Table 1. Key Provisions of the Endangered Species Act


Provision Description and Enforceability
Purpose and Policy; ESA Section 2 (16 U.S.C. § 1531)
 
To provide: “a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species.”
 
Definition of “Take; Section 3 (16 U.S.C. § 1532)
 
“Take” is broadly defined to include any actions that harm the species, including “habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavior patterns, including breeding, feeding, or sheltering” (50 CFR § 17.3).
 
Listing;
ESA Section 4 (16 U.S.C. § 1533(a)(1))
 
The listing is deemed appropriate if the continued existence of the species is jeopardized by one or more of the following factors: (1) The present or threatened destruction, modification, curtailment of the species habitat or range; (2) Over-utilization for commercial, recreational, scientific, or educational purposes; (3) Disease or predation; (4) Inadequacy of existing regulatory mechanisms; or (5) “Other factors” affecting the species continued existence (16 U.S.C. § 1533(a)(1)). Several hard deadlines for acting on listing decisions.
 
Critical habitat designation;
ESA Sections 3 and 4 (16 U.S.C. § § 1532 (5)(A), 1533(a)(3)(A))
 
“Critical habitat” is defined as: (1) specific areas within the geographical area occupied by the species at the time of listing, if they contain physical or biological features essential to conservation, and those features may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by the species if the agency determines that the area itself is essential for conservation. Economic factors considered in designation. Alteration of critical habitat triggers the consultation requirement. Critical habitat must be designated concurrently or within one year of decision to list the species.
 
Recovery Plans;
ESA Section 4(f)( 16 U.S.C. § 1533(f))
 
Recovery plans must contain: (1) objective measurable criteria for delisting the species; (2) site-specific actions; and (3) estimates of the time and cost for implementing the recovery plan.
 
Consultation process; ESA Section 7 (16 U.S. C. § 1536)
 
Requires all federal agencies to consult with the appropriate wildlife agency to ensure that their actions are not likely to jeopardize the continued existence of listed species or result in destruction or adverse modification of critical habitat. Mandatory; failure to engage in consultation legally enforceable.
 
Prohibition Against “Take”;
ESA Section 9 (16 U.S. C. § 1540)
 
It is illegal to “take” a listed species (see previous definition) without a permit under Sections 7 or 10. Seldom enforced against private parties due to burden of proof issues—must show “actual injury” to listed species.
 
Habitat Conservation Planning and Non-essential/experimental populations;
ESA Section 10 (16 § U.S.C. 1539)
 
Exceptions to “take” prohibition. Allows for permits for incidental take to be granted in association with the development of Habitat Conservation Plans on private lands; allows for the establishment of and maintenance of experimental populations in order to facilitate recovery.
 
Citizen enforcement mechanism;
ESA section 11 (16 § U.S.C. 1540 (g))
 
Subsection (g) allows any citizen to petition for listing of a species and/or compel the government to perform nondiscretionary duties under the law (e.g., engage in consultation under Section 7).