In recent years, South Dakotans have heard more about the federal Endangered Species Act (ESA) than in the past because of the listing of the Topeka shiner, a minnow species found in eastern South Dakota and the potential listing of the black-tailed prairie dog, which still occurs throughout much of its historical range in the state. This article presents background information about the ESA. Items in quotes are taken from the ESA, which can be viewed at the following web-site: http://endangered.fws.gov/whatwedo.html

The ESA turns 30 years old in 2003. The Act’s primary purpose is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved." In addition, "all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this Act."

Except for insect pests, any plant or animal species may be listed under the ESA. Although all federal agencies must assist in endangered species recovery, the U.S. Fish and Wildlife Service has primary responsibility for terrestrial and freshwater species, and the National Marine Fisheries Service has primary responsibility for marine species.

Although the ESA’s main focus on species recovery and ecosystem conservation remains the same, the Act was significantly amended in 1978, 1982, and 1988. Amendment highlights from 1978 included:

• federal agencies could harm a listed species if exempted by a body called the Endangered Species Committee;
• under most circumstances, critical habitat for a species must be designated at the time the species is listed;
• land can be acquired for listed species.

Amendments in 1982 included:

• listing must be based only on available biological and commercial information, without consideration of economic impacts;
• "experimental populations" of listed species can be designated, with more flexible management allowed;
• listed plants cannot be removed from lands under federal jurisdiction;
• a final rule generally must be published within one year of a proposal to list a species;
• "incidental take" of listed animal species is allowed by nonfederal entities ("incidental to, and not the purpose of, the carrying out of an otherwise lawful activity").

In 1988, ESA amendments included:

• candidate and recovered species must be monitored, and emergency listing of species is authorized;
• recovery plans must undergo public review;
• listed plants cannot be destroyed on or taken from federal lands if the action violates state law.

Endangered species: A species in danger of extinction throughout all or a significant portion of its range.

Threatened species: A species likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.

Critical habitat: Specific areas within and outside the geographical area occupied by the species, at the time it is listed, that may contain features essential to the conservation of the species and that may require special management consideration or protection. Critical habitat may be established for species already listed as threatened or endangered. Except under certain circumstances determined by the Secretary (of Interior or Commerce), critical habitat shall not include the entire geographical area that can be occupied by the listed species. In designating critical habitat, the Service will consider economic impacts of the designation.

Take: Harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.

The typical listing process is as follows:

1. The U.S. Fish and Wildlife Service receives a petition seeking a listing.
2. The Service reviews the petition within 90 days.
3. The Service determines whether the petition contains substantial information. If substantial information indicates that listing may be warranted (justified), the Service begins a 12-month status review, during which it requests information from the public and tribal and government agencies.
4. Following the 12-month status review, the Service concludes that:

1. Listing is not warranted;
2. Listing is warranted but precluded by higher listing priorities (species becomes a candidate for listing, a designation with no specific legal protection); or
3. Listing is warranted.

5. If listing is warranted, the Service publishes a proposed rule in the Federal Register, the U.S. government’s daily official record.
6. The Service identifies experts to conduct peer review of the proposal to list the species and again seeks input from government and tribal entities, the scientific community, and the public.
7. The Service makes a final decision on the listing:

1. Announces decision not to list the species; or
2. Publishes a final rule to list the species in the Federal Register, which takes effect 30 days following the announcement.

The ESA provides several benefits to listed plant and animal species, including protection from harm by federal activities, protection from take, a requirement that the Service develop recovery plans for listed species, authority for federal agencies to purchase or exchange lands to benefit listed species, and a federal commitment to cooperate with state wildlife agencies to benefit listed or candidate species.

The ESA requires that all federal agencies participate in endangered species recovery and assure that actions they fund, authorize, or conduct do not jeopardize the survival of listed species or designated critical habitats (Section 7). If a federal agency determines that an action may affect a listed species, the agency works with (consults) the Service to lessen that impact with "reasonable and prudent alternatives." These alternatives typically allow a proposed activity to proceed, as long as the alternatives are followed.

Listed species are protected from take, import, export, or commerce unless justified from a conservation standpoint. Listed species also cannot be possessed, sold, or transported.

Recovery Plan: A document that describes steps needed to restore a listed species. The plan typically contains goals needed to downlist (change status from endangered to threatened) and delist (remove from list of endangered or threatened species) the species. Recovery plans are usually prepared by a recovery team composed of qualified private and agency personnel, with input from identified stakeholder groups with a specific interest in the issue.

Candidate Conservation Agreement with Assurances (CCAA): A voluntary agreement between the Service and a private or nonfederal property owner for the benefit of candidate species or species proposed for listing. The agreement identifies activities the landowner will undertake to remove threats to the species covered by the agreement. A standard is established such that the management activities covered by a CCAA would remove the need to list the species, if also undertaken by other landowners in similar situations within the species’ range. In return, the Service may allow the landowner to "take" the species incidental to other lawful activities. The landowner also receives an assurance that if covered species are subsequently listed, the landowner will not be subject to any additional restrictions.

Safe Harbor Agreement: A voluntary agreement between the Service and a private or nonfederal property owner for the benefit of listed, proposed, or candidate species. Similar to the CCAA, the agreement identifies activities the landowner will undertake to benefit the covered species. In return, the landowner will not be subject to additional regulations beyond those that existed when the agreement began, which is tied to an identified baseline condition.

Habitat Conservation Plan: A conservation plan that accompanies an application for an incidental take permit. With an approved HCP, a landowner can proceed with activities that result in the take of a species. The landowner makes specific commitments that will result in an overall net benefit to species covered by the HCP.

As of March 1, 2003, the number of species currently listed is as follows:

• 986 endangered species (388 animals, 598 plants)
• 276 threatened species (129 animals, 147 plants
• total species listed – 1262 (517 animals, 745 plants)
• 257 candidate species

Source: http://ecos.fws.gov/tess/html/boxscore.html

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