Rare Plant Program
The Federal Endangered Species Act and Rare Plant Protection in California
Jim A. Bartel, Jan C. Knight, and Diane R. Elam
The Federal Endangered Species Act (Act or ESA) was designed by Congress to slow or stop anthropogenic extinctions of fish, wildlife, and plants in the United States as well as of certain foreign species and species threatened by nonhuman causes. The ESA was signed by President Richard Nixon in December 1973. It repealed much of the Endangered Species Conservation Act of 1969, which had replaced the Endangered Species Preservation Act of 1966. Substantive changes made in the ESA of 1973 included (1) the extension of Federal protection to plants and to animals other than vertebrates, mollusks, and crustaceans, and (2) the establishment of a category for threatened species, to protect plant and animal species before they reach dangerously low numbers. Although amended several times since 1973, the Endangered Species Act was last reauthorized/amended in 1988. According to Houck (1993), the Act remains “America’s most controversial environmental law.” The Act is administered primarily by the U.S. Fish and Wildlife Service in the Department of the Interior, and to a lesser extent, by the National Marine Fisheries Service in the Department of Commerce. The discussion below focuses on the U.S. Fish and Wildlife Service’s (Service) implementation of the ESA.
Terminology under the Endangered Species Act
Proposed endangered and threatened species are those species for which a proposed regulation, but not a final rule, has been published in the Federal Register. Candidates are taxa for which the Service has sufficient information on biological status and threats to proposed them as endangered or threatened under the ESA, but for which development of a proposed listing regulation is precluded by other higher priority listing activities. The Service periodically publishes a notice of review in the Federal Register listing the current candidate and proposed species. In the most recent notice, published on October 25, 1999 (Federal Register 64:57534-57547), California had 7 candidate, 12 proposed and 167 federally listed plant taxa. Of the 167 listed plants, approximately 21% are largely or entirely restricted to particular substrates (i.e., serpentine, gabbro, ione or carbonate) and approximately 15% inhabit vernal pools. Regarding the future proposal of candidate species, the Service finalized new guidelines for assigning priorities for listing endangered and threatened species under the ESA for fiscal years 1999 and 2000 on October 22, 1999 (Federal Register 64:57114-57119). This guidance allows the Service to allocate funds and resources to the species that are in the greatest need of protection (see also Listing below).
In December 1996, the Service simplified its designation of candidate species (Federal Register 61:64481-64485). Candidate species were formerly divided into categories. Category 1 candidates were species for which sufficient information was available to support a proposed listing as threatened or endangered, but which were awaiting publication of a formal listing proposal. Category 2 candidates were species for which sufficient information was unavailable to make a listing determination. Taxa formerly considered candidates and included on past lists were considered in a third category (category 3). Category 3 was divided into extinct taxa (3A), taxonomically invalid taxa or those not meeting the Service’s definition of a species (3B), and taxa considered too widespread or not threatened when the designation was made (3C). The Service’s December 1996 decision discontinued the maintenance of a list of category 2 and 3 candidate taxa. The Service now lists as candidates only those species for which sufficient information is on file to support issuing a proposed rule.
Protection under the Endangered Species Act
Candidate species are not protected under the Endangered Species Act. Although some level of protection or management consideration is given to candidates by most Federal agencies (e.g., U.S. Forest Service, Bureau of Land Management, U.S. Fish and Wildlife Service), such policies are not mandatory under the Endangered Species Act, and they should not be confused with legal mandates of the Act. The Service is, however, required by Section 4(b)(C)(iii) of the Act to monitor the status of candidate taxa “to prevent their extinction while awaiting listing.”
The Service, upon request, provides “technical assistance” to Federal, state, and local agencies, on the appropriate conservation and management of candidate species. Interagency or conservation agreements between the Service and other Federal agencies can be developed to protect the candidates. This approach is illustrated by an agreement reached with the Forest Service to protect the Rawson's flaming trumpet (Collomia rawsoniana). Non-federal landowners may also enter into candidate conservation agreements with the Service for proposed species, candidate species, and species that are likely to become candidates in the near future. Under such agreements, the property owner commits to implementation of voluntary conservation measures for the species covered in the agreement. The property owner may receive assurances from the Service that additional conservation measures will not be required and additional land, water or resource use restrictions will not be imposed if the species covered in the agreement become listed in the future (minimum requirements and conditions that must be met are codified in Federal Register 64:32706-32736 and Federal Register 64:52676). The goal of candidate conservation agreements is to remove enough threats to the covered species to preclude the need to list the taxa as endangered or threatened under the Act.
Proposed species are given limited protection under the ESA. Federal agencies must consider proposed taxa in biological assessments (documents required by Section 7 of the Act for certain Federal projects or actions). Federal agencies must also “confer” with the Service regarding any action or project “likely to jeopardize the continued existence” of a proposed species. During such a “conference,” the Service typically reviews proposed project plans and determines the likely effects of a Federal action on a proposed species. Like the technical assistance provided by the Service for candidates, a conference is only an advisory process. Any recommendations to modify or abandon the project and/or undertake protective measures for proposed species are not mandatory on the Federal agency conferring with the Service.
Listed Endangered or Threatened Species
Listing. Once listed via a final rule in the Federal Register, endangered and threatened plants receive the full protection of the ESA. The listing process is covered by Section 4 of the Act. To determine whether a species should be listed, the Service evaluates five factors: (1) the present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) the inadequacy of existing regulatory mechanisms; and (5) other natural or man-made factors affecting its continued existence. The Service publishes guidance for assigning relative priorities to listing actions conducted under Section 4 of the Act annually since the listing backlogs that remained from the 1995-1996 moratorium and funding recision by Congress. In general, the Service places the highest priority on listing actions that will provide the greatest conservation benefits to imperiled species. The listing priority guidance for fiscal years 1999 and 2000 (Federal Register 64:57114-57119) gives highest priority to emergency listing actions, second priority to processing final decisions on proposed listings, third priority to resolving the conservation status of candidate species (new proposed rules or candidate removal), and fourth priority to petition findings.
The listing process may be initiated either through citizen petitions or internal Service actions. Listing proposals generated internally by the Service have no particular timetables but are prioritized according to (1) listing priority numbers assigned when a species is designated a candidate for listing and (2) the current listing priority guidance. Highest priority for listing proposals is given to species with imminent threats and high recovery potential. Taxonomic uniqueness is also a factor considered in assigning listing priority, with monotypic genera receiving higher priority than species or subspecies with similar threats and recovery potential. Listings petitioned by individuals or organizations are subject to a schedule imposed in Section 4 (b) of the ESA. Within 90 days of receiving a petition, the Service must publish a finding in the Federal Register indicating whether the petition action presents substantial information indicating that the petitioned action may be warranted. If the petition is found to be “substantial,” the Service must determine whether the petitioned action is “warranted” within 12 months of receiving the petition. If the Service determines that the petitioned action is warranted, it may (1) publish a proposed rule concurrent with the 12 month finding or (2) determine that the petitioned action is warranted but precluded by higher priority listing actions. When a petition is found not to be warranted, the Service publishes a “not warranted” finding in the Federal Register.
Regardless of how the listing process was initiated, when a taxon is proposed for listing, a proposed rule or regulation is published in the Federal Register. Public comment and peer review are solicited by the Service. “Peer review” is incorporated into the listing process according to a July 1, 1994 policy (Federal Register 59:34270), which states that the “expert opinions of three appropriate and independent specialists” will be solicited. Public comment and peer review are evaluated and summarized in the final decision document regarding the listing.
If a taxon is proposed for listing, a final rule listing the species (or a withdrawal) must be published in the Federal Register within 1 year of the publication of the proposal. The 1-year period before publication of a final listing decision can be extended by the Service for up to 6 months to allow additional information to be received. For internally generated listings, including those covered by CNPS’s suit (see Litigation below), taxa to be protected through listing are generally grouped by the Service into packages based on similar geography, threats, habitat or taxonomy. Among other advantages, these multispecies packages allow imperiled taxa to be proposed and listed with minimum effort and facilitate development of recovery plans for coherent clusters of taxa which have similar recovery needs.
Critical Habitat. Section 4(a)(3) of the Act requires that critical habitat be designated at the time the species is listed, to the maximum extent “prudent and determinable.” Service regulations state that designation of critical habitat is “not prudent” when (1) identification of critical habitat can be expected to increase the degree of threat to the species, or (2) designation of critical habitat would not be beneficial to the species. Critical habitat, as defined in Section 3 of the Act, has two components. It may include (1) specific areas within the geographical area occupied by a species where physical or biological features essential to the conservation of the species occur or that may require special management consideration or protection, and/or (2) specific areas outside the geographical area occupied by a species at the time of listing when such areas are determined to be essential for the conservation of the species. The Service has rarely proposed critical habitat at the time taxa have been proposed for listing. This practice has been criticized and has led to recent litigation (see Litigation below). Although in the past critical habitat has rarely been proposed when a taxon is proposed for listing, the Service considers protection of habitat to be essential to successful species conservation and published a Notice of Intent to Clarify the Role of Habitat in Endangered Species Conservation on June 14, 1999 (Federal Register 64:31871). The notice discussed the role of habitat conservation in virtually every process called for in the Act.
Recovery. Recovery is the “cornerstone and ultimate purpose” (U.S. Fish and Wildlife Service 1994) of endangered species protection at the Federal level and the greatest challenge the Service and other Federal resource managers face. The purpose of the ESA is not to list taxa but to recover listed species to the point where they no longer require protection of the Act. To this end, Section 4(f) of the ESA requires that the Service develop recovery plans for all endangered or threatened species, unless developing such a plan would not promote the conservation of the species. Recovery plans direct Service recovery monies and help outline actions that can be taken by public and private agencies and individuals to help recover listed species. Such actions typically include habitat protection and management, reduction of threats such as invasion of non-native species, monitoring of trends, and research to better understand both the biology of species and what factors threaten them. Recovery plans are advisory documents. As such, recommendations described in them are not binding on other public agencies or on private organizations or individuals. To improve recovery plan development and implementation, the Service strives to involve all appropriate agencies and affected parties and seeks independent peer review of draft recovery plans (policies in Federal Register 59:34270, 34272-34273). The Service recommends that recovery plans be updated or revised every 5 years.
As of early 2000, recovery plans had been finalized for 68 of the 167 (41%) listed California plant taxa; plans were finalized for 51 of these taxa in 1998 or 1999. Draft plans were available for an additional 25 taxa (15%). Recovery plans have not been written for the remaining 44% of the listed plants in California. Recent California recovery plans have taken a multispecies approach, treating a number of listed, proposed and candidates species as well as some species of concern in a single plan. Such multispecies plans generally cover species found together in a particular geographic area, habitat or ecosystem. In theory, including recommendations to ensure the long-term conservation of candidate species and species of concern in published recovery plans could prevent the need to list these species in the future. Recent California multispecies recovery plans that contained recommendations for conservation of plant species of concern include the 1998 Recovery Plan for Upland Species of the San Joaquin Valley, California (13 plant species of concern) and the 1998 Recovery Plan for Serpentine Soil Species of the San Francisco Bay Area (6 plant species of concern).
While the Service is making progress completing and approving recovery plans, the recovery program will only be successful when recovery plans are not just written but also broadly and uniformly implemented. Most approved plans have not been fully implemented in California or nationwide. Few taxa, including only one plant, nationwide have been delisted (removed from the List of Endangered and Threatened Wildlife and Plants) because of successful recovery efforts.
Delisting. Delisting, as noted above, may result from successful recovery efforts. To ensure their continued survival, monitoring of recovered taxa that are delisted is required by Section 4(g) of the ESA. Species may also be delisted because new data become available showing that listing is no longer necessary (e.g., new secure populations are discovered or taxonomy is clarified) or because the species goes extinct.
Land acquisition. Section 5 of the Act governs land acquisition and allows Federal agencies within the Department of Interior (e.g., Bureau of Land Management, National Park Service, and U.S. Fish and Wildlife Service) and U.S. Forest Service to implement a program to conserve listed species. To carry out the program, these agencies are directed to use the land acquisition and other authorities of the Fish and Wildlife Act of 1956, the Fish and Wildlife Coordination Act and the Migratory Bird Conservation Act. Under Section 5, endangered or threatened species habitat may be acquired by purchase, donation, or other mechanisms. This section also allows these Federal agencies to use funds from the Land and Water Conservation Fund Act of 1965, as amended, for habitat acquisition.
Agreements with states. Section 6 of the Act enables the Service to enter into cooperative agreements with any State that established and maintains an active program for the conservation of endangered and threatened species. Such agreements enable the Service to financially assist state agencies, such as the California Department of Fish and Game (CDFG), in implementation of programs for the conservation of endangered and threatened species. Actions typically funded by the Service include research, species management, monitoring the status of candidate and listed species, and other recovery plan implementation (but not habitat acquisition, except as noted below for completed habitat conservation plans). The Section 6 allocation to CDFG over the last several years has been approximately one million dollars per year. Recently funded Section 6 projects for plants in California have included (1) research to determine effective management strategies for Blennosperma bakeri, Lasthenia burkei, and Limnanthes vinculans on the Santa Rosa Plain, Sonoma County, (2) classification and ranking of San Joaquin Valley vernal pools for conservation, (3) implementation of recovery activities for Arenaria paludicola and Rorippa gambellii in western San Luis Obispo County, including genetic characterization and restoration of natural populations, (4) site-specific protection of and habitat enhancement for three coastal Monterey County plants (Trifolium polyodon, Potentilla hickmanii,and Astragalus tener var. titi), (5) recovery and management of Chorizanthe orcuttiana in San Diego County, including inventory of current and former sites, reproduction and seed viability studies and initiation of seed banking, and (6) dune restoration for Erysimum menziesii, Chorizanthe howellii and western snowy plover at MacKerricher State Park, Mendocino County, including removal of European beachgrass. Beginning in fiscal year 1997, funds authorized through Section 6 of the ESA are also used to provide additional resources needed to acquire additional conservation lands for completed habitat conservation plans (HCPs, see below).
Interagency cooperation and consultation. Section 7 requires interagency cooperation to protect listed species, and thereby provides plants with the most significant protection conferred by any of the 18 sections of the Act. Responsibilities of Federal agencies under Section 7 of the Act fall into two categories. Under Section 7(a)(1), Federal agencies are directed, in consultation with the Service, to use their resources to further of the purposes of the Act by carrying out programs for the conservation of listed species. Section 7(a)(2) precludes Federal agencies from authorizing, funding, or carrying out any activities that are likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of critical habitat.
Section 7(a)(2) consultation may be “informal” or “formal.” Most agency consultations are resolved informally. Informal consultation is used to determine (1) whether formal consultation will be required or (2) if the project can be modified to reduce or remove adverse impacts to listed species. If a proposed activity that depends on a Federal action may adversely affect a listed species or designated critical habitat, formal consultation is required. Formal consultation concludes when the Service issues a “biological opinion” on the effects of the project on listed species. Modification, or rarely abandonment, of a proposed Federal action or project may be necessary if the Service determines that such activity is likely to jeopardize the species or adversely modify its critical habitat. Under such a scenario, the Service must provide a “reasonable and prudent alternative” to the consulting Federal agency
A Federal agency receiving a jeopardy opinion during formal consultation may apply to the Endangered Species Committee for an exemption from the requirement of Section 7(a)(2) that no Federal agency action jeopardize an endangered or threatened species. Section 7(e) of the ESA establishes the Committee, popularly referred to as the “God Squad.” The seven member committee is composed of cabinet level and other presidential appointees. An exemption has never been sought for an action affecting a federally listed plant, but the process received national attention over the exemption requested for actions affecting the northern spotted owl.
Contrary to public opinion, most formal consultations do not result in issuance of jeopardy opinions (Government Accounting Office 1992, Houck 1993). Moreover, fewer than 1% of formal consultations result in canceling of projects (Barry et al. 1992). The viewpoint espoused by some critics of the ESA, that Section 7 consultations under the Act result in canceling urgently needed projects throughout the country, is not supported by the facts. In the vast majority of cases, economic development and endangered species protection are compatible.
Formal consultation for listed plants is required when a project that may adversely affect listed plants or their habitat (1) occurs on Federal land or (2) is a private action with a Federal “nexus” (e.g., a Federal permit is required or Federal funding is involved). For example, the U.S. Army Corps of Engineers frequently requests consultation with the Service when proposed projects involve placing fill in vernal pools or other wetlands. Filling of vernal pools, which are isolated waters of the U.S. according to the Clean Water Act, requires a Section 404 permit from the Corps. The issuance of a Section 404 permit under the Clean Water Act triggers the consultation process, providing the Service with an opportunity to encourage project redesign or other minimization measures to avoid jeopardy to listed species. Approximately 25% of the 167 plants which were federally listed in California as of October 1999 occur in habitats for which Section 404 permits could be required (i.e., vernal pools or other wetlands). Actions requiring a Federal permit under Section 404 of the Clean Water Act are just one example of actions that may result in Section 7 consultations for plants on non-Federal lands. Any other federally authorized or funded action is also subject to Section 7 consultation, as is issuance of habitat conservation plans (HCPs, see below). (For further information on Section 7, refer to the final procedural regulations published on June 3, 1986 in Federal Register 51:19925‑19963).
Prohibitions. Section 9 of the Endangered Species Act prohibits “take” of federally endangered wildlife. To “take” an endangered animal is to harass, harm [which includes significant habitat modification or degradation], pursue, hunt, shoot, wound, kill, trap, capture, or attempt to engage in any such conduct. Plants are not protected against “take.” Instead, plants are protected from harm in two particular circumstances. Section 9 prohibits (1) the removal and reduction to possession (i.e., collection) of endangered plants from lands under Federal jurisdiction, and (2) the removal, cutting, digging, damage, or destruction of endangered plants on any other area in knowing violation of a state law or regulation. Section 9 also makes illegal the international and interstate transport, import, export, and sale or offer for sale of endangered plants and animals. The protection of Section 9 afforded endangered species is extended to threatened wildlife and plants by regulation (50 CFR § 17.31 and 17.71).
Habitat conservation plans. Habitat conservation plans (HCPs), authorized under Section 10(a) of the Act, are developed to permit the “incidental take” of wildlife by non-federal actions when the “taking” is incidental to, and not the purpose of, an otherwise lawful activity. Individuals, corporations, and state or local agencies may apply to the Service for a Section 10(a) incidental take permit. An incidental take permit allows the incidental taking of individuals or habitat so long as the impacts of the taking are minimized and mitigated to the maximum extent practicable. HCPs typically promote the concentration of impacts and development and enable the protection of essential habitat in the large blocks required for survival of many taxa. Although the scope of habitat conservation planning varies from parcels to ecosystems, larger scale efforts are usually more desirable due to the level of planning and ability to set aside larger areas for species protection.
Two recent Federal Register notices provided regulation and policy with respect to HCPs. The first finalized the “No Surprises” rule (Federal Register 63:8859-8873). The No Surprises rule provides assurances to the holder of an HCP incidental take permit. For species covered by the HCP, no surprises means that no additional restrictions will be placed on land use and no additional financial compensation will be required beyond what is agreed to in the HCP. The second notice, published in 1999, established overall biological goals and objectives for species covered by HCPs, clarified and expanded the use of adaptive management and monitoring in HCPs, provided criteria to determine permit duration, and expanded the use of public participation in the HCP process (the 5-point policy guidance; Federal Register 64:11485-11490). This policy is expected to be finalized by summer 2000.
HCPs are not written or implemented expressly for plants because listed plants are not protected from take or destruction on private land (see Prohibitions above). However, if “sensitive” plant species (i.e., listed, proposed and/or candidate species, or other plant taxa of concern), occur within the boundaries of an HCP, they are typically incorporated into the planning process. For example, the Metropolitan Bakersfield HCP, involving 262,000 acres in Kern County, covered two federally endangered plants, Opuntia treaslei and Lembertia congdonii. The Service, like all Federal agencies, cannot undertake any activity that might jeopardize the continued existence of listed plantor animal species. Therefore, prior to signing an HCP, the Service conducts an internal Section 7 consultation to evaluate the likelihood that listed species will be jeopardized by its signing the HCP. To ensure that the Service’s action in signing an HCP is not likely to jeopardize listed species, the Service works with the applicant to ensure the HCP conserves necessary lands or undertakes other appropriate measures for listed plants.
Ecosystem planning processes similar to HCPs have been initiated for plants on private lands, but only when there is sufficient interest from local government, and a Section 7 nexus such as the Clean Water Act Section 404 permitting process which governs fill of wetlands. Significant progress toward such ecosystem planning was made for three vernal pool plants of Sonoma County’s Santa Rosa Plain, Blennosperma bakeri, Lasthenia burkei and Limnanthes vinculans, and their associated sensitive animals before funding and enthusiasm for the process ran out in 1995. CNPS can make a substantial contribution to rare plant conservation in California by participating in, encouraging, and developing local enthusiasm for such ecosystem planning efforts.
Other policies and guidance of interest
July 1, 1994. Notice of Interagency Cooperative Policy for Endangered Species Act Section 9 Prohibitions. Federal Register 59:34272.
July 1, 1994. Notice of Interagency Cooperative Policy for the Ecosystem Approach to the Endangered Species Act. Federal Register 59:34273-34274.
July 1, 1994. Notice of Interagency Cooperative Policy Regarding the Role of State Agencies in Endangered Species Act Activities. Federal Register 59:34274-34275.
February 7, 1996. Proposed Policy on the Treatment of Intercrosses and Intercross Progeny (the Issue of “Hybridization. Federal Register 61:4710-4713.
February 7, 1996. Draft Policy Regarding Controlled Propagation of Species Listed Under the Endangered Species Act. Federal Register 61:4716-4720.
February 3, 1999. Executive Order by President William J. Clinton on Invasive Species. Executive Order 13112.
June 17, 1999. Announcement of Final Safe Harbor Policy. Federal Register 64:32706-32736.
Government Accounting Office (GAO). 1992. Endangered Species Act: Types and Number of Implementing Actions. General Accounting Office Report No. RCED-92-131BR. Gaithersburg, MD.
Houck, O.A. 1993. The Endangered Species Act and its implementation by the U.S. Departments of Interior and Commerce. University of Colorado Law Review 64:277-370.
U.S. Fish and Wildlife Service. 1994. Report to Congress. Recovery Program for Endangered
Jim A. Bartel is Assistant Field Supervisor, Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2730 Loker Avenue West, Carlsbad, CA 92008. Jan C. Knight is Deputy Chief of the Endangered Species Division and Diane R. Elam is the Recovery Coordinator for the Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2800 Cottage Way, Room W-2605, Sacramento, CA 95825.