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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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Follow the truth.

"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.

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Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

« Border security vs. wildlife? | Main| FWS proposes listing of Hawaiian plant, Phyllostegia hispida, and requests public comments. »

An Endangered Species Act Glossary

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So, you've been reading this blawg, but realized that you still don't know some of the terminology of the Endangered Species Act?  No worries! This page, its internal links, and the left column links on the ESAblawg Home Page (see Notable ESA summaries) will help.  

BA = Biological Assessment
BO or BiOp = Biological Opinion
DPS = Distinct Population Segment
HCP = Habitat Conservation Plan
ITP = Incidental Take Permit
ITS = Incidental Take Statement
SPR = Significant Portion of the Range

Biological assessment.  ESA Section 7, 16 U.S.C. 1536.  This refers to an analysis prepared by, or under the direction of, a Federal agency to determine whether a proposed action is likely to: (1) adversely affect listed species or designated critical habitat; (2) jeopardize the continued existence of species that are proposed for listing; or (3) adversely modify proposed critical habitat. Biological assessments must be prepared for "major construction activities." See 50 CFR §402.02. The outcome of a biological assessment determines whether formal consultation or a conference is necessary. (50 CFR §402.02, 50 CFR §402.12).  For a more references on this information consultation process, see the Municipal Research and Services Center., or see WSDOTdocument.

Biological opinion. ESA Section 7, 16 U.S.C. 1536.  The primary goal of a biological opinion, or BiOp, is to ensure that a federal action cannot continue if it jeopardizes the continued existence of a species or adversely modifies its designated critical habitat.  Although the document is called an “opinion,” it actually has the force of a decision document: the federal agency whose actions it governs must comply with it. A BO is purely biological; it’s a scientific judgment about a proposed action, not a policy document.  A biological opinion can also include conservation recommendations to minimize or avoid possible adverse effects on listed species or their critical habitat. It can also impose reasonable and prudent measures necessary to minimize any harmful impacts.  See NOAAwebpages.

Candidate Species.  ESA Section 4, 16 U.S.C. 1533.  Candidate Species are those petitioned species that are actively being considered for listing as endangered or threatened under the ESA, as well as those species for which NMFS or FWShas initiated an ESA status review that it has announced in the Federal Register. Neither the term "candidate species" nor "species of concern" carries any procedural or substantive protections under the ESA.

Citizen suits.  ESA Section 11, 16 U.S.C. 1540.   Pursuant to ESA §11, individuals can become, in effect, "citizen attorney's general."  After filing a notice of intent to sue, individuals can sue for injunctive relief to stop violations of the ESA, or to enforce applicable deadlines of ESA §4 (such as listing or critical habitat requirements) that are sometimes missed by the agencies.  See also, Barton Aronson's FindLaw column on "How Citizen Suits Work".  Not all ESA suits, however, require ESA §11.  Many of them, such as suits relating to consultations and completed biological opinions, are brought based on federal question jurisdiction and the Federal Administrative Procedure Act.  See, e.g. Bennett v. Spear, 117 S.Ct. 1154 (1997)(article).

Concurrence letter.  ESA Section 7, 16 U.S.C. 1536 . A document issued by FWS or NMFS as part of the ESA §7 consultation process.   If a biological assessment concludes that the activity is not likely to adverse affect a species or critical habitat, and FWS or NMFS issues a concurrence letter agreeing with the conclusion in the biological assessment, that ends the consultation process; otherwise, a formal consultation is needed, culminating with a biological opinion.

Consultation.  ESA Section 7, 16 U.S.C. 1536.  The review process undertaken by FWS or NMFS, as described in the Joint §7 Handbook, and requires Federal agencies to consult with the Services to ensure that they are not undertaking, funding, permitting, or authorizing actions likely to jeopardize the continued existence of listed species or destroy or adversely modify designated critical habitat.  

Critical habitat.  ESA Section 4, 16 U.S.C. 1533.  Once a species is listed, the agency listing it -- FWS or NMFS-- is also required to designate critical habitat, which includes the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection.  Unlike listing decisions, critical habitat determinations must be based on the best scientific data available but also after taking into consideration the economic impact, the impact on national security, and any other relevant impact,

Distinct Population Segment. ESA Section 4, 16 U.S.C. 1533.   A Distinct Population Segment is a portion of a species' or subspecies' population or range. To constitute a DPS, the FWS & NMFS 1996 joint policy provides that a population must exhibit  “discreteness” in relation to the remainder of the species, generally meaning markedly separated from other populations or delimited by international governmental boundaries within which differences in protection.  In addition, the DPS must demonstrate “significance” to the species to which it belongs, which may be satisfied by (1) persistence of the PSin an ecological setting unusual or unique for the taxon; (2) evidence that loss of the PSwould result in a significant gap in the range of a taxon; (3) evidence that the PSrepresents the only surviving natural occurrence of a taxon; (4) evidence that the PSdiffers markedly from other populations of the species in its genetic characteristics”        

Experimental populations.  ESA Section 10, 16 U.S.C. 1539.  The concept relates to the re-introduction of species into the wild.  ESA Section 10(j) of the ESA states that "For purposes of this subsection, the term 'experimental population' means any population (including any offspring arising solely there from) authorized by the Secretary for release... but only when, and at such times as, the population is wholly separate geographically from nonexperimental populations of the same species."  An essential experimental population of a species is one whose loss would be likely to appreciably reduce the likelihood of survival of the species in the wild.  All other experimental populations are considered non-essential.   Critical habitat cannot be designated for non-essential populations, and §7 consultations are only required for actions affecting National Parks and FWS Wildlife Refuges.

Habitat conservation plans.  ESA Section 10, 16 U.S.C. 1539.  In 1982, Congress amended the ESA to enhance the permitting provisions of the act, (Section 10) and intended, in part, to provide landowners with incentives to participate in endangered species conservation. (H.R. Conf. Rep. No. 97-835, at 28-31 (1982), reprinted in 1982 U.S.C.C.A.N. 2807.) Pursuant to these provisions, by preparing a "Habitat Conservation Plan" (HCP) that meets statutory criteria, private landowners can obtain "incidental take permits" that allow otherwise prohibited impacts to endangered, threatened and other species covered in the permitting documents. Each conservation plan must specify: the impacts to species that will occur; the steps taken to minimize and mitigate the incidental take; the funding available; alternative actions that we considered, but not taken; and other necessary and appropriate measures. (Section 10(a) (2)(A).)  (from wikipedia)

Incidental take permits.  ESA Section 10, 16 U.S.C. 1539.  Upon a permittee's completion of a habitat conservation plan, and upon review by the federal agencies, FWS or NOAA Fisheries may issue an incidental take permit upon making the statutorily required "findings," including a determination that the incidental taking "will not appreciably reduce the likelihood of the survival and recovery of the species in the wild." (Section 10(a) (2)(B).)  The ESA also empowers FWS or NOAA Fisheries to include "terms and conditions" in the incidental take permits as necessary or appropriate. (Section 10(a) (2)(B)(v).)  This permit allows otherwise prohibited activities related to listed species, usually through the issue of a parallel biological opinion and incidental take statement.  (from wikipedia)

Incidental take statement. ESA Section 7, 16 U.S.C. 1536.  The incidental take statement (ITS) specifies the amount of otherwise prohibited take of listed species that is authorized.  In effect, an ITS authorizes the killing of, or harm to, listed species.  From an action agency's perspective, this is one of the most important parts of a BiOp.  Some courts, especially in the Ninth Circuit, have been critical of ITS that do not use an exact maximum number of animals that may be incidentally taken.

No surprises policy.  ESA Section 10, 16 U.S.C. 1539.  Upon issuance of an incidental take permit, FWS or NOAA can issue terms and conditions that include "no surprises assurances," issued in accordance with Federal regulations. 50 C.F.R. Part 17. These regulations allow for assurances to be given to private landowners that if "unforeseen circumstances" arise, FWS or NOAA Fisheries will not require the commitment of land, water or financial compensation or additional restrictions on the use of land, water, or other natural resources beyond the levels otherwise agreed to in the conservation plan, without the consent of the permittee.

Listing. ESA Section 4, 16 U.S.C. 1533.   A species can be listed by FWS or NOAA Fisheries as endangered, defined as 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, or as threatened, meaning likely to be classified as Endangered in the foreseeable future if present trends continue.  Listing decisions must be based solely on the basis of the best scientific and commercial data available, and consider any of the following factors: (A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.

Plant prohibitions.  ESA Section 9, 16 U.S.C. 1538. The concept of take does not apply to plants.  Instead, for plants, it is prohibited to import or export, remove and reduce to possession any such species from areas under Federal jurisdiction; maliciously damage or destroy any such species on any such area; or remove, cut, dig up, or damage or destroy any such species on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law.

Recovery.  ESA Section 4, 16 U.S.C. 1533.   ESA §4(f) requires recovery plans to be prepared for listed species, and envisions these guidance documents as a road map for species recovery.   Generally, the FWS and NMFS recovery plans include (i) a description of site-specific management actions necessary to achieve the plan’s goal for the conservation and survival of the species; (ii) objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of this section, that the species be removed from the list; and (iii) estimates of the time required and the cost to carry out those measures needed to achieve the plan’s goal and to achieve intermediate steps toward that goal.

Significant portion of the range.  ESA Section 4, 16 U.S.C. 1533.   In Defenders of Wildlife v. Norton, 258 F.3d 1136 (9th Cir. 2001), the Ninth Circuit interpreted the phrase "significant portion of the range" (SPR) as a “substantive standard” for determining whether a species is an endangered species. Under the court’s interpretation, there are two situations in which the Secretary must determine a species to be an endangered species: (1) where the Secretary finds that the species is in danger of extinction throughout all of its range; or (2) where the Secretary finds that the species is in danger of extinction throughout a significant portion of its range.  Numerous other Circuit Courts of Appeal have followed the Ninth Circuit.  The Department of Interior, however, as explained in a 2007 Solicitor's Office memorandum, has a different interpretation: SPR means that a species is an endangered species only when it is in danger of extinction throughout a portion of its current range that is “so important to the continued existence of a species that threats to the species in that area can have the effect of threatening the viability of the species as a whole.” See Ctr. for Biological Diversity v. Norton, 411 F. Supp. 2d 1271, 1278 (D.N.M. 2005).

Take (of animals).  ESA Section 9, 16 U.S.C. 1538. It is unlawful to "take" animal species.  The term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.  The term harm is further defined in the Code of Federal Regulations as an act which actually kills or injures fish or wildlife. Such an act may include significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including, breeding, spawning, rearing, migrating, feeding, and sheltering.

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