Endangered Species Act's Conservation & Consultation Requirements

Conservation of Species

The purpose of the Endangered Species Act (ESA) is to "provide a program for the conservation of…endangered species and threatened species" and to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved." 16 U.S.C. § 1531(b) (1994 & Supp. 1997). The overarching policy of the ESA is that all federal departments and agencies must use their authorities to conserve species that the Secretary of Interior or Commerce lists as threatened or endangered. 16 U.S.C. § 1531(c)(1). The terms "conserve" and "conservation" mean "to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary." 16 U.S.C. § 1532(3).

Listing of Species as Threatened or Endangered

The ESA requires the Secretary of Interior or Commerce to list species that he believes may become extinct in the near future as either "threatened" or "endangered." 16 U.S.C. § 1533. A species is endangered if it "is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A species is "threatened" if it "is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. § 1532(20). The Secretary defines jeopardy to an endangered or threatened species as "an appreciable reduction in the likelihood of both survival and recovery of a species." 50 C.F.R. § 402.02 (1999).

Consultation with Federal Action Agencies

Section 7 of the ESA enumerates the substantive and procedural obligations of federal agencies with respect to listed species. 16 U.S.C. § 1536. First, all federal agencies are under an affirmative duty to use their authorities in consultation with the Secretary of Interior or Commerce to conserve listed species. Second, all federal agencies are under an obligation to insure that "any action authorized, funded, or carried out by such agency…is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of critical habitat of such species…." 16 U.S.C. § 1536(a)(2). In meeting this duty to insure, each agency is required to use the best scientifically and commercially available data. Id.

When the "action" agency determines that the proposed action may affect listed species, it must prepare a Biological Evaluation under section 7(c) of the Endangered Species Act determine whether the action is or is not "likely to adversely affect" the relevant species. 16 U.S.C. 1536(c). If the biological evaluation indicates that that the proposed action will likely adversely affect listed species, the action agency is required to initiate formal consultation with the Services. 50 C.F.R. § 402.14. The action agency submits its Biological Evaluation, and based on that information, National Marine Fisheries Service (NMFS) or Fish and Wildlife Service (FWS), or both, prepare a formal Biological Opinion discussing the direct, indirect, and cumulative impacts of the action on the listed species. 50 C.F.R. § 402.14. The Biological Opinion must conclude whether the proposed action will jeopardize the continued existence of the species. 16 U.S.C. § 1536(b).

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