R E A U T H O R I Z A T I O N OF T H E E N D A N G E R E D S P E C I E S ACT
I S S U E BRIEF NUMBER IB82046
W i l l i a m C. J o l l y
Environment and Natural Resources Policy Division
T H E LIBRARY OF CONGRESS
CONGRESSIONAL RESEARCH SERVICE
MAJOR ISSUES SYSTEM
DATE ORIGINATED 04/01/82
DATE UPDATED 04/12/82
FOR ADDITIONAL INFORMATION CALL 287-5700
I S S U E DEFINITION
The Endangered Species Act of 1973 (P.L.
93-205; 16 USC
widely regarded by its proponents as o n e of this c o u n t r y ' s most i m p o r t a n t a n d
powerful environmental laws and a n international model.
appropriations t o carry o u t the purposes of the Act
1 9 8 2 , unless reauthorized
i n the
sections expires o n Sept.
s e s s i o n of Congress.
D e b a t e o n reauthorization r e v e a l s divergent
v i e w s on
t h e relative worth and workability of t h e Act a s
seen b y
business g r o u p s , State game and fish o f f i c i a l s , the Federal G o v e r n m e n t a n d
As the Act
is the domestic implementing
f o r U.S.
obligations under the Convention o n International T r a d e in Endangered Species
of Wild Fauna a n d F l o r a (CITES), reauthorization d e b a t e also a d d r e s s e s
treaty responsibilities, most particularly with r e s p e c t to export o f pelts o f
BACKGROUND AND POLICY ANALYSIS
The Endangered Species Act of 1973 (P.L. 93-205; 1 6 U.S.C.
Stat. 8 8 4 1 , a s a m e n d e d , grew out o f earlier, simpler a c t s in 1 9 6 6 a n d
(P.L.'s 89-669 and 9 1 - 1 3 5 , respectively.
limited a m e n d m e n t
(including reauthorizations) in 1 9 7 6 , 1 9 7 7 , and 1 9 8 0 , and m o r e
amendment with respect to section 7 , i n particular i n 1 9 7 8 a n d 1 9 7 9 , a n d with
respect to section 8 , i n 1979.
i m p l e m e n t s , for t h e
Convention on International Trade in Endangered S p e c i e s of Wild
F l o r a (TIAS 8249) signed by
3 , 1973, and
Conventi'on on Nature Protection and Wildlife
t h e Western
Hemisphere (50 Stat. 1354; T S 981) signed by the United States Oct. 1 2 , 1940.
T h e 1973 ESA provides:
for the conservation of threatened and endangered species
of f i s h , wildlife and plants by Federal a c t i o n and by
encouraging the establishment of State programs.
T h e Act
a u t h o r i z e s the determination a n d listing of endangered a n d
threatened species a n d the range i n which such condition
exists; prohibits unauthorized taking, possession, s a l e ,
t r a n s p o r t , etc., of endangered species; provides a u t h o r i t y
to a c q u i r e land f o r the conservation of listed species
with l a n d and water conservation funds; a u t h o r i z e s
establishment of cooperative agreements and grant-in-aid
to t h o s e States which establish and maintain a n a c t i v e a n d
a d e q u a t e program for endangered a n d threatened wildlife;
and authorizes the assessment of civil and criminal
penalties for violating the Act o r regulations.
of the Endangered Species Act requires Federal agencies to
insure that any action authorized, funded o r carried o u t
by them does not jeopardize the continued existence o f l i s t e d
species or modify their critical habitat.
Public Law 94-325,
approved J u n e 3 0 , 1 9 7 6 (90 Stat. 724), extended and i n c r e a s e d the
authorization of appropriations i n section 1 5 of the 1 9 7 3
Act. Public L a w 94-359, approved July 1 2 , 1 9 7 6 (90 Stat.
911), exempted under certain conditions whale parts a n d
products lawfully held prior to December 2 8 , 1 9 7 3 , from
the prohibitions in the Act and provided other a m e n d m e n t s
to facilitate administrative processes i n emergency
situations, clarified enforcement procedures, a l l o w e d
disposal of forfeited a n d abandoned property a n d clarified
the definition of "commercial a c t i v i t y - " T h e a u t h o r i z a t i o n
of appropriations for F e d e r a l grant-in-aid to S t a t e s w a s
extended by Public L a w 95-212 o n December 1 9 , 1 9 7 7 (91
Public L a w 95-632, signed by the P r e s i d e n t o n
November 1 0 , 1 9 7 8 (92 Stat. 375), extended the section 1 5
authorization of appropriations through March 3 1 , 1 9 8 0 ,
and made extensive revisions in the 1973 law. A
Cabinet-level Endangered S p e c i e s Committee w a s established
a s part of a two-tiered process whereby Federal a g e n c i e s
may obtain a n exemption from the requirements of section
7. T h e T e l l i c o Dam project in Tennessee and the Grayrocks
project i n Wyoming were to receive expedited consideration
by the Committee.
T h e Secretary of Defense is authorized
to specify exemptions from the Act for reasons of national
security. T h e consultation process under section 7 was
formalized a n d strengthened, a n d now includes the requirement
that a Federal agency prepare a biological a s s e s s m e n t i n
cases where the Secretary has advised that a listed s p e c i e s
may be present. The 1 9 7 8 amendments a l s o o b l i g e the
Secretary to consider the economic ~ m p a c tof d e s i g n a t i n g
critical habitat and to review the list of endangered a n d
threatened species every f i v e years. Public notification
and hearing requirements prior to the listing of a species
or its habitat are specified. Other changes made by the
1 9 7 8 statute include: a provision for cooperative agreements
with States f o r the conservation of endangered a n d threatened
species of plants; exemptions from the A c t ' s requirenents
for the progeny of legally held captive raptors a n d
antique articles made before 1 8 3 0 ; and a revision of the
penalty provisions o f the Act.
(Office of Legislative
Services, U.S. Fish and Wildlife S e r v i c e , Department of
the Interior. Selected List of Federal Laws a n d T r e a t i e s
Relating to Sport Fish and Wildlife. Revised J a n u a r y ,
P u b l i c L a w 96-159, signed by the President o n Dec.
2 8 , 1 9 7 9 , authorized
appropriations to fund sections 7 a n d 1 5 of the Act
addition to provisions for funding endangered species work o f the Department
of Commerce and Interior, this Act authorized a p p r o p r i a t i o n s to support
Endangered Species Committee and review board functions (under section 7) f o r
Appropriations were a l s o authorized for the f i r s t time for the
Department of Agriculture to facilitate enforcement of both t h e Act and the
Convention on International Trade i n Endangered Species of Wild F a u n a and
F l o r a (CITES) with regard to the importation and exportation o f terrestrial
T h e 1 9 7 9 Amendments
d e s i g n a t e the Interior Secretary a s the
Endangered Species Scientific Authority (ESSA) under CITES.
F o r m e r l y , ESSA
w a s a 7-member independent panel with regulatory a u t h o r i t y , but
accountable to a n y public official.
T h e 7-member p a n e l , stripped
regulatory authority, remains a s the International Convention Advisory
Commission (ICAC). T h e Secretary n o w has the enforcement authority ESSA
formerly h a d , but if the Secretary rejects ICAC recommendations, reasons must
be published i n the Federal Register.
Finally the 1 9 7 9 Amendments made a
number o f revisions in the ESA a b o u t public meetings, notice r e q u i r e m e n t s ,
status r e v i e w s , critical habitat notifications, consultation requirements of
Federal a g e n c i e s , a n d other administrative matters.
T h e jeopardy
under section 7 was changed from "would jeopardize" to the more f l e x i b l e "is
likely to jeopardize." The d e a d l i n e for the s a l e of scrimshaw was
under the amendments f o r three m o r e years i n cases w h e r e whale parts and
products were i n stock prior to 1973.
P u b l i c L a w 96-246,- signed by t h e President o n Hay 2 3 , 1 9 8 0 , authorized
appropriations f o r cooperative endangered s p e c i e s programs with t h e States
T h u s , appropriation authorizations for sections 6 , 7 , a n d 15
of the ESA were placed on the s a m e expiration time f r a m e , a l l expiring on
Sept. 3 0 , 1 9 8 2 , if n o t reauthorized.
More detailed information o n t h e issues a n d legislative history of the ESA
through 1 9 8 0 can be found in the C R S Archived Issue Brief IB79601 -- Wildlife
a n d Fisheries: Endangered and Threatened Species.
Despite the major oversight r e v i e w conducted and the substantive changes
i n the 1 9 7 3 Act enacted by the 9 5 t h and 96th Congress, there remain a number
of aspects of the l a w and/or
i t s administration which a r e not wholly
satisfactory t o one o r more of t h e numerous interested parties.
among them are:
Taxa of species (Itkinds of organisms") covered
species or subspecies o f a n i m a l s or a
Under the present l a w , any
population of a vertebrate a n i m a l that is threatened with extinction can be
Some interests would
like the Act amended to restrict its
coverage to the "higher life f o r m s w - - usually
vertebrates) among a n i m a l s , and seed plants a n d ferns a m o n g plants.
a d d i t i o n , some of the interests propose to eliminate protection for any
lower than full species -- i.e. ,
Conservation interests and biologists generally favor keeping
potential protection inclusive of a l l forms of life and of sub-specific
taxonomic l e v e l s , too.
Section 7 provisions
From i t s inception this has been a controversial section of the Act.
prohibits F e d e r a l agencies from carrying o u t public projects or issuing
permits f o r private projects that would either jeopardize listed s p e c i e s or
harm their habitat.
Agencies prepare a "biological assessmentq1 (which may be
time-consuming and costly) which supports their conclusion about whether a
proposed project would affect a n y listed species.
If harmful a f f e c t s are
anticipated, the agencies must
consult with the a p p r o p r i a t e Secretary
(Commerce or Interior) who then issues a n opinion o n whether the project
would " j e o p a r d i z e w a species and who identifies alternative ways t o effect
the project o r its purposes.
If the Federal a g e n c y , a S t a t e g o v e r n o r , o r a
project sponsor disagrees with t h e Secretarial opinion, a request for an
exemption may be filed under procedures
C o n g r e s s established i n the 1 9 7 8
S o m e g r o u p s , including those i n o i l and g a s , m i n i n g , a n d utility
industries, consider the 1 9 7 8 Amendments d o not g o far e n o u g h , a n d believe
the Act still either blocks needed economic development, o r imposes excessive
economic burdens f o r industrial compliance.
Opponents to the present
language would prefer to have agency c o m p l i a n c e made discretionary or
otherwise limit the k i n d s of F e d e r a l activities to which the section applies.
Supporters of the present language, while a g r e e i n g administration of i t can
be i m p r o v e d , argue t h e section has worked w e l l , has provided for conservation
efforts which are compatible with development, a n d deny that it has really
interfered with economic development.
Some supporters of present S e c t i o n 7
provisions believe t h e failure o f the D e p a r t m e n t s o f Commerce a n d the
Interior t o promulgate final regulations f o r implementing Section 7 i s
actually a part of t h e problem
some have with the section.
administrative a c t i o n remedying
this a l l e g e d source o f confusion, not
T h e bobcat is n o t listed on t h e U.S.
list of endangered or threatened
However, i t i s listed on Appendix I1 of the Convention on
International Trade i n Endangered Species of Wild F a u n a a n d F l o r a
the a p p e n d i x which c o v e r s species
judged i n risk of becoming endangered
unless international trade i s regulated. T h e treaty stipulates that export of
such listed species c a n be granted by a signatory nation o n l y if it i s not
detrimental to the survival of t h e species.
Attempts by t h e U.S.,
the Fish and Wildlife Service, to issue such export permits have been blocked
i n the Federal courts by the Defenders of Wildlife on grounds the Government
data on bobcat populations and harvests are i n a d e q u a t e to determine whether
such export is or i s n o t detrimental to the s p e c i e s ' survival.
management agencies, represented by the International Association of F i s h and
Wildlife Agencies, f a v o r s amending the Act to modify the data requirements as
interpreted by the F e d e r a l c o u r t s , and/or to assign responsibility to the
States f o r making t h e determination of whether
exports a r e detrimental or
T h e State a g e n c i e s maintain they, not t h e Federal Government, a r e best
equipped t o set harvest quotas a n d make biological s t a t u s determinations.
Environmental groups i n opposition charge the State game agencies h a v e a
vested interest in loosening e x p o r t standards, a s such a g e n c i e s d e p e n d , in
part, o n funding from hunting, fishing and trapping licenses.
the international treaty obligations of the U.S. under C I T E S a r e properly
matter for Federal assurance.
Length of reauthorization
T h e r e i s disagreement over the period of reauthorization. The length of
reauthorization a f f e c t s how soon a n d in what political climate d e b a t e and
political decisions a r e made over
substantive changes in the Act.
environmental groups a n d scientists prefer a l o n g reauthorization to a v o i d
annual a t t a c k s on t h e controversial act each t i m e i t is reauthorized.
i n d u s t r i e s , concerned about stoppage o r delay of economic development
projects, favor k e e p i n g the Act o n a short leash--unless
substantive changes i n the Act which they favor. Secretary of the Interior
Watt w r o t e to the chairmen of t h e House a n d Senate Subcommittees which
oversee the Act, a n d which consider reauthorization measures, in f a v o r of a
reauthorization without extensive amendment.
Commerce Department's National Marine Fisheries Service was cleared by O M B to
testify i n favor of a 2-year reauthorization without amendments.
Chafee, chairman of
the S e n a t e Environment's
Subcommittee, is reported drafting a multi-year reauthorization measure.
counterpart in the H o u s e , Congressman Breaux of the Fisheries and Wildlife
Conservation and the Environment Subcommittee of the Merchant Marine and
Fisheries Committee, is reported considering either o n e or two- year
Concern with reauthorization o f appropriations for the Endangered
Act is inevitably intertwined with
concern for a c t u a l appropriations and
The Administration has proposed a FY 83 budget
f o r the Fish
a n d Wildlife Service's endangered species program
$ 1 6 , 5 5 0 , 0 8 0 which
a b o u t 7 % below l a s t year's level,
T h e proposed
Endangered Species Office's law enforcement a c t i v i t i e s by $880,000, mostly by
reducing by a b o u t 4 0 , the over 2 0 0 l a w enforcement a g e n t s carrying o u t ESA
work to 160 agents. A l s o , the Administration
z e r o funding under
Section 6 for Federal-State cooperative
Additionally, the National Marine
S e r v i c e ' s endangered
program is proposed to be reduced by over $ 5 0 0 , 0 0 0 to less than $2.5 million
in FY 83.
It can be
influence appropriations and obligations of the Administration
to endangered species work.
Highlights of t h e Endangered S p e c i e s program budget categories
i n the following table.
F Y 1981
FY 1 9 8 2
FY 1 9 8 3
Grants (to states)
Reauthorization measures may i n c l u d e proposed
c h a n g e s affecting
and delisting of species as endangered or threatened; the role of
in determining whether species should be listed a s opposed to determining how
much should be d o n e to protect t h e m ; designation
critical habitat; and
degree of "intent" to be
shown f o r prosecutions o f
"takingst' of listed
S. 2309 (Chafee, Mitchell, and Gorton)
Authorization of Appropriations Under the Endangered Species Act of
Amends the Endangered Species Act of 1 9 7 3 , a s a m e n d e d ; t o encourage
listings by requiring that the Secretary of the Interior decide within
or n o t
to list a proposed
s p e c i e s ; to clarify States'
responsibilities f o r managing
requiring the Secretary of the Interior when making
i n accordance with CITES to use population estimates i f
these a r e not
section 7 and section 9 of the Act by exempting taking violations
that a r e
made in the course of activities addressed by a biological
section 7 ; to encourage new populations o f endangered
non-essential experimental populations, to the extent that they a r e not o n
national wildlife refuges, as proposed
s p e c i e s , thus excluding them from
crltical habitat d e s i g n a t i o n , the section 7 jeopardy standard, and the
section 9 taking prohibition; to streamline the section 7 exemption process
by substituting the Secretary of the Interior o r of Commerce, a s appropriate,
f o r the Review Board and shortening the process from 3 6 0 to 2 0 0 days; t o
reauthorize the A c t f o r 4 y e a r s at current levels: $ 2 7 million f o r D O I , $3.5
for D e p a r t m e n t o f Commerce, $1.85
million for D e p a r t m e n t
Agriculture, $6 million f o r the STates u n d e r section 6 ; to change t h e Federal
share of matching g r a n t s t o the States from 662/3 to 75%; and t o give t h e
Attorney General injunctive authority.
S. 2310 (Chafee, by request)
Amends the Endangered Species Act of 1 9 7 3 , to authorize funds
years 1983 and 1 9 8 4 , and has other purposes.
Both bills were introduced
Environment and P u b l i c Works.
House. Committee o n Merchant Marine and
Fisheries. Subcommittee on Fisheries and Wildlife
Conservation and the Environment.
Reauthorization of the Endangered
H e a r i n g s , 97th C o n g r e s s , 2d session.
Not yet printed
Feb. 2 2 , Mar. 8 , 1982.
Senate. Committee o n Environment and Public
Works. Subcommittee on Environmental Pollution. Endangered
Species Act Oversight. H e a r i n g s , 9 7 t h C o n g r e s s , 1st s e s s i o n ,
Dec. 8 , 1 0 , 1981.
Senate. Committee on Environment and Public
Works.Subcommittee on Environmental Pollution. Reauthorization
of the Endangered Species Act.
H e a r i n g s , 9 7 t h Congress,
2d s e s s i o n , scheduled f o r Apr. 1 9 and 2 2 , 1982.
Not y e t
REPORTS AND CONGRESSIONAL DOCUMENTS
Senate. Committee o n Environment and Public
Works.Subcommittee on Environmental Pollution.
history o f t h e Endangered S p e c i e s Act of 1 9 7 3 , a s amended
i n 1 9 7 6 , 1 9 7 7 , 1 9 7 8 , 1 9 7 9 and 1980. February 1982.
W a s h i n g t o n , U.S. Govt.
Print. Off., 1982.
1 , 5 0 6 p.
At head of title:
97th C o n g r e s s , 2d session. Committee
"Serial no. 97-6"
CHRONOLOGY OF E V E N T S
Authorization for appropriations f o r carrying o u t
the proposes o f the Endangered S p e c i e s Act of 1 9 7 3 ,
as amended, expires.
Hearings scheduled before t h e Environmental
Pollution Subcommittee of the Senate Environment
a n d Public Works C o m m i t t e e o n l e g i s l a t i o n (to be
introduced) to reauthorize the E n d a n g e r e d Species
Act of 1 9 7 3 , a s amended.
Oversiqht hearing on reauthorization o f the Endangered
Species Act of 1 9 7 3 , a s a m e n d e d , held by Fisheries
and Wildlife Conservation and the Environment
Subcommittee o f the House Merchant M a r i n e and
12/08/81 a n d 12/10/81 -- Oversight hearings on reauthorization o f
the Endangered Species Act of 1 9 7 3 , a s a m e n d e d , held by
the Environmental Pollution S u b c o m m i t t e e of the
Senate Committee on Environment and P u b l i c Works.
ADDITIONAL R E F E R E N C E SOURCES
Center f o r Environmental Education.
Endangered S p e c i e s Act
Reauthorization B u l l e t i n , No. 1 , 9 December 1 9 8 1 ; no. 2,
1 8 J a n u a r y 1982; no. 3 , 1 6 February 1982; no. 4, 8 March
Endangered S p e c i e s Act in Jeopardy.
v. 2 1 5 , Mar. 5 , 1982: 1212-1214.
U.S. Department of the Interior. F i s h and W i l d l i f e Service.
Endangered Species Program. Endangered S p e c i e s Technical
B u l l e t i n , v. 7 (l), January 1982:
U.S. Library of Congress.
Congressional Research Service.
Endangered Species Act and CITES (by) William C. Jolly.
Bec. 2 1 , 1981. Washington, 1981.
U.S. Library of Congress.
Congressional Research Service.
W i l d l i f e a n d Fisheries:
Endangered and Threatened Species
(by) William C. J o l l y and Judy L. Sheppard.
Archived Issue Brief 79061.