A Primer on the Endangered Species Act: The Species List, Take Prohibition, Permits, & Federal Consultation Requirements

The Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-1544, is the federal statute designed to protect endangered and threatened fish, wildlife and plant species and the ecosystems upon which they depend. The ESA is administered by the National Marine Fisheries Service (“NOAA Fisheries”) as it pertains to marine and anadromous (i.e. salmonid) species, and the United States Fish and Wildlife Service (“USFWS”) as it pertains to terrestrial and freshwater species. See “Memorandum of Understanding Between United States Fish and Wildlife Service and National Marine Fisheries Service Regarding Jurisdictional Responsibilities and Listing Procedures Under the Endangered Species Act of 1973” (Aug. 1974). Section 4 of the ESA authorizes NOAA Fisheries and USFWS (together, the “Services”) to “list” species as endangered or threatened, depending on the risk of extinction to that species, after conducting a status review and considering the best scientific and commercial data available. 16 U.S.C. § 1533(a), (b). In addition, the Services are required to designate critical habitat for all listed species to the maximum extent prudent and determinable. Id. at § 1533(a)(3).

Once listed, Section 9 of the ESA makes it unlawful for any person – including private and public entities – to “take” individuals of an endangered species and, by regulation, a threatened species. 16 U.S.C. § 1538(a) (protecting endangered species); id. § 1533(d) (authorizing the Services to extend the take prohibitions of Section 9 to threatened species by regulation); id. § 1532(13) (defining “person”). “Take” means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.” Id. at § 1532(19). “Harm” is further defined to include significant habitat modification or degradation which “actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering.” 50 C.F.R. § 222.102 (NOAA Fisheries’ Harm Rule); see also id. § 17.3 (USFWS’ Harm Rule). Under this “Harm Rule,” significant habitat modification that results in the impairment of a species’ essential behavioral patterns may constitute a violation of the Section 9 take prohibition. The ESA provides for civil penalties of up to $25,000 per violation, and criminal penalties of up to $50,000 and one year imprisonment per violation. 16 U.S.C. § 1540(a), (b).

The ESA also makes it unlawful to cause another party to take listed species. 16 U.S.C. § 1538(g). Courts have read this provision to apply to government authorizations of activities that cause take and that, but for the authorization, would not take place. See, e.g., Strahan v. Coxe, 127 F.3d 155 (1st Cir. 1997) (state violated ESA’s take prohibition by authorizing fishing in precise manner that caused take of endangered northern right whales); Sierra Club v. Yeutter, 926 F.2d 429, 438-39 (5th Cir. 1991) (Forest Service’s failure to comply with own handbook’s red-cockaded woodpecker protections resulted in unlawful take by impairing essential behavioral patterns); Defenders of Wildlife v. Environmental Protection Agency, 882 F.2d 1294, 1301 (8th Cir. 1989) (take prohibition violated where endangered ferret died from ingesting strychnine bait distributed pursuant to EPA’s registration scheme and “relationship between the registration decision and the deaths of endangered species is clear.”). No entity will be liable for take, however, unless it is the “proximate cause” of that take. See Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon, 515 U.S. 687, 700 n.13 (1995) (noting that the Harm Rule is subject to the ESA’s “knowingly violates” mens rea requirement, ordinary requirements of proximate cause and foreseeability, and “obviously” requires a “but for” causation test).

Certain activities may be exempted from the prohibitions of Section 9. Section 10 of the ESA authorizes the Services to issue permits for scientific purposes or to enhance the survival of the species. 16 U.S.C. § 1539(a)(1)(A). In addition, the Services may issue permits to take listed species incidental to otherwise lawful activities upon submission of a habitat conservation plan (“HCP”). Id. § 1539 (a)(1)(B). An HCP must detail the anticipated impact of the activity on listed species and their designated critical habitat. 50 C.F.R. §§ 17.32(b)(1)(iii); 222.307(b). To approve an HCP, the Services must find, among other things, that the applicant will monitor, minimize and mitigate the impacts of any incidental taking to the maximum extent practicable, and that the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild. 50 C.F.R. §§ 17.32(b)(2); 222.307(c). In addition to exempting any incidental take of listed species from the prohibitions of Section 9, HCPs come with an additional benefit called “No Surprises.” See 63 Fed. Reg. 8859 (Feb. 23, 1998). Once an HCP has been issued, and so long as the permitted activity is not jeopardizing listed species, the Services may not require the commitment of additional funding or resources from the HCP holder. 50 C.F.R. §§ 17.32(b)5)(iii)(B); 222.307(g)(2).

Each federal agency has a unique obligation pursuant to Section 7 of the ESA to consult with NOAA Fisheries or USFWS whenever an action that it is authorizing (i.e., permitting), funding or carrying out “may affect” a listed species. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a). The purpose of this consultation is to assist the federal agency in ensuring that its actions and the actions of any permit or license applicant are not likely to “jeopardize the continued existence” of a listed species, or “destroy or adversely modify” a species’ designated critical habitat. 16 U.S.C. § 1536(a)(2); see also 50 C.F.R. § 402.02 (defining “applicant”). The consultation process is complicated. First, the federal “action agency” delivers its own assessment to the applicable Service regarding whether the action is likely or not likely to adversely affect the species and habitat at issue. 50 C.F.R. § 402.14(b); see also 16 U.S.C. § 1536(c), 50 C.F.R. § 402.12 (specific biological assessment requirements for major construction activities). If the Service concurs with the action agency’s “not likely to adversely affect” determination, then the consultation process is complete and the action may move forward, but neither the agency nor the applicant will be “covered” in the event of any unanticipated take. 50 C.F.R. § 402.14(b). If the Service does not concur with such a determination, and likewise if the action agency determines in the first place that adverse affects are likely, then the action agency must initiate formal consultation. Id. § 402.14(a).

During formal consultation, NOAA Fisheries or USFWS develops an analysis of the action’s impacts to listed species and their designated critical habitat, including impacts resulting from any indirect and cumulative effects. 50 C.F.R. § 402.14(g)(3), (4). In performing this “jeopardy analysis,” the Services are required to make informed decisions regarding the action’s effects based on the best scientific and commercial data available. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(g)(8). This standard is designed to allow the Services to make “jeopardy” or “no jeopardy” determination even in the face of uncertain information. See Pub. L. No. 96-159 at 12, 93 Stat. 1225, 1226 (1979) (explaining that Congress amended ESA so that Services would not be required to issue negative biops “whenever the action agency cannot guarantee with certainty that the agency action will not jeopardize….”). The applicable Service’s jeopardy analysis will be part of its “biological opinion,” the issuance of which will conclude formal consultation. Id. § 402.14(g). Total consultation may last up to 135 days, with an additional 60-day extension allowed with the consent of the action agency, and any additional extensions allowed with the consent of any applicant. 50 C.F.R. § 402.14(e). During this time, Section 7(d) of the ESA prohibits the action agency and any applicant from making irreversible or irretrievable commitments of resources with respect to the action under consideration that would have the effect of foreclosing possible alternatives to that action. 16 U.S.C. § 1536(d).

If, at the conclusion of formal consultation, NOAA Fisheries or USFWS determines that the action is not likely to jeopardize the listed species and not likely to destroy or adversely modify its designated critical habitat, it will issue a “no jeopardy” biological opinion and an incidental take statement (“ITS”) detailing the amount and extent of anticipated incidental take. 50 C.F.R. § 402.14(i). The ITS will include additional terms and conditions that the federal agency and any applicant must implement to minimize the impact of such incidental take. Id. Both the action agency and any applicant are exempt from the Section 9 take prohibitions so long as the action is implemented in accordance with the ITS. 16 U.S.C. § 1536(o).

If the applicable Service determines that the action is likely to jeopardize the listed species or destroy or adversely modify its critical habitat, it will issue a “jeopardy” biological opinion. 50 C.F.R. § 402.14(h)(3). The applicable Service will include in its jeopardy biological opinion any “reasonable and prudent alternatives” (“RPAs”) to the action which, if implemented, would not be likely to jeopardize the listed species or destroy or adversely modify its designated critical habitat. Id.The RPA, in turn, will be accompanied by an ITS, pursuant to which actions implementing the RPA will be exempt from the Section 9 take prohibitions. 16 U.S.C. § 1536(o). If no RPA can be developed, the action cannot move forward. However, the action agency or applicant may apply to the ESA Committee, commonly referred to as the “God Squad,” for an exemption from the results of a Section 7 consultation. See 16 U.S.C. § 1536(e)-(h); 50 C.F.R. pt. 450.

In addition to consultation under the ESA, action agencies must consult with NOAA Fisheries pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (“MSA”), 16 U.S.C. §§ 1801-1883, with respect to any “essential fish habitat” (“EFH”) affected by actions authorized, funded or undertaken by the agency. Id. § 1855(b)(2). EFH refers to those waters and substrate identified by fishery management councils as “necessary to fish for spawning, breeding, feeding or growth to maturity.” Id. § 1802(10). If NOAA Fisheries determines that the action would adversely affect EFH, it will recommend measures that the action agency and any applicant may take to conserve such habitat. Id. § 1855(b)(4)(A). The agency often incorporates its EFH recommendations into its ESA biological opinion for an action, if one is required. Unlike the terms of an ITS and any RPA, however, EFH recommendations need not be implemented by the action agency to maintain compliance with the MSA. Rather, the MSA requires the action agency to respond in writing with a description of measures it intends to implement (or require an applicant to implement), and its reasons for foregoing any of NOAA Fisheries’ recommendations, if applicable. Id. § 1855(b)(4)(B). NOAA Fisheries may circumvent the action agency’s rejection of EFH recommendations by including such recommendations as terms and conditions in its biological opinion.