What is the Endangered Species Act?

The Endangered Species Act (“ESA”) was enacted in 1973 and protects plants and animals that are listed by the federal government as “endangered” or “threatened.”   Sections 7 and 9 apply to oil and gas activities.  

Section 7, which concerns private parties as opposed to federal agencies, covers not only federal activities but the issuance of federal permits (e.g., section 404 permits issued by the Corps of Engineers), for private activities to parties who want to do construction work in waters or wetlands. 

Further, section 7 imposes an affirmative duty on federal agencies to make sure that their actions (including permitting) will not jeopardize the continued existence of any listed plant or animal or result in the destruction or modification of critical habitat.   Section 9, on the other hand, makes it illegal for a person to “take” a listed animal, which includes significantly modifying the animal’s habitat.  

Section 9 applies to both private parties and private land—landowners are not allowed to harm endangered animals or their habitats on their own property.   Both sections 7 and 9, however, allow “incidental takes” of threatened or endangered species, but only with a permit.

You can learn more about the Endangered Species Act at the EPA’s website at: https://www.epa.gov/laws-regulations/summary-endangered-species-act

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