What is Endangered Species Act?

What is Endangered Species Act?

The Endangered Species Act (ESA) is a United States federal law enacted in 1973 that provides a framework for the conservation of threatened and endangered species and the ecosystems upon which they depend. Administered jointly by the US Fish and Wildlife Service (terrestrial and freshwater species) and the National Marine Fisheries Service (marine species), the ESA protects over 1,680 species in the US and its territories, prohibiting "take" (harm, harassment, or killing) of listed species and mandating the protection of designated critical habitat.

Why It Matters

The ESA is widely regarded as the world's strongest species protection law, and its influence on land use, infrastructure development, and corporate operations is substantial. Section 7 requires federal agencies to consult with wildlife agencies before authorizing, funding, or carrying out actions that may affect listed species. Section 9 prohibits any person—including corporations—from taking listed species without a permit. These provisions affect energy development, agriculture, construction, water management, and forestry across the country.

The law has demonstrated conservation success. Species including the bald eagle, gray wolf, American alligator, and humpback whale have recovered sufficiently to be delisted or downlisted. A 2019 study found that 99% of listed species have avoided extinction since listing, and 47% have stabilizing or increasing populations. The ESA's combination of prohibitions, habitat protection, and recovery planning remains a model for conservation legislation globally.

For businesses, ESA compliance requires early and thorough assessment of potential impacts on listed species. Development projects, resource extraction, infrastructure construction, and agricultural operations in areas with listed species or critical habitat face regulatory review that can significantly affect project timelines, costs, and feasibility. Proactive engagement—through habitat conservation plans and candidate conservation agreements—reduces regulatory risk while contributing to species recovery.

Political debate around the ESA remains active. Industry groups argue the law imposes excessive economic costs, while conservation organizations defend it as essential for preventing extinction. Regulatory changes under successive administrations have adjusted implementation, but the core law remains largely unchanged since its enactment.

How It Works / Key Components

Species listing follows a scientific process. The US Fish and Wildlife Service or NOAA Fisheries evaluates a species based on five factors: habitat destruction, overutilization, disease, inadequacy of existing protections, and other natural or manmade factors. Species are classified as "endangered" (in danger of extinction throughout all or a significant portion of their range) or "threatened" (likely to become endangered in the foreseeable future). Listing decisions must be based solely on the best available science.

Critical habitat designation identifies specific geographic areas essential to species conservation. Federal agencies must ensure their actions do not destroy or adversely modify critical habitat. Private landowners are not directly restricted by critical habitat designation unless federal funding, permits, or authorization is involved, but the designation can affect development plans that require federal permits (Clean Water Act Section 404 permits, for instance).

Section 7 consultation requires federal agencies to assess whether their proposed actions may affect listed species. Formal consultation results in a Biological Opinion from the wildlife agency, which may include an Incidental Take Statement permitting limited harm to listed species if reasonable and prudent measures are implemented. This process applies to federally permitted, funded, or authorized activities.

Habitat Conservation Plans (HCPs) under Section 10 allow private landowners and developers to obtain Incidental Take Permits in exchange for implementing conservation measures that minimize and mitigate impacts. HCPs can cover single projects or entire landscapes, providing regulatory certainty while achieving conservation outcomes.

Council Fire's Approach

Council Fire helps clients navigate ESA compliance as part of comprehensive environmental permitting strategies. We conduct early species and habitat assessments, facilitate Section 7 consultations, develop Habitat Conservation Plans, and integrate ESA considerations into project planning to minimize delays while ensuring meaningful conservation outcomes.

Frequently Asked Questions

How does the ESA affect private landowners?

Private landowners cannot take (harm, harass, or kill) listed species regardless of where they occur. Critical habitat designation on private land does not directly restrict land use unless federal permits are involved. Habitat Conservation Plans provide a pathway for private landowners to proceed with activities that may incidentally affect listed species.

How long does ESA consultation take?

Informal consultation can be completed in weeks if no adverse effects are anticipated. Formal consultation has a statutory deadline of 135 days but often takes longer for complex projects. Programmatic consultations that cover multiple similar activities can streamline the process for future projects.

Can a species be delisted once it recovers?

Yes. Species are delisted when recovery criteria defined in their recovery plan are met and threats have been eliminated or sufficiently reduced. Delisted species are monitored for at least five years to ensure continued stability. Notable delisting successes include the bald eagle (2007) and Yellowstone grizzly bear (ongoing evaluation).