Piping Plover Charadrius melodus John James Audubon

The Endangered Species Act

Part 3: ESA Prohibitions

The ESA prohibits the "taking" of endangered species. Taking is defined as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" listed species. "Harm" includes destruction of a listed species' habitat.

The act's prohibition on taking does not extend to listed plant species. However, on public lands, it is illegal to "remove or reduce to possession," or to "maliciously damage or destroy" threatened or endangered plants. Protection of listed plants is significantly weaker on private lands, where it is illegal to "remove, cut, dig up, or damage or destroy [flora]" only when it is "in knowing violation of any state law or in the course of any violation of state criminal trespass law."

In addition, federal agencies are required to consult with the FWS or NMFS to ensure that any action authorized, funded, or carried out by that agency is "not likely to jeopardize the continued existence of any threatened or endangered species" or to destroy the critical habitat of any such species. Any agency proposing a project must therefore ask FWS or NMFS if there are any threatened or endangered species in the project area. If a listed species is present, the agency proposing the action must prepare a "biological assessment" that identifies listed species in the area and outlines the nature and extent of the action's impact on these species. FWS or NMFS then determines if a "formal consultation" is necessary.

If the biological assessment indicates that the proposed project could affect a listed species, the Secretary is required to prepare a "biological opinion" that determines formally whether the project would cause "jeopardy" to the continued existence of a listed species. If the biological opinion indicates no jeopardy, then the project proceeds.

If the opinion indicates that the project, as proposed, would cause jeopardy to listed species, then FWS and NMFS are required to suggest "reasonable and prudent alternatives" that would not jeopardize the species' existence. If the agency cannot suggest reasonable and prudent alternatives, the proposed project is denied.

Of the more than 195,000 federal actions reviewed under the ESA between 1979 and 1995, only about 0.05 percent were withdrawn or canceled because they would have jeopardized a listed species. The vast majority of federal projects continue after consultation with only minor alterations to protect a listed species.

Part 4: Exceptions to ESA prohibitions