Order Code RL33468
CRS Report for Congress
Received through the CRS Web
The Endangered Species Act (ESA) in the
109th Congress: Conflicting Values
and Difficult Choices
June 13, 2006
Eugene H. Buck and M. Lynne Corn
Specialists in Natural Resources Policy
Resources, Science, and Industry Division
Pervaze A. Sheikh
Analyst in Environmental and Natural Resources Policy
Resources, Science, and Industry Division
Pamela Baldwin and Robert Meltz
Legislative Attorneys
American Law Division
Congressional Research Service ˜ The Library of Congress

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The Endangered Species Act (ESA) in the 109th
Congress: Conflicting Values and Difficult Choices
Summary
The 109th Congress is considering proposals to amend the Endangered Species
Act (ESA; P.L. 93-205, 16 U.S.C. §§1531-1543). Major issues in recent years have
included changing the role of science in decision-making, modifying critical habitat
(CH) procedures, incorporating further protection and incentives for property owners,
and increasing protection of listed species, among others. In addition, many have
advocated enacting as law some ESA regulations promulgated during the Clinton
Administration.
The ESA has been one of the more contentious environmental laws. This may
stem from its strict substantive provisions, which can affect the use of both federal
and nonfederal lands and resources. Under the ESA, species of plants and animals
(both vertebrate and invertebrate) can be listed as endangered or threatened
according to assessments of their risk of extinction. Once a species is listed,
powerful legal tools are available to aid its recovery and protect its habitat. The ESA
may also be controversial because dwindling species are usually harbingers of
broader ecosystem decline: the most common cause of listing species is habitat loss.
The authorization for spending under the ESA expired on October 1, 1992. The
prohibitions and requirements of the ESA remain in force, even in the absence of an
authorization, and funds have been appropriated to implement the administrative
provisions of the ESA in each subsequent fiscal year. In the 109th Congress, H.R.
3824 and S. 2110 would extensively amend and reauthorize the ESA; the House
passed H.R. 3824 (amended) on September 29, 2005. Proponents of both bills
indicate that they are designed to make the ESA more effective by redefining the
relationship between private and public property uses and species protection,
implementing new incentives for species conservation, and removing what some see
as undue land use restrictions. However, critics argue that proposed changes create
gaps in the ESA safety net of protections and prohibitions. This report identifies
other bills that have been introduced in the 109th Congress to address specific
concerns related to how the ESA is implemented and how endangered species are
managed.
This report replaces CRS Issue Brief IB10144, The Endangered Species Act
(ESA) in the 109th Congress: Conflicting Values and Difficult Choices, by Eugene
H. Buck et al., and will be updated periodically to reflect legislative action.

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Contents
Most Recent Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background and Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Major Provisions of Domestic Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Listing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Critical Habitat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Prohibitions and Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Permits and Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Emergencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Recovery Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Land Acquisition and Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Major Provisions of International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Is Species Protection and Restoration Working? . . . . . . . . . . . . . . . . . . . . . . 7
Issues in the 109th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Critical Habitat Designation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Use of “Sound Science” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Specific Regional Resource Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . 11
Counterpart Regulations: Pesticides and Fire Management Projects . 13
Private Property and Fifth Amendment Takings . . . . . . . . . . . . . . . . . 14
Making the ESA More User-Friendly . . . . . . . . . . . . . . . . . . . . . . . . . 15
Additional Legislative Initiatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Appropriations Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ESA Listing Caps, New and Old . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
List of Tables
Table 1. Funding for Endangered Species and Related Programs,
FY2005-FY2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

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The Endangered Species Act (ESA) in the
109th Congress: Conflicting Values
and Difficult Choices
Most Recent Developments
On May 25, 2006, President Bush signed P.L. 109-225 (S. 1165), expanding
Hawaii’s James Campbell National Wildlife Refuge to protect habitat for endangered
waterbirds. On May 18, 2006, the House passed (amended) H.R. 5386, providing
FY2007 ESA appropriations for the Fish and Wildlife Service. On May 17, 2006,
the House passed (amended) H.R. 4200, which would authorize emergency
procedures to comply with ESA §7 for pre-approved management practices for
federal land damaged by a catastrophe and for catastrophic event research and
recovery projects. On May 16, 2006, the House passed S. 1165.
Background and Analysis
Overview
The 1973 ESA (P.L. 93-205, as amended; 16 U.S.C. §§1531-1543) is a
comprehensive attempt to protect species at risk of extinction and to consider habitat
protection as an integral part of that effort. A stated purpose of the ESA is to protect
the ecosystems of which listed species are a part. 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 suits, are available to aid species recovery and protect habitat. Use of these
tools, or the failure to use them, has led to conflict.1
The ESA is administered by the Department of the Interior’s Fish and Wildlife
Service (FWS) for terrestrial and freshwater species and some marine mammals, and
by the National Marine Fisheries Service (NMFS; also popularly referred to as
1 For additional background, see CRS Report RL31654, The Endangered Species Act: A
Primer, by Pamela Baldwin, Eugene H. Buck, and M. Lynne Corn.

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CRS-2
NOAA Fisheries) in the Department of Commerce’s National Oceanic and
Atmospheric Administration (NOAA) for the remaining marine and anadromous
species.2 The U.S. Geological Survey’s Biological Resources Division conducts
research on species for which the FWS has management authority; NMFS conducts
research on the species for which it is responsible.
As of January 18, 2006, a total of 1,090 species of animals and 748 species of
plants had been listed as either endangered or threatened, of which the majority (527
species of animals and 745 species of plants) occur in the United States and its
territories and the remainder only in other countries. Of the 1,272 U.S. species (an
increase of 10 species since December 31, 2002), 1,042 are covered in recovery plans
(an increase of 42 species since December 31, 2002). Of the U.S. species, 473 have
designated critical habitat in some portion of their range.
At times, efforts to protect and recover listed species are controversial; declining
species often function like the proverbial canary in the coal mine, by flagging 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 Provisions of Domestic Law
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 Fed. Reg.
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.3
Recent regulatory activities include (1) FWS initiated a status review for listing
Graham’s beardtongue (plant); (2) FWS proposed to delist the Northern Rocky
Mountain distinct population segment (DPS) of gray wolf and the Yellowstone DPS
of grizzly bears; (3) FWS determined listing may be warranted and initiated status
2 For background on the ESA programs of the two administering agencies, see the FWS
programs at [http://www.fws.gov/endangered/] and the NMFS programs at [http://www.
nmfs.noaa.gov/pr/species/].
3 For an analysis of when and how the ESA allows consideration of economic factors, see
CRS Report RL30792, The Endangered Species Act: Consideration of Economic Factors,
by Pamela Baldwin.

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reviews for polar bears, the northern Mexican gartersnake, and the island marble
butterfly; (4) FWS determined listing was not warranted for the Mussentuchit gilia
(plant), Henderson’s checkermallow (plant), the Black Hills mountainsnail, the
Yellowstone cutthroat trout, the Douglas County pocket gopher, Gunnison’s prairie
dog, and the Black Hills DPS of the American dipper; and (5) FWS rejected a
petition to reclassify the Florida scrub-jay from threatened to endangered. These
activities reflect the typical variety of ESA listing issues regularly considered by
FWS and NMFS.
Critical Habitat. With certain exceptions, if a species is listed, the Secretary
must designate critical habitat (CH) in areas where the species is currently found or
which might provide additional habitat for the species’ recovery.4 However, if the
publication of this information is not prudent (e.g., might encourage vandals or
collectors), the Secretary may decide not to designate CH. The Secretary may
postpone designation for up to one year after listing, if the information is not
determinable (16 U.S.C. §1533). As of December 17, 2004, the FWS had designated
CH for 37% of listed domestic species.
As a practical matter, CH has not been designated for most listed species largely
because the FWS prefers to allocate its limited resources to listing new species, based
on its regulation (50 C.F.R. §402.02) that takes away much of the legal value of
designating CH to the recovery of the species. Yet the FWS consistently loses legal
challenges for failure to designate CH, and several courts have found the regulation
in question to be an erroneous interpretation of the law, because it does not take into
account the duty to avoid adverse modification of CH.5 Others have asserted the
value of CH; for example, the Center for Biological Diversity has released a study
concluding that CH designation enhances species recovery.6 On February 17, 2006,
the Keystone Center’s ESA Working Group on Habitat released a letter to Senators
on habitat protection and the ESA.7
CH is frequently misunderstood by the public as posing a significant direct
restriction on private landowners’ authority to manage land. While a landowner may
experience some additional procedures and possible 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 (i.e., actions that involve any federal funding, permit, or license).
(See also “Issues in the 109th Congress,” below.)
4 For additional background on CH, see CRS Report RS20263, Designation of Critical
Habitat under the Endangered Species Act (ESA), by Pamela Baldwin.
5 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).
6 See [http://www.biologicaldiversity.org/swcbd/programs/policy/ch/sub1.html].
7 Available at [http://www.keystone.org/spp/env-esa.html].

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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 C.F.R. §17.3). There has
been controversy over the extent to which habitat modification is prohibited. A 1995
Supreme Court decision held that the inclusion of significant habitat modification
was a reasonable interpretation of the term “harm” in the ESA.8 The ESA provides
civil and criminal penalties for violations.
Permits and Consultation. Proposed actions that may have adverse impacts
on listed species may be permitted 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 destroy or 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 destroy 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
issues a written statement, called a biological opinion, that may allow the agency or
the applicant to take individuals of a species incidental to otherwise lawful activities
without triggering the ESA’s penalties, subject to terms and conditions specified in
the opinion (16 U.S.C. §1536), or may conclude that jeopardy cannot be avoided, in
which case the agency may seek an exemption for the action from the Endangered
Species Committee.
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 C.F.R.
§17.22).
Exemptions. 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 Endangered Species Committee (commonly called the “God Squad”)
decides whether to allow a project to proceed despite likely harm to a species. 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. The ESA committee must grant an exemption if the Secretary of Defense
8 See CRS Report 95-778, Habitat Modification and the Endangered Species Act: The Sweet
Home Decision, by Pamela Baldwin.

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CRS-5
determines that an exemption is necessary for national security (16 U.S.C. §1536).
DOD has claimed that requirements under the ESA conflict with its readiness
activities, but DOD has not requested any exemptions to date. (See also “Issues in
the 109th Congress,” below.) Other statutes may provide for waivers of ESA
provisions; for example, §102(c) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 provides for a waiver of the ESA (and NEPA) to the
extent the Attorney General determines is necessary to ensure expeditious
construction of barriers and roads at borders. In the 109th Congress, §2(b) of H.R.
3693 would waive ESA provisions to the extent the Secretary of Homeland Security
deems necessary to prevent illegal border crossings. In addition, H.R. 5235 asserts
that P.L. 108-148, the Healthy Forests Restoration Act of 2003, exempted certain
actions by federal land management agencies from ESA consultation and would
require a National Academy of Sciences study of the impacts of P.L. 108-148.
Emergencies. 50 C.F.R. §402.05 provides for ESA procedures in case of
emergencies, basically requiring only very informal consultations during an
emergency with more complete consultation after the emergency has passed.
According to FWS, all hurricane-related federal activities in presidentially declared
disaster areas will invoke the emergency consultation provisions of the ESA.
Specifically, FWS states that restoring “any infrastructure damaged or lost due to the
hurricane back into the original footprint does not require ESA consultation with the
Service.” In the 109th Congress, S. 2079/H.R. 4200 would authorize emergency
procedures to comply with ESA §7 for pre-approved management practices for
federal land damaged by a catastrophe (§104(e)) and for catastrophic event research
and recovery projects (§105(c)). The House passed H.R. 4200 (amended) on May
17, 2006.
Recovery Plans. The appropriate Secretary generally must develop a
recovery plan for the survival and conservation (defined in §3(3) of the ESA as “to
bring any endangered species or threatened species to the point at which the measures
provided pursuant to this Act are no longer necessary” — i.e., recovery) 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).
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 land 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 must normally provide a minimum 25% match. Under the 1988
amendments, the Cooperative Endangered Species Conservation Fund was
authorized to provide state grants. While regular annual deposits to this fund are set
by a formula (16 U.S.C. §1535(i)(1)), spending from the fund requires annual
appropriation.

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Miscellaneous. Other provisions specify exemptions for certain captive
raptors and their progeny; 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 International Law
For the United States, the ESA is the domestic implementing 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
classifies species based solely on the risk that trade poses to their survival. (For more
information on CITES, see [http://www.cites.org/].) The ESA makes violations of
CITES violations of U.S. law if committed within U.S. jurisdiction (16 U.S.C.
§1538). The ESA also regulates import and export of controlled products and
provides some exceptions.9
On August 18, 2003, the FWS published a draft policy for enhancement-of-
survival permits for foreign species listed under the ESA (68 Fed. Reg. 49512).
These permits would allow imports of endangered species into the United States for
scientific research and for the enhancement of survival of the species in their range
country (i.e., the country where the population of the species in question naturally
exists). The comment period on this draft policy has closed, but FWS has not yet
published its final policy.10
Related to international species conservation, the United States has created the
Multinational Species Conservation Fund (MSCF), which currently benefits tigers,
the six species of rhinoceroses, Asian and African elephants, marine turtles, and great
apes (gorillas, chimpanzees, bonobos, orangutans, and the various species of
gibbons). The fund supports conservation efforts benefitting these species, often in
conjunction with efforts under CITES.11
Legislation under consideration in the 109th Congress includes:
9 For more information on CITES, see CRS Report RL32751, The Convention on
International Trade in Endangered Species of Wild Fauna and Flora (CITES): Background
and Issues, by Pervaze A. Sheikh and M. Lynne Corn.
10 For additional information, see CRS Report RS22420, Enhancement-of-Survival Permits:
Background and Status of Proposed Policy, by Pervaze A. Sheikh.
11 For more information on the MSCF, see CRS Report RS21157, Multinational Species
Conservation Fund, by Pervaze A. Sheikh and M. Lynne Corn.

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! Several bills that would expand species eligible for assistance from
the MSCF by creating a Flagship Species Conservation Fund (H.R.
93), by creating a Great Cats and Rare Canids Conservation Fund
(H.R. 1707), or by creating a Crane Conservation Fund (S. 943/H.R.
3520);
! S. 270 would establish a framework for legislative and executive
consideration of unilateral economic sanctions against foreign
nations, such as could be imposed in relationship to CITES;
! H.R. 518 would amend the Neotropical Migratory Bird Conservation
Act (P.L. 106-247; 16 U.S.C. §§6101 et seq.) to modify funding.
The House Resources Subcommittee on Fisheries Conservation,
Wildlife, and Oceans held a hearing on H.R. 518 on June 23, 2005;
! H.R. 2693/S. 1250 would amend and reauthorize the Great Ape
Conservation Act of 2000 (P.L. 106-411; 16 U.S.C. §§6301 et seq.)
to provide grants and emergency assistance to address conservation
needs. The House Resources Subcommittee on Fisheries
Conservation, Wildlife, and Oceans held a hearing on H.R. 2693 on
June 23, 2005. On August 31, 2005, the Senate Committee on
Environment and Public Works reported (amended) S. 1250 (S.Rept.
109-123); the Senate passed this bill (amended) on September 9,
2005; and
! H.R. 3469 would provide measures to improve the conservation of
coral reef species and further the obligations of the United States
under CITES.
Is Species Protection and Restoration Working?
The answer to this question depends on what is measured. Since a major goal
of the ESA is the recovery of species to the point at which ESA protection is no
longer necessary, this seems a good starting point. Since the ESA was enacted in
1973, 40 U.S. and foreign species have been delisted. The reasons cited by the FWS
are (a) recovery (17); (b) extinction (9, but some may have been extinct when listed);
(c) new understanding of the taxonomy of the species, making some ineligible for
listing under current law (7); and (d) new information, including a determination that
erroneous data were provided to the FWS at the time of listing (7). 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 small fish living in desert springs. However, it can be quite difficult
to prove whether extraordinarily rare species are simply that or, in fact, are already
extinct. For example, a rare shorebird thought by many to be extinct was
rediscovered in a remote area of Canada a few years ago; it might just as easily have
quietly gone extinct without being rediscovered. Rare species are, by definition, hard
to find.
Some have asserted that the ESA is a failure since only 17 species have been
delisted as recovered, as of January 25, 2006. Others note that full recoveries are
relatively few because the two principal causes of extinction — invasive non-native
species and habitat loss — are increasing. In addition, some scientific studies have
demonstrated that most species are listed only after they become very depleted (e.g.,
median population of 407 animals for endangered vertebrates, according to one

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CRS-8
study), thereby making recovery difficult. Another measure of “success” might be
the number of species that have stabilized or increased their populations, even if the
species are not actually delisted. If this standard is used, the ESA could be
considered a success, since a large number (41%, according to one study) of listed
species have improved or stabilized their population levels after listing. Other
species (e.g., red wolves and California condors) might not exist at all without ESA
protection, and this too might be considered a measure of success, even though these
species are still rare.12
On May 17, 2005, the House Committee on Resources released an oversight
report entitled Implementation of the Endangered Species Act of 1973.13 It reviews
various ways recovery may be measured. One approach is to look at what proportion
of the recovery objectives identified in species recovery plans have been achieved.
Issues in the 109th 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
the 109th Congress include effects of the ESA on private and federal land use, how
to better promote species recovery, agency use of scientific information, specific
regional resource conflicts, and other matters. Below are descriptions of some of the
issues most commonly raised.14
Critical Habitat Designation. With limited exceptions, the FWS or NMFS
must designate CH at the time a species is listed. However, some critics argue that
CH designation places undue burdens on landowners or that it has little conservation
benefit. Others argue (and the courts have largely agreed) that the FWS and NMFS
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 109th Congress, H.R. 1299 would modify the CH definition as well as the
process for determining and designating CH. H.R. 1837 would limit CH designation
for some aquatic habitats. Section 5 of H.R. 3824 would repeal the designation of
CH and label current areas of CH as areas of special value for recovery planning
purposes. The House Committee on Resources reported this bill (amended) on
September 27, 2005 (H.Rept. 109-237), and the House passed it (amended) on
September 29, 2005. S. 2110 would designate any habitat of an endangered species
12 See archived CRS Report 98-32, Endangered Species Act List Revisions: A Summary of
Delisting and Downlisting, by Robert J. Noecker, available from [lcorn@crs.loc.gov].
13 Available at [http://resourcescommittee.house.gov/issues/more/esa/ESA_Implementation_
Report5.17.05.pdf].
14 For additional background, see CRS Report RL33309, Reauthorization of the Endangered
Species Act: A Comparison of Pending Bills and a Proposed Amendment with Current Law,
by Pervaze A. Sheikh, et al.

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CRS-9
or a threatened species that is considered to be CH in accordance with the priority
system.
Use of “Sound Science”. The ESA requires that determinations of species
status be made “solely on the basis of the best scientific and commercial data
available ...”15 In several recent situations, legal, economic, and social disputes have
resulted from actions under the ESA. Examples of these controversies include the
Canada lynx, Florida panthers, and Klamath River Basin suckers and coho salmon.
Critics in some of these disputes suggest that the science supporting ESA action has
been insufficiently rigorous or mishandled by the agencies.
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.
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? 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.” These considerations are complicated by the costs and time required to
acquire more complete data, particularly in connection with many lesser-known
species.
The ESA does not elaborate on this question, but some assert that, given the
protective purpose of the ESA — to save and recover species — and the wording of
“best ... data available,” arguably dwindling species are to be given the benefit of the
doubt and a margin of safety provided. This is the position taken on page 1-7 of the
Endangered Species Consultation Handbook, 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.16 This phrase is drawn from H.Rept. 96-697, p. 12 (1979), which
states that the “best information available” language was intended to allow the 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.”
Information Quality. Section 515 of P.L. 106-554, known as the Information
Quality Act or the Data Quality Act, directs the Office of Management and Budget
(OMB) to issue government-wide guidelines to federal agencies to ensure and
maximize the quality, objectivity, utility, and integrity of information disseminated
by federal agencies. OMB published final guidelines on February 22, 2002 (67 Fed.
Reg. 8452). The Department of the Interior and FWS have both issued additional
15 See CRS Report RL32992, The Endangered Species Act and “Sound Science,” by Eugene
H. Buck, et al.
16 Available at [http://www.nmfs.noaa.gov/pr/pdfs/laws/esa_section7_handbook.pdf].

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CRS-10
guidelines that are available through their websites,17 and a process is established for
interested persons to seek correction of information. Even before these latest
guidelines, FWS had promulgated guidance on information quality and peer review
procedures — issues that also have been addressed in recent legislation.
The FWS and NMFS developed an Interagency Cooperative Policy on
Information Standards Under the Endangered Species Act (59 Fed. Reg. 34271, July
1, 1994). Under this policy, the FWS and NMFS 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 vary widely.
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 for recommendations. In
addition, agency managers are to review the work of FWS and NMFS biologists to
“verify and assure the quality of the science used to establish official positions,
decisions, and actions...”
Additionally, a companion Interagency Cooperative Policy for Peer Review in
Endangered Species Act Activities (59 Fed. Reg. 34270, July 1, 1994) 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.
Court Cases on the ESA and Science.18 Courts that have considered the
“best data available” language have held that an agency is not obliged to conduct
studies to obtain missing data,19 but cannot ignore available biological information,20
especially if the ignored information is the most current.21 Nor may an agency treat
one species differently from other similarly situated species,22 nor decline to list a
dwindling species and wait until it is on the brink of extinction in reliance on
17 For example, see [http://www.fws.gov/stand/standards/process_WWW.html].
18 For more information, see CRS Report RL32992, The Endangered Species Act and
“Sound Science,” by Eugene H. Buck et al.
19 Southwest Center for Biological Diversity v. Babbitt, 215 F. 3d 58 (D.C. Cir. 2000).
20 Connor v. Burford, 848 F. 2d 1441 (9th Cir. 1988).
21 Southwest Center for Biological Diversity v. Babbitt, 926 F. Supp. 920 (D.C. Ariz. 1996).
22 Id.

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CRS-11
possible but uncertain future actions of an agency.23 “Best scientific and commercial
data available” is not a standard of absolute certainty, reflecting Congress’s intent
that the FWS take conservation measures before a species is conclusively headed for
extinction.24 If the FWS does not base its listings on speculation or surmise or
disregard superior data, the imperfections of the studies upon which it relies do 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.”25
Judicial review can also 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 to
protect one listed species of duck. In Arizona Cattle Growers Association v. United
States Fish and Wildlife Service (273 F. 3d 1229, 9th Cir. 2001), the court stated that
the evidentiary bar the FWS must clear is very low, but it must at least clear it. In the
context of issuing Incidental Take Permits under §10(a), this ruling 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. An agency must consider the relevant facts and articulate a rational
connection between these facts and the choices made.26
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 increasing human populations put pressures on our wildlands and
natural resources, the conservation of species and their habitats may highlight
underlying resource crises and economic conflicts. Public values and affected
economic interests may be complex and sometimes at odds. The situations described
below are some of the situations that have been the subject of recent congressional
oversight and legislative interest. In the 109th Congress and reflecting several of
these regional conflicts, the House Resources Subcommittee on Water and Power
held an oversight hearing on June 22, 2005, focusing on the effect of the ESA on
water supplies.
Klamath River Basin. Controversy erupted in 2001 when the Department
of the Interior’s Bureau of Reclamation announced it would not release water from
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 sought to make more water available for three fish species under ESA
23 Biodiversity Legal Foundation v. Babbitt, 943 F. Supp. 23 (D. D.C. 1996).
24 Defenders of Wildlife v. Babbitt, 958 F. Supp. 670, 679-680 (D. D.C. 1997).
25 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.
26 Pacific Coast Federation of Fishermen’s Associations, Inc. v. NMFS, 265 F.3d 1028, 1034
(9th Cir. 2001).

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CRS-12
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
point to their contractual rights to water from the Klamath Project and to hardships
for their families if water is cut off. Others assert that the downstream 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 agency determinations 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. The Trinity
River diversion from the Klamath basin to central California also has ramifications
for the Bureau’s role in the Central Valley Project. Various 10-year and annual
operation plans, and associated biological assessments (by the Bureau) and biological
opinions (by the FWS and NMFS) have been criticized and defended.27
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. NMFS officials have listed a total of 26 distinct population segments
(called evolutionarily significant units or ESUs) of Pacific salmon and steelhead trout
as either threatened or endangered, and are working with state, local, and tribal
officials, as well as the public, to implement recovery measures addressing habitat
restoration and other concerns. Recent controversies and litigation have focused on
three issues: (1) the biological opinion on operations of the Federal Columbia River
Power System (FCRPS) as it relates to retaining (or removing) four dams on the
lower Snake River, and how properly to factor the presence of the dams into
evaluations of jeopardy; (2) whether or not salmon produced in hatcheries should be
included in listed ESUs of Pacific salmon; and (3) the role and extent of CH
designation in the recovery of Pacific salmon. Interim decisions of the federal district
court for Oregon have invalidated NMFS’s approach to evaluating jeopardy to
salmon from dam operations on the Columbia and Snake Rivers, and ordered
increased spills of water to assist transit of juvenile salmon to the sea.
In the 109th Congress, S. 232 would authorize the Bureau of Reclamation to
assist in implementing fish passage and screening facilities at nonfederal water
projects in the Columbia River Basin to meet the Bureau’s ESA obligations. On
March 10, 2005, the Senate Committee on Energy and Natural Resources reported
S. 232 (S.Rept. 109-31); the Senate passed it on July 26, 2005. H.R. 1615 would
require a National Academy of Sciences analysis of federal salmon recovery efforts
and a Government Accountability Office study of the effects of partially removing
four lower Snake River dams, and would authorize partial removal of these four
dams under certain conditions. Section 103 of S. 2432/H.R. 5006 would designate
salmon restoration areas in California.
27 For more information, see CRS Report RL31098, Klamath River Basin Issues: An
Overview of Water Use Conflicts, by Betsy A. Cody, et al.

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CRS-13
Rio Grande Silvery Minnow. Efforts to hold back water necessary for the
Rio Grande silvery minnow from competing New Mexico water users (primarily the
city of Albuquerque and irrigators) ignited considerable controversy. At issue is the
operation of two Bureau of Reclamation water projects on the Middle Rio Grande:
the San Juan-Chama Project and the Middle Rio Grande Project. The New Mexico
District Court held that withholding water from irrigators for ESA-related purposes
was permissible under the water contracts at issue.28 Congress halted implementation
and an agreement regarding the minnow has been negotiated.
In the 109th Congress, §121 (Title I, Corps of Engineers) of P.L. 109-103
authorizes certain activities related to the Middle Rio Grande Endangered Species
Collaborative Program (MRGESCP). S. 1540 would direct the Secretary of the
Army and the Secretary of the Interior to establish the MRGESCP to improve water
management and contribute to the recovery of endangered species in the Middle Rio
Grande, NM. S. 2254 would direct the Corps of Engineers to carry out restoration
projects along the Middle Rio Grande in consultation with the MRGESCP.
Counterpart Regulations: Pesticides and Fire Management
Projects. In 50 C.F.R. §402.04, “counterpart” regulations are authorized that allow
an action agency to determine unilaterally whether its actions are likely to adversely
affect listed species, thereby avoiding §7 consultation with FWS or NMFS.
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 have been filed.
New counterpart pesticide regulations were finalized on August 5, 2004 (69
Fed. Reg. 47732), for Environmental Protection Agency (EPA) regulatory actions on
pesticides, such that when the EPA is taking action under the Federal Insecticide,
Fungicide and Rodenticide Act (FIFRA; P.L. 80-104; 7 U.S.C. §§136, et seq.), the
EPA and the FWS may execute an alternative consultation agreement under which
the EPA will decide whether a proposed FIFRA action is likely to adversely affect
a listed species or critical habitat. The EPA may make this determination without
informal consultation with, and written concurrence from, the FWS Director. If the
EPA makes such a determination, no further consultation is required. There is to be
FWS oversight of the consistency of EPA’s determinations with the ESA. Under 50
C.F.R. §402.43, the EPA may ask the FWS for information on listed species that may
be present in an area that might be affected by the FIFRA action, including the
applicable environmental baseline for each species or habitat, and under new
§402.44, the EPA may request FWS personnel to assist in an effects determination
and must use its “best efforts” to include the FWS representative in relevant
discussions. These two regulations appear to apply with or without an alternative
consultation agreement. Critics note that the EPA has a poor record on consultations
(see 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 to listed species.
Supporters counter that the new process will increase EPA flexibility and efficiency.
28 Affirmed by the 10th Cir., 333 F.3d 1109 (10th Cir 2004).

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CRS-14
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, the FWS, and NMFS, to streamline
consultation on projects supporting the National Fire Plan (NFP). The alternative
consultation process contained in these counterpart regulations eliminates the need
to conduct informal consultation with the FWS or NMFS, and eliminates the
requirement to obtain written concurrence from the FWS or NMFS for those NFP
actions that the action agency determines are “not likely to adversely affect” any
listed species or designated CH.
Private Property and Fifth Amendment Takings. The presence of
endangered species on private property is sometimes welcomed by owners. Builders,
for example, have been known to market a new residential development in part on
the basis of the wildlife present on undeveloped parts of the tract. Still, the
prohibitions in §9 (private actions) and §7 (federal nexus) may at times frustrate the
economic desires of owners of land or other property. This has long been a rallying
cry for the ESA’s detractors, who assert that restrictions under the ESA routinely
“take” property in the constitutional sense of the term. Conflicts between the ESA
and property owners come about despite the existence of ESA mechanisms intended
to soften its impact on property owners.
Under the Fifth Amendment, property cannot be “taken” by the United States
without just compensation. The Supreme Court has long tried, with limited success,
to define which government actions affect private property so severely as to effect
such a “taking.” In briefest outline, government actions usually are deemed a taking
when they cause either a permanent physical occupation of private property or a total
elimination of its economic use. When the government restriction removes only part,
but not all, of the property’s use or value, a three-factor balancing test is used.
Though these factors have been little explicated by the courts, it is clear that for a
taking to occur, the property impact must be severe. Moreover, except for physical
takings, the property impact is assessed with regard to the property as a whole, not
just the regulated portion.
More than a dozen court decisions have addressed takings challenges to ESA
restrictions on land or other property, with all but one finding no taking. These cases
have involved restrictions on timber cutting, reductions in water delivery to preserve
instream flows needed by listed species, restrictions on shooting marauding animals
resulting in loss of livestock, and prohibitions on the transport or sale of endangered
species. In several of these cases, the taking claim failed because it was filed in the
wrong court or was not “ripe.” Where taking claims were reached by the court, they
were rejected principally because the economic impact was insufficient as to the
property as a whole, or because of the longstanding principle that the government is
not responsible for the actions of wild animals. In the one decision favoring the
property owner, ESA-related cutbacks in water delivered by a state reclamation
project to water districts were held a taking by the United States of
state-contract-created water rights.29 This decision has been controversial for several
reasons, including the Department of Justice’s settlement of the case (for $16.7
29 Tulare Lake Basin Water Storage Dist. v. United States, 49 Fed. Cl. 313 (2001).

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CRS-15
million) despite arguments pressed on it from several quarters that the case was
incorrectly decided.30
ESA critics want the ESA amended to afford compensation for a broader range
of property impacts than the Constitution provides — perhaps by specifying a fixed
percentage of ESA-related property value loss, above which compensation must
always be paid. Similar provisions have been included in bills of previous
Congresses. In the 109th Congress, §14 of H.R. 3824 would require federal
compensation for property owners who forgo use of property following
determinations that continued use would not comply with ESA species take
prohibitions. The House Committee on Resources reported this bill (amended) on
September 27, 2005 (H.Rept. 109-237), and the House passed it (amended) on
September 29, 2005. Opponents of an explicit compensation standard counter that
the ESA should not be singled out for a more property owner-friendly standard than
the Constitution’s. More fundamentally, they note that property rights have never
been absolute, and that regulation has long been noncompensable as long as the
impact on the property owner is not severe. The likely consequences of a generous
compensation threshold — added federal costs and/or a chill on ESA implementation
— are among the issues slowing action on ESA reauthorization.
In the 109th Congress, §3 of H.R. 411 would award compensation for ESA
activities that eliminate or reduce grazing privileges. H.R. 3166 would authorize the
waiver of grazing permits in designated CH and provide compensation for waived
permits. However, both proponents and opponents of the ESA favor enacting
incentives (primarily tax benefits) to encourage landowner cooperation. S. 2110
would provide a variety of tax benefits.
Making the ESA More User-Friendly. Former Interior Secretary Babbitt
initiated actions to decrease ESA conflicts in several ways. Joint FWS and NMFS
policies streamlined permit procedures for small landowners, and other initiatives
encouraged landowners to increase protection for populations of listed species on
their land. Under safe harbor agreements, landowners who increased suitable habitat
could return to “baseline conditions” without penalty. No surprises agreements
provided landowners with greater certainty regarding activities that might otherwise
trigger penalties — an incentive for landowners to develop Habitat Conservation
Plans (HCP), 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
revoking 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 were reproposed (69 Fed. Reg. 29681,
May 25, 2004) and finalized (69 Fed. Reg. 71723, December 10, 2004) in response
30 See CRS Report RL31796, The Endangered Species Act and Claims of Property Rights
“Takings”, by Robert Meltz; and CRS Congressional Distribution Memorandum, The
‘Tulare Lake’ Decision’s Implications for Use of Bureau of Reclamation Project Water, by
Pamela Baldwin and Robert Meltz, available from [pbaldwin@crs.loc.gov].

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CRS-16
to litigation, but may still present issues raised previously. Federal managers also
focused on listing species as threatened rather than endangered, to allow the 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 HCP agreements as difficult to
enforce and as locking in the government to inflexible long-term positions that
sometimes are based on inadequate knowledge.
In the 109th Congress, §365 of P.L. 109-58, the Energy Policy Act of 2005,
established a pilot project in WY, MT, CO, UT, and NM to better coordinate federal
permits, including ESA §7 permits. Additional bills introduced include:
! S. 260/H.R. 2018 would expand the authorization of the Secretary
of the Interior to assist private landowners in restoring, enhancing,
and managing endangered and threatened species habitat on private
land through the Partners for Fish and Wildlife Program; S. 260 was
reported (amended) by the Senate Committee on Environment and
Public Works on June 22, 2005 (S.Rept. 109-86), and passed the
Senate (amended) on June 27, 2005. The House Resources
Subcommittee on Fisheries and Oceans held a hearing on H.R. 2018
and S. 260 on September 23, 2005;
! H.R. 3300 would authorize species recovery agreements obligating
the federal government to make annual payments or provide other
compensation for activities that improve the recovery of listed
species;
! S. 1497 would require the Secretary of the Interior to provide
incidental take permits to public electric utilities that adopt avian
protection plans; and
! S. 2110 would codify the no surprises policy.
Additional Legislative Initiatives
In the 109th Congress, bills have been introduced in both the House and Senate
to reauthorize and comprehensively amend the ESA — H.R. 3824, the Threatened
and Endangered Species Recovery Act of 2005, and S. 2110, the Collaboration for
the Recovery of Endangered Species Act. The House Committee on Resources
reported H.R. 3824 (amended) on September 27, 2005 (H.Rept. 109-237); the House
passed H.R. 3824 (amended) on September 29, 2005.
Proponents of both bills indicate that they are designed to make the ESA more
effective by redefining the relationship between private and public property uses and
species protection, implementing new incentives for species conservation, and
removing what some see as undue land use restrictions. Thus, both proposals contain
provisions meant to encourage greater voluntary conservation of species by states and
private landowners, a concept that has been supported by many observers. Further,
both proposals would modify or eliminate certain procedural or other elements of the
current ESA that some have viewed as significant protections and prohibitions,
including:

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CRS-17
! eliminating or changing the role of “critical habitat” (CH) (which
would eliminate one aspect of the current consultation process);
! making the listing of all threatened and endangered species more
difficult or less likely;
! expanding §10 permits allowing incidental take (which could incur
a greater need for agency oversight and enforcement); and
! expanding state rather than federal implementation of ESA programs
(which might make oversight more difficult).
Proponents of these changes assert that tighter listing standards would enable a better
focus on species with the most dire needs, and that other measures would achieve
recovery of more species. Critics argue that proposed changes create gaps in the ESA
safety net of protections and prohibitions.31
Additional measures enacted and under consideration by the 109th Congress
include:
! P.L. 109-183 (S. 1578) reauthorized Upper Colorado and San Juan
River Basin endangered fish recovery programs.
! P.L. 109-225 (S. 1165) expanded Hawaii’s James Campbell
National Wildlife Refuge to protect habitat for endangered
waterbirds.
! S. 164 would facilitate acquisition of UT lands to protect desert
tortoise.
! S. 362 and H.R. 3692 would establish NOAA and Coast Guard
programs to manage marine debris and address its adverse effects on
endangered species. The Senate Committee on Commerce, Science,
and Transportation reported S. 362 (amended) on April 13, 2005
(S.Rept. 109-56), and the Senate passed this bill (amended) on July
1, 2005. The House Committee on Resources reported S. 362
(amended) on December 8, 2005 (H.Rept. 109-332, Part I).
! Section 1505 of S. 732, as reported on April 6, 2005 (S.Rept. 109-
53), by the Senate Committee on Environment and Public Works,
would authorize state programs for mitigating highway and surface
transportation impacts, including those affecting endangered and
threatened species.
! H.R. 2323 would promote southern sea otter recovery and research.
! Section 1505(c) of H.R. 3, as agreed to by the Senate on May 17,
2005, would have provided for state mitigation funds to benefit
endangered and threatened species; these provisions were not
retained in the conference agreement, subsequently enacted as P.L.
109-59.
! H.Res. 249 celebrates the rediscovery of the ivory-billed
woodpecker in Arkansas.
31 For additional information, see CRS Report RL33309, Reauthorization of the Endangered
Species Act: A Comparison of Pending Bills and a Proposed Amendment with Current Law,
by Pervaze A. Sheikh, et al.

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CRS-18
! H.R. 2779 would amend the ESA to enable federal agencies to
rescue and relocate threatened or endangered species in certain
circumstances where flood control levees are reconstructed,
maintained, or repaired.
! H.R. 3110 would amend the ESA to treat distinct population
segments of the Eastern oyster as separate species. On July 19,
2005, the House Committee on Resources held an oversight hearing
on ESA listing of this species.
! S.Res. 219 would designate March 8, 2006, as “Endangered Species
Day;” S.Res. 431 would designate May 11, 2006, as “Endangered
Species Day;” the Senate agreed to S.Res. 431 on April 5, 2006.
! Section 203 of H.R. 3908 would amend the Internal Revenue Code
to exempt payments from gross revenue for landowner incentive
programs that conserve species or protect habitat.
! H.R. 4857 would require that certain electricity consumers be
informed of ESA compliance costs; the House Committee on
Resources held a hearing on this bill on March 16, 2006.
! Section 212 of S. 2012 and §209 of H.R. 5051 would require a study
of sea turtle excluder devices; S. 2012 was reported by the Senate
Committee on Commerce, Science, and Transportation on April 4,
2006 (S.Rept. 109-229).
Appropriations Issues. Appropriations play an important role in the ESA
debate, providing funds for listing and recovery activities as well as financing FWS
and NMFS consultations that are necessary for federal projects. Table 1 shows
recent ESA funding. The FY2006 Department of the Interior, Environment, and
Related Agencies Appropriations Act, P.L. 109-54, provided $271.9 million for the
FWS’s ESA activities. Overall, FY2006 FWS funding for ESA and related programs
is $6.5 million less than the President’s request, and $11.8 million more than the
FY2005 appropriations level. FY2006 funding for ESA programs administered by
NMFS was provided in the Science, State, Justice, Commerce, and Related Agencies
Appropriations Act, P.L. 109-108. Provisions in P.L. 109-148 (H.R. 2863, the
Department of Defense, Emergency Supplemental Appropriations to Address
Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act) rescinded
unobligated balances of $2 million from FWS’s Landowner Incentive Program and
$1 million from the Cooperative Endangered Species Conservation Fund. For
FY2007, FWS appropriations are provided in H.R. 5386, which passed the House
(amended) on May 18, 2006.
An April, 2005 GAO study found that, although FWS spends almost half of its
recovery funds on highest priority species, factors other than a species’ priority
ranking (e.g., regional office workload, opportunities for partnerships to maximize
scarce recovery funds), in practice, determine how funding is allocated. GAO found
that FWS does not have a process to routinely assess funding decisions to ensure that
they are appropriate.32
32 Government Accountability Office, Endangered Species: Fish and Wildlife Service
Generally Focuses Recovery Funding on High-Priority Species, but Needs to Periodically
(continued...)

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CRS-19
Table 1. Funding for Endangered Species and Related
Programs, FY2005-FY2007
($ in thousands)
FY2006
FY2006
FY2007
FY2007
Request
Approp.
Request
Hse Passed
Endangered Species Program
Candidate Conservation
8,252
8,619
8,063
8,163
Listing
18,130
17,630
17,759
17,759
Consultation
49,484
47,997
49,337
50,018
Recovery
64,243
73,562
65,879
70,670
Subtotal
140,109
147,808
141,038
146,610
Related programs
Landowner Incentive Program
40,000
21,667
24,400
15,000
Stewardship Grants
10,000
7,277
9,400
7,000
Cooperative Endangered
Species Conservation Funda
80,000
80,001
80,001
80,507
Multinational Species
Conservation Fundb
8,300
6,404
8,217
6,057
Neotropical Migratory Bird
Fundb
0
3,941
0
4,000
Total FWS
278,409
267,098
263,056
259,174
NMFS
213,687
181,000
189,000
not available
Total (to date)
492,096
448,098
452,056
Sources: Annual budget justifications, House and Senate committee and conference reports.
a. For FY2006, the conference agreement derived $62.039 million from the Land and Water
Conservation Fund (LWCF); for FY2007, the Administration requests all $80.001 million from
the LWCF.
b. From FY2002 to FY2007, the President’s budget proposed subsuming the Neotropical Migratory
Bird Fund within the Multinational Species Conservation Fund; to date, Congress has rejected
this proposal.
ESA Listing Caps, New and Old. Beginning in FY1998, Congress enacted
annual limits (caps) on funding the FWS could use for its ESA listing function. This
appropriations 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. The 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. P.L. 109-54,
FY2006 Department of the Interior appropriations, limits listing activities to $18.13
million, of which no more than $12.852 million could be used for activities related
32 (...continued)
Assess Its Funding Decisions, GAO-05-211, April 6, 2005. Available at [http://www.gao.
gov/new.items/d05211.pdf].

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CRS-20
to critical habitat designation. For FY2007, the Bush Administration proposed —
and the House Committee on Appropriations report on H.R. 5386, H.Rept. 109-465,
agreed to — limiting listing activities to $17.759 million, of which no more than
$12.581 million could be used for activities related to critical habitat designation.

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