Order Code RL31654
CRS Report for Congress
Received through the CRS Web
The Endangered Species Act: A Primer
Updated September 27, 2006
M. Lynne Corn
Specialist in Natural Resources Policy
Resources, Science, and Industry Division
Eugene H. Buck
Specialist in Natural Resources Policy
Resources, Science, and Industry Division
Pamela Baldwin
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress
The Endangered Species Act: A Primer
Summary
The Endangered Species Act protects species identified as endangered or
threatened with extinction and attempts to protect the habitat on which they depend.
It is administered primarily by the Fish and Wildlife Service and also by the National
Marine Fisheries Service for certain marine and anadromous species. Dwindling
species are listed as either endangered or threatened according to assessments of the
risk of their extinction. Once a species is listed, legal tools are available to aid its
recovery and to protect its habitat. The ESA can become the visible focal point for
underlying situations involving the allocation of scarce or diminishing lands or
resources, especially in instances where societal values may be changing, such as for
the forests of the Pacific Northwest and the waters in the Klamath River Basin. This
report discusses the major provisions of the ESA, both domestic and international,
and also discusses some of the background issues, such as extinction in general, and
the effectiveness of the statute.
An amplified discussion is provided on four aspects of the ESA and its
implementation that have raised concerns and promoted debate — listing species,
designating critical habitat, consulting on projects, and exempting projects. This
report provides much of the issue context for understanding individual legislative
initiatives discussed in CRS Report RL33468, The Endangered Species Act (ESA) in
the 109th Congress: Conflicting Values and Difficult Choices. This report will be
updated as circumstances warrant.
Contents
Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
What Is the ESA? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Why Is the ESA Controversial? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Has ESA Been Effective? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Leading Causes of Extinction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Is Extinction Normal? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Major Provisions of Current Law: Domestic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Endangered and Threatened Species . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
“Take” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
FWS and NMFS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Listings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Candidate Species . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Delisting and Downlisting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Critical Habitat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Recovery Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Land Acquisition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Cooperation with States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Permits for Non-Federal Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Other Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Prohibitions and Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Major Provisions of Current Law: International . . . . . . . . . . . . . . . . . . . . . . . . . 10
Financial Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Scientific Authority/CITES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Management Authority/CITES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Imports/Exports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Particular Species . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Major Elements of the ESA:
Listing, Critical Habitat, Consultation, Exemption . . . . . . . . . . . . . . . . . . . 12
Listing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Bases for Listings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Pre-Listing Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Listing: Endangered vs. Threatened . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Designation of Critical Habitat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Post-Listing Activities/Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Exemptions: A History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
The Endangered Species Committee . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Eligible Applicants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Secretarial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Committee Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Mitigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Special Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Duration and Effect of Exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Appendix: Exemption Applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Grayrocks Dam . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Tellico Dam . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Bureau of Land Management Timber Sales . . . . . . . . . . . . . . . . . . . . . 24
Pittston Company Refinery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Consolidated Grain and Barge Company Docking Area . . . . . . . . . . . 25
Suwanee River Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
The Endangered Species Act: A Primer
The Endangered Species Act (ESA)1 receives significant congressional
attention. The associated power and reach of its comprehensive protection for
species identified as endangered or threatened with extinction has ignited concern
that there be greater bounds on this power. The following discussion provides an
overview and background on the various features of the ESA that contribute to its
stature and yet spark an ongoing debate over its implementation.
Overview
What Is the ESA?
The Endangered Species Act (ESA) is a comprehensive attempt to protect
identified species and to consider habitat protection as an integral part of that effort.
It is administered primarily by the Fish and Wildlife Service (FWS),2 but also by the
National Marine Fisheries Service (NMFS)3 for certain marine species. Under the
ESA, species of plants and animals (both vertebrate and invertebrate) are listed as
either “endangered” or “threatened” according to assessments of the risk of their
extinction. Once a species is listed, powerful legal tools are available to aid the
recovery of the species and to protect its habitat. As of September 25, 2006, a total
of 1,879 species of animals and plants had been listed as either endangered or
threatened; 1,311 of these occur in the United States and its territories and the
remainder only in other countries.4 Of the U.S. species, 1,070 were covered by
recovery plans.5 The authorization for funding under ESA expired on October 1,
1992, although Congress has appropriated funds in each succeeding fiscal year.
Why Is the ESA Controversial?
While the ESA plays an important role in protecting species, it can also become
a surrogate in quarrels whose primary focus is the allocation of scarce or diminishing
lands or resources. Indeed, a stated purpose of the ESA is to “provide a means
whereby the ecosystems upon which endangered species and threatened species
1 Act of December 28, 1973; P.L. 93-205, 87 Stat. 884. 16 U.S.C. §§1531-1544.
2 For detailed information on the FWS program for endangered species, see the FWS
website at [http://endangered.fws.gov/].
3 NMFS also is sometimes popularly referred to as NOAA (National Oceanic and
Atmospheric Administration) Fisheries.
4 For updated information, see [http://ecos.fws.gov/tess_public/Boxscore.do].
5 Ibid.
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depend may be conserved.”6 There can be economic interests on the various sides
of some vanishing species issues. Because other laws often lack the strict substantive
provisions that Congress included in the ESA (see Major Provisions sections,
below), the ESA often becomes a surrogate battleground in such disputes. Like the
miners’ canaries, declining species are often symptoms of larger controversies over
resource scarcities and altered ecosystems. Examples of such resource controversies
include the Tellico Dam (hydropower development and construction jobs versus
farmland protection and tribal graves, as well as the endangered snail darter);
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 oil development on the energy-rich plain around the
northern mountain states (coal bed methane development, grazing rights, ground
water protection, traditional ranching, and a proposal for sage grouse listing in a
complex and varying stew of interests).7
In recent years, tensions over the ESA have increased as species have been
added to the protected list, and as the greater demands of a growing economy and
human population have affected species’ habitats. Both Congress and the
Administration have sought to lessen these tensions by, among other things, tailoring
application of the ESA for particular circumstances. The ESA’s critics contend that
neither the ESA nor administrative efforts go far enough in accommodating needs
other than species conservation, while the ESA’s defenders counter that it merely
balances an inherent bias toward development in other governmental laws and
policies.
Debate, pro and con, on the ESA splits largely along demographic lines. While
most demographic groups support species conservation, that support is stronger
among urban and suburban populations and less so in rural areas, and is stronger
among those in the East and along the coasts and less so in central and mountain
states. Sport hunters and anglers seem divided on the issue. Native Americans, as
a group often dependent on natural resources (e.g. fish), are frequently involved in
ESA issues, most commonly siding with survival of listed species. Groups opposing
strong protections for listed species usually make claims that jobs will be lost if
conservation measures are stringent, but those seeking strong protections often claim
that jobs will be lost if they are not. It is also noteworthy that, while the debate often
centers on jobs and biology, people on both sides claim ethical support for their
positions, and some religious groups now participate in the debate. In addition, some
industries (e.g., logging and land development) generally see the ESA as a serious
problem, while others (e.g., some commercial fishing and many recreation interests)
see it as generally supporting their interests.
6 16 U.S.C. §1531(b).
7 Ultimately, a petition to list this species was judged not to be warranted. The interests
mentioned here, and many others, had a variety of goals in supporting or opposing the listing
proposal. For details, see [http://www.r6.fws.gov/species/birds/sagegrouse/].
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Has ESA Been Effective?
The answer to this question depends very much on the choice of measurement.
A major goal of the ESA is the recovery of species to the point at which the
protection of the ESA is no longer necessary. If this is the standard, the ESA could
be considered a failure, since only 17 species have been delisted due to recovery, to
date.8 Nine species have become extinct since their listing, and 16 have been delisted
due to improved data.9 In the former case, some of the 9 species now believed
extinct were originally listed to protect any last remaining few that might have been
alive at the time of listing. 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 re-discovered 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.
Even so, since some scientific studies demonstrated that most species are listed
only once they are very depleted (e.g., median population of 407 animals for
endangered vertebrates according to one study), another measure of effectiveness
might be the number of species that have stabilized or increased their populations,
even if the species is not actually delisted. If this is the standard, the ESA could be
considered a success, since a large number (41% of listed species according to one
study) have improved or stabilized their population levels. 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 the species are still
rare.10 One could also ask what species might have become extinct if there were no
ESA. The authors are unaware of comprehensive studies regarding the likely status
of rare species were there no ESA, but for species such as spotted owls, salmon,
Florida panthers, and plants of very narrow ranges, it seems likely that their numbers
would be (at best) far fewer if ESA did not exist.
Leading Causes of Extinction
Until recent decades, the focus of the extinction debate was on losses due to
over-exploitation, generally through hunting, trapping, or fishing. The poster species
of the debate were passenger pigeons, tigers, wolves, and other well-known animals.
But during the 20th century, a shift of focus and probably of fact occurred. The vast
majority of species, including those for which direct taking was probably an early
factor in their decline, are generally also at risk due to habitat loss. Habitats reduced
now to a small fraction of their former extent include tall-grass prairie, fresh and salt
water wetlands, old growth forests of most types, free-flowing rivers, coral reefs,
undisturbed sandy beaches, and others.
8 See [http://ecos.fws.gov/tess_public/DelistingReport.do] to obtain updated information.
9 Ibid.
10 See CRS Report 98-32 ENR, Endangered Species Act List Revisions: A Summary of
Delisting and Downlisting.
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Another high-ranking factor in the demise of many species is the introduction
of non-native species. The non-native (invasive) species can be disease vectors or
parasites (e.g., avian malaria in Hawaii, or Asian long-horned beetles in North
America), predators (brown tree snakes in Guam and Hawaii), or competitors (e.g.,
barred owls in the Pacific Northwest). The gradual homogenization of the world’s
flora and fauna has led to a demise of many species.11
Is Extinction Normal?
If extinction is normal, some argue that there is no need for the government to
intervene to halt this natural process. But is it normal? Geological evidence shows
that the vast majority of species that have ever lived on Earth are now extinct — an
observation uncontested by paleontologists. However, many scientists are concerned
that the current rate of extinction exceeds background extinction rates over time.12
But calculating current rates of extinction, much less making comparisons with the
geologic past, is extremely difficult. Current estimates of total species range from
3.5 million to 100 million, with 10-30 million being commonly accepted numbers.
If scientists are unsure of how many species exist, it is naturally difficult to estimate
how fast they are going extinct, and whether current extinction rates exceed
background extinction rates. Consequently, scientists use very conservative
assumptions to make these estimates. The resulting extinction rates (17,000 species
per year being a typical estimate) still seem astonishingly large, in part because
laymen are generally unaware of the huge number of species in groups to which
many people pay little or no attention (e.g., beetles, marine invertebrates, fish), and
the large number of species estimated on Earth. How do these compare to
background rates?
Widely diverse methods all suggest that current rates of extinction exceed
background rates. Normal rates are thought to be from 1 to 10 species per every 10
million species per year. (That is, if there are 20 million species now, background
levels would be about 2 to 20 species extinctions per year.) Common estimates of
current extinction rates range from 100 to 10,000 times such background rates —
roughly comparable to the five great episodes of extinction in the geologic past.
Critics most frequently question these calculations by stressing uncertainties, rather
than citing specific factual errors. This criticism is not surprising, since each step in
these calculations contains uncertainties (e.g., estimating the number of existing
species). Most biologists counter by noting that similar numbers are generated in
studies of widely different groups by a variety of scientists using different methods.
Robust results (i.e., similar results from the testing of a hypothesis in a variety of
ways) are usually considered scientifically sound.
11 See CRS Report RL30123, Harmful Non-Native Species: Issues for Congress.
12 Over the hundreds of millions of years of life on earth, extinction rates have varied, with
five periods of exceptionally high rates being well-recognized. The most famous periods
are the mass extinctions at the end of the Age of Dinosaurs (Cretaceous Period), about 60
million years ago, and the even more massive die-offs at the end of the Permian Period,
about 220 million years ago, when about 52% of the groups of marine species became
extinct. In between each of these five events, extinctions continued at more moderate,
background levels.
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Once extinct, a species can never be revived. But some might take comfort in
a return to an equal number of species, even if those species are different. Evolution
continues, even in the face of high extinction rates, so perhaps new species will
evolve that are better adapted to new conditions. If so, how long would such a
“recovery” take? Examining the geologic record after major extinction episodes,
some scientists estimate that recovery to approximately equal numbers of (different)
species took up to 25 million years for the most severe extinction events. Thus, if the
current extinction rate and recovery rate are comparable to past rates, the return to
species numbers of the pre-historic era would take several million years.
Major Provisions of Current Law: Domestic
The modern ESA was passed in 1973, but was preceded by simpler acts in 1966
and 1969. It has been amended on numerous occasions since then: 1976, 1977, 1978,
1979, 1980, 1982, and 1988. The following are brief summaries of the major
domestic provisions of the ESA in the order they appear in the U.S. Code. Several
major issues are discussed in more detail later in this report.
Endangered and Threatened Species
An endangered species is defined as “any species which is in danger of
extinction throughout all or a significant portion of its range....” A threatened species
is defined as “any species which is likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its range.” The ESA does
not rely on a numerical standard: such a standard would not reflect the wide variety
of many species’ biology. (For example, a population of 10,000 butterflies, all
confined to one mountaintop, would clearly be at greater risk than 10,000 butterflies
scattered over thousands of square miles.) The protection of the ESA extends to all
species and subspecies of animals (not just birds and mammals), although for
vertebrates, further protection can be given for distinct population segments within
a species, and not just the species as a whole. More limited protection is available
for plant species under the ESA.13 There is currently no protection afforded under
the ESA for organisms (e.g., Eubacteria, Archaea, viruses) considered neither animal
nor plant.
“Take”
The term “take” under the ESA means “to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”14
(Harassment and harm are further defined in regulation at 50 C.F.R. §17.3.) Taking
is prohibited under 16 U.S.C. §1538. There has been controversy over the extent to
which the prohibition on taking may include habitat modification. A 1995 Supreme
13 16 U.S.C. §1532.
14 16 U.S.C. §1532.
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Court decision (Sweet Home)15 held that the inclusion of significant habitat
modification was a reasonable interpretation of the term “harm” in the law.
FWS and NMFS
The Secretary of the Interior manages and administers most listed species
through FWS. Marine species, including some marine mammals, and anadromous
fish are the responsibility of the Secretary of Commerce, acting through NMFS. The
law assigns the major role to the Secretary of the Interior (all references to
“Secretary” below are to the Secretary of the Interior unless otherwise stated) and
provides in detail for the relationship of the two Secretaries and their respective
powers.16
Listings
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 relevant information. At this point, the Secretary may not consider the
economic effects that listing may have on the area where the species occurs. This is
the only place in the ESA where economic considerations are expressly forbidden;
such considerations may enter in a later stage.17 Economic factors cannot be taken
into account at this stage, because Congress directed that listing be fundamentally a
scientific question: is the continued existence of the species threatened or
endangered? Through the 1982 amendments particularly, Congress clearly intended
to separate this scientific question from subsequent decisions on appropriate
protection. This is evident upon comparing 16 U.S.C. §1533(b) with §1533(f) in this
regard.
Candidate Species
In the interval between a proposal and a listing decision, the Secretary must
monitor the status of these “candidate” species and, if any emergency poses a
significant risk to the well-being of the species, promptly list them.18 Some steps in
the normal listing process may be skipped for emergency listings. Federal agencies
must confer with the appropriate Secretary on actions likely to jeopardize the
15 Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995). See CRS
Report 95-778 A, Habitat Modification and the Endangered Species Act: The Sweet Home
Decision.
16 16 U.S.C. §1533.
17 See CRS Report RL30792, The Endangered Species Act: Consideration of Economic
Factors, for an analysis of when the ESA does allow consideration of such factors.
18 16 U.S.C. §1533(b)(3)(C)(iii).
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continued existence of candidate species, but need not limit commitments of
resources.19 As of September 25, 2006, there were 279 candidate species.20
Delisting and Downlisting
The processes for delisting or downlisting a species from the Lists of
Endangered and Threatened Wildlife and Plants are the same as the processes for
listing.21 The Secretary of the Interior may initiate a change in the status of listed
species. Alternatively, after receiving a substantive petition for any change in listing
status, the Secretary is to review the species’ status. The determination to delist,
downlist, or uplist a species must be made “solely on the basis of the best scientific
and commercial data available”22 and “without reference to possible economic or
other impacts.”23 FWS regulations also state that, at least once every five years, the
Director review each listed species to determine whether it should be removed from
the list (delisted), changed from endangered to threatened (downlisted), or changed
from threatened to endangered (uplisted).24
Critical Habitat
When a species is listed, the Secretary must also designate critical habitat (either
where the species is found or, if it is not found there, where there are features
essential to its conservation).25 If the publication of this information is not “prudent”
because it would harm the species (e.g., by encouraging vandals or collectors), the
Secretary may choose not to designate critical habitat. The Secretary may also
postpone designation for as long as one year if the information is not determinable.
As of September 25, 2006, critical habitat had been designated for 476 listed
species.26 Any area, whether or not federally owned, may be designated as critical
habitat, but private land is only affected by critical habitat designation if some federal
action (e.g., license, loan, permit) is also involved. Federal agencies must avoid
“destruction or adverse modification” of critical habitat, either through their direct
action or activities that they approve or fund.27
19 16 U.S.C. §1536(a)(4).
20 For updated information, see [http://ecos.fws.gov/tess_public/SpeciesReport.do?listing
Type=C].
21 For more information on this topic, see CRS Report 98-32 ENR, Endangered Species List
Revisions: A Summary of Delisting and Downlisting.
22 16 U.S.C. §1533(b)(1)(A).
23 50 C.F.R. §424.11(b).
24 50 C.F.R. §424.21
25 16 U.S.C. §1533(a)(3) and (b)(2).
26 See [http://ecos.fws.gov/tess_public/CriticalHabitat.do?listings=0&nmfs=1] for updated
information.
27 16 U.S.C. §1536(a)(2).
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Recovery Plans
The appropriate Secretary must develop recovery plans for the conservation and
survival of listed species.28 Recovery plans to date tend to cover birds and mammals,
but a 1988 ESA amendment prohibits the Secretary from favoring particular
taxonomic groups. The ESA and its regulations provide little detail on the
requirements for recovery plans, nor are these plans binding on federal agencies or
others, and the essentially hortatory nature of these plans has been widely criticized.
As of September 25, 2006, recovery plans had been completed for 1,070 U.S.
species.29
Land Acquisition
Land may be acquired to conserve (recover) endangered and threatened species,
and money from the Land and Water Conservation Fund may be appropriated for this
acquisition.30 In FY2005, a total of 1,655 acres were acquired by FWS for the
National Wildlife Refuge System under ESA authority.
Cooperation with States
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.31 If
there is a cooperative agreement, the states may receive federal funds to implement
the program, but the states must normally provide a minimum 25% matching amount.
The 1988 ESA amendments created a fund to provide for the state grants. While the
authorized size of the fund is determined according to a formula, money from the
fund still requires annual appropriation.32 For FY2005, a total of almost $78 million
was provided to states and territories for cooperative activities, including land
acquisition and planning assistance. For FY2006, about $77.5 million was enacted
for these purposes.
Consultation
Federal agencies must ensure that their actions are “not likely to jeopardize the
continued existence” of any endangered or threatened species, nor to adversely
modify critical habitat.33 If federal actions or actions of non-federal parties that
require a federal approval, permit, or funding might affect a listed species, the federal
28 16 U.S.C. §1533(f).
29 See [http://ecos.fws.gov/tess_public/Boxscore.do] for updated information.
30 16 U.S.C. §1534.
31 16 U.S.C. §1535
32 16 U.S.C. §1535(i).
33 16 U.S.C. §1535(a).
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action agencies must complete a biological assessment.34 To be sure of the effects
of their actions, the action agency must consult with the appropriate Secretary.
“Action” includes any activity authorized, funded, or carried out by a federal agency,
including permits and licenses. Pending completion of the consultation process,
agencies may not make irretrievable commitments of resources that would foreclose
any of these alternatives. If the appropriate Secretary finds that an action would
jeopardize a species or adversely modify critical habitat, the Secretary must suggest
reasonable and prudent alternatives that would avoid harm to the species. If no
reasonable and prudent alternatives can be devised to avoid the jeopardy, the agency
has three choices: (1) choose not to proceed with the action; (2) proceed with the
action at the risk of penalties; or (3) apply for a formal exemption for the action.35
Exemptions
A federal agency, an applicant or permittee, or the governor of a state in which
the action in question would occur may apply for an exemption that allows the action
to go forward without penalties. Exemptions are only available for actions (e.g.,
timber sales), not for species (e.g., spotted owls). A high-level Endangered Species
Committee of six specified federal officials and a representative of each affected state
(commonly called the “God Squad”) decides whether to allow the action to proceed
despite future harm to a species; at least five votes are required to pass an exemption.
The law includes extensive rules and deadlines to be followed in applying for such
an exemption and some stringent rules for the Committee in deciding whether to
grant an exemption. The Committee must grant an exemption if the Secretary of
Defense determines that an exemption is necessary for national security.36 In addition
and under specified circumstances, the President may determine whether to exempt
a project for the repair or replacement of facilities in declared disaster areas. See a
separate discussion of the complex exemption process and its history, below, in the
Appendix.37
Permits for Non-Federal Actions
For actions without a federal nexus, such as a loan or permit, the Secretary may
issue permits to allow “incidental take” of species for otherwise lawful actions.38 The
applicant for an incidental take permit must submit a habitat conservation plan (HCP)
that shows the likely impact, the steps to minimize and mitigate the impact, the
funding for the mitigation, the alternatives that were considered and rejected, and any
other measures that the Secretary may require. Secretary Babbitt greatly expanded
34 16 U.S.C. §1536(c).
35 16 U.S.C. §1536(a).
36 16 U.S.C. §1536(e)-(p).
37 Also see CRS Report 90-242 ENR, Endangered Species Act: The Listing and Exemption
Processes. A copy of this archived report can be obtained, on request, from Lynne Corn.
38 Incidental take occurs when ESA-listed species are harassed, harmed, pursued, hunted,
shot, wounded, killed, trapped, captured, or collected incidently during activities done
deliberately but for a lawful purpose other than the objective of taking these listed species.
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use of this section during the Clinton Administration, and an agency handbook
provides for streamlined procedures for activities with minimal impacts.39
Other Provisions
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 an endangered species that were
owned before the law went into effect; and specify rules for establishing experimental
populations. (Provisions of the ESA referring to international activities are discussed
below.)
Prohibitions and Penalties
The ESA prohibits certain actions, specifies criminal and civil penalties, and
provides for citizens’ suits to enforce certain aspects of the ESA.40 The citizen suit
provisions have been a driving force in the ESA’s history, and often have been used
to force reluctant agencies to provide for species conservation that might otherwise
have been neglected.
Major Provisions of Current Law: International
For the United States, the ESA implements the Convention on International
Trade in Endangered Species of Wild Fauna and Flora (“CITES”), signed by the
United States on March 3, 1973;41 and the Convention on Nature Protection and
Wildlife Preservation in the Western Hemisphere (the “Western Hemisphere
Convention”)42 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,43 rather than two. In contrast to the ESA,
CITES focuses exclusively on trade, and does not consider or attempt to control
habitat loss. The following are the major international provisions of the ESA.
39 16 U.S.C. §1539.
40 16 U.S.C. §§1538 and 1540.
41 TIAS 8249. See CRS Report RL32751, The Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES): Background and Issues.
42 50 Stat. 1354; TS 981.
43 CITES arranges protected species in 3 Appendices. Appendix I includes species
threatened with extinction, and for which trade is permitted only in exceptional
circumstances. Appendix II includes species not necessarily threatened with extinction, but
for which trade must be controlled to avoid exploitation incompatible with their survival.
Appendix III contains species that are protected in at least one country, which has asked
other CITES Parties for assistance in controlling the trade.
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Financial Assistance
The Secretary may use foreign currencies (available under 7 U.S.C. §1691, the
Food for Peace program) to provide financial assistance to other countries for
conserving endangered species. (As a practical matter, little money is currently
available under this provision.) The ESA also authorizes appropriations for this
purpose.44
Scientific Authority/CITES
The ESA designates the Interior Secretary as the Endangered Species Scientific
Authority (ESSA) under CITES. As the ESSA, the Secretary must determine that
export from the United States and import from other countries of living or dead
organisms, or their products, will not harm the species in question. The Secretary has
authority to enforce these determinations. The Secretary is required to base export
determinations upon “the best available biological information,” although population
estimates are not required. Certain other responsibilities are also spelled out in
CITES.45
Management Authority/CITES
The Interior Secretary is also named as the Management Authority for the
United States under CITES. The Management Authority must assure that specimens
are exported legally, that imported specimens left the country of origin legally, and
that live specimens are shipped under suitable conditions. Certain other
responsibilities are also spelled out in CITES.46
Violations
The ESA makes violations of CITES violations of U.S. law if committed within
the jurisdiction of the United States.47
Imports/Exports
The ESA requires importers and exporters of controlled products to use certain
ports and provides for exemptions for scientific purposes and for programs intended
to assist the recovery of listed species. There are also certain exemptions for Alaska
Natives and for products owned before December 28, 1973, including scrimshaw
(carved ivory).48
44 16 U.S.C. §§1537 and 1542.
45 16 U.S.C. §§1537-1538.
46 16 U.S.C. §1537.
47 16 U.S.C. §1538.
48 16 U.S.C. §§1538-1539.
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Particular Species
The 1988 ESA amendments (Title II of P.L. 100-478; 16 U.S.C. §§4201 et seq.)
created a major program for the conservation of African elephants. In 1994,
Congress enacted a program for rhinoceros and tigers (P.L. 103-391; 16 U.S.C.
§§5301 et seq.). In 1997, a program for Asian elephants was established (P.L. 105-
96; 16 U.S.C. §§4261 et seq.). In 2000, a program for great apes was added (P.L.
106-411; 16 U.S.C. §§6301 et seq.). In 2004, a program for marine turtles was added
(P.L. 108-266; 16 U.S.C. §§6601 et seq.).
Major Elements of the ESA:
Listing, Critical Habitat, Consultation, Exemption
Because the listing of species, the designation of critical habitat, and the
consultation and exemption processes are such important and controversial aspects
of the ESA, each of these components is discussed in greater detail in this portion of
the report.
Listing
Bases for Listings. As discussed above, the listing of a species under the
ESA results in greater protection for the species, limitations on activities that might
affect that species, and penalties for “taking” individuals of a listed species.
Because the ESA defines species as a species, a subspecies, or, — for
vertebrates only — a population,49 there is some flexibility as to how to provide
different levels of protection to less than a whole species. The listing of a species
triggers the duty for federal agencies and applicants for federal permits,
authorizations, or funding to consult with the Secretary of the Interior (in actual
practice, FWS) or the Secretary of Commerce (NMFS) as to reasonable and prudent
alternatives to actions that would jeopardize a species or adversely modify its critical
habitat.50 Listing also results in prohibitions or limitations on certain actions if doing
the actions would “take” a listed species, and provides penalties for such takes.
The determination of whether a species should be listed as endangered or
threatened must be based on several scientific factors related to a species and threats
to its continuance. The ESA expressly states that listing determinations are to be
made “solely on the basis of the best scientific and commercial data available.”51 The
49 16 U.S.C. §1532(16).
50 16 U.S.C. §1536(a) and (b).
51 16 U.S.C. §1533(a)(1) states that the Secretary by regulation shall “determine whether any
species is an endangered species or a threatened species because of any of the following
factors:
“(A) the present or threatened destruction, modification, or curtailment of its habitat
or range; (B) overutilization for commercial, recreational, scientific, or educational
(continued...)
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word “solely” was added in the 1982 amendments to the ESA52 to clarify that the
determination of endangered or threatened status was intended to be made without
reference to the economic impacts such a determination might have. Observers have
compared the decision of whether to list a species to diagnosing whether a patient has
cancer: the diagnosis should be a strictly scientific decision, but other factors can be
considered in deciding how to treat the cancer. In discussing the addition of the word
“solely,” a committee report stated:
... The principal purpose of the amendments to Section 4 is to ensure that
decisions pertaining to the listing and delisting of species are based solely upon
biological criteria and to prevent non-biological considerations from affecting
such decisions. To accomplish this and other purposes, Section 4(a) is amended
in several instances.
Section 4(b) of the Act is amended in several instances by Section 1(a)(2) of
H.R. 6133. First, the legislation requires that the Secretary base his
determinations regarding the listing or delisting of species “solely” on the basis
of the best scientific and commercial data available to him. The addition of the
word “solely” is intended to remove from the process of the listing or delisting
of species any factor not related to the biological status of the species. The
Committee strongly believes that economic considerations have no relevance to
determinations regarding the status of species and intends that the economic
analysis requirements of Executive Order 12291, and such statutes as the
Regulatory Flexibility Act and the Paperwork Reduction Act not apply. The
committee notes, and specifically rejects, the characterization of this language
by the Department of the Interior as maintaining the status quo and continuing
to allow the Secretary to apply Executive Order 12291 and other statutes in
evaluating alternatives to listing. The only alternatives involved in the listing of
species are whether the species should be listed as endangered or threatened or
not listed at all. Applying economic criteria to the analysis of these alternatives
and to any phase of the species listing process is applying economics to the
determinations made under Section 4 of the Act and is specifically rejected by
the inclusion of the word “solely” in this legislation.
Section 4(b) of the Act, as amended, provides that listings shall be based solely
on the basis of the best “scientific and commercial data” available. The
Committee did not change this information standard because of its interpretation
of the word “commercial” to allow the use of trade data. Retention of the word
51 (...continued)
purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms;
or (E) other natural or manmade factors affecting its continued existence.”
16 U.S.C. §1533(b)(1)(A) states: “The Secretary shall make determinations required
by subsection (a)(1) of this section solely on the basis of the best scientific and commercial
data available to him after conducting a review of the status of the species and after taking
into account those efforts, if any, being made by any State or foreign nation, or any political
subdivision of a State or foreign nation, to protect such species, whether by predator control,
protection of habitat and food supply, or other conservation practices, within any area under
its jurisdiction, or on the high seas.”
52 P.L. 97-304, 96 Stat. 1411.
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“commercial” is not intended, in any way, to authorize the use of economic
considerations in the process of listing a species.53
The report also explains that “commercial data” refers to trade data, and is not
meant to make economic considerations a part of the listing decision.
The conference report confirms that it was the intent of both chambers that
economic factors not play a role in the designation and listing of species for
protection:
Section 2 of the Conference substitute amends section 4 of the Act in several
ways. The principal purpose of these amendments is to ensure that decisions in
every phase of the process pertaining to the listing or delisting of species are
based solely upon biological criteria and to prevent non-biological considerations
from affecting such decisions.54
The Committee of Conference (hereinafter the Committee) adopted the House
language which requires the Secretary to base determinations regarding the
listing or delisting of species “solely” on the basis of the best scientific and
commercial date available to him. As noted in the House Report, economic
considerations have no relevance to determinations regarding the status of
species and the economic analysis requirements of Executive Order 12291, and
such statutes as the Regulatory Flexibility Act and the Paperwork Reduction Act,
will not apply to any phase of the listing process. The standards in the Act
relating to the designation of critical habitat remain unchanged. The requirement
that the Secretary consider for listing those species that states or foreign nations
have designated or identified as in need of protection also remains unchanged.
The Committee adopted, with modifications, the Senate amendments which
combined and rewrote section 4(b) and (f) of the Act to streamline the listing
process by reducing the time periods for rulemaking, consolidating public
meeting and hearing requirements and establishing virtually identical procedures
for the listing and delisting of species and for the designation of critical habitat.55
In summary, the ESA makes clear that whether a species is endangered or
threatened is a scientific question in which economic factors must not play a part.
Once this determination is made, economics then may be considered in analyzing and
taking other actions such as designating critical habitat or developing recovery plans.
Nothing in the ESA prevents choosing conservation methods that will lower costs to
society, industry, or landowners, as long as the chosen methods still achieve
conservation goals.
Pre-Listing Activities. The question may arise as to what the responsibilities
of the federal government are toward a species that is proposed for listing but has not
yet been listed. This question could be important because there may be a significant
time between the proposal for listing and the actual listing, during which time a
53 H.Rept. 97-567, at 19-20.
54 H.Rept. 97-835, 19.
55 Ibid., at 20.
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federal agency could be faced with decisions on contracts and management actions
of various types. Under current law, an agency must “confer” with the appropriate
Secretary on any agency action that is likely to jeopardize the continued existence of
any species proposed to be listed or to destroy or adversely modify critical habitat
proposed to be designated for such species.56 The implementing regulations state that
the conference is designed to assist the federal agency and an applicant in identifying
and resolving potential conflicts at an early stage in the planning process.57
The conference process that applies to species proposed for listing is distinct
from the consultation process that applies to listed species. The conference is
intended to be less formal, and to permit FWS or NMFS to advise an agency on ways
to minimize or avoid adverse effects. A federal agency has to follow more formal
procedures and provide more complete documentation once a species is listed. The
agency may choose to follow the more complete and formal process even at the
proposed listing stage to avoid duplication of effort later.58
The ESA states that the conference stage does not require a limitation on the
irreversible or irretrievable commitment of resources by agency action which would
foreclose reasonable and prudent alternative measures.59 Once a species is listed, an
agency will have definite responsibilities, and an agency might consider it prudent
at the proposed listing stage both to avoid harm to a precarious species and to avoid
possible liability for compensation arising from agency actions creating private rights
which later cannot be exercised. An agency might, for example, choose to avoid
holding timber sales in an area containing a proposed species. The relevant Secretary
must monitor candidate species and prevent a significant risk to the well being of any
such species.
Listing: Endangered vs. Threatened. A species may be designated as
either endangered or threatened, depending on the severity of its decline and threats
to its continued survival. The prohibitions and penalties of the ESA apply primarily
to those species listed as endangered. Under § 4(d) of the ESA, the Secretary may
promulgate special regulations to address the plight of species listed as threatened.
Protections and recovery measures for a particular threatened species can be tailored
to particular situations, as was done, for example, with respect to the northern spotted
owl. Another regulation also affords threatened species for which a special rule has
not been promulgated the same protections as endangered species.60
Designation of Critical Habitat
Given FWS’s stated position (see below), the importance that the environmental
community attaches to critical habitat (especially in some specific cases) and the
56 16 U.S.C. §1536(a)(4).
57 50 C.F.R. §402.10.
58 Ibid.
59 16 U.S.C. §1536(a)(4).
60 50 C.F.R. §17.31.
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distress its designation causes among many landowners, this issue has been
controversial.
In contrast to the listing process in which economic factors are not to play a part,
economic factors expressly are a part of designating critical habitat for species.
Concurrently with determining a species to be endangered or threatened, the
Secretary “to the maximum extent prudent and determinable”61 is to designate the
critical habitat of the species. The reference to the designation of critical habitat
being “prudent” reflects the need to consider whether designating habitat would harm
the species, for example by identifying areas that could be damaged by specimen
collecting. If the facts relevant to the designation of critical habitat are not yet
“determinable,” the Secretary may postpone habitat designation for an additional
year. Eventually, habitat is to be designated to the maximum extent it is prudent to
do so.62
If the Secretary designates critical habitat, the Secretary must do so
on the basis of the best scientific data available and after taking into
consideration the economic impact, and any other relevant impact, of specifying
any particular area as critical habitat. The Secretary may exclude any area from
critical habitat if he determines that the benefits of such exclusion outweigh the
benefits of specifying such area as part of the critical habitat, unless he
determines, based on the best scientific and commercial data available, that the
failure to designate such area as critical habitat will result in the extinction of the
species concerned.63
Therefore, although economic factors are not to be considered in the listing of
a species as endangered or threatened, economic factors are considered in the
designation of critical habitat, and some habitat areas may be excluded from
designation based on such concerns, unless the failure to designate habitat would
result in the extinction of the species.
Although avoiding adverse modification of critical habitat is an express
obligation only for federal agencies and actions, it is frequently misunderstood by the
public as the major restriction on a private landowner’s authority to manage land.
The bulk of any restrictions on use of private land come primarily from the ESA’s
prohibition on taking of listed species, and only occasionally are they due to any
additional strictures resulting from designated critical habitat.64
Both the Clinton and George W. Bush Administrations have supported
restrictions on their own ability to designate critical habitat under the ESA (e.g.,
61 16 U.S.C. §1533(a)(3).
62 16 U.S.C. §1533(b)(6)(C).
63 16 U.S.C. §1533(b)(2).
64 See CRS Report RS20263, The Role of Designation of Critical Habitat under the
Endangered Species Act.
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proposed restrictions under the appropriations process).65 In an announcement on
October 22, 1999, FWS placed designation of critical habitat at the lowest priority
in its listing budget, and stated that it could not comply with all of the demands of the
ESA under current budget constraints. Conservation groups saw a contradiction
between that claim, and the agency’s repeated failure to request increased funds for
listing, together with requests that Congress place a special cap on funding for
designation of critical habitat.66
FWS has designated critical habitat for 162 of the 1,262 listed domestic species.
The agency has been sued frequently for its failure to designate critical habitat and
consistently loses such suits. In the agency’s view, critical habitat offers little
protection for a species beyond that already available under the listing process, and
thus the expense of designation, combined with the small margin of additional
conservation benefit, make critical habitat requirements a poor use of scarce
budgetary resources, especially if the public views critical habitat as the major
regulatory impact of the ESA, rather than as a supplement to the ESA’s prohibition
on “taking” a listed species.67 According to FWS, critical habitat 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 in which new populations may be re-introduced. In the same notice
soliciting public comment, FWS proposed to “develop policy or guidance and/or
revise regulations, if necessary, to clarify the role of habitat in endangered species
conservation.”68 The notice reflects the agency’s longstanding disaffection for this
provision of the law and its view that its conservation benefit is low compared to its
cost.
These agency assertions and conclusions rest on an agency regulation that fails
to consider the role of critical habitat in the recovery of species, rather than its mere
survival, and a court has now found the FWS interpretation to be an incorrect
interpretation of the statute.69 If the agency interpretation is changed to more closely
reflect the statute, the role of critical habitat arguably would be more meaningful in
practice.
65 For the current status on appropriations restrictions, see CRS Report RL33468, The
Endangered Species Act (ESA) in the 109th Congress: Conflicting Values and Difficult
Choices.
66 See, for example, Robert Wiygul and Heather Weiner, “Critical Habitat Destruction,”
Environmental Forum, vol. 16, no. 6 (May/June 1999): 12-21.
67 On May 27, 1999, FWS Director Jamie Clark testified: “... under Section 7, Federal
agencies already consult with the Service on activities affecting listed species. In essence,
these two processes [agency protection of listed species and of designated critical habitat]
often are identical, making critical habitat designation a redundant expenditure of
conservation resources.” Senate Committee on Environment and Public Works, S. Hrg. 106-
437 on S. 1100.
68 64 Federal Register 31871-31874 (June 14, 1999).
69 Sierra Club v. U.S. Fish and Wildlife Service, 245 F. 3d 434 (5th Cir. 2001).
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Post-Listing Activities/Consultation
Under §7 of the ESA,70 federal agencies are required to consult with the
Secretary about proposed actions that might affect a listed species; to use their
authorities in furtherance of the ESA; and to insure that any action authorized,
funded, or carried out by the agency is not likely to jeopardize the continued
existence of any endangered or threatened species, or to destroy or adversely modify
critical habitat unless the agency has been granted an exemption under the ESA.71
Consultation is usually begun at the request of the action agency, but may be initiated
at the request of a FWS Regional Director or NMFS’s Assistant Administrator for
Fisheries.72
Science plays an important role in the consultation process because the
Secretary is to use the “best scientific and commercial data available” to ascertain if
a listed species might be present in the area of a proposed agency action.73 If so, the
action agency is to prepare a “biological assessment” to explore whether a proposed
action might jeopardize a listed species or its critical habitat. This assessment also
is to be based on “the best scientific and commercial data available.”74 Consultation
must also be initiated in connection with private lands if an applicant for (or recipient
of) federal funding, permit, or license has reason to believe that a listed species may
be present in the area affected by a project and implementation of the action will
likely affect a listed species.75
The relevant Secretary generally is to complete consultation within 90 days for
a wholly federal action, unless the Secretary and the federal agency mutually agree
to a longer period (up to 150 days) and reasons are given for the delay.76 A
consultation involving a non-federal party is to be completed within the time agreed
to by the Secretary, the federal agency involved, and the applicant concerned.77
Thereafter, FWS or NMFS will prepare a written statement, known as the
biological opinion, analyzing whether the proposed agency action is likely to
jeopardize the continued existence of a listed species or destroy or adversely modify
critical habitat. The ESA does not expressly state that the biological opinion is to be
based on the “best scientific and commercial data available,” but this arguably is
implied, and is expressly required under the implementing regulations, which require
70 16 U.S.C. §1536.
71 Regulations on consultation are found at 50 C.F.R. Part 402.
72 50 C.F.R. §402.14; and see the definition of Director in §402.02.
73 16 U.S.C. §1536(c). For additional information on the use of science in the ESA process,
see CRS Report RS21500, The Endangered Species Act, “Sound Science,” and the Courts;
and CRS Report RL32992, The Endangered Species Act and “Sound Science.”
74 16 U.S.C. §1536(a)(2).
75 16 U.S.C. §1536(a)(3).
76 16 U.S.C. §1536(b)(1).
77 16 U.S.C. §1536(b)(2).
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that the consulting agency provide “the best scientific and commercial data available
or which can be obtained during the consultation.”78 Such information is to be the
basis of the biological opinion,79 and the biological opinion is to include a summary
of the information on which the opinion is based.80
The biological opinion may conclude that the agency action is not likely to
jeopardize the species, or that it can be modified to avoid jeopardy. If so, FWS or
NMFS may issue a permit that excuses the taking of listed species incidental to the
otherwise lawful activities that are to take place. If the biological opinion concludes
that the proposed action is likely to jeopardize, FWS or NMFS must suggest
reasonable and prudent alternatives to avoid jeopardy and mitigate the impacts of the
action. If this is not possible, then the agency proposing the action must forego the
action, risk incurring penalties under the ESA, or obtain a formal exemption from the
penalties of the ESA as set out below.
Exemptions: A History
The Endangered Species Committee. If the jeopardy that is expected to
result from a proposed agency action cannot be avoided and the agency proposing the
action nonetheless wishes to go ahead with the action, the agency (or the affected
governor(s) or license applicant(s)) may apply for an exemption to allow the action
to go forward. The exemption process is an important way in which economic
factors may be taken into account under the ESA. Because the exemption process
involves convening a cabinet-level committee, there have only been six instances to
date in which the exemption process was initiated. Of these six, one was granted,
one was partially granted, one was denied, and three were dropped (see Appendix).
As originally enacted, the ESA contained an absolute prohibition against
activities detrimental to listed species. When the prospective impoundment of water
behind the nearly completed Tellico dam threatened to eradicate the only known
population of the snail darter (a fish related to perch), the Supreme Court concluded
that the then-current “plain language” of the ESA mandated that the gates of the dam
not be closed:
Concededly, this view of the Act will produce results requiring the sacrifice of
the anticipated benefits of the project and of many millions of dollars in public
funds. But examination of the language, history, and structure of the legislation
under review here indicates beyond doubt that Congress intended endangered
species to be afforded the highest of priorities.81
After this Supreme Court decision, the ESA was amended by P.L. 95-632 to
include a process by which economic impacts could be reviewed and projects
exempted from the restrictions that otherwise would apply. As originally enacted,
78 50 C.F.R. §402.14(d).
79 50 C.F.R. §402.14(g)(8).
80 50 C.F.R. §402.14(h).
81 Tennessee Valley Authority v. Hill, 437 U.S. 153, 174 (1978).
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the exemption process involved recommendations by the Secretary of the Interior,
processing by a review board, and then an application to the Endangered Species
Committee (ESC). In 1982, P.L. 97-304 changed this process to eliminate the review
board. Currently, the reviewing Committee is composed of the Secretary of
Agriculture, the Secretary of the Army, the Chair of the Council of Economic
Advisors, the Administrator of the Environmental Protection Agency, the Secretary
of the Interior (who chairs the ESC), the Administrator of the National Oceanic and
Atmospheric Administration, and one individual from each affected state.82 By
regulation, Committee members from affected states collectively have one vote.83
Eligible Applicants. A federal agency, the governor of a state in which an
agency action will occur, or a permit or license applicant may apply to the Secretary
for an exemption for an agency action.84 How an agency action is structured —
whether, for example, it is a separate action or a region-wide program — could be
relevant to the various findings required under the exemption procedures. The term
“permit or license applicant” is defined in the ESA as a person whose application to
a federal agency for a permit or license has been denied primarily because of ESA
prohibitions applicable to the agency action.85 The regulations do not elaborate on
who is included within this term.86
An exemption application from a federal agency must describe the consultation
process carried out between the head of the federal agency and the Secretary, and
include a statement explaining why the action cannot be altered or modified to
conform with the requirements of the statute. All applications must be submitted to
the Secretary not later than 90 days after completion of the consultation process, or
within 90 days of final agency action if the application involves a federal permit or
license. An application must set out the reasons the applicant considers an
exemption warranted. The Secretary then publishes a notice of receipt of the
application in the Federal Register and notifies the governor of each affected state
(as determined by the Secretary) so that state members can be appointed to the ESC.
The Secretary (acting alone) may deny the application, if the preliminary steps have
not been completed.
To be eligible for an exemption, the federal agency concerned and the
exemption applicant must have carried out the consultation processes required under
§7 of the ESA in good faith. The agency also must have made a reasonable and
responsible effort to develop and fairly consider modifications or reasonable and
prudent alternatives to the proposed action that would not jeopardize the continued
existence of any endangered or threatened species or destroy or adversely modify
critical habitat of a species. In addition, the agency must have conducted required
biological assessments; and, to the extent determinable within the time provided,
82 16 U.S.C. §1536(e).
83 50 C.F.R. §453.05(d).
84 16 U.S.C. §1536(g).
85 16 U.S.C. §1532(12).
86 50 C.F.R. §450.01.
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refrained from making any irreversible or irretrievable commitment of resources that
would foreclose the formulation or implementation of reasonable and prudent
alternatives that would avoid jeopardizing the species and/or adversely modifying its
habitat.87 These qualifying requirements were put in place to insure that the
exemption process is meaningful and that consideration of the issues would not be
preempted by actions already taken. Additional requirements for an application are
contained in the relevant regulations.88
It is important to note that the exemption process begins only after a species is
listed, consultation has occurred, a finding has been made that the agency action is
likely to jeopardize a species, and it is determined that there are no reasonable and
prudent alternatives to the agency action.
Secretarial Review. The Secretary is to determine whether an application is
qualified within 20 days or a time mutually agreeable to the applicant and the
Secretary. Within 140 days of the time the Secretary determines that the applicant
is qualified, the Secretary, in consultation with the other members of the ESC, must
hold a formal hearing on the application and prepare a report. The purpose of the
formal hearing is to collect evidence both favoring and opposing the exemption.89
The Secretary’s report reviews whether the applicant has made any irreversible or
irretrievable commitment of resources; discusses the availability of reasonable and
prudent alternatives and the benefits of each; provides a summary of the evidence
concerning whether the action is in the public interest and is nationally or regionally
significant, and, if so, states why; and outlines appropriate and reasonable mitigation
and enhancement measures which should be considered by the ESC.90
Committee Determination. Within 30 days after receiving the report of the
Secretary, the ESC is to grant or deny an exemption. The ESC shall grant an
exemption for the project or activity if, based on the evidence, the ESC determines
that
(i) there are no reasonable and prudent alternatives to the agency action;
(ii) the benefits of such action clearly outweigh the benefits of alternative courses
of action consistent with conserving the species or its critical habitat, and such
action is in the public interest;
(iii) the action is of regional or national significance; and
(iv) neither the federal agency concerned nor the exemption applicant made any
irreversible or irretrievable commitment of resources prohibited by subsection
(d) of this section [commitments as described above that jeopardize species or
critical habitat].91
87 16 U.S.C. §1536(g).
88 50 C.F.R. §450 et seq.
89 H.Rept. 97-835, at 28.
90 16 U.S.C. §1536(g)(5).
91 16 U.S.C. §1536(h)(1)(A).
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Mitigation. If the ESC grants an exemption, it also must establish reasonable
mitigation and enhancement measures that are “necessary and appropriate to
minimize the adverse effects” of an approved action on the species or critical
habitat.92 The exemption applicant (whether federal agency, governor, or permit or
license applicant) is responsible for carrying out and paying for mitigation.93
The costs of mitigation and enhancement measures specified in an approved
exemption must be included in the overall costs of continuing the proposed action,
and the applicant must report annually to the Council on Environmental Quality on
compliance with mitigation and enhancement measures.94
Special Circumstances. The ESA specifies certain particular instances
when special provisions will apply.
1. Review by the Secretary of State. The ESC cannot grant an exemption
for an agency action if the Secretary of State, after a hearing and a review of the
proposed agency action, certifies in writing that carrying out the action for which an
exemption was sought would violate a treaty or other international obligation of the
United States.95 This provision could enter in if a particular species listed under the
ESA were also protected under treaties, such as the Migratory Bird Treaties to which
the United States is a party. The Secretary of State is to make this determination
within 60 days “of any application made under this section,” a time limit which may
be unrealistic given the longer length of time the Secretary of the Interior has to
prepare the report that will fully describe the agency action to be reviewed by the
Secretary of State.
2. National Security. The Committee is required to grant an exemption if
the Secretary of Defense finds that an exemption is necessary for reasons of national
security.96 We know of no instance on the public record in which this provision has
been used.
3. Domestic Disasters. The President may grant exemptions in certain
cases involving facilities in declared disaster areas. This provision appears to be
written in contemplation of domestic disasters, such as hurricanes.97 The ESA does
not have a general provision that allows the granting of an exemption in other
emergency conditions.98
92 16 U.S.C. §1536(h)(1)(B).
93 16 U.S.C. §1536(l)(1).
94 16 U.S.C. §1536(l)(2).
95 16 U.S.C. §1536(i).
96 16 U.S.C. §1536(j).
97 16 U.S.C. §1536(p).
98 50 C.F.R. §13.4 states that in emergency conditions, the FWS Director “may approve
variations from the requirements of this part [the general permit procedures] when he finds
that any emergency exists and that the proposed variations will not hinder effective
(continued...)
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Duration and Effect of Exemption. An exemption is permanent unless the
Secretary finds that the exemption would result in the extinction of a species that was
not the subject of consultation or was not identified in a biological assessment and
the ESC determines that the exemption should not be permanent.99
The ESA expressly states that the penalties that normally apply to the taking of
an endangered or threatened species do not apply to takings resulting from actions
that are exempted.100
98 (...continued)
administration of [the subchapter on permits], and will not be unlawful.” It is not clear the
extent to which this regulation may provide relief for an agency action that otherwise would
likely need an exemption.
99 16 U.S.C. §1536(h).
100 16 U.S.C. §1536(o).
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Appendix: Exemption Applications
In three instances, an Endangered Species Committee (ESC) reached a decision
on an application for an exemption:
Grayrocks Dam. The Platte River is a major stopover site on the migration
path of whooping cranes, listed under the ESA as an endangered species. FWS
determined that the construction of the Grayrocks Dam and Reservoir in
Wyoming, along with existing projects in the Platte River Basin, would
jeopardize the downstream habitat of whooping cranes. The Endangered
Species Committee voted (7-0) to grant an exemption for Grayrocks Dam and
Reservoir on January 23, 1979, conditioned on specified mitigation measures
that included maintenance and enhancement of critical whooping crane habitat
on the Platte River. A previous enactment by Congress would have exempted
the project, if the ESC had not reached a decision within a certain time.101
Tellico Dam. The Tellico Dam on the Little Tennessee River was to serve
multiple purposes, but was vigorously opposed by several sectors. After the
snail darter (a fish) was listed as endangered, litigation was filed to stop the
construction of the dam, resulting in the significant case TVA v. Hill, which
contains important language on the ESA and on possible ratification of projects
through appropriations measures. The Tellico situation was also subject to P.L.
95-632 that provided for an expedited ESC process and an automatic
exemption, if the ESC did not reach a decision within a specified time. The
ESC denied an exemption for Tellico (on a 7-0 vote), but Congress enacted an
exemption in P.L. 96-69, and the dam was completed. Subsequently, additional
snail darters were found in a few other locations, and the snail darter was
reclassified as threatened.
Bureau of Land Management Timber Sales. The Bureau of Land
Management, an agency in the Department of the Interior, sought an exemption
for 44 Oregon timber sales in the habitat of the northern spotted owl. In 1992,
the ESC voted (5-2) to grant an exemption for 13 of the sales. Controversy over
the sales and the processes within the Department continued, and the application
was subsequently withdrawn.
In three other instances, there were applications for exemptions, but no ESC
decisions:
Pittston Company Refinery. The Pittston Company applied for an
exemption to build a refinery in Eastport, Maine. Following jeopardy opinions
based on probable effects on threatened bald eagles and endangered right and
humpback whales, the company applied for an exemption, but further action on
this application appears to have been discontinued in 1982.
101 P.L. 95-632.
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Consolidated Grain and Barge Company Docking Area. This
company sought to build a docking area for barges at Mound City, Illinois, on
the Ohio River, an area that was habitat for an endangered mussel. Following
a jeopardy opinion, and a denial of permits by the Army Corps of Engineers, the
company applied for an exemption, but withdrew the application in 1986.
Suwanee River Authority. The consulting engineer of the Suwanee River
Authority applied for an exemption for a project to dredge Alligator Pass in
Suwanee Sound, Florida, part of the habitat for the endangered manatee. The
project had been denied a permit by the Army Corps of Engineers. The
engineer apparently lacked the authority to apply on behalf of the Authority,
which in 1986 refused to ratify his actions and withdrew the application.
Although the engineer attempted to continue the application, the withdrawal
was effective.