Order Code RL33779
The Endangered Species Act (ESA)
in the 110th Congress:
Conflicting Values and Difficult Choices
Updated October 29, 2008
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
Robert Meltz and Kristina Alexander
Legislative Attorneys
American Law Division

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The Endangered Species Act in the 110th Congress:
Conflicting Values and Difficult Choices
Summary
The 110th Congress took limited action to oversee implementation and funding
of the Endangered Species Act (ESA; P.L. 93-205, 16 U.S.C. §§ 1531-1543) and to
consider proposals to amend the act. Major issues in recent years have included the
role of science in decision-making, consultation requirements for federal agencies,
critical habitat (CH) designation and procedures, protection by and incentives for
property owners, and appropriate protection of listed species, among others. In
addition, many have advocated enacting as law some ESA regulations promulgated
during the Clinton Administration.
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 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. ESA may also be
controversial because dwindling species are usually harbingers of broader ecosystem
decline. ESA is considered a primary driver of large-scale ecosystem restoration
issues. The most common cause of species listing is habitat loss.
The authorization for spending under ESA expired on October 1, 1992. The
prohibitions and requirements of ESA remain in force, even in the absence of an
authorization, and funds have been appropriated to implement the administrative
provisions of ESA in each subsequent fiscal year. In the 109th Congress, several
proposals would have reauthorized and extensively amended ESA, but none were
enacted. No legislative proposals have been introduced in the 110th Congress to
reauthorize the ESA.
In the 110th Congress, the Food, Conservation, and Energy Act of 2008, P.L.
110-246, included a provision amending the Internal Revenue Code to permit the
deduction of expenditures for endangered species recovery. On species of
international concern, the 110th Congress enacted P.L. 110-132, reauthorizing the
African Elephant Conservation Act and the Rhinoceros and Tiger Conservation Act
of 1994 through FY2012, and P.L. 110-133, reauthorizing the Asian Elephant
Conservation Act through FY2012. A number of bills introduced in both the House
and Senate to address global climate change include provisions that allocate funds
to the FWS endangered species program and to related funds to assist species
adaptation to climate change. Action is doubtful on a host of other bills introduced
in the 110th Congress.
This report identifies and discusses oversight issues and legislation introduced
in the 110th Congress to address specific concerns related to how ESA is
implemented and how endangered species are managed.

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Contents
Most Recent Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background and Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Major Provisions of Domestic Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Listing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Critical Habitat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Prohibitions and Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Permits and Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Emergencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Recovery Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Land Acquisition and Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Major Provisions of International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Are Species Protection and Restoration Working? . . . . . . . . . . . . . . . . . . . . 9
Issues in the 110th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Critical Habitat Designation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
“Sound Science” and ESA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Information Quality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Court Cases on ESA and Science . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Endangered Species and Climate Change . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Regional Resource Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Klamath River Basin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Pacific Salmon Restoration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Delta Smelt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Counterpart Regulations: Pesticides and Fire Management Projects . . . . . 20
Private Property and Fifth Amendment Takings . . . . . . . . . . . . . . . . . . . . . 21
Additional Legislative Initiatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
FWS Appropriations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
List of Tables
Table 1. Percent Recovery Achieved Versus Time Listed . . . . . . . . . . . . . . . . . 10
Table 2. Funding for FWS Endangered Species and Related Programs,
FY2006-FY2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

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The Endangered Species Act
in the 110th Congress: Conflicting Values
and Difficult Choices
Most Recent Developments
On September 24, 2008, the Senate Committee on Environment and Public
Works reported two bills proposing to expand species eligible for assistance from the
Multinational Species Conservation Fund by creating a Great Cats and Rare Canids
Conservation Fund (H.R. 1464, amended) and a Crane Conservation Fund (H.R.
1771). On September 24, 2008, the House Committee on Natural Resources reported
(amended) H.R. 1497, amending the Lacey Act Amendments of 1981 to extend
protection to plants illegally harvested outside of the United States.
Introduction
Increasing numbers of animal and plant species face possible extinction.
Endangered and threatened species — and the law that protects them, the 1973
Endangered Species Act (ESA, 16 U.S.C. §§ 1531, et seq.) — are controversial, in
part, because dwindling species are often harbingers of resource scarcity. The most
common cause of species’ decline is habitat loss or alteration. Habitat loss occurs
due to development, changes in land management practices, competition from
invasive species, and other factors, nearly all related to economic, political, or social
interests.1
ESA has been among the most contentious environmental laws, because of its
strict substantive provisions, which can affect the use of both federal and nonfederal
lands and resources. Congress faces the issue of how to balance these interests
(which may fall on various sides of any given species controversy) with the
protection of endangered and threatened species and, as stated in ESA, “the
ecosystems upon which endangered species and threatened species depend.” Because
of strong support and strong opposition, ESA has not been reauthorized since the last
authorization expired in 1992. In the 109th Congress, there were several unsuccessful
attempts to enact comprehensive legislation that would have reauthorized the ESA.2
1 For example, see CRS Report RL34326, Apalachicola-Chattahoochee-Flint (ACF)
Drought: Federal Water Management Issues, by Nicole T. Carter, M. Lynne Corn, Amy
Abel, Stan Mark Kaplan, Eugene H. Buck, Cynthia Brougher, and Kristina Alexander.
2 For a review of action by the 109th Congress on ESA, see CRS Report RL33468, The
Endangered Species Act (ESA) in the 109th Congress: Conflicting Values and Difficult
(continued...)

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CRS-2
Consequently, congressional efforts in the 110th Congress have focused on addressing
specific controversial features of ESA and on oversight of concerns such as the
science used for making decisions and designation of critical habitat.
Background and Analysis
Overview
The 1973 ESA (P.L. 93-205, as amended; 16 U.S.C. §§ 1531-1543) was 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 ESA is to protect the
ecosystems of which listed species are a part. Under 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.
Consequently, some populations of chinook, coho, chum, and sockeye salmon in
Washington, Oregon, Idaho, and California have been listed under 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
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.3
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
NOAA Fisheries) in the Department of Commerce’s National Oceanic and
Atmospheric Administration for the remaining marine and anadromous species.4 The
U.S. Geological Survey’s Biological Resources Division conducts research on
species for which FWS has management authority; NMFS conducts research on the
species for which it is responsible.
As of October 20, 2008, a total of 1,183 species of animals and 749 species of
plants were listed as either endangered or threatened under the ESA, of which the
majority (612 species of animals and 746 species of plants) occur in the United States
and its territories; the remainder occur only in other countries.5 Of the 1,358 U.S.
2 (...continued)
Choices, by Eugene H. Buck, M. Lynne Corn, Pervaze A. Sheikh, and Robert Meltz.
3 For additional background, see CRS Report RL31654, The Endangered Species Act: A
Primer, by M. Lynne Corn, Eugene H. Buck, and Pamela Baldwin.
4 For background on ESA programs of the two administering agencies, see FWS programs
at [http://www.fws.gov/endangered/] and NMFS programs at [http://www.nmfs.noaa.gov/
pr/species/].
5 For comparison, the International Union for Conservation of Nature and Natural Resources
(IUCN; World Conservation Union) announced in September 2007 that it considered 16,306
(continued...)

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CRS-3
species, 1,168 (86.0%) are covered in recovery plans.6 Of the U.S. species, 526
(38.7%) have designated critical habitat (CH) in some portion of their range.7
However, species don’t exist in isolation, but evolve and fluctuate in abundance
because of their relationships with other species. Conservationists increasingly are
talking about ecosystems as the units of interest, rather than species. 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, including salmon and spotted owls); and the management of the
Apalachicola Basin in Alabama, Florida, and Georgia (allocation of water among
metropolitan, agricultural, and industrial users along with commercial and
recreational interests, as well as one fish and three mussel 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.8 In deciding whether a
species warrants the protections of 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.9
In addition, FWS and NMFS may identify selected species by adding them to
a list of candidate species that are believed to be at sufficient risk to warrant
5 (...continued)
species to be threatened with extinction — an increase of 188 species since 2006. In
addition, the IUCN identifies 785 species that have become extinct, with an additional 65
species found only in captivity or in cultivation. For more information, see [http://www.
iucn.org/en/news/archive/2007/09/12_pr_redlist.htm].
6 Daily updated statistics are available at [http://ecos.fws.gov/tess_public/Boxscore.do].
7 A list of species with designated CH is available at [http://ecos.fws.gov/tess_public/
CriticalHabitat.do?listings=0&nmfs=1].
8 For a more detailed discussion of the listing process, see [http://www.fws.gov/endangered/
pdfs/listing/listing.pdf] and [http://www.fws.gov/endangered/bulletin/99/11-12/6-9.pdf].
9 For an analysis of when and how 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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CRS-4
protection, but whose protection is precluded by work to protect listed species. As
of October 20, 2008, there were 283 species on the list of candidate species.10
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.11 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 October 20, 2008, FWS had designated CH
for 38.7% of listed domestic species.
As a practical matter, CH has not been designated for most listed species largely
because 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 for the recovery of the species. Yet 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.12 Others have asserted the
value of CH; for example, scientists with the Center for Biological Diversity
published a study in April 2005 concluding that CH designation enhances species
recovery.13 On April 28, 2006, the Keystone Center’s ESA Working Group on
Habitat released a report on habitat protection and ESA.14 One of the conclusions of
participants in this study was that identifying the habitat that species require to
recover is better done in the context of recovery planning, after more rigorous
analysis and deliberation have been completed, rather than at the time of listing.
Although recovery plans are not enforceable, preventing adverse modification of CH
is enforceable.
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 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).
10 The list of candidate species is available at [http://ecos.fws.gov/tess_public/Species
Report.do?listingType=C].
11 For additional background on CH, see CRS Report RS20263, Designation of Critical
Habitat under the Endangered Species Act (ESA), by Pamela Baldwin.
12 Sierra Club v. FWS, 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. FWS, 378 F. 3d 1059 (9th Cir. 2004).
13 See [http://www.biologicaldiversity.org/swcbd/programs/policy/ch/bioscience2005.pdf].
14 Available at [http://www.keystone.org/spp/documents/ESA%20Report%20FINAL%204
%2025%2006%20(2).pdf].

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CRS-5
Prohibitions and Penalties. 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 by 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 including significant habitat modification was
a reasonable interpretation of the term “harm” in ESA.15 ESA provides civil and
criminal penalties for violations.
Permits and Consultation. FWS or NMFS do not initiate the permitting
process — agencies and individuals wishing to avoid ESA violations contact FWS
or NMFS to initiate consultation that may conclude with permit issuance. Proposed
actions that may have adverse impacts on listed species may be permitted in two
ways. First, under Section 7 of 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. This does not apply in those instances where a law
requires a federal agency to take only certain specific actions in order to satisfy the
law, according to a 2007 decision by the U.S. Supreme Court.16 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 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 Section 10 of ESA to allow the
incidental take of species during otherwise lawful actions.17 An applicant for a permit
must submit a habitat conservation plan (HCP) that shows the likely impact of the
planned action; steps taken to minimize and mitigate the impact; funding for the
mitigation; alternatives considered and rejected; and any other measures 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).
15 See CRS Report 95-778, Habitat Modification and the Endangered Species Act: The
Sweet Home Decision, by Pamela Baldwin.
16 National Association of Home Builders v. Defenders of Wildlife, 127 S. Ct. 1258 (2007).
17 For additional background on FWS’s permitting program, see [http://www.fws.gov/
endangered/pdfs/permits.pdf].

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CRS-6
On August 15, 2008, the Administration published regulations allowing federal
action agencies to decide independently whether agency projects might harm ESA-
listed species, eliminating project reviews by FWS and/or NMFS scientists.18 Critics
question this proposal, fearing that it could provide federal agencies, some with little
scientific expertise, with an unacceptable degree of discretion in deciding whether
or not to comply with ESA.19 For additional information, see CRS Report RL34641,
Proposed Changes to Regulations Governing Consultation Under the Endangered
Species Act (ESA), by Kristina Alexander and M. Lynne Corn.
Exemptions. Proponents of a federal action may apply for an exemption from
the prohibition against jeopardy for that action (not for a species). Under ESA, an
Endangered Species Committee (sometimes referred to as 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 committee must grant an exemption if the Secretary of Defense determines
that an exemption is necessary for national security (16 U.S.C. § 1536). The
Department of Defense (DOD) has claimed that requirements under ESA conflict
with its readiness activities, but DOD has not requested any exemptions to date.
Other statutes may provide for waivers of ESA provisions; for example, Section
102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 199620
provides for a waiver of ESA and the National Environmental Policy Act (NEPA) to
the extent the Attorney General determines necessary to ensure expeditious
construction of barriers and roads at borders. The Secretary of Homeland Security
has the authority to waive the ESA (and other laws) “to ensure expeditious
construction of the barriers and roads” at the border.21 Secretary Chertoff invoked
this waiver for different portions of the Mexican border fence in 2005 and two times
in 2007.
Emergencies. 50 C.F.R. Section 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, any hurricane-related federal activities in presidentially declared
disaster areas would trigger the emergency consultation provisions of ESA.
Specifically, for the 2005 Gulf of Mexico hurricanes, FWS stated that restoring “any
infrastructure damaged or lost due to the hurricane back into the original footprint
does not require ESA consultation with the Service.”
Recovery Plans. The appropriate Secretary generally must develop a
recovery plan for the survival and conservation (defined in Section 3(3) of ESA as
“to bring any endangered species or threatened species to the point at which the
18 73 Fed. Reg. 47868-47875 (August 15, 2008).
19 Juliet Eilperin, “Endangered Species Act Changes Give Agencies More Say,” Washington
Post, August 12, 2008, p. A1.
20 Division C of P.L. 104-208; 110 Stat. 3009-554.
21 P.L. 109-13, 119 Stat. 231.

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CRS-7
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).
On July 31, 2008, FWS published guidance on the use of a crediting framework
in carrying out recovery measures, allowing federal agencies to offset adverse effects
on listed species by beneficial actions taken elsewhere.22 Under this guidance,
federal agencies would create conservation “banks” by paying private landowners to
conserve species, allowing federal agencies to offset activities (e.g., military training
exercises, oil and gas exploration and development, federal timber sales) on public
land that could harm species. Critics of this guidance question whether the level of
accountability for and enforcement of actions on private land would protect listed
species comparable to what federal agencies are required to provide on public lands.
Land Acquisition and Cooperation. The federal government may acquire
land to conserve or recover listed species, and 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.
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 ESA went into effect, and specify rules
for establishing experimental populations (16 U.S.C. § 1539).
Major Provisions of International Law
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 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.23 In contrast to ESA, CITES classifies species based
solely on the risk that trade poses to their survival. ESA makes violations of CITES
22 73 Fed. Reg. 44761-44772.
23 For additional information on CITES, see [http://www.cites.org/].

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CRS-8
violations of U.S. law if committed within U.S. jurisdiction (16 U.S.C. § 1538).
ESA also regulates import and export of controlled products and provides some
exceptions.24
Under CITES, the Conference of Parties (COP) convenes every two to three
years. At these meetings, the parties vote on adopting amendments to Appendices
I and II, review the progress of the Convention in meeting its goals, and make
recommendations for improving CITES. The most recent COP was held in June
2007 in The Hague, Netherlands. Several decisions regarding the listing of species
were discussed, including denying a proposal to review restrictions on whales, listing
species of sawfish and European eel, denying listing proposals for some species of
sharks and coral, approving some trade in ivory before a nine-year ban, and
addressing tiger farming and illegal logging. The next COP will be held in Doha,
Qatar, in 2010.
In the 110th Congress, the House Committee on Natural Resources held hearings
on the effects of domestic and international illegal wildlife trade on endangered and
threatened species. International illegal wildlife trade is estimated to be worth more
than $10 billion annually and has been associated with the decline of species, spread
of disease, and proliferation of invasive species, among other things. The United
States is considered one of the largest importers of illegal wildlife and wildlife
products. CITES as well as the Lacey Act are considered two of the primary policy
mechanisms that address the illegal wildlife trade. Some legislative proposals were
introduced in the 110th Congress to address illegal wildlife trade. These measures
centered on establishing a list of acceptable species that could enter the United States
and increasing the enforcement capacity of FWS to address this illegal trade.25
In addition, FWS’s Multinational Species Conservation Fund (MSCF) 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). This fund supports conservation efforts benefitting these species, often
in conjunction with efforts under CITES.26
In the 110th Congress, P.L. 110-132 reauthorized the African Elephant
Conservation Act and the Rhinoceros and Tiger Conservation Act of 1994 through
FY2012, and P.L. 110-133 reauthorized the Asian Elephant Conservation Act
through FY2012. Other bills have been introduced to deal with international
concerns:
24 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.
25 For more information on illegal wildlife trade, see CRS Report RL34395, International
Illegal Trade in Wildlife: Threats and U.S. Policy, by Liana S. Wyler and Pervaze A.
Sheikh.
26 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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CRS-9
! Several bills expand species eligible for assistance from the MSCF
by creating a Great Cats Conservation Fund (H.R. 1913), a Great
Cats and Rare Canids Conservation Fund (H.R. 1464 and S. 1033),
and a Crane Conservation Fund (H.R. 1771 and S. 1048). On
September 6, 2007, the House Natural Resources Subcommittee on
Fisheries, Wildlife, and Oceans held a hearing on H.R. 1913, H.R.
1464, and H.R. 1771. On May 19, 2008, the House Committee on
Natural Resources reported (amended) H.R. 1464 (H.Rept. 110-
657); the House passed this bill (amended) on May 20, 2008. On
September 24, 2008, the Senate Committee on Environment and
Public Works reported (amended) H.R. 1464 (S.Rept. 110-492). On
May 13, 2008, the House Committee on Natural Resources reported
(amended) H.R. 1771 (H.Rept. 110-635); the House passed this bill
(amended) on May 21, 2008. On September 24, 2008, the Senate
Committee on Environment and Public Works reported H.R. 1771
(S.Rept. 110-493).
! H.R. 1497 amends the Lacey Act Amendments of 1981 to extend
protection to plants illegally harvested outside of the United States;
the bill was reported (amended) by the House Committee on Natural
Resources on September 24, 2008 (H.Rept. 110-882).
! H.R. 4455 authorizes the Secretary of the Interior to provide
international wildlife management and conservation programs
through FWS’s Wildlife Without Borders Program; on June 24,
2008, the House Natural Resources Subcommittee on Fisheries,
Wildlife, and Oceans held a hearing on this bill.
! H.R. 5756 reauthorizes the Neotropical Migratory Bird Conservation
Act.
! S.Res. 598 expresses the sense of the Senate regarding the need for
the United States to lead international efforts to assist developing
nations in preventing the extinction of a large portion of the world’s
plant and animal species; this measure was reported by the Senate
Committee on Foreign Relations on September 23, 2008.
! H.R. 6862 reauthorizes the Marine Turtle Conservation Act of 2004
through FY2014.
Are Species Protection and Restoration Working?
The answer to this question depends on what is measured. Since a major goal
of ESA is the recovery of species to the point at which ESA protection is no longer
necessary, this seems a good starting point. In the 25 years since the ESA was
enacted in 1973, 48 U.S. and foreign species or distinct population segments thereof
have been delisted.27 The reasons cited by FWS are (a) recovery (22 species); (b)
extinction (9 species; however, some may have been extinct when listed); and (c)
original data in error (17 species). Recovered species include alligators, Yellowstone
grizzly bear, bald eagle, brown pelican, 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
27 For updated information, see [http://ecos.fws.gov/tess_public/DelistingReport.do].

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CRS-10
quite difficult to prove whether extraordinarily rare species are simply that or, in fact,
are already extinct. For example, the ivory-billed woodpecker, thought by many to
be extinct, was believed to have been rediscovered in a remote area of Arkansas 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 ESA is a failure since only 17 species have been
delisted as recovered.28 Others note that full recoveries are relatively few because the
two principal causes of extinction — habitat loss and invasive non-native species —
continue to increase. 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 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, 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, although these species are still rare.29
On May 17, 2005, the House Committee on Resources released an oversight
report entitled Implementation of the Endangered Species Act of 1973.30 It reviewed
and critiqued various ways that recovery might be measured. One approach is to look
at what proportion of the recovery objectives identified in species recovery plans
have been achieved. Table 1 indicates how recovery has progressed related to the
length of time since species were listed.
Table 1. Percent Recovery Achieved Versus Time Listed
(data as of September 30, 2002)
Recovery Plan
% species listed
% species listed
% species listed
objectives
5 years or less
6-10 years
11+ years
0%-25% recovery
96
94
64
achieved
26%-50% recovery
4
5.5
24
achieved
51%-75% recovery
0
0.25
9
achieved
76%-100% recovery
0
0.25
3
achieved
Source: FWS, Recovery Report to Congress: Fiscal Years 2001-2002, p. 13.
28 Delisted species are identified at [http://ecos.fws.gov/tess_public/DelistingReport.do].
29 See CRS Report 98-32, Endangered Species Act List Revisions: A Summary of Delisting
and Downlisting, by Robert J. Noecker.
30 Available at [http://republicans.resourcescommittee.house.gov/archives/ii00/issues/more/
esa/ESA_Implementation_Report5.17.05.pdf].

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CRS-11
An April 2005 study by the Government Accountability Office (GAO) 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.31 GAO found that FWS does not have a process
to routinely assess funding decisions to ensure that they are appropriate. In 2006,
GAO examined federal efforts to recover 31 selected species.32 GAO determined
that, while many factors affected the recovery of species, recovery plans played an
important role in the recovery of all but one of the species examined. Critics claimed
the GAO study was biased by the selection of species examined.
Issues in the 110th 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. Issues for the
110th Congress may include effects of ESA on private and federal land use,
promotion of species recovery, agency use of scientific information, specific regional
resource conflicts, and other matters. Below are descriptions of some of the issues
that may be considered, either in oversight or legislation.
Critical Habitat Designation
With limited exceptions, 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 FWS and NMFS have misinterpreted and failed
to enforce the current statute. There are also disagreements over the value and timing
of CH designation.33 (See “Critical Habitat,” above.)
Section 15303 of P.L. 110-246, the Food, Conservation, and Energy Act of
2008, amended the Internal Revenue Code to permit the deduction of expenditures
for endangered species recovery. The 110th Congress has considered several
31 U.S. Government Accountability Office, Endangered Species: Fish and Wildlife Service
Generally Focuses Recovery Funding on High-Priority Species, but Needs to Periodically
Assess Its Funding Decisions, GAO-05-211 (April 6, 2005). Available at [http://www.gao.
gov/new.items/d05211.pdf].
32 U.S. Government Accountability Office, Endangered Species: Many Factors Affect the
Length of Time to Recover Select Species, GAO-06-730 (Washington, DC: GPO, September
8, 2006). In this report, GAO acknowledged that results from nonprobability (i.e., non-
random) samples cannot be used to make inferences about a population (i.e., all ESA-listed
species). However, review of the selected species provides valuable, case-level insights into
their progress toward recovery and the role that recovery plans have played in that progress.
33 For details on how legislation in the 109th Congress sought to address this issue, see CRS
Report RL33468, The Endangered Species Act (ESA) in the 109th Congress: Conflicting
Values and Difficult Choices, by Eugene H. Buck, M. Lynne Corn, Pervaze A. Sheikh, and
Robert Meltz.

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CRS-12
proposals to provide compensation to landowners who voluntarily provide habitat to
threatened or endangered species:
! S. 700; H.R. 1422; S. 2223, as reported by the Senate Committee on
Finance on October 24, 2007 (S.Rept. 110-205); Section 204 of S.
2242, as reported on October 25, 2007, by the Senate Committee on
Finance (S.Rept. 110-206); and Section 12204 of H.R. 2419, as
passed by the Senate on December 14, 2007, amend the Internal
Revenue Code to provide a tax credit to individuals who enter into
agreements to protect habitat for endangered and threatened species.
This provision was deleted from H.R. 2419 in conference (H.Rept.
110-627).
! H.R. 1551, H.R. 1600, H.R. 2144, H.R. 2401, S. 919, and S. 1424
establish a priority for protecting and restoring habitat for federally
or state-listed rare, threatened, endangered, and candidate species in
various agricultural conservation programs.
“Sound Science” and ESA
ESA requires that determinations of species status be made “solely on the basis
of the best scientific and commercial data available....”34 In several recent situations,
legal, economic, and social disputes have resulted from actions under ESA.
Examples of these controversies include the Florida panther, Klamath River Basin
suckers and coho salmon, and Sonoran Desert bald eagles.35 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.
ESA does not elaborate on this question, but some assert that, given the
protective purpose of 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. This is the position taken on pages 1-7 of the joint
FWS/NMFS 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
34 16 U.S.C. § 1533(b)(1)(A).
35 See CRS Report RL32992, The Endangered Species Act and “Sound Science,” by Eugene
H. Buck, M. Lynne Corn, and Pamela Baldwin.

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CRS-13
doubt to the species,” with consultation possibly being reinitiated if additional
information becomes available.36 This phrase is drawn from H.Rept. 96-697, p. 12
(1979), which states that the “best information available” language was intended to
allow FWS to issue biological opinions even when information was incomplete,
rather than being forced to issue negative opinions. The report also states that if a
biological opinion is rendered on the basis of inadequate information, the federal
agency proposing an action has the duty to show its actions will not jeopardize a
species and a continuing obligation to make a reasonable effort to develop
information, and that the statutory language “continues to give the benefit of the
doubt to the species.”
In the 110th Congress, the House Committee on Natural Resources held an
oversight hearing on May 9, 2007, on political influence and scientific integrity in
ESA implementation.37 In addition, several bills have been introduced:
! H.Res. 487 expresses the sense of the House recognizing the
contributions of modeling and simulation technology; the House
agreed to this measure on July 16, 2007.
! H.R. 3459 amends ESA to require FWS to publish a summary
statement of the scientific basis for a listing or delisting decision or
the designation of CH.
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, 2002.38 The
Department of the Interior and FWS have both issued additional guidelines that are
available through their websites,39 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.
FWS and NMFS developed an Interagency Cooperative Policy on Information
Standards Under the Endangered Species Act.40 Under this policy, 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
36 Available at [http://www.nmfs.noaa.gov/pr/pdfs/laws/esa_section7_handbook.pdf].
37 For more on this issue, see U.S. Government Accountability Office, Endangered Species
Act Decision Making, GAO-08-688T, May 21, 2008, 66 p.
38 67 Fed. Reg. 8452.
39 For example, see [http://www.fws.gov/stand/standards/process_WWW.html].
40 59 Fed. Reg. 34271, July 1, 1994.

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CRS-14
agencies to implement 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 document, the Interagency Cooperative Policy for
Peer Review in Endangered Species Act Activities,41 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 ESA and Science.42 Courts that have considered the “best
data available” language have held that an agency is not obliged to conduct studies
to obtain missing data,43 but cannot ignore available biological information,44
especially if the ignored information is the most current.45 Nor may an agency treat
one species differently from other similarly situated species,46 nor decline to list a
dwindling species and wait until it is on the brink of extinction in relying on possible
but uncertain future actions of an agency.47 “Best scientific and commercial data
available” is not a standard of absolute certainty, reflecting Congress’s intent that
FWS take conservation measures before a species is conclusively headed for
extinction.48 If 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.”49
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
41 59 Fed. Reg. 34270, July 1, 1994.
42 For more information, see CRS Report RL32992, The Endangered Species Act and
“Sound Science,” by Eugene H. Buck, M. Lynne Corn, Pamela Baldwin, and Kristina
Alexander.
43 Southwest Center for Biological Diversity v. Babbitt, 215 F. 3d 58 (D.C. Cir. 2000).
44 Connor v. Burford, 848 F. 2d 1441 (9th Cir. 1988).
45 Southwest Center for Biological Diversity v. Babbitt, 926 F. Supp. 920 (D.C. Ariz. 1996).
46 Id.
47 Biodiversity Legal Foundation v. Babbitt, 943 F. Supp. 23 (D. D.C. 1996).
48 Defenders of Wildlife v. Babbitt, 958 F. Supp. 670, 679-680 (D. D.C. 1997).
49 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.

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CRS-15
adversely affected.50 In Arizona Cattle Growers Association v. United States Fish
and Wildlife Service,51 the court stated that the evidentiary bar FWS must clear is
very low, but it must at least clear it. In the context of issuing Incidental Take
Permits under Section 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.52
Endangered Species and Climate Change
In the absence of federal regulatory action on climate change, environmental
groups are eyeing use of the Endangered Species Act (among other approaches) as
a means of restricting greenhouse gas emissions. This approach is still in the
embryonic stage. The idea, as spearheaded by the Center for Biological Diversity
(CBD), is to petition FWS and NMFS to list as endangered or threatened various
animals whose habitat is or will be adversely affected by climate change. (CBD has
already done so for several species, including the polar bear.53) Once listed, the
argument would be made that sources of substantial greenhouse gas emissions, such
as coal-fired powerplants, cause an unlawful “take” of these species under ESA
Section 9 by the effect such emissions have, via climate change, on the species’
habitat. This could force negotiation of an incidental take permit for the source with
greenhouse gas-limiting terms and conditions. Note that “take” is defined in the ESA
to include “harm” to a member of a listed species, and “harm,” in turn, is defined by
regulation to include certain “significant habitat modification[s] or degradation[s].”
Additionally, federal agencies proposing to issue permits for the construction or
modification of greenhouse gas sources would be required, the argument runs, to
initiate Section 7 consultation.54
Any effort to address climate change through the ESA will encounter several
obstacles, chief among them whether the causal link between greenhouse gas
emissions and habitat harm is too attenuated to fall within the ESA’s prohibitions and
requirements. The ESA also provides federal agencies with various tools to
minimize ESA/climate change conflicts, such as Section 4(d) “special rules” for
threatened species.
50 See Connor v. Andrus (453 F. Supp. 1037 (W.D. Tex. 1978)) striking down regulations
totally banning duck hunting in an area to protect one listed species of duck.
51 273 F. 3d 1229 (9th Cir. 2001).
52 Pacific Coast Federation of Fishermen’s Associations, Inc. v. NMFS, 265 F.3d 1028, 1034
(9th Cir. 2001).
53 For additional information on the polar bear, see CRS Report RL33941, Polar Bears:
Listing Under the Endangered Species Act, by Eugene H. Buck, M. Lynne Corn, and
Kristina Alexander.
54 For additional information, see CRS Report RS22906, Use of the Polar Bear Listing to
Force Reduction of Greenhouse Gas Emissions: The Legal Arguments, by Robert Meltz.

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In May 2008, FWS listed the polar bear as threatened, catapulting the above
Section 7, Section 9, and 4(d)-rule mechanisms to the fore. In connection with the
listing, FWS made abundantly clear its opposition to use of the ESA to address
climate change. First, it issued a 4(d) rule for the polar bear specifically excluding
from the Section 9 take prohibition “any taking of polar bears that is incidental to, but
not the purpose of ... an otherwise lawful activity ...” The effect of the exemption
would appear to be that a coal-fired power plant could not be deemed to “take” polar
bears through its greenhouse gas (GHG) emissions. Second, FWS argued in the
listing preamble that today’s science has not established a causal connection between
specific sources of GHG emissions and specific impacts to polar bears or their
habitat, concluding that the Section 7 consultation mechanism would not be triggered
by federal actions leading to greater GHG emissions (e.g., permitting of fossil-fuel-
fired power plants). In addition, amendments to the consultation regulations
proposed in August 2008 would make it even less likely that consultation would be
triggered by GHG emissions.
In the 110th Congress, provisions in S. 317, S. 1177, and S. 1554 amend the
Clean Air Act to provide funding for programs and projects conserving habitat for
endangered species and species of conservation concern that are vulnerable to the
impact of climate change. In addition, Section 402(e)(3)(C)(iv) of S. 1766; Section
7456(a)(2) of H.R. 3220/H.R. 3221; Section 4702 of S. 2191 and S. 3036; Section
114 of S. 2204; Section 106 of H.R. 2338; Subtitle G of H.R. 6186; Subtitle B, Part
2 of H.R. 6316; and Section 456 of H.R. 2337, as reported (amended) on August 3,
2007 (H.Rept. 110-296, Part I), allocate funds to the FWS endangered species
programs and to related funds to assist species adaptation to climate change. The
House passed H.R. 3221 (amended) on August 4, 2007; the Senate passed this
measure (amended) on April 10, 2008, without the House-passed provisions relating
to endangered species. On May 20, 2008, the Senate Committee on Environment and
Public Works reported (amended) S. 2191 (S.Rept. 110-337). S. 3071 amends the
ESA to temporarily prohibit the Secretary of the Interior from considering global
climate change as a natural or manmade factor in determining whether a species is
a threatened or endangered species.
Regional Resource Conflicts
One express purpose of 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 wildlands and natural resources, efforts at conserving 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.
Klamath River Basin. Controversy erupted in 2001 when the 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 protection — two endangered sucker
species, and a threatened coho salmon population. The Klamath Project straddles the

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CRS-17
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. Ten-year and annual operation plans, and associated
biological assessments (by the Bureau) and biological opinions (by FWS and NMFS)
have been variously criticized and defended.55 On July 31, 2007, the House Natural
Resources Committee held an oversight hearing on allegations of political
intervention influencing scientific and policy decisions at the Department of the
Interior, with respect to Klamath River salmon.
A proposed agreement has been drafted among Klamath River stakeholders to
address conflicting water management objectives.56 The parties to this proposed
agreement have indicated that, if the agreement is finalized, they will seek legislative
support from Congress.
Pacific Salmon Restoration. Salmon protection in the Pacific Northwest
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) biological opinions on operation 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. In 2007, the hatchery listing policy of
NMFS was ruled invalid by a federal court, in part because the court found it
scientifically questionable to include hatchery-raised fish under an act designed to
protect wild fish.57 Decisions of the federal district court for Oregon have invalidated
NMFS’s approach to evaluating jeopardy to salmon from dam operations on the
55 For more information, see CRS Report RL31098, Klamath River Basin Issues: An
Overview of Water Use Conflicts, by Betsy A. Cody, Pamela Baldwin, and Eugene H. Buck.
56 See [http://www.edsheets.com/Klamathdocs.html].
57 Trout Unlimited v. Lohn, No. CV06-0483-JCC, 2007 WL 1795036 (W.D. Wash. June 13,
2007).

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CRS-18
Columbia and Snake Rivers, and ordered increased spills of water to assist transit of
juvenile salmon to the sea.58
Section 4073 of P.L. 110-114 required a feasibility study of fish passage
improvements in Oregon. Several measures relating to salmon restoration have been
introduced in the 110th Congress:
! H.R. 24, H.R. 4074, S. 27, and Title X of S. 3213 authorize the
implementation of the San Joaquin River Restoration Settlement59
providing for the reintroduction of chinook salmon; the House
Natural Resources Subcommittee on Water and Power held a
hearing on H.R. 24 on March 1, 2007, and the Senate Energy and
Natural Resources Subcommittee on Water and Power held a
hearing on S. 27 on May 3, 2007. On May 13, 2008, the House
Committee on Natural Resources reported H.R. 4074 (H.Rept. 110-
633). On June 25, 2008, the Senate Committee on Energy and
Natural Resources reported (amended) S. 27 (S.Rept. 110-400).
! Section 103 of H.R. 860 and S. 493 designate salmon restoration
areas in California.
! H.R. 1507 directs the Secretary of Commerce to seek scientific
analysis of federal efforts to restore salmon and steelhead listed
under the ESA.
! H.R. 1769 amends the Marine Mammal Protection Act to authorize
the taking of California sea lions on the Columbia River to protect
ESA-listed salmon; the House Natural Resources Subcommittee on
Fisheries, Wildlife, and Oceans held a hearing on this bill on August
2, 2007.
! Section 127 of S. 1696, as reported by the Senate Committee on
Appropriations (S.Rept. 110-91), would have directed the
Department of the Interior to implement provisions identified in the
NMFS and FWS Upper Snake River Basin Biological Opinions,
regardless of court ruling. This provision was not retained in P.L.
110-161, the Consolidated Appropriations Act, 2008.
! S. 3608 establishes a Salmon Stronghold Partnership program to
protect wild Pacific salmon.
Delta Smelt. Delta smelt (Hypomesus transpacificus) is a small, slender-
bodied fish found only in the San Francisco Bay and Sacramento-San Joaquin Rivers
Delta in California (Bay-Delta), where they were once abundant. The species was
listed as threatened under ESA in 1993 and, in recent years, species abundance has
declined to the lowest ever observed. The Delta smelt decline is potentially
attributed to a combination of several factors, including entrainment in water export
pumps, competition and predation from exotic fish species, toxic contaminants,
58 For details on how legislation in the 109th Congress proposed to address this issue, see
CRS Report RL33468, The Endangered Species Act (ESA) in the 109th Congress:
Conflicting Values and Difficult Choices, by Eugene H. Buck, M. Lynne Corn, Pervaze A.
Sheikh, and Robert Meltz.
59 For additional information on this settlement, see CRS Report RL34237, San Joaquin
River Restoration Settlement, by Betsy A. Cody, et al.

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CRS-19
changes in habitat size and quality, and changes in food supply.60 The contribution
of each factor in causing the species decline is controversial. Some contend that
entrainment in water pumps is the primary cause, whereas others argue that all causes
might be more or less equally responsible for the observed decline.61
The Delta smelt decline has significant consequences for the operation of the
Central Valley Project (CVP) and the State Water Project (SWP), which supply water
to much of California. If entrainment by water pumps is largely responsible for the
decline of Delta smelt, changes in how these pumps are operated might be required
to satisfy ESA requirements. These requirements could result in reduced pumping
and less water for users.
To address the impact of pumping on Delta smelt, an ESA Section 7
consultation between FWS and the Bureau was conducted. FWS issued a no-
jeopardy biological opinion (BiOp) with regard to impacts on Delta smelt by the
operations of the CVP and SWP in 2004, and re-issued the BiOp in 2005 to address
potential critical habitat issues of the Delta smelt brought up by the Bureau. In May
2007, the FWS BiOp was found not to comply with ESA with regard to Delta
smelt.62 The Bureau and FWS reinitiated consultation based on new information on
the Delta smelt in 2007. While the consultation process is underway, the Bureau is
implementing interim protective measures required by a court order issued in
December 2007.63
In the 110th Congress, the House Natural Resources Subcommittee on Water and
Power held an oversight field hearing in Vallejo, CA, on July 2, 2007, on issues
related to the status of native fish populations, including Delta smelt, in the Bay-
Delta ecosystem. H.R. 6940 authorizes support for the establishment of a fish
hatchery program for Delta smelt in the Sacramento-San Joaquin Delta and
temporarily exempts two pumping plants from ESA take restrictions.
60 Testimony of Bob Johnson, Commissioner of the Bureau of Reclamation, at House
Resources, Subcommittee on Water and Power Hearing on The Immediate Federal and State
Role in Addressing Uncertain Water Deliveries for California and the Impacts on California
Communities, 2nd Sess. 110th Congress, January 29, 2008.
61 In 2005, the Pelagic Organism Decline working group was created to address the decline
in fish and zooplankton populations in the Bay-Delta. They hypothesized that pelagic fish
decline could be a result of three factors acting individually or together. These factors
included (1) toxic contaminants, (2) exotic species, and (3) water project effects. Based on
this hypothesis, the group developed a set of conceptual models to explain pelagic fish
decline. Their results have so far been inconclusive and more research is planned for 2008.
See Pelagic Organism Decline Progress Report: 2007 Synthesis of Results, at [http://www.
fws.gov/sacramento/es/documents/POD_report_2007.pdf].
62 NRDC v. Kempthorne, 506 F. Supp. 2d 322 (E.D. Cal. 2007).
63 NRDC v. Kempthorne, 2007 U.S. Dist. LEXIS 91968 (E.D. Cal. December 14, 2007).

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CRS-20
Counterpart Regulations:
Pesticides and Fire Management Projects
ESA regulations found at 50 C.F.R. Section 402.30 and Section 402.40 are
referred to as counterpart regulations. These regulations allow certain action
agencies to determine whether their actions jeopardize a listed species without having
to consult as required by ESA Section 7.
Counterpart pesticide regulations were promulgated by the U.S. Environmental
Protection Agency (EPA) for regulatory actions on pesticides.64 Under the
regulations, when EPA takes action under the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA; P.L. 80-104; 7 U.S.C. §§ 136, et seq.), EPA would decide
whether a proposed FIFRA action is likely to adversely affect a listed species or
critical habitat. EPA would make this determination without consultation with, and
written concurrence from, the FWS Director, if an alternative consultation agreement
is executed. FWS would not review the determination for consistency with ESA.
On August 24, 2006, the District Court for the Western District of Washington
overturned the pesticide counterpart regulations, ruling that these regulations did not
conform to the plain language or intent of ESA Section 7 by excusing federal action
agencies from engaging in consultation.65 The court let stand the “optional formal
consultation” process, in which NMFS or FWS can adopt EPA effects determinations
as their own.
National Fire Plan (NFP) counterpart regulations were promulgated by the
Forest Service, Bureau of Land Management, Bureau of Indian Affairs, National Park
Service, FWS, and NMFS.66 The alternative consultation process contained in these
counterpart regulations eliminates the need to conduct informal consultation with
FWS or NMFS, and eliminates the requirement to obtain written concurrence from
FWS or NMFS for those NFP actions that the action agency determines are “not
likely to adversely affect” any listed species or designated CH. The District Court
for the District of Columbia held that the Alternative Consultation Agreement was
not an improper bypass of ESA Section 7.67 In contrast to the pesticide counterpart
regulations, the services must determine that the action agencies’ actions are
consistent with ESA Section 7. A report by the services of the NFP counterpart
regulations found that all ten projects reviewed by NMFS were deficient in five or
six criteria, and 44 out of 50 projects reviewed by FWS missed at least one of six
criteria, with 19 missing all six.68
64 69 Fed. Reg. 47732 (August 5, 2004); 50 C.F.R. Part 402, Subpart D.
65 Washington Toxics Coalition v. U.S. Department of the Interior, 457 F. Supp. 2d 1158
(W.D. Wa. 2006); see [http://www.eswr.com/latest/selfconsultationorder.pdf].
66 68 Fed. Reg. 68254 (December 8, 2003); 50 C.F.R. Part 402, Subpart C.
67 Defenders of Wildlife v. Kempthorne, No. 04-1230, 2006 WL 2844232 (D.D.C.
September 29, 2006).
68 NMFS, FWS, FS, and BLM, Use of the ESA Section 7 Counterpart Regulations for
(continued...)

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CRS-21
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 Section 9 (private actions) and Section 7 (federal
nexus) at times frustrate the economic desires of owners of land or other property.
This has long been a rallying cry for ESA’s detractors, who assert that restrictions
under ESA routinely “take” property in the constitutional sense of the term.
Conflicts between 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,
through regulation, a total elimination of its economic use. When the government
regulation removes only part, but not all, of the property’s use or value, a three-factor
balancing test is used to determine whether a taking has occurred.69 Although 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 (a particularly active area now), 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
68 (...continued)
Projects that Support the National Fire Plan, Program Review: Year One (Jan. 11, 2008),
24 p.; Available at [http:www.nmfs.noaa.gov/pr/pdfs/laws/fireplanreview.pdf].
69 The three factors, announced by the Supreme Court in Penn Central Transp. Co. v. New
York City in 1978 and reaffirmed by the Court many times since, are (1) the economic
impact of the government action on the property owner; (2) the extent to which the
government action interferes with the owner’s reasonable investment-backed expectations;
and (3) the “character” of the government action. These are vague guideposts only; the
Court stresses that every case is to be decided ad hoc. Indeed, many question whether it is
even appropriate to call the three factors a test.

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CRS-22
United States of state-contract-created water rights.70 This decision has been
questioned in other court rulings, and the judge who decided it largely repudiated its
reasoning in a later decision.71
Critics want 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. Provisions to that effect have been included in bills of previous
Congresses, although not in recent ones. Opponents of an explicit compensation
standard counter that ESA should not be singled out for a more property
owner-friendly standard than other statutes or the Constitution. 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.
Additional Legislative Initiatives
The 110th Congress enacted P.L. 110-229, including Section 515 authorizing the
Secretary of the Interior to participate in the Platte River Recovery Implementation
Program for Endangered Species in the Central and Lower Platte River Basin. On
May 1, 2007, the Senate agreed to S.Res. 125, designating May 18, 2007, as
“Endangered Species Day.” On this same date, the Senate also agreed to S.Res. 146
supporting the goals of June 20, 2007, as “American Eagle Day,” to celebrate the
recovery and restoration of the American bald eagle; the House agreed to similar
language (H.Res. 341) on June 5, 2007. On June 18, 2008, the House agreed to
H.Res. 1247, supporting the goals and ideals of “American Eagle Day.” The 110th
Congress has considered a variety of additional ESA issues, although none has been
enacted into law:
! Section 901 of S. 1892 requires a Coast Guard report on efforts
taken from FY2000 through 2007 to protect endangered sea turtles
and marine mammals; the Senate Committee on Committee on
Commerce, Science, and Transportation reported (amended) this
measure on February 5, 2008 (S.Rept. 110-261).
! On January 17, 2008, the House Select Committee on Energy
Independence and Global Warming held a hearing on the delay by
U.S. Fish and Wildlife Service in announcing their decision on
whether to list polar bears as threatened.72 H.R. 5058, H.R. 5588,
and S. 2568 prohibit the Secretary of the Interior from leasing any
tract in the Chukchi Sea Lease Sale 193 off Alaska until the
Secretary determines whether to list the polar bear as a threatened or
70 Tulare Lake Basin Water Storage Dist. v. United States, 49 Fed. Cl. 313 (2001). 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 [rmeltz@crs.loc.gov].
71 Casitas Municipal Water Dist. v. United States, 76 Fed. Cl. 100 (2007).
72 For additional information, see CRS Report RL33941, Polar Bears: Listing Under the
Endangered Species Act, by Eugene H. Buck, M. Lynne Corn, and Kristina Alexander.

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CRS-23
endangered species. On January 30, 2008, the Senate Committee on
Environment and Public Works held an oversight hearing to
examine threats to and protection for polar bear. On April 2, 2008,
the Senate Committee on Environment and Public Works held an
oversight hearing on the listing decision for polar bear under ESA.
H.R. 6057 amends the Outer Continental Shelf Lands Act to prohibit
oil and gas leasing and related activities in the Beaufort and Chukchi
Sea Planning Areas unless certain conditions are met. H.R. 6936
amends the Marine Mammal Protection Act (MMPA) to allow
importing polar bear trophies taken in Canadian sport hunts before
the polar bear was listed as a threatened species. H.R. 7171 amends
the MMPA to allow the importation of polar bear trophies taken in
sport hunts in Canada.
! H.R. 1917 amends 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; the House Committee on Natural Resources held a hearing
on this measure on April 24, 2007.
! S. 658 amends the ESA to modify the processes for species listing
and delisting as well as recovery planning.
! The Senate Committee on Environment and Public Works held an
oversight field hearing on ESA impacts on the gas industry on
August 23, 2007.
! S. 424 directs the U.S. Army Corps of Engineers to implement the
Penobscot River Restoration Project, benefitting endangered
Atlantic salmon and shortnose sturgeon.
! H.R. 2530 requires certain electricity consumers to be informed of
ESA compliance costs.
! H.R. 3156 and S. 1860 modify how certain endangered species
offenses might be prosecuted.
! H.R. 3639 establishs a research program for recovery of the southern
sea otter.
! H.R. 3847 and S. 2165 amend the ESA to provide for suspension of
ESA provisions during droughts for federal and state agencies that
manage river basins within regions affected by drought.
! S.Res. 456 directs the United States to undertake bilateral
discussions with Canada to negotiate an agreement to conserve
endangered large whales that migrate along the Atlantic coast. S.
2657 and H.R. 5536 require the Secretary of Commerce to prescribe
regulations to reduce the incidence of vessels colliding with North
Atlantic right whales by limiting vessel speed. On July 22, 2008, the
Senate Committee on Commerce, Science, and Transportation
reported (amended) S. 2657 (S.Rept. 110-429).
! S.Res. 520 designates May 16, 2008, as “Endangered Species Day.”
! S.Res. 583 designates June 20, 2008, as “American Eagle Day,” to
celebrate the recovery and restoration of the bald eagle.
! S. 3189 and H.R. 7169 amend P.L. 106-392 to extend the
authorizations for the Upper Colorado and San Juan River Basin
endangered fish recovery programs; S. 3189 was reported (amended)

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CRS-24
by the Senate Committee on Energy and Natural Resources on
September 16, 2008.
! H.R. 7032, Section 33 of H.R. 6428, and Section 238 of H.R. 6779
direct the Secretary of the Interior to establish regional OCS Joint
Permitting Offices, with expertise in ESA Section 7 consultations
and preparation of biological opinions.
FWS Appropriations
Appropriations play an important role in the ESA debate, providing funds for
listing and recovery activities as well as financing consultations that are necessary for
federal projects. In addition, appropriations bills have served as vehicles for some
changes in ESA.
Table 2 summarizes recent ESA and related funding for FWS. President Bush
signed P.L. 110-161 (H.R. 2764, the Consolidated Appropriations Act, 2008) into
law, providing more than $236 million for FWS’s ESA and related programs.
On February 4, 2008, the Bush Administration released its FY2009 budget
request, including more than $230 million for ESA-related programs withing FWS.
The FY2009 request for ESA program funding for FWS under their Ecological
Services Account is $3.67 million (2.44%) less than funding enacted for FY2008.
Species and programs to receive decreased funding include the following:
Pacific salmon recovery grants:
-$1,477,000
General consultation:
-$984,000
Idaho sage grouse:
-$246,000
Wolf monitoring:
-$246,000
Lahontan cutthroat trout:
-$246,000
Condor recovery:
-$246,000
Under the Administration’s proposal, total FWS funding for all ESA-related
programs would decrease by about $6.09 million (2.57%) from that enacted for
FY2008.

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CRS-25
Table 2. Funding for FWS Endangered Species and
Related Programs, FY2006-FY2009

($ in thousands)
FY2006
FY2007
FY2007
FY2008
FY2008
FY2009
Enacted
Request
Enacted
Request
Enacted
Request
Endangered Species Program
Candidate
8,619
8,063
8,425
8,635
9,731
8,659
Conservation
Listing
17,630
17,759
17,824
18,263
17,978
18,188
Consultation
47,997
49,337
49,179
51,578
51,758
51,577
Recovery
73,562
65,879
69,551
68,067
71,041
68,417
Subtotal
147,808
141,038
144,979
146,543
150,508
146,841
Related programs
Landowner
21,667
24,400
23,667
0
0
0
Incentive
Stewardship
7,277
9,400
7,277
0
0
0
Grants
Cooperative
Endangered
80,001
80,001
81,001
80,001
73,831
75,501
Species Funda
Multinational
Species Fundb
6,404
8,217
6,404
4,257
7,875
4,256
Neotropical
Bird Fundb
3,941
0
3,941
3,960
4,430
3,960
Total FWS
267,098
263,056
266,962
234,761
236,644
230,558
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, LWCF provided $23.667 million; for FY2008, the
Administration requested all $80.001 million from LWCF and the Omnibus provided $49.773
from the LWCF.
b. From FY2002 through FY2007, the President’s budget proposed subsuming the Neotropical
Migratory Bird Fund within the Multinational Species Conservation Fund; Congress rejected
this proposal.
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