Environmental Newsflash, Issue 13

The Endangered Species Act is administered by the US Fish & Wildlife Service (except for marine animals, which is administered by the National Marine Fisheries Service). Under the ESA, a species can be listed as either "threatened" or "endangered." This can occur on FWS initiative or citizen petition and lawsuit. Once a species is listed, the knowing "taking" of that species is prohibited. The term "taking" is defined broadly to include "harming." In general, the FWS must designate a "critical habitat" for each listed species. This can include privately owned land. Federal agencies are prohibited from authorizing, funding or carrying out actions that destroy or adversely modify critical habitats. While this prohibition does not directly apply to private landowners, it indirectly impacts private landowners when they need to apply for a federal permit (such as Section 404 dredge and fill permit) to conduct their activities.

Private landowners can obtain "incidental take permits" by submitting and obtaining approval of a Habitat Conservation Plan. The permit would allow otherwise prohibited activities that result in a "taking" as long as the taking "will not appreciably reduce the likelihood of the survival and recovery of the species in the wild." The permit will contain terms and conditions that must be followed. Each Habitat Conservation Plan must specify, among other things, the impact to the species that will occur, the steps taken to minimize and mitigate the incidental take, and alternative actions considered.

In 2003, the Center for Biological Diversity petitioned FWS to list the Mexican Garter Snake. The Mexican Garter Snake lives in riparian areas along streams and rivers in Arizona, New Mexico and Mexico. This petition was denied in September 2006. The Center for Biological Diversity sued FWS in 2007 to have the decision overturned. The Center maintains that political appointees, in particular former Deputy Assistant Secretary of the Interior Julie McDonald, overturned endangered species determinations of the agency based on political considerations despite scientific evidence. On May 28, 2008, FWS announced that it would reconsider its decision not to list the Mexican Garter Snake.

The main threats to the Mexican Garter Snake have been described as development in riparian areas, livestock grazing in riparian areas and groundwater pumping in those areas. Should the Mexican Garter Snake be listed, developers and ranchers could be forced to prepare Habitat Conservation Plans and obtain incidental take permits in order to conduct their activities. They could be required to take certain actions to mitigate the impact of their activities on the species. Certain activities could be prohibited in certain areas.