Order Code IB10072
CRS Issue Brief for Congress
Received through the CRS Web
Endangered Species: Difficult Choices
Updated December 9, 2003
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 108th Congress
Resource Conflicts
Use of “Sound Science”
Defense Department Activities
Private Property and Takings
Funding for Land Conservation
Making the ESA More User-Friendly
Consultation with the EPA on Pesticides
Critical Habitat Designation
Additional Legislative Initiatives
Appropriations Issues
LEGISLATION

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Endangered Species: Difficult Choices
SUMMARY
The 108th Congress is considering vari-
The authorization for spending under the
ous measures proposing to amend the Endan-
ESA expired on October 1, 1992. The prohi-
gered Species Act of 1973 (ESA).
Major
bitions and requirements of the ESA remain in
issues in recent years have focused on whether
force, even in the absence of an authorization,
to incorporate further protection for property
and funds have been appropriated to imple-
owners and reduce regulatory impacts, whe-
ment the administrative provisions of the ESA
ther to increase the protection afforded listed
in each subsequent fiscal year.
species, or whether to modify various aspects
of the ESA, such as the role of science in
In the 108th Congress, P.L. 108-108
decision-making. The Clinton Administration
provided FY2004 Interior appropriations of
made significant changes to ESA regulations,
about $265 million for endangered species.
and many have advocated including these
P.L. 108-136 amended the ESA to provide
changes in the law itself. The 108th Congress
that critical habitat will not be designated
has been focusing specific attention on the
under certain conditions where Integrated
role of science in ESA decision-making and
Natural Resources Management Plans are in
on whether the ESA should be modified in the
effect, addressed how water consumption at
context of Department of Defense activities.
Fort Huachuca, AZ, is to be considered under
the ESA, and created a task force to resolve
The ESA has been one of the more con-
ESA conflicts at Barry M. Goldwater Range,
tentious environmental laws. This may stem
AZ. P.L. 108-137 prohibited the use of FY-
from the strict substantive provisions of this
2004 or earlier funds to reduce water deliver-
law, which can affect the use of both federal
ies under existing contracts for ESA compli-
and non-federal lands. Under the ESA, certain
ance for the silvery minnow on the Middle
species of plants and animals (both vertebrate
Rio Grande River unless water is obtained
and invertebrate) are listed as either “endan-
from a willing seller or lessor and established
gered” or “threatened” according to assess-
an executive committee to oversee the ESA
ments of the risk of their extinction. Once a
Collaborative Program associated with this
species is listed, powerful legal tools are
situation. P.L. 108-148 authorized the Secre-
available to aid the recovery of the species and
tary of Agriculture (national forest lands) and
the protection of its habitat.
the Secretary of the Interior (BLM lands) to
conduct hazardous fuels reduction projects on
The ESA is administered by the Fish and
lands that contain threatened and endangered
Wildlife Service (FWS) for terrestrial and
species habitat; directed the Secretary of
freshwater species and some marine mam-
Agriculture to establish a healthy forests
mals, and by the National Marine Fisheries
reserve program to promote the recovery of
Service (NMFS, now NOAA Fisheries) for
threatened and endangered species; and di-
marine and anadromous species. The U.S.
rected the Secretary of the Interior to provide
Geological Survey’s Biological Resources
safe harbor under the ESA to landowners who
Division conducts research on species for
enroll in the healthy forests reserve program
which the FWS has management authority.
when such enrollment will result in new
conservation benefits for ESA-listed species.
Congressional Research Service
˜ The Library of Congress

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MOST RECENT DEVELOPMENTS
On December 3, 2003, President Bush signed P.L. 108-148, wherein provisions
authorize the Secretary of Agriculture (National Forest System lands) and the Secretary of
the Interior (BLM lands) to conduct hazardous fuels reduction projects on lands that contain
threatened and endangered species habitat (§102(a)(5)); direct the Secretary of Agriculture
to establish the healthy forests reserve program within the Forest Service for the purpose of
protecting, restoring, and enhancing degraded forest ecosystems to promote the recovery of
threatened and endangered species (§§501-503); and direct the Secretary of the Interior to
provide safe harbor under the ESA to landowners who enroll in the healthy forests reserve
program when such enrollment will result in new conservation benefits for ESA-listed
species (§506). On December 1, 2003, President Bush signed P.L. 108-137, wherein §208
prohibited the use of FY2004 or earlier fiscal year funds to reduce water deliveries under
existing contracts for the purpose of ESA compliance for the silvery minnow on the Middle
Rio Grande River unless such water is obtained from a willing seller or lessor and §209
established an executive committee to oversee the ESA Collaborative Program associated
with this complex situation. On November 24, 2003, President Bush signed P.L. 108-136,
wherein §318 amended the ESA to provide that critical habitat will not be designated under
certain conditions where Integrated Natural Resources Management Plans are in effect; §321
addressed how water consumption at Fort Huachuca, AZ, is to be considered under the ESA;
and §322 created a task force to resolve ESA conflicts at Barry M. Goldwater Range, AZ.
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 species at risk of extinction 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
species listed as threatened. Distinct population segments of vertebrate species may also be
listed as threatened or endangered, and consequently some populations of chinook, coho,
chum, and sockeye salmon in Washington, Oregon, Idaho, and California are protected under
the ESA, even as 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. 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 led to conflict. For more background
information on the ESA, see CRS Report RL31654, The Endangered Species Act: A Primer.
As of December 31, 2002, a total of 1,072 species of animals and 748 species of plants
had been listed as either endangered or threatened, of which the majority (517 species of
animals and 745 species of plants) occur in the United States and its territories and the
remainder only in other countries. Of the 1,262 U.S. species, 1,000 are covered in recovery
plans. (See the U.S. Fish and Wildlife Service (FWS) at [http://endangered.fws.gov/] and
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the National Marine Fisheries Service (NMFS, which recently changed its name to NOAA
Fisheries) 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 snail darters);
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.
Prohibitions and Penalties. The ESA 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 an individual, group, or state agency. 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
ESA, 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 how the ESA allows
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 FWS prefers to allocate scarce
resources to the listing of new species. In addition, a court has found an FWS regulation to
be an unlawful interpretation of the ESA in that it does not take into account the recovery
plans of listed species (Sierra Club v. United States Fish and Wildlife Service, 245 F. 3d 434
(5th Cir. 2001)). While any area, whether or not federally owned, may be designated as CH,
private land primarily is affected by CH designation if some federal action (e.g., license,
loan, permit, etc.) is also involved, such that “consultation” between federal agencies is
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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 its regulations provide little detail on the
requirements for recovery plans; 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
authorized 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, under §7 of the ESA, 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 these harms.
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), under
§10 of the ESA, 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 habitat
conservation plan (HCP) 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/NOAA Fisheries 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
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date, this process has been little used and only one exemption (Grayrocks Dam, WY) has
been granted and carried out.
The Committee is required to accept the President’s
determination (under specified circumstances) on an exemption in declared disaster areas,
but the ESA does not address other emergency actions or situations. The Committee must
also 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.
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), signed by the United States on March 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. (For more information on CITES, see [http://www.cites.org/].) 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. The 13th regular meeting of CITES
parties will be held October 3-14, 2004, in Bangkok, Thailand. On August 18, 2003, the
FWS published a draft policy for enhancement-of-survival permits for foreign species listed
under the ESA (68 Fed. Reg. 49512).
Issues in the 108th Congress
ESA reauthorization has been on the legislative agenda since authorization expired in
1992, and bills have been introduced in each Congress to address various 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. The situations
described below have been the subject of Congressional oversight and legislative interest.
Klamath River Basin.
In the Klamath River Basin, which straddles the
Oregon/California border, the Bureau of Reclamation consulted with the FWS and
NMFS/NOAA Fisheries 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
protect two species of endangered suckers in Upper Klamath Lake, the project’s primary
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reservoir, and to protect threatened coho salmon in the Klamath River. (Whether there is
enough water even to meet both of these 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
had been upheld in Klamath Water Users Protective Association v. Patterson, 204 F.3d 1206
(9th Cir, 1999). 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. Because of the drought conditions, implementation of this operating plan
meant that water could not be delivered to many irrigation-dependent Oregon farmers. 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)).
In February 2002, the National Research Council (NRC) released an Interim Report
evaluating two federal biological opinions on endangered and threatened fishes in the
Klamath River Basin that had prevented the Bureau from delivering water to many farmers.
In this report, the NRC concluded there was neither 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/NOAA Fisheries
biological opinions on its 10-year operating plan and stated that it would comply for the
immediate future but also requested new consultation.
In March 2002, the House Resources Committee held an oversight hearing on the
NRC’s Interim Report. The Klamath River experienced an unusually large salmon return in
2002, but many fish died in the lower River from disease. Many assert that low water flows
caused the die-off; the Bureau is studying the situation. Despite increased rains and water
availability, the same set of issues and interests continue to be present. In the 107th Congress,
P.L. 107-349 (the Klamath Basin Emergency Operation and Maintenance Refund Act)
authorized the Secretary of the Interior to reimburse project operation and maintenance
expenses for 2001. In the Klamath area, upstream farmers are 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 assert that the salmon industry
is 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.
In the 108th Congress, H.R. 1760 would establish water conservation and habitat
restoration programs in the Klamath River Basin and provide emergency disaster assistance
to those who suffered economic harm from the Klamath River Basin fish kill of 2002. A
prohibition of Interior Department funding for the Klamath Fishery Management Council
was included in §137 of the FY2004 Interior and Related Appropriations bill, H.R. 2691,
passed by the House on July 17, 2003; no similar provision was included in the Senate-
passed H.R. 2691, and this provision was deleted in conference (H.Rept. 108-330). The
House provision had sparked considerable controversy among interested parties, related to
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the ongoing conflict in the Klamath River Basin over water allocations for farmers in the
Klamath River Project area in the Upper Basin and water needed to avoid harm to three
federally listed fish species. The Bureau of Reclamation (Department of the Interior)
currently operates the Klamath Project under a one-year operations plan announced in April
2003 while it continues to work on completing a 10-year operations plan. The FWS and
NOAA Fisheries completed consultation on a 2002 10-year plan on May 31, 2002; however,
the Bureau rejected the FWS and NMFS/NOAA Fisheries biological opinions on its 10-year
operating plan and stated that it would comply for the immediate future but also requested
new consultation. On October 21, 2003, the NRC released its final report, concluding (1)
that recovery of endangered suckers and threatened coho salmon in the Klamath Basin might
best be achieved by broadly addressing land and water management concerns and (2) that the
operation of the Klamath Project was not the cause of the 2002 fish kill and that changes in
project operation at the time of the mortality event would not have prevented it. (For
additional information, see CRS Report RL31098, Klamath River Basin Issues: An Overview
of Water Use Conflicts.)
Salmon Restoration. Similarly, salmon protection in the Pacific Northwest presents
many difficult choices, especially now that regional hydropower facilities are recognized as
playing an increasingly important role in fishery management decisions and drought
conditions have become more severe. NMFS/NOAA Fisheries officials have listed a total
of 26 distinct groups (called “evolutionarily significant units”) of Pacific salmon and
steelhead trout as either threatened or endangered. NMFS/NOAA Fisheries 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/NOAA Fisheries decided, in response to an Army Corps of Engineers review,
to delay any recommendation to Congress concerning whether to breach the four Lower
Snake River hydroelectric dams to benefit salmon recovery. NMFS/NOAA Fisheries
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 eight 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.
(A copy of this biological 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 wolves to be listed in an area (the
lower 48 states) even if a viable population exists elsewhere (Alaska). NMFS/NOAA
Fisheries had clarified in a policy statement what was meant by distinct population segment
in the context of certain fish. NMFS/NOAA Fisheries 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/NOAA Fisheries 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: 1) the hatchery population is of a different genetic
lineage than natural populations; 2) artificial propagation has produced appreciable changes
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in the characteristics of a hatchery population that are believed to have a genetic basis; or 3)
there is substantial uncertainty about the relationship between existing hatchery fish and the
natural population (58 Fed. Reg. 17,575).
The mistake the judge felt NMFS/NOAA Fisheries made with respect to coho salmon
was to include hatchery fish in the coho ESU (in this instance, the hatchery fish were
genetically identical to naturally hatched fish in the same water source), but not to count the
same hatchery fish when deciding whether to list the coho ESU. 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/NOAA Fisheries 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.
In the 108th Congress, H.R. 1097 proposes to direct the Secretary of Commerce to
modify scientific analysis of federal efforts to restore Columbia River Basin salmon and
steelhead listed under the ESA. Section 103 of S. 1555/H.R. 3327 would designate “salmon
restoration areas” in northern California. H.R. 1945 would authorize the Secretary of
Commerce to provide financial assistance to states for salmon habitat restoration projects in
coastal waters and upland drainages; this bill was reported (amended) by the House
Committee on Resources on September 16, 2003 (H.Rept. 108-272). On June 24, 2003, the
Senate Environment and Public Works Subcommittee on Fisheries, Wildlife, and Water held
a hearing to examine implementation of NOAA Fisheries’ 2000 Biological Opinion for ESA-
listed anadromous fish as it pertains to operation of the Federal Columbia River Power
System.
Rio Grande Silvery Minnow. Efforts to protect the Rio Grande silvery minnow
under the ESA from competing New Mexico water users (primarily the city of Albuquerque
and irrigators) have ignited considerable controversy. After several federal court decisions
clarified that withholding water from irrigators for ESA-related purposes was permissible
under some existing water contracts, provisions were included in both the House and Senate
FY2004 energy and water development appropriations bills that would have affected this
understanding. P.L. 108-137 addressed some of these concerns, wherein §208 prohibited the
use of FY2004 or earlier fiscal year funds to reduce water deliveries under existing contracts
for the purpose of ESA compliance unless such water is obtained from a willing seller or
lessor and §209 established an executive committee to oversee the ESA Collaborative
Program associated with this complex situation. The language in P.L. 108-137 was cited by
some as being the first successful legislative override of federal ESA requirements in the
act’s 30-year history.
S. 997 would authorize the Secretary of the Army to conduct
restoration of the Middle Rio Grande bosque. H.R. 2982 would establish a water supply
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stabilization program in cooperation with the ESA Collaborative Program. On September
6, 2003, the House Committee on Resources held a field oversight hearing in Belen, NM, on
the silvery minnow’s impact on New Mexico.
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 ESA — and one
of its purposes is to protect the ecosystems of which species listed as endangered are a part.
The ESA, as amended, 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 the latter part of this phrase in the law itself or in FWS regulations, but there is
some legislative history on the phrase (see CRS Report RL31654, The Endangered Species
Act: A Primer).
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 import. What should be done in such instances?
The ESA does not elaborate on this question, but it could be argued that, combining the
protective purpose of the ESA — 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 pp. 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.Rept. 96-697, p. 12 (1979),
which stated that 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/NOAA Fisheries 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/NOAA
Fisheries are to receive and use information from a wide variety of sources, including from
individuals. Information may range from the informal — oral, traditional, 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 ESA 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 ....”
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Another joint policy notes that in addition to the public comments received on proposed
listing rules and draft recovery plans, the Services are to also formally solicit expert opinions
and peer review to ensure the best biological and commercial information. With respect to
listing decisions, the agencies are to 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,
reflecting 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, 679-
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 listed 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 under §10(a), 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 for harm is not sufficient (Arizona Cattle Growers Association v. United
States Fish and Wildlife Service, 273 F. 3d 1229 (9th Cir. 2001)).
In the 107th Congress, the House Committee on Resources held several hearings and
reported one bill (H.R. 4840). In the 108th Congress, S. 369 would modify the scientific
criteria used in the listing process and for identifying recovery and delisting goals. H.R.
1097 proposes to direct the Secretary of Commerce to modify scientific analysis of federal
efforts to restore Columbia River Basin salmon and steelhead listed under the ESA. H.R.
1253 proposes to amend the ESA to establish special requirements for determining whether
the Preble’s meadow jumping mouse is an endangered or threatened species. H.R. 1662
would amend the ESA to direct the Secretary of the Interior to give greater weight to
scientific or commercial data that are empirical or have been field-tested or peer-reviewed.
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For more information on this issue, see CRS Report RS21264, The Endangered Species Act
(ESA), ‘Sound Science,’ and the Courts, and CRS Report RL31546, The Endangered Species
Act and Science: The Case of Pacific Salmon.
Defense Department 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 automatic 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 (“God Squad”) assembled to consider exemptions. This
issue was debated in the 107th Congress during consideration of P.L. 107-314 (H.R. 4546);
a conference committee deleted House language to limit CH designation on Department of
Defense lands if a Sikes Act natural resource management plan was completed that
“addresses” endangered and threatened species and their habitat. 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 required the Army
to take actions allegedly 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. This issue was
debated in the 107th Congress during consideration of P.L. 107-206 (H.R. 4775); House
language addressing water consumption at military installations in relation to the ESA was
eliminated in conference.
The 108th Congress, after numerous hearings, enacted P.L. 108-136, wherein §318
amended the ESA to provide that critical habitat would not be designated under certain
conditions where Integrated Natural Resources Management Plans under the Sikes Act are
in effect; §321 addressed how water consumption at Fort Huachuca, Arizona, is to be
considered under the ESA; and §322 created a task force to resolve ESA conflicts at Barry
M. Goldwater Range, AZ.
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 on 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 has not included restrictions
on permitted uses or a decrease in the value of the land, unless the constraints are very severe
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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. United States, 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;
proponents usually include Fifth Amendment takings under the Clean Water Act (§404), but
not takings pursuant to other national interests (e.g., homeland security, highway
construction).
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, as through zoning, for example. 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 RS20929, The Endangered Species Act and Claims of Property Rights
‘Takings’: Case Law Summary.) However, both proponents and opponents of the ESA favor
enacting incentives (primarily tax benefits) to encourage landowner cooperation. In the 108th
Congress, §204 of H.R. 7 proposes to exclude landowner incentive payments under ESA §6
from gross income for tax purposes; H.R. 7 was reported (amended) by the House
Committee on Ways and Means on September 16, 2003 (H.Rept. 108-270, Part I), and
passed by the House on September 17, 2003.
Funding for Land Conservation. In the 106th Congress, several bills would have
permanently 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 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
re-surfaced in the 107th Congress but was not enacted. (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 and NMFS/NOAA Fisheries
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
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“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 develop 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 Fed. Reg. 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 inflexible long-term positions that sometimes
are based on inadequate knowledge.
In the 108th Congress, on June 25, 2003, the Senate Environment and Public Works
Subcommittee on Fisheries, Wildlife, and Water held a hearing on the ESA §7 consultation
process.
Consultation with the EPA on Pesticides. On January 24, 2003 (68 Fed. Reg.
3786), the Department of the Interior, Department of Commerce, and the Environmental
Protection Agency (EPA) issued an advance notice of proposed rulemaking seeking
comments on whether and how to possibly issue “counterpart regulations,” whereby new
procedures would be authorized for the EPA to integrate their consultation duties with the
regulation of pesticides by that agency. Counterpart regulations are authorized by 50 C.F.R.
§ 402.04, which states that such regulations would have to be proposed and published with
a public comment period of at least 60 days. If finalized, the regulations would supersede
the usual consultation regulations. No counterpart regulations have ever been issued and
hence have never been challenged. The Notice also asked for comments on several issues,
such as what roles the states, tribes, and other potential non-federal representatives might
play in new consultation procedures, including, for example, whether pesticide companies
could or should be designated to prepare biological evaluations on the effects of their
products. Comments on the questions posed were due on or before March 10, 2003.
Counterpart regulations were proposed by the Forest Service on June 5, 2003 (68 Fed. Reg.
33806; comments were due by August 4, 2003), relating to streamlining consultation on
projects supporting the National Fire Plan. Other counterpart regulations reportedly are
being developed with the Bureau of Land Management, the Bureau of Indian Affairs, and the
National Park Service regarding fire-related projects and possibly other, more general,
activities.
Critical Habitat Designation. Under current law, FWS or NMFS/NOAA Fisheries
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, through appropriations
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bills, supported restrictions on its own ability to designate CH under the ESA, as did the
George W. Bush Administration. (See ESA Listing Caps, New and Old, below.)
FWS, based on its interpretation of a regulation (50 C.F.R. 402.02) 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 to any listed species 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 about one-third 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/NOAA Fisheries’ failure to designate CH for
threatened Gulf sturgeon, the Fifth Circuit found agency interpretation to be erroneous
(Sierra Club v. United States Fish and Wildlife Service, 245 F. 3d 434 (5th Cir. 2001)), and
a settlement agreement 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 Fed. Reg. 31871-31874; June 14,
1999), but no proposal has been issued. On October 6, 2003, the Center for Biological
Diversity released a study, available at [http://www.biologicaldiversity.org/swcbd/programs/
policy/ch/Final.htm], concluding that CH designation enhances endangered species recovery.
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 (through
the ESA’s prohibitions on “taking” a 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.
In the 108th Congress, H.R. 2602 would amend the Endangered Species Act of 1973 to
make the authority of the Secretary to designate CH discretionary instead of mandatory. H.R.
2933 would modify the definition of CH and the authority of the Secretary to designate it.
Additional Legislative Initiatives
In the 108th Congress, S. 128 and H.R. 1647 have been introduced to authorize activities
to assist the international conservation of cranes. H.R. 1194 would amend the ESA to enable
federal agencies responsible for the preservation of threatened and endangered species to
rescue and relocate individuals of ESA-listed species that would be taken in the course of
certain reconstruction, maintenance, or repair of federal or non-federal manmade flood
control levees. H.R. 1183 would amend the Coastal Zone Management Act of 1972 to
require that consideration be given to concerns for access restrictions affecting ESA-listed
threatened and endangered species when constructing and operating marine renewable energy
projects. H.R. 1965 would amend the ESA to provide incentives for private landowners to
encourage voluntary habitat maintenance. Section 122 of S. 14 would establish a pilot
project in Wyoming, Montana, Colorado, and New Mexico to improve coordination of
federal permits, including ESA §7 permits. S. 1178 would amend the ESA to require the
federal government to assume all costs relating to implementation of and compliance with
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the ESA. S. 1210/H.R. 3378 would assist in the conservation of marine turtles and their
nesting habitat in foreign countries. S. 1210 was reported on October 17, 2003, by the Senate
Committee on Environment and Public Works (S.Rept. 108-167); and passed by the Senate
on October 31, 2003. Section 3(h)(3) of H.R. 3373 would authorize $1.5 million for
Missouri River endangered fish, including pallid sturgeon. S.Con.Res. 55/H.Con.Res. 216
would express the sense of the Congress regarding the policy of the United States at the 55th
Annual Meeting of the International Whaling Commission. S. 1861 would establish a
framework for legislative and executive consideration of unilateral economic sanctions under
multilateral agreements, such as CITES, to coordinate U.S. policy. H.R. 3545 directs the
Interior Secretary to implement recovery and research programs focused on the southern sea
otter. H.Res. 480 would commemorate the 30th anniversary of ESA enactment.
On December 3, 2003, President Bush signed P.L. 108-148, wherein provisions
authorize the Secretary of Agriculture (National Forest System lands) and the Secretary of
the Interior (BLM lands) to conduct hazardous fuels reduction projects on lands that contain
threatened and endangered species habitat (§102(a)(5)); direct the Secretary of Agriculture
to establish the healthy forests reserve program within the Forest Service for the purpose of
protecting, restoring, and enhancing degraded forest ecosystems to promote the recovery of
threatened and endangered species (§§501-503); and direct the Secretary of the Interior to
provide safe harbor under the ESA to landowners who enroll in the healthy forests reserve
program when such enrollment will result in new conservation benefits for ESA-listed
species (§506).
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 and NMFS/NOAA Fisheries consultations necessary for permits, such as those with
the Army Corps of Engineers on permits that are necessary for federal projects. See Table
1 for recent ESA funding. Actions on FY2003 Department of the Interior appropriations
(FWS), FY2003 NMFS/NOAA Fisheries appropriations, and international endangered
species coordination in the foreign operations FY2003 appropriations bill were completed
by the 108th Congress in P.L. 108-7. P.L. 108-108 provides Department of the Interior
(FWS) appropriations for FY2004. H.R. 2800 and S. 1426 would fund the coordination of
international endangered species programs; this funding was subsequently included in H.R.
2673, the consolidated appropriations bill.
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Table 1. Endangered Species Program Appropriations
(in thousands of dollars)
FY2002
FY2003
FY2003
FY2004
FY2004
Enacted
Request
Enacted
Request
Enacted
Candidate Conservation
7,620
8,682
9,932
8,670
10,080
Listing
9,000
9,077
9,077
12,286
12,286
Consultation
45,501
47,770
47,770
45,734
47,734
Recovery
63,617
60,215
65,840
62,029
68,754
Subtotal
125,738
125,744
132,619
128,719
138,854
Landowner Incentive
40,000
50,000
40,000a
40,000
30,000
Stewardship Grants
10,000
10,000
10,000b
10,000
7,500
Coop. End. Species
96,235
91,000
81,000
86,614
82,614
Conservation Fund
Multinational Species
4,000
5,000
4,800
7,000
5,600
Conservation Fund
Total FWS
275,973
281,744
268,419
272,333
264,568
Total NMFS/ NOAA
211,483
200,845
188,316
210,132
NA
Fisheries
Sources: Annual budget justifications, House and Senate committee reports, and floor debates.
a. $40 million in previous years’ unobligated appropriations was rescinded.
b. $10 million in previous years’ unobligated appropriations was rescinded.
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.
Acting on H.R. 2217 (FY2002 Department of the Interior appropriations), the House
Appropriations Committee provided a $8.48 million cap on spending for listing activities,
and accepted a “subcap” of $6 million on the designation of new CH.
Under these
conditions, 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. 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 does not include funds
needed for litigation support. This measure was signed as P.L. 107-63 on November 5, 2001.
The Bush Administration’s FY2003 budget proposed $9.077 million for listing, with
a subcap of $5 million for CH; P.L. 108-7 provided $9.077 million for listing, with a subcap
of $6 million for CH. The Bush Administration’s FY2004 budget proposed $12.286 million
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for listing, with a subcap of $5 million for CH; P.L. 108-108 provided $12.286 million for
listing, with a subcap of $8.9 million for CH for FY2004.
LEGISLATION
P.L. 108-7 (H.J.Res. 2) and P.L. 108-108 (H.R. 2691); P.L. 108-136 (H.R. 1588); P.L.
108-137 (H.R. 2754); and P.L. 108-148 (H.R. 1904).
H.Con.Res. 216 (Delahunt); H.Res. 480 (Dingell); H.R. 7 (Blunt); H.R. 1097
(McDermott); H.R. 1183 (Delahunt); H.R. 1194 (Herger); H.R. 1235 (Gallegly); H.R. 1253
(Tancredo); H.R. 1647 (Baldwin); H.R. 1662 (Walden); H.R. 1760 (Thompson of California);
H.R. 1835 (Gallegly); H.R. 1945 (Thompson of California); H.R. 1965 (Gibbons); H.R. 2602
(Otter); H.R. 2673 (Bonilla); H.R. 2933 (Cardoza); H.R. 2982 (Udall); H.R. 3327 (Thompson
of California); H.R. 3373 (Bereuter); H.R. 3378 (Gilchrest); H.R. 3545 (Farr); S.Con.Res. 55
(Snowe); S. 14 (Domenici); S. 128 (Feingold); S. 369 (Thomas); S. 747 (Warner); S. 927
(Warner); S. 997 (Domenici); S. 1047 (Warner); S. 1050 (Warner); S. 1178 (Enzi); S. 1210
(Jeffords); S. 1391 (Burns); S. 1424 (Domenici); S. 1449 (Crapo); S. 1453 (Leahy); S. 1555
(Boxer); and S. 1861 (Lugar).
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