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INTRODUCTION 18
1
Introduction
Biological diversity—the variety of living things—has been of interest for centuries. In recent years, it has
become apparent that human activities are causing the loss of biological diversity at an increasing rate: the
current rate of extinctions appears to be among the highest in the fossil record. Although nonhuman organisms
can cause extinctions of other species to a small degree, no other organisms produce such large effects over such
wide areas as humans do and have done—at least locally—for thousands of years. Habitat alteration and
degradation are probably the most severe effects humans have on other species today.
The Endangered Species Act (ESA) of 1973 (16 U.S.C. §§1531-1544 (1988)) is a far-reaching law that
provides protection for threatened and endangered species and their habitats. Because of recent controversies and
because the act is being considered for reauthorization, it has received much attention recently, which led to the
request for this study by the National Research Council (NRC).
HISTORY
The ESA and its subsequent amendments are the latest in a long line of federal legislation designed to
protect wildlife. Perhaps the first of the notable ancestors of the ESA was the Lacey Act of 1900 (Ch. 553 §1,31
Stat. 187 (1900) (codified as amended at 16 U.S.C. §701, 3371-3378 and 18 U.S.C. §42 (1988)). It prohibited
interstate commerce of animals killed in violation of state game laws and stated that any dead animals taken across
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INTRODUCTION 19
state boundaries were subject to the laws of the state into which they were imported; it also required the secretary
of agriculture to take all measures to ensure the preservation, introduction, distribution, and restoration of game
and wild birds. The Black Bass Act of 1926 (Ch. 346, 44 Stat. 576 (codified at 16 U.S.C. §§851-856 (1976)
(repealed 1981)) was similar in concept. The Migratory Bird Treaty Act of 1918 (16 U.S.C. §§703-712 (1988))
prohibited the taking of certain birds protected by convention, and the Migratory Bird Conservation Act of 1929
(16 U.S.C. §§715-715s (1988)) provided acquisition authority for wildlife refuges and sanctuaries. The
Endangered Species Preservation Act of 1966 (Pub. L. No. 89-669, 80 Stat. 926 (1966)) directed the secretary of
the interior to conserve, protect, restore, and propagate selected species of native fish and wildlife; this act
provided authority for the acquisition of land for habitat protection and charged the secretary to determine
whether a species was threatened with extinction. In 1969, the Endangered Species Conservation Act (Pub. L.
No. 91-135, 83 Stat. 275 (1989)) supplemented the Endangered Species Preservation Act by authorizing the
secretary to promulgate a list of species or subspecies of fish and wildlife threatened with worldwide extinction
and to prohibit their importation into the United States. It also amended and strengthened earlier acts.
In 1972, Congress passed the first of two broad, powerful acts that protect wildlife—the Marine Mammal
Protection Act (16 U.S.C. §§13611407 (1988)). That act prohibited the taking or importation of any marine
mammal, with exceptions available under certain complex conditions. It also provided for a determination of
"depleted" status; depleted stocks or species were afforded stronger protection than others. And in 1973,
Congress passed the ESA—the broadest and most powerful wildlife-protection act in U.S. history (Bean, 1983).
The act defines three crucial categories: "endangered" species, ''threatened" species, and "critical" habitats.
("Subspecies" of plants and animals and "distinct population segments" of vertebrates can also qualify for
protection as species.) Endangered species and their critical habitats receive extremely strong protection; it is
illegal to take any endangered species of animal, and plants in some circumstances, in the United States, its
territorial waters, or the high seas. The term "to take" is defined as "to harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect, or attempt to engage in any such conduct." In addition to that direct prohibition,
Section 7 of the act prohibits any federal action likely to jeopardize the future of any endangered species or to
result in destruction or adverse modification of designated critical habitat. The act also requires the secretaries of
interior and commerce to use programs in their agencies in furtherance of the act and requires other agencies to
"utilize their authorities in furtherance of the purposes of this [act] by carrying out programs for the conservation
of endangered species and threatened species." Amendments to the ESA in 1978 and later established the
requirement for recovery
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INTRODUCTION 20
plans to be prepared by the U.S. Fish and Wildlife Service for inland and certain marine species and by the
National Marine Fisheries Service for other marine species and anadromous fishes. Those plans are required to
include specific population goals, timetables, and estimated costs.
The power of the ESA lies with its stringent mandates constraining the actions of both private parties and
public agencies. Once a species is listed as endangered or threatened in accordance with the ESA, it is sheltered
under the act's protective umbrella, an impressive and far-reaching array of provisions (Greenwalt, 1988).
Critical habitat must be designated unless overriding concerns for the species' conservation prevail (Section 4 of
the ESA). Recovery plans designed to bring the species to the point where it no longer needs the act's protections
are required unless they will not promote the conservation of the species (Section 4). Funds for habitat
acquisition and cooperative state programs are authorized (sections 5 and 6). Federal agencies must ensure that
their actions are not likely to jeopardize the continued existence of listed species nor adversely modify their
critical habitats (Section 7(a)(2)). They are also required to use their authorities to promote endangered species
conservation (Section 7(a)(1)).
Taking endangered species and, by regulation, threatened species, is prohibited with certain exceptions
(Section 9). For example, listed plants are protected only on federal lands unless their taking on nonfederal lands
violates state law. The act and regulations that implement it define taking very broadly to cover any activities
causing harm to listed species, including habitat destruction if it interferes with behavior patterns essential to
species survival and reproduction (however, the extent of this last provision will be decided by the Supreme
Court, which has agreed to review a case on the matter1). Limited taking may be allowed under federal permits
for research purposes. Taking that occurs incidentally to otherwise lawful actions of federal agencies is legal if
the federal agency or its permittee complies with terms and conditions found in the biological opinion issued
under Section 7(a)(2). Unless nonfederal actions trigger a Section 7 consultation, listed species may be taken
only under authority of a Section 10(a)(1)(B) incidental take permit. To obtain the permit, an applicant must
submit a habitat conservation plan, reduce and avoid take within feasible limits, mitigate for any unavoidable
take, show capability to fund the plan's conservation measures, and meet any other conditions imposed by the
secretary of Interior or of Commerce.
The Section 7 prohibition of any federal action likely to jeopardize the continued existence of an
endangered or threatened species or to destroy or adversely modify its critical habitat is the source of much of
the act's power.
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1See Chapter 4.
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INTRODUCTION 21
It has led to controversies, the first of which concerned the Tellico Dam on the Little Tennessee River. That
dam would have flooded all the known habitat of the newly discovered snail darter (Percina tanasi). The
Supreme Court ruled 6-3 in 1978 (TVA v. Hill, 437 U.S. 153 (1978)) that Section 7 prohibited the closing of the
gates of the dam. Chief Justice Burger wrote that one "would be hard pressed to find a statutory provision whose
terms were any plainer than those in §7." Although Congress overruled itself in exempting the Tellico Dam from
the provisions of the ESA, and other natural populations of the snail darter were subsequently found, an
increasing number of controversies have arisen. A recent controversy, addressed by the National Research
Council, involved sea turtles and shrimpers (NRC, 1990). A current controversy involves the northern subspecies
of the spotted owl (Strix occidentalis caurina) and the timber industry in the Pacific Northwest. Another has the
potential to intensify if more than 100 stocks of Pacific salmon (Oncorhynchus species) (see NRC, 1995) and the
widespread but rare bull trout (Salvelinus confluentus) proposed for listing beome listed as endangered or
threatened. (As of January 1995, four stocks of Pacific salmon were listed as endangered in the Pacific
Northwest and California.) These fishes and their habitats are used for various economic, social, and recreational
activities that adversely affect their survival in the western United States.
As human activities continue to affect species populations and their habitats, two major questions arise
concerning the ESA. First, is the act soundly based in science as an effective method of protecting endangered
species and their habitats? Congress intended the act to provide a mechanism for reversing the endangered or
threatened status of species; that is why the processes of "delisting" species and upgrading them from
endangered to threatened are in the act. The second question concerns the desired public policy with respect to
protecting endangered species and their habitats, i.e., what are the costs and benefits, and to what extent is the
public willing to incur the costs? This report focuses on the first question.
To address the first question, we return to the objectives of the ESA as described in the act. Section 2(b)
states that the act's purposes are "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, and to take such steps as may be appropriate to achieve the purposes of the
treaties and conventions set forth in subsection (a) of this section."
THE PRESENT STUDY
In November of 1991, Senator Mark Hatfield, Representative Thomas Foley, and Representative Gerry
Studds wrote to the chairman of the Na
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INTRODUCTION 22
tional Research Council requesting a study of "several issues related to the Endangered Species Act," clearly
focusing on scientific matters related to the act. After receiving funding from the U.S. Fish and Wildlife Service
in June 1992, the NRC's Board on Environmental Studies and Toxicology convened the Committee on Scientific
Issues in the Endangered Species Act. The committee's membership (see Appendix C) includes expertise in
ecology; systematics; population genetics; wildlife management; risk and decision analysis; the legal, legislative,
and administrative history of the Endangered Species Act; economics; and the implementation of the ESA from
public and private perspectives. The committee's statement of task is based very closely on the letter of request
from the three members of Congress (Appendix A).
The committee was asked to review the following issues and evaluate how they relate to the overall
purposes of the Endangered Species Act:
• Definition of species. The committee was asked to review how the term species has been used to
implement the ESA, and what taxonomic units would best serve the purposes of the act.
• Conservation conflicts between species. The committee was asked how frequent or severe conflicting
conservation needs are when more than one species in a geographic area are listed as endangered or
threatened under the ESA, and to make recommendations to resolve these conflicts.
• Role of habitat conservation. The committee was asked to evaluate the role of habitat protection in the
conservation of species and to review the relationship between habitat-protection and other
requirements of the act.
• Recovery planning. The committee was asked to review the role of recovery planning under the act and
to consider how recovery planning could better contribute to the purposes of the act.
• Risk. The committee was asked to review the role of risk in decisions made under the ESA (such as
what constitutes sufficient "endangerment" to require listing of a species, and what constitutes jeopardy,
adverse modifications, reasonable and prudent alternatives, taking, conservation, and recovery). It was
also asked to review whether different degrees of risk ought to apply to different types of decisions
(e.g., should an endangered species be at greater risk than a threatened species to justify listing?) and to
identify practical methods for assessing risk to achieve the purposes of the act better while providing
flexibility in appropriate circumstances to accommodate other objectives as well.
• Issues of timing. The committee was asked to review the timing of key decisions under the ESA and to
consider ways of improving timing under the act to serve its purposes better while minimizing
otherwise unintended consequences.
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INTRODUCTION 23
The committee met in Washington, D.C., and Irvine, California, where it received briefings and materials
from federal agencies, congressional staff, Secretary of the Interior Bruce Babbitt, members of private
conservation organizations and of private industry, and other experts. It also made use of many sources of
information, including previous NRC reports; government documents and studies done by other agencies; and
relevant published literature from scientific journals, symposia, and books.
The report begins with a description of the processes of extinction as they have occurred through geological
time to the present. This is followed by analyses of the scientific underpinnings of the ESA—the species
concept, habitat and its role in species conservation, conservation conflicts between species, the assessment of
extinction risks, decision-making under uncertainty, and those areas where lack of scientific knowledge or basic
uncertainties need to be taken into account. Timing issues, mostly related to recovery and designation of critical
habitat, are discussed in Chapter 4. These analyses provide the bases for the report's conclusions and
recommendations.
REFERENCES
Bean, M.J. 1983. The Evolution of National Wildlife Law. 2nd Ed. New York: Praeger.
Greenawalt, L.A. 1988. Reflections on the power and potential of the Endangered Species Act. Endangered Species Update 5:7-9.
NRC (National Research Council). 1990. Decline of the Sea Turtles: Causes and Prevention. Washington, D.C.: National Academy Press.
NRC (National Research Council). 1995. Upstream: Salmon and Society in the Pacific Northwest. Washington, D.C.: National Academy
Press.
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