Order Code IB10072
CRS Issue Brief for Congress
Received through the CRS Web
Endangered Species: Difficult Choices
Updated August 26, 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

CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
Overview
Recovered Species
Prohibitions and Penalties
Listing
Critical Habitat
Recovery Plans
Land Acquisition and Cooperation
Permits and Consultation
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: Pesticides and Fire Management Projects
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-
ment the administrative provisions of the ESA
ous proposals to amend the Endangered Spe-
in each subsequent fiscal year.
cies Act of 1973 (ESA). Major issues in
recent years have included changing the role
In the 108th Congress, two bills (H.R.
of science in decision-making, changing the
1662 and H.R. 2933) have been reported that
role of critical habitat, reducing conflicts with
would, respectively, address issues concerning
Department of Defense activities, incorporat-
scientific peer review and critical habitat.
ing further protection for property owners, and
These bills may be brought to the House floor
increasing protection of listed species, among
in September. Earlier, P.L. 108-108 (Interior
others. In addition, many have advocated
appropriations) provided $265 million for
including significant changes to ESA regula-
FY2004 for programs related to endangered
tions made during the Clinton Administration
species. P.L. 108-136 (Defense authorization)
in the law itself.
included an ESA amendment to direct that
critical habitat not be designated on military
The ESA has been one of the more con-
lands under certain conditions when Integrated
tentious environmental laws. This may stem
Natural Resources Management Plans are in
from its strict substantive provisions, which
effect.
can affect the use of both federal and non-
federal lands and resources. Under the ESA,
P.L. 108-137 (Energy and Water appro-
certain species of plants and animals (both
priations) prohibited use of FY2004 or earlier
vertebrate and invertebrate) are listed as “en-
funds to reduce water deliveries under existing
dangered” or “threatened” according to assess-
contracts for ESA compliance for the silvery
ments of their risk of extinction. Once a
minnow on the Middle Rio Grande River
species is listed, powerful legal tools are
unless water is obtained from a willing seller
available to aid its recovery and protect its
or lessor. The act also established an execu-
habitat. The ESA may also be controversial
tive committee to oversee the Collaborative
because dwindling species are usually harbin-
Program associated with this situation. P.L.
gers of resource scarcity: the most common
108-148 (Healthy Forests Act) authorized
cause of listing species is habitat loss. Recent
hazardous fuels reduction projects on BLM
efforts in the House would modify ESA provi-
and national forest lands including those
sions that designate critical habitat, and that
containing listed species habitat; directed
provide for scientific peer review.
establishment of a healthy forests reserve
program to promote recovery of listed species;
The authorization for spending under the
and directed the Secretary of the Interior to
ESA expired on October 1, 1992. The prohi-
provide assurances to landowners whose
bitions and requirements of the ESA remain in
enrollment in the healthy forests reserve
force, even in the absence of an authorization,
program results in new conservation benefits
and funds have been appropriated to imple-
for ESA-listed species.

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MOST RECENT DEVELOPMENTS
On July 21, 2004, the House Resources Committee ordered two bills (H.R. 1662 and
H.R. 2933) to be reported. The first would, among other things, change procedures for
scientific peer review of specified actions. The second would modify procedures for
designation of critical habitat. On June 17, the House passed H.R. 4568, the Interior
appropriations bill, which would provide $138.6 million for ESA and $101.6 million for
related programs within FWS. At a July 17, 2004, field hearing, the House Resources
Committee, Subcommittee on Water and Power, discussed water allocation for endangered
species in the Klamath basin. In addition, regulatory actions and court decisions have focused
attention on the consultation process, including its relation to pesticide use and to forest fire
management projects.
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
may 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.
The ESA is administered by the Fish and Wildlife Service (FWS) for terrestrial and
freshwater species and some marine mammals, and by NOAA Fisheries for the remaining
marine and anadromous species. The U.S. Geological Survey’s Biological Resources
Division conducts research on species for which FWS has management authority; NOAA
Fisheries conducts research on the species for which it is responsible.
As of August 9, 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 December 31, 2002), 1,023 are
covered in recovery plans (up 23 since December 31, 2002). Of the U.S. species, 451 have
designated critical habitat in some portion of their range. (See FWS at [http://endangered.
fws.gov/] and the National Marine Fisheries Service (NOAA Fisheries, formerly NMFS) at
[http://www.nmfs.noaa.gov/endangered.htm].)
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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).
Recovered Species. Since the ESA was enacted in 1973, 39 U.S. and foreign
species have been delisted. The reasons cited by FWS are (a) 16 due to recovery; (b) 9 due
to extinction (but some may have been extinct when listed); (c) 7 due to new understanding
of the taxonomy of the species (making some ineligible for listing under current law); and
(d) 7 due to new information, including erroneous data provided to FWS at the time of
listing. Recovered species include alligators, peregrine falcons (two subspecies), and three
species of kangaroos. Extinct species include the dusky seaside sparrow, Guam broadbill (a
bird), and two species of small fish living in desert springs. Those delisted due to taxonomic
revision are four plants, two fish, and one duck. Species delisted due to new information or
errors in original data include a turtle in India, three plant species, a frog, a tree shrew, and
a butterfly. 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,
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
scientific information. These steps, including policies to solicit independent scientific peer
review, are described in 59 FR 34270 (July 1, 1994). 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) in 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
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CH. The appropriate Secretary may postpone designation for up to one year if the
information is not determinable (16 U.S.C.§1533). As of August 9, 2004, FWS has
designated CH for 36% of listed domestic species.
As a practical matter, CH has not been designated for most listed species largely
because FWS prefers to allocate its resources to listing new species, based on its
interpretation of a regulation (50 CFR 402.02) that takes away much of the legal value of
designating CH to the recovery of the species; yet FWS consistently loses cases brought
against it for failure to designate CH. Several courts have found the regulation to be
unlawful because it does not take into account the duty 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); Gifford
Pinchot Task Force v. USFWS
, 2004 U.S. App. LEXIS 16215 (9th Cir. August 6, 2004)).
Others assert the value of CH; for example, the Center for Biological Diversity has released
a study (see [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 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. (Also see Issues in the 108th Congress, below.)
Recovery Plans. The appropriate Secretary generally must develop a recovery plan
for the conservation and survival of a listed species; these plans are not binding on federal
agencies or others, but rather serve as guidelines. 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. As noted above, only a small
fraction of species listed under the act have been delisted due to recovery. This result is not
surprising, since two of the primary causes of species loss are the introduction of invasive
species and habitat loss — problems which have not abated appreciably in recent years. In
fact, of the 16 recovered species, these two relatively intractable causes were frequently not
the primary factor in the decline of the species, and addressing these other factors played a
substantial role in recovery. Examples of recovery in which habitat loss and invasive species
were not considered the primary problem include American alligators, two subspecies of
peregrine falcons, three species of kangaroos, and some populations of gray whales.
Land Acquisition and Cooperation. The federal government may acquire land
to conserve (recover) listed species, and the ESA authorizes money from the Land and Water
Conservation Fund for acquisition (16 U.S.C.§1534). The appropriate Secretary must
cooperate with the states in conserving protected species and must enter into cooperative
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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, the Cooperative Endangered Species Conservation 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 and Consultation. Proposed actions that may have 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 then issues
a written statement, called a biological opinion, that allows the agency or the applicant 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 opinion (16 U.S.C.§1536).
Second, 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. The
use of this section has been vastly expanded, and streamlined procedures are provided for
activities with minimal impacts (50 CFR 17.22).
Exemptions; Emergencies. Proponents of a federal action may apply for an
exemption from the prohibition against jeopardy for that action (not for a species). Under
the ESA, a high-level committee (commonly called the “God Squad”) decides 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). DOD has claimed that ESA
conflicts with its readiness activities, but DOD has not requested any exemptions to date.
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).
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Major Provisions of Current International Law. For the United States, the ESA
is the domestic implement legislation for 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. The issues for Congress include effects
of ESA on private and federal land use, perceived limited success in recovering species,
agency use of scientific information, specific regional resource conflicts, and other matters.
Below are descriptions of some of the issues most commonly raised, and of some of the bills
in the 108th Congress to address them.
Critical Habitat Designation. Some critics argue that CH designation places undue
burdens on landowners or that it conveys no conservation benefit. Others argue that FWS
and NOAA Fisheries have misinterpreted and failed to enforce the current statute. There are
also disagreements over the value and timing of CH designation. (See “Critical Habitat,”
above, and “ESA Listing Caps, New and Old,” below.)
In the 108th Congress, H.R. 2933 would address some of the CH issues. As ordered to
be reported by the House Resources Committee on July 21, 2004, the measure would require
the Secretary to designate CH to the maximum extent “practicable,” as well as the current
standard of “prudent, and determinable.” In light of the repeated FWS assertion that CH
designation represents a poor use of agency resources, the addition of this word might allow
FWS to designate CH for fewer species. With limited exceptions, FWS or NOAA Fisheries
must designate CH at the time a species is listed. The bill would postpone CH designation
to three years after listing or in connection with issuance of a recovery plan, and would
preclude CH designation for any areas covered under a §10 incidental take permit (and
possibly even under a submitted habitat conservation plan), or under a state or federal land
conservation or species management program that offers substantially equivalent protection.
It also would strengthen consideration of economic costs and benefits to governments and
landowners. H.R. 2933 would also change the definition of CH to be habitat determined by
field studies to be occupied and used for essential behaviors, plus additional habitat
necessary for the survival, as opposed to recovery, of the species, as the law currently
requires.
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For military lands specifically, P.L. 108-136 eliminated 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 requires that decisions to list a species be made
“solely on the basis of the best scientific and commercial data available....” (See CRS Report
RL31546, The Endangered Species Act and Science: the Case of Pacific Salmon, by Eugene
H. Buck et al.) In several recent situations, economic and social disputes have resulted from
actions taken to list, protect, and recover species under the ESA. Critics in some of these
disputes suggest that science supporting ESA action is insufficiently rigorous or is
mishandled by the agencies. Recent examples of these controversies have concerned the
Canada lynx, Florida panthers, and Klamath River Basin suckers and coho salmon.
A major issue is how FWS and NOAA Fisheries are to respond when the “available”
science is not extensive. Some suggest that considerations other than species conservation
should prevail; others seek to change the current posture of the law by changing the role of
“science.” For still others, many recent bills are seen as an attempt to undermine the ESA,
which they see as having struck a reasonable balance, and they question whether an
amendment concerning science is advisable or practical. These considerations are
complicated by the costs and time required to acquire more complete data, particularly in
connection with many lesser-known species. Many rare and endangered species are little
studied because they are hard to find or because it is difficult to locate enough of them to
support scientific research. 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. 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.”
Current Scientific Peer Review Policies. To understand proposed changes, it is
useful to outline current peer review policies. FWS and NOAA Fisheries developed a joint
policy on Information Standards Under the Endangered Species Act (59 Fed. Reg. 34271
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(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. Submitted information may range from the informal — oral,
traditional, or anecdotal — to peer-reviewed scientific studies, and hence the reliability of
the information can also vary. Agency biologists are to review and evaluate all information
impartially for purposes of listing, CH designation, 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, 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 aspect of this 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)).
Court Cases on ESA and Science. 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 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
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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)).
Bills in the 108th Congress. To address a perceived inadequacy of scientific review
under ESA, a number of bills (e.g., H.R. 1097, H.R. 1253, H.R. 1662, S. 369, and S. 2009)
to amend the ESA and its handling of scientific matters have been introduced in the 108th
Congress. To date, only H.R. 1662 has been ordered to be reported. As ordered, the bill
would provide for a highly structured peer review process in comparison to current law.
Some of the key features of this bill are as follows. It would require that data used under the
ESA comply with specified guidelines issued by the Office of Management and Budget
under the Data Quality Act (§515 of P.L. 106-554), and that the agency give greater weight
to empirical data that have been subjected to peer review. Another complex provision
requires the Secretary to adopt regulations that establish criteria for what constitutes “best
scientific data available.” The Secretary is required to “accept” and “acknowledge” data
from landowners who observe the species on their property; peer review requirements for
such data are unspecified. The Secretary must also describe the additional scientific data that
would assist in preparing a recovery plan and the steps the Secretary plans to take to acquire
the data; whether the Secretary is obliged to collect the data (as opposed to soliciting existing
information from the scientific community and others, as under current law) is not specified.
Under H.R. 1662, three-person peer-review panels would be created for several agency
actions (shown with numbers of such actions to date in FY2004, except as noted): changes
in list of endangered or threatened species (13); additions or revisions of critical habitat (8);
development of recovery plans (9); interagency consultations that result in a conclusion of
jeopardy or adverse modification of critical habitat and proposals of reasonable and prudent
alternatives (55 in FY2003, of which 53 were related to water diversion projects on the Platte
and Colorado Rivers). The Secretary would be obliged to select reviewers from a list of
persons recommended either by the National Academy of Sciences or by the governors of
the affected states. Peer reviewers would be excluded if, among other things, they had
“direct financial interests” in the outcome of the action, including grants, honoraria,
consulting arrangements, or employment. Worded thus, this requirement might exclude
university scientists with specific research interests in proposed species or their habitats. If
funds are available, reviewers would receive compensation; opinions of reviewers would
become part of the public record. The bill would expand participation of affected parties in
agency consultations, as well as making other changes. For more information, 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.
Specific Regional Resource Conflicts. One express purpose 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.
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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
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 Klamath Project operations (as opposed to operation of other basin
projects such as that on the Trinity River) were 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.
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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). On July 17, 2004, the
House Resources Committee, Subcommittee on Water and Power, held a field hearing in
Klamath Falls. It is unclear whether this hearing 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
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.
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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 Bureau of Reclamation (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, in a narrowly drawn opinion, held that BOR had discretion under the
contracts to reduce water deliveries to contractors to comply with ESA-related purposes (Rio
Grande Silvery Minnow
, 333 F.3d at 113-14). Some may argue that this decision could have
far reaching implications and affect other BOR projects.
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. (To date, there have been a handful of such sales.) 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. The Energy and Water
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Development Appropriations Act of 2005 (H.R. 4614), as passed by the House, does not
appear to contain language similar to that of §§208 and 209. 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: Pesticides and Fire Management Projects. 50
CFR §402.04 authorizes “counterpart” regulations that allow an action agency to determine
that its actions are not likely to adversely affect listed species, without formal or informal
consultation under §7 of the ESA, or a written concurrence from FWS or NOAA Fisheries.
Although the regulation has been on the books for years, it has not been used until recently,
and hence its validity has not yet been tested in the courts. Several new counterpart
regulations have recently been finalized and suits challenging the regulations are expected.
New counterpart pesticide regulations were finalized on August 5, 2004 (69 Fed. Reg.
47732) for EPA regulatory actions on pesticides. Under the new rules, when the EPA is
taking action to approve, permit, or authorize the sale, distribution, or use of a pesticide
under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), the EPA will decide
whether the FIFRA action is likely to jeopardize a species, or adversely modify critical
habitat, and will describe the impact of any anticipated incidental takings, discuss reasonable
and prudent measures to minimize the impacts, and summarize any information or
recommendations from an applicant. If the EPA concludes the FIFRA action is not likely
to adversely affect the listed species or critical habitat, it may pursue the alternative
consultation process, though formal consultation remains an option. Under the alternative
consultation process, the EPA may ask the FWS for information on listed species in an area
affected by a FIFRA action; may request Service personnel to assist in an effects
determination, and use its “best efforts” to include that representative in relevant discussions.
An alternative consultation agreement can allow EPA to make the effects determination
without informal or formal consultation or written concurrence from FWS. Effects decisions
are to be reviewed by an EPA person trained in making such determinations. Critics note
that the EPA has a poor record on consultations and was ordered to consult regarding
pesticide impacts on salmon. (Washington Toxics Coalition v. EPA, Civ. No CO1-132C
(W.D. Wa. 2002)), and fear that the new self-consultation process will allow more harm.
Supporters counter that the new process will increase EPA flexibility and efficiency.
Counterpart regulations also 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.
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
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. P.L. 108-136 added a requirement that impacts on national security
be considered when critical habitat is designated. In addition, it precluded the designation
of critical habitat for DOD lands subject to an Integrated Natural Resources Management
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Plan that the Secretary determines benefits the species. 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 plant (e.g, Virginia round leafed birch in southwestern Virginia)
or butterfly (e.g., Karner blue in Wisconsin) 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
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).
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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. Joint FWS and NOAA Fisheries 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 unforeseen circumstances in which changes may be implemented by the
government without costs borne by the landowner. Modifications to the no surprises rule
required 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 was not
remedied in a timely fashion. These rules have recently been reproposed (69 F.R. 29681
(May 25, 2004)) in response to litigation, but may still present the same issues. 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 consideration is S. 2095, a scaled-down
Senate version of H.R. 6, an omnibus energy bill whose conference report has been passed
by the House but not the Senate. Section 347 of this version 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
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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
(Bureau of Land Management 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).
Table 1. Funding for Endangered Species and Related Programs,
FY2003-FY2005
($ in thousands)
FY2003
FY2004
FY2005
House
Approp.
Approp.
Request
Passed
Endangered Species Program
Candidate Conservation
9,867
9,808
8,610
10,110
Listing
9,018
12,135
17,226
16,226
Consultation
47,459
47,146
45,450
47,200
Recovery
65,412
67,907
58,154
65,054
Subtotal
131,756
136,996
129,440
138,590
Related Programs
Landowner Incentive Programa
-260
29,630
50,000
15,000
Stewardship Grantsb
-65
7,408
10,000
5,000
Cooperative Endangered Species
80,473
81,596
90,000
81,596
Conservation Fundc
Multinational Species
4,768
5,531
9,500
5,900
Conservation Fundd
Neotropical Migratory Bird
2,981
3,951

4,400
Fundd
Total FWS
219,653
265,112
288,940
250,486
e
NOAA Fisheries
188,316
179,819
216,088
TOTAL (to date)
407,969
444,931
505,028
250,486
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 within the Multinational Species Conservation Fund, but to date Congress has rejected this proposal.
e. No action yet for this appropriation.
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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. For FY2005, the Administration requested $289 million for FWS for ESA
activities. The House-passed version of H.R. 4568 provided more funds than the
Administration requested for the ESA program itself, and slightly more than for FY2004.
However, it rejected increases for the related programs (see Table 1) that would benefit (a)
listed species on private lands and (b) state ESA programs. It provided small increases for
certain programs that would benefit foreign species. Overall, FWS funding for ESA and
related programs would be $38 million below the President’s request, and $15 million below
FY2004 level. NOAA Fisheries does not yet have figures available for endangered species
programs for the House-passed Commerce appropriations bill (H.R. 4754) for FY2005, since
these funds are commingled with funds to protect marine mammals in its program for
protected species.
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 House-
passed bill would limiting listing activities to $16.2 million, of which no more than $12.7
million would be used for most activities related to critical habitat designation. In FY2004,
these figures were $12.3 million and $8.9 million, respectively.
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