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  1. Read through the original federal Endangered Species Act (see attachment).  Share with the class three things that you learned, were surprised to find, or that caught your attention.  Then, determine if there have been any major federal amendments to the original ESA.  Share the highlights of one or more amendments.  Finally, research a state that has enacted its own ESA or state equivalent and share the state and anything special about this specific ESA.  This would be a great time to determine if your home state has deferred to the federal law or enacted a separate law. 

884 PUBLIC LAW 93-205-DEC. 28, 1973 [87 STAT.

Public Law 93-205 D e c e m b e r 28, 1973 ^ j s j A C T

'• T o p r o v i d e for t h e conservation of en(iangere<l a n d t h r e a t e n e d species of lish. wildlife, and i>lants. and for o t h e r pnr])oses.

E n d a n g e r e d S p e c i e s A c t of

Be it enacted by the Senate and Hon>ie of Representatives of the United States of America, in Congresx asseinhted. That this Act may

1973!"° ""' "' be cited as the "Eiidaiijreied Species Act of lOT^V.

T A B L E O F C O X T K N T S

Sec. 2. F i n d i n g s , pnrposes. and policy. Sec. 3. Definitions. Sec. 4. D e t e r m i n a t i o n of e n d a n g e r e d species a n d t h r e a t e n e d species. Sec. 5. L a n d acquisition. Sec. 6. Cooperation w i t h t h e S t a t e s . Sec. 7. I n t e r a g e n c y cooperation. Sec. 8. I n t e r n a t i o n a l cooperation. – Sec. 9. P r o h i b i t e d a c t s . Sec. 10. E x c e p t i o n s . Sec. 1 1 . P e n a l t i e s a n d enforcement. Sec. 12. E n d a n g e r e d p l a n t s . Sec. 13. Conforming a m e n d m e n t s . Sec. 14. R e p e a l e r . Sec. 15. A u t h o r i z a t i o n of a p p r o p r i a t i o n s . Sec. 16. Effective d a t e . Sec. 17. M a r i n e M a m m a l P r o t e c t i o n Act of 1!)72. ,

1'1ND1N«;S. P I K P O S K S . A M ) I ' O M C Y

SEC. 2. (a) F I N D I N G S . — T h e Congress finds and declares that— (1) various species of fish, wildlife, and plants in the United

States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation;

(2) other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction;

(3) these species of fish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people;

(4) the United States has pledged itself as a sovereign state in the international community to conserve to the extent practica- ble the various species of fish or wildlife and plants facing extinction, pursuant to—

( A ) migratory bird treaties with C'anada and Mexico; ( B ) the Migratory and Endangered B i r d Treaty with

J a p a n ; (C) the Convention on Nature Protection and Wildlife

56 Stat. 1354. Preservation in the Western Hemisphere; ( D ) the International Convention for the Northwest

^"^'^^^^- Atlantic Fisheries; ( E ) the International Convention for t h e H i g h Seas Fish-

4UST380. eries of the North Pacific Ocean; ( F ) the Convention on International T r a d e in E n d a n –

gered Species of W i l d F a u n a and F l o r a ; and (G) other international agreements.

(5) encouraging the States and other interested parties, through Federal financial assistance and a system of incentives,

, to develop and maintain conservation programs which meet national and international standards is a key to meeting the

87 S T A T . ] PUBLIC LAW 9 3 – 2 0 5 – D E C . 28, 1973 885

Nation's inteinatioiial ooniinitments and to better safeguarding, for the IxMiefit of all citizens, the Nation's heritage in fish and wildlife.

(b) PuRPOSKS.—The purposes of this Act are t o provide a means Vvliereby the ecosystems upon which endangered species and threat- ened species depend may be conserAcd, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may Ix' appropriate to achieve the purposes of the treaties and conventions set forth in subsection (a) of this section.

(c) Poi.icY.—It is further declared to be the policy of Congress t h a t all Federal departments and agencies shall seek to conserve endangered species and threatened s|)ecies and shall utilize their antliorities in furtherance of the purposes of this Act.

DEFIXITIOXS

SKC. 8. F o r the purposes of this Act— (1) The term "commercial activity" means all activities of

industry and trade, including, but not limited to, the buying or selling of commodities and activities conducted for the purpose of facilitating such buying and selling.

(2) The terms "conserve'*, "conserving", and "conservation'' n^ean 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 Act are no Iq^iger necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live t r a p p i n g , and transplantation, and. in the extraordinary case where popula- tion pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

(3) The term "Convention" means the Convention on Inter- national Trade in Endangered Species of Wild F a u n a and Flora, signed on March 3, 1973, and the appendices thereto.

(4) The term "endangered species" means an}- 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 whose protection under the provisions of this Act would present an overAvhelming and over- riding risk to man.

(5) The term "fish or wildlife'' means any member of the animal kingdom, including without limitation any mammal, fish, bird (including any migratory, nonmigratory. or endangered bird for which protection is also aiforded by treaty or other inter- national agreement), amphibian, reptile, mollusk, crustacean, arthi'opod or other invertebrate, and includes any p a r t , product, egg, or oli'spring thereof, or the dead body or p a r t s thereof.

(6) The term "foreign commerce'' includes, among other things, any transaction—

(A) between persons within one foreign country; ( B ) between persons in two or more foreign countries; (C) between a person within the United States and a per-

son in a foreign country; or : , ( D ) between persons Avithin the United States, where the

fish and wildlife in question are moving in any country or J countries outside the L^nited States.

(7) The term "import'' means to land on, bring into, or intro- duce into, or attemj^t to land on, bring into, or introduce into, any

84 Stat. 2090. 5 u s e a p p . II.

886 PUBLIC LAW 93-205-DEC. 28, 1973 [87 STAT.

place subject to the jurisdiction of the United States, whether or not such landing, bringing, or introduction constitutes an impor- tation within the meaning of the customs laws of the United States.

(8) The term "person" means an individual, corporation, p a r t – nership, trust, association, or any other private entity, or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State or political subdivision thereof, or of any foreign government.

(9) T h e term " p l a n t " means any member of the plant kingdom, including seeds, roots and other parts thereof.

(10) T h e term "Secretary" means, except as otherwise herein provided, the Secretary of the Interior or the Secretary of Com- merce as program responsibilities are vested pursuant to the pro- visions of Reorganization P l a n Numbered 4 of 1970; except t h a t with respect to the enforcement of the provisions of this A c t and the Convention which pertain to the importation or exportation of terrestrial plants, t h e term means the Secretary of Agriculture.

(11) The term "species" includes any subspecies of fish or wild- life or plants and any other group of fish or wildlife of the same species or smaller taxa in common spatial arrangement t h a t inter- breed when mature.

(12) The term " S t a t e " means any of the several States, the District of Columbia, the Commonwealth of P u e r t o Rico, Amer- ican Samoa, the Virgin Islands, Guam, and the T r u s t T e r r i t o r y of the Pacific Islands.

(13) T h e term "State agency" means the State agency, depart- ment, board, commission, or other governmental entity which is responsible for the management and conservation of fish or wild- life resources within a State.

(14) The term " t a k e " means to harass, h a r m , pursue, h u n t , shoot, wound, kill, t r a p , capture, or collect, or to attempt to engage in any such conduct.

(15) The term "threatened species" means any species which is likely to become an endangered species within t h e foreseeable future throughout all or a significant portion of its range.

(16) The term "United States", when used in a geographical context, includes all States.

D E T E R M I N A T I O N O F E N D A N G E R E D S P E C I E S A N D T H R E A T E N E D S P E C I E S

SEC. 4. (a) GENERAL.—(1) The Secretary shall by regulation deter- mine whether any species is an endangered species or a threatened species because of any of the following factors:

(1) the present or threatened destruction, modification, or cur- tailment of its habitat or range ;

(2) overutilization for commercial, sporting, scientific, or edu- cational purposes;

(3) disease or predation; (4) the inadequacy of existing regulatory mechanisms; or (5) other n a t u r a l or manmade factors affecting its continued

existence. (2) W i t h respect to any species over which program responsibilities

have been vested in the Secretary of Commerce p u r s u a n t to Reorgani- zation P l a n Numbered 4 of 1970—

(A) in any case in which the Secretary of Commerce deter- mines t h a t such species should—

(i) be listed as an endangered species or a threatened species, or

87 S T A T . ] PUBLIC LAW 9 3 – 2 0 5 – D E C . 28, 1973 887

(ii) be changed in status from a threatened species to an endangered species,

he shall so inform the Secretary of the Interior, who shall list such species in accordance with this section;

( B ) in any case in which the Secretary of Commerce deter- mines t h a t such species should—

(i) be removed from any list published pursuant to sub- section (c) of this section, or

(ii) be changed in status from an endangered species to a threatened species,

he shall recommend such action to the Secretary of the Interior, and the Secretary of the Interior, if he concurs m the recommen- dation, shall implement such action; and

(C) the Secretary of the Interior may not list or remove from any list any such species, and may not change the status of any such species which are listed, without a prior favorable determina- tion made pursuant to this section by the Secretary of Commerce.

(b) BASIS TOR DETERMINATIONS.—(1) T h e Secretary shall make determinations required by subsection (a) of this section on the basis of the best scientific and commercial data available to him and after consultation, as appropriate, with the affected States, interested per- sons and organizations, other interested Federal agencies, and, in coop- eration with the Secretary of State, with the country or countries in which the species concerned is normally found or whose citizens har- vest such species on the high seas; except t h a t in any case in which such determinations involve resident species of fish or wildlife, the Secretary of t h e I n t e r i o r may not add such species to, or remove such species from, any list published pursuant to subsection (c) of this sec- tion, unless the Secretary has first—

( A ) published notice in the Federal Register and notified the Fed^rai'1?t°Lu!r Governor of each State within which such species is then known to occur t h a t such action is contemplated;

( B ) allowed each such State 90 days after notification to sub- mit its comments and recommendations, except to the extent that such period may be shortened by agreement between the Secretary and the Governor or Governors concerned; and

(C) published in the Federal Register a summary of all com- ments and recommendations received by him which relate to such proposed action.

(2) I n determining whether or not any species is an endangered species or a threatened species, the Secretary shall take into considera- tion those efforts, if any, being made by any nation or any political sub- division of any nation to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices, within any area under the jurisdiction of any such nation or political subdivision, or on the high seas.

(3) Species which have been designated as requiring protection from unrestricted commerce by any foreign country, or pursuant to any international agreement, shall receive full consideration by the Secretary to determine whether each is an endangered species or a threatened species.

(c) L I S T S . — ( 1 ) The Secretary of the Interior shall publish in the F '̂d r̂ai'̂ Rigrsier. Federal Register, and from time to time he may by regulation revise, a list of all species determined by him or t h e Secretary of Commerce to be endangered species and a list of all species determined by him or the Secretary of Commerce to be threatened species. Eaeh list shall refer to the species contained therein by scientific and common name or names, if any, and shall specify with respect to each such species over what portion of its range it is endangered or threatened.

888 PUBLIC LAW 93-205-DEC. 28, 1973 [87 STAT.

R e v i e w . 80 Stat. 3 8 3 .

80 S t a t . 926; 83 S t a t . 2 7 5 , 2 8 3 .

16 u s e 6 6 8 a a n o t e .

P u b l i c a t i o n in F e d e r a l R e g i s t e r .

H e a r i n g r e q u e s t .

P u b l i c a t i o n in F e d e r a l R e g i s t e r .

(2) The Secretaiy shall, upon the petition of an interested person under subsection 553 (e) of title 5, United States Code, conduct a review of any listed or unlisted species proposed to be removed from or added to either of the lists published pursuant to p a r a g r a p h (1) of this sub- section, but only if he makes and publishes a finding t h a t such person has presented substantial evidence which in his judgment w a r r a n t s such a review.

(3) Any list In effect on the day before the date of the enactment of tliis Act of species of fish or wildlife determined by the Secretary of the Interior, pursuant to the Endangered Species Conservation Act of 1969, to be threatened with extinction shall be republished to conform to the classification for endangered species or threatened species, as the case may be, provided for in this Act, but until such republication, any such species so listed shall be deemed an endangered species within the meaning of this Act. T h e republication of any species pursuant to this p a r a g r a p h shall not require public hearing or comment under section 553 of title 5, United States Code.

( d) PROTKCTIVK RKGULATIOXS.—Whenever any species is listed as a threatened species pursuant to subsection (c) of this section, the Sec- retary shall issue such regulations as he deems necessary and advis- able to provide for the conservation of such species. The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 9 ( a ) ( 1 ) , in the case of fish or wildlife, or section 9 ( a ) ( 2 ) , in the case of plants, with respect to endangered species; except that with respect to the taking of resident species of fish or wildlife, such regulations shall apply in any State which lias entered into a cooperative agreement pursuant to section 6 ( a ) of this Act only to the extent t h a t such regulations have also been adopted by such State.

(e) SIMILARITY OF APPEAILVXCE CASES.—The Secretary may, by regulation, and to the extent he deems advisable, treat any species as an endangered species or threatened species even though it is not listed pursuant to section -t of this Act if he finds that—

( A ) such species so closely resembles in appearance, at the point in question, a species which has been listed p u r s u a n t to such sec- tion t h a t enforcement personnel would have substantial difficulty in attempting to differentiate between the listed and unlisted species;

( B ) the effect of this substantial difficult}' is an additional threat to an endangered or threatened species; and

(C) such treatment of an unlisted species will substantially facilitate the enforcement and further the policy of this Act.

(f) REGULATIONS.— (1) Except as provided in p a r a g r a p h s (2) and (3) of this subsection and subsection (b) of this section, the pro- visions of section 553 of title 5, United States Code (relating to rule- making procedures), shall apply to any regulation promulgated to carry out the purposes of this Act.

(2) ( A ) I n the case of any regulation proposed by the Secretary to carry out the purposes of this Act—

(i) the Secretary shall publish general notice of the proposed regulation (including the complete text of the regulation) in the Federal Register not less than 60 days before the effective date of the regulation; and

(ii) if any person who feels t h a t he may be adversely affected by the proposed regulation files (within 45 days after the date of publication of general notice) objections thereto and requests a public hearing theieon. the Secretary" niay grant such re(]uest, but shall, if he denies such re<iuest, publi.sh his reasons therefor in the Federal Refrister.

the S e c r e t a r y .

87 S T A T . ] PUBLIC LAW 9 3 – 2 0 5 – D E C . 28, 1973 889

(B) Neither subparagraph (A) of this p a r a g r a p h nor section 553 of title 5, United States Code, shall apply in the case of any of the so stat. 383. following regulations and any such regulation shall, at the discretion of the Secretary, take effect immediately upon publication of the regu- lation in the Federal Register:

(i) Any regulation appropriate to carry out the purposes of this Act which was originally promulgated to carry out the Endangered Species Conservation Act of 1969. 83 ŝtar'275^^283

(ii) Any regulation (including any regulation implementing le use ee'saa section 6 ( g ) (2) (B) (ii) of this Act) issued by the Secretary in note. regard to any emergency posing a significant risk to the well- being of any species of fish or wildlife, but only if ( I ) at the time of publication of the regulation in the Federal Register the Secre- t a r y publishes therein detailed reasons why such regulation is necessary, and ( I I ) " in the case such regulation applies to resident species of fish and wildlife, the requirements of subsection (b) ( A ) , ( B ) , and (C) of this section have been complied with. A n y regulation promulgated under the authority of this clause (ii) shall cease to have force and effect at the close of the 120-day period following the date of publication unless, d u r i n g such 120-day period, the rulemaking procedures which would apply to such regulation without regard to this subparagraph are complied with.

(3) The publication in the Federal Register of any proposed or ,̂ f̂ ^̂ ^™^̂ ,"'̂ ,̂ ^ final regulation which is necessary or appropriate to carry out the purposes of this Act shall include a statement by the Secretary of the facts on which such regulation is based and the relationship of such facts to such regulation.

L A N D A C Q U I S I T I O N

SEC. 5. (a) PROGRAM.—The Secretary of the Interior shall establish and implement a program to conserve (A) fish or wildlife which are listed as endangered species or threatened species pursuant to section 4 of this A c t ; or ( B ) plants which are concluded in Appendices t o the Convention. To carry out such program, he—

(1) shall utilize the land acquisition and other authority under the Fish and Wildlife Act of 1956, as amended, the Fish and Wild- life Coordination Act, as amended, and the Migratory B i r d Con- servation Act, as a p p r o p r i a t e ; and 6o stat. loso

(2) is authorized to acquire by purchase, donation, or otherwise, '^^Tusc "ei lands, waters, or interest therein, and such authority shall be in note addition to any other land acquisition authority vested in him. '*̂

(b) ACQUISITIONS.—Funds made available pursuant to the L a n d and Water Conservation F u n d Act of 1965, as amended, may be used for Ĵ ^^^^ Uli the purpose of acquiring lands, waters, or interests therein under sub- 4 note. section (a) of this section.

C OOP E RAT ION W I T H T H E S T A T E S

SEC. 6. (a) GENERAL.—In carrying out the program authorized by this Act, the Secretary shall cooperate to the maximum extent practi- cable with the States. Such cooperation shall include consultation with the States concerned before acquiring any land or water, or interest therein, for the purpose of conserving any endangered species or threatened species.

(b) MANAGEMENT AGREEMENTS.—The Secretary may enter into agreements with any State for the administration and management of any area established for the conservation of endangered species or

70 Stat. 1119. 16 u s e 742a

n o t e .

45 Stat. 1222. 16 u s e 7 1 5 .

890 PUBLIC LAW 93-205-DEC. 28, 1973 [87 STAT.

tlu'oateiied species. Any levemies (leri>ed from the administration of such ai'eas under these agreements shall be subject to the provisions of section 401 of the Act of J u n e 15, 1935 (49 Stat. 383; 16 U.S.C.

78 Stat. 701. T l o S ) . (c) COOPJ:RATINE AGKKEMENTS.—In furtherance of the purposes of

this Act, the Secretary is authorized to enter into a cooperative agree- ment in accordance with this section with any State which establishes and maintains an adequate and active program for the conservation of endangered species and threatened species. Within one hundred and twenty days after the Secretary i-eceives a certified copy of sucli a pro- posed State program, he shall make a determination whether such l)rogram is in accordance with this Act. Unless he determines, pursuant to this subsection, t h a t the State program is not in accordance with this Act, he shall enter into a cooperative agreement with the State for the purpose of assisting in implementation of the State program. I n order for a State program to be deemed an adequate and active program for the conservation of endangered species and threatened species, the Sec- retary nnist find, and ammally thereafter reconfirm such finding, t h a t under the State program—

(1) authority resides in the State agency to conserve resident species of fish or wildlife determined by the State agency or the Secretary to be endangered or threatened;

(2) the State agency has established acceptable conservation programs, consistent with the purposes and policies of this Act, for all resident species of fish or wildlife in the State which are deemed by the Secretary to be endangered or threatened, and has furnished a copy of such plan and program together with all pertinent details, information, and data requested to the Secretary;

(3) the State agency is authorized to conduct investigations to determine the status and requirements for survival of resident species of fish and wildlife;

(4) the State agency is authorized to establish programs, includ- ing the acquisition of land or aquatic habitat or interests therein, for the conservation of resident endangered species or tlireatened species; and

(5) provision is made for public participation in designating resident species of fish or wildlife as endangered or threatened.

(d) ALLOCATION OF F U N D S . — ( 1 ) The Secretary is authorized to pj'ovide Hnancial assistance to any State, through its respective S t a t e agency, which has entered into a cooperative agreement pursuant to subsection (c) of this section to assist m development of programs for the conservation of endangered and tlireatened species. The Secretary shall make an allocation of appropriated funds to such States based on consideration of—

( A ) the international commitments of the United States to protect endangered species or threatened species;

(B) the readiness of a State to proceed with a conservation l)rogram consistent with the objectives and purposes of this A c t ;

( 0 ) the number of endangered species and threatened species within a S t a t e ;

( I ) ) the potential for restoring endangered species and threat- ened species within a S t a t e ; and

( E ) the relative urgency to initiate a program to restore and protect an endangered species or threatened species in terms of s u r i v a l of the species.

So much of any appropriated funds allocated for obligation to any State for any fiscal year as remains uiiol)ligated at the close thereof is

87 STAT. ] PUBLIC LAW 93-205-DEC. 28, 1973 891

authorized to be made available to t h a t State until the close of the succeeding fiscal year. Any amount allocated to any State which is unobligated at the end of the period during which it is available for expenditure is authorized to be made available for expenditure by the Secretary in conducting programs under this section.

(2) Such cooperative agreements shall provide for ( A ) the actions to be taken by the Secretary and the S t a t e s ; ( B ) the benefits t h a t are expected to be derived in connection with the conservation of endan- gered or threatened species; (C) the estimated cost of these actions; and ( D ) the share of such costs to be borne by the Federal Govern- ment and by the S t a t e s ; except that—

(i) the Federal share of such program costs shall not exceed 66% per centum of the estimated program cost stated in the agree- ment; and

(ii) the Federal share may be increased to 75 per centum when- ever two or more States having a common interest in one or more endangered or threatened species, the conservation of which may be enhanced by cooperation of such States, enter jointly into an agreement with the Secretary.

The Secretary may, in his discretion, and under such rules and regula- tions as he may prescribe, advance funds to the State for financing the United States p r o r a t a share agreed upon in the cooperative agree- ment. F o r the purposes of this section, the non-Federal share may, in the discretion of the Secretary, be in the form of money or real prop- erty, the value of which will be determined by the Secretary, whose decision shall be final.

(e) REVIEW OF STATE PROGRAMS.—Any action taken by the Secre- t a r y under this section shall be subject to his periodic review at no greater t h a n annual intervals.

(f) CONFLICTS BETWEEN FEDERAL AND STATE L A W S . — A n y State law or regulation which applies with respect to the importation or exportation of, or interstate or foreign commerce in, endangered spe- cies or threatened species is void to the extent t h a t it may effectively (1) permit what is prohibited by this Act or by any regulation which implements this Act, or (2) prohibit what is authorized pursuant to an exemption or permit provided for in this Act or in any regulation which implements this Act. This Act shall not otherwise be construed to void any State law or regulation which is intended to conserve migratory, resident, or introduced fish or wildlife, or to permit or prohibit sale of such fish or wildlife. Any State law or regulation respecting the t a k i n g of an endangered species or threatened species may be more restrictive than the exemptions or permits provided for in this Act or in any regulation which implements this Act but not less restrictive than the prohibitions so defined.

(g) TRANSITION.— (1) F o r purposes of this subsection, the term ^J^^H'-''^'^'^'"^''' "establishment period" means, with respect to any State, the period " "" beginning on the date of enactment of this Act and ending on which- ever of the following dates first occurs: (A) the date of the close of the 120-day period following the adjournment of the first regular session of the legislature of such State which commences after such date of enactment, or ( B ) the date of the close of the 15-month period following such date of enactment.

(2) The prohibitions set forth in or authorized pursuant t o sec- tions 4 ( d ) and 9 ( a ) (1) ( B ) of this Act shall not apply with respect to the t a k i n g of any resident endangered species or threatened species (other t h a n species listed in Appendix I to the Convention or other- wise specifically covered by any other treaty or Federal law) within any State—

p e r i o d . "

892 PUBLIC LAW 93-205-DEC. 28, 1973 [87 STAT.

( A ) which is then a p a r t y to a cooperative agreement with the Secretary pursuant to section 6(c) of this Act (except t o the extent that the t a k i n g of any such species is contrary to the law of such S t a t e ) ; or

( B ) except for any time Avithin the establishment period when—

(i) the Secretary applies such prohibition to such species at the request of the State, or

(ii) the Secretary applies such prohibition after he finds, …