View source for Endangered Species Act of 1973

{{Short description|United States law}}
{{Use American English|date = February 2019}}
{{Use mdy dates|date = February 2019}}
{{Infobox U.S. legislation
| shorttitle        = Endangered Species Act of 1973 
| othershorttitles  = Endangered Species Act of 1973
| longtitle         = An Act to provide for the conservation of endangered and threatened species of fish, wildlife, and plants, and for other purposes.
| colloquialacronym = ESA
| nickname          = Endangered Species Conservation Act
| enacted by        = 93rd
| effective date    = December 27, 1973
| public law url    = http://www.gpo.gov/fdsys/pkg/STATUTE-87/pdf/STATUTE-87-Pg884.pdf
| cite public law   = 93–205
| cite statutes at large = {{usstat|87|884}}
| acts amended    =
| acts repealed   =
| title amended   = [[Title 16 of the United States Code|16 U.S.C.: Conservation]]
| sections created = {{Usc-title-chap|16|35}} §§ 1531-1544.
| sections amended =
| leghisturl= http://thomas.loc.gov/cgi-bin/bdquery/z?d093:SN01983:@@@S
| introducedin= Senate
| introducedbill= {{USBill|93|S.|1983}}
| introducedby= [[Harrison A. Williams]] ([[Democratic Party (United States)|D]]–[[New Jersey|NJ]])
| introduceddate= June 12, 1973
| committees= [[United States Senate Committee on Commerce|Senate Commerce Committee]]
| passedbody1= Senate
| passeddate1= July 24, 1973
| passedvote1= [https://www.govtrack.us/congress/votes/93-1973/s313 92–0]
| passedbody2= House
| passeddate2= September 18, 1973
| passedvote2= [https://www.govtrack.us/congress/votes/93-1973/h339 390–12], in lieu of {{USBill|93|H.R.|37}}
| conferencedate= December 19, 1973
| passedbody3= Senate
| passeddate3= December 19, 1973
| passedvote3= agreed
| passedbody4= House
| passeddate4= December 20, 1973
| passedvote4= [https://www.govtrack.us/congress/votes/93-1973/h531 355–4]
| signedpresident= [[Richard Nixon]]
| signeddate= December 28, 1973
| amendments= {{unbulleted list|{{USStatute|95|632|92|3751|1978|11|10}}|{{USStatute|96|159|93|1225|1979|12|28}}|{{USStatute|97|304|96|1411|1982|10|13}}}}
| SCOTUS cases= {{Collapsible list|framestyle=line-height:1em|''[[Tennessee Valley Authority v. Hill]]'', {{ussc|437|153|1978}}|''[[Lujan v. Defenders of Wildlife]]'', {{ussc|504|555|1992}}|''[[Babbitt v. Sweet Home Chapter of Communities for a Great Oregon]]'', {{ussc|515|687|1995}}|''[[Bennett v. Spear]]'', {{ussc|520|154|1997}}|''[[National Ass'n of Home Builders v. Defenders of Wildlife]]'', {{ussc|551|644|2007}}|''[[Weyerhaeuser Company v. United States Fish and Wildlife Service]]'', {{ussc|docket=17-71|volume=586|year=2018}}|''[[United States Fish and Wildlife Service v. Sierra Club]]'', {{ussc|docket=19-547|volume=592|year=2021}}}}
}}

The '''Endangered Species Act of 1973''' ('''ESA''' or "The Act"; 16 U.S.C. § 1531 [[et seq.]]) is the primary law in the United States for protecting and conserving imperiled species. Designed to protect critically imperiled species from [[extinction]] as a "consequence of economic growth and development untempered by adequate concern and conservation", the ESA was signed into law by President [[Presidency of Richard Nixon#Environmental policy|Richard Nixon]] on December 28, 1973. The [[Supreme Court of the United States]] described it as "the most comprehensive legislation for the preservation of endangered species enacted by any nation".<ref name=":0">[https://law.resource.org/pub/us/case/reporter/US/437/437.US.153.76-1701.html "Tennessee Valley Authority v. Hill"], 437 U.S. 153 (1978) Retrieved 24 November 2015. {{US government sources}}</ref> The purposes of the ESA are two-fold: to prevent extinction and to recover species to the point where the law's protections are not needed. It therefore "protect[s] species and the ecosystems upon which they depend" through different mechanisms. For example, section 4 requires the agencies overseeing the Act to designate imperiled species as threatened or endangered. Section 9 prohibits unlawful 'take,' of such species, which means to "harass, harm, hunt..." Section 7 directs federal agencies to use their authorities to help conserve listed species. The Act also serves as the enacting legislation to carry out the provisions outlined in The [[Convention on International Trade in Endangered Species of Wild Fauna and Flora]] (CITES).<ref>U.S. Fish and Wildlife Service. [http://www.fws.gov/international/cites/ "International Affairs: CITES"] Retrieved on 29 January 2020.{{USFWS}}</ref> 

In [[Tennessee Valley Authority v. Hill]], the Supreme Court found that "the plain intent of Congress in enacting" the ESA "was to halt and reverse the trend toward species extinction, whatever the cost."<ref name=":0" /> The Act is administered by two federal agencies, the [[United States Fish and Wildlife Service]] (FWS) and the [[National Marine Fisheries Service]] (NMFS).<ref>[https://www.epa.gov/laws-regulations/summary-endangered-species-act Summary of the Endangered Species Act | Laws & Regulations | US EPA<!-- Bot generated title -->]</ref> FWS and NMFS have been delegated by the Act with the authority to promulgate any rules and guidelines within the [[Code of Federal Regulations|Code of Federal Regulations (CFR)]] to implement its provisions.

Because the 50th anniversary of the Act was December 2023, a major new section was added to this page around that time. "Challenges and Controversies" entails 24 titled subsections by which readers can draw their own conclusions as to the practical outcomes of this statute. 

==History==
Calls for wildlife conservation in the United States increased in the early 1900s because of the visible decline of several species.<ref name="ESA-2016">{{cite journal | display-authors=etal | last1=Evans |first1=Daniel M |title=Species Recovery in the United States: Increasing the Effectiveness of the Endangered Species Act |journal=Issues in Ecology |date=Winter 2016 |volume=20 |url=https://www.esa.org/esa/wp-content/uploads/2016/01/Issue20.pdf}}</ref> One example was the near-extinction of the [[bison]], which used to number in the tens of millions. Similarly, the extinction of the [[passenger pigeon]], which numbered in the billions, caused concern.<ref>{{Cite book|last=Dunlap |first=Thomas R.|year=1988|title=Saving America's wildlife|publisher=Princeton University Press|isbn=0-691-04750-2|url-access=registration |url=https://archive.org/details/savingamericaswi00dunl}}</ref> The [[whooping crane]] also received widespread attention as unregulated hunting and habitat loss contributed to a steady decline in its population. By 1890, it had disappeared from its primary breeding range in the north central United States.<ref>{{Cite web|url=https://nature.ca/notebooks/english/whocrane.htm |title=Whooping Crane: Natural History Notebooks |website=nature.ca |access-date=2020-01-29}}</ref> Scientists of the day played a prominent role in raising public awareness about the losses. For example, [[George Bird Grinnell]] highlighted bison decline by writing articles in ''Forest and Stream''.<ref>{{Cite book |title=Last stand: George Bird Grinnell, the battle to save the buffalo, and the birth of the new West|last=Punke |first=Michael|year=2007|publisher=Smithsonian Books/Collins |isbn=978-0-06-089782-6|location=New York|oclc=78072713}}</ref>

To address these concerns, Congress enacted the [[Lacey Act of 1900]]. The Lacey Act was the first federal law that regulated commercial animal markets.<ref>Kristina Alexander, ''The Lacey Act: protecting the environment by restricting trade'' (Congressional Research Service, 2014) [https://nationalaglawcenter.org/wp-content/uploads/assets/crs/R42067.pdf online].</ref> It also prohibited the sale of illegally killed animals between states ([[Commerce Clause|interstate commerce]]). Other legislation followed, including the [[Migratory Bird Conservation Act]], a 1937 treaty prohibiting the hunting of right and gray whales, and the [[Bald and Golden Eagle Protection Act]] of 1940.<ref>Robert S.  Anderson, "The Lacey Act: America's premier weapon in the fight against unlawful wildlife trafficking." ''Public Land Law Review'' 16 (1995): 27+ [https://scholarship.law.umt.edu/cgi/viewcontent.cgi?article=1199&context=plrlr online].</ref>

=== Endangered Species Preservation Act of 1966 ===

Despite these treaties and protections, many populations still continued to decline. By 1941, only an estimated 16 whooping cranes remained in the wild.<ref>{{Cite web |title=Whooping Crane {{!}} National Geographic|date=2010-11-11|website=Animals |url=https://www.nationalgeographic.com/animals/birds/w/whooping-crane/|access-date=2020-01-29|url-status=dead|archive-url=https://web.archive.org/web/20170525162440/http://www.nationalgeographic.com/animals/birds/w/whooping-crane/|archive-date=May 25, 2017|language=en}}</ref> By 1963, the [[bald eagle]], the U.S. national symbol, was in danger of extinction. Only around 487 nesting pairs remained.<ref>{{Cite web |url=https://www.fws.gov/midwest/eagle/Nhistory/biologue.html |title=Bald Eagle Fact Sheet|website=www.fws.gov|access-date=2020-01-29}}</ref> Loss of habitat, shooting, and [[DDT]] poisoning contributed to its decline.

The U.S. Fish and Wildlife Service tried to prevent the extinction of these species. Yet, it lacked the necessary Congressional authority and funding.<ref name="Bean 369–391">{{Cite journal |last=Bean |first=Michael J. |date=April 2009 |title=The Endangered Species Act: Science, Policy, and Politics |journal=Annals of the New York Academy of Sciences |language=en |volume=1162 |issue=1 |pages=369–391 |doi=10.1111/j.1749-6632.2009.04150.x |pmid=19432657 |s2cid=40956038}}</ref> In response to this need, Congress passed the Endangered Species Preservation Act ({{uspl|89|669}}) on October 15, 1966. The Act initiated a program to conserve, protect, and restore select species of native fish and wildlife.<ref>{{Cite web |url=https://www.govinfo.gov/content/pkg/STATUTE-80/pdf/STATUTE-80-Pg926.pdf#page=1 |title=PUBLIC LAW 89-669-OCT. 15, 1966}}</ref> As a part of this program, Congress authorized the Secretary of the Interior to acquire land or interests in land that would further the conservation of these species.{{sfnp|Goble|Scott|Davis|2006|p=45}}

The Department of Interior issued the first list of endangered species in March 1967.<ref name="1967-list">{{cite web |title=First Species Listed as Endangered (1967) |url=https://www.fws.gov/program/endangered-species/first-endangered-species.html |website=fws.gov |publisher=U.S. Fish and Wildlife Service |access-date=21 July 2024}}</ref> It included 14 mammals, 36 birds, 6 reptiles, 6 amphibians, and 22 fish.<ref>{{cite news|title=78 Species Listed Near Extinction; Udall Issues Inventory With Appeal to Save Them|author=AP|date=March 12, 1967|newspaper=New York Times}}</ref> A few notable species listed in 1967 were the [[grizzly bear]], [[American alligator]], [[West Indian manatee|Florida manatee]], and [[bald eagle]]. The list included only vertebrates at the time because of the Department of Interior's limited definition of "fish and wildlife."{{sfnp|Goble|Scott|Davis|2006|p=45}}

The Endangered Species Preservation Act was repealed by the Endangered Species Act of 1973.

=== Endangered Species Conservation Act of 1969 ===
{{Main|Endangered Species Act of 1969|l1=Endangered Species Conservation Act of 1969}}

The Endangered Species Conservation Act of 1969 ({{uspl|91|135}}) amended the Endangered Species Preservation Act of 1966. It established a list of species in danger of worldwide extinction. It also expanded protections for species covered in 1966 and added to the list of protected species. While the 1966 Act only applied to 'game' and wild birds, the 1969 Act also protected [[Mollusca|mollusks]] and [[crustacean]]s. Punishments for poaching or unlawful importation or sale of these species were also increased. Any violation could result in a $10,000 fine or up to one year of jail time.<ref>{{Cite web |url=https://www.fws.gov/mountain-prairie/pressrel/peregrine.htm |title=The Role of the Endangered Species Act and U.S. Fish and Wildlife Service in the Recovery of the Peregrine Falcon |website=www.fws.gov|access-date=2020-01-29}}</ref>

Notably, the Act called for an international convention or treaty to conserve endangered species.<ref>{{Cite web |url=https://www.govinfo.gov/content/pkg/STATUTE-83/pdf/STATUTE-83-Pg275.pdf#page=7|title=Public Law 91-135-Dec. 5, 1969}}</ref> A 1963 [[International Union for Conservation of Nature|IUCN]] resolution called for a similar international convention.<ref>{{Cite web |url=https://portals.iucn.org/library/node/43471|title=GA 1963 RES 005 {{!}} IUCN Library System|website=portals.iucn.org|access-date=2020-01-29}}</ref> In February 1973 a meeting in Washington, D.C. was convened. This meeting produced the comprehensive multilateral treaty known as [[CITES]], or the Convention on International Trade of Endangered Species of Wild Fauna and Flora.<ref>{{Cite web |url=https://www.cites.org/eng/disc/what.php|title=What is CITES? {{!}} CITES|website=www.cites.org|access-date=2020-01-29}}</ref>

The Endangered Species Conservation Act of 1969 provided a template for the Endangered Species Act of 1973 by using the term "based on the best scientific and commercial data." This standard is used as a guideline to determine if a species is in danger of extinction.

=== Passage of the 1973 Act ===

In 1972, President Nixon declared current species conservation efforts to be inadequate.<ref>{{Cite web|url=https://www.fws.gov/endangered/laws-policies/history-interview.html|title=Endangered Species Program {{!}} Laws & Policies {{!}} Endangered Species Act {{!}} A History of the Endangered Species Act of 1973 {{!}} The Endangered Species Act at 35|website=www.fws.gov|url-status=dead|archive-url=https://web.archive.org/web/20131017134503/https://www.fws.gov/endangered/laws-policies/history-interview.html|archive-date=17 October 2013 |last=Hall|first=Dale|interviewer1=Mike Bender|interviewer2=Ann Haas|interviewer3=Kelly Geer|interviewer4=Nan Rollison|date=15 July 2013}}</ref> He called on the [[93rd United States Congress]] to pass comprehensive endangered species legislation. Congress responded with a completely rewritten law, the Endangered Species Act of 1973, which was signed by Nixon on December 28, 1973 ({{USPL|93|205}}).

It was written by a team of lawyers and scientists, including Dr. [[Russell E. Train]], the first appointed head of the [[Council on Environmental Quality]] (CEQ), an outgrowth of the [[National Environmental Policy Act]] (NEPA) of 1969.<ref name=EPA>{{cite web |title=Environmental Protection Agency |url-status=dead |url=http://www.epa.gov/history/admin/agency/train.htm |archive-url=https://web.archive.org/web/20110203080442/http://www.epa.gov/history/admin/agency/train.htm |archive-date=2011-02-03 }}</ref><ref name="Distillations">{{cite journal|last1=Rinde|first1=Meir |title=Richard Nixon and the Rise of American Environmentalism |journal=Distillations |date=2017|volume=3|issue=1|pages=16–29 |url=https://www.sciencehistory.org/distillations/magazine/richard-nixon-and-the-rise-of-american-environmentalism|access-date=4 April 2018}}</ref> Dr. Train was assisted by a core group of staffers, including Dr. Earl Baysinger at EPA, Dick Gutting, and Dr. Gerard A. "Jerry" Bertrand, a PhD marine biologist by training (Oregon State University, 1969), who had transferred from his post as the senior scientific adviser to the Commandant of the U.S. Army Corps of Engineers, office of the Commandant of the Corps., to join the newly formed White House CEQ. The staff, under Dr. Train's leadership, incorporated dozens of new principles and ideas into the landmark legislation but also incorporated previous laws, as was desired by Congressman [[John Dingell]] (D-Michigan) when he first proposed the idea of an "Endangered Species Act." Among the staff, Dr. Bertrand is credited with having written major parts of the Act, including the infamous "takings" clause, {{usc|16|1538}}. "We didn't know what we couldn't do," Dr. Bertrand has said about the Act. "We were doing what we thought was scientifically valid and right for the environment."<ref>Speech by Dr. Bertrand to the [https://law.lclark.edu/ Lewis & Clark School of Law], on the 50th Anniversary of the Act, August 2013</ref>

A law review article published in 2010 reflected on how this now-controversial statute had moved through Congressional passage with so little conflict and need for bargaining:<blockquote>
Essentially no skepticism was expressed about either the law‘s conservation goals or its regulatory strategies. There was no organized interest group opposition. No one voted against the Senate bill. Twelve members of the House of Representatives initially voted no, but none of them spoke against the bill, and only four persisted in their opposition after the bill came back from the conference committee.<ref name="Doremus-2010">{{cite journal |last1=Doremus |first1=Holly |title=The Endangered Species Act: Static Law Meets Dynamic World|url=https://escholarship.org/content/qt953146wf/qt953146wf.pdf |journal=Washington University Journal of Law & Policy |date=Winter 2010 |volume=32 |pages=175–235}}</ref></blockquote>

== New Features of the 1973 Act ==
[[File:Seal of the United States Fish and Wildlife Service.svg|thumb|Seal of the United States Fish and Wildlife Service|upright=.50]]
[[File:NOAA Fisheries logo vertical.png|thumb|NOAA Fisheries logo|upright=.50]]
The Endangered Species Act is administered by two federal agencies, the [[United States Fish and Wildlife Service]] (FWS) and the [[National Marine Fisheries Service]] (NMFS). NMFS handles [[Marine biology|marine species]], and the FWS has responsibility over [[freshwater fish]] and all other species. Species that occur in both habitats (e.g. [[sea turtle]]s and [[Atlantic sturgeon]]) are jointly managed.

As amended, it consists of 18 sections.<ref name="FWS-18-sections">{{cite web |title=Endangered Species Act |url=https://www.fws.gov/node/266482 |publisher=U.S. Fish and Wildlife Service |access-date=5 July 2024}}</ref><ref name="esa-pdf">{{cite web |title=Endangered Species Act as amended through the 108th Congress |url=https://www.fws.gov/sites/default/files/documents/endangered-species-act-accessible_7.pdf |publisher=U.S. Fish and Wildlife Service |access-date=8 July 2024}}</ref> Key legal requirements include:

* The federal government must determine whether species are endangered or threatened. If so, they must list the species for protection under the ESA (Section 4).
* If determinable, [[critical habitat]] must be designated for listed species (Section 4).
* Absent certain limited situations (Section 10), it is illegal to "take" an endangered species (Section 9). "Take" can mean kill, harm, or harass (Section 3).
* Federal agencies will use their authorities to conserve endangered species and threatened species (Section 7).
* Federal agencies cannot jeopardize listed species' existence or destroy [[critical habitat]] (Section 7).
* Any import, export, interstate, and foreign commerce of listed species is generally prohibited (Section 9).
* Endangered fish or wildlife cannot be taken without a take permit. This also applies to certain threatened animals with section 4(d) rules (Section 10).

The 1973 Act is considered a landmark conservation law.<ref name=ESA-2016 /> Academic researchers have referred to it as "one of the nation's most significant environmental laws."<ref name="Bean 369–391"/> It has also been called "one of the most powerful environmental statutes in the U.S. and one of the world's strongest species protection laws."<ref>{{Cite web |url=https://www.nationalgeographic.com/news/2017/05/endangered_speciesact/|archive-url=https://web.archive.org/web/20190814141205/https://www.nationalgeographic.com/news/2017/05/endangered_speciesact/|url-status=dead|archive-date=August 14, 2019|title=Inside the Effort to Kill Protections for Endangered Animals|date=2019-08-12|website=National Geographic News |language=en|access-date=2020-01-29}}</ref> The Act itself has been amended four times: 1978, 1982, 1988,<ref name="Bean 369–391" /> and 1992.<ref name="AP-aug-2023">{{cite news |last1=Flesher |first1=John |title=After helping prevent extinctions for 50 years, the Endangered Species Act itself may be in peril |url=https://apnews.com/article/endangered-species-eagle-wolf-biden-trump-12d1a8ef6d453ad8f6d4c2b6edb567e8 |work=Associated Press News |date=4 August 2023}}</ref> Formal regulations published in the ''[[Federal Register]]'' that specify how the Act will be implemented have also changed through time.<ref name="Bean 369–391" /> In recent years, U.S. presidential elections that greatly shift environmental priorities have culminated in regulatory shifts in endangered species management back and forth.<ref name="Cronkite News">{{cite news |title=House panel OKs bill to undo Trump changes to Endangered Species Act |url=https://cronkitenews.azpbs.org/2020/01/29/house-panel-oks-bill-to-undo-trump-changes-to-endangered-species-act/ |work=Cronkite News |access-date=February 14, 2020}}</ref><ref name="Biden-2023">{{cite news |last1=Friedman |first1=Lisa |last2=Einhorn |first2=Catrin |title=Biden Administration Moves to Restore Endangered Species Protections |work=The New York Times |url=https://www.nytimes.com/2023/06/21/climate/biden-endangered-species-act.html |agency=New York Times |date=21 June 2023}}</ref> Congressional elections also affect implementation of the Act via expansions or contractions in annual funding decisions for the agencies.<ref name="AP-aug-2023" />

=== Plants become eligible for listing ===
A distinction of the 1973 Act is that, unlike the previous legislation, plants became eligible for listing. Section 12 directed the [[Smithsonian Institution]] "to review (1) species of plants which are now or may become endangered or threatened and (2) methods of adequately conserving such species, and to report to Congress, within one year after the date of the enactment of this Act, the results of such review including recommendations for new legislation or the amendment of existing legislation."<ref>{{cite web |title=Section 12. Endangered Plants |url=https://www.fws.gov/laws/endangered-species-act/section-12 |publisher=U.S. Fish and Wildlife Service |access-date=5 July 2024}}</ref> As a result, the first plant listings occurred in 1977.<ref name="plos-2023">{{cite journal |display-authors=etal | last1=Wrobleski |first1=Amy |title=The impact of climate change on endangered plants and lichen |journal=PLOS Climate |date=26 July 2023 | volume=2 | issue=7 | pages=e0000225 |doi=10.1371/journal.pclm.0000225 | doi-access=free }}</ref> Fifty years later, significantly more species of plants were listed in the highest category (endangered) than animals: 766 plants and 486 animals.<ref>{{cite news |last1=Pulver |first1=Dinah Voyles |title=50 years ago, Democrats and Republicans agreed to protect endangered species |url=https://www.usatoday.com/story/news/nation/2023/12/28/endangered-species-act-turns-50-landmark-law-reaches-key-anniversary/71987562007/ |agency=USA Today |date=28 December 2023}}</ref>

[[File:Torreya Guardians homepage image.jpg|thumb|[[Torreya Guardians]] homepage image, with [[Torreya taxifolia|Florida torreya tree]] photo]]
Historians attribute this new-found concern for imperiled plants to ongoing global treaty negotiations (especially in 1972 and 1973) toward what would eventually be adopted in 1975<ref name=campbell>{{cite journal |last1=Campbell |first1=Faith |title=Legal Protection of Plants in the United States |journal=Pace Environmental Law Review |date=September 1988 |volume=6 |issue=1 |pages=1–22 |doi=10.58948/0738-6206.1382 |s2cid=126724280 |url=https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1382&context=pelr |access-date=29 November 2022|doi-access=free }}</ref> under the title, Convention on International Trade in Endangered Species of Wild Fauna and Flora ([[CITES]]). Prior to this time, attention to the conservation needs of native plants had been stalled by complications that do not pertain to animals. How to adequately distinguish plants illegally collected in the wild from plants propagated from seeds or cuttings taken from horticultural specimens was among the points of contention.<ref name=campbell /> Ultimately, federal authority over enforcement of endangered plant protections has centered on regulation of [[commerce clause|interstate commerce]] of such plants.<ref name=shirey>{{cite journal | display-authors=etal |last1=Shirey |first1=Patrick D |title=MINI REVIEW: Commercial trade of federally listed threatened and endangered plants in the United States |journal=Conservation Letters |date=April 2013 |volume=6 |issue=5 |pages=300–316 |doi=10.1111/conl.12031 |s2cid=83087358 |url=https://conbio.onlinelibrary.wiley.com/doi/full/10.1111/conl.12031}}</ref> This legal distinction for plants became controversial in practice when a group of citizens, [[Torreya Guardians]], chose to help an endangered [[glacial relict]] plant, [[Torreya taxifolia|Florida Torreya]], move to cooler poleward climates before conservation professionals were ready to begin their own experimentation with [[assisted migration]] of endangered species.<ref name="theconversation.com">{{cite journal |last1=Dalrymple |first1=Sarah Elizabeth |title=Why climate change is forcing conservationists to be more ambitious: by moving threatened species to pastures new |journal=The Conversation |date=16 July 2021 |url=https://theconversation.com/why-climate-change-is-forcing-conservationists-to-be-more-ambitious-by-moving-threatened-species-to-pastures-new-163749 |access-date=29 November 2022}}</ref> Because movement of seeds and seedlings by this group was noncommercial and based on horticulturally produced specimens, there was no legal apparatus to halt their actions.<ref name=shirey />

Another distinction is that, when an animal is listed as endangered or threatened, "taking" of that animal (by capture or killing) becomes a violation of the Act. For plants, "taking" occurs only within the boundaries of federal properties.<ref name="plos-2023" /> Even so, states may choose to legislate and enforce prohibitions even on private lands,<ref name=ESA-2016 /><ref name=maurer-2018 /> as occurred in 2023 when the State of California passed a law that prevented killing or removal of the western variety of [[Yucca brevifolia|Joshua tree]] wherever it was found. [[Climate change]] risk was a key factor in the determination.<ref name="Guardian-joshua">{{cite news |last1=Singh |first1=Maanvi |title=Joshua Trees win long term protection in environmental victory |url=https://www.theguardian.com/us-news/2023/jun/28/california-protect-joshua-trees-conservation |agency=The Guardian |date=28 June 2023}}</ref>

=== Two categories for listing species ===

[[File:Manatee with calf.PD - colour corrected.jpg|thumb|The [[West Indian Manatee]] was downlisted to threatened in 2017.<ref name=CSM>{{cite news |last1=Riley |first1=Patrick |title=Manatees get 'downlisted' from 'endangered' to 'threatened.' Why are environmentalists angry? |url=https://www.csmonitor.com/Science/2017/0331/Manatees-get-downlisted-from-endangered-to-threatened.-Why-are-environmentalists-angry#:~:text=Manatees%20get%20'downlisted'%20from%20'endangered'%20to%20'threatened.%20'%20Why%20are%20environmentalists%20angry?%20%2D%20CSMonitor.com. |agency=Christian Science Monitor |date=31 March 2017}}</ref>]]
The Act distinguished two grades of species for listing: "'''endangered'''" and a lesser category called "'''threatened'''". An endangered species is in danger of extinction now; a threatened species faces such a threat in "the foreseeable future."<ref name=ESA-2016 /><ref name="Colon-2021">{{cite journal |last1=Colon Jr |first1=Manuel L |title=Could Changes to the Endangered Species Act Actually Threaten Species? |journal=Villanova Environmental Law Journal |date=2021 |volume=32 |pages=45–68 |url=https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1441&context=elj}}</ref> The aim for the lesser category is to enable protective actions by federal agencies at an earlier time, such that the causes of population decline might be corrected before emergency concerns develop.<ref name="Bean 369–391" /> Controversy also arises as to whether and what differences in recovery plan elements, and thus management policies and restrictions, should distinguish "threatened" from "endangered."<ref name="Bean 369–391" /><ref name="Biden-2023" /> Accordingly, when the [[West Indian Manatee]] (whose northward habitat extends into southern Florida) was downlisted in 2017, the U.S. Fish and Wildlife Service stated that "the downlisting will not diminish any existing federal protections."<ref name=CSM />

=== Five criteria for making listing decisions ===

The Act specifies the types of causes to be identified in species decline, any one of which might be severe enough to merit listing the species as threatened or endangered. Also known as the "five factors", the set of possible causes entail:<blockquote>

* the present or threatened destruction, modification, or curtailment of its habitat or range
* overutilization for commercial, recreational, scientific, or educational purposes
* disease or predation
* the inadequacy of existing regulatory mechanisms
* other natural or manmade factors affecting its survival<ref name="factors">{{cite web |title=Listing a Species as Threatened or Endangered: Section 4 of the Endangered Species Act |url=https://www.fws.gov/sites/default/files/documents/ESA-Section-4-Listing.pdf |publisher=U.S. Fish and Wildlife Service |access-date=5 July 2024}}</ref><ref name="section-4">{{cite web |title=Section 4. Determination of Endangered Species and Threatened Species |url=https://www.fws.gov/laws/endangered-species-act/section-4 |publisher=U.S. Fish and Wildlife Service}}</ref></blockquote>

=== Recovery plans must be made and published ===

A key provision of the 1973 Act was that "preventing extinction" would no longer be sufficient. Rather, "recovery" of listed species, such that "delisting" could become possible, was now a stated goal. "Recovery plans" were now to be developed and published by the two agencies in charge: the [[United States Fish and Wildlife Service]] and the [[National Marine Fisheries Service]].<ref name="Bean 369–391" /> In practice, recovery plans usually include population targets and "objective, measurable criteria" that would constitute adequate reduction of threats and provision of habitat protection" such that delisting (or down-listing from "endangered" to "threatened") would be warranted.<ref name="Bean 369–391" /> However, a substantial number of species listings have been followed by long delays in attaining recovery plans, followed by long delays in updating such plans.<ref name="CL-2018">{{cite journal |last1=Malcom |first1=Jacob W | last2=Li |first2=Ya-Wei |title=Missing, delayed, and old: The status of ESA recovery plans |journal=Conservation Letters |date=9 August 2018 |volume=11 |issue=6 |doi=10.1111/conl.12601 |doi-access=free |bibcode=2018ConL...11E2601M }}</ref>

=== "Critical habitat" may be designated ===
{{further|Critical habitat}}

[[File:Rusty Patched Bumble Bee (28971822177).jpg|thumb|[[Bombus affinis |Rusty patched Bumblebee]]]]
The 1973 Act introduced the concept of what is now called "critical habitat" in only one brief passage. Section 7 required federal agencies to ensure that actions they authorized, funded, or carried out would not result in "the destruction or modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical."<ref name="Bean 369–391" /> When the Act was amended in 1978, "critical habitat" was given a definition and basic terms for how it would be determined and used.<ref name="Bean 369–391" /> As will be seen in the "Controversies" section, this provision is sometimes challenging to implement for both scientific and political reasons, as when more than a million acres of critical habitat was proposed in 2024 for the [[Bombus affinis | rusty patched bumblebee]].<ref name="rusty-2024">{{cite web |title=Endangered and Threatened Species: Designation of Critical Habitat for the Rusty Patched Bumble Bee |url=https://www.regulations.gov/document/FWS-R3-ES-2024-0132-0001 |website=regulations.gov |publisher=U.S. Fish and Wildlife Service |access-date=30 November 2024}}</ref><ref>{{cite web |last1=Center for Biological Diversity |title=Agreement Ensures Swift Consideration of Habitat Protection for Endangered Rusty Patched Bumblebees (2024) |url=https://biologicaldiversity.org/w/news/press-releases/agreement-ensures-swift-consideration-of-habitat-protection-for-endangered-rusty-patched-bumblebees-2024-02-08/ |website=biologicaldiversity.org}}</ref>

=== Citizens can petition for listing species ===

A review of the Act published in 2009 recounted the unavoidable problems that arose from granting opportunities even for citizens to submit petitions for species listing:

<blockquote>Soon after the Endangered Species Act was enacted, Congress recognized that at any given time there were likely to be more species potentially eligible for listing than the Service could address through the rule-making process. As a result, Congress in 1979 directed the Service to develop a prioritization system that would enable it to determine which of the potentially eligible species should be considered first. The Service responded with listing priority guidance that established a hierarchy of priorities based first on the magnitude of threat, then upon its imminence, and finally upon taxonomic distinctiveness (with monotypic genera ranked ahead of other species, and full species ranked ahead of subspecies).<ref name="Bean 369–391" />

</blockquote>

Requirements that listing decisions be made based on scientific evidence and considerations, coupled with an inability of the agencies to expand and contract staffing based on shifts in the volume of outstanding petitions, induced Congress in 1982 to amend the Act by establishing deadlines for agency decisions.<ref name="Bean 369–391" /> As of 2023, those deadlines still nominally apply, but in practice it is rare for a petitioner to approach the judicial system to force a decision before the agency is able to finish the job on its own timetable.<ref name="Bean 369–391" />

== Challenges and Controversies ==
The Endangered Species Act of 1973 (ESA) is regarded as "one of the most powerful and controversial environmental laws in the United States."<ref name="Benson-2012">{{cite journal |last1=Benson |first1=Melinda Harm |title=Intelligent Tinkering: the Endangered Species Act and Resilience |journal=Ecology and Society |date=December 2012 |volume=17 |issue=4 |doi=10.5751/ES-05116-170428 |jstor=26269216 |url=https://www.jstor.org/stable/26269216|hdl=10535/8683 |hdl-access=free }}</ref>
In 2023, with the Act achieving its 50th anniversary, journalists were prompted to report on the Act's outcomes and controversies. Congressional overturning of several recent listings and ability to hamper implementation by restricting agency funding were among the points mentioned by some media.<ref>{{cite news |last1=PBS News Hour |title=After helping prevent extinctions for 50 years, the Endangered Species Act itself may be at risk |url=https://www.pbs.org/newshour/politics/after-helping-prevent-extinctions-for-50-years-the-endangered-species-act-itself-may-be-at-risk |agency=PBS |date=4 August 2023}}</ref> In contrast, a foundation associated with the Western Caucus of U.S. senators and representatives issued a 116-page report in 2023 titled "The Endangered Species Act at 50", with a subtitle expressing its primary criticism that "a record of falsified recoveries underscores a lack of scientific integrity in the federal program."<ref name=gordon-2023 /> Among the faculty expressing views in a University of Pennsylvania report, one drew attention to an underlying shift in national worldviews during the past half-century: The Act "reflects the confidence of mid-20th century liberal politics that any problem can be fixed with legislation based on scientific data," yet pragmatic solutions that require flexibility have been hindered and polarization has become intense.<ref name="penn-2023" /> An academic review paper in 2008 reported that the Act had become "a social, legal, and political battleground" and that "the scientific question of whether the ESA works effectively to protect species remains open."<ref name=schwartz-2008 /> Specific challenges and long-term controversies are summarized in this section.

=== Context of state-level endangered species programs ===

Because some of the challenges and controversies arising from implementation of the federal Act entail interactions with various state governmental priorities and programs, it is important to establish the background of state jurisdiction. To begin, elected officials at both federal and state levels sometimes escalate calls for outright devolving endangered species management to the states.<ref name=camacho-2017>{{cite journal |display-authors=etal |last1=Camacho |first1=Alejandro E | title=Assessing State Laws and Resources for Endangered Species Protection |journal=Environmental Law Report News and Analysis |date=October 2017 |url=https://www.law.uci.edu/centers/cleanr/images/cleanr-esa-report.pdf}}</ref> An overall federal policy for collaboration, however, is not achievable because the kinds and scale of species-protective laws, regulations, and implementation priorities vary enormously among the states.<ref name=camacho-2017 /><ref name=maurer-2018>{{cite journal |display-authors=etal |last1=Fischman |first1=Robert L |title=State Imperiled Species Legislation |journal=Maurer School of Law |date=2018 |volume=48 |pages=81–124 |url=https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=3664&context=facpub}}</ref>

[[File:Joshua tree (Yucca brevifolia) growing in Lost Horse Valley (31979642502).jpg|thumb|''[[Yucca brevifolia]]'' in [[Joshua Tree National Park]]|upright=0.75]]
Examples of state-level diversity are that (1) only 18 of the 50 states automatically include in their own lists all animals and plants listed by the federal Act that are present in their state; (2) 17 states offer no protection for any plants; and (3) [[West Virginia]] and [[Wyoming]] have no statutory support for protecting even animals threatened with extinction. As well, only [[California]] and [[Oregon]] authorize citizens to petition for state-level listings, and distinctions prevail in matters concerning critical habitat designations and the degree to which species protections can impinge on land use choices by private owners.<ref name=camacho-2017 />

Nothing prevents a state from issuing stricter regulations for a federal listed species within its boundaries. A 2018 survey of state laws found that [[Illinois]], [[Massachusetts]], and [[Wisconsin]] "even go beyond the ESA in their protective measures."<ref name=maurer-2018 /> As well, nothing prevents a state from listing a species that the U.S. Fish and Wildlife Service formally decides against. An example of federal-state tensions culminated in [[California]] in July 2023. It was then that California enacted its own "Western Joshua Tree Conservation Act."<ref name="Guardian-joshua" /> This halted all sales of the western species of ''[[Yucca brevifolia]]'', while instituting a permit process for any proposed removal, harm, or trimming of the species on private lands.<ref name="joshua-state-2023">{{cite web |title=Western Joshua Tree Conservation Act |url=https://wildlife.ca.gov/Conservation/Environmental-Review/WJT/WJTCA#:~:text=The%20Western%20Joshua%20Tree%20Conservation,California%20unless%20authorized%20by%20CDFW. |publisher=California Department of Fish and Wildlife |access-date=1 December 2024}}</ref> The legislature itself chose to pass this law after the federal agency had formally decided against listing on two occasions: August 2019 and March 2023. The second decision had been forced by a 2021 court remand of the 2019 decision,<ref name="Miller-2023">{{cite web |last1=Miller |first1=David |title=U.S. Fish and Wildlife Service Again Finds Listing of Joshua Trees Not Warranted (March 2023) |url=https://www.endangeredspecieslawandpolicy.com/u-s-fish-and-wildlife-service-again-finds-listing-of-joshua-trees-not-warranted |website=Endangered Species Land and Policy |publisher=Nossaman |access-date=1 December 2024}}</ref><ref name="fws-joshua-2023">{{cite web |title=U.S. Fish and Wildlife Service Species Assessment and Listing Priority Assignment Form: Joshua Tree (2023) |url=https://www.fws.gov/sites/default/files/documents/20230209a%20Joshua%20Tree%20Remand%20SAF.pdf |website=fws.gov |publisher=U.S. Fish and Wildlife Service}}</ref><ref name="CDFW-2024-draft" /> and was based on a "Species Status Assessment Report" (173 pages) that had been published by the agency the prior month.<ref name="ECOS-2023-Joshua-Tree">{{cite web |last1=U.S. Fish and Wildlife Service |title=Species Status Assessment Report for Joshua Trees (February 2023) |url=https://iris.fws.gov/APPS/ServCat/DownloadFile/227981 |website=ECOS Environmental Conservation Online System |access-date=17 January 2025}}</ref> 

An important distinction of California's 2023 Joshua Tree statute is that it did not confer even state-level listing of this plant as threatened or endangered. Instead, a highly collaborative "Western Joshua Tree Conservation Plan" would be established and implemented (the draft was published December 2024). This would pre-empt the need for California's state-level Fish and Game Commission to decide upon an already pending listing petition in accordance with the [[California Endangered Species Act]] (CESA). The draft plan states "The Conservation Plan identifies management actions that are intended to conserve western Joshua tree and its habitat such that listing under CESA will not be necessary."<ref name="CDFW-2024-draft">{{cite web |title=Western Joshua Tree Conservation Plan (draft of Dec 2024) |url=https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=227460&inline |publisher=California Department of Fish and Wildlife |access-date=5 December 2024}}</ref> 

A 2018 research law paper presented the importance of state-level jurisdiction and collaboration in this way:<blockquote>
The Endangered Species Act (ESA) may well be the most contentious of the federal environmental statutes. It certainly is the most controversial of the conservation laws outside the purview of the [[United States Environmental Protection Agency]] (EPA). Yet, in congressional hearing after congressional hearing, one consensus rises above the rancor. All parties agree that states should play a greater role in preventing extinctions.<ref name=maurer-2018 /> 
</blockquote>

=== Executive, legislative, and judicial entanglements ===

[[File:Lesser Prairie Chicken Tympanuchus pallidicinctus distribution map 3.png|thumb|Lesser Prairie-chicken range]]
The petitioning, listing, and recovery planning stages prescribed in the Act have a history not only of contentiousness but of delays and setbacks owing to all three branches of the federal government sometimes becoming involved. This is especially the case when a federal listing would apply to an animal whose widely dispersed populations are declining over a vast landscape. Potential listing of the [[Lesser prairie-chicken]] is one such example.<ref name="Sorice-2021">{{cite journal | display-authors=etal |last1=Michael G |first1=Sorice |title=Exploring pathways to participation in an at-risk species conservation program |journal=Conservation Science and Practice |date=2021 |volume=3 |issue=9 |doi=10.1111/csp2.489 |bibcode=2021ConSP...3E.489S |url=https://conbio.onlinelibrary.wiley.com/doi/full/10.1111/csp2.489|hdl=10919/104718 |hdl-access=free }}</ref>

In 1995 the [[Center for Biological Diversity]], along with other conservation groups, petitioned for listing the lesser prairie-chicken. Agency recognition of the bird as a "candidate species" in 1998 deferred formal review while the agency worked its way through a backlog of previous petitions.<ref name="CBD-chicken-timeline">{{cite web |title=Action Timeline |url=https://biologicaldiversity.org/species/birds/lesser_prairie_chicken/action_timeline.html |website=Center for Biological Diversity |access-date=19 December 2024}}</ref> In an effort to achieve habitat improvement agreements with state and private landowners prior to (and possibly thereby precluding) a listing decision, a "voluntary prelisting conservation program" was launched in 2010 — not by the [[United States Department of Interior|U.S. Department of Interior]] (which includes the [[United States Fish and Wildlife Service|Fish and Wildlife Service]]), but by the [[United States Department of Agriculture|U.S. Department of Agriculture]]. This government-led project was unusual for an at-risk species in that it was launched with the expressed intent to promote the long-term sustainability of ranching operations while improving the population and occupied territory of the lesser prairie-chicken.<ref name="Sorice-2021" /> Conservation groups were keen on collaborative agreements not only for the wellbeing of this grassland bird but because of its ecological role as an [[umbrella species]]. Protecting the habitat needs of an umbrella species thereby also protects the habitat of dozens of other at-risk species.<ref name="Gary-2022">{{cite journal |display-authors=etal|last1=Gary |first1=Demi M |title=Species as conservation umbrellas: A case study with lesser prairie-chicken (Tympanuchus pallidicinctus) in the southern Great Plains of North America |journal=Global Ecology and Conservation |date=October 2022 |volume=38 |pages=e02256 |doi=10.1016/j.gecco.2022.e02256 |url=https://www.sciencedirect.com/science/article/pii/S235198942200258X|hdl=2346/90460 |hdl-access=free }}</ref>

That project did not advance well enough to preclude a listing petition in 2012, which resulted in a formal listing as "threatened" in 2014. This action was overturned by the courts in 2015, when it was challenged by business interests associated with oil and gas extraction.<ref name="Sorice-2021" /><ref name="CBD-chicken-timeline" /> Conservation groups resumed petitioning for listing of the species, with the executive branch repeatedly deferring a decision until 2022. It was then that a listing was finalized that classified the southern population as endangered and the northern population as threatened.<ref name="fws-chicken">{{cite web |title=Conserving the lesser prairie-chicken |url=https://www.fws.gov/lpc |website=U.S. Fish & Wildlife Service |date=January 23, 2023 |access-date=19 December 2024}}</ref> However, in 2023 Congress passed a bill that negated the listing, which was promptly vetoed by President Biden.<ref name="AP-2023-chickn">{{cite news |last1=Daly |first1=Matthew |title=Biden vetoes two Republican-led bills to undo protections for prairie chicken and northern bat |url=https://apnews.com/article/prairie-chicken-longeared-bat-endangered-species-f217ab4fb07951bc5613c1c7e486809a |work=Associated Press News |date=27 September 2023}}</ref>

In sum, from 1998 through 2023, two executive agencies of the federal government, a judicial action, and one attempt by Congress to overturn a listing decision all played a role in how the Endangered Species Act would be applied to the conservation of the Lesser prairie-chicken.

=== Citizen rights to petition and sue ===

Among the most polarizing provisions in the Act are the rights awarded to citizens (and their interest groups) to compel the agency to make listing decisions,<ref name="2012-Science" /> to specify "critical habitat",<ref name="2020-Adelman" /> and then to challenge in court such decisions. To begin, citizens are authorized to submit '''petitions''' proposing the listing of new species and to have those petitions officially responded to in accordance with deadlines set forth in the Act, as amended. Decisions to list (or not to list), along with the degree of protection granted (endangered or threatened), are then vulnerable to citizen litigation in federal courts.<ref name="2012-Science" />

In practice, agency decisions are sometimes challenged by biodiversity proponents who assert that "the best available science" would compel stronger listing protections.<ref name="2012-Science">{{cite journal |last1=Brosi |first1=Berry J |last2=Biber |first2=Eric G N |title=Citizen Involvement in the U.S. Endangered Species Act |journal=Science |date=17 August 2012 |volume=337 |issue=6096 |pages=802–803 |doi=10.1126/science.1220660 |pmid=22903999 |bibcode=2012Sci...337..802B |url=https://www.science.org/doi/abs/10.1126/science.1220660}}</ref> Decisions are also sometimes challenged by oppositional interest groups, notably by those grounded in business, extractive industry, or landowner rights perspectives.<ref name="2014-Wilde">{{cite journal |last1=Wilde |first1=Candee |title=Evaluating the Endangered Species Act: Trends in Mega-Petitions, Judicial Review, and Budget Constraints Reveal a Costly Dilemma for Species Conservation |journal=Villanova Environmental Law Journal |date=2014 |volume=25 |issue=1 |pages=307–349 |url=https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1353&context=elj}}</ref>

Citizen suits are not unique to the Endangered Species Act. A 2004 paper reported that "sixteen of the nation's principal federal environmental laws invite citizens to sue" to force agencies to perform mandatory duties.<ref name="2004-May">{{cite journal |last1=May |first1=James R |title=The Availability of State Environmental Citizen Suits |journal=Natural Resources & Environment |date=Spring 2004 |volume=18 |issue=4 |pages=53–56 |url=https://works.bepress.com/james_may/28/}}</ref> 
With respect to the ESA, however, critics of citizen rights to petition for listing have charged that "most citizen-initiated listings are driven primarily by political motives, particularly to block development projects."<ref name="2012-Science"/> Another argument is that "citizens initiate listing of more subspecies and populations (as opposed to full species), again out of political convenience."<ref name="2012-Science"/> Environmental interest groups are themselves sometimes divided on how the petitioning right should be used. Disagreement amplified when some environmental interest groups began submitting '''mega-petitions'''. A 2020 law review article stated that<blockquote>Tensions were magnified in 2007 when the environmental group [[WildEarth Guardians]] filed two "mega-petitions" that together proposed the listing of almost seven hundred species. The legal and political battles surrounding the mega-petitions hardened positions among stakeholders and politicians, including conflicting views within the environmental community.<ref name="2020-Adelman">{{cite journal |last1=Adelman |first1=David E |last2=Glicksman |first2=Robert L |title=Reevaluating Environmental Citizen Suits in Theory and Practice |journal=Colorado Law Review |date=2020 |volume=91 |pages=385–451 |url=https://ssrn.com/abstract=3547022}}</ref></blockquote>

[[File:Spea hammondii02.jpg|thumb|[[Spea hammondii|Western spadefoot toad]] was petitioned in 2012.|upright=.75]]
In 2011 a "'''mega-settlement'''" was achieved by the agency, WildEarth Guardians, and another biodiversity advocate group, [[Center for Biological Diversity]]. The settlement required FWS to take action on pending petitions for 757 species over the next seven years. In exchange, the two environmental groups agreed to limit lawsuits filed against the agency so that efforts could be focused on trying to accomplish the terms of the agreement.<ref name="house-2012">{{cite web |title=Center for Biological Diversity Disregards 2011 Settlement Agreement, Files Major Endangered Species Act Petition |url=https://naturalresources.house.gov/news/documentsingle.aspx?DocumentID=306049 |website=House Committee on Natural Resources | date=August 8, 2012 |publisher=house.gov |access-date=1 January 2025}}</ref> The following year, however, the Center for Biological Diversity submitted a single petition for listing a total of 53 amphibians and reptiles spanning a range of 45 states. The petition entailed 454 pages. The list of citizen petitioners included two well-known ecological scientists: [[Edward O. Wilson]] and [[Thomas Lovejoy]].<ref name="CBD-2012-amphib">{{cite web |title=Petition to List 53 Amphibians and Reptiles (July 2012) |url=https://www.biologicaldiversity.org/campaigns/amphibian_conservation/pdfs/Mega_herp_petition_7-9-2012.pdf |website=Center for Biological Diversity |access-date=1 January 2025}}</ref> This action provoked a written statement by the chair of the [[United States House Committee on Natural Resources]]:<blockquote>

While the recent petition does not directly violate the terms of the settlement, it does divert money and resources away from species recovery and disregards the spirit of the settlement by adding to the Agency’s backlog of petitions. Time and again, CBD and other similar groups have undermined the goal of the ESA by litigating, obstructing, and frustrating the FWS while racking up hundreds of thousands of dollars in taxpayer-funded attorney fees that continue to feed their litigious strategies to the detriment of species and people.<ref name="house-2012" /></blockquote> 

Arguments in favor of retaining citizen rights to petition for new listings include: "In many cases, outside groups could serve as the only impetus for protection of biologically threatened taxa that would otherwise be ignored because they conflict with development projects and related political pressures or because they are low-profile subspecies."<ref name="2012-Science"/> As well, thoroughly researched and data-rich petitions can actually assist agency staff in finding, evaluating, and including in the written decision "the best available science":<blockquote>

"Citizen actors—including numerous scientists—have specialized knowledge about biological taxa and geographic locales. FWS is limited in its budget, staff size, and scope and is unlikely to ever contain enough expertise to identify all species most worthy of protection among the more than 100,000 plant and animal species in the United States, not including subspecies."<ref name="2012-Science"/></blockquote> 

From a practical standpoint, citizen suits are unlikely to be launched frivolously because of the costs of attorney time, coupled with the need to obtain a win in order to benefit from court-ordered reimbursement of legal expenses.<ref name="CRS-2021">{{cite web |last1=Congressional Research Service |title=The Endangered Species Act: Overview and Implementation (March 2021 update) |url=https://crsreports.congress.gov/product/pdf/R/R46677 |website=crsreports.congress.gov}}</ref> Finally, "citizen suits provide important constraints on agency discretion when environmental statutory mandates and the ideological outlook of presidential administrations diverge."<ref name="2020-Adelman" />

===Incentives for stopping development===

Controversy sometimes roils when the timing of a petition to list a new species overlaps with plans for or initiation of a development project that could be impeded by such a listing. A news editorial marking the 50th anniversary of the Act suggested that "the ESA became the weapon of choice for environmental groups seeking to stop projects or tear down others. Lawsuits by the score have been filed over projects large and small, setting off ill feelings toward environmental groups."<ref name="capital-press" />

=== Economic consequences and perverse incentives ===

[[File:Dryobates borealis map.svg|thumb|Range map of [[red-cockaded woodpecker]]|upright=.70]]
[[File:Greater sage-grouse (Centrocercus urophasianus).jpg|thumb|Courtship display of a male [[greater sage-grouse]]]]
Because the Act allowed species to be listed as endangered without consideration of the economic consequences, it soon became and continues to be controversial.<ref name="Loller-2023">{{cite news |last1=Loller |first1=Travis |title=As the Endangered Species Act turns 50, those who first enforced it reflect on its mixed legacy |url=https://sentinelcolorado.com/uncategorized/as-the-endangered-species-act-turns-50-those-who-first-enforced-it-reflect-on-its-mixed-legacy/ |agency=Associated Press |date=28 December 2023}}</ref> Costs conferred on private landowners and various industries may come in the form of lost opportunity or slowing down operations to comply with the regulations put forth in the Act. Notably, in 1978 the [[Snail darter controversy|listing of a tiny fish (snail darter)]] shut down for several years construction of a dam that was already underway on the [[Little Tennessee River]].<ref name="hcn-2023" /> More broadly, the requirement to consult with the relevant agencies on federal projects has at times slowed operations by the oil and gas industry, including exploration or development on federal lands rich in fossil fuels.<ref>Stephen Dubner and Steven Levitt, [https://www.nytimes.com/2008/01/20/magazine/20wwln-freak-t.html?_r=1&scp=1&sq=unintended%20consequences&st=cse&oref=slogin ''Unintended Consequences''], New York Times Magazine, 20 January 2008</ref>

One widely held opinion thus is that the protections afforded to listed species curtail economic activity.<ref>{{Cite web |url=https://www.forbes.com/sites/davidblackmon/2013/02/18/the-radical-abuse-of-the-esa-threatens-the-us-economy/|title=The Radical Abuse of the ESA Threatens the US Economy|last=Blackmon|first=David|website=Forbes|language=en|access-date=2020-02-21}}</ref> In the extreme, economic consequences can induce [[perverse incentives]] by which landowners actively curtail their lands from attracting endangered species. An example in the eastern USA pertains to the endangered [[red-cockaded woodpecker]]. A study of some 1,000 privately owned forest plots within the range of the woodpecker found that when landowners observed pine growth maturing to a stage in which it might attract nesting woodpeckers, they were more likely to harvest – regardless of timber prices at the time.<ref name=":22">{{Cite journal |last=Stroup |first=Richard L. |date=April 1995 |title=Endangered Species Act: Making Innocent Species the Enemy |url=http://www.perc.org/perc.php?id=648 |url-status=dead |journal=PERC Policy Series |publisher=Property & Environment Research Center |issue=3 |archive-url=https://web.archive.org/web/20071012205756/http://www.perc.org/perc.php?id=648 |archive-date=12 October 2007}}</ref> This is a form of intentional [[habitat destruction]] for avoiding economic consequences. By 2024, however, recovery actions had gone well enough for the federal agency to downlist the species from endangered to threatened.<ref name="Lufkin-2024">{{cite news |last1=Lammertink |first1=Martjan |title=Red-cockaded woodpecker recovering under Endangered Species Act |url=https://lufkindailynews.com/news/community/red-cockaded-woodpecker-recovering-under-endangered-species-act/article_52f97149-2f6f-5b0e-b7cf-e4660c8a0361.html |agency=Lufkin Daily News |date=4 November 2024}}</ref>

Legislators have expressed that the ESA has been "weaponized," particularly against western states, constraining state government choices about the use of public lands.<ref name=western>{{Cite news|url=https://westernwire.net/western-caucus-introduces-bipartisan-package-of-bills-aimed-to-reform-update-esa/|title=Western Caucus Introduces Bipartisan Package Of Bills Aimed To Reform, Update ESA|date=2018-07-12|work=Western Wire |access-date=2020-02-21}}</ref> The case of the protracted dispute over the [[greater sage-grouse]] is one such example,<ref name="NYT-2010" /><ref name="CBD-2024" /> and the [[spotted owl]] is another.<ref name=boyt>{{cite journal|last=Boyt|first=Jeb|year=1993 |title=Struggling to Protect Ecosystems and Biodiversity under NEPA and NFMA: The Ancient Forests of the Pacific Northwest and the Northern Spotted Owl Comment|journal=Pace Environmental Law Review|volume=10|issue=2|pages=1009–1050|doi=10.58948/0738-6206.1581 |url=http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1581&context=pelr}}</ref> In the extreme is the largely western saying pertaining to endangered animals, such as wolves: "[[shooting, shoveling, and shutting up|shoot, shovel, and shut up]]."<ref name=ESA-2016 /><ref name=bailey>{{cite magazine |last=Bailey |first=Ronald |date=31 December 2003 |title="Shoot, Shovel, and Shut Up" |magazine=Reason Magazine |url=https://reason.com/news/show/34933.html |archive-url=https://web.archive.org/web/20061030003352/https://reason.com/news/show/34933.html |archive-date=30 October 2006 }}</ref><ref name="penn-2023">{{cite news |last1=de Groot |first1=Kristen |title=The Endangered Species Act at 50 |url=https://penntoday.upenn.edu/news/endangered-species-act-50 |agency=Penn Today |publisher=University of Pennsylvania |date=21 December 2023}}</ref> Rep. [[Don Young]] (Alaska), the longest-serving Republican congressman, said in 2018, "As the one person in the Congress, the only one, that voted for the Endangered Species Act, please beat me with a whip."<ref>{{Cite web |title=POLITICO Pro |url=https://subscriber.politicopro.com/article/eenews/1060088989 |access-date=2023-11-14 |website=subscriber.politicopro.com}}</ref>

Some economists have stated that finding a way to reduce such perverse incentives would lead to more effective protection of endangered species.<ref>{{cite journal|last1=Brown|first1=Gardner M. Jr.|last2=Shogren|first2=Jason F.|s2cid=39303492|year=1998 |title=Economics of the Endangered Species Act|journal=Journal of Economic Perspectives|volume=12|issue=3|pages=3–20 |doi=10.1257/jep.12.3.3|doi-access=free}}</ref> One suggestion for ending perverse incentives would be to compensate property owners for protecting endangered species, rather than having an endangered species regarded as a potential financial loss.<ref name=bailey />

As well, while the standard to prevent jeopardy or adverse modification applies only to federal activities, non-federal activities are subject to Section 10 of the Act,<ref>{{Cite web|title=Habitat Conservation Plans Section 10 of the Endangered Species Act |url=https://www.fws.gov/midwest/endangered/permits/hcp/hcp_wofactsheet.html|website=Midwest Region Endangered Species}}</ref> and private activities on private lands may require federal discretionary permits (such as those required by the [[Clean Water Act]], Section 404) and thereby triggering Section 7 of the ESA.<ref>{{Cite web |date=March 1998 |title=Endangered Species Consultation Handbook |url=https://www.fws.gov/endangered/esa-library/pdf/esa_section7_handbook.pdf |url-status=dead |archive-url=https://web.archive.org/web/20111016043955/http://www.fws.gov/endangered/esa-library/pdf/esa_section7_handbook.pdf |archive-date=16 October 2011 |publisher=U.S. Fish & Wildlife Service and National Marine Fisheries Service}}</ref>

===Risk assessment===

The Act points to science professionals as "solely" responsible for making extinction risk assessments. Governmental policies as shaped by various and changing public interests are necessarily the arbiters of how numerical statements of extinction risk should be gauged in context of other kinds of national risks and priorities. In a multi-author report published in 2016, the [[Ecological Society of America]] explained how this kind of controversy develops:<blockquote>

Any decision to list a species also requires a policy judgment regarding how much risk to that species is acceptable. Science can inform the decision by determining the degree of risk a species faces, but science alone cannot determine whether the risk is acceptable.... Stakeholders with divergent views about acceptable levels of extinction risk frequently mount legal challenges over whether species need to be listed, whether they are endangered or threatened, how much habitat represents a "significant portion" of a species' range, and other key elements of ESA implementation.<ref name=ESA-2016 /></blockquote>

===Standards are not scalar===

Once a species is listed, the statutory imperative to prevent extinction precludes scalar considerations in federal permitting of development projects. Economic or other societal benefits, no matter how significant, are not to impede upon scientific decision-making in assessing the degree to which a project would subject a listed species to additional extinction risk. An historic example is the 1978 judicial decision in favor of a tiny fish (the [[Snail darter controversy|snail darter]]) — even though that decision halted construction of a dam that was already underway on the [[Little Tennessee River]].<ref name="hcn-2023" />

[[File:Tiehm buckwheat, Eriogonum tiehmii (15068315794).jpg|thumb|Tiehm buckwheat, ''Eriogonum tiehmii'']]
A listed plant example of non-scalar approaches to endangered species management happened in October 2024. While a federal permit was awarded for a new [[lithium]] mining project in Nevada, the purported societal and climate benefits of lithium for electric vehicle manufacturing were not a component of the written decision. Rather, geographic boundaries of operation were set to preclude direct impact on the several populations of the endangered [[Eriogonum tiehmii|Tiehm's buckwheat]].<ref name=AP-buckwheat />

The buckwheat example also displays the lack of scalar considerations regarding species uniqueness and ecological importance, as these were not components of the 2022 listing decision nor of the environmental permitting decision required for lithium mining. Scientific expertise alone determines if an animal or plant is certified as a distinct species, rather than a mere variety of an existing species.<ref name="Zaepfel-1995" /> An academic dissertation informing the listing decision for Tiehm's buckwheat concluded that, of all the species of genus ''Eriogonum'' in Nevada, "seven of the thirteen non-tiehmii taxa appear to be close relatives."<ref name="cecil-2022">{{cite web |last1=Cecil |first1=Benjamin M |title=Population Genomics of a Rare Plant: Tiehm's Buckwheat (2022) |url=https://www.proquest.com/openview/efb18862d6dc2cd4a18ecf5c38c52c62/1.pdf?pq-origsite=gscholar&cbl=18750&diss=y |website=ProQuest Dissertations & Theses |access-date=10 November 2024}}</ref> The author included in his final paragraph the challenges of non-scalar approaches to environmental decision-making:<blockquote>
The battle of human need versus habitat conservation is constant. The situation Tiehm’s buckwheat finds itself, stuck between conservation of its ~25,000 individuals or eradication to allow access to needed resources, is certainly complicated. There are potential services it could provide that are yet to be discovered. If mining were to commence it is unlikely to survive and those services could be lost. If the mining operation is halted or modified to protect ''E. tiehmii'', the global need of lithium may begin to outweigh the supply, and potentially cause delays in technological advances that are aimed at reducing CO2 emissions.<ref name="cecil-2022" />
</blockquote>

===Effectiveness===

[[File:Alligator mississipiensis FL.JPG|thumb|[[American alligator]], delisted 1987<ref name="Defenders-2023" />]]
As of 2023 (the 50th anniversary of the ESA), an aggregate of 1,780 species had been listed through the years as "'''endangered'''" or a less severe category of "'''threatened'''". While 99% of the total species are still alive, critics have pointed out that only 64 species improved enough to be removed from the list ("[[Out of danger species|'''delisted''']]"). Among the most celebrated successes is that of the [[American alligator]]. This reptile was listed as endangered in 1967. Twenty years later it was delisted as fully recovered.<ref name="Defenders-2023" /> However, because of its resemblance to its endangered saltwater relative in Florida, the [[American crocodile]], hunting and commercial trade regulations were maintained for this species.<ref name="alligator-2008">{{cite web |title=American Alligator ''Alligator mississippiensis'' (February 2008) |url=https://www.fws.gov/endangered/esa-library/pdf/alligator.pdf |publisher=U.S. Fish and Wildlife Service |archive-url=https://web.archive.org/web/20200702034410/https://www.fws.gov/endangered/esa-library/pdf/alligator.pdf |access-date=30 November 2024|archive-date=July 2, 2020 }}</ref>

As of 2023, another 64 species had improved enough to be "'''downlisted'''" from endangered to threatened. Only 11 species have been declared '''extinct''' after they were listed, but another 23 species have gone missing for so long that they have been proposed for official designation as extinct.<ref name="AP 2023-08-04">{{Cite news |last=Flesher |first=John |date=2023-08-04 |title=After helping prevent extinctions for 50 years, the Endangered Species Act itself may be in peril |url=https://apnews.com/article/endangered-species-eagle-wolf-biden-trump-12d1a8ef6d453ad8f6d4c2b6edb567e8 |access-date=2023-08-04 |work=AP News |language=en}}</ref>

Some have argued that the recovery of imperiled flesh-eating birds (notably, the [[bald eagle]], [[brown pelican]], and [[peregrine falcon]]) should be attributed to the 1972 ban of the pesticide [[DDT]] by the [[United States Environmental Protection Agency|EPA]], rather than the Endangered Species Act.<ref name="capital-press">{{cite news |title=Editorial: Improving the Endangered Species Act |url=https://www.capitalpress.com/opinion/editorials/editorial-improving-the-endangered-species-act/article_8ef32526-a5ba-11ee-8185-370a276bc53a.html |agency=Capital Press |date=4 January 2024}}</ref> Supporters of the Act argue that listing these species as endangered led to additional actions that were also crucial for species recovery (i.e., captive breeding, habitat protection, and protection from disturbance).<ref>{{cite web |title=Bald Eagle |url=https://www.fws.gov/species/bald-eagle-haliaeetus-leucocephalus |website=U.S. Fish & Wildlife Service |publisher=U.S. Fish and Wildlife Service |access-date=4 February 2024}}</ref><ref>{{cite web |title=The Peregrine Falcon is Back! (2009) |url=https://www.fws.gov/story/2000-08/peregrine-falcon-back |website=U.S. Fish & Wildlife Service |date=February 19, 2022 |publisher=U.S. Fish and Wildlife Service |access-date=4 February 2024}}</ref><ref name="falcon-2024">{{cite news |last1=Nelson |first1=Gabrielle |title=Peregrine falcons make a comeback in Michigan: DNR ends banding program |url=https://www.bridgemi.com/michigan-environment-watch/peregrine-falcons-make-comeback-michigan-dnr-ends-banding-program |agency=Bridge Michigan |date=26 July 2024}}</ref>

[[File:Usfws-freshwater-mussels.jpg|thumb|Examples of freshwater [[mussel]]s imperiled in the eastern USA]]
Among the most difficult species to protect are [[mussel]]s because they depend on adequate amounts of clean and flowing freshwater. Home to approximately 300 mussel species, the eastern region of the USA is the center of global diversity for these freshwater [[molluscs]]. However, 65 percent of them are threatened or endangered.<ref name="mussel 2023">{{cite web |title=Service Proposes Listing Three Eastern Freshwater Mussels Under the Endangered Species Act (2023) |url=https://www.fws.gov/press-release/2023-08/service-proposes-listing-three-eastern-freshwater-mussels-under-endangered |website=fws.gov |date=July 31, 2023 |publisher=U.S. Fish and Wildlife Service |access-date=21 July 2024}}</ref>  

The 1988 Congressional amendments to the Act<ref name="FWS-amendments">{{cite web |title=History of the Endangered Species Act: Principal Amendments |url=https://www.fws.gov/page/endangered-species-act-amendments#:~:text=1988%20Amendments,significant%20risk%20%5Bsection%204%5D%3B |website=fws.gov |publisher=U.S. Fish and Wildlife Service |access-date=6 January 2025}}</ref> included a new section, Section 18, to aid effectiveness evaluations by having each of the two implementing agencies periodically report cumulative federal funding (and, to some degree, state funding) on a species-by-species basis.<ref name="section-18">{{cite web |last1=((100th Congress)) |title=Public Law 100-478 |url=https://www.congress.gov/100/statute/STATUTE-102/STATUTE-102-Pg2306.pdf |website=Congress.gov |publisher=U.S. Government |access-date=24 September 2023}}</ref> As of 2023, the most recent report to Congress was by the U.S. Fish and Wildlife Service and presented expenditures cumulative through fiscal year 2020.<ref name="Frederico">{{cite news |last1=Frederico |first1=Jake |title=Do wildlife agencies shortchange lesser-known species? Activists question priorities |url=https://www.azcentral.com/story/news/local/arizona-environment/2023/09/16/lesser-known-species-need-more-endangered-species-act-funds/70847391007/ |agency=Arizona Republic |date=16 September 2023}}</ref><ref name="expenditures-2020">{{cite web |title=Federal and State Endangered and Threatened Species Expenditures (Fiscal Year 2020) |url=https://www.fws.gov/sites/default/files/documents/endangered-threatened-species-expenditures-%20report-to-congress-fiscal-year-2020.pdf |website=fws.gov |publisher=U.S. Fish and Wildlife Service |access-date=24 September 2023}}</ref> The report entailed these statistics: "Of the 1,388 status reviews completed, 93 percent (1,294) recommend no change in status for the species, 3 percent (40) recommend reclassifying from endangered to threatened, 3 percent (38) recommend delisting (22 due to extinction, 13 due to recovery, and 3 due to error), 1 percent (13) recommend reclassifying from threatened to endangered, and less than 1 percent (2) recommend a revision to the listed entity."<ref name="USFWS-2020">{{cite web |title=Report to Congress on the Recovery of Threatened and Endangered Species (Fiscal Years 2017—2020) |publisher=U.S. Fish and Wildlife Service |url=https://www.fws.gov/sites/default/files/documents/recovery-report-to-congress-fiscal-years-2017-2020.pdf}}</ref>

=== Recovery and delistings are rare ===
Critics of the Act have noted that, despite its goal of recovering species to the point of delisting, this has rarely happened. As of 2023 (fifty years after its passage), an aggregate of 1,780 species had been listed through the years as endangered or the less severe category of threatened. Of that total, 64 species improved enough to be removed from the list. Another 64 improved enough to be "downlisted" from endangered to threatened. While 11 species have been declared extinct since implementation of the law began, another 23 species have gone missing for so long that they have been proposed for official designation as extinct.<ref name="AP 2023-08-04"/>

[[File:Leatherback Sea Turtle (17665415746).jpg|thumb|[[Leatherback sea turtle]] returning to the ocean after laying eggs in sand pits it had dug in the upper beach|upright=1.00]]
The [[National Marine Fisheries Service]] lists eight species (or populations of a species) as among the most at risk of extinction in the near future. These animals are the [[Atlantic salmon]]; the Central California Coast [[coho salmon]]; the Cook Inlet [[beluga whale]]; the [[Hawaiian monk seal]]; the Pacific [[leatherback sea turtle]]; the Sacramento River winter-run [[chinook salmon]]; the southern resident population of [[orca|killer whale]]; and the [[Haliotis sorenseni|white abalone]]. Human activities are presented as the primary cause of extinction threats for all these species. The two implementing agencies have a combined record of changing species status from threatened to endangered on nine occasions, while the number of status improvements from endangered to threatened is greater.<ref>{{Cite web |url=https://ecos.fws.gov/ecp0/reports/reclassified-species-report|title=Reclassified Species|website=ecos.fws.gov|access-date=2020-02-21}}</ref>

A widely used statistic supporting effectiveness of the Act is that 99 percent of listed species have not gone extinct.<ref>{{cite web |title=The Endangered Species Act at 50 |url=https://www.biologicaldiversity.org/campaigns/Endangered-Species-Act-at-50/ |website=Center for Biological Diversity |access-date=11 January 2024}}</ref><ref>{{Cite journal |last1=Greenwald|first1=Noah|last2=Suckling|first2=Kieran F. |last3=Hartl |first3=Brett|last4=Mehrhoff|first4=Loyal A. |date=2019-04-22|title=Extinction and the U.S. Endangered Species Act|journal=PeerJ |language=en |volume=7|pages=e6803 |doi=10.7717/peerj.6803|pmid=31065461|pmc=6482936|issn=2167-8359 |doi-access=free }}</ref>  In 2012 the [[Center for Biological Diversity]] issued a report that surveyed a sample of 110 listed species and concluded that 90 percent of them were recovering "at the rate specified by their federal recovery plan."<ref>{{Cite web|url=https://www.esasuccess.org/index2012.html|title=110 Success Stories for Endangered Species Day 2012|website=www.esasuccess.org|access-date=2020-02-21}}</ref>

On the opposing side of the spectrum, a foundation associated with the Western Caucus of U.S. senators and representatives issued a 116-page report in 2023 that points to data and statements made by the U.S. Fish and Wildlife Service during the past half-century that can be interpreted as disputing proclamations of success.<ref name=gordon-2023 /> Specifically, statements of numbers of species "recovered" do not distinguish between those delisted owing to actual improvement in populations versus those for which the original population numbers were later found to have been greatly underestimated. Had the science been more in line with reality at the start, this report claims 36 of the 62 species reported by the agency as officially recovered would not have achieved listing at the outset.<ref name=gordon-2023 />

[[File:Glaucomys sabrinus 248041879.jpg|thumb|The [[Northern flying squirrel]] entails 25 subspecies in North America.<ref name="fws-flying-squirrel">{{cite web |title=Carolina Northern Flying Squirrel |url=https://www.fws.gov/species/carolina-northern-flying-squirrel-glaucomys-sabrinus-coloratus |website=fws.gov |publisher=U.S. Fish and Wildlife Service}}</ref>]]
Delisting in 2008 of the [[Glaucomys sabrinus|Virginia northern flying squirrel]] is one of the examples officially counted as a "recovery." However, the basis for delisting proved to be a combination of a wrongly inferred subspecies taxonomic status and a faulty initial population count that neglected to search for the animal across the border into West Virginia.<ref name=gordon-2023 /><ref>{{cite journal |last1=U.S. Fish and Wildlife Service |title=Endangered and Threatened Wildlife and Plants; Final Rule Removing the Virginia Northern Flying Squirrel (''Glaucomys sabrinus fuscus'') From the Federal List of Endangered and Threatened Wildlife |journal=Federal Register |date=26 August 2008 |volume=73 |issue=166 |pages=50226–50247 |url=https://www.govinfo.gov/content/pkg/FR-2008-08-26/pdf/E8-19607.pdf}}</ref> 

Controversy also develops when the science used to support a delisting decision differs from the numerical population thresholds included in the species recovery plan. A 2012 court case upheld that the published recovery criteria are not legally binding for later delisting decisions.<ref name=ESA-2016 />

In 2022 a research paper pointed to a set of three factors that contribute to the low number of  delistings: "The combination of delays in listing rare species, the typically small population sizes of species at time of listing, and inadequate funding for recovery actions, are the key factors that can explain the relatively small number of listed species that have fully recovered."<ref name="Eberhard-2022">{{cite journal |last1=Eberhard |first1=Erich K |last2=Wilcove |first2=David S |last3=Dobson |first3=Andrew P |title=Too few, too late: U.S. Endangered Species Act undermined by inaction and inadequate funding |journal=PLOS ONE |date=12 October 2022 |volume=17 |issue=10 |pages=e0275322 |doi=10.1371/journal.pone.0275322|doi-access=free |pmid=36223374 |bibcode=2022PLoSO..1775322E |pmc=9555635 }}</ref> More fundamentally, while the statute requires the agencies to develop '''recovery plans''', "the ESA imposes no duty to implement recovery plans or to ensure the recovery of listed species."<ref name="Berchiolli-2020" /> 

In 2024 a "new metric to evaluate recovery progress" was published by 13 coauthors. They noted widespread deficiencies in monitoring population changes and threats through time that hampered the agency in "making recovery actions more achievable and proactive, rather than having conservation efforts remain reactive."<ref>{{cite journal | display-authors=etal |last1=Davis |first1=Olivia N |title=A new metric for conducting 5-year reviews to evaluate recovery progress under the Endangered Species Act |journal=Conservation Science and Practice |date=2024 |volume=6 |issue=8 |doi=10.1111/csp2.13158 |bibcode=2024ConSP...6E3158D |url=https://maxallen.inhs.illinois.edu/files/2024/06/Davis-et-al.-2024-5-year-Review-Metric.pdf}}</ref>

=== Delays in specifying recovery actions ===
Listing of a species "triggers two overlapping types of conservation measures: extinction prevention and recovery actions."<ref name=ESA-2016 /> An official document required by the Act has come to be known as a '''recovery plan'''. The Act "gives few guidelines for their preparation and content and does not specify a deadline for how soon after listing the Services must complete recovery plans."<ref name=ESA-2016 /> A 2023 report on the Act issued by [[Defenders of Wildlife]] calculated that "265 species listed under the Act lack recovery guidance of any kind, while 370 additional species lack final recovery guidance." The group also noted that more than half of the existing recovery plans were more than 20 years old.<ref name="Defenders-2023">{{cite web |last1=Carter |first1=Andrew |last2=Rosa |first2=Lindsay |title=The Endangered Species Act: The Next 50 Years and Beyond |url=https://defenders.org/sites/default/files/2024-01/ESA%20Beyond%2050%20-%20online_0.pdf |website=Defenders of Wildlife |access-date=4 February 2024}}</ref>

Besides alleged funding inadequacies,<ref name=ESA-2016 /><ref name=Defenders-2023 /> several inherent problems have been pointed to for delays in agency translation of scientific findings into actions beyond extinction prevention and thus actively toward species recovery. One such problem is the "knowledge—action boundary" that distinguishes conservation scientists from conservation managers. That is, how can scientific scholarship be made actionable, and thereby contribute directly to forward-moving policies and practices?<ref name="cook-2013">{{cite journal | display-authors=etal | last1=Cook |first1=Carlyn N |title=Achieving Conservation Science that Bridges the Knowledge–Action Boundary |journal=Conservation Biology |date=2013 |volume=27 |issue=4 |pages=669–678 |doi=10.1111/cobi.12050 | pmid=23574343 | pmc=3761186 | bibcode=2013ConBi..27..669C |url=https://rest.neptune-prod.its.unimelb.edu.au/server/api/core/bitstreams/50f304fd-88c6-5203-bd6b-694419b721b9/content|hdl=11343/265419 |hdl-access=free }}</ref> Impediments to generating boundary-spanning [[conservation biology|conservation science]] include "a reward structure in science that promotes publication and grant income rather than engaging with conservation practitioners."<ref name="cook-2013" /> Distrust across the boundary may also develop if conservation managers perceive that ESA funding allocated to research or monitoring reduces what is available for recovery actions.<ref name="cook-2013" />

"Fear of failure in conservation" is another factor that contributes to agency and manager hesitancy to undertake recovery actions for which there is no certainty of success.<ref name="meek-2015">{{cite journal |display-authors=etal |last1=Meek |first1=Mariah H |title=Fear of failure in conservation: The problem and potential solutions to aid conservation of extremely small populations |journal=Biological Conservation |date=February 2015 |volume=184 |pages=209–217 |doi=10.1016/j.biocon.2015.01.025 |bibcode=2015BCons.184..209M |url=https://gvl.ucdavis.edu/sites/g/files/dgvnsk6021/files/inline-files/Meek%20et%20al%202015.pdf}}</ref> There are two reasons why scientists themselves may abstain from recommending actions. One is fear that making such recommendations may compromise their status as objective researchers whose conclusions can be trusted. A second is fear that a recommended action that is undertaken but then fails may injure their reputation. These fears may be heightened when recommendations pertain to a species for which controversy has developed or one whose population has declined so drastically that any manipulation of the species or its habitat may later be denounced as contributing to its further decline or extinction.<ref name="meek-2015" /> Thus there are multiple reasons why recovery programs for some species "may be trapped in a cycle where more resources are allocated to information gathering versus action."<ref name="buxton-2020">{{cite journal |display-authors=etal |last1=Buxton |first1=Rachel T |title=Half of resources in threatened species conservation plans are allocated to research and monitoring |journal=Nature Communications |date=September 2020 |volume=11 |issue=4668 |page=4668 |doi=10.1038/s41467-020-18486-6 |pmid=32963244 |pmc=7508813 |bibcode=2020NatCo..11.4668B |url=https://www.nature.com/articles/s41467-020-18486-6.pdf}}</ref>

=== Failure to implement recovery actions ===

[[File:3 part framework ESA.png|thumb|3-part framework for "Recovery Planning and Implementation" (USF&WS, April 2019)<ref name="3-part-framework-2019">{{cite web |last1=U.S. Fish and Wildlife Service (2019) |title=Recovery Planning and Implementation |url=https://www.fws.gov/sites/default/files/documents/recovery-planning-and-implementation-fact-sheet.pdf |website=fws.gov |access-date=29 November 2024}}</ref>|upright=1.25]]
[[File:Usfs-2016-ssa-full 02.jpg|thumb|"Species Status Assessment Framework" of the U.S. Fish & Wildlife Service<ref name="SSA" />]]

The U.S. Fish and Wildlife Service itself has recognized that specifying in a written plan the actions to achieve recovery goals falls short of ensuring that such actions will take place.<ref name="recovery-planning">{{cite web |title=Recovery Planning and Implementation |date=March 9, 2022 |url=https://www.fws.gov/project/recovery-planning-and-implementation |publisher=U.S. Fish and Wildlife Service |access-date=5 July 2024}}</ref> Indeed, the agency recognizes that "Recovery plans are guidance and not regulatory documents, and no agency or entity is required by the Endangered Species Act (ESA) to implement actions in a recovery plan."<ref name="recovery">{{cite web |title=Recovery |date=October 7, 2021 |url=https://www.fws.gov/program/recovery/what-we-do |publisher=U.S. Fish and Wildlife Service |access-date=8 July 2024}}</ref> Therefore, beginning in 2016, the agency augmented standard recovery planning by shifting to a three-part framework. Statutory and regulatory requirements for producing an initial '''recovery plan''' are still fulfilled, including opportunities for public comments. The plan is to be written and published in the customary way, and it continues to be subject to the "five year review" process. However, two new kinds of working documents can be developed, posted, and updated as needed for each listed species.<ref name="recovery-planning" />

The first updatable document is a '''Species Status Assessment (SSA)'''. It is "a biological risk assessment to aid decision makers who must use the best available scientific information to make policy decisions under the ESA." As new papers are published and rigorous data collected, the SSA can be updated and reposted as warranted.<ref name="SSA">{{cite web |title=Species Status Assessment |date=August 2016 |url=https://www.fws.gov/project/species-status-assessment |publisher=U.S. Fish and Wildlife Service |access-date=5 July 2024}}</ref> As of November 2024, 416 listed or petitioned species have had an SSA completed and posted on the FWS aggregate list.<ref name="SSA-list">{{cite web |title=Species with Species Status Assessments (SSAs) |url=https://ecos.fws.gov/ecp/report/ssa |website=ECOS Environmental Conservation Online System |publisher=U.S. Fish and Wildlife Service |access-date=16 November 2024}}</ref>

SSA updates may, in turn, stimulate changes in the third part of the new framework: the '''Recovery Implementation Strategy (RIS)'''. While recovery actions are policy level decisions that will continue to be delineated in the official recovery plan, the RIS serves as "a short-term, more flexible operational document focused on how, when, and with whom the recovery actions will be implemented."<ref name="recovery-planning" /> A single species may ultimately have a number of RIS documents posted — each pertaining to a different entity, such as a land trust or botanical garden, that steps forward (with or without federal funding) to voluntarily engage in one or more specific recovery actions:<blockquote>

The RIS is to be developed with conservation partners outside of the agency, and focuses on the period of time and scope of activities that work best for those collaborators to achieve recovery goals. Many RISs can be developed, specific to partners and/or activities, and can cover varying timeframes, as needed. If multiple RISs are developed, an 'umbrella framework' (an overarching RIS) outlining the relationships and priorities among the individual RISs is developed to ensure strategic implementation of the overall recovery program for the species.<ref name="recovery-planning" /></blockquote>

Because the agency had been criticized for lacking "clear distinctions between science input and policy application," four FWS agency scientists along with two colleagues in the [[U.S. Geological Survey]] published a paper in 2018 in the ''Journal of Fish and Wildlife Management''. Titled, "Development of a Species Status Assessment Process for Decisions under the U.S. Endangered Species Act," the authors determined that "the SSA results in a scientific report distinct from policy application, which contributes to streamlined, transparent, and consistent decision-making and allows for greater technical participation by experts outside of the USFWS, for example, by state natural resource agencies."<ref name="Smith-2018">{{cite journal |display-authors=etal |last1=David R |first1=Smith |title=Development of a Species Status Assessment Process for Decisions under the U.S. Endangered Species Act |journal=Journal of Fish and Wildlife Management |date=1 June 2018 |volume=9 |issue=1 |pages=302–320 |doi=10.3996/052017-JFWM-041 |url=https://meridian.allenpress.com/jfwm/article/9/1/302/210492/Development-of-a-Species-Status-Assessment-Process|doi-access=free |bibcode=2018JFWM....9..302S }}</ref>

=== Stakeholder initiatives (with or without listing) ===

With or without listing, there are opportunities for stakeholders themselves to begin actions on their own. This especially applies to habitat improvements. If suitable habitat for a species can be found on private, state, municipal, or tribal lands, there is no need to wait for the federal agency to offer or specify in-place actions. The parties can expand and improve such habitats on their own. For example, a [[National Park Service]] report in 2023 in behalf of the endangered [[Karner blue]] butterfly included a recommendation to "encourage entities (city, state, county, tribal, federal) with sandy soils north of the current range to plant ''Lupinus perennis'' and nectar plants" in anticipation of future authorization for "[[assisted migration|managed relocation]]" of populations threatened by heat and drought in southerly portions of the butterfly's historical range.<ref name="nps-2023">{{cite web |last1=Schuurman | display-authors=etal | first1=Gregor W |title=Blue Snowflakes in a Warming World: Karner Blue Butterfly Climate Change Vulnerability Synthesis and Best Practices for Adaptation (2023) |url=https://www.researchgate.net/publication/376232679 |publisher=U.S. National Park Service |access-date=29 January 2024}}</ref>

While there are legal limitations on what citizens and other stakeholders can do directly for listed animal species, the field is wide open for obtaining horticulturally produced seeds and specimens of listed plants and then conducting plantings on their own.<ref name=shirey/> A well-known example is a network of citizens who call themselves [[Torreya Guardians]]. [[Torreya taxifolia|Florida Torreya]] is a [[glacial relict]] species of subcanopy tree that was listed as endangered in 1984. Since 2004, the citizen group has been using seeds from mature plantings on private lands in [[North Carolina]]<ref name="TG-seeds">{{cite web |title=Summary of Seed Distributions & Seed Source Documentation |url=https://www.torreyaguardians.org/guardians.html#seeds |website=Torreya Guardians |access-date=17 November 2024}}</ref> (and since 2018 also from their own plantings in [[Ohio]]<ref name="TG-Ohio">{{cite web |last1=Bess |first1=Fred |title=''Torreya taxifolia'' Parma, Ohio (a suburb of Cleveland) |url=https://www.torreyaguardians.org/ohio-cleveland.html |website=Torreya Guardians |access-date=17 November 2024}}</ref>) to engage in a form of [[assisted migration]] poleward of this climate-endangered plant.<ref name="theconversation.com"/>

[[File:Pinus albicaulis range map 2.png|thumb|Historically native range of the [[Whitebark Pine]]]]
Prior to listing of a species, stakeholders who wish to act in its behalf have freedom to engage with not only habitat but with the species itself. A well-known example entails actions taken in behalf of the subalpine [[Pinus albicaulis|Whitebark Pine]] of the northern [[Rocky Mountains]] soon after vast stands suddenly began to die in [[Yellowstone National Park]] and elsewhere. A petition for listing was submitted in 2008, but status as "threatened" was not conferred until 2022. By then, collaboration among concerned parties was well underway without agency direction.<ref name="yale-2024">{{cite journal |last1=Robbins |first1=Jim |title=The Beleaguered Whitebark Pine Is in Trouble. Can It Be Saved? |journal=Yale Environment 360 |date=11 January 2024 |url=https://e360.yale.edu/features/whitebark-pines-climate-change-rust-beetles}}</ref> Supportive research and actions were undertaken by the conservation organization [[American Forests]] as well as a new organization specific to the tree: the Whitebark Pine Ecosystem Foundation.<ref>{{cite web |title=Partners and Projects |url=https://whitebarkfound.org/ |website=Whitebark Pine Ecosystem Foundation |access-date=29 January 2024}}</ref> Other collaborators include research scientists within the [[U.S. Forest Service]], geneticists at the [[University of California, Davis]], and the [[Confederated Salish and Kootenai Tribes]]. The [[U.S. Bureau of Land Management]] and the [[National Park Service]] were also involved in consultation prior to listing by the agency in charge of endangered species: the [[U.S. Fish and Wildlife Service]].<ref name="yale-2024" />

Controversy is also apparent, though rare, when stakeholders entail activists who regard the "political-economic regime" not as the source of solutions but as "the root cause of biodiversity loss."<ref name="mermet-2020">{{cite journal |last1=Mermet |first1=Laurent |title=Knowledge that is actionable by whom? Underlying models of organized action for conservation |journal=Environmental Science and Policy |date=November 2020 |volume=113 |pages=39–46 |doi=10.1016/j.envsci.2018.04.004 |bibcode=2020ESPol.113...39M |url=https://www.sciencedirect.com/science/article/abs/pii/S1462901117306780}}</ref> In such instances [[Rewilding (conservation biology)|guerrilla rewilding]] of rare species has been known to occur.<ref>{{Cite web |url=https://www.theguardian.com/environment/2022/apr/01/giant-orchids-found-growing-wild-in-uk-for-first-time|title=Giant orchids found growing wild in UK for first time|website=[[TheGuardian.com]]|date=April 2022}}</ref><ref>{{cite news |title=Welsh woman declares vindication after 'guerrilla rewilding' court case |url=https://www.theguardian.com/world/2020/feb/29/welsh-woman-sioned-jones-found-guilty-biodiversity-sitka-spruce |work=The Guardian |date=29 February 2020}}</ref>

===Collaborative planning on nonfederal lands===

The 1982 amendments to Section 10 of the Act authorized collaborative engagement of the implementing agencies with landowners in producing [[Habitat Conservation Plan]]s. Such a plan is a required part of an application for an [[Incidental Take Permit]], issued under the Act to private and other nonfederal entities undertaking projects that might result in harm to a listed species.<ref name="HCP-FWS">{{cite web |last1=U.S. Fish and Wildlife Service |title=Habitat Conservation Planning and Incidental Take Permit Processing Handbook |url=https://www.fws.gov/sites/default/files/documents/habitat-conservation-planning-handbook-entire_0.pdf |website=fws.gov |access-date=2 January 2025}}</ref> The intent is to deter controversy by building into the plan practices for minimizing harm to listed species and their core habitat needs (including seasonal peaks in use). A validated plan then absolves the landowner (or developer) from harms that may incidentally occur to the species, when following the plan. Securing landowner pledges of habitat enhancement measures during the planning process can serve to defuse opposition from the public and other stakeholders.<ref name=HCP>{{cite web |title=Habitat Conservation Plans |url=https://www.fws.gov/service/habitat-conservation-plans |publisher=U.S. Fish and Wildlife Service}}</ref><ref name=HCP-Coalition>{{cite web |title=What is a Habitat Conservation Plan? |url=https://nhcpcoalition.org/habitat-conservation-plan-projects/faqs/ |website=National Habitat Conservation Plan Coalition |access-date=5 February 2024}}</ref>

[[File:Piping plover (8740854611).jpg|thumb|[[Piping plover]] in its Atlantic beach nesting habitat|upright=.55]]
Plan preparation is generally initiated and produced by a nonfederal entity: private landowner, state government, local government. As of 2021, more than 700 habitat conservation plans were in force for listed species.<ref name="Carter-2021">{{cite web |last1=Carter |first1=Andrew |title=A Database of Habitat Conservation Plans and Related Documents Developed Under the U.S. Endangered Species Act (2021) |url=https://osf.io/preprints/osf/xvahr |website=OSF Reprints |publisher=Defenders of Wildlife |access-date=2 January 2025}}</ref> A leading example is the plan produced by the state of [[Massachusetts]] in 2016 to reduce conflicts between a type of beach-nesting shorebird, [[piping plover]], and recreational beach users along the [[Atlantic Ocean]].<ref name=HCP-Coalition /><ref name="Mass-2016">{{cite web |title=Massachusetts Division of Fisheries & Wildlife (DFW) Habitat Conservation Plan for Piping Plover (June 2016) |url=https://www.mass.gov/doc/piping-plover-habitat-conservation-plan/download |website=mass.gov |access-date=2 January 2025}}</ref> Such plans also apply to the [[red-cockaded woodpecker]] of forests in the southeastern states.<ref name="HCN-1997">{{cite news |last1=Margolis |first1=Jon |title=Critics say 'no surprises' means no protection |url=https://www.hcn.org/issues/111/3481 |agency=High Country News |date=4 August 1997}}</ref><ref name=":22" /> In 2023, habitat conservation planning for [[grizzly bear]]s in the northern [[Rocky Mountains]] became controversial when an increase in bear deaths caused by trains was reported, along with acknowledgment by the agency that several million dollars of federal funds for the plan participants had not yet been provided for them to engage in their specified mitigation actions.<ref name="griz-2023">{{cite news |last1=Scott |first1=Tristan |title=As grizzly bear train mortalities spike, BNSF mitigation funds are years overdue |url=https://missoulian.com/news/local/grizzly-train-mortalities-bnsf-railway-bears/article_38a6fe84-6ea3-11ee-a95e-83de61ffbd60.html |agency=Missoulian |date=26 October 2023}}</ref>

Summing up the practical difficulties in a 2023 report on the Act, [[Defenders of Wildlife]] pointed to underfunding as a continuing problem and that the agencies "lack adequate resources to develop, approve, and monitor these plans, and there are significant data gaps in how many of these plans are performing."<ref name=Defenders-2023 />

=== Species awaiting listing ===
A 2019 report found that the Fish and Wildlife Service faced a backlog of more than 500 species that have been determined to potentially warrant protection.<ref name=PS-2019>{{Cite magazine |url=https://www.popsci.com/extinct-species-still-on-endangered-list/|title=The endangered species list is full of ghosts |magazine=Popular Science|date=February 25, 2019|language=en |access-date=2020-02-21}}</ref> A 2022 report pointed to severe population declines while species await listing decisions as a major problem impeding eventual recovery success.<ref name="Wildlife Society 2022">{{cite web |last1=Learn |first1=Joshua Rapp |title=The ESA Fails Due to Slow Listing Process (2022) |date=October 13, 2022 |url=https://wildlife.org/the-esa-fails-due-to-slow-listing-process/ |publisher=The Wildlife Society |access-date=21 July 2024}}</ref> The decision to list or defer listing of a petitioned species is supposed to take no more than 2 years after a petition is filed. However, on average it takes the agency 12 years to finalize a decision.<ref name=Puckett_etal2016>{{Cite journal|last1=Puckett|first1=Emily E.|last2=Kesler |first2=Dylan C. |last3=Greenwald|first3=D. Noah|date=September 2016 |title=Taxa, petitioning agency, and lawsuits affect time spent awaiting listing under the US Endangered Species Act |journal=Biological Conservation|language=en|volume=201|pages=220–229 |doi=10.1016/j.biocon.2016.07.005 |bibcode=2016BCons.201..220P}}</ref> An analysis published in 2016 by the [[Ecological Society of America]] found that approximately 50 species may have gone extinct while awaiting a listing decision.<ref name="ESA-2016" /> Additional funding might enable the agency to direct more resources toward biological assessments of petitioned species and determine if they merit a listing decision.<ref name="MJ-2023">{{cite news |last1=Mogensen |first1=Jackie Flynn |title=The Wolverine and the Waitlist |url=https://www.motherjones.com/environment/2023/12/wolverine-endangered-species-waitlist-extinction-backlog-bureaucracy-politics/ |agency=Mother Jones |date=20 December 2023}}</ref><ref>{{Cite web |url=https://defenders-cci.org/files/ESA_approps_infographic.pdf|title=Infographic: The ESA needs more than double its current funding. |website=Center for Conservation Innovation, Defenders of Wildlife|access-date=February 21, 2020|archive-date=February 21, 2020|archive-url=https://web.archive.org/web/20200221160730/https://defenders-cci.org/files/ESA_approps_infographic.pdf|url-status=dead}}</ref>

An additional issue is that species still listed under the Act may already be extinct. For example, the [[IUCN Red List]] declared the [[Scioto madtom]] extinct in 2013. It had last been seen alive in 1957.<ref>{{Cite news |url=https://blogs.scientificamerican.com/extinction-countdown/tiny-ohio-catfish-species-last-seen-in-1957-declared-extinct/|title=Tiny Ohio Catfish Species, Last Seen in 1957, Declared Extinct|last=Platt|first=John R.|work=Scientific American Blog Network|language=en|access-date=2020-02-21}}</ref> However, FWS still classifies the catfish as endangered.<ref name=PS-2019 />

=== Taxonomic status and hybridization ===

Implementation of the ESA of 1973 is based on "the best available science," beginning with [[Taxonomy (biology)|taxonomic classification]]. The petitioned group of organisms must first qualify as a bona fide [[species]] or [[subspecies]]. Isolated populations or varieties of otherwise common species may be considered for listing only if they are [[vertebrates]].<ref name="zink-2022">{{cite journal |last1=Zink |first1=Robert M |last2=Klicka |first2=Luk B |title=The taxonomic basis of subspecies listed as threatened and endangered under the Endangered Species Act |journal=Frontiers in Conservation Science |date=25 September 2022 |volume=3 |doi=10.3389/fcosc.2022.971280 |doi-access=free }}</ref> Given the [[evolution|evolutionary processes]] by which species arise and continue to change, there is no consensus that could provide a singular definition or standard for the agency to use. Classification is therefore determined on a case-by-case basis<ref name="Conbio-2016">{{cite journal | display-authors=etal | last1=Lind-Riehl |first1=Jennifer F |title=Hybridization, agency discretion, and implementation of the U.S. Endangered Species Act |journal=Conservation Biology |date=26 April 2016 |volume=30 |issue=6 |pages=1288–1296 |doi=10.1111/cobi.12747 | pmid=27113272 | bibcode=2016ConBi..30.1288L |url=https://conbio.onlinelibrary.wiley.com/doi/abs/10.1111/cobi.12747}}</ref><ref name="Zaepfel-1995">{{cite journal |last1=Patrick H |first1=Zaepfel |title=Legislating for Scientifific Uncertainty: Preserving Administrative Flexibility to Interpret Species under the Endangered Species Act |journal=Dickinson Journal of Environmental Law and Policy |date=1995 |volume=4 |issue=2 |pages=152–180 |url=https://elibrary.law.psu.edu/cgi/viewcontent.cgi?article=1067&context=pselr}}</ref> and generally secured by publication in an academic journal — which itself is vulnerable to publish-or-perish motivations that can lead to what is called "taxonomic inflation."<ref name="Doremus-2010" /> This in itself can make the posting of a listing decision vulnerable to public attack.<ref name="Erwin-2017">{{cite web |last1=Erwin |first1=John A |title=Hybridizing Law: A Policy for Hybridization Under the Endangered Species Act (2017) |url=https://heinonline.org/HOL/LandingPage?handle=hein.journals/elrna47&div=80&id=&page= |website=HeinOnline |publisher=Environmental Law Report News and Analysis |access-date=15 November 2024}}</ref> Overturn of the [[Chevron deference]] by the U.S. Supreme Court in 2024 may have amplified classification as grounds for litigation by opponents of endangered species listings.<ref name="Chevron-2024">{{cite news |last1=Daly |first1=Matthew |title=What it means for the Supreme Court to throw out Chevron decision, undercutting federal regulators |url=https://apnews.com/article/supreme-court-chevron-regulations-environment-4ae73d5a79cabadff4da8f7e16669929 |work=Associated Press News |date=28 June 2024}}</ref>

[[File:Gierisch mallow calyx compare.png|thumb|The calyx of the [[Sphaeralcea gierischii|Gierisch mallow]] (left) is smooth compared to that of the more populous [[Sphaeralcea rusbyi|Rusby’s globemallow]]. | upright=1.25]]
[[File:Dusky Seaside Sparrow.jpg|thumb|Dusky Seaside Sparrow |upright=.5]]
Classification boundaries that are imprecise because of geographically remote or interpenetrating [[Hybrid (biology)|hybrid populations]] pose additional challenges for agency staff attempting to ground listing decisions on "best available science."<ref name=Erwin-2017 /><ref name="CZ-2015">{{cite journal |display-authors=etal | last1=Fitzpatrick |first1=Benjamin M |title=Hybridization and the species problem in conservation |journal=Current Zoology |date=February 2015 |volume=61 |issue=1 |pages=206–216 |doi=10.1093/czoolo/61.1.206 |url=https://web.archive.org/web/20170705113342id_/http://www.currentzoology.org/temp/%7B551306A1-83AA-46C4-AF4E-6D8357D33624%7D.pdf}}</ref><ref name="Doremus-2010" /> It is not unusual for listing decisions to become complicated by the presence of hybrids, and the forms of hybridization are diverse. To begin, improvements in [[conservation genomics]] established that the already-listed [[red wolf]] evolved as a hybrid of native [[gray wolves]] and [[coyotes]] who interbred in the eastern states.<ref name="red-wolf-2016">{{cite journal |display-authors=etal |last1=Vonholdt |first1=Bridgett M |title=Whole-genome sequence analysis shows that two endemic species of North American wolf are admixtures of the coyote and gray wolf |journal=Science Advances |date=27 July 2016 |volume=2 |issue=7 |pages=e1501714 |doi=10.1126/sciadv.1501714 |pmid=29713682 |bibcode=2016SciA....2E1714V |pmc=5919777 }}</ref> The problem compounded when the red wolf population managed on a coastal island became populous enough for geographic range experimentation. Individuals released onto the mainland routinely interbred with the far more populous coyotes, and [[genetic swamping]] ensued.<ref name=Erwin-2017 /> Other listed animals embroiled in hybridization controversies include the [[golden-winged warbler]],<ref name="warbler">{{cite web |title=Golden-winged warbler |url=https://www.fws.gov/species/golden-winged-warbler-vermivora-chrysoptera |website=fws.gov |publisher=U.S. Fish and Wildlife Service |access-date=16 November 2024}}</ref> [[westslope cutthroat trout]], the [[wood bison]], and the [[eastern massasauga rattlesnake]].<ref name=Erwin-2017 />

An example for plants in which a taxonomic decision required listing as a distinct species a [[Sphaeralcea|globe mallow]] in Arizona concerns the genus ''[[Sphaeralcea]]''. A 45-page '''Species Status Assessment''' for ''[[Sphaeralcea gierischii]]'' (Gierisch mallow) published by the agency in 2024 notes that it was classified as a distinct mallow species in 2002 "based on unique morphological features." Accordingly, "because it is a recently described species, we do not know its historical range." A complication for assessing its status is that "coarse estimates of overall plant abundance, gaps in monitoring duration, and interannual variation in plant numbers make it difficult to detect trends in Gierisch mallow abundance." Whether hybridization affects any of its populations is unknown.<ref name="mallow-2024">{{cite web |last1=U.S. Fish and Wildlife Service (2024) |title=Species Status Assessment Report for Gierisch Mallow (''Sphaeralcea gierischii'') |url=https://ecos.fws.gov/ServCat/DownloadFile/245491 |website=ecos.fws |access-date=29 November 2024}}</ref> A 2014 publication was cited that "found approximately one-third of interspecific crosses between 30 ''Sphaeralcea'' taxa successful."<ref name="Dreher-2014">{{cite book |last1=Dreher |first1=Stephen Edward |title=Interspecific Hybridization in Sphaeralcea (Malvaceae) |date=2014 |publisher=Claremont Graduate University |url=https://www.proquest.com/openview/deeb4cf19c712c00718918f65a4b4a4c/1?pq-origsite=gscholar&cbl=18750}}</ref>  

Only once has hybridization been an intentional recovery action, known as [[genetic rescue]]. This was applied to the [[Florida panther]] when [[cougars]] from Texas were intentionally released into its habitat to counter ongoing decline owing to [[inbreeding]].<ref name=Erwin-2017 /> This openness to using hybridization to outright save a species contrasted with the agency's decision to deny cross-breeding of the [[dusky seaside sparrow]] with its sister species: [[Scott's seaside sparrow]].<ref name="Zaepfel-1995" /><ref name="Doremus-2010" /> The dusky was declared extinct in 1987.<ref name=Erwin-2017 />

===Critical habitat===

As habitat loss is regarded as the primary threat to most imperiled species,<ref name=ESA-2016 /> Section 4 of the Endangered Species Act of 1973 allowed the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) to designate specific areas as protected [[critical habitat]] zones.{{sfnp|Goble|Scott|Davis|2006|p=89}} The designation of critical habitat does not affect land ownership. It does not allow the government to take or manage private property, nor to establish a refuge, reserve, preserve, or other conservation area. Critical habitat designation does not allow unauthorized government access to private land. Such designation can, however, restrict activities allowable on private lands.<ref>{{Cite web |url=https://www.fws.gov/southeast/endangered-species-act/critical-habitat/|title=Critical Habitat under the Endangered Species Act |website=Southeast Region of the U.S. Fish and Wildlife Service|language=en-US|access-date=2020-02-21}}</ref>

In 1978, Congress [[Endangered Species Act Amendments of 1978|amended the law]] to make critical habitat designation a mandatory requirement for all threatened and endangered species. The amendment also added [[Economy|economics]] into the process of determining such designation. It reads, "...shall designate critical habitat... on the basis of the best scientific data available and after taking into consideration the economic impact, and any other impact, of specifying... area as critical habitat."<ref name="ref" /> The congressional report on the 1978 amendment described a potential controversy that might ensue, given that "economic impact" was included in the amendment:<blockquote>
"... the critical habitat provision is a startling section which is wholly inconsistent with the rest of the legislation. It constitutes a loophole which could readily be abused by any Secretary ... who is vulnerable to political pressure or who is not sympathetic to the basic purposes of the Endangered Species Act."-- House of Representatives Report 95-1625, at 69 (1978){{sfn|Stanford Environmental Law Society|2001|page=68}}
</blockquote>
The controversy did arise and thus the 1982 amendment to the Act explicitly prohibited similar economic considerations when determining the status of a species.<ref name=CBD />

In designating critical habitat, the needs of open space for individual and population growth, food, water, light or other nutritional requirements, breeding sites, seed germination and dispersal needs, and lack of disturbances are considered.<ref name=CBD /> As itemized within a 2008 review paper on the Endangered Species Act, designation of critical habitat is the first priority for agency action following listing of a species. Next is formulation of a recovery plan.<ref name="schwartz-2008">{{cite journal |last1=Schwartz |first1=Mark W |title=The Performance of the Endangered Species Act |journal=Annual Review of Ecology, Evolution, and Systematics |date=2008 |volume=39 |pages=279–299 |doi=10.1146/annurev.ecolsys.39.110707.173538}}</ref> Not all recovery plans, however, specify critical habitat. Setting aside this requirement is authorized if the agency head determines that its designation would not be "prudent."<ref name="CRS-2021" />

[[File:2024 USFWS ESA grants.jpg|thumb|Sample of federal grants in 2024 for endangered species habitat support<ref name="2024-grants">{{cite web |title=Cooperative Endangered Species Conservation Fund Grants Awards Summary: Fiscal Year 2024 |url=https://www.fws.gov/page/cooperative-endangered-species-conservation-fund-grants-awards-summary-fiscal-year-2024 |website=fws.gov |date=July 2024 |publisher=U.S. Fish and Wildlife Service}}</ref>|upright=1.50]]
Most provisions of the ESA revolve around preventing extinction. Critical habitat is one of the few that focus on recovery. A 2005 paper published in the journal ''[[BioScience]]'' concluded that species afforded critical habitat are twice as likely to be recovering than are species without critical habitat.<ref name=TaylorSuckling2005/> A 2016 report published by the [[Ecological Society of America]] stated that data were inconclusive on this matter because "in practice, the Services often exempt habitat degradation from regulation. As a result, designating critical habitat has had limited regulatory effect."<ref name=ESA-2016 /> Overall, disagreement as to the effectiveness of critical habitat designation is expressed in a number of different reports.<ref>{{cite web |last=Mott |first=Maryann |date=18 April 2005 |title=U.S. Endangered Species Act Works, Study Finds |url=http://news.nationalgeographic.com/news/2005/04/0418_050418_endangered_2.html |url-status=dead |archive-url=https://web.archive.org/web/20051025014946/http://news.nationalgeographic.com/news/2005/04/0418_050418_endangered_2.html |archive-date=October 25, 2005 |website=National Geographic News}}</ref><ref name=CBD>Center for Biological Diversity, authors K.F. Suckling, J.R. Rachlinski</ref>{{sfn|Stanford Environmental Law Society|2001|page=86}}

Another controversy arises from the Act specifying that critical habitat designation is required to contain "all areas essential to the conservation" of the imperiled species, and may include private as well as public lands. The Fish and Wildlife Service has a policy limiting designation to lands and waters within the U.S., and both federal agencies may exclude essential areas if they determine that economic or other costs exceed the benefit. The ESA, however, is mute about how such costs and benefits are to be determined.<ref name=ESA-2016 />

All federal agencies are prohibited from authorizing, funding, or carrying out actions that "destroy or adversely modify" critical habitats (Section 7(a) (2)). While the regulatory aspect of critical habitat does not apply directly to private and other non-federal landowners, large-scale development, logging, and mining projects on private and state land typically require one or more federal permits and thus become subject to critical habitat regulations. Outside or in parallel with regulatory processes, critical habitats also focus and encourage voluntary actions such as land purchases, grant making, restoration, and establishment of [[nature reserve|reserves]].<ref name=SucklingTaylor2006>{{harvc| first = Kieran| last=Suckling| first2=M.| last2=Taylor| year=2006| chapter=Critical Habitat Recovery| in1=Goble| in2=Scott| in3=Davis| page=77}}</ref>

The Act's specification of the timing of critical habitat designations has also become problematic. The ESA requires that critical habitat be designated at the time of or within one year of a species being placed on the endangered list. In practice, most designations occur several years after listing.<ref name=SucklingTaylor2006 /> Between 1978 and 1986, the FWS regularly designated critical habitat. In 1986 the [[Ronald Reagan|Reagan administration]] issued a [[regulation]] limiting the protective status of critical habitat. As a result, few critical habitats were designated between 1986 and the late 1990s. In the late 1990s and early 2000s, a series of [[court order]]s invalidated the Reagan regulations and forced the FWS and NMFS to designate several hundred critical habitats, especially in [[Hawaii]], [[California]], and other western states. Midwest and eastern states received less critical habitat, primarily on rivers and coastlines. As of December 2006, the Reagan regulation had not yet been replaced, though its use had been suspended. Nonetheless, the agencies have generally changed course. Since about 2005, both have tried to designate critical habitat at or near the time of listing.<ref name=SucklingTaylor2006 />

A 2020 law review article concluded that critical habitat designations were still far underutilized. A delay in the timing of designations (after listing and thus concurrent with the development of a species recovery plan) would automatically provide "significant amounts of information absent from the species listing stage."<ref name="Berchiolli-2020">{{cite journal |last1=Berchiolli |first1=Justin |title=Stewarding Species: How the Endangered Species Act Must Improve |journal=UC Irvine Law Review |date=March 2020 |volume=10 |issue=3 |pages=1079–1100 |url=https://escholarship.org/uc/item/48w7442w}}</ref>   

A species-specific example of the judiciary setting geographic boundaries on the agency's ability to designate critical habitat happened in 2018. The U.S. Supreme Court ruled that the critical habitat designation of a segment of private timberlands in [[Louisiana]] was invalid because the endangered [[Mississippi gopher frog|dusky gopher frog]] had been extirpated from that state for half a century.<ref name=frog-2018>{{cite news |last1=Wolf |first1=Richard |title=Supreme Court finds unity in decision against the endangered dusky gopher frog |url=https://www.usatoday.com/story/news/politics/2018/11/27/endangered-frog-finds-no-friends-supreme-court/2124206002/ |agency=USA Today |date=27 November 2018}}</ref><ref name="frog-2021">{{cite journal |last1=Knighton Jr |first1=Jeffrey S |title=Critical Decisions: The Challenge of Defining Critical Habitat Under the Endangered Species Act |journal=LSU Journal of Energy Law and Resources |date=Spring 2021 |volume=9 |issue=2 |url=https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=1225&context=jelr}}</ref>

===Climate change as an endangerment cause===

In 2005 the [[Center for Biological Diversity]] petitioned to list the [[polar bear]] as threatened, with critical habitat in Alaska.<ref name="FR-polar-bear-2006">{{cite journal |last1=U.S. Fish and Wildlife Service |title=Endangered and Threatened Wildlife and Plants; Petition To List the Polar Bear as Threatened |journal=Federal Register |date=9 February 2006 |volume=71 |issue=27 |pages=6745–6746 |url=https://www.govinfo.gov/content/pkg/FR-2006-02-09/pdf/06-1226.pdf#page=1}}</ref> [[Climate change]] was among the identified threats.<ref name="Wentz 2022" /> In 2008 the Fish and Wildlife Service issued its decision to list the bear as threatened, while stating that climate change was not amenable to prohibiting or solving within the provisions of the Act:<blockquote>
[[File:Polar Bear AdF.jpg|thumb|''Ursus maritimus''|right|upright=.75]]
Without the requirement of a causal connection between the action under consultation and effects to species, literally every agency action that contributes greenhouse gases to the atmosphere would arguably result in consultation with respect to every listed species or critical habitat that may be affected by climate change. There is currently no way to determine how the emissions from a specific project under consultation both influence climate change and then subsequently affect specific listed species or critical habitat, including polar bears.<ref name="FR-polar-bear-2008">{{cite journal |last1=U.S. Fish and Wildlife Service |title=Endangered and Threatened Wildlife and Plants; Special Rule for the Polar Bear |journal=Federal Register |date=15 May 2008 |volume=73 |issue=95 |pages=28306–28318 |url=https://www.govinfo.gov/content/pkg/FR-2008-05-15/pdf/E8-11144.pdf#page=1}}</ref></blockquote>

[[File:Chinook salmon ESA.png|thumb|Populations of chinook salmon protected as of 2024|right|upright=.75]]
In 2023 another large carnivore, the [[wolverine]], was added to the list "due primarily to the ongoing and increasing impacts of climate change and associated habitat degradation and fragmentation." The word "climate" appears 135 times in its official posting, which entails 46 pages in the ''[[Federal Register]]''.<ref name="FR-wolverine-2023">{{cite journal |last1=U.S. Fish and Wildlife Service |title=Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for North American Wolverine |journal=Federal Register |date=30 November 2023 |volume=88 |issue=229 |pages=83726–83772 |url=https://www.govinfo.gov/content/pkg/FR-2023-11-30/pdf/2023-26206.pdf}}</ref> Rising temperatures and declining snowpack in the contiguous United States (not Alaska) had made cave denning difficult for the remaining populations in the [[Cascade Range]] and [[Rocky Mountains]].<ref name="wolverine-2023">{{cite news |last1=Gorman |first1=Steve |title=US lists wolverine as threatened species, citing climate change |url=https://www.reuters.com/world/us/us-lists-wolverine-threatened-species-citing-climate-change-2023-11-29/#:~:text=Nov%2029%20(Reuters)%20%2D%20The,snowy%20habitat%20from%20climate%20change. |work=Reuters |date=29 November 2023}}</ref> The following year, the southernmost [[subspecies]] of an alpine and tundra bird, the [[white-tailed ptarmigan]], along the west coast of North America was listed as threatened in Washington state because: "The Service has determined that the loss and degradation of its habitat resulting from climate change will endanger the bird in the foreseeable future."<ref>{{cite web |last1=LaValle |first1=Andrew |title=Mount Rainier White-tailed Ptarmigan Federally Listed as Threatened Due to Climate Change Threat |date=July 2024 |url=https://www.fws.gov/press-release/2024-07/mount-rainier-white-tailed-ptarmigan-federally-listed-threatened-due-climate |publisher=U.S. Fish and Wildlife Service |access-date=4 July 2024}}</ref><ref>{{cite web |last1=Washington Department of Fish & Wildlife |title=White-tailed ptarmigan (''Lagopus leucurus saxatilis'') |url=https://wdfw.wa.gov/species-habitats/species/lagopus-leucurus-saxatilis |access-date=4 July 2024}}</ref>

Because distinct populations of [[vertebrate]] species and subspecies can be listed, nine river systems where [[chinook salmon]] spawn are now protected under the Act (see image at right).<ref name="noaa-salmon">{{cite web |last1=NOAA Fisheries |title=Chinook Salmon (Protected) |url=https://www.fisheries.noaa.gov/species/chinook-salmon-protected |website=fisheries.noaa.gov |date=September 12, 2024 |access-date=30 December 2024}}</ref> Salmon spawn in freshwater but mature in marine waters, so both the [[United States Fish and Wildlife Service|Fish and Wildlife Service]] and the [[National Oceanic and Atmospheric Administration]]<ref name="noaa-salmon" /> manage the listing and recovery actions.

===Climate adaptation as a recovery tool===

While [[climate change]] was established in 2008 as a legitimate reason for listing a species, subspecies, or population, [[climate adaptation]] became an option for recovery actions only in 2023. This was when the geographic scope of the regulation pertaining to '''experimental populations''' was amended.<ref name=FWS-10j-2023 /> Although the Endangered Species Act of 1973 did not in itself limit the placement of experimental populations to the '''historical range''' of a plant or animal,<ref name="section-10">{{cite web |title=Section 10. Exceptions |url=https://www.fws.gov/laws/endangered-species-act/section-10 |publisher=U.S. Fish and Wildlife Service |access-date=5 July 2024}}</ref> a regulatory change in 1984 made prospective translocations beyond the native range more difficult to justify.<ref name="Science-2023">{{cite journal |last1=Shirey |first1=Patrick D |last2=Lamberti |first2=Gary A |title=Assisted migration—moving species by translocation |journal=Science |date=22 December 2023 |volume=382 |issue=6677 |page=1350 |doi=10.1126/science.adn3245|pmid=38127744 |url=https://repository.library.noaa.gov/view/noaa/63173 }}</ref><ref name="Ruhl-2008">{{cite journal |last1=Ruhl |first1=J B |title=Climate Change and the Endangered Species Act: Building bridges to the no-analog future |journal=Boston University Law Review |date=2008 |volume=88 |issue=1 |pages=1–62 |url=https://core.ac.uk/download/pdf/55913394.pdf}}</ref>

The importance of amending the experimental populations regulation had been examined in both law review and conservation biology journals. A 2008 law review paper titled "Climate Change and the Endangered Species Act" included a subsection titled "Assisted Migration Through Experimental Populations".<ref name="Ruhl-2008" /> A 2010 paper in ''Conservation Letters'' had pointed out that, while no statutory changes appeared necessary to facilitate this newly proposed form of climate adaptation, "current regulations are an impediment to assisted colonization for many endangered animal species, whereas regulations do not necessarily restrict assisted colonization of endangered plants."<ref>{{cite journal |last1=Shirey |first1=Patrick D |last2=Lamberti |first2=Gary A |title=Assisted colonization under the U.S. Endangered Species Act |journal=Conservation Letters |date=2010 |volume=3 |issue=1 |pages=45–52 |doi=10.1111/j.1755-263X.2009.00083.x |doi-access=free |bibcode=2010ConL....3...45S }}</ref>

[[File:Trillium reliquum.jpg|thumb|The seeds of [[Trillium reliquum|Relict trillium]] are dispersed by ants, hindering its ability to track climate change.<ref name="relict-trillium">{{cite web |title=Species Status Assessment Report for the Relict Trillium (2023) |url=https://ecos.fws.gov/ServCat/DownloadFile/241370 |website=ecos.fws |publisher=U.S. Fish and Wildlife Service |access-date=21 July 2024}}</ref>]]
In June 2022, the U.S. Fish and Wildlife Service published a proposed rule in the ''[[Federal Register]]'' that would "revise section 10(j) regulations under the ESA to better facilitate recovery by allowing for the introduction of listed species to suitable habitats outside of their historical ranges. The proposed change would help improve the conservation and recovery of imperiled ESA-listed species in the coming decades, as growing impacts from [[climate change]] and [[invasive species]] cause habitats within their historical ranges to shift and become unsuitable."<ref>{{cite web |last1=U.S. Fish and Wildlife Service |title=Press release: Department of the Interior Proposes Expanding Conservation Technique as Climate Change Threatens Greater Species Extinction |url=https://fws.gov/press-release/2022-06/department-interior-proposes-proposes-expanding-conservation-technique |website=fws.gov |date=June 6, 2022}}</ref> The comment period ended August 2022, with more than 500 comments posted online by supporters and opponents.<ref>{{cite news |last1=St. George |first1=Zach |title=Last Resort: Moving Endangered Species in Order to Save Them |url=https://e360.yale.edu/features/assisted-migration-endangered-species-climate-change-united-states |publisher=Yale Environment 360 |date=27 October 2022}}</ref>

As reported on the news page of [[Audubon]], adoption of the proposed regulatory change would authorize, for the first time, use of a controversial climate adaptation tool: [[assisted migration]].<ref>{{cite web |last1=McKee |first1=Jenny |title=Wildlife Officials Want to Make it Easier to Relocate Climate-Imperiled Species |url=https://www.audubon.org/news/wildlife-officials-want-make-it-easier-relocate-climate-imperiled-species |website=Audubon |date=June 24, 2022 |access-date=8 September 2022}}</ref>

The U.S. Department of Interior on June 30, 2023, announced its decision to modify the section 10(j) "experimental populations" rule generally as proposed a year earlier.<ref name="sierra-2023">{{cite journal |last1=Thompson |first1=Joanna |title=Assisted Migration Helps Animals Adapt to Climate Change |journal=Sierra Magazine |date=12 October 2023 |url=https://www.sierraclub.org/sierra/assisted-migration-helps-animals-adapt-climate-change}}</ref> The press release summarized the reason for the change as:<blockquote>
At the time the original 10(j) regulations were established, the potential impact of climate change on species and their habitats was not fully realized, yet in the decades since have become even more dramatic. These revisions will help prevent extinctions and support the recovery of imperiled species by allowing the Service and our partners to implement proactive, conservation-based species introductions to reduce the impacts of climate change and other threats such as invasive species.<ref name=FWS-10j-2023>{{cite web |last1=U.S. Department of Interior |title=Press release: Interior Department Takes Action to Strengthen Endangered Species Protections |url=https://www.doi.gov/pressreleases/interior-department-takes-action-strengthen-endangered-species-protections |website=fws.gov |date=June 30, 2023}}</ref></blockquote>

The rulemaking action includes a section summarizing 25 topics entailed in comments submitted in 2022, along with the agency's official response to each.<ref>{{cite journal |last1=U.S. Department of Interior |title=Endangered and Threatened Wildlife and Plants; Designation of Experimental Populations |journal=Federal Register |date=3 July 2023 |volume=88 |issue=126 |pages=42642–42652 |url=https://www.govinfo.gov/content/pkg/FR-2023-07-03/pdf/2023-13672.pdf}}</ref> Pre-existing requirements pertaining to experimental populations in the [[Code of Federal Regulations]] (CFR) still apply. Plans to use "Subpart H: experimental populations" for the purpose of [[climate change adaptation]] thus require public notice and ultimate placement in the "Species-specific rules" subpart of the CFR regulations of the precise geographic and other details.<ref name="CFR-experimental">{{cite web |title=Subpart H: Experimental Populations |url=https://www.ecfr.gov/current/title-50/chapter-I/subchapter-B/part-17/subpart-H |website=Code of Federal Regulations |publisher=U.S. Government |access-date=8 July 2024}}</ref>

[[File:Lycaeides melissa samuelis (cropped).jpg|thumb|Karner blue butterfly|upright=.75]]
Six months after this [[climate change adaptation|climate adaptation]] regulation for listed species was published, the [[National Park Service]] issued a 154-page report on recommendations for halting the decline of the endangered [[Karner blue|Karner blue butterfly]] in its small and scattered populations across the northeastern states. Among the recommendations were "[[managed relocation]]" of populations from the southern parts of its range into northward habitats with suitable conditions and supportive plants. The report justified the managed relocation action by noting that stakeholders and managers "are growing more supportive of novel science-based interventions to save rare species from climate change–driven extirpation."<ref name=nps-2023 />

=== When delisting leads to recreational hunting ===

[[File:Front view of a resting Canis lupus ssp.jpg|thumb|Gray wolf in North America]]
In October 2020, the [[Wolf|Gray wolf]] (but not the [[Mexican wolf]]) was delisted by the federal government in all states. Press releases by the FWS explained the scope and rationale of that action.<ref name="2020-delist-a">{{cite web |title=Trump Administration Returns Management and Protection of Gray Wolves to States and Tribes Following Successful Recovery Efforts (Oct 2020) |url=https://www.fws.gov/press-release/2020-10/trump-administration-returns-management-and-protection-gray-wolves-states-and |website=fws.gov |date=February 19, 2022 |publisher=U.S. Fish and Wildlife Service}}</ref><ref name="2020-delist-b">{{cite web |title=Gray Wolf Final Delisting Determination Questions and Answers FAQ |url=https://www.fws.gov/press-release/2020-10/gray-wolf-final-delisting-determination-questions-and-answers |website=fws.gov |date=February 23, 2022 |publisher=U.S. Fish and Wildlife Service}}</ref> Several lawsuits challenging the delisting were filed in the U.S. District Court for the Northern District of California.<ref name=FR-2023>{{cite journal |last1=U.S. Fish and Wildlife Service |title=Endangered and Threatened Wildlife and Plants; Reinstatement of Endangered Species Act Protections for the Gray Wolf (Canis Lupus) in Compliance With Court Order |journal=Federal Register |date=3 November 2023 |volume=88 |issue=75506 |url=https://www.federalregister.gov/documents/2023/11/03/2023-24299/endangered-and-threatened-wildlife-and-plants-reinstatement-of-endangered-species-act-protections}}</ref> A press release issued by one of the plaintiffs, [[Defenders of Wildlife]], explained, "This decision made wolves vulnerable to hunting, trapping, poisoning, and other lethal controls. Without federal protections, state laws threaten to undo decades of public restoration efforts and prevent the goal of true, nationwide wolf recovery."<ref name="defenders-court">{{cite web |title=District Court Judge to Hear Arguments in Lawsuit to Relist Lower 48 Gray Wolf (Nov 2021) |url=https://defenders.org/newsroom/district-court-judge-hear-arguments-lawsuit-relist-lower-48-gray-wolf |website=defenders.org |date=November 9, 2021 |publisher=Defenders of Wildlife}}</ref> The advocacy group later posted a history of the status and protection of the gray wolf in the lower 48 states, beginning with its endangered listing in 1978, followed by the first reintroduction of the species into [[Yellowstone National Park]] in 1993.<ref>{{cite web |last1=Dewane |first1=Maggie |title=The History of Gray Wolf Protections in the Lower 48 (Feb 2024) |date=February 2, 2024 |url=https://defenders.org/blog/2024/02/history-of-gray-wolf-protections-lower-48-0 |publisher=Defenders of Wildlife |access-date=30 November 2024}}</ref>

In February 2022, the district court vacated and remanded the 2020 delisting rule. That decision reinstated the federal protections that were in place prior to the effective date of the 2020 delisting rule. Gray wolves were thus once again listed as threatened in Minnesota and endangered in all or portions of 44 U.S. states and Mexico. The regional exception where delisting was maintained spanned the 5 states where the Northern Rocky Mountain population had established.<ref name=FR-2023 />
 
The agency once again went to work on creating a formal listing and a plan, which culminated in its posting in November 2023 in the ''Federal Register'' a rulemaking titled "Reinstatement of Endangered Species Act Protections for the Gray Wolf (''Canis Lupus'') in Compliance With Court Order."<ref name=FR-2023 /> More details and justification were set forth in the agency's posting in February 2024 of a Species Status Review for the gray wolf.<ref name="fws-nov-2024-a">{{cite web |title=U.S. Fish and Wildlife Service completes status review and finding for gray wolves in the Western United States; launches National Recovery Plan (Feb 2024) |url=https://www.fws.gov/press-release/2024-02/service-announces-gray-wolf-finding-and-national-recovery-plan |website=fws.gov |date=February 2, 2024 |publisher=U.S. Fish and Wildlife Service}}</ref><ref name="fws-news">{{cite web |title=Gray Wolf Recovery News and Updates |url=https://www.fws.gov/initiative/protecting-wildlife/gray-wolf-recovery-news-and-updates |website=fws.gov |publisher=U.S. Fish and Wildlife Service |access-date=30 November 2024}}</ref> It simultaneously announced the beginning of a new process for what it called a "National Recovery Plan" and explained:<blockquote>

Debate over the management of wolves has included more than two decades of legislation, litigation and rulemaking. Wolf recovery to date has been construed around specific legal questions or science-driven exercises about predicted wolf population status. Courts have invalidated five out of six rules finalized by the Service on gray wolf status, citing at least in part a failure to consider how delisting any particular population of gray wolves affects their status and recovery nationwide.<ref name="fws-nov-2024-a" /></blockquote>

In May 2024, the U.S. House of Representatives passed a bill to delist the wolf that would override any decision by the agency. The Senate did not follow through.<ref name="WPR-2024">{{cite news |last1=Kaeding |first1=Danielle |title=US House passes bill to remove gray wolves from endangered species list |url=https://www.wpr.org/news/u-s-house-passes-bill-to-remove-gray-wolves-from-endangered-species-list |agency=Wisconsin Public Radio |date=1 May 2024}}</ref>

Status of the [[grizzly bear]] outside of Alaska is listed as "threatened." It is therefore "illegal to harm, harass or kill these bears, except in cases of self-defense or the defense of others."<ref name="grizzly-fws">{{cite web |title=Grizzly Bear |url=https://www.fws.gov/species/grizzly-bear-ursus-arctos-horribilis |website=fws.gov |publisher=U.S. Fish and Wildlife Service |access-date=30 November 2024}}</ref> The FWS explains that "Grizzly bear conservation is complex and only made possible through a variety of partnerships with the Interagency Grizzly Bear Committee, state wildlife agencies, Native American Tribes, federal agencies, universities and other organizations."<ref name="grizzly-fws" /> If and when delisting were to occur, state governments would be in charge of authorizing and regulating recreational hunting.<ref name="barton-2024">{{cite news |last1=Barton |first1=Julia |title=If Grizzlies Delisted, Here's What Montana Plans To Do |url=https://mountainjournal.org/is-montana-grizzly-bear-management-plan-really-grizzly-hunting-plan |agency=Mountain Journal |date=3 April 2024}}</ref>

===Reversals in policy track presidential elections===

In October 2019, at the urging of the [[Pacific Legal Foundation]] and the Property and Environment Research Center,<ref>{{cite web |title=Interior announces improvements to the Endangered Species Act |url=https://pacificlegal.org/press-release/interior-announces-improvements-to-the-endangered-species-act/ |website=Pacific Legal Foundation |access-date=14 February 2020 |language=en |date=23 March 2018}}</ref><ref>{{cite web |title=The Road to Recovery |url=https://www.perc.org/2018/04/24/the-road-to-recovery/ |website=PERC |access-date=14 February 2020 |date=24 April 2018 |archive-date=February 15, 2020 |archive-url=https://web.archive.org/web/20200215005455/https://www.perc.org/2018/04/24/the-road-to-recovery/ |url-status=dead }}</ref> the USFWS and the NMFS under [[Donald Trump|President Donald Trump]] changed the §4(d) rule to treat "threatened" and "critically endangered" species differently, legalizing private recovery initiatives and habitats for species that are merely "threatened."<ref>{{cite web |title=USFWS and NMFS Approve Changes to Implementation of Endangered Species Act |url=https://www.cecinc.com/blog/2019/10/16/usfws-and-nmfs-approve-changes-to-implementation-of-endangered-species-act/ |website=Civil & Environmental Consultants, Inc. |access-date=14 February 2020 |date=16 October 2019}}</ref>

Environmental opponents criticized the revision as "crashing like a bulldozer" through the act and "tipping the scales way in favor of industry."<ref>{{Cite news |date=2019-08-12 |title=Environmentalists warn Trump 'weakening' endangered species protections |language=en-GB |work=BBC News |url=https://www.bbc.com/news/world-us-canada-49323321 |access-date=2019-08-13}}</ref><ref>{{cite news |last= Lambert|first=Jonathan|date=August 12, 2019 |title=Trump administration weakens Endangered Species Act|url=https://www.nature.com/articles/d41586-019-02439-1?sf217418138=1|work=[[Nature (journal)|Nature]]|access-date=August 12, 2019}}</ref><ref>{{cite news |last= D'Angelo|first= Chris|date=August 12, 2019 |title=Trump Administration Weakens Endangered Species Act Amid Global Extinction Crisis|url=https://www.huffpost.com/entry/trump-endangered-species-rule_n_5cf7b7b4e4b01713bed4df9b|work=[[The Huffington Post]]|access-date=August 12, 2019 }}</ref><ref name="Colon-2021" /> Some critics, including the [[Sierra Club]], pointed out that these changes came just months after the [[IPBES]] released its ''[[Global Assessment Report on Biodiversity and Ecosystem Services]]'', which found that human activity had pushed a million species of [[flora]] and [[fauna]] to the [[Holocene extinction|brink of extinction]], and would only serve to exacerbate the crisis.<ref>{{cite news |last=Resnick |first=Brian |date=August 12, 2019 |title=The Endangered Species Act is incredibly popular and effective. Trump is weakening it anyway. |url=https://www.vox.com/science-and-health/2019/8/12/20802132/endangered-species-act-trump-weakening |work=[[Vox (website)|Vox]] |access-date=February 16, 2020}}</ref><ref>{{cite news |author=<!--Staff writer(s); no by-line.--> |title=Colorful Tennessee fish protected as endangered |url=https://phys.org/news/2019-10-tennessee-fish-endangered.html |work=[[Phys.org]] |date=October 21, 2019 |access-date=February 16, 2020}}</ref><ref>{{cite web |url=https://www.sierraclub.org/press-releases/2019/08/trump-extinction-plan-guts-endangered-species-act |title=Trump Extinction Plan Guts Endangered Species Act|author=<!--Staff writer(s); no by-line.-->  |date=August 12, 2019 |publisher=Sierra Club |access-date=February 16, 2020}}</ref> The California legislature passed a bill to raise California regulations to thwart the Trump administration changes; it was vetoed by [[Gavin Newsom|Governor Newsom]].<ref>{{cite news |title=Newsom signals he is rejecting far-reaching environmental legislation |url=https://calmatters.org/environment/2019/09/newsom-environment-trump-democrats/ |access-date=14 February 2020 |work=CalMatters |date=15 September 2019}}</ref> In January 2020, the [[House Natural Resources Committee]] reported similar legislation.<ref name="Cronkite News"/> In December 2020, the Trump administration further rolled back the Endangered Species Act by reducing habitat protections for at-risk species, and thus restricting protections to where they currently live—not where they lived previously or where they might migrate to as a result of [[climate change]].<ref>{{cite news |author=<!--Staff writer(s)/no by-line.-->  |date=December 16, 2020 |title=Trump Rolls Back Endangered Species Act, Removes Habitat Protections of At-Risk Animals |url=https://www.democracynow.org/2020/12/16/headlines/trump_rolls_back_endangered_species_act_removes_habitat_protections_of_at_risk_animals |work=[[Democracy Now!]] |access-date=January 4, 2021}}</ref>

In June 2021, the [[Biden administration]] said it was reviewing the Trump era rollback of the Endangered Species Act and planned to reverse or revise some of the changes, in particular those relating to critical habitat regulations. Such reversals became law in May 2024.<ref>{{cite web |last1=U.S. Fish and Wildlife Service |title=Interior Department Finalizes Action to Strengthen Endangered Species Act |date=April 11, 2024 |url=https://www.fws.gov/press-release/2024-04/interior-department-finalizes-action-strengthen-endangered-species-act |access-date=18 April 2024}}</ref> A critic commented, "It seems to be one of those rules/regulations/things going on in Washington D.C. that like to flip-flop with each administration while seeing no actual finality."<ref name="ag-news-2024">{{cite news |last1=Shipp |first1=Haylie |title=Endangered Species Act Implications in the Southeast |url=https://www.aginfo.net/report/59452/Southeast-Regional-Ag-News/Endangered-Species-Act-Implications-in-the-Southeast |agency=Southeast Regional Ag News |publisher=Ag Info Network |date=16 April 2024}}</ref> A December 2024 news article puts the history of presidential election impacts on ESA administration in the context of a second term for [[Donald Trump]].<ref name="E&E-2024">{{cite news |last1=Doyle |first1=Michael |title=The ESA is about to board the Trump roller coaster |url=https://www.eenews.net/articles/the-esa-is-about-to-board-the-trump-roller-coaster/ |agency=E&E News |date=4 December 2024}}</ref>

This regulatory flip-flop was not without precedent:<blockquote>

[[Barack Obama|President Obama]] signaled his desire to reverse the last minute [[George W. Bush|Bush administration]] rule change that became effective on January 15, 2009, by signing a memorandum directing that the Departments of the Interior and Commerce review the regulations impacting the consultation process, and that the agencies resume the traditional consultation process during the review.<ref name="Hickey-2008">{{cite journal |last1=Hickey |first1=Valerie |title=Reauthorizing the Endangered Species Act in Favor of Wildlife and Wild Lands: An Inevitable Result of Narrative Changes in Twenty-First Century America? |journal=Journal of Environmental Law and Litigation |date=2008 |volume=24 |pages=423–454 |url=https://core.ac.uk/download/pdf/36685435.pdf}}</ref></blockquote>

[[File:Sage and Gunnison Grouse Centrocercus urophasianus and minimus distribution map.png|thumb|Sage and Gunnison Grouse ''Centrocercus urophasianus'' and ''minimus'' distribution map]]
The [[greater-sage grouse]] is one declining species for which listing petitions have generated policy responses that flip-flop with presidential (and sometimes Congressional) election results. Because the bird's [[Artemisia (plant)|sagebrush]] habitat ranges through ten western states and because much of that habitat is within the jurisdiction of the [[U.S. Bureau of Land Management]], the affected states have advocated for collaborative decision-making as a more malleable alternative to federal designation of the grouse as a threatened species.<ref name="wyoming-2024">{{cite news |last1=Koshmrl |first1=Mike |title=Federal sage grouse plans panned by Wyoming and environmentalists, praised by others |url=https://wyofile.com/federal-sage-grouse-plans-panned-by-wyoming-and-environmentalists-praised-by-others/#:~:text=A%20Critical%20Call-,Federal%20sage%20grouse%20plans%20panned%20by%20Wyoming%20and%20environmentalists%2C%20praised,the%20grouse%2Dfriendly%20Biden%20administration. |agency=Wyoming News Now |date=13 November 2024}}</ref> The first petition was submitted during the George W. Bush administration, with policy deliberations carrying into President Obama's time in office during which a court order forced a decision on whether or not to list the bird as threatened. "Warranted but precluded" was the decision in 2010 that effectively pushed decision-making into an undetermined future time.<ref name="NYT-2010">{{cite news |last1=Broder |first1=John M |title=No Endangered Status for Plains Bird |url=https://www.nytimes.com/2010/03/06/science/earth/06grouse.html?partner=rss&emc=rss |work=New York Times |date=5 March 2010}}</ref> In April 2014, the Sage-Grouse and Endangered Species Conservation and Protection Act (H.R.4419)<ref>{{cite web |url=http://beta.congress.gov/bill/113th-congress/house-bill/4419 |title=H.R.4419 - Sage-Grouse and Endangered Species Conservation and Protection Act |work=Congress.gov |publisher=Library of Congress |date=8 April 2014 |access-date=29 May 2014 }}</ref> was passed in the [[United States House of Representatives|U.S. House of Representatives]]. This statute prohibited the federal government from listing sage grouse under the Endangered Species Act for 10 years, so long as states prepared and carried out plans to protect the species within their borders.<ref>{{cite news |url=http://wnax.com/news/180081-farm-bureau-supports-sage-grouse-protection-act/ |title=Farm Bureau Supports Sage Grouse Protection Act |work=WNAX Radio 520 |location=Yankton, SD |publisher=Saga Communications, Inc. |date=27 May 2014 |access-date=18 May 2014}}</ref><ref>{{Cite web|title = Can Sage-Grouse Be Saved Without Shutting Down the West?|url = http://news.nationalgeographic.com/2015/05/150519-sage-grouse-endangered-species-west-washington-environment|archive-url = https://web.archive.org/web/20150520220837/http://news.nationalgeographic.com/2015/05/150519-sage-grouse-endangered-species-west-washington-environment/|url-status = dead|archive-date = May 20, 2015|website = National Geographic |access-date = 2015-05-20|first1 = Isabelle|last1 = Groc|date = 2015-05-19}}</ref> A collaborative plan (without formal listing) was finally signed in 2015. It carried through the first Trump administration and into the Biden administration.<ref name="CBD-2024">{{cite web |last1=Center for Biological Diversity |title=Press Release (8 November 2024): Proposed Greater Sage Grouse Plan Amendments Will Continue Bird's Extinction Spiral |url=https://biologicaldiversity.org/w/news/press-releases/proposed-greater-sage-grouse-plan-amendments-will-continue-birds-extinction-spiral-2024-11-08/ |website=biologicaldiversity.org |access-date=14 November 2024}}</ref> A few days after the 2024 election results determined that Donald J. Trump would resume the presidency, the Biden administration offered an updated draft plan.<ref name="wyoming-2024" /> Many national-level environmental groups communicated support for the plan. Several, however, pressed for the outgoing administration to formally list the species as threatened, thereby invoking more environmentally stringent decision-making on resource development proposals on federal lands, especially those administered by the [[U.S. Department of Interior]].<ref name="CBD-2024" /><ref name="wyoming-2024" />

=== Failure to reauthorize the statute ===

Periodic "reauthorization" by Congress of the ESA of 1973 is a statutory requirement to ensure ongoing appropriations. The Act was reauthorized for the first time in 1978 during the [[presidency of Jimmy Carter]]. Reauthorization continued in 1982 and 1988 during the [[presidency of Ronald Reagan]].<ref name="FWS-amendments" /> Four years later another vote for renewal was due, but this did not occur. From 1992 on through at least 2024, reauthorization has never again been accomplished.<ref name="Tompkins-1997">{{cite journal |last1=Tompkins |first1=Eva |title=Reauthorization of the Endangered Species Act - A Comparison of Two Bills That Seek to Reform the Endangered Species Act |journal=Penn State Environmental Law Review |date=Winter 1997 |volume=6 |issue=1 |pages=119–138 |url=https://elibrary.law.psu.edu/cgi/viewcontent.cgi?article=1094&context=pselr}}</ref><ref name="E&E-2023">{{cite news |last1=Doyle |first1=Michael |title=The Endangered Species Act at 50: From popular to polarizing |url=https://www.eenews.net/articles/the-endangered-species-act-at-50-from-popular-to-polarizing/ |agency=E&E News |publisher=Politico |date=3 April 2023}}</ref>

Mandatory funding for the law therefore expired in 1992.<ref name="E&E-2023" /> Even so, partisan compromises that come from the necessity to annually pass an overall federal budget have maintained annual appropriations for continuing enforcement of the Act's provisions.<ref name="Tompkins-1997" /> As interpreted by the [[Congressional Research Service]],<blockquote>

Because the authorization for appropriations expired in FY1992, it is sometimes said that the ESA is not authorized. However, that does not mean that the agencies lack authority to conduct actions or that prohibitions within the act are no longer enforceable; those statutory provisions would continue to be law even if no money were appropriated.<ref name="CRS-ESA-2021">{{cite web |last1=Congressional Research Service |title=The Endangered Species Act: Overview and Implementation (updated March 4, 2021) |url=https://crsreports.congress.gov/product/pdf/R/R46677 |website=crsreports.congress.gov |access-date=4 January 2025}}</ref></blockquote>

A 1996 article attributed the inability of the [[104th United States Congress|104th Congress]] to reauthorize the Act to ongoing polarization that had prevented the [[103rd United States Congress|103rd Congress]] (January 1993 through December 1994) from reauthorizing the Act — even though the [[Democratic Party (United States)|Democratic Party]] had controlled the presidency and both legislative houses during the 103rd.<ref name="Williams-1996">{{cite journal |last1=Williams |first1=Christopher E |title=Finding Common Ground: Conservationists and Regulated Interests Pursue ESA Reform Together |journal=Endangered Species Update |date=June 1996 |volume=13 |issue=6 |pages=1–3 |url=https://deepblue.lib.umich.edu/bitstream/handle/2027.42/39329/als9527.0013.006.pdf?sequence=1}}</ref> A 2009 law review paper attributed increasing polarization in the "reauthorization debates" partly to the [[news media]] having incentives to attract readership by featuring the most dramatic quotations from "divergent narratives" that magnify the divide. As well, interest groups on both sides "shared a perception that the ESA was broken."<ref name="Hickey-2008" /> As well, because any move to reauthorize the Act would also open the prospect for amendment,<ref name="FWS-amendments" /> "legislative gridlock and risk aversion on all political sides" restrain any serious effort to introduce a reauthorization bill.<ref name="Doremus-2010"/>

=== Allocating funds among listed species ===

The Fish & Wildlife Service has developed a four-factor prioritization system for analyzing tradeoffs in distributing funds among the listed species: degree of threat, potential for recovery, taxonomic uniqueness, and conflict with human activities. Even so, the 2016 special report on the Act by the [[Ecological Society of America]] concluded that the agency's decisions on apportioning funds are "more often driven by political and social factors, including congressional representation, the number of employees in field offices, staff workload, and opportunities to form partnerships and secure matching funds."<ref name=ESA-2016 /> As well, the report stated, "Critics point out that recovery efforts are focused disproportionately on charismatic species, to the detriment of others, particularly plants."

As well, there is no requirement that federal agencies (or any other institution) implement any of the actions specified in the recovery plan.<ref name="plos-2023" />

===Cost===
[[File:FWS-endangered-species-expenditures-2020.png|thumb|Report by U.S. Fish and Wildlife Service, fiscal year 2020]]
While [[ecocentric]] views may motivate current supporters of well-funded efforts to implement the ESA, the [[ecocentrism|intrinsic value]] of species was not written into the 1973 statute. According to a 2019 paper published in the journal ''[[Conservation Biology (journal)|Conservation Biology]]'', the highest annual cost linked to the recovery plan of a single species was $38.7 million per year for the delta smelt.<ref name="cost-2019">{{cite journal |last1=Elizabeth Robson |display-authors=etal |first1=Gordon |title=Relative costs of conserving threatened species across taxonomic groups |journal=Conservation Biology |date=2019 |volume=34 |issue=1 |pages=276–281 |doi=10.1111/cobi.13382 |pmid=31264731 |url=https://www.researchgate.net/publication/334178943}}</ref> The statute itself requires the U.S. Fish and Wildlife Service to inform Congress of annual expenditures individually accounted for each species. Its report of 2020 (fiscal year) expenditures entailed many pages of tabulations. One such list organized the species from greatest to least annual expenditures. [[Chinook Salmon]] of Puget Sound was at the top of the list: $62 million. All but one of the 26 highest ranked species live in aquatic habitats; 25 of those are fish. The one exception is the [[North Atlantic right whale]].<ref name="expenditures-2020" />

A reptile first shows up on the list as species rank 27. It is the [[desert tortoise]], and its recovery actions entailed $8 million in 2020. Next comes the [[manatee]] and soon thereafter the first birds: [[northern spotted owl]] and [[red-cockaded woodpecker]]. Those were also in the $8 million range. The [[grizzly bear]] is ranked 46, and it is in the $4 million range. The first insect, [[Oregon silverspot butterfly]] is 139th on the list; its 2020 expenses were $737 thousand. The [[American burying beetle]] is the next insect, at $673 thousand.<ref name="expenditures-2020" />

[[File:Nicrophorus americanus, American Burying Beetle (female) — walking.jpg|thumb|American Burying Beetle|upright=.75]]
One has to scroll down to the 159th highest annual expenditure in order to find the first plant. It is a [[keystone species]] of coastal waters that provides expansive [[ecosystem services]]: [[seagrass]]. Immediately following the seagrass is [[American crocodile]] and [[California condor]]. All three are just under $600 thousand apiece.<ref name="expenditures-2020" />

At the opposite end of financial support are species that received the least in 2020. Of the 1,599 domestic threatened and endangered species ranked in the long series of tables, 668 species were each allocated less than $10,000. One plant, one fish, and one snail were in the lowest rank; each was managed with $100.<ref name="expenditures-2020" />

Cumulative expenditures in fiscal year 2020 for all 1,599 species were also calculated. The total came to $1,083,913,007.<ref name="expenditures-2020" /> This compares to the 2018 fiscal year budget total of $1,269,621,055. The reporting framework differs from year to year. In 2018, the federal government cost for acquiring lands as critical habitat totaled $105,469,496, of which 45% came from the FWS agency budget and the rest from other federal sources.<ref name="FWS-2018">{{cite web |title=Federal and State Endangered and Threatened Species Expenditures (Fiscal Year 2018) |url=https://www.fws.gov/sites/default/files/documents/endangered-and-threatened-species-expenditures-fiscal-year-2018.pdf |website=fws.gov |publisher=U.S. Fish and Wildlife Service}}</ref> Land acquisition expenditures were not included in the 2020 report.<ref name="expenditures-2020" /> As of 2024, the main FWS agency page that lists and links its annual ESA expenditures begins with the 1989 report and runs through 2020. No expenditure reports are listed thereafter.<ref name="FWS-reports-all">{{cite web |title=Endangered and Threatened Species Expenditures Reports |url=https://www.fws.gov/library/collections/endangered-and-threatened-species-expenditures-reports |website=fws.gov |publisher=U.S. Fish and Wildlife Service |access-date=16 November 2024}}</ref>

=== Chronological list of species controversies ===

[[File:Snail darter FWS 1.jpg|thumb|[[Snail darter]]|upright=.75]]
In '''1978''', a small species of fish in the southeastern USA was listed as endangered. A conflict arose because a dam was already under construction within its native range and was scientifically deemed as damaging to its necessary habitat. What came to be known as the [[snail darter controversy]] gained national attention. A U.S. Supreme Court ruling prohibited dam completion, which was then overridden when Congress exempted the [[Tellico Dam]] from provisions of the ESA.<ref name="hcn-2023">{{cite journal |last1=Nijhuis |first1=Michelle |title=The epic history of the Endangered Species Act |journal=High Country News |date=1 December 2023 |url=https://www.hcn.org/issues/55.12/endangered-species-the-epic-history-of-the-endangered-species-act}}</ref> Subsequently, more populations of the species were discovered in rivers other than the [[Little Tennessee River]] where the dam was constructed, and in 2022 the species was removed from the federal endangered list.<ref name="usfws-2022-snail-darter">{{cite journal |last1=U.S. Fish and Wildlife Service |title=Endangered and Threatened Wildlife and Plants; Removing the Snail Darter From the List of Endangered and Threatened Wildlife |journal=Federal Register |date=5 October 2022 |url=https://www.federalregister.gov/documents/2022/10/05/2022-21579/endangered-and-threatened-wildlife-and-plants-removing-the-snail-darter-from-the-list-of-endangered}}</ref> Nonetheless, the fact that the Endangered Species Act effectively halted major construction underway in behalf of a small species of fish put an end to the wide political support that had accompanied passage of the Act.<ref name="hcn-2023" /><ref name="E&E-2023" />

[[File:Gymnogyps californianus -upper body-8.jpg|thumb|[[California condor]]|upright=.50]]
In '''1982''', despite protests from some environmental organizations, the recovery plan for the endangered [[California condor]] began implementing the capture of all 22 wild birds that remained.<ref name="Loller-2023" /><ref>{{cite web |title=California Condor Recovery Program |url=https://www.fws.gov/program/california-condor-recovery |website=U.S. Fish & Wildlife Service |date=December 11, 2023 |access-date=9 January 2024}}</ref> By the early 1990s, the captive breeding effort was successful enough to begin returning some of the progeny to the wild—including the [[Grand Canyon]] from which this [[carrion]]-feeding bird had been missing for at least several centuries. In 2001 the first wild nesting was recorded in the Grand Canyon.<ref>{{cite web |title=Condor Updates: Grand Canyon National Park |url=https://www.nps.gov/grca/learn/nature/condor_updates.htm |website=National Park Service |access-date=9 January 2024}}</ref> As of 2022, the species had a wild population of 350 individuals and a captive population of 214.<ref name=gordon-2023>{{cite web |last1=Gordon |first1=Rob |title=The Endangered Species Act at 50 (December 2023 report) |url=https://www.westerncaucusfoundation.org/wp-content/uploads/2023/12/Endangered-Species-Report-Final.pdf |publisher=Western Caucus Foundation |access-date=18 January 2024}}</ref>

In '''1987''' an extirpated eastern relative of the [[gray wolf]] was reintroduced into [[North Carolina]] following more than a decade of captive breeding. Controversy accelerated when the state wildlife agency liberalized hunting regulations for [[coyote]]s. Because the endangered [[red wolf]] resembles its coyote relative far more than the larger gray wolf does, the number of mistaken shootings of the endangered species began to seriously impact the population. As well, detractors of red wolf protection pointed to the genetic deterioration of later generations of red wolves in the wild, as they easily interbreed with coyotes.<ref name=Defenders-2023 />

[[File:Northern Spotted Owl (8434206372) (cropped).jpg|thumb|[[Northern spotted owl]]|upright=.50]]
In '''1988''' another controversy arose that drew national attention, when the [[Northern spotted owl]] was listed as endangered.<ref name=boyt /> This species depended on intact and mature coastal forests in the states of [[Washington (state)|Washington]], [[Oregon]], and [[California]]. And this, in turn, posed new restrictions on logging of national forest lands in those regions—which severely affected workers in small logging towns. Not until 1994 did adoption by the federal government of the [[Northwest Forest Plan]], along with a community financial aid packet, bring a close to peak hostilities between loggers and those defending owl habitat.<ref name="hcn-2023" /><ref name="hcn-2023b">{{cite journal |last1=Nijhuis |first1=Michelle |title=A Westerner's guide to the Endangered Species Act |journal=High Country News |date=18 December 2023 |url=https://www.hcn.org/articles/endangered-species-a-westerners-guide-to-the-endangered-species-act}}</ref> Preventing human destruction of habitat did not, however, result in species recovery. Natural immigration of a bigger and more aggressive owl species (the [[barred owl]]) that was formerly native only to the eastern states became a major cause of continuing population decline of the spotted owl.<ref name="mapes-2023">{{cite news | display-authors=etal | last1=Mapes |first1=Lynda V |title=Endangered Species Act's 50th anniversary: What 6 NW animals can tell us |url=https://www.seattletimes.com/seattle-news/environment/endangered-species-acts-50th-anniversary-what-6-nw-animals-can-tell-us/ |agency=Seattle Times |date=24 December 2023}}</ref> The government's decision to employ sharpshooters to cull the barred owl population presents a challenging ethical issue within conservation thinking.<ref name="owl-nautilus">{{cite news |last1=Keim |first1=Brandon |title=There will be blood |url=https://nautil.us/there-will-be-blood-726271/ |agency=Nautilus |date=22 July 2024}}</ref>

Another ESA controversy erupted in the '''1990'''s when the [[wolf|gray wolf]] (listed as endangered in the Lower 48 states in 1974) and the [[Mexican wolf]] (listed as endangered in 1976) were reintroduced into core areas of their former native ranges. Because wolves are so wide-ranging and can be expected to occasionally prey upon livestock that ranchers legally graze on federal (even wilderness) lands, announcements of intents to restore these predators to particular federal lands in the Rocky Mountain states generated conflicting views at the outset. Ever after, state authority to manage roaming wolves (and authorize takings and hunts) has been controversial, as well.<ref name="jones-2022">{{cite journal |last1=Jones |first1=Benji |title=How Gray Wolves Divided America |journal=Vox |date=12 February 2022 |url=https://www.vox.com/down-to-earth/22928965/gray-wolves-endangered-species-john-vucetich}}</ref><ref name="hcn-mexican-wolf">{{cite journal |last1=Reese |first1=April |title=The return of the endangered Mexican wolf |journal=High Country News |date=2 July 2021}}</ref>

[[Climate change]] became a legally validated extinction risk when the [[polar bear]] secured a listing as "threatened" in '''2010'''.<ref name=ESA-2016 /> This was the culmination of five years of contention, beginning in 2005 when the [[Center for Biological Diversity]] filed a petition to list the bear as threatened, attributed to data on [[Arctic sea ice decline]] already underway. The Fish and Wildlife Service did not respond to the petition in a timely fashion, resulting in a lawsuit, which in turn prompted an out-of-court settlement that had the agency list the polar bear as threatened in 2008. This time it was the state of [[Alaska]] and industry groups that litigated. The [[United States district court|D.C. district court]] upheld the listing decision, which prompted the plaintiffs to seek an appeals court ruling. Again the agency listing decision was upheld, based in part on the reasonableness of the agency using "widely accepted" climate models.<ref name="Wentz 2022" /> 

[[File:Dusky Gopher Frog-a.jpg|thumb|[[Dusky gopher frog]]|upright=.75]]
By '''2018''', critical habitat designation on private land in [[Louisiana]] for the [[Mississippi gopher frog]] (also known as dusky gopher frog) had become so controversial that the U.S. Supreme Court chose to adjudicate a lower court decision. The result effectively removed the habitat designation as overreach, owing to the species having gone missing from Louisiana a half-century earlier.<ref name=frog-2018 /><ref name=frog-2021 />

In '''2022''', a 6-inch flowering plant, [[Eriogonum tiehmii|Tiehm's buckwheat]], was listed as endangered and accorded critical habitat protection on 910 acres of federal lands in [[Nevada]]. The listing was controversial because mining for [[lithium]] (crucial for [[lithium-ion battery|solar power battery storage]]) was already underway in the area.<ref name="buckwheat-2022">{{cite news |last1=Sonner |first1=Scott |title=Nevada flower listed as endangered at lithium mine site |url=https://apnews.com/article/business-nevada-plants-climate-and-environment-9df49213286bb886e15b87f81a82351f |work=Associated Press News |date=14 December 2022}}</ref> Following the required environmental review and agency consultation, the federal government issued a permit in October 2024 that authorized the lithium mining project to move forward.<ref name="AP-buckwheat">{{cite news |last1=Sonner |first1=Scott |title=Nevada lithium mine wins final approval despite potential harm to endangered wildflower |url=https://apnews.com/article/lithium-mine-endangered-flower-nevada-biden-ioneer-a943364661c24a928d590eb17b00a92b |work=Associated Press News |date=24 October 2024}}</ref> 

[[File:A wolverine (14794534724).jpg|thumb|[[Wolverine]]|upright=1.00]]
In '''2023''', the largest and fiercest member of the [[Mustelidae|weasel family]], the [[wolverine]], was listed as threatened for habitat outside of Alaska. The listing was controversial because [[climate change]] was invoked as a primary cause of the "rising temperatures and declining snowpack" making successful snow cave denning difficult for the remaining populations in the [[Cascade Range]] and [[Rocky Mountains]].<ref name="wolverine-2023">{{cite news |last1=Gorman |first1=Steve |title=US lists wolverine as threatened species, citing climate change |url=https://www.reuters.com/world/us/us-lists-wolverine-threatened-species-citing-climate-change-2023-11-29/#:~:text=Nov%2029%20(Reuters)%20%2D%20The,snowy%20habitat%20from%20climate%20change. |work=Reuters |date=29 November 2023}}</ref><ref name="mapes-2023" /><ref name="wolverine-vox">{{cite news |last1=Peterson |first1=Christine |title=Colorado wants to bring back the wolverine |url=https://www.vox.com/the-highlight/358197/wolverine-colorado-restoration-plan-wildlife-climate-endangered-species-act |agency=Vox |date=5 August 2024}}</ref> The 2023 listing followed a decade of contentious proceedings, starting with the Fish and Wildlife Service itself proposing in 2013 that the wolverine be listed as threatened, then withdrawing its listing proposal the following year. This prompted a successful district court challenge in [[Montana]] by [[Defenders of Wildlife]], based on the agency having "unlawfully ignored the best available science" regarding the impacts of climate change on declining snowpack. On remand, the agency in 2018 once again decided a listing was "unwarranted," and again conservation groups sued in court. As of early 2025, the 2023 official listing as "threatened" has not been challenged.<ref name="Wentz 2022">{{cite journal |last1=Wentz |first1=Jessica |title=Climate Change Attribution Science and the Endangered Species Act |journal=Yale Journal on Regulation |date=2022 |volume=39 |pages=1043–1099 |url=https://openyls.law.yale.edu/bitstream/handle/20.500.13051/18213/09.%20Wentz%20Article%20Final.%201043-1099.pdf?sequence=1}}</ref>  

In '''2024''', climate change was again stated as cause for a listing. The Mount Rainier white-tailed ptarmigan was listed as threatened because: "The Service has determined that the loss and degradation of its habitat resulting from climate change will endanger the bird in the foreseeable future."<ref>{{cite web |last1=LaValle |first1=Andrew |title=Mount Rainier White-tailed Ptarmigan Federally Listed as Threatened Due to Climate Change Threat |date=July 2024 |url=https://www.fws.gov/press-release/2024-07/mount-rainier-white-tailed-ptarmigan-federally-listed-threatened-due-climate |publisher=U.S. Fish and Wildlife Service |access-date=4 July 2024}}</ref> ''Lagopus leucurus saxatilis''<ref>{{cite web |last1=Washington Department of Fish & Wildlife |title=White-tailed ptarmigan (''Lagopus leucurus saxatilis'') |url=https://wdfw.wa.gov/species-habitats/species/lagopus-leucurus-saxatilis |access-date=4 July 2024}}</ref> is one of five subspecies of [[White-tailed ptarmigan]] that depend on arctic or alpine tundra habitats. Listing was initially petitioned in 2010 by the [[Center for Biological Diversity]].<ref>{{cite web |last1=Center for Biological Diversity |title=Mt. Rainier White-tailed Ptarmigan Protected Under Endangered Species Act |url=https://biologicaldiversity.org/w/news/press-releases/mt-rainier-white-tailed-ptarmigan-protected-under-endangered-species-act-2024-07-02/ |access-date=4 July 2024}}</ref>

== Section-by-Section Summaries of the 1973 Act ==

As amended, the Act entails 18 sections.<ref name="FWS-18-sections" /> The substantive policy sections are summarized below.

===Section 4: Listing and Recovery ===
Section 4 of the ESA sets forth the process by which species are designated as endangered or threatened. Species with these designations receive protections under federal law.<ref name="section-4" /> Section 4 also requires critical habitat designation and recovery plans for those species.

====Petition and listing====
To be considered for listing, the species must meet one of five criteria (section 4(a)(1)):

1. There is the present or threatened destruction, modification, or curtailment of its [[habitat]] or range.<br />2. An over use for commercial, recreational, scientific, or educational purposes.<br />3. The species is declining due to disease or [[predation]].<br />4. There is an inadequacy of existing regulatory mechanisms.<br />5. There are other natural or manmade factors affecting its continued existence.

Potential candidate species are then prioritized, with "emergency listing" given the highest priority. Species that face a "significant risk to their well being" are in this category.<ref>{{cite magazine |url=https://www.govinfo.gov/content/pkg/FR-1999-10-22/pdf/99-27689.pdf |date=October 22, 1999 |department=Notices |title=Endangered and Threatened Wildlife; Final Listing Priority Guidance for FY 2000 |magazine=Federal Register |volume=64 |issue=204 |pages=57114–19 |access-date=2024-03-30}}</ref>

A species can be listed in two ways. The [[United States Fish and Wildlife Service]] (FWS) or NOAA Fisheries (also called the [[National Marine Fisheries Service]]) can directly list a species through its candidate assessment program, or an individual or organizational petition may request that the FWS or NMFS list a species. A "species" under the act can be a true [[Taxonomy (biology)|taxonomic]] [[species]], a [[subspecies]], or in the case of vertebrates, a "[[distinct population segment]]." The procedures are the same for both types except with the person/organization petition, there is a 90-day screening period.

During the listing process, economic factors cannot be considered, but must be " based solely on the best scientific and commercial data available."<ref>16 U.S.C. §1533(b)(1)(A)</ref> The 1982 amendment to the ESA added the word "solely" to prevent any consideration other than the biological status of the species. Congress rejected President [[Ronald Reagan]]'s [[Executive order (United States)|Executive Order]] [[s:12291|12291]] which required economic analysis of all government agency actions. The House committee's statement was "that economic considerations have no relevance to determinations regarding the status of species."{{sfn|Stanford Environmental Law Society|2001|page=40}}

The very opposite result happened with the 1978 amendment where Congress added the words "...taking into consideration the economic impact..." in the provision on [[critical habitat]] designation.<ref name="ref">16 U.S.C.  1533(b)(2)</ref>
The 1978 amendment linked the listing procedure with critical habitat designation and economic considerations, which almost completely halted new listings, with almost 2,000 species being withdrawn from consideration.{{sfn|Stanford Environmental Law Society|2001|page=23}}

====Listing process====
After receiving a petition to list a species, the two federal agencies take the following steps, or rulemaking procedures, with each step being published in the ''[[Federal Register]]'', the US government's official journal of proposed or adopted rules and regulations:

1. If a petition presents information that the species may be imperiled, a screening period of 90 days begins (interested persons and/or organization petitions only). If the petition does not present substantial information to support listing, it is denied.

2. If the information is substantial, a status review is started, which is a comprehensive assessment of a species' biological status and threats, with a result of: "warranted", "not warranted," or "warranted but precluded."
* A finding of not warranted, the listing process ends.
* Warranted finding means the agencies publish a 12-month finding (a proposed rule) within one year of the date of the petition, proposing to list the species as threatened or endangered. Comments are solicited from the public, and one or more public hearings may be held. Three expert opinions from appropriate and independent specialists may be included, but this is voluntary.
* A "warranted but precluded" finding is automatically recycled back through the 12-month process indefinitely until a result of either "not warranted" or "warranted" is determined. The agencies monitor the status of any "warranted but precluded" species.<ref>16 U.S.C.  1533 (b)(3)(C)(iii)</ref>
Essentially the "warranted but precluded" finding is a deferral added by the 1982 amendment to the ESA. It means other, higher-priority actions will take precedence.{{sfnp|Goble|Scott|Davis|2006|p=58}}
For example, an emergency listing of a rare plant growing in a wetland that is scheduled to be filled in for housing construction would be a "higher-priority".

3. Within another year, a final determination (a final rule) must be made on whether to list the species. The final rule time limit may be extended for 6 months and listings may be grouped together according to similar geography, threats, habitat or taxonomy.

The annual rate of listing (i.e., classifying species as "threatened" or "endangered") increased steadily from the [[Gerald Ford|Ford]] administration (47 listings, 15 per year) through [[Jimmy Carter|Carter]] (126 listings, 32 per year), [[Ronald Reagan|Reagan]] (255 listings, 32 per year), [[George H. W. Bush]] (231 listings, 58 per year), and [[William Clinton|Clinton]] (521 listings, 65 per year) before decline to its lowest rate under George W. Bush (60 listings, 8 per year as of 5/24/08).<ref name=GreenwaldSuckling2006>{{harvc| first=Noah| last=Greenwald| first2=K.| last2=Suckling| first3=M.| last3=Taylor| year=2006| chapter=Factors affecting the rate and taxonomy of species listings under the U.S. Endangered Species Act| in1=Goble| in2=Scott| in3=Davis| pages=50–67}}</ref>

The rate of listing is strongly correlated with citizen involvement and mandatory timelines: as agency discretion decreases and citizen involvement increases (i.e. filing of petitions and lawsuits) the rate of listing increases.<ref name=GreenwaldSuckling2006/> Citizen involvement has been shown to identify species not moving through the process efficiently,<ref name=Puckett_etal2016/> and identify more imperiled species.<ref name="BrosiBiber2012">{{cite journal|last1=Brosi|first1=Berry J.|last2=Biber|first2=Eric G. N.|title=Citizen Involvement in the U.S. Endangered Species Act|journal=Science|date=2012|volume=337 |issue=6096|pages=802–803|pmid=22903999|s2cid=33599354 |doi=10.1126/science.1220660 |bibcode=2012Sci...337..802B}}</ref> The longer species are listed, the more likely they are to be classified as recovering by the FWS.<ref name=TaylorSuckling2005>{{cite journal |author1=Taylor, M. T. |author2=K. S. Suckling  |author3=R. R. Rachlinski |name-list-style=amp| title=The effectiveness of the Endangered Species Act: A quantitative analysis |journal=BioScience |year=2005 |volume=55 |issue=4 |pages=360–367 |url=http://www.biologicaldiversity.org/swcbd/programs/policy/ch/sub1.html |doi=10.1641/0006-3568(2005)055[0360:TEOTES]2.0.CO;2 |issn=0006-3568| doi-access=free}}</ref>

====Public notice, comments and judicial review====
[[Public notice]] is given through legal notices in newspapers, and communicated to state and county agencies within the species' area. Foreign nations may also receive notice of a listing. A [[Hearing (law)|public hearing]] is mandatory if any person has requested one within 45 days of the published notice.<ref>U.S.C 1533(b)(5)(A)-(E)</ref>
"The purpose of the notice and comment requirement is to provide for meaningful public participation in the rulemaking process." summarized the Ninth Circuit court in the case of ''Idaho Farm Bureau Federation v. Babbitt''.{{sfn|Stanford Environmental Law Society|2001|page=50}}

==== Listing status ====
[[File:Status ESA.svg|thumb|U.S. Endangered Species Act (ESA)]]
Listing status and its abbreviations used in [[Federal Register]] and by federal agencies like the [[United States Fish and Wildlife Service|U.S. Fish and Wildlife Service]]:<ref name="ESA">{{cite web|url=http://epw.senate.gov/esa73.pdf|title=ENDANGERED SPECIES ACT OF 1973|publisher=U.S. Senate Committee on Environment & Public Works|access-date=25 December 2012}}</ref><ref name="FWScodes">{{cite web|url=http://www.fws.gov/endangered/about/listing-status-codes.html|title=Endangered Species Program – Species Status Codes|publisher=U.S. Fish and Wildlife Service|access-date=25 December 2012}}</ref><ref name="eCFR">{{cite web|url=http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=186cb0f38a1b1b6770e432a7eba20553&rgn=div8&view=text&node=50:2.0.1.1.1.2.1.1&idno=50|title=Electronic Code of Federal Regulations, Title 50: Wildlife and Fisheries|publisher=U.S. Government Printing Office|access-date=25 December 2012}}</ref>

* E = '''endangered''' (Sec.3.6, Sec.4.a {{r|ESA}}) – 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.
* T = '''threatened''' (Sec.3.20, Sec.4.a {{r|ESA}}) – any species which is '''likely to become an endangered species''' within the foreseeable future throughout all or a significant portion of its range

:Other categories:

* C = '''candidate''' (Sec.4.b.3 {{r|ESA}}) – a species under consideration for official listing
* E(S/A), T(S/A) = '''endangered''' or '''threatened due to similarity of appearance''' (Sec.4.e {{r|ESA}}) – a species not endangered or threatened, but so closely resembles in appearance a species which has been listed as endangered or threatened, that enforcement personnel would have substantial difficulty in attempting to differentiate between the listed and unlisted species.
* XE, XN = '''experimental essential''' or '''non-essential population''' (Sec.10.j {{r|ESA}}) – any population (including eggs, propagules, or individuals) of an endangered species or a threatened species released outside the current range under authorization of the Secretary. Experimental, nonessential populations of endangered species are treated as threatened species on public land, for consultation purposes, and as species proposed for listing on private land.

====Recovery plan====
Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) are required to create an [[Endangered Species Recovery Plan]] outlining the goals, tasks required, likely costs, and estimated timeline to recover endangered species (i.e., increase their numbers and improve their management to the point where they can be removed from the endangered list).{{efn|The ESA does allow FWS and NMFS to forgo a recovery plan by declaring it will not benefit the species, but this provision has rarely been invoked. It was most famously used to deny a recovery plan to the [[northern spotted owl]] in 1991, but in 2006 the FWS changed course and announced it would complete a plan for the species.}} The ESA does not specify when a recovery plan must be completed. The FWS has a policy specifying completion within three years of the species being listed, but the average time to completion is approximately six years.<ref name=GreenwaldSuckling2006/> The annual rate of recovery plan completion increased steadily from the Ford administration (4) through Carter (9), Reagan (30), Bush I (44), and Clinton (72), but declined under Bush II (16 per year as of 9/1/06).<ref name=GreenwaldSuckling2006/>

The goal of the law is to make itself unnecessary, and recovery plans are a means toward that goal.<ref name="ref_a">16 U.S.C. §1533(f)</ref> Recovery plans became more specific after 1988 when Congress added provisions to Section 4(f) of the law that spelled out the minimum contents of a recovery plan. Three types of information must be included:
* A description of "site-specific" management actions to make the plan as explicit as possible.
* The "objective, measurable criteria" to serve as a baseline for judging when and how well a species is recovering.
* An estimate of money and resources needed to achieve the goal of recovery and delisting.{{sfn|Stanford Environmental Law Society|2001|pages=72-73}}

The amendment also added [[General public|public]] participation to the process. There is a ranking order, similar to the listing procedures, for recovery plans, with the highest priority being for species most likely to benefit from recovery plans, especially when the threat is from construction, or other developmental or economic activity.<ref name="ref_a" /> Recovery plans cover domestic and migratory species.{{sfn|Stanford Environmental Law Society|2001|page=198}}

Beginning in 2016, the FWS augmented standard recovery planning by shifting to a three-part framework. Statutory and regulatory requirements for producing an initial "recovery plan" will still be fulfilled, including opportunities for public comments. The plan is to be written and published in the customary way, and it continues to be subject to the "five year review" process. However, two new kinds of working documents are now developed, posted, and updated as needed for each listed species.<ref name="recovery-planning" />

[[File:Usfs-2016-ssa-full 01.jpg|thumb|"Species Status Assessment Framework" U.S. Fish & Wildlife Service<ref name="SSA" />|right|upright=2.0]]
The first updatable document is a "Species Status Assessment" (SSA). It is "a biological risk assessment to aid decision makers who must use the best available scientific information to make policy decisions under the ESA." As new papers are published and rigorous data collected, the SSA can be updated and reposted as warranted.<ref name="SSA">{{cite web |title=Species Status Assessment |date=August 2016 |url=https://www.fws.gov/project/species-status-assessment |publisher=U.S. Fish and Wildlife Service |access-date=5 July 2024}}</ref> This, in turn, may stimulate changes in the third part of the new framework: the "Recovery Implementation Strategy" (RIS). While recovery actions are policy level decisions that will continue to be delineated in the official recovery plan, the RIS serves as "a short-term, more flexible operational document focused on how, when, and with whom the recovery actions will be implemented."<ref name="recovery-planning" /> A single species may ultimately have a number of RIS documents posted — each pertaining to a different entity, such as a land trust or botanical garden, that steps forward (with or without federal funding) to voluntarily engage in one or more specific recovery actions:<blockquote>

The RIS will be developed with our conservation partners, and focus on the period of time and scope of activities that work best for our partners to achieve recovery goals. Many RISs can be developed, specific to partners and/or activities, and can cover varying timeframes, as needed. If multiple RISs are developed, an 'umbrella framework' or overarching RIS, outlining the relationships and priorities among the individual RISs, is developed to ensure strategic implementation of the overall recovery program for the species.<ref name="recovery-planning" /></blockquote>

====Downlisting and Delisting====
[[File:Glaucomys sabrinus.jpg|thumb|[[Northern flying squirrel]]]]

"Downlisting" of a species can take place when important threats have been controlled and the population in the wild meets recovery objectives. Downlisting entails reclassification from "endangered" to "threatened."<ref>{{Cite web |date=July 2009 |title=Delisting a Species Section 4 of the Endangered Species Act |url=http://www.fws.gov/endangered/factsheets/delisting.pdf |url-status=dead |archive-url=https://web.archive.org/web/20100326130813/http://www.fws.gov/endangered/factsheets/delisting.pdf |archive-date=26 March 2010 |access-date=25 August 2009 |website=U.S. Fish & Wildlife Service}}</ref>

To "delist" a species, several factors are considered: control or elimination of threats, population size and growth in the wild, and the stability of habitat quality and quantity. Species can also be delisted if an error (notably, population size) is found in the data used for listing in the first place. More than a dozen species have been delisted under such circumstances.

Two examples of animal species delisted are: the Virginia [[northern flying squirrel]] (subspecies) in August 2008, which had been listed since 1985, and the [[gray wolf]] (Northern Rocky Mountain DPS). On April 15, 2011, President Obama signed the Department of Defense and Full-Year Appropriations Act of 2011.<ref>{{cite web |date=5 May 2011 |title=Federal Register, Volume 76 Issue 87 |url=http://www.gpo.gov/fdsys/pkg/FR-2011-05-05/html/2011-10860.htm}}</ref> A section of that Appropriations Act directed the Secretary of the Interior to reissue within 60 days of enactment the final rule published on April 2, 2009, that identified the Northern Rocky Mountain population of gray wolf (''Canis lupus'') as a distinct population segment (DPS) and to revise the List of Endangered and Threatened Wildlife by removing most of the gray wolves in the DPS.

The US Fish and Wildlife Service's delisting report lists four plants that have recovered:<ref>{{Cite web |title=Delisting Report |url=http://ecos.fws.gov/tess_public/DelistingReport.do |url-status=dead |archive-url=https://web.archive.org/web/20070728035106/http://ecos.fws.gov/tess_public/DelistingReport.do |archive-date=28 July 2007 |website=USFWS Threatened and Endangered Species System (TESS) |publisher=U.S. Fish & Wildlife Service}}</ref>

<gallery heights="140" widths="140">
File:Eggert's Sunflower.jpg | Eggert's sunflower (''[[Helianthus eggertii]]'')
File:Potentilla robbinsiana 01.jpg | Robbins' cinquefoil (''[[Potentilla robbinsiana]]''), an [[Alpine plant|alpine]] wildflower found in the [[White Mountains (New Hampshire)|White Mountains]] of New Hampshire
File:Erigeron maguirei.jpg | Maguire daisy (''[[Erigeron maguirei]]'')
File:Echinacea tennesseensis Couchville.jpg | Tennessee purple coneflower (''[[Echinacea tennesseensis]]'')
</gallery><br />

=== Section 6: State endangered species lists===
Section 6 of the Endangered Species Act<ref>{{Cite web | url=https://www.law.cornell.edu/uscode/usc_sec_16_00001535----000-.html | title=16 U.S. Code § 1535 - Cooperation with States}}</ref> provided funding for development of programs for management of threatened and endangered species by state wildlife agencies.<ref>16 ''U.S. Code'' 1535</ref><ref name="section-6">{{cite web |title=Section 6. Cooperation with the States |url=https://www.fws.gov/laws/endangered-species-act/section-6 |publisher=U.S. Fish and Wildlife Service |access-date=5 July 2024}}</ref> Subsequently, lists of endangered and threatened species within their boundaries have been prepared by each state. These state lists often include species which are considered endangered or threatened within a specific state but not within all states, and which therefore are not included on the national list of endangered and threatened species. Examples include Florida,<ref>{{Cite web |title=Florida Endangered & Threatened Species List |url=http://myfwc.com/imperiledspecies/species.htm |url-status=dead |archive-url=https://web.archive.org/web/20081225040719/http://myfwc.com/imperiledspecies/species.htm |archive-date=December 25, 2008 |access-date=November 23, 2008}}</ref> Minnesota,<ref>{{Citation |title=MINNESOTA'S LIST OF ENDANGERED, THREATENED, AND SPECIAL CONCERN SPECIES |date=2013 |url=http://files.dnr.state.mn.us/natural_resources/ets/endlist.pdf |access-date=17 December 2023 |publisher=Department of Natural Resources}}</ref> and Maine.<ref>[http://www.maine.gov/ifw/wildlife/species/endangered_species/state_federal_list.htm Compare: Maine State & Federal Endangered & Threatened Species Lists] {{webarchive|url=https://web.archive.org/web/20081207152748/http://www.maine.gov/ifw/wildlife/species/endangered_species/state_federal_list.htm |date=2008-12-07 }} [https://web.archive.org/web/20061002110422/http://ecos.fws.gov/tess_public/SpeciesReport.do with Maine Animals]</ref>

=== Section 7: Cooperation and Consultation ===
{{more citations needed|section|date=December 2020}}

==== Overview ====
Section 7 of the Endangered Species Act requires cooperation among federal agencies to conserve endangered or threatened species.<ref name="section-7">{{cite web |title=Section 7. Interagency Cooperation |url=https://www.fws.gov/laws/endangered-species-act/section-7 |publisher=U.S. Fish and Wildlife Service |access-date=5 July 2024}}</ref> Section 7(a)(1) directs the Secretary of the Interior and all federal agencies to proactively use their authorities to conserve such species. This directive is often referred to as an 'affirmative requirement.' Section 7(a)(2) of the Act requires federal agencies to ensure their actions do not jeopardize listed species or adversely modify critical habitat. Federal agencies (referred to as "action agencies") must consult with the Secretary of the Interior before taking any action which may affect listed species. Section 7(a)(2) is often referred to as the consultation process.

The two agencies that administer the Act are the [[National Marine Fisheries Service]] (NMFS) and the [[United States Fish and Wildlife Service|U.S. Fish and Wildlife Service]] (FWS). These two agencies are often collectively referred to as "the Services" and lead the consultation process. FWS is responsible for the recovery of terrestrial, freshwater, and catadromous species. NMFS is responsible for marine species and anadromous fish. NMFS manages recovery for 165 endangered and threatened marine species including 66 foreign species. As of January 2020, the Services have listed 2,273 species worldwide as endangered or threatened. 1,662 of these species occur in the United States.

==== Section 7(a)(1) ====
Section 7(a)(1) requires federal agencies to work with FWS and NMFS to coordinate endangered and threatened species conservation. Federal agencies should also account for any effects on endangered or threatened species in planning their activities.

An example of the 7(a)(1) process is the Army Corps of Engineers' management of the Lower Mississippi River. Since the early 2000s, a division of the U.S. Army Corps of Engineers has worked with FWS and the states to resolve endangered species and ecosystem management issues. ESA-listed species in the area include the [[least tern]] (''Sterna antillarum''), [[pallid sturgeon]] (''Scaphirhynchus albus''), and the [[fat pocketbook]] (''potamilus capax'').<ref>{{Cite web|url=https://www.fws.gov/mississippies/|title=Mississippi Ecological Field Services Office|website=www.fws.gov|access-date=2020-03-26}}</ref> The goal of this 7(a)(1) conservation plan is to protect listed species while allowing the Corps to carry out its civil works responsibilities. As part of the plan, the Corps undertakes projects that will benefit those species. It also considers species ecology as a part of project design. All three listed species in the Lower Mississippi River have increased in numbers since the plan was established.

==== Section 7(a)(2) ====
An action agency is required to consult with the Services if it has reason to believe that a species listed under the ESA may be present in the proposed project area. It also must consult if the agency believes the action will likely affect the species. This requirement, established by section 7(a)(2), is commonly referred to as the consultation process.

==== Informal consultation phase ====
Consultation typically begins informally at the request of an action agency in the early stages of project planning.<ref>{{Cite web|url=https://www.fws.gov/midwest/endangered/section7/section7.html|title=U.S. Fish and Wildlife Service - Ecological Services|website=www.fws.gov|access-date=2020-03-26}}</ref> Discussion topics include listed species in the proposed action area and any effect(s) the action may have on those species. If both agencies agree that the proposed action is not likely to affect the species, the project moves forward. However, if the agency's action may affect a listed species, the agency is required to prepare a biological assessment.

==== Biological assessments ====
A biological assessment is a document prepared by the action agency. It lays out the project's potential effects, particularly on listed species. The action agency must complete a biological assessment if listed species or critical habitat may be present. The assessment is optional if only proposed species or critical habitat are present.

As a part of the assessment, the action agency conducts on-site inspections to see whether protected species are present. The assessment will also include the likely effects of the action on such species. The assessment should address all listed and proposed species in the action area, not only those likely to be affected.

The biological assessment may also include conservation measures. Conservation measures are actions the agency intends to take to promote the recovery of listed species. These actions may also serve to minimize the projects' effects on species in the project area.

There are three possible conclusions to a biological assessment: "no effect", "not likely to adversely affect", or "likely to adversely affect" listed or proposed species.

The action agency may reach a "no effect" conclusion if it determines the proposed action will not affect listed species or designated critical habitat. The action agency may reach a "not likely to adversely affect" decision if the proposed action is insignificant or beneficial. The Services will then review the biological assessment and either agree or disagree with the agency's findings. If the Services agree the project's potential impacts have been eliminated, they will concur in writing. The concurrence letter must outline any modifications agreed to during informal consultation. If an agreement cannot be reached, the Services advise the action agency to initiate formal consultation.

If the Services or the action agency finds the action "likely to adversely affect" protected species, this triggers formal consultation.

==== Formal consultation====
During formal consultation, the Services establish the project's effects on listed species. Specifically, they address whether the project will jeopardize the continued existence of any listed species or destroy/adversely modify species' designated critical habitat.

"Jeopardy" is not defined in the ESA, but the Services have defined it in regulation to mean "when an action is likely to appreciably reduce a species' likelihood of survival and recovery in the wild." In other words, if an action merely reduces the likelihood of recovery but not survival then the standard of jeopardy is not met.

To assess the likelihood of jeopardy, the Services will review the species' biological and ecological traits. These could include the species' population dynamics (population size, variability and stability), [[Life history theory|life-history]] traits, critical habitat, and how any proposed action might alter its critical habitat. They also consider how limited the species' range is and whether the threats that led to species listing have improved or worsened since listing.

The Services have defined adverse modification as "a diminishment of critical habitat that leads to a lower likelihood of survival and recovery for a listed species." The diminishment may be direct or indirect. To assess the likelihood of adverse modification, biologists will first verify the scope of the proposed action. This includes identifying the area likely to be affected and considering the proximity of the action to species or designated critical habitat. The duration and frequency of any disturbance to the species or its habitat is also assessed.

{{anchor|Biological opinion}}
A formal consultation may last up to 90 days. After this time the Services will issue a biological opinion. The biological opinion contains findings related to the project's effects on listed and proposed species. The Services must complete the biological opinion within 45 days of the conclusion of formal consultation. However, the Services may extend this timeline if they require more information to make a determination. The action agency must agree to the extension.

==== Finding of no jeopardy or adverse modification====
The Services may issue a finding of "no jeopardy or adverse modification" if the proposed action does not pose any harm to listed or proposed species or their designated critical habitat. Alternatively, the Service could find that proposed action is likely to harm listed or proposed species or their critical habitat but does not reach the level of jeopardy or adverse modification. In this case, the Services will prepare an incidental take statement. Under most circumstances, the ESA prohibits "take" of listed species. Take includes harming, killing or harassing a listed species. However, the ESA allows for "incidental" take that results from an otherwise lawful activity that is not the direct purpose of the action.

An incidental take statement will be agreed to between the Services and the action agency. The statement should describe the amount of anticipated take due to the proposed action. It will also include "reasonable and prudent measures" to minimize the take. Incidental take cannot pose jeopardy or potential extinction to species.

==== Finding of jeopardy or adverse modification====
Following formal consultation, the Services may determine that the action will result in jeopardy or adverse modification to critical habitat. If this is the case, this finding will be included in the biological opinion.

However, during consultation, the Services may find there are actions that the agency may take to avoid this. These actions are known as reasonable and prudent alternative actions. In the event of a jeopardy or adverse modification finding, the agency must adopt reasonable and prudent alternative actions. However, the Services retain final say on which are included in the biological opinion.

According to regulation, reasonable and prudent alternative actions must:

* Be consistent with the purpose of the proposed project
* Be consistent with the action agency's legal authority and jurisdiction
* Be economically and technically feasible
* In the opinion of the Services, avoid jeopardy

Given a finding of jeopardy or adverse modification, the action agency has several options:

* Adopt one or more of the reasonable and prudent alternative actions and move forward with the modified project
* Elect not to grant the permit, fund the project, or undertake the action
* Request an exemption from the Endangered Species Committee. Another possibility is to re-initiate consultation. The action agency would do this by first proposing to modify the action
* Propose reasonable and prudent alternatives not yet considered

The action agency must notify the Services of its course of action on any project that receives a jeopardy or adverse modification opinion.

In the past ten years, FWS has made jeopardy determinations in three cases (delta smelt, aquatic species in Idaho, and South Florida water management), each of which has included reasonable and prudent alternatives. No project has been stopped as a result of FWS finding a project had no available path forward.

In rare cases, no alternatives to avoid jeopardy or adverse modification will be available. An analysis of FWS consultations from 1987 to 1991 found only 0.02% were blocked or canceled because of a jeopardy or adverse modification opinion with no reasonable and prudent alternatives.<ref name="Island Press">{{Cite book |title=Endangered species recovery : finding the lessons, improving the process |date=1994 |publisher=Island Press |isbn=1-55963-271-2 |editor-last=Clark |editor-first=Tim W. |location=Washington, D.C. |oclc=30473323 |editor-last2=Reading |editor-first2=Richard P. |editor-last3=Clarke |editor-first3=Alice L.}}</ref> In this scenario, the only option that the action agency and applicant are left with is to apply for an exemption. Exemptions are decided upon by the Endangered Species Committee.

==== Exemptions====
An action agency may apply for an exemption if: (1) it believes it cannot comply with the requirements of the biological opinion; or (2) formal consultation yields no reasonable and prudent alternative actions. The exemption application must be submitted to the [[United States Secretary of the Interior|Secretary of the Interior]] within 90 days of the conclusion of formal consultation.

The Secretary can then recommend the application to the Endangered Species Committee (informally known as "The God Squad"). This committee is composed of several Cabinet-level members:

* The [[Secretary of Agriculture]]
* The [[Secretary of the Army]]
* The Secretary of the Interior
* The Chairman of the [[Council of Economic Advisers]]
* The [[Administrator of the Environmental Protection Agency]]
* The [[Administrator of the National Oceanic and Atmospheric Administration]]
* One representative from each affected State (appointed by the President of the United States)

==== Endangered Species Committee decisions ====
[[File:Northern Spotted Owl.USFWS.jpg|thumb|[[Northern spotted owl]]]]
The governor of each affected state is notified of any exemption applications. The governor will recommend a representative to join the committee for this application decision. Within 140 days of recommending an exemption, the Secretary should submit to the committee a report that gives:

* The availability of reasonable and prudent alternatives
* A comparison of the benefits of the proposed action to any alternative courses of action
* Whether the proposed action is in the public interest or is of national or regional significance
* Available mitigation measures to limit the effects on listed species
* Whether the action agency made any irreversible or irretrievable commitment of resources

Once this information is received, the committee and the secretary will hold a public hearing. The committee has 30 days from the time of receiving the above report to make a decision. In order for the exemption to be granted, five out of the seven members must vote in favor of the exemption.<ref>{{Cite web |last=Rubin |first=Benjamin |date=23 April 2014 |title=Calling on The "God Squad" |url=https://www.endangeredspecieslawandpolicy.com/calling-on-the-god-squad |access-date=2020-03-26 |website=Endangered Species Law & Policy |publisher=Nossaman LLP |language=en-US}}</ref> The findings can be challenged in federal court. In 1992, one such challenge was the case of'' Portland Audubon Society'' v. ''Endangered Species Committee'' heard in the Ninth Circuit Court of Appeals.<ref name="Justia">{{cite web|title=Portland Audubon Society'' v. ''Endangered Species Committee''|url=http://cases.justia.com/us-court-of-appeals/F2/984/1534/356273/|publisher=Justia|access-date=2009-08-26}}</ref>

The court found that three members had been in illegal ''[[ex parte]]'' contact with the then-President George H.W. Bush, a violation of the [[Administrative Procedure Act (United States)|Administrative Procedures Act]]. The committee's exemption was for the [[Bureau of Land Management]]'s timber sale and "incidental takes" of the endangered northern spotted owl in Oregon.<ref name="Justia" />

Rarely does the Endangered Species Committee consider projects for exemption. The Endangered Species Committee has only met three times since the inception of the ESA. An exemption was granted on two of these occasions.

=== Section 10: Permitting, Conservation Agreements, and Experimental Populations ===
Section 10 of the ESA provides a permit system that may allow acts prohibited by Section 9.<ref name="section-10">{{cite web |title=Section 10. Exceptions |url=https://www.fws.gov/laws/endangered-species-act/section-10 |publisher=U.S. Fish and Wildlife Service |access-date=5 July 2024}}</ref> This includes scientific and conservation activities.  For example, the government may let someone move a species from one area to another. This would otherwise be a prohibited taking under Section 9. Before the law was amended in 1982, a listed species could be taken only for [[Biology|scientific]] or research purposes. The combined result of the amendments to the Endangered Species Act have created a more flexible ESA.

More changes were made in the 1990s in an attempt by Secretary of the Interior [[Bruce Babbitt]] to shield the ESA from a Congress hostile to the law. He instituted incentive-based strategies that would balance the goals of economic development and conservation.<ref>{{Cite journal |last=Leshy |first=John D. |date=2001 |title=The Babbitt Legacy at the Department of the Interior: A Preliminary View |url=https://repository.uclawsf.edu/cgi/viewcontent.cgi?article=1381&context=faculty_scholarship |journal=Environmental Law |volume=31 |pages=199–227}}</ref>

==== Habitat conservation plans ====
Section 10 may also allow activities that can unintentionally impact protected species.  A common activity might be construction where these species live. More than half of habitat for listed species is on non-federal property.{{sfn|Stanford Environmental Law Society|2001|page=127}} Under section 10, impacted parties can apply for an incidental take permit (ITP). An application for an ITP requires a [[Habitat Conservation Plan]] (HCP).<ref>{{Cite web |date=10 June 2020 |title=Habitat Conservation Plans {{!}} Overview |url=https://www.fws.gov/Endangered/what-we-do/hcp-overview.html |url-status=dead |archive-url=https://web.archive.org/web/20220201172827/http://www.fws.gov/ENDANGERED/what-we-do/hcp-overview.html |archive-date=1 February 2022 |access-date=28 February 2020 |website=Endangered Species |publisher=U.S. Fish & Wildlife Service}}</ref> HCPs must minimize and mitigate the impacts of the activity. HCPs can be established to provide protections for both listed and non-listed species. Such non-listed species include species that have been proposed for listing. Hundreds of HCPs have been created. However, the effectiveness of the HCP program remains unknown.<ref>{{Cite web|url=https://e360.yale.edu/features/why-isnt-publicly-funded-conservation-on-private-land-more-accountable|title=Why Isn't Publicly Funded Conservation on Private Land More Accountable?|website=Yale E360|language=en-US|access-date=2020-02-28}}</ref>

If activities may unintentionally take a protected species, an incidental take permit can be issued. The applicant submits an application with an habitat conservation plan (HCP). If approved by the agency (FWS or NMFS) they are issued an [[Incidental Take Permit]] (ITP). The permit allows a certain number of the species to be "taken." The Services have a "No Surprises" policy for HCPs. Once an ITP is granted, the Services cannot require applicants to spend more money or set aside additional land or pay more.{{sfn|Stanford Environmental Law Society|2001|pages=170-171}}

To receive the benefit of the permit the applicant must comply with all the requirements of the HCP. Because the permit is issued by a federal agency to a private party, it is a federal action. Other federal laws will apply such as the [[National Environmental Policy Act]] (NEPA) and Administrative Procedure Act (APA). A notice of the permit application action must be published in the ''Federal Register'' and a public comment period of 30 to 90 days offered.{{sfn|Stanford Environmental Law Society|2001|pages=147-148}}

==== Safe Harbor Agreements ====
The "Safe Harbor" agreement (SHA) is similar to an HCP. It is voluntary between the private landowner and the Services.<ref>{{Cite web |date=30 January 2020 |title=For Landowners {{!}} Safe Harbor Agreements |url=https://www.fws.gov/endangered/landowners/safe-harbor-agreements.html |url-status=dead |archive-url=https://web.archive.org/web/20220119181308/http://www.fws.gov/endangered/landowners/safe-harbor-agreements.html |archive-date=19 January 2022 |access-date=28 February 2020 |website=Endangered Species |publisher=U.S. Fish & Wildlife Service}}</ref> The landowner agrees to alter the property to benefit a listed or proposed species. In exchange, the Services will allow some future "takes" through an Enhancement of Survival Permit. A landowner can have either a "Safe Harbor" agreement or an HCP, or both. The policy was developed by the Clinton administration.{{sfn|Stanford Environmental Law Society|2001|pages=168-169}} Unlike an HCP the activities covered by a SHA are designed to protect species. The policy relies on the "enhancement of survival" provision of Section §1539(a)(1)(A). Safe harbor agreements are subject to public comment rules of the APA.

==== Candidate Conservation Agreements With Assurances ====
HCPs and SHAs are applied to listed species. If an activity may "take" a proposed or candidate species, parties can enter into Candidate Conservation Agreements With Assurances (CCAA).<ref>{{Cite web |date=30 January 2020 |title=Candidate Conservation {{!}} Candidate Conservation Agreements with Assurances Policy |url=https://www.fws.gov/endangered/what-we-do/ccaa-policy.html |url-status=dead |archive-url=https://web.archive.org/web/20220130213404/https://www.fws.gov/endangered/what-we-do/ccaa-policy.html |archive-date=30 January 2022 |access-date=2020-02-28 |website=Endangered Species |publisher=U.S. Fish & Wildlife Service}}</ref> A party must show the Services they will take conservation measures to prevent listing. If a CCAA is approved and the species is later listed, the party with a CCAA gets an automatic "enhancement of survival" permit under Section §1539(a)(1)(A). CCAAs are subject to the public comment rules of the APA.

==== Experimental populations ====
Experimental populations are listed species that have been intentionally introduced to a new area. They must be separate geographically from other populations of the same species. Experimental populations can be designated "essential" or "non-essential"<ref>{{Cite web|url=https://www.fws.gov/southeast/tags/non-essential-experimental-population/|title=Non-Essential Experimental Population|website=Southeast Region of the U.S. Fish and Wildlife Service|language=en-US|access-date=2020-02-28}}</ref> "Essential" populations are those whose loss would appreciably reduce the survival of the species in the wild. "Non-essential" populations are all others. Nonessential experimental populations of listed species typically receive less protection than populations in the wild.{{Citation needed|date=December 2023}}

====Penalties====
There are different degrees of violation with the law. The most punishable offenses are trafficking, and any act of knowingly "taking" (which includes harming, wounding, or killing) an endangered species.{{Citation needed|date=December 2023}}

The penalties for these violations can be a maximum fine of up to $50,000 or imprisonment for one year, or both, and [[civil penalties]] of up to $25,000 per violation may be assessed. Lists of violations and exact fines are available through the [[National Oceanic and Atmospheric Administration]] web-site.<ref>{{Citation |title=ENDANGERED SPECIES ACT PENALTY SCHEDULE |date=5 January 2001 |url=https://www.gc.noaa.gov/schedules/6-ESA/EnadangeredSpeciesAct.pdf |access-date=17 December 2023}}</ref>

One provision of this law is that no penalty may be imposed if, by a [[preponderance of the evidence]] that the act was in self-defense. The law also eliminates criminal penalties for accidentally killing listed species during farming and ranching activities.<ref>{{Cite web |date=24 November 2009 |title=Endangered Species Habitat Conservation Planning |url=http://www.fws.gov/Endangered/hcp/ |url-status=dead |archive-url=https://web.archive.org/web/20100406020407/http://www.fws.gov/Endangered/hcp/ |archive-date=6 April 2010 |access-date=17 December 2023 |website=Endangered Species Program}}</ref>

In addition to fines or imprisonment, a license, permit, or other agreement issued by a federal agency that authorized an individual to import or export fish, wildlife, or plants may be revoked, suspended or modified. Any federal hunting or fishing permits that were issued to a person who violates the ESA can be canceled or suspended for up to a year.{{Citation needed|date=December 2023}}

====Use of money received through violations of the ESA====
A reward will be paid to any person who furnishes information which leads to an arrest, conviction, or revocation of a license, so long as they are not a local, state, or federal employee in the performance of official duties. The Secretary may ''also'' provide reasonable and necessary costs incurred for the care of fish, wildlife, and forest service or plant pending the violation caused by the criminal. If the balance ever exceeds $500,000 the Secretary of the Treasury is required to deposit an amount equal to the excess into the cooperative endangered species conservation fund.{{Citation needed|date=December 2023}}

==See also==

* ''[[Lujan v. Defenders of Wildlife]]''
* [[Marine Mammal Protection Act of 1972]]
* [[United States Fish and Wildlife Service list of endangered mammals and birds]]

==Footnotes==
{{notelist}}
{{Reflist|30em}}
==References and further reading==
* Brown, Gardner M., and Jason F. Shogren. "Economics of the endangered species act." ''Journal of Economic Perspectives'' 12.3 (1998): 3-20. [https://pubs.aeaweb.org/doi/pdfplus/10.1257/jep.12.3.3 online]
* Carroll, Ronald, et al. "Strengthening the use of science in achieving the goals of the Endangered Species Act: an assessment by the Ecological Society of America." ''Ecological Applications'' 6.1 (1996): 1–11. [https://www.esa.org/pao/policyStatements/Papers/StrentheningUSAGESA.php online]
*Corn, M. Lynne and Alexandra M. Wyatt. [https://fas.org/sgp/crs/misc/RL31654.pdf The Endangered Species Act: A Primer.] [[Congressional Research Service]] 2016.
* Czech, Brian, and Paul R. Krausman. ''The endangered species act: history, conservation biology, and public policy'' (JHU Press, 2001).
* Doremus, Holly. "Listing decisions under the Endangered Species Act: why better science isn't always better policy." ''Washington U Law Quarterly'' 75 (1997): 1029+ [http://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1579&context=law_lawreview online]
* Doremus, Holly. "Adaptive Management, the Endangered Species Act, and the Institutional Challenges of New Age Environmental Protection." ''Washburn Law Journal'' 41 (2001): 50+ [https://web.archive.org/web/20200225160327/https://pdfs.semanticscholar.org/ab35/6dd75442b36d75c4b0e772e41e7b80235b45.pdf online].
* Easter-Pilcher, Andrea. "Implementing the endangered species act." ''Bioscience'' 46.5 (1996): 355–363. [https://academic.oup.com/bioscience/article-pdf/46/5/355/1301415/46-5-355.pdf online]
* {{cite book |editor-last1=Goble |editor-first1=Dale |editor-last2=Scott |editor-first2=J. Michael |editor-last3=Davis |editor-first3=F. W. |title=The Endangered Species Act at Thirty: Vol. 1: Renewing the Conservation Promise |publisher=Island Press |year=2006 |location=Washington, DC |isbn=1597260096}} [https://www.amazon.com/Endangered-Species-Act-Thirty-Conservation/dp/1597260096/ excerpt]
* {{cite book |last1= Green |first1= Alan |author2= The Center for Public Integrity |title= Animal Underworld: Inside America's Black Market for Rare and Exotic Species |publisher= Public Affairs |year= 1999 |isbn= 978-1-58648-374-6 |url=https://books.google.com/books?id=FSlIpPz1HIwC&pg=PA113 }}
* Leshy, John D. "The Babbitt Legacy at the Department of the Interior: A Preliminary View." ''Environmental Law'' 31 (2001): 199–227. [http://repository.uchastings.edu/cgi/viewcontent.cgi?article=1381&context=faculty_scholarship online]
* Noss, Reed F., Michael O'Connell, and Dennis D. Murphy. ''The science of conservation planning: habitat conservation under the Endangered Species Act'' (Island Press, 1997).
* Petersen, Shannon. "Congress and charismatic megafauna: A legislative history of the endangered species act" ''Environmental Law'' 29 (1999): 463–491.
* Schwartz, Mark W. "The performance of the endangered species act." in ''Annual Review of Ecology, Evolution, and Systematics'' 39 (2008) [https://web.archive.org/web/20201027012030/https://pdfs.semanticscholar.org/b404/93031b53c8dd75655bb89737262fc67c3c9e.pdf online].
* {{cite book |author1=Stanford Environmental Law Society |title=The Endangered Species Act |date=2001 |publisher=Stanford University Press |isbn=0804738432 |edition=Illustrated |url=https://books.google.com/books?id=-aJp_ca6-psC}}
* Taylor, Martin FJ, Kieran F. Suckling, and Jeffrey J. Rachlinski. "The effectiveness of the Endangered Species Act: a quantitative analysis." ''BioScience'' 55.4 (2005): 360–367. [https://academic.oup.com/bioscience/article-pdf/55/4/360/26896815/55-4-360.pdf online]

==External links==
* [https://www.law.cornell.edu/uscode/text/16/chapter-35 As codified in 16 U.S.C. chapter 35] of the [[United States Code]] from the Legal Information Institute
* [https://uscode.house.gov/browse/prelim@title16/chapter35&edition=prelim As codified in 16 U.S.C. chapter 35] of the [[United States Code]] from the [[United States House of Representatives|US House of Representatives]]
* [https://www.govinfo.gov/content/pkg/COMPS-3002/uslm/COMPS-3002.xml Endangered Species Act of 1973] ([https://www.govinfo.gov/content/pkg/COMPS-3002/pdf/COMPS-3002.pdf PDF]/[https://www.govinfo.gov/app/details/COMPS-3002/ details]) as amended in the [[United States Government Publishing Office|GPO]] [https://www.govinfo.gov/help/comps Statute Compilations collection]
* ''[http://straylight.law.cornell.edu/supct/html/94-859.ZO.html Cornell University Law School-Babbit v. Sweet Home]'' accessed July 25, 2005, The 1995 decision on whether significant habitat modifications on private property that actually kill species constitute "harm" for purposes of the ESA.
* [http://www.biologicaldiversity.org Center for Biological Diversity] accessed July 25, 2005
* [http://www.fws.gov/endangered/about/ Endangered Species Program – US Fish & Wildlife Service] accessed June 16, 2012
* [http://www.nmfs.noaa.gov/pr/laws/esa/ Endangered Species Act – National Marine Fisheries Service – NOAA] accessed June 16, 2012
* [http://www.fws.gov/endangered/about/listing-status-codes.html Species Status Categories and Codes – US Fish & Wildlife Service] accessed June 16, 2012
* [http://www.fws.gov/endangered/what-we-do/hcp-overview.html Habitat Conservation Plans – US Fish & Wildlife Service] accessed June 16, 2012
* [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=437&invol=153 The 1978 decision related to the ESA and the snail darter.] accessed July, 2005
* [https://web.archive.org/web/20041108000216/http://ecos.fws.gov/tess_public/TESSBoxscore Summary of Listed Species Listed Populations and Recovery Plans – US Fish & Wildlife Service] accessed June 16, 2012
* [http://www.fws.gov/endangered/species/index.html Species Search – US Fish & Wildlife Service] accessed June 16, 2012
* [https://web.archive.org/web/20120828182220/http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=186cb0f38a1b1b6770e432a7eba20553&rgn=div8&view=text&node=50%3A2.0.1.1.1.2.1.1&idno=50 Electronic Code of Federal Regulations: List of endangered species] accessed June 16, 2012

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