50 C.F.R. § 402.01

Scope

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(a) This part interprets and implements sections 7(a)-(d) [16 U.S.C. 1536(a)-(d)] of the Endangered Species Act of 1973, as amended (“Act”). Section 7(a) grants authority to and imposes requirements upon Federal agencies regarding endangered or threatened species of fish, wildlife, or plants (“listed species”) and habitat of such species that has been designated as critical (“critical habitat”). Section 7(a)(1) of the Act directs Federal agencies, in consultation with and with the assistance of the Secretary of the Interior or of Commerce, as appropriate, to utilize their authorities to further the purposes of the Act by carrying out conservation programs for listed species. Such affirmative conservation programs must comply with applicable permit requirements (50 CFR parts 17, 220, 222, and 227) for listed species and should be coordinated with the appropriate Secretary. Section 7(a)(2) of the Act requires every Federal agency, in consultation with and with the assistance of the Secretary, to insure that any action it authorizes, funds, or carries out, in the United States or upon the high seas, is not likely to jeopardize the continued existence of any listed species or results in the destruction or adverse modification of critical habitat. Section 7(a)(3) of the Act authorizes a prospective permit or license applicant to request the issuing Federal agency to enter into early consultation with the Service on a proposed action to determine whether such action is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat. Section 7(a)(4) of the Act requires Federal agencies to confer with the Secretary on any action that is likely to jeopardize the continued existence of proposed species or result in the destruction or adverse modification of proposed critical habitat. Section 7(b) of the Act requires the Secretary, after the conclusion of early or formal consultation, to issue a written statement setting forth the Secretary's opinion detailing how the agency action affects listed species or critical habitat Biological assessments are required under section 7(c) of the Act if listed species or critical habitat may be present in the area affected by any major construction activity as defined in § 404.02. Section 7(d) of the Act prohibits Federal agencies and applicants from making any irreversible or irretrievable commitment of resources which has the effect of foreclosing the formulation or implementation of reasonable and prudent alternatives which would avoid jeopardizing the continued existence of listed species or resulting in the destruction or adverse modification of critical habitat. Section 7(e)-(o)(1) of the Act provide procedures for granting exemptions from the requirements of section 7(a)(2). Regulations governing the submission of exemption applications are found at 50 CFR part 451, and regulations governing the exemption process are found at 50 CFR parts 450, 452, and 453.

(b) The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) share responsibilities for administering the Act. The Lists of Endangered and Threatened Wildlife and Plants are found in 50 CFR 17.11 and 17.12 and the designated critical habitats are found in 50 CFR 17.95 and 17.96 and 50 CFR part 226. Endangered or threatened species under the jurisdiction of the NMFS are located in 50 CFR 222.23(a) and 227.4. If the subject species is cited in 50 CFR 222.23(a) or 227.4, the Federal agency shall contact the NMFS. For all other listed species the Federal Agency shall contact the FWS.

Notes of Decisions

Cited in 217 cases (36 in the last 5 years), 1981–2026 · leading case: Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096 (10th Cir. 2010).

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Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096 (10th Cir. 2010). · cites it 4× “50 C.F.R. § 402.01 (b). The "FWS has jurisdiction over freshwater and terrestrial species while the National Marine Fisheries Service is responsible for anadromous and marine species.”

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). · cites it 2× “19926 ; 50 CFR 402.01 (1991). Shortly thereafter, respondents, organizations dedicated to wildlife conservation and other environmental causes, filed this action against the Secretary of the Interior, seeking a declaratory judgment that the new regulation is in error as to the…”

New Mexico Ex Rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683 (10th Cir. 2009). · cites it 2× “§ 1536 (a)(2); see also 50 C.F.R. § 402.01 (b) (providing for “all .”

Ctr. for Biological Diversity v. United States Bureau of Land Mgmt., 698 F.3d 1101 (9th Cir. 2012). · cites it 2× “§ 1540 (entrusting enforcement of the ESA to the Secretary of the Interior), and 50 C.F.R. § 402.01 (b) (delegating to the FWS responsibilities for administering the ESA).”

Am. Wildlands v. Kempthorne, 530 F.3d 991 (D.C. Cir. 2008). “§ 1533(a)(1), a responsibility he has delegated to the Department of the Interior’s Fish and Wildlife Service (“Service”), 50 C.F.R. § 402.01 (b). In determining whether to list a species as threatened or endangered, the Service must first define the species so the agency can…”

Pyramid Lake Paiute Tribe of Indians v. United States Dep't of the Navy James Webb, as Sec'y of the Navy, 898 F.2d 1410 (9th Cir. 1990). · cites it 2× “§ 1536 (a)(2); 50 C.F.R. §§ 402.01 (b), 402.12 (1988). Cui-ui fall under the jurisdiction of the FWS for consultative purposes.”

Animal Welfare Inst. v. Martin, 623 F.3d 19 (1st Cir. 2010). · cites it 2× “§ 1532 (15); 50 C.F.R. § 402.01 (b). Here, then, the Secretary is the Secretary of the Interior, whose authority under the ESA has been delegated to FWS.”

Tucson Herpetological Soc'y v. Salazar, 566 F.3d 870 (9th Cir. 2009). · cites it 2× “50 C.F.R. § 402.01 (b). The ESA requires the Secretary to consider five factors when determining whether a species is threatened or endangered: (1) the present or threatened destruction, modification, or curtailment of the species' range; (2) overutilization for commercial,…”

Greater Yellowstone Coalition v. Flowers, 321 F.3d 1250 (10th Cir. 2003). “It is not clear that deference to FWS is appropriate in this matter, however, as the present action does not arise under the ESA, the statute which FWS is responsible for administering, see 50 C.”

Fund for Animals, Inc. v. Norton, 322 F.3d 728 (D.C. Cir. 2003). “§ 1533(a)(1), a responsibility she has delegated to the Department of the Interior’s Fish and Wildlife Service (FWS), 50 C.F.R. § 402.01 (b). A species is endangered if it “is in danger of extinction throughout all or a significant portion of its range,” 16 U.”

Friends of the Santa Clara v. US Army Corps of Engineers, 887 F.3d 906 (9th Cir. 2018). “See 50 C.F.R. § 402.01 (b). FWS is responsible for land-based and freshwater species, and NMFS is responsible for marine and anadromous species.”

Friends of Blackwater v. Kenneth Salazar, 691 F.3d 428 (D.C. Cir. 2012). · cites it 2× “The Secretary has delegated his responsibilities under the Act, as relevant here, to the Fish and Wildlife Service, 50 C.F.R. § 402.01 (b), and so we refer to the Secretary and the agency interchangeably.”

Show all 217 citing cases →

— 50 C.F.R. § 402.01(b) — 7 cases

Ramsey v. Kantor, 96 F.3d 434 (9th Cir. 1996).

San Luis & Delta-Mendota Water Auth. v. Salazar, 686 F. Supp. 2d 1026 (E.D. Cal. 2009).

Ramsey v. Kantor, 96 F.3d 434 (9th Cir. 1996).

Nat. Resources Def. Council, Inc. v. United State Dep't of the Interior, 13 F. App'x 612 (9th Cir. 2001).

Ctr. for Biological Diversity v. United States Forest Serv. (D. Ariz. 2021).

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