Introduction
The Endangered Species Act (ESA)1 provides for the listing and protection of species that are endangered or threatened with extinction. Listing a species results in limitations on activities that could affect that species and in penalties for the taking (as defined in the ESA) of individuals of a listed species.2 Federal agencies are also required to use their existing authorities to further the purposes of the act.3 Under certain circumstances, federal agency actions may be exempted from the act. The exemption process and its history are the subject of this report.4 (See Figure 1.)
Federal agencies are required to consult with either the Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) (together, the Services) to determine whether an agency project might jeopardize the continued existence of listed species or destroy or adversely modify a species' critical habitat.5 This process is known as consultation. The consultation concludes with the appropriate Service issuing a Biological Opinion (BiOp) as to the harm the project poses. If a project could jeopardize a species, a jeopardy opinion is released along with any reasonable and prudent alternatives (RPAs) to the agency action that would avoid jeopardy. To excuse any incidental taking of listed species, the Services issue an incidental take statement that includes reasonable and prudent measures (RPMs) to minimize the effects of the project.
When a federal action cannot be conducted without jeopardizing species, and the federal agency believes that the RPAs would thwart the project, the federal agency, the governor of the state where the project would occur, or the licensees or permittees involved in the project may seek an exemption. Very rarely, the Service(s) may find that jeopardy would occur and that there is no RPA that would avoid jeopardy. The exemption process is also available for this circumstance.
The exemption process offers the opportunity to consider extraordinary economic circumstances in the list of factors used in evaluating federal actions, and provides an opportunity for economic factors to override jeopardy to the species. An exemption is for a federal project, license, or action, rather than for a species—a key distinction. In more than three decades since the ESA was enacted, there have been only six instances in which an exemption was sought, and only two in which it was granted. Appendix A, Appendix B, Appendix C, and Appendix D provide discussions and histories of the six attempts to secure exemptions under the ESA. If there are future applications for exemptions, the historical prologue, as seen through these past applications, may prove useful, because this process is used so rarely. In addition, in the controversy over California water projects, there were proposals in the mid and late 2000s to seek an exemption from the ESA.6 Appendix E provides a discussion and history of the California water conflict.
Tellico Dam and the Creation of the Exemption Process
The controversy over Tellico Dam in Tennessee in the 1970s set the stage for Congress's creation of the exemption process. As originally enacted in 1973, the ESA prohibited all activities detrimental to listed species with very few exceptions. In the 1970s, when the prospective impoundment of water behind the nearly completed Tellico Dam in Tennessee threatened to eradicate the only known population of the snail darter (a small fish related to perch), the Supreme Court concluded that the "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.7
After this Supreme Court decision, Congress amended §7 of the ESA to include a process by which economic impacts could be weighed and government projects exempted from the restrictions that otherwise would apply.8 The process they created is shown in Figure 1.
The Tellico Dam controversy also illustrated a common theme in ESA controversies: the protection of threatened and endangered species is rarely the chief issue. A species' need for a particular dwindling habitat and its resources often parallels human desires for the same dwindling resources. The parties to the debate have often struggled for years over the basic allocation of those resources, from Tellico River, to the Edwards Aquifer (TX), to prairie grasslands, to San Francisco Bay. The debate over ESA and species protection typically signals an intensification of an underlying and usually much larger struggle.
In broad outline, Congress created a committee of top government officials who could pass judgment on federal projects by balancing the national interest in protecting listed species against the national interest in proceeding with an important federal project. Congress limited the parties who could apply for exemptions, and required that successful parties would be required to pay costs of mitigating the project's effects. Because projects are exempted, rather than species, the ESA still requires that species affected by the exempted project must be conserved in their remaining habitat. While there have been a few amendments to this process in later years, the basic structure formed after Tellico Dam remains the same, and is described below.
Membership of the Committee
The Endangered Species Committee (ESC)9 reviews applications for exemptions, and is responsible for the ultimate decision. It may conduct additional fact-finding. The ESC is composed of the following members:
- the Secretary of the Interior (who serves as the chair),
- the Secretary of Agriculture,
- the Secretary of the Army,
- the Chairman of the Council of Economic Advisors,
- the Administrator of the Environmental Protection Agency,
- the Administrator of the National Oceanic and Atmospheric Administration, and
- one individual from each affected state.10 (If multiple states are involved, each state has an appropriate fraction of a vote.11)
Applicant Qualifications
Application for an exemption is limited to three entities: the federal agency proposing the project, the governor of the state in which the action is proposed, or the permit or license applicant related to that project.12 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 the application of the prohibitions in §7(a), which requires that federal agency actions avoid jeopardy or destruction or adverse modification of critical habitat.13 Restriction of the exemption process (to the federal agency, the governor, and applicants whose permit has actually been denied) clarifies that the exemption process is used after a §7 consultation has been completed, and that the exemption process is not open to just any interested party. (See Figure 1, Steps 3 and 7.)
Contents of Application
An exemption application must describe the consultation process already carried out between 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.14 (See Figure 1, Step 9.) All applications must be submitted to the Secretary not later than 90 days after completing the consultation (i.e., issuance of a BiOp finding jeopardy to the species or destruction or adverse modification of its designated critical habitat) if the exemption applicant is the federal agency or state, or within 90 days of denial of the permit or license if the exemption applicant is a permit or license applicant. An application must set out the reasons the applicant considers an exemption warranted, include relevant documents such as a biological assessment (BA) and BiOp, and describe any alternatives to the project.15 Additional application requirements are contained in the relevant regulations.16 If the application is complete, the Secretary will publish a notice of receipt of the application in the Federal Register and notify the governor of each affected state (as determined by the Secretary), so that state members can be appointed to the ESC. The Secretary must also notify the State Department, so that its review for potential conflicts with international treaties or agreements can begin. The Secretary may deny the application within 10 days if these initial requirements have not been completed.
The Secretary determines whether the federal agency and/or the exemption applicant have met three criteria:
- consulted in good faith and reasonably and responsibly considered modifications or any RPAs;
- conducted any biological assessment required; and
- refrained from irreversibly or irretrievably committing resources that would foreclose on the implementation of any reasonable and prudent measures to avoid jeopardy to the species or adverse modification of its critical habitat.17
The Secretary has 20 days from receipt of the completed application to make a finding that the exemption applicant has met the criteria.18 A denial for failing to meet the criteria in this stage of the application is deemed a final agency action,19 meaning that it has reached a stage eligible to be challenged in federal court.
The last criterion, whether there has been an irreversible or irretrievable commitment of resources, harkens back to the consultation process. The statute prohibits those initiating consultation from making such a commitment of resources if it would have "the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures."20 This serves to prevent waste of federal resources (such as time and money) on a project that may turn out to violate a federal statute. It also allows a project to be halted before any harm to listed species or their habitats occurs. Because the agency presumably is not carrying out the proposed project while the consultation occurs,21 it appears that the reference to commitments of resources in the exemption process refers to activities after consultation has concluded. Otherwise, after a jeopardy opinion, an agency that continued to work on a project might seek an exemption, but leave the ESC faced with a fait accompli—the loss of the species in violation of the act.
|
Figure 1. Steps in Obtaining an Exemption Under the Endangered Species Act |
|
Source: CRS. See text for further discussion of steps. Notes: CH = Critical Habitat; ESC = Endangered Species Committee; FWS = Fish and Wildlife Service; NMFS = National Marine Fisheries Service. Step 7. Only six projects have ever resulted in an exemption application. (See Appendixes A-D.) Step 9. If the applicant is attempting to obtain a permit or license, the applicant must await final agency action (denial of the permit or license) before applying for an exemption. The Pittston case raised the issue of whether a judicial appeal and an exemption could be pursued simultaneously, and Congress clarified the law on this process (16 U.S.C. §1536(g)(2)(A); see Appendix D.) There are three categories of eligible applicants: a federal agency, a governor, or a permit or license applicant. Step 10. This issue could be important in some specific cases, such as certain kinds of harm to migratory birds, because nearly all migratory birds are protected under the Migratory Bird Treaty Act and the U.S.-Mexico and U.S.-Canada Migratory Bird Treaties. Note that in theory the Secretary of State may issue a determination after the DOI Secretary's determination (Step 12), but before the secretarial report on the effects of the action (Step 17). Step 11. A state nominates representatives, and the President selects one from the state's list. According to regulations, if multiple states are involved, each state gets an appropriate fraction of a vote. Step 13. This option has never been exercised in controversies affecting Defense Department activities. Technically, for the option to be exercised, the ESC would have to be convened and receive the report described below (Step 17). The ESC would have a formal vote, even though the outcome would not be discretionary: the ESC is directed to approve the exemption if the Defense Secretary makes the finding. Step 17. The act specifies that the Secretary's report must cover these four issues: (a) any alternatives to the project that would still protect the species and its habitat, and the benefits of these alternatives and the proposed action; (b) evidence on the national or regional significance of the project and the public interest aspects of the agency's action; (c) any mitigation or enhancement measures for the ESC to consider; and (d) whether the agency and the applicant have avoided irretrievable commitment of resources that would foreclose on any of the alternatives to the project. Step 18. The ESC is to make its determination based on these four issues: (a) Is there a reasonable and prudent alternative to the project that would be consistent with conserving the species? (b) Do the benefits of the agency action clearly outweigh the benefits of the alternatives, and is the proposal in the public interest? (c) Is the agency action regionally or nationally significant? (d) Have the agency and the applicant avoided irretrievable commitments of resources that would foreclose on alternatives consistent with conserving the species? Step 20. These mitigation measures must be necessary and appropriate. The applicant must pay for these mitigation measures, but may contract with a federal agency to carry them out on its behalf. Because the law makes no distinction among types of applicants, this provision would apply whether the applicant was a federal agency, a governor, or a permit or license applicant. |
Secretarial Review and Report
Within 140 days of determining that the exemption applicant has met the requirements described above, the Secretary, in consultation with the other members of the ESC, must convene a formal hearing on the application and prepare a report. (See Figure 1, Step 17.) The hearing is to collect evidence regarding the exemption.22 The formal hearing is conducted by an independent administrative law judge (ALJ), and can include witness testimony, offers of proof, and interveners. The purpose is to develop a full evidentiary record to provide a basis for the Secretary's report. If deemed necessary, the ALJ may subpoena records and testimony for the hearing. Service employees who participated in the consultation may not participate in the hearing (e.g., as advisors), but may be witnesses.23
By law, the Secretary's report must discuss the following:
- the availability of reasonable and prudent alternatives;
- the nature and extent of the benefits of the agency action;
- the nature and extent of alternative actions consistent with conserving the species or the critical habitat;
- a summary of whether the action is in the public interest and is nationally or regionally significant;
- appropriate reasonable mitigation and enhancement measures that should be considered by the ESC; and
- whether the applicant has made any irreversible or irretrievable commitment of resources.24
Committee Determination
The ESC is required to determine whether to grant an exemption within 30 days of receiving the Secretary's report. (See Figure 1, Step 18.) If the ESC decides more information is required, it may conduct additional fact-finding, including hosting oral presentations.25 The ESC has subpoena powers for obtaining information it deems necessary to reach its decision.26
The ESC meetings, hearings, and records are open to the public, and notice of the hearings and meetings is published in the Federal Register.27
The ESC shall grant an exemption if, based on the evidence, it 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 in subsection (d) of this section.28 [See discussion above on commitments of resources.]
The second and third items give the ESC the opportunity to weigh economic impacts of an exemption and of any alternative courses of action on a national or regional scale. An exemption requires five affirmative votes (out of seven) on the committee.29 If it approves the exemption, the ESC is required to specify mitigation and enhancement measures in its written decision.30
Mitigation: Actions and Funding
The mitigation and enhancement measures that are required to be established by the ESC must be reasonable and "necessary and appropriate to minimize the adverse effects" of the approved action on the species or its critical habitat. (See Figure 1, Step 20.) The measures can include live propagation, transplantation, and habitat acquisition and improvement.31 The exemption applicant (whether federal agency, governor, or permit or license applicant) is responsible for carrying out and paying for the mitigation.32
The cost 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.33 Mitigation costs could be considerable and may deter applicants from seeking an exemption.
Duration and Effects of the Exemption
An exemption from the ESC is permanent unless the Secretary later finds, based on the best scientific data available, that the exemption would result in the extinction of a species that was not the subject of consultation nor identified in a biological assessment and the ESC then determines within 60 days of the Secretary's finding that the exemption should not be permanent.34 In cases where the Secretary does not find that extinction will result, the exemption is permanent even with respect to species not identified in a BA, provided that a BA was prepared during the consultation. The ESA expressly states that the penalties that would normally apply to the taking of an endangered or threatened species do not apply to takings resulting from actions that are exempted.35
Exemptions apply to the specific federal agency action in the exemption application, not to the species. Consequently, even if an agency action is exempted, FWS or NMFS is still obligated to recover the species. So, for example, if the exempted action causes some portion of the range of a species to become uninhabitable (as happened with the Tellico Dam), any remaining range would become more important because there was less of it. In that remaining habitat, federal actions might receive more intense scrutiny due to the harm to the species caused by the exempted action, and the frequency of jeopardy opinions might increase. Alternatively, if the total habitat area would be unchanged, but quality of the species' habitat would be degraded under the exemption, then more scrutiny might be given to federal actions that affect the habitat (e.g., water temperature, timing, or quantity), as changes might add to the stress on the population and further slow the recovery of the species. Similarly, if the exempted action affects a critical food source, the Services might seek to enhance another food source, and so on.
Actions by Secretaries of State or Defense
There are limits on the ESC's authority. (See Figure 1, Steps 10 and 13.) 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 would violate a treaty or other international obligation of the United States.36 For example, if the species in jeopardy is a migratory bird and the action is prohibited under the Migratory Bird Treaty, then the Secretary of State may find that the action would violate that treaty, and no exemption could be granted. The Secretary of State must make this determination within 60 days "of any application made under this section." (The determination could be difficult, however, because the Interior Secretary's report that would fully describe the agency action would not be due for an additional 80 days, well after the deadline for the Secretary of State.)
In contrast, the ESC must grant an exemption if the Secretary of Defense finds that the exemption is necessary for national security.37 (See Figure 1, Step 13.) The language of this section does not make clear whether the ESC would still have to meet and vote, even though the result would already have been determined. While there have been a number of controversies over the years in which conflicts between military readiness and the ESA have been alleged, there have been no instances in which the Defense Department (DOD) has availed itself of this provision, even though the ESC result would be a certainty. DOD has claimed that the exemption provision is too cumbersome and time-consuming for its use, given the geographic array of its actions and their frequency.38
Presidential Exemption
If there is a presidentially declared disaster, the ESA provides another option for an exemption under this process. Section 1536(p) authorizes the President, after such a disaster, to make the determinations that would have been made by the Secretary and the ESC.39 The presidential exemption may be granted only to projects to replace or repair public facilities. To grant the exemption, the President must determine that the project is necessary to prevent the recurrence of a natural disaster and that the emergency situation does not allow ordinary procedures to be followed. The ESA provides that the ESC "shall accept the determinations of the President."40 It is unclear whether this provision means that the ESC must still be convened, even though acceptance of the determination is pre-ordained. This section of the law has not been invoked to date.
Interaction with Other Laws
If an agency action receives an exemption and avoids the penalties that otherwise would apply under the ESA, other underlying problems related to natural resources may still exist. Such conflicts often involve not only the listed species protected under ESA, but also other federal laws, state protections, and multiple levels of government, as well as a number of interest groups. As a result, the underlying conflict is rarely centered on just one threatened or endangered species. For example, in a controversy regarding river and dam management in the San Joaquin River, multiple lawsuits have been filed, based on both federal and state laws, and address a host of issues, such as irrigation water supply, commercial fishing, recreation, and the environment.41 The federal court decision that formed the impetus for the San Joaquin agreement was based on a state law requiring rivers to provide habitat for fish.42
Why the Exemption Process Is Rarely Used
As outlined above, the exemption process is a complex affair, and even without extensions, could take 280 days. Because the resulting decision risks causing the extinction of a species, some would argue a rigorous process is appropriate; others still may find it onerous. But even if the process were simple, any potential exemption applicant would face these challenges:
- The applicant must fund any required mitigation measures; the funding obligation lasts for the life of the action—potentially forever, depending on the nature of the action.
- Because the exemption applies to the action and not to the species, FWS or NMFS must continue to attempt to recover the species. Consequently, the burden of conservation and recovery may fall more heavily elsewhere. A governor, trying to balance the interests of an entire state, might find this a particularly difficult obstacle.
- If conservation of a listed species is only one of various statutory obligations under federal or state laws, then an exemption from ESA for the action may not advance the action, because those other statutory obligations may still be required.
- Many parties to a dispute may be reluctant to appear publicly to side with the extinction of a species, no matter how uncharismatic. Moreover, if the increased risk of extinction provides only modest advancement for the action, the rewards of a successful exemption application may not seem worth the effort.
As a practical matter, the consultation process itself offers federal agencies many opportunities to modify their actions to avoid jeopardizing species or adversely modifying their designated critical habitats, yet still proceed with their actions. The well-known implications of an ESA conflict generally prompt agencies to consider ESA consequences at a very early stage in their actions and to avoid conflict, and specifically to avoid the need for an exemption. Prospective applicants must balance the costs of the process described above with benefits (and costs) of winning an exemption.
Conclusion
The protection of threatened and endangered species is rarely the chief issue in major debates over land use, water allocation, energy extraction, energy corridors, and the like. Rather, the parties to the debates have commonly struggled for years or even decades over the basic allocation of these resources, as illustrated by the conflicts over water allocation in central California; water use in the Apalachicola-Chattahoochee basin in Alabama, Florida, and Georgia; river basin flooding in Tennessee's Tellico River; and timber harvest in the Pacific Northwest, to name only a few. But because the ESA has strong legal protections for listed species, it tends to force decisions on issues that have long been in conflict.
When an exemption is considered, potential applicants may be unaware of the stringency of the process, the fact that the exemptions apply to the project rather than the species, the need for the applicant to fund potentially costly permanent mitigation, and the fact that after an exemption is granted, the burden of conservation may fall more heavily on other areas the species inhabits or other resources that it requires. Once these considerations become known, they likely play a strong role in limiting the number of times the process has been applied. (See Appendix A, Appendix B, Appendix C, and Appendix D.) In addition, perhaps the consultation and negotiation stages provided for in the ESA accomplish the purpose of modifying proposed actions early in the planning and development stages and so avoid harm to listed species. These cautions help explain why the exemption process has rarely been invoked in any recent case.
If those involved in a project decide to proceed with an exemption application, the first step is to decide who should apply, and for what project. Then the exemption process described above may begin. The Secretary and then the ESC would have to make all of the required findings on which an exemption rests. Even if all of the required findings were made in favor of the applicant, mitigation determined (and the applicant has the means to pay for it), and an exemption granted, the conflicting groups would likely still face other laws at issue in these controversies, as well as problems based on lingering resource scarcity or allocation. Thus, even if an exemption were granted, conflicts would likely remain in many controversies.
Exemption Denied for Tellico Dam, Tennessee
A dam on the Little Tennessee River was proposed by the Tennessee Valley Authority (TVA), based on arguments that it would aid navigation, power generation, and economic development. Opposition to the project arose early, because of concern over fishing, recreation, Native American religious sites, and loss of agricultural land. After discovery of the snail darter, project opponents had to decide whether to abandon their old arguments and pin their hopes on a small fish. According to one observer, "opponents would have preferred a weapon like a bald eagle or a bear or a buffalo. But what they had was [a] fish."43
|
Date |
Event |
|
1936 |
A dam on the Little Tennessee River, to improve navigation and generate electricity, is proposed by TVA. |
|
1963 |
Now named the Tellico Project, TVA again proposes the dam. Acquisition of additional lands is included to provide for industrial, commercial, and residential development. The cost of the revised project is estimated at $41 million. |
|
1966 |
Tellico Project is authorized. |
|
1967 |
First annual appropriation for the project is passed. (Money is appropriated for each year thereafter.) |
|
1971 |
Lawsuit filed, contending that Tellico's EIS was inadequate and violated NEPA. (The 1973 ESA had not yet become federal law.) |
|
8/12/1973 |
Dr. David Etnier of the University of Tennessee discovers snail darters in the stretch of the Little Tennessee that would be impounded by Tellico; he realizes that the fish is a species new to science. |
|
10/9/1975 |
Snail darter is listed as endangered under ESA. |
|
2/18/1976 |
Hill v. TVA filed; plaintiffs argue that Tellico violates ESA. |
|
10/12/1976 |
FWS issues a BiOp that Tellico, as proposed, would jeopardize the continued existence of the snail darter. |
|
4/1976 |
District court dismisses the case on the merits; plaintiffs appeal, and the 6th Circuit issues an injunction preventing closure of the dam but allowing construction to continue. |
|
1/31/1977 |
Appellate Court holds that ESA does apply to Tellico. It grants an injunction that stops the remaining 10% of construction except for structures that would be required even if the project were never completed. TVA appeals to the Supreme Court. |
|
6/15/1978 |
Supreme Court affirms decision of Appellate Court. |
|
7/19/1978 |
Senate passes ESA reauthorization; bill contains an exemption process, which creates an Endangered Species Committee (ESC), but no specific exemption for Tellico Dam (or Grayrocks Dam). |
|
9/30/1978 |
Scheduled expiration of ESA authorization. |
|
10/14/1978 |
House passes ESA reauthorization; bill contains an exemption process and specific language affecting Tellico (and Grayrocks). |
|
10/14/1978 |
House and Senate pass ESA conference report (for S. 2899). Provisions on Tellico and Grayrocks require that (1) the ESC meet within 30 days of enactment; (2) exemptions must be granted if stated provisions are satisfied; and (3) decision must be made within 90 days of enactment or both projects automatically exempted. |
|
11/10/1978 |
President Carter, despite encouragement from DOI for a veto, signs ESA reauthorization (P.L. 95-632). |
|
12/8/1978 |
ESC meets to consider exemption. |
|
1/8/1979 |
Hearings held in Knoxville and Washington on exemption proposal. |
|
1/10/1979 |
Deadline for comments on the record for ESC deliberations. |
|
1/19/1979 |
Staff report to ESC is issued for their use as background in determining whether to grant an exemption. |
|
1/23/1979 |
ESC unanimously rejects exemption for Tellico. Chair of ESC, Interior Secretary Cecil Andrus, states: "Frankly, I hate to see the snail darter get the credit for stopping a project that was ill-conceived and uneconomical in the first place." |
|
2/7/1979 |
As Chair of the ESC, Andrus signs the decision denying the exemption for Tellico. |
|
2/8/1979 |
If no decision by ESC before this date, the Tellico project would have been automatically exempted. |
|
6/18/1979 |
Rep. John Duncan (TN) offers amendment to H.R. 4388 (Energy and Water Appropriations for FY1980), exempting Tellico from ESA and other laws; the House accepts the language on voice vote, with little discussion. |
|
7/17/1979 |
Senate passes an amendment (53 yeas to 45 nays; Roll Call #180) to strike the House language exempting Tellico from the requirements of ESA and other laws. (A vote of "yea" was a vote for those opposing the dam (primarily farmers, fishing interests, and Indians); a vote of "nay" favored finishing the dam, exempting it from ESA, and proceeding with development.) |
|
9/10/1979 |
The Senate recedes from its earlier amendment of 7/17, and agrees to the conference language exempting Tellico from ESA and other laws (48 yeas, 44 nays; Roll Call #269). A vote of "yea" favored finishing the dam, exempting it from ESA, and proceeding with development; "nay" favored those opposing the dam (primarily farmers, fishing interests, and Indians). |
|
9/25/1979 |
President Carter signs the Energy and Water Development Appropriation (H.R. 4388, P.L. 96-69), expressing regret about provision on Tellico Dam. |
|
11/29/1979 |
Workers at Tellico close the gates on the dam, allowing filling of the reservoir to begin. |
|
7/5/1984 |
FWS reclassifies the snail darter as threatened rather than endangered based largely on new data on distribution of the species. The notice also rescinds the designation of the Tellico Dam area as critical habitat because the species no longer exists in that area. At the time of the notice, the fish was known from small populations at nine locations in the Tennessee River watershed. |
Exemption for Grayrocks Dam, Wyoming and Nebraska
The Platte River, in its lower reaches in Nebraska, is a major stopover site in the migration of endangered whooping cranes between southern Texas and north central Canada. FWS determined that the construction of the Grayrocks Dam and Reservoir in Wyoming, along with existing projects in the Platte River basin, would have jeopardized the downstream habitat of cranes. Specifically, a reduction in instream flow as a consequence of the project as originally designed could have damaged the cranes' resting sites. (The reduction in total flow would also have threatened Nebraska irrigation interests, and caused the state to oppose Wyoming's plans.)
|
Date |
Event |
|
1976 |
Lawsuits are filed by the State of Nebraska, the National Audubon Society, and the National Wildlife Federation against the Corps of Engineers and against the Rural Electrification Administration (REA, now the Rural Utilities Service, in the U.S. Dept. of Agriculture). The suits (later consolidated as two cases, Nebraska v. REA and Nebraska v. Ray) allege a failure to consult with the FWS under §7, and a possible violation of NEPA. |
|
12/1976 |
REA grants a loan guarantee to the Basin Electric Power Cooperative for construction of Grayrocks Dam. |
|
10/1977 |
Corps requests §7 consultation with FWS. FWS initially replies that a three-year study is necessary before it can offer a BiOp on the effects of the project. |
|
3/1978 |
Corps issues a §404 dredge and fill permit under the Clean Water Act. |
|
5/15/1978 |
FWS designates parts of Platte River as critical habitat for whooping cranes. |
|
7/19/1978 |
Senate passes ESA reauthorization; bill contains an exemption process, which creates an Endangered Species Committee (ESC), but no specific exemption for Grayrocks (or Tellico Dam). |
|
9/30/1978 |
Scheduled expiration of ESA authorization. |
|
10/1978 |
Federal district court finds that Corps and REA violated §7 and issues an injunction to halt the project. The case is appealed to the 8th Circuit, which stays the lower court injunction. |
|
10/14/1978 |
House passes ESA reauthorization; bill contains an exemption process and specific language affecting Grayrocks (and Tellico). |
|
10/14/1978 |
House and Senate pass ESA conference report (for S. 2899). Provisions on Grayrocks and Tellico require that (1) the ESC meet within 30 days of enactment; (2) exemptions must be granted if stated provisions are satisfied; and (3) decision must be made within 90 days of enactment, or both projects automatically exempted. A separate provision, based on a possible settlement in the Grayrocks case, states that if FWS renders a BiOp that the project as then planned would jeopardize the cranes, then REA, DOI, and Corps must require modifications to insure that the Grayrocks project does not jeopardize the continued existence of endangered species (i.e., whooping cranes). |
|
11/10/1978 |
President Carter, despite encouragement from DOI Secretary for a veto, signs ESA reauthorization (P.L. 95-632). |
|
11/1978 |
FWS concludes that Grayrocks would jeopardize the survival of whooping cranes. (Note: exact date of this BiOp is uncertain, but it is after November 10, 1978, when P.L. 95-632 was signed.) |
|
12/4/1978 |
Parties to Nebraska v. REA reach a settlement that would place restraints on operation of the Grayrocks reservoir and establish a permanent irrevocable trust fund of $7.5 million for maintenance of the cranes' critical habitat. But before the agreement is finalized, parties agree that three conditions must be met: (1) DOI must concur that the implemented agreement and completed project would satisfy the requirements of ESA; (2) either the project gets an exemption from ESA, or the ESC determines that no exemption is needed; and (3) the federal appeals court must dismiss the litigation with prejudice (i.e., the plaintiffs cannot file the same suit unless the agreement is violated). |
|
12/8/1978 |
ESC meets to consider exemption. Also, FWS issues BiOp on the effects of the Grayrocks project. |
|
1/8/1979 |
Simultaneous hearings in Cheyenne, WY, and Washington, DC, on exemption proposal. |
|
1/10/1979 |
Deadline for comments for record for ESC deliberations. |
|
1/19/1979 |
Staff report to ESC is issued for their use as background in determining whether to grant an exemption. |
|
1/23/1979 |
ESC grants exemption for Grayrocks Dam and Reservoir by unanimous vote. Decision requires specified mitigation measures: (1) limiting maximum annual water use to 23,250 acre-feet/year; (2) making certain releases of water at critical times of year; (3) replacing water withdrawn in an irrigation project in the Platte River watershed; (4) creating a permanent trust fund of $7.5 million for maintenance and enhancement of critical habitat for the cranes on the Platte River; and (5) other specified measures. Exemption is granted on the condition that mitigation and enhancement features are funded concurrently with the rest of the project, paid for by the project, and carried out without regard to the final settlement and compromise signed by the litigants in Nebraska v. REA and Nebraska v. Ray. |
|
2/8/1979 |
If no ESC decision had been made by ESC before this date, the Grayrocks project would have been automatically exempted. |
Source: Compiled from Federal Register notices, legislative histories, and contemporary press accounts.
Exemption for BLM Timber Sales, Oregon
Throughout the 1980s and 1990s, controversy abounded in the Pacific Northwest over timber harvests from federal lands. The various players included hikers, large and small timber companies, commercial fishermen and recreational anglers, Indian tribes, hunters, motorized recreation interests, water users, birders, and others. Key federal laws included the National Environmental Policy Act, the National Forest Management Act, and the Federal Land Policy and Management Act. And though the litigation history under these statutes regarding timber management in the Northwest is rich and complex, not until the listing of the northern spotted owl as threatened on June 26, 1990, was the ESA a major factor in the debate. The conflict arose because this species is heavily dependent in its entire life cycle on old growth forests of the type found in the Cascades in southern British Columbia, Washington, Oregon, and northern California. The same forest characteristics that make an area valuable to this species also make it valuable to the timber industry.44
The Bureau of Land Management (BLM) manages large tracts of old growth forest in Oregon, where conflict had arisen many times; the presence of the threatened spotted owl was a new complication. BLM submitted its proposed FY1991 timber sale program to FWS for §7 consultation. The history below contains lawsuits and actions based on the ESA, but omits the many legal actions based on other statutes (e.g., the initial lawsuits against Forest Service timber sales under the National Forest Management Act).
|
Date |
Event |
|
1/1987 |
First petition to list northern spotted owl (NSO) is filed. Petition asks endangered status. |
|
12/1987 |
FWS finds that NSO listing is not warranted. Lawsuits follow regarding the decision. |
|
6/26/1990 |
NSO listed as threatened; no critical habitat is designated at the time of listing. |
|
?/1990 |
BLM submits its FY1991 timber sales plan to FWS for consultation. |
|
?/1990 |
FWS rejects 52 BLM sales (about 1/3 of planned sales) as jeopardizing the continued existence of NSO. |
|
9/25/1991 |
Of the 52 sales, BLM submits 44 to ESC for an exemption. |
|
10/22/1991 |
DOI Secretary Lujan determines that BLM application meets three statutory standards to qualify for exemption and accepts application. |
|
?/1991 |
State Department certifies that United States is party to no international agreement that would protect NSO from effects of proposed sales. |
|
1/15/1992 |
FWS designates critical habitat for NSO. |
|
4/15/1992 |
ESC receives Secretary's report on proposed sales. |
|
5/14/1992 |
ESC meets. Secretary Lujan proposes that 31 of the sales be rejected: 11 had reasonable and prudent alternatives, 12 were in critical habitat or designated conservation areas under recovery plan, and 8 were not regionally significant. The remaining 13 sales were then considered for exemption. NOAA Administrator offers amendment to strengthen mitigation measures; amendment is accepted. |
|
5/14/1992 |
ESC approves exemption for remaining 13 sales (5 yeas, 2 nays; EPA Administrator and Oregon representative voting in the negative). BLM required to fund mitigation measures concurrently with execution of sales. |
|
5/1992 |
Environmental groups file suit against decision, arguing among other things that decision violates Administrative Procedure Act and is politically rather than scientifically based (Portland Audubon Society v. Endangered Species Committee, 984 F.2d 1534 (9th Cir. 1993)). |
|
6/3/1992 |
ESC publishes record of decision in Federal Register. |
|
4/19/1993 |
BLM withdraws request for exemption, making lawsuit moot. Status of 13 approved sales remains in doubt, due to lawsuits under other laws. BLM subsequently withdraws the sales themselves from its timber program. |
Three Attempts at an Exemption
In addition to the three completed applications, there were three other instances in which applications were filed, but the applications were withdrawn or abandoned.
Pittston Refinery, Eastport, Maine
The Pittston Company wished to build an oil refinery at Eastport, ME, in the mouth of the Bay of Fundy, an area with one of the world's greatest tidal fluctuations (over 20 feet). In its BiOp, FWS held that the refinery would jeopardize bald eagles, and NMFS held that the project would endanger whales. Initially, EPA denied Pittston's application for a permit to discharge effluent. In 1979, the company responded with two actions. First it sought an administrative appeal of the denial. Second, it applied for an exemption under ESA. The company felt it was forced to take the two actions simultaneously because the ESA required an application to be filed within 90 days of the denial of a permit. In January 1979, the various parties agreed to suspend the exemption process while a compromise was sought. The effort at compromise was not successful.
Environmental groups sued, asking an injunction to stop the application. They argued that the case was brought prematurely, before the issue had finished with the administrative appeals process. In effect, they argued that the ESA itself was poorly written, in that it forced the applicant to carry out two procedures (appeal and exemption) simultaneously.45 The U.S. Justice Department agreed that the law was unclear and that the exemption process should not run concurrently with an appeal. The court eventually agreed that the exemption process could not begin until the appeals process was finished.46
This confusion, and apparent conflict, was addressed by Congress in the 1982 amendments to ESA. These amendments clarified that the exemption process was to be invoked only after the issuance of a BiOp and after other means of compliance had failed. In the case of a permit or license, the exemption process must also wait until after an agency formally denies the permit or license.47 The applicant may not simultaneously seek an administrative appeal and an exemption.
Docking Area, Mound City, Illinois
The Consolidated Grain and Barge Company (CGBC) sought to build a docking area for barges on the Ohio River at Mound City, IL. The area was habitat for the endangered orange-footed pearly mussel, Plethobasus cooperianus. FWS issued a jeopardy BiOp to the Army Corps of Engineers (Corps) which denied the permit on that basis. Initially, the owner of the property agreed to provide funds for the exemption application, although CGBC was not willing to commit similar funds. On November 6, 1985, FWS published notice of the application in the Federal Register.
On December 6, 1985, FWS published a Federal Register notice of a hearing to be held in St. Louis, MO, on January 28, 1986. The notice indicated that the DOI Secretary agreed that the threshold criteria for calling for the exemption had been met, and set the details for the next stage of the process, that is, the hearing. The notice also reminded interested parties that the applicant had the burden of proof in the proceedings.48
At a pre-hearing conference with an administrative law judge on January 8, 1986, CGBC sent no one to represent its interests. A partner in a law firm of the lawyer hired by the landowner was present, but said he had limited information concerning the issue. He had no list of witnesses on which to call. The lawyer asked for a one-week extension of the hearing, but before it was held, the application was withdrawn.
Dredging Alligator Pass in Suwanee Sound, Florida
On July 30, 1986, the consulting engineer of the Suwanee River Authority (SRA) applied for an exemption for a project to dredge Alligator Pass in Suwanee Sound, FL, an area that provided habitat for the endangered manatee. It is not clear that the consulting engineer had authority from the SRA to apply on its behalf. The project needed a permit from the Corps, which had denied it, primarily on the grounds of the presence of manatees.
On August 12, 1986, the board of the SRA refused to ratify the actions of the consulting engineer and asked that the application be withdrawn. In a letter on his own stationery, the engineer asked that the application be continued. After a further exchange of contradictory letters, the withdrawal stood.
California Central Valley Project and State Water Project (Delta Pumping)
In 2004, the Bureau of Reclamation, Department of the Interior, issued a biological assessment on a revised plan (OCAP) for operation of its Central Valley Project (CVP) in coordination with California's State Water Project (SWP). Reclamation also requested consultation with both Services on the plan's effects on several federally listed threatened and endangered species. Both the SWP and the CVP involve operation of multiple dams, canals, and other facilities to store and deliver water throughout California. At the heart of the projects are massive pumps that take water from the confluence of the San Joaquin and Sacramento Rivers' Delta with the San Francisco Bay (Bay-Delta, or Delta) and move water south to agricultural, municipal, and industrial water users in central and southern California. Due to multiple factors including court rulings and the Services' findings of insufficiency, Reclamation issued revised Biological Assessments (BAs) in August and October of 2008.
Both FWS and NMFS later issued BiOps, which concluded that continued operation of the CVP and SWP under the proposed OCAP would jeopardize the continued existence of several listed species. The latest FWS opinion, issued on December 15, 2008, found that proposed operations under OCAP would jeopardize the continued existence of threatened Delta smelt and adversely modify its critical habitat. The most recent NMFS opinion, issued June 4, 2009, found that proposed operations under OCAP "are likely to" jeopardize the continued existence of federally listed Sacramento River winter-run Chinook salmon (endangered), Central Valley spring-run Chinook salmon (threatened), Central Valley steelhead (threatened), Southern Distinct Population Segment of North American green sturgeon (threatened), and Southern Resident killer whales (endangered). NMFS also found that the proposed action is likely to destroy or adversely modify the critical habitats of both Chinook salmon species, the Central Valley steelhead, and the proposed critical habitat for the green sturgeon, as well as adversely affect Essential Fish Habitat (EFH, under the Magnuson-Stevens Fishery Conservation and Management Act) for Pacific Coast Salmon species within the action area.49
The RPAs included in both Service opinions call for changes in the timing and quantity of water that can be pumped from the Delta, thereby at times limiting the amount of water that can be delivered to certain water users south of the Delta. The timing of these opinions was especially difficult for water users because the opinions came as California was experiencing its third straight year of drought conditions and some water users were already experiencing reduced water deliveries due to drought and other environmental restrictions. Agricultural water users in the San Joaquin valley in particular were hard hit by the water reductions. Some areas in which water users received only 10%-18% of their contracted CVP allocations had historically high unemployment and were also affected by turbulent financial markets and a significant downturn in the construction industry. Consequently, some advocated overriding the BiOps via congressional mandate, or by petitioning the governor and the President to begin the ESA exemption process.50
If Reclamation or the California Department of Water Resources (DWR) had rejected either of the BiOps or found the RPAs unworkable, either DWR could have recommended that the governor seek an exemption or Reclamation could have sought an exemption from ESA. Neither agency did so; however, both BiOps have been challenged in federal court. Currently, both BiOps are being revised at the direction of the federal court for the Eastern District of California. The practical effect of the court's rulings is ongoing coordination among the action agencies and the Services in implementing the RPAs and, in some cases, modification of the RPAs as conditions warrant. (For more information on the legal status of the BiOps, see out-of-print CRS Report R41876, Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary, available upon request from the author.)