

8) Peru: 398

9) Philippines: 387

10) China: 385

* Does not correspond directly with the U.S. Fish & Wildlife Service’s list of threatened and endangered species.

Resources…

U.S. Fish and Wildlife Service Endangered Species Program 4401 N. Fairfax Drive, Room 420 Arlington, VA 22203 www.fws.gov

National Marine Fisheries Service Office of Protected Resources 1315 East West Highway, SSMC3 Silver Spring, MD 20910 www.nmfs.noaa.gov

World Conservation Union Red List of Threatened Species 219c Huntingdon Road Cambridge CB3 0DL

United Kingdom www.redlist.org

The Ocean Conservancy 1725 DeSales St, NW, Suite 600 Washington D.C. 20036 www.oceanconservancy.org

 

By Amy Gulick
Photos by Chris Huss