Why is the Comptroller providing this information?

As the state's chief financial officer, the Comptroller of Public accounts is charged with monitoring every aspect of the Texas economy and providing citizens with the information they need to make the best economic choices for themselves.

At least 90 percent of Texas land is privately owned.¹ The Endangered Species Act and other federal laws and regulations can restrict Texans' ability to use and enjoy the lands they own — and these restrictions can affect the state's bottom line as well.

A recent surge in species being considered by FWS for possible listing over the next several years may have a big impact on individuals, businesses and local economies throughout our state.

Is there a list available of all the Texas species currently petitioned or proposed for ESA listing?

Unfortunately, there is no single, definitive list of all species in Texas petitioned or proposed for ESA listing.

The Texas Parks and Wildlife Department (TPWD) maintains a database of state and federal listed species in Texas as well as species “of concern” — species for which there is some concern regarding status and threats, but for which insufficient information is available to indicate a need for listing.

The U.S. Fish and Wildlife Service (FWS), part of the U.S. Department of the Interior, maintains a list of species found in Texas it has proposed for listing, as well as another list of “candidate” species in Texas — species FWS believes warrant listing, but that are not being acted on at present due to other, more pressing priorities.

The National Marine Fisheries Service (NMFS), part of the U.S. Department of Commerce, also maintains its own list of candidate and proposed species, as well as a list of species of “concern.”

What does "threatened" or "endangered" mean?

A threatened species is one likely to become endangered in the foreseeable future, within all or a significant part of its native range. An endangered species is already becoming extinct throughout all or a significant part of its range.

Who decides whether to list a species as threatened or endangered?

The U.S. Fish and Wildlife Service (FWS), is responsible for enforcing the federal Endangered Species Act, which seeks to "protect and conserve" threatened and endangered species of plants and animals.

FWS designates terrestrial and freshwater threatened or endangered species; the National Marine Fisheries Service (NMFS), is responsible for listing saltwater species. FWS and NMFS determine whether to list a species as threatened or endangered after an internal review of material submitted by interested parties, both for and against the designation, as well as public comments.

Who proposes species for listing as threatened or endangered?

Individuals and interested organizations can file petitions with the FWS or NMFS to propose species for listing as threatened or endangered. In addition, the Endangered Species Act allows FWS and NMFS to initiate their own reviews of species for listing.

Because nearly all of the Texas species currently proposed for listing are under the authority of FWS, much of the information in these FAQs pertains to FWS procedures and not those of NMFS. Consult with NMFS for specific information on marine species that may be threatened or endangered.

How can I oppose listing a species if I disagree with FWS actions?

Every Texan can become involved in endangered and threatened species determinations, whether they are directly affected or not.

There are three general ways to get involved — filing comments with FWS on a pending decision; doing your homework on FWS decisions and the species involved; and talking with government officials, your neighbors and any associations to which you may belong.

• FWS accepts comments from the public at any time during a petition's review, but generally only those comments filed before posted deadlines are certain to be considered. Check the FWS searchable database of endangered species notices and proposed rules printed in the Federal Register or on Regulations.gov for information on how, when and where to file comments. Both sites are searchable by keyword, but enter case docket numbers if you know them for faster results.
• You can learn more about endangered species in Texas through this website's species section, the FWS or TPWD's endangered species website.
• Contact the local TPWD game warden or biologist in the county (in which a proposed threatened or endangered species is said to live) for more species information. TPWD biologists may provide you with a confidential assessment of any species on your land.
• Join with like-minded citizens or associations to learn more about the process.
• Attend any and all public hearings conducted by the FWS in your area.

What legal actions are available to challenge a listing?

The federal courts can review a final FWS decision if any person or group affected by it brings a lawsuit. Generally, an FWS decision to list a species as endangered can be set aside only if the court determines that the service's actions were arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.² This is the standard set forth in Section 706(2)(A) of the Administrative Procedures Act (APA).³

Under certain circumstances, a person may file a “citizen suit” challenging FWS action under Section 1540 of the ESA. The same standard generally applies to these types of cases, meaning the FWS actions can only be set aside if they are arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. The “citizen suit” provision can be used to prevent violations of the ESA and to compel FWS to perform its various nondiscretionary duties. This type of a complaint can be filed only after 60 days advance notice of the claim has been provided to the Secretary of the Interior.

To avoid any uncertainty, a plaintiff may choose to submit a 60-day advance notice of his or her ESA citizen suit, and plead the claim as both an ESA claim and a claim under the APA.

What does “based on sound science” really mean? Who decides if it is sound science?

The ESA requires FWS and NMFS to consider only the best available scientific information when deliberating whether to list a species as threatened or endangered. The ESA does not explain what “best scientific data available” means. In 1994, FWS and NMFS designed an Interagency Cooperative Policy on Information Standards (PDF) to “provide criteria, establish procedures, and provide guidance to ensure that decisions represent the best scientific and commercial data available.” The agencies, through policies, information quality guidance and Office of Management and Budget requirements, have taken some additional steps to improve the quality of data. However, this standard under the ESA is still not entirely clear, and the courts give FWS and NMFS a great deal of deference in this area. Some experts recommend that the services be required to show in a transparent manner why the data they used was the best available and why other science was rejected.

How is a species declared threatened or endangered?

Once FWS receives a petition to list a species as threatened or endangered, the agency must determine within 90 days whether the petition contains enough "substantial" information to indicate that listing may be warranted.

If FWS determines that the petition has "substantial" information, the agency has 12 months after receiving it to undertake a further review of the species and decide whether listing is warranted. Public comment is encouraged throughout this review.

To find out more on how, when and where to file comments, check on FWS searchable database of endangered species notices and proposed rules printed in the Federal Register or on Regulations.gov. The latter website allows you to file comments online instantly.

After this review, FWS can make one of three determinations:

• yes, the species warrants listing;
• no, it does not warrant listing; or
• yes, it does warrant listing, but the agency will not do so for the time being due to competing priorities and a lack of resources. See listing process flowchart.

If FWS determines that a species should be listed, it publishes a proposed rule to that effect in the Federal Register and receives comments on it for 60 days. It also may hold a public hearing during this period to receive additional input from the public, the scientific community and federal and state agencies. FWS must grant a public hearing at the request of any interested party within the first 45 days of the public comment period.

After reviewing all comments received, the agency makes its decision. If FWS decides that a species should receive immediate federal protection, it publishes a final rule in the Federal Register. The species then receives full protection under the ESA beginning in 30 days. If FWS determines that a species warrants listing, but it cannot take immediate action due to other priorities, the species is placed on a list of "candidate" species, where it is evaluated annually for a possible change in status.

What standards does FWS use to determine if a species should be listed as threatened or endangered?

In reviewing species for listing, FWS must use the best scientific and commercial information available. FWS uses five factors to determine whether to declare a species threatened or endangered. FWS may list a species as threatened or endangered if any one or more of these factors imperils the survival of a species:

• present or threatened destruction, modification or curtailment of the species' range or habitat;
• overuse of the species for commercial, recreational, scientific or educational purposes;
• disease or predation affecting the species' survival;
• inadequate existing regulatory mechanisms to protect and conserve the species; and
• other natural or manmade factors affecting the species' continued existence.

What does it mean when FWS or NMFS officially lists a species as threatened or endangered?

Protection under the ESA means that:

• the species' critical habitat cannot be modified or degraded to a point that significantly impairs feeding, breeding or sheltering behaviors;
• individuals of the species cannot be imported, exported or traded in interstate or international commerce unless FWS/NMFS issues a permit allowing the activity for conservation purposes;
• individuals of the species cannot be taken or collected and then moved, except in FWS- or NMFS-approved relocations designed to enhance reproduction and/or scientific study; and
• the species must be unhindered by man within its habitat, and individual members of the species cannot be "taken," meaning hunted, captured, killed, harassed, pursued or removed, without FWS/NMFS approval.

A cooperative conservation agreement between FWS and landowners, however, can mitigate some or all of these protections.

Civil penalties for ESA violations, under Section 11 of the act, can range up to $25,000 per violation for major offenses and up to $500 per violation for minor offenses. Criminal penalties include fines up to $100,000 for an individual and $200,000 for a corporation.

Are threatened and endangered species treated differently under the law? If so, how?

Yes and no. The administrative review process assessing the species' status and future threats is the same for both. Once listed, all protections of the ESA are provided for endangered species. However, FWS has the authority to determine which protections to apply to threatened species to best meet recovery needs.

What is a "take"?

Under the ESA, to take means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct." The ESA prohibits the "take" of any lawfully protected species within the U.S. or its territorial waters.

The law, however, allows FWS to issue a permit to take a species if the taking is done to enhance (including scientific research for the species' benefit) or to propagate the species, or if the take will occur incidentally while carrying out otherwise lawful activities and is not the purpose of those activities. (See ESA, Sec. 10. EXCEPTIONS.)