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How Does the Endangered Species Act Work?
By Del Albright, BlueRibbon Ambassador

We’re going to simplify the Endangered Species Act – the most significant thing to hit recreation since motors were invented -- right here and now.   You believe that, right?  (Smile).   Well, ok, we’re going to boil it down as best we can.   Truth be known, there is nothing simple or easy to understand about the Endangered Species Act (ESA).  But we can cut to the chase.  Here we will attempt to simplify the ESA as much as possible because we need to understand how this Act changed our world.

There are many folks who would tell you that the ESA has done more damage to recreation, development and growth, than about any other law ever conceived.  Environmental protectionists will tell you from a wildlife conservation perspective; it’s about the best thing since sliced bread.  Either way, there is no other law that has caused so much controversy. 

First of all, keep these bullet points in mind about the ESA:

·        The ESA is a law, passed by Congress in 1973.

·        The ESA was prompted by the so-called environmental movement, like the Clean Air Act and the Clean Water Act – all intended from their view to save our world.

·        The ESA can shut down about any project or activity you can dream of.

·        The ESA is the biggest and most-used tool of the anti-access radical protectionist groups.

Threatened or Endangered Animals and Plants

The United States Fish and Wildlife Service (USFWS) is charged with administering the Endangered Species Act. The purpose of the ESA is to protect endangered and threatened species and the habitat on which they depend; and to take steps to recover these species.  That’s important to remember – protect them and recover them.     

Before a plant or animal species can receive protection under the Endangered Species Act, it must first be placed on the Federal list of endangered and threatened wildlife and plants. This is called the listing process.

The listing process follows strict legal procedures to determine whether to list a species, depending on the degree of threat it faces. An “endangered” species is one that is in danger of extinction. A “threatened” species is one that is likely to become endangered in the foreseeable future. So if it looks, walks and smells like a dinosaur, it’s either threatened or endangered – it’s about to be gone, or is already gone!

For our purposes here, we’ll call these terms by their shortcut acronym: T or E (Threatened or Endangered).

A species is added to the list when it is determined to be endangered or threatened because of any of the following factors:

■ The present or threatened destruction, modification, or curtailment of the species’ habitat or range;

■ Over utilization for commercial, recreational, scientific, or educational purposes;

■ Disease or predation;

■ The inadequacy of existing regulatory mechanisms; or

■ Other natural or manmade factors affecting the species’ survival.

A lot of the ESA relies on a species about to be “harmed.”  By special court ruling, the term ''harm” includes any act which actually kills or injures fish or wildlife, and emphasizes that such acts may include significant habitat modification or degradation that significantly impairs essential behavioral patterns of fish or wildlife.

More on Listing of T and E Species

When it comes to listing of a species,  everything is done through what is called the Federal Register (a daily government publication).  All of the Fish and Wildlife Service’s actions, from proposals to listings to removals (“delisting”), are announced through the Federal Register.  This is where it all gets publicly noticed. 

We don’t read the Register much, do you?  Well, in that case, you should make sure you’re part of groups/organizations that DO read the register and keep us posted.  Those groups would include the BlueRibbon Coalition; American Sand Association; California Off Road Vehicle Association; and the Off-Road Business Association to name a few.  When you join groups like this, you are more assured that T and E species won’t sneak up on you and close down your favorite area – at least not without a fight.

A formal peer review process and an opportunity for public comment ensure that the Service obtains the best available scientific information to support its decisions.  

Once listed, a species is afforded the full range of protections available under the ESA, including prohibitions on killing, harming or otherwise "taking" a species. This means stop, cease, desist, don’t touch it!

As a first step in assessing the status of a species, the USFWS publishes a “notices of review” that identifies species that meet the definition of threatened or endangered. These species officially become known as “candidates” for listing. Through notices of review, the USFWS seeks biological information that will complete the status reviews for these candidate species.   Sometimes we motorized users can get involved right here and offer our own biological opinions and surveys.  The anti-motorized access folks are more than willing to help with this part of the process.

The USFWS also maintains a list of plant and animals native to the United States that are candidates or proposed for possible addition to the Federal list. In other words someone has suggested to them that a critter or plant is going to be T or E in the near future if things don’t change.  Gee, don’t you  wonder who that might be?  We’ll get to that shortly.

Petitions for Listing

Although the USFWS usually initiates listing proposals, they also may start the listing process with a petition from anyone. Petitions need the support of adequate biological data. Any information submitted on the biology, distribution of, or threats to the species is taken into consideration by the USFWS in making listing decisions.   So yes, your neighbor or local radical protectionists (anti-access groups) can initiate a petition to list a species on your property or recreation area.

Preventing Listing of Species on Your Property or Favorite Recreation Area

There are some provisions for landowners and others to get around the ESA, or at least to prevent listing of a species which might shut down the whole she-bang. In some instances, listing can be avoided by the development of Candidate Conservation Agreements which may remove threats facing the candidate species. 

Candidate Conservation Agreements are partnerships involving the Fish & Wildlife Service and States or U.S. Territories, Federal agencies, private agencies, and you or your neighbor to reduce or remove the threats to species on the brink of listing. This “preventive” approach is taken for species that can benefit from early recovery efforts, with the goal of avoiding the need to formally list the species at a later date.

Other preventative measures are available also.  Let’s look at some of those.

What are Safe Harbor Agreements (SHA)?

SHA’s are agreements that provide regulatory assurances for landowners who voluntarily

aid in the recovery of species listed under the Endangered Species Act.

What are Habitat Conservation Plans (HCP)?

HCP’s are plans that allow for economic development in conjunction with endangered species conservation. If an HCP meets the specified criteria, including minimizing and mitigating the anticipated take of listed species, the Service issues an incidental “take” permit that allows the landowner to legally take listed species while proceeding with development or other activities.

What are Conservation Banks?

Conservation Banks are lands that are permanently protected and managed as mitigation for the loss elsewhere of listed species and their habitats. Conservation banking is a free market enterprise based on supply and demand of mitigation credits. By mitigating multiple development projects at a single site, a conservation bank, all parties involved, including the species, benefit from economies of scale.

What are Cooperative Endangered Species Conservation Grants?

Conservations Grants are Federal assistance grants to States and Territories to participate in voluntary conservation projects for candidate and listed species. Conservation Grants provide funds to implement projects such as species status surveys and development of management plans for candidate and listed species.

Habitat Conservation Planning Assistance Grants provide funds to States and Territories to develop Habitat Conservation Plans through baseline surveys. Habitat Conservation Planning Land Acquisition Grants provide funds to States and Territories to acquire land associated with approved HCPs. Grants do not fund the mitigation required of an HCP permittee; instead, they support conservation actions by State or local governments that complement mitigation. Recovery Land Acquisition Grants provide funds to States and Territories to acquire habitats essential for recovery of threatened and endangered species.

What are Candidate Conservation Agreements with Assurances (CCAA)?

CCAA’s are agreements that provide incentives for landowners to implement conservation measures for candidate and at-risk species. What is the landowner’s role? Voluntarily agrees to implement specific conservation measures for candidate or at-risk species. The landowner must work with the Service to develop a management plan and the agreement that lasts for a certain number of years.

What are Candidate Conservation Agreements (CCA)?

CCA’s are agreements between one or more parties that address the conservation needs of candidate or at-risk species. Both Federal and non-Federal landowners can  be CCA partners. CCAs do not provide the landowner with regulatory assurances. The landowner must voluntarily agree to implement described actions for a specified period of time to remove or reduce the threats to the species. The landowner must work with the Service to design conservation measures.

What are Private Stewardship Grants?

Stewardship Grants are financial and technical assistance to individuals and groups to support voluntary conservation efforts on private property for the benefit of imperiled species.

What is the Partners for Fish and Wildlife Program?

Through voluntary agreements the Partners program provides expert technical assistance and cost-share incentives directly to private landowners to restore fish and wildlife habitats.

 Budget and Expenditures on the ESA

To give you an idea of what this Act costs, the USFWS reports that in 2003;

• Total Expenditures reported were $1,201,165,885, of which $785,589,376 was reported as expenditures for specific individual species, including $100,760,067 for land acquisition; and $415,576,509 was reported as “Other ESA Expenses” (not identified to species), of which $30,918,891 was for land acquisition.

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