Order Code IB10072
Issue Brief for Congress
Received through the CRS Web
Endangered Species:
Difficult Choices
Updated July 3, 2002
Eugene H. Buck and M. Lynne Corn
Resources, Science, and Industry Division
Pamela Baldwin
American Law Division
Congressional Research Service ˜ The Library of Congress

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CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
Overview
Prohibitions and Penalties
Listing
Critical Habitat
Recovery Plans
Land Acquisition and Cooperation
Permits
Exemptions; Emergencies
Miscellaneous
Major Provisions of Current International Law
Issues in the 107th Congress
Resource Conflicts
Use of “Sound Science”
DOD Activities
Private Property and Takings
Funding for Land Conservation
Making the ESA More User-Friendly
Critical Habitat Designation
Additional Legislative Initiatives
Appropriations Issues
LEGISLATION

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Endangered Species: Difficult Choices
SUMMARY
The 107th Congress may consider whe-
marine and anadromous species. The U.S.
ther to reauthorize and amend the Endangered
Geological Survey’s Biological Resources
Species Act of 1973 (ESA). Major issues in
Division conducts research on species for
recent years have focused on whether to incor-
which the FWS has management authority.
porate further protection for property owners
and reduce regulatory impacts, whether to
The authorization for spending under
increase the protection afforded listed species,
ESA expired on October 1, 1992. The prohi-
or whether to clarify various aspects of the
bitions and requirements of the ESA have
Act, such as the role of science in decision-
remained in force, even in the absence of an
making. The Clinton Administration made
authorization, and funds were appropriated to
significant changes to ESA regulations, and
implement the administrative provisions of the
many have advocated including these changes
ESA in each subsequent fiscal year.
in the law itself.
The Senate Environment Subcommittee
The ESA has been one of the more con-
on Fisheries, Wildlife, and Water has held an
tentious environmental laws. This may stem
oversight hearing on the ESA listing and
from the strict substantive provisions of this
delisting process. Other hearings have been
law, which can affect the use of both federal
held by House and Senate committees on
and non-federal lands. Under the ESA, certain
specific issues, and additional hearings are
species of plants and animals (both vertebrate
anticipated. In the 107th Congress, a number
and invertebrate) are listed as either “endan-
of bills have been introduced to address spe-
gered” or “threatened” according to assess-
cific issues, while only two bills (S. 911 and
ments of the risk of their extinction. Once a
H.R. 4579) have been introduced to deal
species is listed, powerful legal tools are
comprehensively with reauthorization and a
available to aid the recovery of the species and
host of ESA issues. On the international side,
the protection of its habitat. The ESA is
reauthorizations for the African Elephant
administered by the Fish and Wildlife Service
Conservation Act (P.L. 107-111, the Rhinoc-
(FWS) for terrestrial and freshwater species
eros and Tiger Conservation Act of 1994 (P.L.
and some marine mammals, and by the Na-
107-112), and the Asian Elephant Conserva-
tional Marine Fisheries Service (NMFS) for
tion Act (P.L. 107-141) were enacted.
Congressional Research Service ˜ The Library of Congress

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MOST RECENT DEVELOPMENTS
On June 18 and 19, 2002, the House Committee on Resources held a hearing on H.R.
4840, proposing to amend the ESA regarding the use of science in decision-making under
the ESA. Full committee markup of H.R. 4840 has been scheduled for July 10, 2002. On
June 18, 2002, H.R. 3558, authorizing grants to states and local governments to combat
invasive species, was reported (amended) by the House Committee on Resources (H.Rept.
107-512). On May 10, 2002, the House passed H.R. 4546, including §312 that would limit
the designation of critical habitat for endangered species on Department of Defense lands.
BACKGROUND AND ANALYSIS
Overview
The 1973 ESA (16 U.S.C. 1531-1543; P.L. 93-205, as amended) is a comprehensive
attempt to protect all species and to consider habitat protection as an integral part of that
effort. Under the ESA, species of plants and animals (both vertebrate and invertebrate) may
be listed as either “endangered” or “threatened” according to assessments of the risk of their
extinction. More flexible management can be provided for a species listed as threatened.
Distinct population segments of vertebrate species may also be listed as threatened or
endangered, and some populations of chinook, coho, chum, and sockeye salmon in
Washington, Oregon, Idaho, and California are protected under the ESA while other healthy
populations of these same species in Alaska are not listed and can be commercially
harvested. More limited protection is available for plant species under the ESA (16 U.S.C.
1532). Once a species is listed, powerful legal tools, including penalties and citizen suit
provisions, are available to aid the recovery of the species and the protection of its habitat.
Use of these tools, or the failure to use them, has lead to conflict.
As of March 31, 2002, a total of 1,070 species of animals and 746 species of plants had been
listed as either endangered or threatened, of which the majority (515 species of animals and
743 species of plants) occur in the United States and its territories and the remainder only in
other countries. Of the 1,258 U.S. species, 977 are covered in recovery plans. (See the U.S.
Fish and Wildlife Service (FWS) at [http://endangered.fws.gov/] and the National Marine
Fisheries Service (NMFS) at [http://www.nmfs.noaa.gov/endangered.htm].)
At times, efforts to protect and recover listed species can be controversial; declining
species can function like the proverbial canary in the coal mine, since declining species often
flag larger issues of resource scarcity and altered ecosystems. Past resource debates in which
ESA-listed species were part of larger issues include Tennessee’s Tellico Dam (water storage
and construction jobs versus farmland protection and tribal graves, as well as the snail
darter); Pacific northwest timber harvest (protection of logging jobs and communities versus
commercial and sport fishing, recreation, and ecosystem protection, as well as salmon and
spotted owls); and Texas’s Edwards Aquifer (allocation of water among various users with
differing short- and long-term interests, as well as several spring-dependent species). Some
current issues are discussed below.
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Prohibitions and Penalties. The Act contains civil and criminal penalties for
“take” of endangered species, which means to “harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect or attempt to engage in any such conduct” (16 U.S.C. 1532;
harassment and harm are further defined in regulation at 50 C.F.R. 17.3). There has been
controversy over the extent to which habitat modification is prohibited. A 1995 Supreme
Court decision held that the inclusion of significant habitat modification was a reasonable
interpretation of the term “harm” in the ESA. (See CRS Report 95-778 A, Habitat
Modification and the Endangered Species Act: The Sweet Home Decision.)
Listing. Species may be listed on the initiative of the appropriate Secretary or by
petition from a state or federal agency — including FWS or NMFS, another entity or an
individual. The Secretary must decide whether to list the species based only on the best
available scientific and commercial information, after an extensive series of procedural steps
to ensure public participation and the collection of information. In making the decision as
to whether a species needs the protections of the Act, the Secretary may not take into account
the economic effects that listing may have; economic and other considerations are taken into
account in structuring alternatives for assisting the species. (See CRS Report RL30792, The
Endangered Species Act: Consideration of Economic Factors, for an analysis of when and
where the ESA does allow consideration of economic factors.)
Critical Habitat. With certain exceptions, if a species is listed, the appropriate
Secretary must designate critical habitat (CH) – areas where the species is currently found
or which might provide additional habitat for the species recovery. However, if the
publication of this information is not “prudent” because it could harm the species (e.g., by
encouraging vandals or collectors), the appropriate Secretary may decide not to designate
CH. The appropriate Secretary may also postpone designation for up to one year if the
information is not determinable (16 U.S.C. 1533). As a practical matter, CH has not been
designated for many listed species in large part because of a FWS regulation a court has
found to be an unlawful interpretation of the Act in that it does not take into account the
recovery of listed species. While any area, whether or not federally owned, may be
designated as CH, private land is affected by designation primarily if some federal action
(e.g., license, loan, permit, etc.) is also involved, such that “consultation” is necessary.
Federal agencies must avoid “adverse modification” of CH, either through their own actions
or activities that are federally approved or funded.
Recovery Plans. The appropriate Secretary must develop recovery plans for the
conservation and survival of listed species. At first, recovery plans tended to cover birds and
mammals, but a 1988 amendment forbade the Secretary from favoring particular taxonomic
groups (16 U.S.C. 1533). The ESA and regulations provide little detail on the requirements
for recovery plans, and these plans are not binding on federal agencies or others.
Land Acquisition and Cooperation. The federal government may acquire land
to conserve (recover) endangered and threatened species, and money from the Land and
Water Conservation Fund may be appropriated for this acquisition (16 U.S.C. 1534). The
appropriate Secretary must cooperate with the states in conserving protected species and
must enter into cooperative agreements to assist states in their endangered species programs,
if the programs meet certain specified standards. If there is a cooperative agreement, the
states may receive federal funds to implement the program, but the states must normally
provide a minimum 25% matching amount. Under the 1988 amendments, a fund was created
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to provide for the state grants. While the authorized size of the fund is determined according
to a formula, money from the fund still requires annual appropriation (16 U.S.C. 1535).
Permits. There are two ways in which proposed actions can be evaluated for possible
adverse impacts on listed species and permits issued. First, if federal agency actions or
actions of a non-federal party that require an agency’s approval, permit, or funding may
affect a listed species, the federal agency must ensure that those actions are “not likely to
jeopardize the continued existence” of any endangered or threatened species, nor to adversely
modify CH. To review the possible effects of their actions on listed species and CH, federal
agencies must consult with the appropriate Secretary. If the Secretary finds that an action
would jeopardize a listed species or adversely modify CH, the Secretary must suggest
reasonable and prudent alternatives that would avoid harm to the species. Pending
completion of the consultation process, agencies may not make irretrievable commitments
of resources that would foreclose any alternatives. The Secretary may issue a written
statement that allows incidental taking of a species, subject to terms and conditions specified
in the statement (16 U.S.C. 1536).
For actions without a federal nexus (i.e., no federal funding, permit, or license), the
appropriate Secretary may issue permits to allow the “incidental take” of species during
otherwise lawful actions. An applicant for a permit must submit a conservation plan that
shows the likely impact of the planned action, steps to be taken to minimize and mitigate the
impact, and funding for the mitigation; alternatives that were considered and rejected; and
any other measures that the Secretary may require. The FWS and NMFS have vastly
expanded use of this section and provided streamlined procedures for activities with minimal
impacts (16 U.S.C. 1539).
Exemptions; Emergencies. Proponents of federal action may apply for an
exemption from §7(a)(2) of the ESA for that action (not for a species). Under the ESA, a
Committee (commonly called the “God Squad”) of six specified federal officials and a
representative of each affected state must decide whether to allow a project to proceed
despite future harm to a species; at least five votes are required to pass an exemption. To
date, this process has been little used and only one exemption (Grayrocks Dam, WY) fully
granted. The President may grant exemptions for actions in declared disaster areas, but the
ESA does not address emergency actions or situations. The Committee must grant an
exemption if the Secretary of Defense determines that an exemption is necessary for national
security (16 U.S.C. 1536). To date, no security exemption has been sought. (For further
discussion, see CRS Report 90-242 ENR, Endangered Species Act: The Listing and
Exemption Processes.)
Miscellaneous. Other provisions specify certain exemptions for raptors; regulate
subsistence activities by Alaskan Natives; prohibit interstate transport and sale of listed
species and parts; control trade in parts or products of endangered species owned before the
ESA went into effect; and specify rules for establishing experimental populations (16 U.S.C.
1539).
Major Provisions of Current International Law. For the United States, the ESA
implements the Convention on International Trade in Endangered Species of Wild Fauna and
Flora (“CITES”; TIAS 8249; see CRS Report 94-675 ENR, Convention on International
Trade in Endangered Species: Its Past and Future), signed by the United States on March
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3, 1973; and the Convention on Nature Protection and Wildlife Preservation in the Western
Hemisphere (the “Western Hemisphere Convention”; 50 Stat. 1354; TS 981), signed by the
United States on October 12, 1940. CITES parallels the ESA by dividing its listed species
into groups, according to the estimated risk of extinction, but uses three major categories,
rather than two. In contrast to the ESA, CITES focuses exclusively on trade and does not
consider or attempt to address habitat loss. The ESA makes violations of CITES violations
of U.S. law if committed within the jurisdiction of the United States (16 U.S.C. 1538). The
ESA also regulates import and export of controlled products and provides some exceptions.
Issues in the 107th Congress
Reauthorization of ESA has been on the legislative agenda since the last authorization
expired in 1992, and bills have been introduced that address particular aspects of endangered
species protection.
Resource Conflicts. One of the express purposes of the ESA is to “provide a means
whereby the ecosystems upon which endangered species and threatened species depend may
be conserved.” (16 U.S.C. 1531(b)) As our nation runs out of open space and our population
puts increasing pressures on our natural resources, the conservation of species and their
habitats may highlight underlying resource and economic conflicts. Public values and
affected economic interests may be complex and sometimes conflicting. Some of these
situations have been the subject of Congressional oversight and legislative interest.
Klamath River Basin. For example, in the Klamath River Basin, which straddles the
Oregon/California border, the Bureau of Reclamation consulted with the FWS and NMFS
on operating the Klamath Project in 2001, an acute drought year. As a result of those
consultations, the Bureau decided to allocate nearly all the water to the protection of two
species of endangered suckers in Upper Klamath Lake, the project’s primary reservoir, and
threatened coho salmon in the Klamath River, which drains the Basin. (Whether there is
enough water to meet both needs may present another difficulty.) This action was taken to
avoid jeopardizing these species and to meet obligations to the Klamath and Yurok tribes.
The authority and duty of the Bureau to use irrigation water to preserve species was upheld
in Klamath Water Users Protective Association v. Patterson, 204 F.3d 1206 (9th Cir, 1999).
Because of the drought conditions, implementation of this operating plan meant that water
could not be delivered to many irrigation-dependent Oregon farmers. In addition, the lack
of downstream flows had adverse impacts on salmon fisheries and on federal wildlife refuges
that are home to many migratory birds and ESA-listed bald eagles. Therefore, upstream
farmers were pitted against salmon fishing, Native American interests, and other downstream
users; all sides have policy concerns that can be asserted and involve valuable sectors of the
local economy. Farmers point to their contractual rights and the hardships for their families;
others note that the salmon industry may be more valuable and that farmers could be
provided temporary economic assistance, while salmon extinction would be permanent. Still
others assert that there are ways to serve all interests, or that the science underlying the
agencies’ determinations is simply wrong. A federal district court denied a plea for release
of water to the farmers (Kandra v. United States, 145 F. Supp. 1192 (D. Or. 2001)).
On March 13, 2002, the House Resources Committee held an oversight hearing on a
National Academy of Science Interim Report evaluating two federal biological opinions on
endangered and threatened fishes in the Klamath River Basin that had prevented the Bureau
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from delivering water to many farmers in the Klamath Basin. The Academy released its
report in February 2002 and concluded there was no sound scientific basis for maintaining
Upper Klamath Lake levels and increased river flows as recommended in those biological
opinions, nor sufficient basis for supporting the contrary assertions. On February 27, 2002,
the Bureau released its 10-year biological assessment for its 10-year Klamath Project
operation plan, in which it anticipated regular water deliveries to farmers for the 2002
growing season. Operating under a letter of permission from the FWS, the Bureau released
only very low flows downstream in April and May 2002 and instead delivered water to the
Upper Basin farmers. The Bureau also rejected the FWS and NMFS biological opinions on
its 10-year operating plan and stated that it would comply for the immediate future but also
request new consultation. For additional information, see CRS Report RL31098, Klamath
River Basin Issues: An Overview of Water Use Conflicts and CRS Issue Brief IB10019,
Western Water Resource Issues. Therefore, despite increased rains and water availability,
the same set of issues and interests continue to be present.
Salmon Restoration. Similarly, salmon protection in the Pacific Northwest presents
many difficult choices, especially now that regional hydropower facilities are playing an
increasingly important role and drought conditions have become more severe. ESA listings
by NMFS officials in 1999 and 2000 completed most of the pending decisions on Pacific
salmon and steelhead trout, with a total of 26 distinct groups (i.e., evolutionarily significant
units) now listed as either threatened or endangered. NMFS officials are working closely
with state, local, and tribal officials, as well as the public, to develop a variety of recovery
measures that address habitat restoration and other concerns. In late July 2000, NMFS
decided, in response to an Army Corps of Engineers review, to delay any recommendation
to Congress concerning whether or not to breach the four Lower Snake River hydroelectric
dams to benefit salmon recovery. NMFS concluded, in a draft Biological Opinion and a
Basin-Wide Recovery Strategy, that the four Lower Snake River dams should remain in place
for at least 8 more years, to allow for a more complete assessment of progress toward
recovering endangered salmon. The final Federal Columbia River Power System biological
opinion, reflecting this policy, was released on December 21, 2000 (this opinion is available
at [http://www.nwr.noaa.gov/1hydrop/hydroweb/docs/Final/2000Biop.html]).
In Alsea Valley Alliance v. Evans (161 F. Supp 2d 1154 (D.C. Or. 2001), Judge Hogan
remanded the listing of the Oregon Coast Evolutionary Significant Unit of coho salmon as
a threatened species, finding that listing to have been arbitrary and capricious under the
Administrative Procedure Act. The ESA permits listing of a species, subspecies, or “distinct
population segment.” This allows some species such as bald eagle to be listed in an area
(such as the lower 48 states) even if a viable population exists somewhere else (such as
Alaska). NMFS had clarified in a policy statement what was meant by distinct population
segment in the context of certain fish. NMFS equated “distinct population segment” with
being an “evolutionary significant unit (ESU)” (56 Fed. Reg. 58,612 (November 20, 1991)).
An ESU is a population that is “substantially reproductively isolated from other conspecific
population units” and “represent[s] an important component in the evolutionary legacy of the
species” (56 Fed. Reg. 58,618). However, the NMFS policy on hatchery fish (58 Fed. Reg.
17,573 (April 5, 1993)) states that a hatchery population will not be considered part of an
ESU if the hatchery population is of a different genetic lineage than natural populations;
artificial propagation has produced appreciable changes in the hatchery population in
characteristics that are believed to have a genetic basis; or there is substantial uncertainty
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about the relationship between existing hatchery fish and the natural population (58 Fed.
Reg. 17,575).
The mistake the Judge felt NMFS made with respect to coho salmon was to include in
the coho ESU hatchery fish that in this instance were genetically identical to naturally
hatched fish in the same water source, but not to count the same fish when deciding whether
to list the coho or not. The court concluded that, in this instance, not considering the
numbers of hatchery fish when making the listing decision was arbitrary and created a further
distinction (hatchery-spawned vs. identical non-hatchery fish) below the level of ‘distinct
population segment,’ which the agency lacked authority to do.
Although the United States did not appeal this decision, intervening parties have
appealed, and the 9th Circuit blocked implementation of the lower court decision until the
appellate case is heard. It is not clear how this case might affect other listings, since
subsequent decisions could strike down other listings where genetically similar hatchery fish
were included in ESUs but not counted in making the listing decisions. In addition, it is not
clear whether courts will approve the NMFS hatchery policy that permits excluding from a
population segment fish from a dissimilar genetic lineage, even if they otherwise meet the
definition of the ESU. The decision could have implications for salmon listings in general.
Use of “Sound Science”. The ESA was enacted to conserve listed species – to
bring them to the point where they do not need the special protections of the Act – and one
of its purposes is to protect the ecosystems of which species listed as endangered are a part.
The Act requires that decisions to list a species be made “solely on the basis of the best
scientific and commercial data available ....” There is no elaboration on the meaning of this
phrase in the law itself or in FWS regulations.
In many instances, there may be little information on many species facing extinction
and few personnel and limited funds available to conduct studies on many of the less
charismatic species, or those of little known economic value. What should be done in such
instances? The Act does not expressly address this question, but it could be argued that,
combining the protective purpose of the Act – to save and recover species – with the wording
of “best ... data available,” arguably dwindling species should be given the benefit of the
doubt and a margin of safety permitted. This is the position taken in the FWS Handbook at
p. 1-6, which states that efforts should be made to develop information, but if a biological
opinion must be rendered promptly, it should be based on the available information, “giving
the benefit of the doubt to the species,” with consultation possibly being reinitiated if
additional information becomes available. This phrase is drawn from H.R. Conf. Rep. No
697, 96th Cong., 2d Sess. 12 (1979), which stated the “best information available” language
was intended to allow the FWS to issue biological opinions even when inadequate
information was available, rather than being forced to issue negative opinions. But the report
also states that if a biological opinion is rendered on the basis of inadequate information, the
federal agency proposing an action has the duty to show its actions will not jeopardize a
species and a continuing obligation to make a reasonable effort to develop information, and
that the statutory language “continues to give the benefit of the doubt to the species.”
The FWS and NMFS developed a joint policy on Information Standards Under the
Endangered Species Act (59 Fed. Reg. 34271 (July 1, 1994)) that might provide useful
information on this issue. Under this policy, FWS and NMFS will receive and use
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information from a wide variety of sources, including from individuals. Information may
range from the informal – oral or anecdotal – to peer reviewed scientific studies, and hence
the reliability of the information can also be variable. Service biologists are to impartially
review and evaluate all information for purposes of listing, consultation, recovery, and
permitting actions, and to ensure that any information used by the Services to implement the
Act is “reliable, credible, and represents the best scientific and commercial data available.”
Service biologists are to document their evaluations of all information and, to the extent
consistent with the use of the best scientific and commercial data available, use primary and
original sources of information as the basis of recommendations. In addition, documents
developed by Service biologists will be reviewed to “verify and assure the quality of the
science used to establish official positions, decisions, and actions ....”
Another joint policy notes that in addition to the public comments received on proposed
listing rules and draft recovery plans, the Services will also formally solicit expert opinions
and peer review to ensure the best biological and commercial information. With respect to
listing decisions, the agencies will solicit the expert opinions of three specialists and
summarize these in the record of final decision. Special independent peer review can also
be used when it is likely to reduce or resolve an unacceptable level of scientific uncertainty
(59 Fed. Reg. 34270 (July 1, 1994)).
Courts that have considered the “best data available” language have held that an agency
is not obliged to conduct studies to obtain missing data (Southwest Center for Biological
Diversity v. Babbitt, 215 F. 3d 58 (D.C. Cir. 2000)), but cannot ignore available biological
information (Connor v. Burford 848 F. 2d 1441 (9th Cir. 1988)), especially if the ignored
information is the most current (Southwest Center for Biological Diversity v. Babbitt, 926
F. Supp. 920 (D.C. Ariz. 1996), nor treat one species differently from the way other
similarly-situated species are treated (Ibid.), and may not decline to list a dwindling species
and wait until it is on the brink of extinction in reliance on possible but uncertain future
actions of an agency (Biodiversity Legal Foundation v. Babbitt, 943 F. Supp. 23 (D. D.C.
1996). “‘Best scientific and commercial data available’ is not a standard of absolute
certainty, and a fact that reflects Congress’ intent that the FWS take conservation measures
before a species is ‘conclusively’ headed for extinction” (Defenders of Wildlife v. Babbitt,
958 F. Supp. 670, 680 (D. D.C. 1997)). If the FWS does not base its listings on speculation
or surmise or disregard superior data, the fact that the studies it does rely on are imperfect
does not undermine those authorities as the best scientific data available -- “ the Service must
utilize the best scientific ... data available, not the best scientific data possible” (Building
Industry Ass’n of Sup. Cal. v. Norton, 247 F. 3d 1241, 1246-1267 (D.C. Cir. 2001), cert.
denied 2002 U.S. LEXIS 479).
On the other hand, the availability of judicial review can help ensure that agency
decisions and their use of scientific data are not “arbitrary or capricious” and that regulations
are rationally related to the problems causing the decline of a species, especially in situations
when other interests are adversely affected. (See Connor v. Andrus, 453 F. Supp. 1037
(W.D. Tx. 1978), striking down regulations totally banning duck hunting in an area in order
to protect one species of duck). Another court stated that the bar the FWS has to clear in
terms of evidence is very low, but it must at least clear it and, in the context of issuance of
Incidental Take Permits, this means the agency must demonstrate that a species is or could
be in an area before regulating it, and must establish the causal connection between the land
use being regulated and harm to the species in question. Mere speculation as to the potential
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for harm is not sufficient (Arizona Cattle Growers Association v. United States Fish and
Wildlife Service, 273 F. 3d 1229 (9th Cir. 2001)).
Several bills have been introduced in the 107th Congress seeking to clarify the role of
science in ESA decisions. H.R. 2829/S. 1912 would require greater weight be given to
scientific or commercial data that is empirical or has been field-tested or peer-reviewed,
while H.R. 3705/H.R. 4840 would modify the listing petition process and establish
independent review boards. H.R. 4840 would also require collection of field data in all cases
before listing could occur. The House Committee on Resources held a hearing on H.R. 2829
and H.R. 3705 on March 20, 2002, and on H.R. 4840 on June 18 and 19, 2002.
DOD Activities. The events of September 11, 2001, have focused attention on all
statutes that might impinge on military training activities. The ESA allows for an exemption
for activities involving national security, but an exemption has never been sought on this
basis, there are no regulations that elaborate on it, and little information is available as to
how it might apply in practice. It is, however, worded as an exemption for an individual
action of an agency and is worded as an exemption that must be granted by the high-level
committee assembled to consider exemptions.
On April 23, 2002, H.R. 4546 was reported (H.Rept. 107-436), with §312 proposing to
limit the designation of CH on Department of Defense (DOD) lands. This measure was
passed by the House on May 10, 2002. Section 312 of H.R. 4546 as passed by the House
would amend the ESA in several respects. It would insert “or national security” into the CH
evaluation process, thereby making consideration of that factor an express requirement. It
also would prohibit designation of CH on DOD lands “subject to” the Sikes Act, another
statute that provides for a land management process on such lands, if a plan “addresses”
special management and protection of the lands. Because completion of a plan is not
expressly required, but is implied by the fact that the Secretary must find that a plan
“addresses” certain things, and the meaning of “addresses” is unclear, arguably this process
would not be equivalent to designation of CH. The section would expressly retain the ESA
duties to consult on agency activities and the prohibitions of the ESA would continue to
apply. Section 1201(a) of S. 2225 also would eliminate designation of CH on DOD lands
if a Sikes Act plan is completed that “addresses” endangered and threatened species and their
habitat. On June 27, 2002, the Senate amended H.R. 4546 to substitute the language of S.
2514 (which did not contain language limiting the designation of CH on Department of
Defense lands) and passed H.R. 4546, as amended. See CRS Report RL31415, The
Endangered Species Act, Migratory Bird Treaty Act, and Department of Defense Readiness
Activities: Current Law and Legislative Proposals.
Under §7 of the ESA, the “reasonable and prudent alternatives” that FWS may suggest
to an agency as part of consultation must be ones that “can be taken” by the agency. A
regulation (50 C.F.R. §402.02) elaborates on this requirement as being measures that are
economically and technologically feasible and “that can be implemented consistent with the
scope of the Federal agency’s legal authority and jurisdiction.” In a case involving water use
by the Army at Fort Huachuca, the final biological opinion of the FWS allegedly required the
Army to take actions beyond its authority (although the court noted that the Army had
voluntarily agreed to do similar things in a memorandum of agreement). However, the court
remanded the final opinion because of other flaws, so the extent to which actions beyond the
authority of the Army to complete may actually be required is not yet known. Although the
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import of the wording is not clear, §705 of H.R. 4775 as passed by the House on May 24,
2002, addresses how water consumption at military installations is to be considered under
the ESA, but similar provisions are not in the measure passed by the Senate on June 7, 2002,
after the Senate substituted the language of S. 2551 as an amendment to H.R. 4775.
Private Property and Takings. Some landowners fear that the presence of an ESA-
listed species or the designation of their land as CH for a listed species will result in
restrictions of current or new activities on their land with subsequent loss of some or all of
their property value. At the other end of the spectrum, there are those, particularly in the
Northeast and Midwest, who value the presence of a rare flower or frog on their land.
Under the Constitution, a person’s property cannot be taken by the government without
“just compensation,” whether the taking occurs under the ESA or any other federal law. In
the past, “taking” has been strictly interpreted by the courts and does not include restrictions
on permitted uses or a decrease in the value of the land, unless the constraints are very severe
and the prohibited uses could not have been barred at the time the property was acquired.
The U.S. Court of Federal Claims ruled in (Tulare Lake Basin Water Storage District, et al.
v. US, 49 Fed. Cl. 313 (2001)) that water could not be taken from certain California irrigators
to benefit endangered fish unless compensation was provided. However, the outcome of this
case rests on facts that may not be present in other instances, so the value of the case as
precedent is not yet clear.
Critics of the ESA would like to see it amended to provide compensation in a broader
range of circumstances than those required under the Constitution. These critics generally
propose that compensation be offered for some specified percentage decrease in the value
of property owners’ assets (including losses related to any loss of use of their land), since
they feel that property owners are otherwise being forced to bear the cost of a public benefit.
Such provisions have been included in several bills introduced in previous Congresses. In
the 107th Congress, H.R. 2389 and H.R. 2827 propose to compensate persons of the Klamath
River Basin who were economically harmed as a result of ESA implementation, while S.
2604 would require the federal government to assume all costs relating to implementation
of and compliance with the ESA.
Opponents of a revised “taking” standard counter that they do not wish to see the ESA
singled out as having a different, more generous standard for compensation than that required
under current interpretation of the Constitution or for any other agency or law. They further
state that the rights of property owners to use their land have never been absolute, and that
regulation in the public interest has long been accepted. The cost to the federal government
from changed thresholds for compensation and the constraints that would likely be placed
on the implementation of the ESA under a more lenient takings standard are among the
contentious issues slowing action on ESA reauthorization. (See also CRS Report 93-346 A,
Endangered Species Act and Private Property Rights: A Legal Primer.) However, both
proponents and opponents of the ESA favor enacting incentives (primarily tax benefits) to
encourage landowner cooperation.
Funding for Land Conservation. In the 106th Congress, several bills would have
appropriated funds for acquiring lands to conserve listed species. These bills ultimately died,
but additional funding for some of these programs was included in annual appropriations for
FY2001 (Title VIII of P.L. 106-291), including the Cooperative Endangered Species
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Conservation Program, which provides grants to states, including support for state land
acquisition. Other federal land acquisition funds contained in Title VIII of P.L. 106-291 may
benefit endangered species by protecting habitat, and this approach has re-surfaced in the
107th Congress (Title VII of H.R. 701/S. 1328). (For more information, see CRS Report
RL30444, Conservation and Reinvestment Act (CARA): A Comparison of Current Versions
of H.R. 701 with Current Law.)
Making the ESA More User-Friendly. Former Interior Secretary Babbitt initiated
actions to decrease ESA conflicts in several ways. New FWS/NMFS joint policies
streamline permit procedures for small landowners, and other initiatives encourage
landowners to increase protection for populations of listed species on their land. Under “safe
harbor” agreements, landowners who increase suitable habitat can return to “baseline
conditions” without penalty. “No surprises” agreements provide landowners with greater
certainty regarding activities that might otherwise have triggered penalties, an incentive for
landowners to reach conservation agreements (i.e., habitat conservation plans or HCPs),
since a landowner properly implementing such an agreement is assured that there will be no
further costs or restrictions on the use of the property to benefit the species covered by the
HCP, except by mutual consent or in extraordinary circumstances in which changes may be
implemented by the government, without costs borne by the landowner. (See the final rule
on Safe Harbor Agreements and Candidate Conservation Agreements (64 FR 32705; June
17, 1999 that modified the “no surprises” policy to require that a condition of a §10
incidental take permit be that if the permitted taking would be inconsistent with the survival
and recovery of the relevant listed species, and the inconsistency is not remedied in a timely
fashion, the incidental take permit may be revoked.) Federal managers focused on listing
species as threatened rather than endangered, to allow FWS to take advantage of the ESA’s
more flexible provisions for protecting threatened species. While administrative changes
have been made within the framework of existing law, there is great interest among some
groups in codifying many of these changes in an amended ESA. Others are critical of the
agreements as difficult to enforce and as locking in the government to long-term positions
that sometimes are based on inadequate knowledge.
Critical Habitat Designation. Under current law, FWS or NMFS must designate
CH at the time a species is listed. Two exceptions are provided: if designation is not
“prudent” (e.g., due to the threat of illegal collecting or killing), or if CH is not
“determinable” due to insufficient data, in which case designation may be postponed as long
as one year after species listing. The Clinton Administration supported restrictions on its
own ability to designate CH under the ESA, as did the new Administration. (See ESA Listing
Caps, New and Old, below.)
FWS, based on its interpretation of a regulation that takes away the value of designating
habitat to the recovery of a listed species, asserts that CH offers little protection for a species
beyond that already available under the listing process and is a poor use of scarce budgetary
resources. According to FWS, CH designation shows its greatest conservation benefit when
it includes areas not currently occupied by the species; these areas may be important as
connecting corridors between populations or as areas where the species may be re-
introduced. FWS designates CH for only about 10% of listed domestic species; yet in every
case brought against FWS for failure to designate CH, the agency has lost, and, in a case
involving FWS’s and NMFS’s failure to designate CH for threatened Gulf sturgeon, the Fifth
Circuit found agency interpretation to be erroneous (Sierra Club v. U.S. Fish and Wildlife
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Service, 245 F. 3d 434 (5th Cir. 2001), and a settlement agreement has resulted in a CH
proposal. FWS had solicited comments on its proposal to “develop policy or guidance and/or
revise regulations, if necessary, to clarify the role of habitat in endangered species
conservation” (64 FR 31871-31874; June 14, 1999), but no proposal has been issued. See
CRS Report RS20263, The Role of Designation of Critical Habitat under the Endangered
Species Act.
CH is frequently misunderstood by the public to be a significant direct restriction on
private landowners’ authority to manage land. While a landowner may experience some
restrictions on land management because of the presence of an ESA-listed species and the
presence of CH may shed light on whether “harm” has occurred, the express duty to avoid
adverse modification of CH is an express obligation only for federal agencies and actions.
Additional Legislative Initiatives
On March 15, 2001, the House Resources Subcommittee on Fisheries Conservation,
Wildlife, and Oceans held a hearing on reauthorizations for the African Elephant
Conservation Act (H.R. 643), the Rhinoceros and Tiger Conservation Act of 1994 (H.R.
645), and the Asian Elephant Conservation Act of 1997 (H.R. 700). The Committee on
Resources reported (amended) H.R. 643 (H.Rept. 107-93) and H.R. 700 (H.Rept. 107-94),
and the House passed both these measures on June 12, 2001. H.R. 645 was reported by the
Committee on Resources on June 25, 2001 (H.Rept. 107-109), and passed by the House later
in the same day. On November 8, 2001, the Senate Committee on Environment and Public
Works ordered that H.R. 700 (amended) reported. On November 30, 2001, the Senate
Committee on Environment and Public Works reported H.R. 643 (S.Rept. 107-104) and H.R.
645 (S.Rept. 107-105). On December 7, 2001, the Senate Committee on Environment and
Public Works reported H.R. 700 (S.Rept. 107-113). On December 18, 2001, the Senate
passed H.R. 700 (amended), H.R. 643, and H.R. 645. On January 8, 2002, the President
signed both H.R. 643 as P.L. 107-111 and H.R. 645 as P.L. 107-112. On January 23, 2002,
the House agreed to the Senate amendments to H.R. 700. On February 12, 2002, the
President signed H.R. 700, Asian Elephant Conservation Reauthorization Act of 2001 as P.L.
107-141.
Other measures propose to increase protection for bears (H.R. 397/S. 1125); exempt
federal agencies from ESA consultation for certain activities (H.R. 472); modify the ESA
regulatory process (H.R. 1402); modify federal land management activities under ESA (H.R.
1403); modify ESA provisions relating to liability for civil and criminal penalties (H.R.
1404); require the Department of Defense to fully comply with the ESA (§3(a) of H.R.
2154); provide compensation (H.R. 2389) or disaster relief (H.R. 2827) to Klamath Basin
residents who were economically harmed by ESA-related actions; transfer ESA authority for
anadromous fish from NMFS to FWS (H.R. 2409); direct the Secretary of the Interior to
approve the HCP developed by the Imperial Irrigation District for the Salton Sea and provide
for construction of habitat enhancement projects (H.R. 2764); expand protective measures
for North Atlantic right whales (H.R. 3095/S. 1380); amend the ESA to authorize federal
agencies to promptly respond to emergencies involving human health and safety (H.R. 3259);
authorize funding for pallid sturgeon investigations in the Missouri River (§2(h)(3) of H.R.
3570); modify the communication and public hearing process related to ESA listing
decisions involving the Administrative Procedures Act (H.R. 3706); authorize designation
of survival habitat for listed species and specify its relation to critical habitat (H.R. 3707);
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modify requirements for scientific data in designating critical habitat (H.R. 3798); specify
requirements for listing the black-tailed prairie dog under the ESA (H.R. 3920); establish
criteria for designating CH in Hawaii (H.R. 4656); modify the ESA listing, recovery
planning, and delisting processes (S. 347); amend the Robert T. Stafford Disaster Relief and
Emergency Assistance Act to expand the definition of “major disaster” to include an
application of the ESA that causes severe economic hardship (S. 1384); amend the list of
animal quarantine laws in §11(h) of the ESA (§18(b)(3) of S. 1482); authorize a water
conservation program for agricultural lands in the Klamath, the Truckee-Carson, and Walker
River Basins to benefit ESA-listed species (§226 of S. 1727); authorize funding for Pacific
salmon restoration (S. 1825); modify federal land management practices to better coordinate
ESA concerns (§202 of S. 2474); and require the federal government to assume all costs for
ESA implementation and compliance (S. 2604). H.R. 3558 would authorize grants to states
and local governments to combat invasive species; this measure was reported (amended) by
the House Committee on Resources on June 18, 2002 (H.Rept. 107-512).
P.L. 107-171 included authorization of a wildlife habitat incentive program to preserve
CH and avoid ESA listings (§2502) and an ESA amendment on animal quarantine laws
(§10418(b)(3)). Attempts to include the Bear Protection Act of 2002 (H.R. 397/S. 1125) in
this measure were stricken in conference
Title VII of H.R. 701/S. 1328 and Title II of S. 990 would provide dedicated funding
to promote the recovery of ESA-listed species by property owners; H.R. 701 was ordered
reported by the House Committee on Resources on July 25, 2001, while S. 990 was reported
(amended) by the Senate Committee on Environment and Public Works on December 13,
2001 (S.Rept. 107-123). The Senate passed S. 990 (amended) on December 20, 2001.
H.R. 1985, H.R. 3208, and S. 976 include language to authorize creation of an
“environmental water account” within the CALFED process to provide water for ESA-listed
fish; H.R. 3028 was reported (amended) by the House Committee on Resources on February
14, 2002 (H.Rept. 107-360, Part I). No action has been taken on the other measures.
On May 9, 2001, the Senate Environment Subcommittee on Fisheries, Wildlife, and
Water held an oversight hearing on the ESA listing and delisting process. On February 16,
2002, the House Committee on Resources held an oversight field hearing at Grand Island,
Nebraska, on the Platte River Cooperative Agreement and critical habitats. On March 6,
2002, the House Committee on Resources held an oversight hearing on the Canada Lynx
Interagency National Survey and endangered species data collection. Two comprehensive
bills, S. 911 and H.R. 4579, propose to reauthorize the ESA. No hearings have been held on
either bill, and no action has been taken.
Appropriations Issues. Appropriations bills play an important role in the ESA
debate. Appropriations provide funds for listing and recovery activities as well as finance
FWS/NMFS consultation necessary for permits, such as Army Corps of Engineers permits,
that are necessary for federal projects. See the table below for recent ESA funding. FY2002
Department of the Interior appropriations (FWS) were substantially increased in P.L. 107-63
(H.R. 2217), signed by President Bush on November 5, 2001. FY2002 Department of
Commerce appropriations (NMFS) were signed by President Bush on November 28, 2001,
as P.L. 107-77 (H.R. 2500). Funding for international endangered species programs were
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considered in the FY2002 foreign operations bill (H.R. 2506), which was signed into law by
the President as P.L. 107-115 on January 10, 2002.
On March 15, 2002, the House Committee on The Budget reported H.Con.Res. 353,
wherein §406(b) expresses the sense of Congress that Pacific Northwest salmon recovery is
a high-priority item for funding in the FY2003 federal budget (H.Rept. 107-376); this
measure was passed by the House on March 20, 2002.
ESA Listing Caps, New and Old. Beginning in FY1998, Congress enacted annual
limits (i.e., “caps”) on funding FWS for its ESA listing function. This language limits FWS
discretion to transfer funds to finance additional listings: if courts mandate agency action on
listing certain species, other listings may not be able to be funded. FWS supported these
limits to assure that funding for other agency programs could not be diverted to finance
additional ESA listing activities. However, courts have held that budget constraints do not
excuse an agency from compliance, in some circumstances.
Endangered Species Program Appropriations
(x $1000)
FY2000
FY2001
FY2001
FY2002
FY2002
FY2003
Enacted
Request
Enacted
Request
Enacted
Request
Candidate
7,388
8,447
7,052
7,220
7,620
8,682
Conservation
Listing
6,208
7,195
6,341
8,476
9,000
9,077
Consultation
32,342
39,400
42,750
41,901
45,501
47,770
Recovery
57,363
55,297
59,835
54,217
63,617
60,215
Subtotal
103,301
110,339
115,978
111,814
125,738
125,744
Landowner
4,981
4,981
4,969
0
40,000
50,000
Incentive
Stewardship
0
0
0
0
10,000
10,000
Grants
Coop. End.
23,000
65,000
104,694*
54,694
96,235
91,000
Species
Conservation
Fund
(CESCF)
Total FWS
131,282
180,320
225,641
166,508
271,973
276,744
Total NMFS
55,470
64,914
102,476
108,314
101,483
110,845
Sources: Annual budget justifications, House and Senate committee reports, and floor debates.
* Of the FY2001 CESCF funds, $77.829 million was provided in Title VIII of P.L. 106-291.
The George W. Bush Administration’s FY2002 budget proposed a new version of this
cap by requesting authority to prioritize listings within the cap, regardless of judicial orders.
The Administration stressed that (a) current court orders alone meant that FWS’s ESA listing
function was likely to run out of funds before the end of the fiscal year, and (b) if FWS were
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to make listing determinations on merely its own estimated backlog, the cost would be
roughly $120 million. The agency’s critics (calling the language an “extinction rider”)
responded that (1) few listings would have taken place in the last several years without the
lawsuits; (2) the FWS’s claims of conscientious attention to the ESA are contradicted by
FWS’s failure to seek adequate funding to address the backlog of ESA listings in light of its
assertion of a $120 million need; (3) the restriction is one-sided since de-listings and down-
listings would have no such cap; and (4) the new authority would be a fundamental change
in the ESA, since FWS could choose which species to protect, rather than protecting all
species meeting the criteria specified under §4(b) of the ESA.
Acting on H.R. 2217 (FY2002 Department of the Interior appropriations), the House
Appropriations Committee rejected the Administration’s proposed language change, retained
the current $8.48 million cap on spending for listing activities, and accepted a “subcap” of
$6 million on the designation of new CH. Therefore, if FWS were ordered to designate even
a few areas of CH, funding for new ESA species listings could be restricted to no more than
$2.48 million. The Senate passed a $9 million cap on listing, but did not include a “subcap”
on CH, nor did it accept the Administration’s proposed change. The conference agreement
(H.Rept. 107-234, October 11, 2001) adopted the $9 million funding level for the listing
program and specified that the $6 million CH designation limitation is exclusive of funds
needed for litigation support. This measure was signed as P.L. 107-63 on November 5, 2001.
The Bush Administration’s FY2003 budget proposes $9.077 million for listing, with a
subcap of $5 million for CH.
LEGISLATION
Related public laws and bills are discussed in the text of this document under
“Background and Analysis.”
P.L. 107-63 (H.R. 2217); P.L. 107-77 (H.R. 2500); P.L. 107-111 (H.R. 643); P.L. 107-
112 (H.R. 645); P.L. 107-115 (H.R. 2506); P.L. 107-141 (H.R. 700); and P.L. 107-171 (H.R.
2646).
H.Con.Res. 353 (Nussle); H.R. 397 (Gallegly); H.R. 472 (Radanovich); H.R. 701
(Young of Alaska); H.R. 1402 (Thomas); H.R. 1403 (Thomas); H.R. 1404 (Thomas); H.R.
1985 (Calvert); H.R. 2154 (Filner); H.R. 2389 (Herger); H.R. 2409 (Otter); H.R. 2764
(Hunter); H.R. 2827 (Walden); H.R. 2829 (Walden); H.R. 3095 (Delahunt); H.R. 3208
(Calvert); H.R. 3259 (McInnis); H.R. 3558 (Rahall); H.R. 3570 (Bereuter); H.R. 3705
(Pombo); H.R. 3706 (Pombo); H.R. 3707 (Pombo); H.R. 3798 (Tancredo); H.R. 3920
(Thune); H.R. 4546 (Stump); H.R. 4579 (George Miller); H.R. 4656 (Mink); H.R. 4775
(Young of Florida); H.R. 4840 (Hansen); S. 347 (Thomas); S. 911 (Smith of Oregon); S. 976
(Feinstein); S. 990 (Smith of New Hampshire); S. 1125 (McConnell); S. 1267 (Crapo); S.
1328 (Landrieu); S. 1380 (Kerry); S. 1384 (Smith of Oregon); S. 1727 (Reid); S. 1731
(Harkin); S. 1825 (Boxer); S. 1912 (Smith of Oregon); S. 2225 (Levin); S. 2474 (Craig); and
S. 2604 (Enzi).
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