History of the Endangered Species Act

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Environmental terms

The history of the Endangered Species Act (ESA) includes its passage in 1973 and its amendments. Before the Endangered Species Act, Congress enacted legislation to promote conservation and to regulate human activity around fish and wildlife, beginning with animals on federal land. Congress subsequently amended the Endangered Species Act to include a system of permits and land use regulations in 1978, 1982, and 1988.

Background

Federal conservation and wildlife protection laws have existed since the mid-19th century. The Lacey Act of 1900 prohibited commercial hunting and interstate trade of certain animals and plants. The law prohibited trading wildlife, fish, and plants that were illegally possessed, taken, transported, or sold. The Migratory Bird Treaty Act of 1918 made it illegal to pursue, take, hunt, capture, kill, or sell birds migrating between the United States and Canada.^[1][2]

The Bald and Golden Eagle Protection Act of 1940 prohibited the taking of a bald or golden eagle. Taking means harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting a bald or golden eagle.

In 1966, Congress passed the Endangered Species Preservation Act, which mandated a federal list of endangered animals and prohibited the taking of listed animal species on all national wildlife refuges. The Interior, Agriculture and Defense Departments were directed to preserve species' habitats on federally managed lands. The U.S. Fish and Wildlife Service was permitted to acquire a limited amount of private land for the protection of listed animal species.^[3]

In 1969, Congress modified the law to prohibit importing and/or selling animals facing worldwide extinction. In 1972, Congress passed the Marine Mammal Protection Act, which prohibited the taking of all marine mammals, such as whales, dolphins, seals, sea lions, sea otters, and polar bears inhabiting the waters of the United States. The law is implemented by the U.S. National Oceanic and Atmospheric Administration (NOAA). NOAA became responsible for all listed marine species after the Endangered Species Act was passed in 1973.^[4][5]

Passage of ESA

Endangered Species Act of 1973
United States Congress
Full text:	United States Congress
Legislative history
Introduced:	June 12, 1973 (in the Senate)
House vote:	390-12; September 18, 1973
Senate vote:	92-0; July 24, 1973
Conference vote (House):	355-4; December 19, 1973
Conference vote (Senate):	Approved; December 19, 1973
President:	Richard Nixon
Signed:	December 28, 1973

In a message to Congress on February 8, 1972, President Richard Nixon (R) outlined his environmental policy proposals and requested that Congress pass "a stronger law to protect endangered species of wildlife." Nixon called for legislation to make the taking of an endangered species a federal offense and to allow protective measures for certain species to prevent their extinction. Nixon made the following remarks:^[6]

“	It has only been in recent years that efforts have been undertaken to list and protect those species of animals whose continued existence is in jeopardy. Starting with our national symbol, the bald eagle, we have expanded our concern over the extinction of these animals to include the present list of over 100. We have already found, however, that even the most recent act to protect endangered species, which dates only from 1969, simply does not provide the kind of management tools needed to act early enough to save a vanishing species.[7]	”
—President Richard Nixon[6]

U.S. Sen. Harrison A. Williams (D) introduced the Endangered Species Act in the U.S. Senate on June 12, 1973. The Senate unanimously approved the bill on July 24, 1973. The U.S. House approved its version of the bill on September 18, 1973, by a 390-12 vote. A joint conference committee was convened to reconcile the Senate and House versions of the bill. The conference committee reported the bill on December 19, 1973. On the same day, the House and Senate approved the legislation.^[8]

On July 27, 1973, U.S. Rep. Leonor K. Sullivan (D), who was then-chairwoman of the now defunct House Subcommittee on Merchant Marine and Fisheries, spoke in favor of the bill after the legislation had been referred to the subcommittee following the Senate's approval. Sullivan made the following remarks:^[9]

“	From the most narrow possible point of view, it is in the best interest of mankind to minimize the losses of genetic variations. The reason is simple: they are potential resources. They are the keys to puzzles which we cannot solve, and may provide answers to questions which we have not yet learned to ask.[9][7]	”
—U.S. Rep. Leonor K. Sullivan (D) in July 1973

The legislation's authors included legislative attorneys and scientists as well as the first head of the White House Office of Environmental Quality, Russell Train. Richard Nixon signed the Endangered Species Act into law on December 28, 1973.^[10]

ESA amendments

1978

Congress' amendments to the Endangered Species Act (ESA) in 1978 permitted federal agencies to take actions that may harm or jeopardize a listed species if their actions are approved by a federal committee. The federal committee is permitted to review all federal conservation plans for their economic costs and to exempt certain projects from ESA regulation. The amendment was prompted by the Tellico Dam project in Tennessee. The dam project was halted by the U.S. Supreme Court after the discovery of an endangered fish species known as the snail darter. The dam had previously received federal funding from Congress. Congress amended the ESA in 1978 to allow potential exemption from ESA regulation to activities similar to the Tellico Dam project.

Congress also mandated that the U.S. Fish and Wildlife Service must designate any protected critical habitat at the same time it decides to list a species as endangered. When designating land as a species's habitat, the service must take into account economic and other relevant impacts. The 1978 amendment required the U.S. Department of Agriculture to develop programs for species conservation on its land; the Agriculture Department received land acquisition authority similar to the Interior, Commerce, and Defense Departments, which received land acquisition authority in previous legislation.^[11]

1982

Congress prohibited the removal of endangered plants from federal land in 1982. The 1982 amendment also made further changes for how species are listed. When it decides to assign a status to a listed species, the U.S. Fish and Wildlife Service must consider only biological and trade information regardless of potential economic or other impacts. The service must also determine a species's status no later than one year after the species has been proposed for listing (unless the listing proposal is withdrawn for specific reasons). Before the 1982 amendment, the service had two years to determine a species's listing status.^[13]

The amendment also permitted the federal government to call some listed species "experimental populations." Experimental populations are groups of animal or plant species limited to specific geographical locations. They do not receive full ESA protection. Members of a species are taken by the government to be bred separately from other populations. As it grows, the captive population is then reintroduced into the wild. This experimental population is reintroduced throughout the species' historical range, which is the geographic area the species has been known to inhabit in the past. All experimental populations are labeled as threatened species (threatened species are regulated more flexibly than endangered species). Some experimental populations are "nonessential" to the species's survival, which means they can go extinct without pushing the species into further decline.^[13][14]

The 1982 amendment also introduced habitat conservation plans and "incidental take" permits. The ESA penalizes most human activity with respect to listed animal species. To avoid penalties, an individual can apply for an "incidental take" permit, which allows someone to engage in otherwise unlawful activity around a listed animal, such as land modification, that may end up harming a member of that species. To receive this permit, an individual must also submit a "habitat conservation plan" containing information about the relevant and predicted effects of the individual's activities, how these effects will be "minimized" or "mitigated," and how the plan will be financed.^[13][15]

1988

In 1988, Congress required the U.S. Fish and Wildlife Service to monitor all recovered species and all candidate species (species that are proposed for federal protection and listed based on a priority system). In cases of "significant risk to the well-being of any species of fish or wildlife or plants," the service may place the species on the federal list as an "emergency listing." The service must publish "detailed reasons" for why the emergency listing is necessary and must notify the states where the species is believed or known to occur. Any emergency listings take effect immediately after they are published. The listing is in effect for 240 days unless the Fish and Wildlife Service withdraws it because "substantial evidence" does not exist to justify the listing. This evidence must include "the best appropriate data available."^[16][17]

The 1988 amendment affected federal recovery plans for listed species. After 1988, the Fish and Wildlife Service and other relevant federal agencies were required to notify the public about all federal recovery plans. After public notice, recovery plans were open to public comments while the relevant federal agencies were required to review and consider those comments when developing their plans. All federal recovery plans must have biennial reports detailing the development and implementation of each plan, including the recovery status of all species with recovery plans. The federal government was also required to monitor all previously listed, recovered species for a minimum of five years. Congress also mandated a report for "all reasonably identifiable" spending by the federal government for all listed species on a species-by-species basis.^[16][18]

The 1988 amendment funded the law's implementation through fiscal year 1992. On September 30, 1992, the authorization of the ESA officially expired, but Congress continued funding the law's implementation in its annual appropriations (spending) bills. A provision stating that a law will expire on a specific date unless it is reauthorized by Congress is known as a "sunset clause" or "sunset provision." Even though the 1988 amendment stated that the Endangered Species Act would officially expire on September 30, 1992, the law continues to be implemented when it is funded each year. It is unclear whether the September 1992 date was considered a sunset clause at the time.^[19]

2004

A minor amendment to the ESA was included in the National Defense Authorization Act of 2004. Congress exempted the U.S. Department of Defense from designating critical habitats for listed species on its land so long as a natural resources management plan was in place and had been approved by the U.S. Interior Department.^[20]

2005

In 2005, a proposed change to the Endangered Species Act was introduced in the U.S. House by then-Rep. Richard W. Pombo (R). The bill—entitled the "Threatened and Endangered Species Recovery Act of 2005"—included a sunset clause stating, "All provisions of this Act shall cease to have any force and effect on October 1, 2015." The bill was never introduced for a full vote in the House of Representatives and never went into effect.^[21]

Recent news

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See also

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• Endangered Species Act
• Implementation of the Endangered Species Act
• U.S. Fish and Wildlife Service
• Endangered species

External links

• U.S. Fish and Wildlife Service website
• U.S. National Oceanic and Atmospheric Service

Footnotes