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What is the ESA?

The Endangered Species Act (“ESA”) is a federal law that requires that certain actions be taken to protect “listed” species of wildlife, fish, and plants to insure that they do not become extinct. The full text of the ESA can be found at FPO. Read IPAA’s ESA Fact Sheet to learn more.
The United States Fish and Wildlife Service (“FWS”) is responsible for administering and enforcing the protections of the ESA that apply to the species that live in or on the ground or fly above it, and that live in freshwater. Approximately 95% of “listed” species are under the jurisdiction of FWS. You can access FWS’s ESA website HERE. The National Marine Fisheries Service (“NMFS”) is responsible for administering and enforcing the protections of the ESA that apply to most forms of marine life and to anadromous fish like salmon. You can access NMFS’s ESA website HERE.
The ESA can affect youroil and gas operations in two situations.
The first situation is when you need a federal permit to do something in an area inhabited by a “listed” species. In that situation, the ESA requires the agency from which you are seeking the permit to insure that your proposed activities will not put the survival of the “listed” species in jeopardy, or destroy or adversely modify the species’ critical habitat. As part of that process, the permitting agency is required to “consult” with FWS(or NMFS) if it determines that your proposed activities “may affect” a “listed” species. Once the duty to consult has been triggered, FWS (or NMFS) is then required to prepare a Biological Opinion (BiOp) on whether your proposed activities will put the survival of the “listed” species in jeopardy. This consultation process is sometimes referred to as section 7 consultation.
If the BiOp finds that your activities are likely to place a “listed” species in jeopardy, you will have three choices: 1) you can withdraw yourpermit application; 2) you can adopt the “reasonably prudent alternatives” (“RPAs”) to your activities that are suggested by FWS (or NMFS); or 3) you can seek an exemption from the requirements of the ESA. You should note, however, that such an exemption is almost impossible to obtain.
The second situation is when you are planning to conduct, or are conducting, activities in an area inhabited by a “listed” species, but you do not need a federal permit to conduct your activities. This situation typically occurs when you are conducting your activities on state or private land. In that situation, the ESA makes it illegal to “take” or “harm” the “listed” species or its habitat, unless you have obtained an Incidental Take Permit (“ITA”) from FWS (or NMFS).
A “listed” species is a species that has been placed by FWS (or NMFS) on the List of Endangered Species or on the List of Threatened Species. A species may only be placed on a list after a formal rulemaking in which FWS (or NMFS) determines that the species is either “endangered” or “threatened.”Currently, 1524 species in the United States are “listed” as either “endangered” or “threatened.” FWS (or NMFS) may also “list” species that live exclusively in other countries. In settlement of a lawsuit, FWS agreed in 2011 to bring the listing process to a conclusion by 2018 for over 600 backlogged species.
The “listing” process can be initiated in either of two ways. First, listing can be initiated by a petition to FWS (or NMFS) from private individuals or groups. Second, listing can be initiated by FWS (or NMFS) on its own through an internal assessment of the status of a species.
Regardless of the process followed, a species may be“listed”only if it is determined by FWS (or NMFS) to be either “endangered” or “threatened” based on one or more of five factors:
1) the present or threatened destruction , modification, or curtailment of its habitat or range;
2) overutilization for commercial, recreational, scientific, or educational purposes;
3) disease or predation;
4) inadequacy of existing regulatory mechanisms; and
5) other natural or manmade factors affecting its existence.
Any such determination must be based on the “best scientific and commercial data available.”
The Petition Process – Upon receipt of a listing petition, FWS (or NMFS) is required by the ESA to make a finding as to whether the petition “presents substantial scientific or commercial information indicating that the petitioned action may be warranted.” In making its finding, FWS (or NMFS) is to consider the information submitted with the petition, and whatever other information may be available in its files. To the maximum extent practicable, FWS (or NMFS) is to make the finding within 90 days of its receipt of the petition. Hence, it is referred to as the 90 day finding. The 90 day finding is published in the Federal Register.
If FWS (or NMFS) determines in its 90 day finding that a listing may be warranted, it then initiates a “status review” in which information from the public about the species is solicited. To the maxmium extent practicable, FWS (or NMFS) is to complete its status review and make a final finding within 12 months of its receipt of the petition. Hence, the final finding is referred to as the 12 month finding.
In the 12 month finding, FWS (or NMFS) is to state whether a listing of the species is, in fact, warranted. If FWS determines that a listing is warranted, it must then propose a rule listing the species. A proposed rule is sometimes announced concurrently with the results of the 12 month status review, and sometimes somewhat later, but is required to be published in final form within 12 months of the proposal. The public is invited to comment on the proposed rule.
FWS (or NMFS) may also find that a listing is “warranted but precluded” by other higher priority listing activities. Species subject to such a finding are placed on the List of Candidate Species (see below).
The Internal Assessment Process– FWS (or NMFS) may initiate a status review even without receiving a petition. If it determines that a listing is warranted, it will propose a rule. If it determines that a listing is “warranted but precluded” by other higher priority listing activities, it will place the species on the List of Candidate Species.
A species is “endangered” if FWS (or NMFS) determines through the listing process that the species is “in danger of extinction throughout all or a significant portion of its range.” What it means to be “in danger of extinction”—i.e., the precise combination of facts that add up to a finding of endangerment–varies from species to species, due to the different life history and ecology of each species, the varied nature of the threats they face, and their varied ability to respond to the threats. FWS commonly states that a species is “in danger of extinction” if it is “on the brink of extinction in the wild.” For examples of fact situations in which endangerment findings are typically made, click on _________.
A species is “threatened” if FWS (or NMFS) determines through the listing process that the species is likely to become “endangered” in the foreseeable future. The foreseeable future may be different for each species, depending on a number of factors.
Yes, although it seldom happens. Once a species is “listed,” FWS is required to develop a recovery plan. The plan identifies the steps that could be taken to bring the species to a point at which it is no longer “endangered” or “threatened,” and could therefore be “delisted.” A recovery plan is not a regulation and is not legally binding. “Delisting,” like listing, is done through a formal rulemaking.
When a species is “listed,” the FWS is also required to determine if there are areas of habitat that are critical to the survival or recovery of the species. Designation of critical habitat, like listing, is done through a formal rulemaking process, sometimes concurrently with the listing of the species, but most often in a separate proceeding that follows shortly thereafter. Critical habitat has been designated for about half of the species that have been “listed.” Once habitat is designated as critical, federal agencies must insure that they do not permit activities that would destroy or adversely modify that habitat. For more detailed information on the designation of critical habitat, click HERE
The list of threatened and endangered animal species can be found HERE. The list of threatened and endangered plant species can be found HERE.
If FWS (or NMFs) concludes that listing a particular species is warranted, but that development of a final rule is precluded by higher priority listing activities, it will place the species on the Candidate Species List. There are currently over 250 Candidate Species. Landowners can voluntarily enter into Candidate Conservation Agreements with FWS (or NMFS) to take steps to conserve these species. Such agreements may prevent or forestall the need to list the species. The List of Candidate Species can be found HERE.More details about Candidate Conservation Agreements can be found HERE.
Opportunities for public comment occur during the 12 month status review and on proposed rules. Generally speaking, comments should provide or discuss biological information that is relevant to a determination of the status of the species, rather than discuss a how a “listing” might affect your operations.
It is illegal to “take” an endangered species unless the “take” is done pursuant to an Incidental Take Permit or other special permit. “Take” is defined broadly by the ESA as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.” “Harm,” as defined by the regulations, also includes significant habitat modification that actually kills or injures a listed species through impairing essential behavior such as breeding, feeding, or sheltering.
It is also illegal to import or export endangered species; to deliver, receive, carry, transport or ship an endangered species in interstate or foreign commerce in the course of a commercial activity; and to sell or offer for sale an endangered species in interstate or foreign commerce. The list of prohibited activities can be found at 50 CFR 17.21.
Most, but not all, of the protections afforded to endangered species are also afforded to threatened species. FWS has the authority to tailor those protections—i.e., expand or restrict them—to a particular through the development and adoption of what is called a 4(d) rule for the species. The list of prohibited activities can be found at 50 CFR 17.31.
In situations where your activities do not require a federal permit, the ESA makes you liable for the “take” of a “listed” species in the course of your otherwise lawful activities unless you have an Incidental Take Permit (ITP). An ITP is issued by FWS (or NMFS). An ITP will be issued only after FWS (or NMFS) is satisfied that you will minimize and mitigate the effects of your “take” to the maximum extent practicable, and only if your “take” will not appreciably reduce the likelihood of the survival and recovery of the species. Further information about ITPs can be found HERE
In order to get an ITP, you will need to develop, and get approved, a Habitat Conservation Plan (HCP). An HCP must explain how you intend to minimize and mitigate the effects of the incidental take for which you are seeking permission. FWS’s (or NMFS’s) approval of an HCP and the issuance of an ITP are subject to the requirements of NEPA. As a precautionary measure, HCPs can be developed for candidate species. Further information about HCPs can be found HERE
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