Endangered Species Act and the Fish and Wildlife Coordination Act
Purpose and Organization
The Endangered Species Act (ESA) and the Fish and Wildlife Coordination Act (FWCA) are major federal statutes designed to protect plant and animal resources from adverse effects due to development projects. Both acts require consultation with wildlife authorities before committing resources to certain types of projects. Please click here to access an Information Brief on the ESA.
Endangered Species Act
The ESA was originally passed in 1973. It provides for the designation and protection of invertebrates, wildlife, fish, and plant species that are in danger of becoming extinct and conserves the ecosystems on which such species depend.
The Act defines an endangered species as any species that is in danger of becoming extinct throughout all or a significant portion of its range. The Act excludes recognized insect pests from this definition. A threatened species is one that is likely to become endangered in the foreseeable future. The Act makes it illegal for any individual to kill, collect, remove, harass, import, or export an endangered or threatened species without a permit from the Secretary of the Department of the Interior (DOI). DOI's Fish and Wildlife Service (FWS) performs most administrative and regulatory actions under the Act. The National Marine Fisheries Service (NMFS) in the U.S. Department of Commerce (DOC) deals with actions affecting marine species.
To be protected, a species must be listed by the Secretary of the Interior as endangered or threatened. The listing process generally begins with a petition to the Secretary. Consultation with affected states is required prior to listing, but the Secretary makes the final decision. Whenever possible, a designation of critical habitat accompanies the listing of an endangered or threatened species. The Secretary must publish and periodically update the lists and develop and implement "recovery plans" for the conservation and survival of endangered and threatened species. For example, the American alligator has been removed from the list because of successful implementation of a FWS recovery plan. Please click here for updated DOI lists of endangered and threatened wildlife and plants found at 50 CFR 17.11 and 17.12. Please click here to access NMFS endangered species information.
The Act directs the Secretaries of Interior and Commerce to establish programs to conserve fish, wildlife, and plants, including endangered and threatened species. Also, the Department of Agriculture oversees the import and export of endangered and threatened species. Implementation of such programs usually includes acquisition of lands under the Act itself and under the Fish and Wildlife Coordination Act of 1958, as amended; the Fish and Wildlife Act of 1956, as amended; and the Migratory Bird Conservation Act of 1929, as amended.
The Act mandates cooperation between the U.S. federal, U.S. state, and foreign governments. The Secretary of the Interior must cooperate with the states to acquire and manage land and has the authority to enter into cooperative agreements to provide assistance to those states that establish programs for the conservation of endangered and threatened species. The President and the Secretary of the Interior may provide financial and technical assistance to foreign countries to encourage conservation of fish, wildlife, and plants. The Secretaries of the Interior and Commerce must also carry out obligations under two international agreements: the Convention on International Trade in Endangered Species of Wild Fauna and Flora and the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere.
All federal agencies must utilize their authorities to carry out programs for the conservation of endangered and threatened species. Regulations promulgated under Section 7 of the Act define the process whereby proposed federal actions that may affect threatened or endangered species are approved, disapproved, and appealed. DOE should review its project plans and consult with the FWS and/or NMFS before engaging in activities that might destroy or disrupt any endangered or threatened species. In particular,
Each Federal agency shall, in consultation with and with the assistance of the Secretary [of DOI], insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary . . . to be critical. . . . [ESA Section 7(a)(2)].
The Section 7 consultation process sometimes requires DOE to prepare and submit a biological assessment discussing any endangered or threatened species that is likely to be affected by a proposed action. After formal consultation, the Secretary of the Interior renders a biological opinion on the impacts of DOE's proposed action on the species or its habitat. If the proposed action jeopardizes or adversely modifies the species or its habitat, the Secretary suggests alternatives to the proposed action that would not violate Section 7(a)(2). Then DOE must decide whether to modify the project as suggested, abandon it, or file an application for an exemption.
If DOE applies for an exemption, it first submits an application to the Secretary of the Interior who must certify that DOE has met requirements for good faith consultation, preparation of the biological assessment, and noncommitment of resources. The Secretary then conducts a hearing and submits a report to the seven-member Endangered Species Committee. The committee may grant an exemption if it determines that there are no reasonable and prudent alternatives to DOE's action; the benefits of the action clearly outweigh the benefits of alternatives consistent with conserving the species or its habitat and the action is in the public interest; the action is of regional or national significance; and DOE has refrained from making an irreversible or irretrievable commitment of resources.
The ESA details generally prohibited acts (Section 9) and provides for both civil and criminal penalties for violators. To enforce the law, the Secretaries of Interior, Treasury, and Transportation are given powers of inspection and seizure. Private citizens may bring civil suit to enjoin other citizens or government agencies from undertaking actions that violate the Act or to compel the Secretary of the Interior to take certain actions. The Secretary may, under certain circumstances, issue permits granting exceptions to the prohibited acts (e.g., for incidental take, actions to enhance propagation or survival, economic hardship).
Fish and Wildlife Coordination Act
The FWCA, as amended, proposes to assure that fish and wildlife resources receive equal consideration with other values during the planning of water resources development projects. The Act was passed because the goals of water-related projects (e.g., flood control, irrigation, navigation, hydroelectric power) may conflict with the goal of conserving fish and wildlife resources. Conversely, developers can design water development projects to enhance the quality and enjoyment of fish and wildlife resources if such goals are incorporated into project plans.
The Act authorizes the Secretary of the Interior to provide assistance to and cooperate with federal, state, and public or private agencies and organizations in the development and protection of wildlife resources and habitat; make surveys and investigations of the wildlife in the public domain; and accept donations of land and funds that will further the purposes of the Act.
The FWCA requires DOE to consult with the FWS whenever it plans to conduct, license, or permit an activity involving the impoundment, diversion, deepening, control, or modification of a stream or body of water. The Act also requires consultation with the head of the state agency that administers wildlife resources in the affected state. The purpose of this process is to promote conservation of wildlife resources by preventing loss of and damage to such resources and to provide for the development and improvement of wildlife resources in connection with the agency action.
Although the recommendations of the Secretary of the Interior and state officials are not binding, the federal agency must give them full consideration. Furthermore, any reports and recommendations made by those officials become an integral part of any report prepared by the responsible federal agency when seeking authorization for the water-resource development project. Such a report must also include an estimate of the wildlife benefits or losses to be derived from the proposed project and a description of the conservation measures the agency finds should be adopted to obtain maximum overall project benefits.
The FWCA authorizes federal agencies to acquire lands in connection with water development projects for use in activities designed to conserve and enhance wildlife resources. These activities should be conducted in accordance with plans approved by the federal agency, the Secretary of the Interior, and the head of the applicable state agency. The report that accompanies the authorization request should describe the probable extent of land acquisition.
In other conservation provisions the FWCA authorizes the Secretary (through the FWS and the Bureau of Mines) to investigate and report to Congress on the effects of domestic sewage; mine, petroleum, and industrial wastes; erosion silt; and other pollutants on wildlife and to make recommendations for alleviating their effects. It also directs the U.S. Army Corps of Engineers to consider fish and wildlife resources and habitats in its management of water levels in the upper Mississippi River.
Two general types of activities exempt from the Act are (1) water impoundments with a surface area of less than ten acres (approximately 4 ha) and (2) programs for land management and use carried out by federal agencies on land under their jurisdiction. In addition the provisions of the Act do not apply to the Tennessee Valley Authority.
Please click here for a summary of updated information regarding the ESA dated July 27, 1998. Please click here for a summary of additional information regarding the ESA dated May 4, 1999.
Although authorization for the ESA expired in 1992, legislation to reauthorize it has still not been passed. Separate pieces of legislation have been proposed by the Senate and the House to amend and reauthorize the ESA. These separate bills must be reconciled, passed by both the House and the Senate, and then signed by the President before becoming law. To determine the current status of proposed ESA legislation or to obtain more detailed information regarding its content, please go to Thomas, Legislative Information on the Internet and search on the keyword "Endangered Species Act."
Regulations implementing the ESA are in Title 50 of the CFR, Chapters I, II, and IV. To date, no implementing regulations have been published for the FWCA.