Legislative Mandates of the Endangered Species Act and a Plea for Consistent Use of Technical Terms

By: Jay O'Laughlin

Section 3 of the ESA provides definitions of the terms used in the Act. Some of the important statutory definitions essential to understanding the ESA are as follows (verbatim from the statute, with added underlining):

The term "species" includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which breeds when mature.

The term "endangered species" means any species which is in danger of extinction throughout all or a significant portion of its range other than [certified insect pests].

The term "threatened species" means any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.

The terms "conserve", "conserving", and "conservation" mean to use and the use of all methods and procedures which are necessary to bring any endangered species to the point at which such measures are no longer necessary. Such methods and procedures include...all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case...regulated taking.

The term "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. [Note: regulations define "harm" to include significant habitat modification (see below).]

The term "critical habitat" for a threatened or endangered species means­the specific areas...essential to the conservation of the species and which may require special management considerations or protection.

The U.S. Fish and Wildlife Service has defined some ESA terms in its implementing regulations. Some essential regulatory definitions are as follows:

"Harm" is defined to include an act which actually kills or injures wildlife [including] significant habitat modification where it actually kills or injures wildlife by significantly impairing essential behavior patterns, including breeding, feeding, or sheltering (50 C.F.R. § 17.3).

"Jeopardy" is defined as follows: "jeopardize the continued existence of" [as in ESA § 7(a)(2)] means to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, number, or distribution of that species (50 C.F.R. § 402.02).