Endangered Species Act

• Author: Environmental Law Reporter
• Pages: 395-415

Endangered Species Act

16 U.S.C. §§1531-1544

§1531.[ESA §2]

Congressional findings and declaration of purposes and

policy

(a) Findings

The Congress finds and declares that—

(1) various species of fish, wildlife, and plants in the United

States have been rendered extinct as a consequence of economic

growth and development untempered by adequate concern and

conservation;

(2) other species of fish, wildlife, and plants have been so de-

pleted in numbers that they are in danger of or threatened with

extinction;

(3) these species of fish, wildlife, and plants are of esthetic, eco-

logical, educational, historical, recreational, and scientific value to

the Nation and its people;

(4) the United States has pledged itself as a sovereign state in the

international community to conserve to the extent practicable the

various species of fish or wildlife and plants facing extinction, pur-

suant to—

(A) migratory bird treaties with Canada and Mexico;

(B) the Migratory and Endangered Bird Treaty with Japan;

(C) the Convention on Nature Protection and Wildlife Preser-

vation in the Western Hemisphere;

(D) the International Convention for the Northwest Atlantic

Fisheries;

(E) the International Convention for the High Seas Fisheries of

the North Pacific Ocean;

(F) the Convention on International Trade in Endangered Spe-

cies of Wild Fauna and Flora; and

(G) other international agreements; and

(5) encouraging the States and other interested parties, through

Federal financial assistance and a system of incentives, to develop

and maintain conservation programs which meet national and inter-

national standards is a key to meeting the Nation’s international

commitments and to better safeguarding, for the benefit of all citi-

zens, the Nation’s heritage in fish, wildlife, and plants.

(b) Purposes

The purposes of this chapter 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.

(c) Policy

(1) It is further declared to be the policy of Congress that all Fed-

eral departments and agencies shall seek to conserve endangered

species and threatened species and shall utilize their authorities in

furtherance of the purposes of this chapter.

(2) It is further declared to be the policy of Congress that Federal

agencies shall cooperate with State and local agencies to resolve

water resource issues in concert with conservation of endangered

species.

(Pub. L. 93-205, §2, Dec. 28, 1973, 87 Stat. 884; Pub. L. 96-159, §1, Dec. 28,

1979, 93 Stat.1225; Pub. L. 97-304, §9(a), Oct. 13, 1982, 96 Stat. 1426; Pub. L.

100-478, title I, §1013(a), Oct. 7, 1988, 102 Stat. 2315.)

References In Text

This chapter, referred to in subsecs. (b) and (c)(1), was in the original “this Act”,

meaningPub. L. 93-205, Dec. 28, 1973, 81 Stat. 884, as amended, known as the “En-

dangered Species Act of 1973”, which is classified principally to this chapter. For

complete classificationof this Act to the Code, see Short Title note set out below and

Tables.

Effective Date

Section 16 of Pub. L. 93-205 provided that: “This Act [enacting this chapter,

amending sections 460k-1, 460l-9, 668dd, 715i, 715s, 1362, 1371, 1372, and 1402

of this title and section 136 of Title 7, Agriculture, repealing sections 668aa to

668cc-6 of this title, and enacting provisions set out as notes under this section] shall

take effect on the date of its enactment [Dec. 28, 1973].”

Short Title Of 1982 Amendment

Section 1 of Pub. L. 97-304 provided: “That this Act (amending this section and

sections 1532, 1533, 1535, 1536, 1537a, 1538, 1539, 1540, and 1542 of this title and

enacting provisions set out as notes under sections 1533, 1537a, and 1539 of this ti-

tle) may be cited as the ‘Endangered Species Act Amendments of 1982’.”

Short Title Of 1978 Amendment

Pub. L. 95-632, Sec. 1, Nov. 10, 1978, 92 Stat. 3751, provided: “That this Act

[amending sections 1532 to 1536, 1538 to 1540, and 1542 of this title] may be cited

as the ‘Endangered Species Act Amendments of 1978’.”

Short Title

Section 1 of Pub. L. 93-205 provided: “That this Act [enacting this chapter,

amending sections 460k-1, 460l-9, 668dd, 715i, 715s, 1362, 1371, 1372, and 1402

of this title and section 136 of Title 7, Agriculture, repealing sections 668aa to

668cc-6 of this title, and enacting provisions set out as notes under this section] may

be cited as the ‘Endangered Species Act of 1973’.”

Relationship to Endangered Species Act of 1973

Pub. L. 102-251, title III, §305, Mar. 9, 1992, 106 Stat. 66, as amended Pub. L.

104-208, Div.A, title I, §101(a) [title II, §211(b)], Sept. 30, 1996, 110 Stat. 3009-41,

provided that: “The special areas defined in section 3(24) of the Magnuson-Stevens

FisheryConservation and Management Act (16 U.S.C. 1802(24)) [section 1802(24)

of this title] shall be considered places that are subject to the jurisdiction of the

United States for the purposes of the Endangered Species Act of 1973 (16 U.S.C.

1531 et seq.).”

Minimization Of Conflicts With Recreational Fisheries

For provision that all Federal agencies minimize conflicts between recreational

fisheries and administration of this chapter, see Ex. Ord. No. 12962, Sec. 4, June 7,

1995, 60 F.R. 30770, set out as a note under section 1801 of this title.

§1532.[ESA §3]

Definitions

For the purpose of this chapter—

(1) The term “alternative courses of action” means all alterna-

tives and thus is not limited to original project objectives and

agency jurisdiction.

(2) The term “commercial activity” means all activities of indus-

try and trade, including, but not limited to, the buying or selling of

commodities and activities conducted for the purpose of facilitating

such buying and selling: Provided, however, That it does not in-

clude exhibition of commodities by museums or similar cultural or

historical organizations.

(3) The terms “conserve”, “conserving”, and “conservation”

mean to use and the use of all methods and procedures which are

necessary to bring any endangered species or threatened species to

the point at which the measures provided pursuant to this chapter

are no longer necessary. Such methods and procedures include, but

are not limited to, all activities associated with scientific resources

management such as research, census, law enforcement, habitat ac-

quisition and maintenance, propagation, live trapping, and trans-

plantation, and, in the extraordinary case where population pres-

sures within a given ecosystem cannot be otherwise relieved, may

include regulated taking.

(4) The term “Convention” means the Convention on Interna-

tional Trade in Endangered Species of Wild Fauna and Flora,

signed on March 3, 1973, and the appendices thereto.

(5)(A) The term “critical habitat” for a threatened or endangered

species means—

(i) the specific areas within the geographical area occupied

by the species, at the time it is listed in accordance with the

provisions of section 1533 of this title, on which are found

those physical or biological features (I) essential to the conser-

vation of the species and (II) which may require special man-

agement considerations or protection; and

(ii) specific areas outside the geographical area occupied by

the species at the time it is listed in accordance with the provi-

sions of section 1533 of this title, upon a determination by the

Secretary that such areas are essential for the conservation of

the species.

(B) Critical habitat may be established for those species now

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ESA §3 ENDANGERED SPECIES ACT 16 U.S.C. §1532

listed as threatened or endangered species for which no critical

habitat has heretofore been established as set forth in subpara-

graph (A) of this paragraph.

(C) Except in those circumstances determined by the Secre-

tary, critical habitat shall not include the entire geographical area

which can be occupied by the threatened or endangered species.

(6) 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 to constitute a pest whose protection under the provisions

of this chapter would present an overwhelming and overriding risk

to man.

(7) The term “Federal agency” means any department, agency, or

instrumentality of the United States.

(8) The term “fish or wildlife” means any member of the animal

kingdom, including without limitation any mammal, fish, bird (in-

cluding any migratory, nonmigratory, or endangered bird for which

protection is also afforded by treaty or other international agree-

ment), amphibian, reptile, mollusk, crustacean, arthropod or other

invertebrate, and includes any part, product, egg, or offspring

thereof, or the dead body or parts thereof.

(9) The term “foreign commerce” includes, among other things,

any transaction—

(A) between persons within one foreign country;

(B) between persons in two or more foreign countries;

(C) between a person within the United States and a person in a

foreign country; or

(D) between persons within the United States, where the fish

and wildlife in question are moving in any country or countries

outside the United States.

(10) The term “import” means to land on, bring into, or introduce

into, or attempt to land on, bring into, or introduce into, any place

subject to the jurisdiction of the United States, whether or not such

landing, bringing, or introduction constitutes an importation within

the meaning of the customs laws of the United States.

(11) Repealed. Pub. L. 97-304, Sec. 4(b), Oct. 13, 1982, 96 Stat.

1420.

(12) The term “permit or license applicant” means, when used

with respect to an action of a Federal agency for which exemption is

sought under section 1536 of this title, any person whose applica-

tion to such agency for a permit or license has been denied primarily

because of the application of section 1536(a) of this title to such

agency action.

(13) The term “person” means an individual, corporation, part-

nership, trust, association, or any other private entity; or any officer,

employee, agent, department, or instrumentality of the Federal

Government, of any State, municipality, or political subdivision of

a State, or of any foreign government; any State, municipality, or

political subdivision of a State; or any other entity subject to the ju-

risdiction of the United States.

(14) The term “plant” means any member of the plant kingdom,

including seeds, roots and other parts thereof.

(15) The term “Secretary” means, except as otherwise herein

provided, the Secretary of the Interior or the Secretary of Com-

merce as program responsibilities are vested pursuant to the provi-

sions of Reorganization Plan Numbered 4 of 1970; except that with

respect to the enforcement of the provisions of this chapter and the

Convention which pertain to the importation or exportation of ter-

restrial plants, the term also means the Secretary of Agriculture.

(16) The term “species” includes any subspecies of fish or wild-

life or plants, and any distinct population segment of any species of

vertebrate fish or wildlife which interbreeds when mature.

(17) The term “State” means any of the several States, the Dis-

trict of Columbia, the Commonwealth of Puerto Rico, American

Samoa, the Virgin Islands, Guam, and the Trust Territory of the Pa-

cific Islands.

(18) The term “State agency” means any State agency, depart-

ment, board, commission, or other governmental entity which is re-

sponsible for the management and conservation of fish, plant, or

wildlife resources within a State.

(19) 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.

(20) The term “threatened species” means any species which is

likely to become an endangered species within the foreseeable fu-

ture throughout all or a significant portion of its range.

(21) The term “United States”, when used in a geographical con-

text, includes all States.

(Pub. L. 93-205, §3, Dec. 28, 1973, 87 Stat. 885; Pub. L. 94-359, §5, July 12,

1976, 90 Stat. 913; Pub. L. 95-632, §2, Nov. 10, 1978, 92 Stat.3751; Pub. L.

96-159, §2, Dec. 28, 1979, 93 Stat. 1225; Pub. L. 97-304, §4(b), Oct. 13, 1982,

96 Stat. 1420; Pub. L. 100-478, title I, §1001, Oct. 7, 1988, 102 Stat. 2306.)

References In Text

The customs laws of the United States, referred to in par.(10), are classified gen-

erally to Title 19, Customs Duties.

Reorganization Plan Numbered 4 of 1970, referred to in par.(15), is Reorg. Plan

No. 4 of 1970, eff. Oct. 3, 1970, 35 F.R.15627, 84 Stat. 2090, which is set out in the

Appendix to Title 5, Government Organization and Employees.

TerminationOf Trust Territory Of The Pacific Islands

Fortermination of Trust Territory of the Pacific Islands, see note set out preceding

section 1681 of Title 48, Territoriesand Insular Possessions.

§1533.[ESA §4]

Determination of endangered species and threatened

species

(a) Generally

(1) The Secretary shall by regulation promulgated in accordance

with subsection (b) of this section determine whether any species is

an endangered species or a threatened species because of any of the

following factors:

(A) the present or threatened destruction, modification, or cur-

tailment 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.

(2) With respect to any species over which program responsibili-

ties have been vested in the Secretary of Commerce pursuant to Re-

organization Plan Numbered 4 of 1970—

(A) in any case in which the Secretary of Commerce deter-

mines that such species should—

(i) be listed as an endangered species or a threatened spe-

cies, or

(ii) be changed in status from a threatened species to an en-

dangered species,

he shall so inform the Secretary of the Interior; who shall list such

species in accordance with this section;

(B) in any case in which the Secretary of Commerce deter-

mines that such species should—

(i) be removed from any list published pursuant to subsec-

tion (c) of this section, or

(ii) be changed in status from an endangered species to a

threatened species,

he shall recommend such action to the Secretary of the Interior,

and the Secretary of the Interior, if he concurs in the recommen-

dation, shall implement such action; and

(C) the Secretary of the Interior may not list or remove from

any list any such species, and may not change the status of any

such species which are listed, without a prior favorable deter-

mination made pursuant to this section by the Secretary of

Commerce.

(3)(A) The Secretary, by regulation promulgated in accordance

with subsection (b) of this section and to the maximum extent pru-

dent and determinable—

(i) shall, concurrently with making a determination under

paragraph (1) that a species is an endangered species or a

threatened species, designate any habitat of such species

which is then considered to be critical habitat; and

(ii) may, from time-to-time thereafter as appropriate, revise

such designation.

(B)(i) The Secretary shall not designate as critical habitat any

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16 U.S.C. §1533 ENVIRONMENTALLAW DESKBOOK ESA §4