Endangered Species

Agency Commitment

The Agency conducts activities and maintains and operates facilities related to water supply, flood protection, and sanitation. The Agency recognizes the need to balance habitat protection with the obligations of providing an adequate water supply, and maintaining flood control and sanitation facilities; and is committed to assisting with the preparation of tools that facilitate the recovery planning process for federally threatened runs of coho and chinook salmon, and steelhead in the Russian River watershed as well as shaping policies that promote protection and restoration of other threatened and endangered species and their habitat.

Federal Endangered Species Act

The federal Endangered Species Act (ESA) is a complex and comprehensive law that was passed by Congress in 1973. The ESA has been reauthorized and amended on several occasions - most recently in 1988. Although the ESA was due for reauthorization in 1993, no legislation has yet been enacted. The purpose of the ESA is to protect and recover plants and animals in danger of becoming extinct and to conserve their ecosystems. The ultimate goal of the ESA is recover species to the point that they no longer need protection under the ESA. Under the law, species may be listed as either endangered or threatened. Endangered means a species is in danger of extinction throughout all or a significant portion of its range. Threatened means a species is likely to become endangered within the foreseeable future. All species of plants and animals, except pest insects, are eligible for listing as endangered or threatened. The ESA is administered by the U.S. Fish and Wildlife Service and National Marine Fisheries Service (NMFS). The Fish and Wildlife Service is responsible for terrestrial and freshwater organisms, while NMFS is responsible primarily for marine and anadromous species such as salmon and whales. Some of the major provisions of the ESA include the criteria for listing a species as threatened or endangered, recovery planning goals, federal agency consultation requirements, actions prohibited by the ESA, and permits for take of listed species.

The ESA includes regulations prohibiting "take" of endangered, and in some cases threatened, species. "Take" is defined in the ESA as: to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt to engage in any such conduct. "Harm" is defined as an act that actually kills or injures a protected species. Harm can arise from significant habitat modification or degradation where it actually kills or injures protected species by significantly impairing essential behavioral patterns, including breeding, spawning, rearing, migrating, feeding, or sheltering. In other words, any activity that has a direct or indirect adverse effect on a listed species would be considered a take under the ESA. Any action that results in take of a listed species is in violation of the ESA.

California Endangered Species Act

The California Endangered Species Act (CESA) (Fish & Game Code 2050, et seq.) generally parallels the main provisions of the Federal Endangered Species Act and is administered by the California Department of Fish and Game (DFG). Under CESA the term "endangered species" is defined as a species of plant, fish, or wildlife, which is "in serious danger of becoming extinct throughout all, or a significant portion of its range" and is limited to species or subspecies native to California. CESA establishes a petitioning process for the listing of threatened or endangered species. The California Fish and Game Commission is required to adopt regulations for this process and establish criteria for determining whether a species is endangered or threatened. The California Code of Regulations, Title 14 §670.1(a) identifies the required contents for such a petition.

CESA prohibits taking a listed species except as otherwise provided in State law. Unlike its Federal counterpart, CESA applies the take prohibitions to species petitioned for listing (state candidates). State agencies are required to consult with DFG to ensure that any action it undertakes is not likely to jeopardize the continued existence of any endangered or threatened species or result in destruction or adverse modification of essential habitat.

The Natural Community Conservation Planning Act (NCCP Act) was added to CESA in 1991. (Fish & Game Code §§2800-2840). These provisions provide for voluntary cooperation among DFG, landowners, and other interested parties to develop natural community conservation plans which provide for early coordination of efforts to protect listed species or species that are not yet listed. The primary purpose of the NCCP Act is to preserve species and their habitats, while allowing reasonable and appropriate development to occur on affected lands.

4(d) Rules

The federal ESA makes it illegal for any person subject to the jurisdiction of the United States to take any species of fish or wildlife that is listed as endangered or threatened without specific authorization. The final 4(d) rule puts in place the same take prohibitions for threatened salmon and steelhead, except for certain limits that apply to the activities specified in the rule. This prohibition applies within the United States and its territorial waters as well as on the high seas.

Section 4(d) of the ESA requires NMFS to issue regulations deemed "necessary and advisable to provide for the conservation of the species." NMFS must establish protective rules for all species now listed as threatened under the ESA. These protective rules for threatened species may apply to any or all of the ESA Section 9 protections that automatically prohibit take of species listed as endangered. The rules need not prohibit all take. There may be an "exception" from the prohibitions on take so long as the take occurs as the result of a program that adequately protects the listed species and its habitat. In other words, the 4(d) rule can "limit" the situations to which the take prohibitions apply.

Incorporating such "limits" into a 4(d) rule can be good for NMFS, state agencies, government entities, private citizens, and the fish. Activities carried out in accordance with 4(d) rule limits can help protect threatened species and their habitats while relieving state agencies, government entities, tribes, and others from liability for take that results from those activities. By providing limitation from take liability, NMFS encourages governments and private citizens to adjust their programs and activities to be "salmon safe." NMFS anticipates that programs and activities included as a 4(d) rule limit will ultimately be incorporated into ESA Recovery Plans for listed salmon and steelhead.