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KEY ELEMENTS OF THE FEDERAL ENDANGERED SPECIES ACT
- The U.S. Fish and Wildlife Service is required to devise a process for listing endangered or threatened species . An
endangered species is one that is threatened with extinction throughout all or a significant portion of its range. A threatened species is one that is on the verge of being endangered.
The agency is also required to list the status of the candidate species, a species that is likely to become threatened in the near future.* Any person has the right to petition the Fish and Wildlife Service to list a species for the endangered or threatened list. The determination for listing is based on scientific evidence. A species must be listed in the Federal Register as endangered and threatened for the Act to apply.
- The Fish and Wildlife Service must develop and implement a recovery plan for listed endangered and threatened species.
Recovery plans describe what is needed for a species to recover to the point that it no longer needs to be listed as endangered or threatened. In the United States, fewer than 60 percent
of listed species have recovery plans.* Species with recovery plans have a better chance of survival than those without.
- The Fish and Wildlife Service must identify critical habitat of the species. Critical habitat is considered to be any ecosystem that, if altered or destroyed, would lead to species extinction or would hinder the recovery of a species.The Fish and Wildlife Service must take the following steps before designating a critical habitat: (1) the areas of importance to the species must be identified by wildlife biologists; (2) the economic and other impacts of designating an area as a critical habitat are examined; (3) a list of proposed areas is prepared and published in the Federal Register, and comments are requested; (4) after the public review period, any necessary changes are made; and (5) the critical habitat is then officially designated. For activity occurring on private land that is part of a designated critical habitat, the federal government gets involved only in two instances: (1) if the landowner is planning a project that requires a federal permit or uses federal funds, or (2) if a private landowner's proposed activity might "harm" or "take" endangered or threatened species, in which case the property owner would need to obtain a permit from the US Fish and Wildlife Service.
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FYI
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Though the Section 10(a) permitting process—the incidental taking permit—has
been available since 1982, the first permit was not issued in Texas until 1992, which gave rise to criticism that the Fish and Wildlife Service was not
implementing the most important element of the Endangered Species Act. From 1992 to 1997, the Fish and Wildlife Service has not denied any request for
incidental-taking permits in Texas, though all the permits have required some form of mitigation activities, including Habitat Conservation Plans.*
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The Endangered Species Act also sets out requirements that prohibit
"the taking, possession, transportation, or sale of any species designated as threatened or endangered without a permit." "Take"
under the Endangered Species Act includes killing, capturing, harming, and harassing. Harm includes modifying habitat to the point
that the species' breeding, feeding, or sheltering is impaired. There is an exception to the prohibition against "take" in which the service
may allow a project to go forth if the "taking" is "incidental" to the project and not the purpose of the project (see discussion below).
- Under the Endangered Species Act, any federal agency whose actions
(building a road, dam, etc.) might affect an endangered species or its habitat requires approval from the Fish and Wildlife Service. The
federal agency must first review its own actions to see if those actions might affect any endangered species or its habitat. For
projects occurring in Texas, the acting federal agency can consult with the Texas Parks and Wildlife Department (TPWD) to determine
whether its proposed actions might affect endangered species or its habitat.
- Nonfederal actions require approval of the Fish and Wildlife Service where there is a "take" of endangered and
threatened species, providing such "taking" is incidental to and not the purpose of the activity. For example, a
private landowner who wants to clear land to build a home where land serves as habitat for endangered or
threatened species must obtain a 10(a) permit—an incidental taking permit—from the Fish and Wildlife Service.* The agency cannot issue an incidental taking permit unless the applicant prepares and submits a Habitat Conservation Plan that spells out the actions to be taken to minimize and mitigate the project's impact on
the species, outlines available alternatives to the proposed project, and explains why the alternatives will not be
used. Further, an incidental taking permit cannot be issued if the activities prevent a species' survival or
recovery. As of April 1999, nationwide there were 252 incidental taking permits with conservation plans and 200
awaiting action. Of the 200 plans in development, the land involved ranges from 10,000 to 500,000 acres.*
KEY ELEMENTS OF THE TEXAS ENDANGERED SPECIES ACT
- In 1973 the Texas legislature enacted a state Endangered Species Act. The act gave the TPWD the authority to
establish a list of animals endangered or threatened with statewide extinction. In 1988, the State Legislature
authorized the Texas Parks and Wildlife Department to establish a list of threatened and endangered plant
species for the state. The staff of the TPWD makes recommendations stating which species should be listed to
the executive director and appointed commissioners of the TPWD. (All federally listed endangered species in
Texas are automatically put on the state list.) The Texas legislature has not allowed invertebrates to be listed as
endangered and threatened. Once listed as an endangered or threatened species, Texas regulations prohibit the
taking, possession, transportation, or sale of any animal species. In regard to plant species, Texas regulations
prohibit commerce in endangered and threatened plants without the issuance of a permit. State laws also
prohibit the collection of listed plant species from public land without a permit issued from Texas Parks and
Wildlife Department. Some of the endangered and threatened species listed by the state are also listed under federal regulatiions.
- The state Endangered Species Act does not require the TPWD to design a recovery program for species on the
state list or designate critical habitat, but the agency does develop action plans for those species and does
receive money to assist the Fish and Wildlife Service in designing and implementing recovery plans for federal
endangered species found in Texas.Unlike the federal Endangered Species Act, the state's Endangered Species
Act makes no provision for the protection of wildlife species from indirect take (e.g., destruction of habitat or
unfavorable management practices). The TPWD does have a Memorandum of Understanding with every state
agency to conduct a thorough environmental review of state initiated and funded projects, such as highways,
reservoirs, land acquisition, and building construction, to determine their potential impact on state endangered or threatened species.
- In 1983 the Texas legislature established a Special Non-game and Endangered Species Fund to support
nongame and endangered species research and management. The fund receives money from fines, the sale of
posters, stamps, and decals, and from private donations. Also, the Fish and Wildlife Service shares with the
state a portion of the money it receives from the federal excise tax on hunting equipment. The money is used to support nongame and endangered species research and management.
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