Endangered Species Act — Which Animals and Plants are “Threatened” or “Endangered”?by Hugh Holub on May. 24, 2011, under Center for Biological Diversity, climate change, endangered species act, environment water and energy, global warming, litigious environmental groups, politics, Western Watershed Project, WildEarth Guardians
Which Animals and Plants are “Threatened” or “Endangered”?
From: The Endangered Species ActBy Virginia S. Albrecht and James N. Christman of Hunton & Williams LLP
The ESA protects only plants and animals that have been officially listed as “endangered” or “threatened.” The procedures for listing a species are in § 4 of the ESA, 16 U.S.C. § 1533, and the regulations in 50 C.F.R. Part 424. The actual lists are in 50 C.F.R. Part 17.
An “endangered” species is one that is “in danger of extinction” throughout all or a significant portion of its range. 16 U.S.C. § 1532(6). A “threatened” species is one that is “likely to become endangered” within the foreseeable future. 16 U.S.C. § 1532(20).
Congress refined these definitions into five criteria, any one of which will justify listing: impacts to the species’ habitat or range; overuse of the species by humans; disease or predators; inadequacy of existing legal protections; or “other natural or man-made factors” affecting the species’ continued existence. 16 U.S.C. § 1533(a)(1). More detailed criteria for listing are in 50 C.F.R. § 424.14(b)(2). Importantly, the decision to list is made “without reference to possible economic or other impacts of such determination.” 50 C.F.R. § 424.11(b). It is made solely on biological grounds, without consideration of economic or other issues.
The listing process starts either with nomination of a species by the Fish and Wildlife Service or the National Marine Fisheries Service or by a petition from anyone or any agency. 16 U.S.C. § 1533(b)(3)(A). How the FWS manages listing petitions is described at http://www.fws.gov/r9endspp/petman.html . Once the FWS or NMFS decides that a petition for listing is warranted, it undertakes a “status review” and within a year must decide to list the species, reject the proposal or petition, or give itself more time. 16 U.S.C. § 1533(b)(3)(B). If the agency rejects the petition, its decision is subject to court review. 16 U.S.C. § 1533(b)(3)(C)(ii).
If it decides to list the species, it must propose a rule under the informal rulemaking procedures of the Administrative Procedure Act. 16 U.S.C. § 1533(b)(4). After it publishes notice of the proposed rule in the Federal Register, the agency has one year to make a decision. Notice of the proposal is distributed to fish and wildlife experts and state and local governments, and a hearing must be held (if one is requested) within 45 days of publishing the proposed rule. 16 U.S.C. § 1533(b)(5)(E); 50 C.F.R. § 424.16(c)(3).
Because of “serious backlogs” of listing actions, FWS has proposed guidance for assigning relative priorities to them. 63 Fed. Reg. 10,931 (March 5, 1998). The guidance divides listing actions into Tiers 1, 2, and 3, with the highest priority being Tier 1, which is for listings under the emergency listing provision of § 4(b)(7) of the ESA for species that face a significant and imminent risk to their well-being.
When the agency determines that a species is endangered or threatened, it is also supposed to designate the species’ “critical habitat” (16 U.S.C. § 1533(a)(3)). Critical habitat includes the areas within the geographic area occupied by the species on which are found physical or biological features “essential to the conservation of the species” and which may require special management considerations or protection. It also includes other specific areas, not presently occupied by the species, that are essential for its conservation; this means that a person’s land might be designated critical habitat for an endangered kangaroo rat even if no such rat had ever been found on the property. The agency must use the “best scientific data available” to designate critical habitat (id. § 1533(b)(2)), but the economic impact must also be considered: an area can be excluded from “critical habitat” on a cost-benefit basis, unless excluding it would “result in the extinction of the species.” Nevertheless, the Services often decline to examine economic impact when they designate critical habitat because, they argue, the impacts of critical habitat designation over and above the impacts of the listing itself are only “minimal.” See 64 Fed. Reg. 5741 col. 2 (February 5, 1999) (proposed designation of critical habitat for steelhead in Washington, Oregon, Idaho, and California).
The lists of threatened and endangered wildlife and plants are 50 C.F.R. §§ 17.11 and 17.12. Critical habitats are found in 50 C.F.R. §§ 17.95 and 17.96 and 50 C.F.R. Part 226. The official FWS list is at http://www.fws.gov/r9endspp/vertdata.html . 
If a species recovers and gets out of danger, it can be delisted, after notice-and-comment rulemaking procedures. 16 U.S.C. § 1533(b)(3)(A); 50 C.F.R. § 424.11(d). A species may also be upgraded from endangered to merely threatened, 16 U.S.C. § 1533(a)(2)(B)(ii), although in practice there is little difference either to the species or to affected landowners. The bald eagle, to name the most famous example, was listed as endangered in 1978,  was reclassified as “threatened” in 1995, and may be delisted entirely by the end of 1999.
Listing decisions are subject to judicial review and can be overturned if, for example, the agency failed to articulate a rationale for the listing or failed to follow procedures. See Northern Spotted Owl (Strix Occidentalis Caurina) v. Hodel , 716 F. Supp. 479, 481 (W.D. Wash. 1988); Idaho Farm Bureau Federation v. Babbitt , 839 F. Supp. 739 (D. Ohio 1993).
“Candidate” species are species that FWS or NMFS is considering listing as endangered or threatened but which are not yet the subject of a proposed rule. From time to time FWS publishes a notice in the Federal Register listing “candidate or proposed” species. See, e.g. , 62 Fed. Reg. 49,397 (September 19, 1997). Candidate species are afforded no protection under the ESA, but § 4(b)(3)(C)(iii) of the Act requires the agencies to monitor the status of certain candidate taxa “to prevent their extinction while awaiting listing.” See 58 Fed. Reg. 51,146 col. 2 (September 30, 1993). If a petition to list a species is warranted but listing is “precluded by other actions to revise the lists,” the species is declared “warranted but precluded”; these require a new finding within a year.
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