Order Code IB10072
CRS Issue Brief for Congress
Received through the CRS Web
Endangered Species: Difficult Choices
Updated June 14, 2004
M. Lynne Corn and Eugene H. Buck
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
Critical Habitat Designation
Use of “Sound Science”
Specific Regional Resource Conflicts
Counterpart Regulations
Defense Department Activities
Private Property and Takings
Making the ESA More User-Friendly
Additional Legislative Initiatives
Appropriations Issues

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Endangered Species: Difficult Choices
SUMMARY
The 108th Congress is considering vari-
The authorization for spending under the
ous proposals to amend the Endangered Spe-
ESA expired on October 1, 1992. The prohi-
cies Act of 1973 (ESA). Major issues in
bitions and requirements of the ESA remain in
recent years have included incorporating
force, even in the absence of an authorization,
further protection for property owners, in-
and funds have been appropriated to imple-
creasing protection of listed species, changing
ment the administrative provisions of the ESA
the role of science in decision-making, reduc-
in each subsequent fiscal year.
ing conflicts with Department of Defense
activities, and changing the role of critical
In the 108th Congress, P.L. 108-108
habitat, among others. The Clinton Adminis-
provided FY2004 Interior appropriations of
tration made significant changes to ESA
$265 million for programs related to endan-
regulations, and many have advocated includ-
gered species. P.L. 108-136 amended the
ing these approaches in the law itself.
ESA to direct that critical habitat not be desig-
nated on military lands under certain condi-
The ESA has been one of the more con-
tions when Integrated Natural Resources
tentious environmental laws. This may stem
Management Plans are in effect, addressed
from its strict substantive provisions, which
how water consumption at Fort Huachuca,
can affect the use of both federal and
AZ, is to be considered under the ESA, and
nonfederal lands. Under the ESA, certain
created a task force to resolve ESA conflicts at
species of plants and animals (both vertebrate
Barry M. Goldwater Range, AZ.
and invertebrate) are listed as either “endan-
gered” or “threatened” according to assess-
P.L. 108-137 prohibited use of FY2004
ments of the risk of their extinction. Once a
or earlier funds to reduce water deliveries
species is listed, powerful legal tools are
under existing contracts for ESA compliance
available to aid the recovery of the species and
for the silvery minnow on the Middle Rio
the protection of its habitat. The ESA may
Grande River unless water is obtained from a
also be controversial because dwindling spe-
willing seller or lessor. The Act also estab-
cies are usually harbingers of resource scarcity
lished an executive committee to oversee the
issues.
ESA Collaborative Program associated with
this situation. P.L. 108-148 authorized haz-
The ESA is administered by the Fish and
ardous fuels reduction projects on BLM and
Wildlife Service (FWS) for terrestrial and
national forest lands including those contain-
freshwater species and some marine mam-
ing listed species habitat; directed that a heal-
mals, and by NOAA Fisheries for the remain-
thy forests reserve program be established to
ing marine and anadromous species. The U.S.
promote the recovery of threatened and endan-
Geological Survey’s Biological Resources
gered species; and directed the Secretary of
Division conducts research on species for
the Interior to provide assurances to landown-
which FWS has management authority;
ers whose enrollment in the healthy forests
NOAA Fisheries conducts research on the
reserve program results in new conservation
species for which it is responsible.
benefits for ESA-listed species.
Congressional Research Service ˜ The Library of Congress

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MOST RECENT DEVELOPMENTS
On February 2, 2004, the Administration requested FY2005 funding for various federal
agencies and programs, including $289 million for Endangered Species Act activities by the
Fish and Wildlife Service.
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,
by Pamela Baldwin, Eugene H. Buck, and M. Lynne Corn.
As of June 4, 2004, a total of 1,074 species of animals and 749 species of plants had
been listed as either endangered or threatened, of which the majority (519 species of animals
and 746 species of plants) occur in the United States and its territories and the remainder
only in other countries. Of the 1,265 U.S. species (up 3 since Dec. 31, 2002), 1,023 are
covered in recovery plans (up 23 since Dec. 31, 2002). (See the Fish and Wildlife Service
(FWS) at [http://endangered.fws.gov/] and the National Marine Fisheries Service (NOAA
Fisheries, formerly NMFS) at [http://www.nmfs.noaa.gov/endangered.htm].)
At times, efforts to protect and recover listed species can be controversial; declining
species tend to function like the proverbial canary in the coal mine, since declining species
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). Major
features of the Act are discussed below.
Prohibitions and Penalties. The ESA contains prohibitions on the “take” of
endangered species; take means to “harass, harm, pursue, hunt, shoot, wound, kill, trap,
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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 CFR 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.) The law also provides civil and
criminal penalties for violations.
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 deciding 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 after
listing. (See CRS Report RL30792, The Endangered Species Act: Consideration of
Economic Factors by Pamela Baldwin, 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. FWS designates CH for only about one-third of listed domestic species. The
appropriate Secretary may 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, based on its
interpretation of a regulation (50 CFR 402.02) that takes away the value of designating
habitat to the recovery of a listed species; yet FWS consistently loses cases brought against
it for failure to designate CH. FWS 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. However, courts have found this interpretation to be unlawful in that it does not
take into account the responsibility to recover listed species (Sierra Club v. United States
Fish and Wildlife Service, 245 F. 3d 434 (5th Cir. 2001), cited with approval in New Mexico
Cattle Growers Ass’n v. FWS, 248 F. 3d 1277 (10th Cir. 2001). Others assert the value of
CH; for example, the Center for Biological Diversity has released a study (available at
[http://www.biologicaldiversity.org/swcbd/programs/policy/ch/Final.htm]) concluding that
CH designation enhances species recovery. See CRS Report RS20263, The Role of
Designation of Critical Habitat under the Endangered Species Act, by Pamela Baldwin.
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. 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
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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 duty to avoid adverse modification of
CH is an express obligation only for federal agencies and actions, or private (nonfederal)
actors in actions with a federal nexus.
Recovery Plans. The appropriate Secretary generally must develop a recovery plan
for the conservation and survival of a listed species. At first, recovery plans tended to cover
popular species like birds or 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) listed 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% match.
Under the 1988 amendments, a fund was authorized to provide for the state grants. While
the authorized size of the fund is determined by a formula, spending from the fund still
requires annual appropriation (16 U.S.C.§1535).
Permits. Proposed actions can be evaluated for possible adverse impacts on listed
species and permits may be issued in two ways. First, under §7 of the ESA, if federal agency
actions or actions of a nonfederal 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, called a biological opinion, that allows the agency to take members of a species
incidental to otherwise lawful activities without triggering the Act’s penalties, 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 under § 10 of the ESA 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; funding for the mitigation; alternatives that were
considered and rejected; and any other measures that the Secretary may require. FWS and
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 a 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
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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) 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 (called
Appendices), 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, 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 the funding authorization
expired in 1992, and bills have been introduced in each subsequent Congress to address
various aspects of endangered species protection. Below are descriptions of some of the
issues most commonly raised in the 108th Congress.
Critical Habitat Designation. With limited exceptions, FWS or NOAA Fisheries
must designate CH at the time a species is listed. There are disagreements over the value and
timing of CH designation. (See Critical Habitat discussion, above.) The Clinton
Administration, through appropriations bills, supported restrictions on its own ability to
designate CH under the ESA, as has the George W. Bush Administration. (See ESA Listing
Caps, New and Old, below.)
In the 108th Congress, various bills (e.g., H.R. 2602 and H.R. 2933) on CH have been
introduced, but to date no hearings have been held. For military lands specifically, P.L. 108-
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136 eliminates new CH designations if the lands have Integrated Natural Resource
Management Plans that “benefit species.” (See CRS Report RL32183, Defense Cleanup and
Environmental Programs: Authorization and Appropriations for FY2004, by David M.
Bearden; and CRS Report RL31415, The Endangered Species Act (ESA), Migratory Bird
Treaty Act (MBTA), and Department of Defense (DOD) Readiness Activities: Background
and Current Law, by Pamela Baldwin.)
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 stated purposes is to provide a means to conserve the ecosystems on which listed
species depend. 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, by Pamela Baldwin, Eugene H. Buck, and M. Lynne
Corn).
In many instances, there may be little information on many species facing extinction,
and only limited personnel or 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 FWS to issue biological opinions even when information was incomplete,
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.”
FWS and 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 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. Agency biologists
are to review and evaluate all information impartially for purposes of listing, consultation,
recovery, and permitting actions, and to ensure that any information used by the Agencies
to implement the ESA is “reliable, credible, and represents the best scientific and commercial
data available.” Agency 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,
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documents developed by Agency 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 are also to formally solicit expert opinions
and peer review to ensure the best biological and commercial information. For 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 may an agency treat one species differently from other
similarly-situated species (Id.), nor 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 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
FWS does not base its listings on speculation or surmise or disregard superior data, the
imperfection of the studies it does rely on does not undermine those studies 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 evidentiary bar FWS
must clear is very low, but it must at least clear it. 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 108th Congress, a number of bills (e.g., S. 369, H.R. 1097, H.R. 1253, H.R.
1662, S. 2009) to amend the ESA and its handling of scientific matters have been introduced,
but to date none has been reported. For more information on this issue, see CRS Report
RS21500, The Endangered Species Act (ESA), ‘Sound Science,’ and the Courts, by Pamela
Baldwin, and CRS Report RL31546, The Endangered Species Act and Science: The Case
of Pacific Salmon, by Eugene H. Buck, et al.
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Specific Regional 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 open space dwindles
and an increasing population puts 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. Controversy erupted in 2001 when the Department of the
Interior’s Bureau of Reclamation (Bureau) announced it would not release water from Upper
Klamath Lake — part of its Klamath irrigation project — to approximately 200,000 acres of
farm and pasture lands within the roughly 235,000-acre project service area. The operational
change was made to make water available for three fish species under ESA protection (two
endangered sucker species, and a threatened coho salmon population). The Klamath Project
straddles the Oregon/California border and has been the site of increasingly complex water
management issues involving several tribes, fishermen, farmers, environmentalists, and
recreationists. Upstream farmers are generally pitted against fishermen, Native American
interests, and other downstream users, and many sides have policy concerns involving
valuable sectors of the local economy. Farmers point to their contractual rights to water
deliveries from the federal Klamath Project and to hardships for their families if water is cut
off; others assert that the salmon fishery 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
determinations of the relevant agencies is simply wrong. Specifically at issue is how to
operate the Bureau’s project facilities to meet irrigation contract obligations without
jeopardizing the three listed fish.
To address this issue, the Bureau issued a 10-year operations plan in February 2002 and
a biological assessment (a process necessary under the ESA) for operating its Klamath
Project. However, subsequent biological opinions found that the Bureau’s 10-year operations
plan would likely jeopardize the continued existence of the listed suckers and coho salmon,
as well as adversely modify proposed critical habitat. Although the biological opinions
issued on May 31, 2002, by the U.S. Fish and Wildlife Service (FWS) and the National
Marine Fisheries Service (now called NOAA Fisheries) both included “reasonable and
prudent alternatives,” the Bureau formally rejected both final biological opinions and opted
to operate under a one-year plan that it asserts complies with the opinions. While met with
enthusiasm from area farmers, the Bureau’s decision was met with much criticism and
concern from environmentalists, fishermen, tribes, and others. On April 10, 2003, the
Bureau issued its Klamath Project 2003 operations plan and noted that planning for multi-
year operations of the project is ongoing; on April 7, 2004, the Bureau issued its 2004
operations plan. In both years, the Bureau states that the current year plan is consistent with
the 2002 biological opinions. The ESA agencies (FWS and NOAA Fisheries) have not
issued a biological opinion on the one-year operations plans and instead are working within
the biological opinions released in May 2002.
Because of the controversy in 2001, the Secretary of the Interior asked the National
Research Council (NRC) to evaluate the federal biological opinions that had been used to
prevent the Bureau from delivering water to farmers in 2001. The NRC released an interim
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report in February 2002, and a final report in October 2003, both of which concluded there
was neither sound scientific basis for maintaining Upper Klamath Lake levels and increased
river flows as recommended in the 2001 biological opinions, nor sufficient basis for
supporting the lower flows in the Bureau’s original operations plan for 2001. Further, the
NRC concluded (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 (as opposed to operation of other
basin projects such as that on the Trinity River) was not the cause of a 2002 lower basin fish
kill and that changes in project operation at the time of the fish kill would not have prevented
it.
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 on Interior Department funding for the Klamath Fishery Management Council
was included in the FY2004 Interior Appropriations bill, passed by the House on July 17,
2003, but was deleted in conference (H.R. 2691, H.Rept. 108-330). It is not clear whether
the Bureau’s recent announcement of a “dry” water year for the 2004 growing season will
spawn further congressional action.
Salmon Restoration. Salmon protection in the Pacific Northwest in general presents
many difficult choices, especially because of recent droughts and the connection between
regional hydropower facilities and fishery management decisions. NOAA Fisheries officials
have listed a total of 26 distinct groups (called evolutionarily significant units or ESUs) of
Pacific salmon and steelhead trout as either threatened or endangered. NOAA Fisheries
officials are working closely with state, local, and tribal officials, as well as the public, to
develop recovery measures addressing habitat restoration and other concerns. A final Federal
Columbia River Power System biological opinion was released on December 21, 2000, that
concluded that four Lower Snake River dams should remain in place for at least eight years,
to allow for a more complete assessment of progress toward recovering endangered salmon,
but this opinion was rejected and remanded to NOAA Fisheries by a federal court in May
2003.
Another case may have widespread significance on salmon listings. In Alsea Valley
Alliance v. Evans (161 F. Supp. 2d 1154 (D. Or. 2001)), Judge Hogan remanded the listing
of the Oregon Coast ESU of coho salmon as a threatened species, finding the 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 (e.g., Alaska). NOAA Fisheries had clarified in a policy statement what was
meant by distinct population segment in the context of certain fish, equating distinct
population segment with an evolutionary significant unit (56 Fed. Reg. 58612 (Nov. 20,
1991)). An ESU is a population that is “substantially reproductively isolated from other
conspecific population units” and represents “an important component in the evolutionary
legacy of the species” (56 Fed. Reg. 58618). However, the NOAA Fisheries policy on
hatchery fish (58 Fed. Reg. 17573 (Apr. 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 in the
characteristics of a hatchery population that are believed to have a genetic basis; or (3) there
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is substantial uncertainty about the relationship between existing hatchery fish and the natural
population (58 Fed. Reg. 17575).
The judge felt NOAA Fisheries erred in the coho salmon policy by including hatchery
fish as within the coho ESU — as though the hatchery fish were genetically identical to
naturally hatched fish in the same water source — but not counting the same hatchery fish
when deciding whether to list the coho ESU. The court concluded that, in this instance, not
considering the 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. The court did not rule
on whether genetically different hatchery fish could be excluded from an ESU altogether.
Although the United States did not appeal this decision, intervening parties appealed,
and the 9th Circuit blocked implementation of the lower court decision until appellate
proceedings are completed, thereby leaving the coho listing in place. The 9th Circuit on
February 24, 2004 (358 F. 3d 1181) dismissed the appeal on procedural grounds, but the stay
apparently remains in place until a final order is issued, at which time it apparently will be
lifted. NOAA Fisheries indicated it would develop a new policy on hatchery fish, but to date
has issued only a draft policy. Numerous petitions to delist other salmon ESUs have been
filed, but no final actions have been taken and NOAA Fisheries has requested an extension
to rule on the petitions in litigation on this issue. Whether courts will approve the current
policy that permits excluding from an ESU hatchery fish from a dissimilar genetic lineage,
or whether a new policy will be promulgated is not yet clear, but either course could have
implications for salmon listings in general.
In the 108th Congress, 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 on the NOAA
Fisheries’ 2000 Biological Opinion for ESA-listed anadromous fish as it affects operation
of the federal Columbia River power system.
Rio Grande Silvery Minnow. Efforts to conserve water necessary for the Rio
Grande silvery minnow from competing New Mexico water users (primarily the city of
Albuquerque and irrigators) have ignited considerable controversy. At issue is the operation
of two BOR water projects on the Middle Rio Grande: the San Juan-Chama Project and the
Middle Rio Grande Project. Conservation groups have asserted that BOR’s operations on
the middle Rio Grande jeopardize the continued existence of the endangered silvery minnow,
in violation of the ESA. BOR, on the other hand, claimed that existing water delivery
contracts precluded the use of already appropriated water for the endangered fish. After
years of litigation, the New Mexico District Court ultimately disagreed with BOR and found
that withholding water from irrigators for ESA-related purposes was permissible under the
water contracts at issue. This decision was later affirmed by the Tenth Circuit in Rio Grande
Silvery Minnow v. Keys, 333 F.3d 1109 (10th Cir. 2003). The circuit court held that BOR had
discretion under the contracts to reduce water deliveries to contractors to comply with
ESA-related purposes. Although the decision affirmed “a narrowly drawn order addressing
carefully limited circumstances” (Rio Grande Silvery Minnow, 333 F.3d at 113-14), some
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may argue that this decision could have far reaching implications and affect other BOR
projects.
The 108th Congress took action soon after the Tenth Circuit’s ruling. 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. In December 2003, Congress passed the
Energy and Water Development Appropriations Act of 2004 (P.L. 108-137). Section 208
of the Act prohibits the use of FY2004 or earlier fiscal year funds to reduce water deliveries
under existing contracts for the purpose of ESA compliance in the Middle Rio Grande except
through a willing sale or lease by a party otherwise entitled to such water. Section 209
establishes 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 requirements in the ESA’s 30-year history.
(Others might cite the override concerning Tellico Dam and the snail darter which preceded
this override by 25 years.) Still, the passage of this legislation does not necessarily affect the
precedential value, if any, of the Tenth Circuit’s decision. To date, legislation affecting
operations in the Middle Rio Grande (S. 997 and H.R.2982) has been introduced, but no
hearings have been held.
Counterpart Regulations. On January 24, 2003 (68 Fed. Reg. 3786), the
Departments of the Interior and Commerce, and the U.S. Environmental Protection Agency
(EPA) issued an advance notice of proposed rulemaking seeking comments on whether and
how to issue counterpart regulations, whereby new procedures would be authorized for the
EPA to integrate their consultation duties under §7 of the ESA with the regulation of
pesticides by that agency. Counterpart regulations are authorized by 50 CFR §402.04, which
states that such regulations have to be proposed and published with a public comment period
of at least 60 days. If finalized, the regulations supersede the usual consultation regulations.
Until recently, no counterpart regulations had been issued, so the validity of §402.04 has not
been tested in the courts.
New counterpart pesticide regulations were proposed on January 30, 2004 (69 Fed. Reg.
4465), under which EPA personnel would be trained to make the determination that a Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA) action was not likely to adversely affect
listed species, without formal or informal consultation or a written concurrence from FWS
or NOAA Fisheries. New §402.46 would establish an alternative formal consultation process
for FIFRA actions whereby the EPA would prepare the effects determination, with or without
input from FWS, and “may” initiate consultation on the action. If consultation is initiated,
there are provisions for interaction regarding information and the development of a final
biological opinion. Proposed §402.47 would provide for successive effects determinations
in complex FIFRA actions.
Counterpart regulations were finalized December 8, 2003 (68 Fed. Reg. 68254), among
the Forest Service, the Bureau of Land Management, the Bureau of Indian Affairs, the
National Park Service, FWS, and NOAA Fisheries, relating to streamlining consultation on
projects supporting the National Fire Plan. A 60-day Notice of Intent to Sue was filed by
various groups to challenge the regulations, and a suit is expected when that time has run.
Defense Department Activities. The events of September 11, 2001, focused
attention not only on the CH issues previously discussed, but also on all statutes that might
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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 must be granted by the high-level committee (“God Squad”) assembled to
consider exemptions. The Act also requires the consideration of the impacts on national
security when critical habitat is designated. See CRS Report RL31415, The Endangered
Species Act (ESA), Migratory Bird Treaty Act (MBTA), and Department of Defense (DOD)
Readiness Activities: Background and Current Law, by Pamela Baldwin.
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 CFR §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 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 would actually have been required is not known. Section 321 of
P.L. 108-136 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. For additional information, see section on ESA in CRS Report
RL32183, Defense Cleanup and Environmental Programs: Authorization and
Appropriations for FY2004, by David M. Bearden.
Private Property and Takings. Some landowners fear that the presence of a listed
species or the designation of their land as CH 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
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, including
the particular language in the water delivery contracts, so the value of the case as precedent
is not yet clear. Liability for a taking was not reconsidered by the appeals court, which dealt
only with compensation (59 Fed. Cl. 246 (2003)).
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 use of their land), since they feel that
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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 (e.g., zoning) 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
RL31796, The Endangered Species Act and Claims of Property Rights ‘Takings’: A
Summary of the Court Decisions, by Robert Meltz.) 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.
Making the ESA More User-Friendly. Former Interior Secretary Babbitt initiated
actions to decrease ESA conflicts in several ways. New FWS and 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 “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 Habitat Conservation Plans (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).
The rule modified the no surprises policy to require revocation of an incidental take permit
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. Federal managers
also 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.
Additional Legislative Initiatives
In the 108th Congress, a number of bills concerning ESA have been introduced besides
those mentioned previously. Among those under active consideration is a bills concerned
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primarily with national energy policy: S. 2095 (§347) would establish a pilot project in
Wyoming, Montana, Colorado, Utah, and New Mexico designed to improve coordination
of federal permits, including ESA §7 permits. In addition, 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.
On December 3, 2003, President Bush signed P.L. 108-148, which authorizes 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)); directs the Secretary of Agriculture to establish
the healthy forests reserve program by the Forest Service to protect, restore, and enhance
degraded forest ecosystems on private lands to promote the recovery of threatened and
endangered species (§§501-503); and directs the Secretary of the Interior to provide safe
harbor and similar assurances 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 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. P.L. 108-108 provides FWS appropriations for FY2004. P.L. 108-199
provided FY2004 funding for the coordination of international endangered species programs
and for NOAA Fisheries.
For FY2005, the Administration requests $289 million for FWS Endangered Species
Act activities. This proposal includes an increase of $5 million for species listing activities.
Major decreases include recovery activities generally, pass-through grants for salmon ($4
million), the California Natural Communities Conservation Plan HCP partners ($2 million),
wolf recovery ($1.5 million), general recovery activities ($1.4 million), Platte River recovery
($1 million), sea otter and walrus research ($0.9 million), and eider (a sea duck) recovery
($0.9 million). NOAA Fisheries does not yet have figures available for endangered species
programs for FY2004 or FY2005, since these funds are commingled with funds to protect
marine mammals in its program for protected species.
Table 1. Funding for Endangered Species Programs,
FY2003-FY2005
($ in thousands)
FY2003
FY2004
FY2005
Approp.
Approp.
Request
Endangered Species Program
Candidate Conservation
9,867
9,808
8,610
Listing
9,018
12,135
17,226
Consultation
47,459
47,146
45,450
Recovery
65,412
67,907
58,154
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FY2003
FY2004
FY2005
Approp.
Approp.
Request
Endangered Species Program
Subtotal
131,756
136,996
129,440
Related Programs
Landowner Incentive Programa
-260
29,630
50,000
Stewardship Grantsb
-65
7,408
10,000
Cooperative Endangered Species
80,473
81,596
90,000
Conservation Fundc
Multinational Species Conservation
4,768
5,531
9,500
Fundd
Neotropical Migratory Bird Fundd
2,981
3,951
—
Total FWS
219,653
265,112
288,940
NOAA Fisheries
188,316
179,819
216,088
TOTAL
407,969
444,931
505,028
Sources: Annual budget justifications, House and Senate committee and conference reports.
a. $40 million in FY2002 unobligated appropriations was rescinded, resulting in a net reduction for FY2003.
b. $10 million in FY2002 unobligated appropriations was rescinded, resulting in a net reduction for FY2003.
c. In FY2004, $50 million of this fund was derived from LWCF; the President’s FY2005 budget request calls
for entire amount to be derived from LWCF.
d. From FY2002-FY2005, the President’s budget has proposed subsuming the Neotropical Migratory Bird
Fund withing the Multinational Species Conservation Fund, but to date Congress has rejected this proposal.
ESA Listing Caps, New and Old. Beginning in FY1998, Congress enacted annual
limits (caps) on funding FWS for its ESA listing function. This language limits FWS
discretion to transfer funds to finance additional listings, so that 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. These limits have been
approved by Congress in succeeding fiscal year appropriations bills. The FY2005 request
proposes limiting listing to $17.2 million, of which no more than $13.7 million would be
used for most activities related to critical habitat designation.
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