Endangered Species Act

BACKGROUND:
Congress enacted the Endangered Species Act in 1973 and has amended it several times since.  The intent of the ESA is to prevent the extinction of species through conservation activities by first listing species that are threatened or endangered and then by improving their status until they can be removed from the lists.  An endangered species is one in danger of becoming extinct; a threatened species is one likely to become endangered.  The ESA consists of four principal elements.

The first is the identification and recovery of species.  The U.S. Fish and Wildlife Service or the National Marine Fisheries Service determines whether or not a species warrants listing as threatened or endangered under five criteria set out in the law.  Listings must be based solely on the “best scientific and commercial evidence available” and may not consider the economic consequences of a listing.

Concurrent with the listing, the act directs the agency to designate critical habitat.  The agency must consider economic and other relevant impacts when it designates critical habitat and may exclude areas if the benefits of exclusion outweigh the benefits of designation, provided the exclusion would not result in extinction of the species.
The second element governs federal agency conduct.  The act directs federal agencies to conserve listed species generally and to ensure that agency “actions” are not likely to jeopardize a listed species or to destroy critical habitat.  Agency “action” is a broad concept and includes such things as timber sales, dredge and fill permits, pesticide registrations and funding grants.

The third element applies the act to private citizens, state actions and nonfederal land.  The act prohibits various actions such as sales or possession of endangered wildlife and plant species.  The fourth element encompasses enforcement provisions that include criminal and civil penalties for violations of the act’s provisions and regulations.

POLICY: The Endangered Species Act has become the most severe, least flexible of all environmental laws.  It is also the favorite weapon used by opponents of mining and other natural resource uses for mounting administrative and judicial attacks on legitimate economic enterprise. The Idaho Mining Association supports changes tothe ESA that:

• increase the role of state and local governments;
• establish a clear, scientifically defensible process for listing, recovery and delisting as well as conservation criteria and recovery priorities;
• increase certainty and assistance for landowners and water users; and
• streamline the Act.

The Idaho Mining Association supports the following specific changes in the law:

• ensure prompt and accurate consultation on projects occurring on federal lands and provide appropriate protection for holders of existing federal permits;
• develop and publish, concurrent with the listing rule, a clear, scientifically defensible regulation defining which acts are prohibited under sections 9 and 10 and how the private sector may obtain relief;
• implement a rigorous process to determine the costs, impacts and risks of planned recovery options before deciding on a recovery plan;
• revise the definition of “standing” with regard to “third-party suits” to recognize those who have a pre-existing real property or financial interest in ESA action;
• define incentives as part of the recovery planning process, to encourage volunteer and private landowner involvement;
• require that society as a whole bear the full costs of ESA management - not individual landowners, nonfederal landowners or federal land users;
• narrow the definition of endangered species and their critical habitat; and
• limit the listing of species to those truly endangered or threatened with extinction.