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Guide to the Endangered Species Act

William H. Funk
April 2002

The beauty and genius of a work of art may be reconceived, though its first material be destroyed; a vanished harmony may yet again inspire the composer; but when the last individual of a race of living things breathes no more, another heaven and another earth must pass before such a one can be again.

William Beebe (1906) (1)

Why do we have an Endangered Species Act?

The goal of the federal Endangered Species Act, and its North Carolina equivalent, is to protect plant and animal species in the United States that are on the verge of becoming extinct. The Act reflects public concern about the potentially catastrophic loss of biodiversity in North Carolina and North America. According to Precious Heritage: The Status of Biodiversity in the United States (2):

Why should we care whether species become extinct?

Extinction is part of the natural biological process. However, the intricate and interwoven global ecology, billions of years in the making, is today unraveling at a pace unseen since the great conflagration that extinguished the dinosaurs at the end of the Mesozoic Era, sixty-five million years ago. Human activity, from deliberate habitat destruction to unintended effects of modern technologies, is apparently the root cause of the present biological crisis.

What are the leading causes of extinction?

Habitat destruction is the leading threat to US species, followed by invasions of alien species like zebra mussels and kudzu. In the North Carolina Piedmont, land clearing as a result of suburbanization is the number one factor for habitat loss. Along the Outer Banks and in the mountains, habitat destruction is attributable to vacation home sprawl and poor forestry practices, while on the coastal plain, the loss of wetlands and riparian forest stems chiefly from large-scale industrial agriculture and logging. Global commerce, specifically transcontinental shipping that lacks proper biological customs checkpoints, is a major factor in the spread of invasive species.

How many species are in danger of becoming extinct in the US?

As of January 31, 2001, there were 1,244 species (508 animal and 736 plant) listed as threatened or endangered under the federal Endangered Species Act.

How does the Act protect listed species from harm?

The Act prohibits "take" by any individual, corporation or government. "Take" is defined as meaning "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct". "Harm" is further defined under Department of the Interior regulations as "any act which actually kills or injures fish or wildlife. The regulations emphasize that "such acts may include significant habitat modification or degradation that significantly impairs essential behavioral patterns (breeding, feeding and sheltering) of fish or wildlife".

Who is responsible for protecting species under the Endangered Species Act?

The Act is administered by the U.S. Fish & Wildlife Service (US FWS) under the Department of the Interior and by the National Marine Fisheries Service (NMFS) under the Department of Commerce. The Marine Mammal Protection Act (MMPA) of 1972 is a more specific law that establishes a federal responsibility to conserve marine mammals with management vested in the Department of Interior for protecting sea otter, walrus, polar bear, dugong, and manatee populations. The Department of Commerce is responsible for protecting cetaceans (whales, dolphins and their relatives) and pinnipeds (seals, sea lions and their relatives) other than the walrus. The agencies jointly implement both the Act and the MMPA.

Where is the list of endangered species published?

On the US FWS web site». A thorough statistical overview of vertebrate and selected invertebrate data for the U.S. and Canada may be found on the web site of the Association for Biodiversity Information, now called NatureServe».

How are species classified under the Endangered Species Act?

Under the Act, "the term endangered species means any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary (of the Interior) to constitute a pest whose protection under the provisions of this Act would present an overwhelming and overriding risk to man. A threatened species means any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range."

"Candidate" species are those species for which US FWS has enough data to warrant proposing for threatened or endangered status, but other considerations (usually financial) have prevented the agency from implementing its own recommendations. US FWS has recently attempted a "bottom-up" approach to candidate species protection, forging alliances with private landowners and local governments to protect adequate habitat in an effort to ward off the need for listing under the Act. "Proposed" species have been formally proposed as scientifically deserving of protection under the Act by the scientific community, wildlife advocates or government agencies. The US FWS has repeatedly been criticized by conservation organizations for not requesting adequate funds to list candidate species for protection or to designate critical habitat.

A "nonessential experimental population" designation was created in 1982 to facilitate reintroducing populations of threatened or endangered species. It allows for input from local residents and affords more flexibility in management plans. Experimental populations are not protected as strictly as naturally occurring populations, so landowners may perceive this designation as less threatening to their property rights. Experimental populations must enhance existing populations of a listed species and must not overlap in geographic range with nonexperimental populations.

What types of species are listed under the Endangered Species Act?

Both animal and plant species are listed, but species from other taxonomic kingdoms are not. Animal classes currently granted protection under the Act include mammals, birds, reptiles, amphibians, fishes, insects, arachnids, crustaceans, bivalves (such as clams), and snails. Protected plant classes include flowering plants, conifers and cycads, ferns and associated species, and lichens. Fungi and species from other taxonomic kingdoms are not represented, possibly because the extent to which fungi play a critical role in the health of forests and other ecosystems was not understood when the Act was adopted.

Is there a North Carolina endangered species list separate from the federal list?

Yes. Species added to the North Carolina wildlife list that are not federally listed can be listed as either endangered, threatened, or as a species of special concern. Species authorized for listing are limited to birds, mammals, reptiles, amphibians, fish, and mollusks. Insects and spiders are not authorized for listing, even though North Carolina has resident one federally listed spider and several butterflies. North Carolina's statute is similar to the federal law, except that there are no penalties for harming state-listed species; however, harm to state-listed species that are also listed federally may result in damages levied by either state or federal wildlife enforcement officers. The North Carolina Natural Heritage Program, a division of the Department of Parks and Recreation, maintains tables of listed and vulnerable species in the state.

How do species get on and off the federal list?

To add species to the federal list, petitioners (usually scientists or advocacy groups but occasionally government agencies) present the US FWS with a formal declaration that a given species is biologically declining to the extent that the protections of the Act are needed to ensure its continued existence. Endangered species that recover to a biologically viable population are considered for downgrading from endangered to threatened status or, if sufficiently recovered, are considered for de-listing altogether. For successful recovery, the species must have sufficient numbers in the wild to counteract the effects of disease, natural predation, and anticipated adverse human action. (Specimens in zoos are not calculated in endangered species population lists.) The recovered species must furthermore have a habitat base equal to its resource needs and viable over the long term. The US FWS has currently provided Recovery Plans, which detail the steps necessary for recovery, for 147 of the 1,244 listed species.

Species may be removed from the list under several circumstances, including biological recovery, taxonomic reclassification, direct amendment of the Act, the uncovering of new data, or extinction of the species. High-profile species recently removed from the endangered species list or downgraded to threatened status include the peregrine falcon, gray whale and American alligator.

How do species get on and off the North Carolina list?

In North Carolina, the Nongame Wildlife Advisory Committee (NGWAC) appoints scientific councils of experts to advise on the status of species. The councils prepare reports of their recommendations on each taxon (biological category) for the NGWAC's review. The NGWAC sends their recommendations for final listing to the North Carolina Wildlife Resources Commission to approve under state regulations. New species to be added to the North Carolina endangered wildlife list, effective July 1, 2002, include the Eastern diamondback rattlesnake, the Carolina pygmy rattlesnake, the timber rattlesnake, the eastern coral snake and the Southern hognose snake.

What happens if I kill an endangered or threatened species?

Purposeful taking of a listed species may result in civil or criminal charges, including trial in a federal court, monetary damages, and potential incarceration. Accidental takings are judged on the knowledge the defendant had or should have had when undertaking the activity that resulted in take. If a landowner is concerned about the potential for listed species on a particular parcel of land, he or she should contact the agencies listed at the end of this fact sheet for consultation by professional biologists.

Can I develop my land if endangered plants live on it? Can I grow and sell endangered plants?

Enforcement action for the taking of listed plants in North Carolina is limited to plants taken on federal property. Private landowners may cultivate endangered plants on their property.

Can I develop my land if endangered animals live on it?

You need an incidental take permit. Lacking an incidental take permit, it is illegal to destroy necessary habitat for federally listed animal species anywhere in the country, on public or private land.

How do I obtain an incidental take permit?

An incidental take permit is subject to a number of requirements, including a Habitat Conservation Plan (HCP), which must specify

What is involved in creating a Habitat Conservation Plan?

The application for an incidental take permit and the development of a "Habitat Conservation Plan" are voluntary actions leading to authorization to kill or harm listed species. In scope, HCPs can cover an area as small as a few acres or as large as a multicounty region. Steering committees are often established to facilitate regional HCP planning efforts. Typically, steering committees are made up of representatives from federal, state, and local government agencies, affected private interests, and environmental groups; their function is to define the issues, negotiate the content of the plan, and generally oversee the process.

Small-scale HCPs are usually funded by the applicant alone. For regional planning efforts, funding may be provided by variety of mechanisms, such as fees assessed against development activities occurring in the HCP area.

The US FWS encourages permit applicants to address all species in HCPs. The advantage of this policy is two-fold: first, as the HCP results in an ecosystem-based approach to conservation planning, it may help protect candidate species prior to listing, and may even preclude a future need to list them; second, addressing the biological status of unlisted and candidate species can greatly simplify the permit amendment process should an unlisted species that occurs in the HCP area be listed subsequent to issuance of the permit. The only US FWS sponsored plans currently active in North Carolina are the Ben Cone and Sandhills HCPs, both developed for protection of the red-cockaded woodpecker in the Sandhills region.

The efficacy of HCPs to ensure the preservation and recovery of endangered species is not uniformly clear. Some HCPs have kept habitat critical to the continuance of some species from being destroyed; other plans are blamed of allowing more harm than a population can endure. The National Center for Ecological Analysis & Synthesis provides a scientific appraisal of current HCP designs.

What are the prospects for survival of the species that are currently endangered?

The chances for recovery of the myriad animals and plants listed under the federal Act are varied, depending to a large degree on the time and money spent advancing their populations. Even professional scientists, through lack of adequate funding or because of unknown factors in the genetic pool of greatly reduced populations, have experienced limited success in recovering a number of high-profile species, including the whooping crane and Florida panther. These species have been the subject of intensive efforts, yet they remain critically imperiled. Biologists have devised equations to determine the health of populations: generally, the less complex an organism the more limited its population can be before inbreeding and susceptibility to disease lead to an inexorable slide toward oblivion. As a rule of thumb, the larger a population at the time of protection, and the healthier its native habitat, the better chance it has for recovery. One major obstacle to recovery is that the Act is not proactive: species are not eligible for listing until their status is already imperiled.

Can we recreate extinct species if we have their DNA?

Science has thus far been unable to produce viable cloned specimens of declining or extinct species. Even if the technology becomes available to "recreate" a species, unless habitat is available, the experiment would simply be a way to stock zoos or private collections. The same issue holds with captive breeding programs, although there is sometimes hope of finding sufficient habitat for artificially propagated species. By the time the remnant wild population has been captured, other habitat has ideally been identified for the eventual release of successfully propagated individuals. Captive breeding is a last resort, an admission that the species' current environment or population has been degraded to the extent that rescue efforts are necessary to avert extinction.

What can I do to help keep species from becoming extinct?

Your elected government at all levels makes far-reaching infrastructure and development decisions every day that will have enormous repercussions on the future of animals and plants in North Carolina and the United States. Opponents or advocates of species protection often have the most influence at the local level. Many non-profit organizations that are dedicated to land and species conservation accept financial donations and offer volunteer opportunities for people who want to make a difference.

For More Information

Articles and Books

Bean, Michael J. (1983) The Evolution of National Wildlife Law (New York: Praeger Publishers).

DeBlieu, Jan (1993) Meant to be Wild: The Struggle to Save Endangered Species through Captive Breeding (New York: Fulcrum Press).

Heywood, Victor, ed. (1996) Global Biodiversity Assessment: Summary for Policy-Makers (Cambridge: United Nations Environment Programme, Cambridge University Press).

Matthiessen, Peter (1959, 1987) Wildlife in America. (New York: Viking Penguin).

Stein, Bruce, Kutner, L. and Adams, J. eds. (2000) Precious Heritage: The Status of Biodiversity in the United State (Oxford: Oxford University Press).

US Fish and Wildlife Service, Endangered Species Bulletin. Vol. XXV, No. 3 (May/June, 2000).
http://endangered.fws.gov/esb/2000/05-06/toc.html

North Carolina Government

NC General Assembly
http://www.ncga.state.nc.us/

United States Government

US House of Representatives
http://www.house.gov/

US Senate
http://www.senate.gov/

The White House
http://www.whitehouse.gov/

US Fish & Wildlife Service
Endangered Species Program
4401 North Fairfax Drive, Room 420
Arlington, VA 22203
703.358-2171
http://endangered.fws.gov/

Laws

United States Endangered Species Act (1973)

North Carolina Endangered Species Act (1987)

Nonprofit Organizations

Association for Biodiversity Information (now called NatureServe)
http://www.natureserve.org/

Nature Conservancy
http://nature.org/

Publishers

Oxford University Press
http://www.oup-usa.org/

Web Sites

NatureServe

References and Notes

  1. W. Beebe (1906) The Bird: Its Form and Function (New York: Henry Holt and Company).
  2. B. Stein, L. Kutner, and J. Adams, eds. (2000) Precious Heritage: The Status of Biodiversity in the United State (Oxford: Oxford University Press).

About the Author

William H. Funk is an EcoAccess volunteer.

Credits

Thanks to David Bynum, reviewer, and Carol B. Rawleigh, copy editor.

"God made all the creatures and gave them our love and our fear,
To give sign, we and they are his children, one family here."

- Robert Browning, Saul, 1855.

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Last update: 2002/07/08 13:18 GMT-4


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