As a result, anyone engaged in an otherwise lawful activity had a means of complying with the act by getting an incidental take permit. To secure such a permit, however, an applicant had to develop and commit to implement a habitat conservation plan that minimized and mitigated the adverse effects of the authorized taking to the maximum extent practicable.
Implementation of this statutory provision has been highly innovative. On its face, the provision seemed to contemplate permits for discrete projects undertaken at one site by an individual landowner. While often used for such projects, more creative use has been made by units of local government that have zoning or similar land use authority. Countywide habitat conservation plans in California, Texas, Utah, and elsewhere have made possible the issuance of a single permit that authorizes all development activities that are consistent with local zoning ordinances, as well as the integration of conservation and development over a period of many decades.
For local governments and local landowners to be able to rely on such permits, they needed assurance that a plan, once approved, would be stable and would not be revised each time new information surfaced about the needs of listed species or the impacts of permitted development on listed species.
The FWS and the NMFS acknowledged the legitimacy of the need for permittee assurance by announcing a no surprises policy—that the services would not revisit permits and require additional mitigation in the face of unforeseen circumstances. That innovative assurance, though controversial at the time, 29 has been highly successful at motivating both local governments and landowners to pursue habitat conservation plans and their associated incidental take permits.
Those plans have made possible the establishment of thoughtfully designed systems of conservation reserves, while at the same time facilitating all manner of development activities.
Habitat conservation plans have also fostered a practice known as conservation banking. This practice grew out of a realization that conservation measures would need to offset the effects of foreseeable future development on listed species. Rather than wait to implement compensatory mitigation measures when development occurs, conservation banking permits mitigation ahead of development, thus providing development interests with a ready-made mitigation option.
Significantly, conservation banking became a way for entrepreneurial landowners to turn rare species on their land into assets and a means of generating income, rather than liabilities.
By investing in conservation of those species and generating mitigation credits that the FWS and the NMFS recognized, conservation bankers could generate income for themselves while providing development interests with a preapproved means of meeting their mitigation obligations.
Through this innovative financing mechanism, scores of conservation banks have been established and used to protect habitat essential to species conservation. If those activities attracted an endangered species to their land or expanded the number or distribution of a species that was already present there, the likely result for landowners was new land use restrictions to avoid any taking of the affected species.
To resolve this dilemma, in the mids, the FWS aggressively promoted what are called safe harbor agreements. Landowners have responded favorably to this approach. For the red-cockaded woodpecker, the endangered species for which safe harbor agreements were first developed, there are now statewide agreements in eight states in which hundreds of forest landowners who collectively own hundreds of thousands of acres of forest participate.
Although safe harbor agreements were a novel idea, an amendment to the ESA was not required to bring them about. Instead, it only took the creativity to fashion an innovative application of a provision that had been part of the law since its inception in In authorizing safe harbor agreements and the permits that effectuate them, the FWS recognized that enabling private landowners to manage their land to attract or increase an endangered species would enhance the survival of those species.
While the jury is still out for many safe harbor agreements, the agreements for the endangered red-cockaded woodpecker have resulted in demonstrable benefits. Red-cockaded woodpecker numbers have increased rangewide in response to recovery and management programs, from an estimated 4, active clusters in to 6, in On private lands, more than 40 percent of the known red-cockaded woodpeckers are benefiting from management approved by the FWS through memorandums of agreement, safe harbor agreements, and habitat conservation plans.
The success of safe harbor agreements in incentivizing beneficial management for listed species led to the development of somewhat analogous agreements for so-called candidate species—seriously declining species formally recognized by the FWS as warranting proposed listing but lacking sufficient funds to do so. While landowners and others have no legal duty to protect or avoid harming candidate species, they often share a desire to keep candidate species from needing to be listed.
However, a familiar dilemma can arise: If landowners, for example, seek to help conserve a candidate species on their land and that species nevertheless becomes a listed species, then landowners may face greater land use restrictions because of their earlier voluntary efforts, which helped preserve or expand a given population.
The administrative solution was the establishment of a new program that offered a candidate conservation agreement with assurances CCAA. Landowners who enter into a CCAA agree to undertake specified conservation measures on their property for a candidate species.
The assurance landowners get in return is that if the species is later listed, they will not be required to do more than already agreed to under their agreement. A variety of landowners have embraced CCAAs. Indeed, in instances such as the case of the Upper Missouri River population of the Arctic grayling, there have been enough landowners willing to enroll in CCAAs to persuade the FWS that these species did not in fact need to be listed as endangered or threatened species. A final example of administrative flexibility in ESA implementation concerns the prohibitions that apply to threatened species.
For endangered species, the act includes an extensive list of automatic prohibitions against taking, importation, exportation, sale in interstate commerce, transport in interstate commerce, and more. Instead, Section 4 d of the ESA authorized the FWS to prescribe such regulations as it deemed necessary and advisable for the conservation of a threatened species. Notwithstanding this statutory discretion, for many years the FWS applied a uniform set of prohibitions to most threatened species that were nearly identical to those that applied automatically to endangered species.
Specifically, critics argue that it allows the FWS to list some more controversial species with few protective prohibitions, making the long-term conservation of the species much more uncertain.
While the act requires federal collaboration with the states, many states believe that they should play a much greater role in determining what species should be given priority for ESA listing reviews; in determining if a species should be listed or delisted; and in designating critical habitat and developing recovery plans. On its face, this effort to expand the working relationship and information-sharing between the FWS, the NMFS, and the states is positive.
In fact, many states lack the capacity—both staffing and funding—to engage in ESA activities and, historically, have invested significantly less money in the conservation of listed species. At present, most states simply lack the financial resources to be able to step up and effectively replace the diminished federal investment in species conservation and recovery.
The successful effort to conserve the greater sage-grouse across its remaining state range offers many lessons to inform future efforts to conserve fish and wildlife species long before they reach the threshold that requires listing as threatened or endangered under the ESA.
The greater sage-grouse conservation effort was comprehensive, coordinated, and collaborative, addressing the conservation needs of the sage-grouse on public and private lands through the combined effort of state and federal conservation agencies, private landowners, public land users, and other stakeholders.
Early engagement among these partners built a level of trust and a means of communicating to ensure that the views and concerns of all parties were considered in developing the strategy. The strategy was designed and implemented at the landscape level to address the habitat protection, restoration, and enhancement needs of the greater sage-grouse across its remaining range.
The foundation for the greater sage-grouse conservation strategy was the best available science generated by a team of sage-grouse experts from the states and the FWS that identified threats to the species and strategies for addressing them. Added scientific analysis was provided by the U. Geological Survey USGS to address specific questions or concerns that arose throughout the process of developing the overall sage-grouse conservation strategy.
The state-federal partnership that produced the strategy demonstrated the capacity to coordinate and collaborate under the existing statute, as well as the benefits of doing so.
Through the efforts of the FWS and the Natural Resources Conservation Service, voluntary incentives and funding for conserving sage-grouse habitat were provided. The FWS worked with public land permittees and private land owners to develop candidate conservation agreements CCAs with grazing permittees on public lands and CCAAs that led to the enrollment of millions of acres of private grazing lands in Oregon, Montana, and Wyoming in conservation agreements both to protect and improve sage-grouse habitat and to assure landowners that their investments in conservation practices would be accepted should the species ultimately be listed.
Through the Sage Grouse Initiative SGI , the Natural Resources Conservation Service used science-based analysis to develop and implement conservation measures to protect and restore millions of acres of sagebrush habitat on private lands through voluntary means, with millions of dollars of financial assistance provided to implement specific conservation practices to benefit greater sage-grouse habitat.
Matt Mead and Colorado Gov. John Hickenlooper D , and the sage-grouse conservation strategy had the bipartisan support of nearly all the Western governors involved. Forest Service plans affecting 55 percent of the remaining sage-grouse habitat, the sage-grouse conservation strategy also points the way to a more efficient and effective approach to implementing the ESA in the future. The evidence suggests that if adequately funded and effectively implemented, the Endangered Species Act can work to protect threatened and endangered species from extinction on public and private lands with minimal impacts to their economic uses.
In some instances—as illustrated by perceived, and unfounded, problems with FWS Section 7 consultations—the rhetoric does not square with reality. And despite political differences, state and federal wildlife managers have found ways to resolve major issues affecting the listing and delisting of species and, apart from the delisting of the gray wolf in Montana, have kept Congress from circumventing the ESA. These creative administrative policies have been possible, and they have worked, because the provisions of the ESA are not rigid and unbending but are instead flexible and capable of being adapted to the exigencies of the day.
When it comes to protecting plants and animals on the brink of extinction, there's no more powerful and important tool than the Endangered Species Act. Since it was enacted in , the Act's rigorous, science-based approach has prevented the extinction of an impressive 99 percent of species under its protection.
The law has also saved the bald eagle, peregrine falcon and American alligator and put hundreds of other plants and animals on the road to recovery. Despite this success the Endangered Species Act is under attack like never before.
At the behest of deep-pocketed special interests, congressional Republicans have launched a barrage of legislative attacks on endangered species in recent years, seeking to block, remove or weaken protections for a host of species, including gray wolves, American burying beetles, sage grouse and African elephants — among many others.
Click here to look at all the Center-documented legislative attacks from to Trump's inauguration. To shed light on these attacks, the Center issued a report in — Politics of Extinction — and an update analysis for , documenting a percent increase in the rate of legislative attacks on endangered species since , after the Supreme Court case of Citizens United.
Republicans are overwhelmingly responsible for 94 percent of those attacks. ESA contains a number of exceptions. Other exceptions include incidental take by federal actions, national security issues, hardship cases, possession of a preexisting historical item, and certain actions by Alaskan Natives.
Provisions of the ESA are enforced through citizen suits, as well as through civil and criminal penalties. Fish, wildlife and plants illegally taken, possessed, sold, or purchased may be confiscated the most usual outcome. If there is a criminal conviction, then equipment and vehicles that were used to violate the ESA may also be confiscated.
With certain exceptions, the ESA protects endangered and threatened species from extinction by prohibiting the importing, exporting, taking, possessing, selling, and transporting of such species.
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