Reauthorization of the Endangered Species Act

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 AUTHOR: 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 0412 CRS- 1 I S S U E DEFINITION The Endangered Species Act of 1973 (P.L. 93-205; 16 USC 1531-1543) is 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 for powerful environmental laws and a n international model. Authorization appropriations t o carry o u t the purposes of the Act under several of its 30, 1 9 8 2 , unless reauthorized i n the current 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 conservationists, 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 others. As the Act is the domestic implementing legislation 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 these treaty responsibilities, most particularly with r e s p e c t to export o f pelts o f American bobcats. BACKGROUND AND POLICY ANALYSIS The Endangered Species Act of 1973 (P.L. 93-205; 1 6 U.S.C. 1531-1543; 87 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 1969 (P.L.'s 89-669 and 9 1 - 1 3 5 , respectively. It underwent 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 substantive 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. The ESA i m p l e m e n t s , for t h e U.S., the Convention on International Trade in Endangered S p e c i e s of Wild Fauna and F l o r a (TIAS 8249) signed by the United States March 3 , 1973, and the Conventi'on on Nature Protection and Wildlife Preservation in 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. Section 7 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 CRS- 2 IB82046 UPDATE-04/12/82 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 Stat.1493). 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 , 1979). 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 through FY82. In 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 FY80-82. 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 plants. 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 not accountable to a n y public official. T h e 7-member p a n e l , stripped of 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 CRS- 3 IB82046 UPDATE-04/12/82 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 standard 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 extended 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 through FY82. 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. Present Issues 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. Principal 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 protected. Some interests would like the Act amended to restrict its coverage to the "higher life f o r m s w - - usually the chordates (principally vertebrates) among a n i m a l s , and seed plants a n d ferns a m o n g plants. In a d d i t i o n , some of the interests propose to eliminate protection for any subspecies and taxonomic category lower than full species -- i.e. , populations. 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. It 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 Amendments. 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 CRS- 4 IB82046 UPDATE-04/12/82 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. They see administrative a c t i o n remedying this a l l e g e d source o f confusion, not legislative action. Bobcats T h e bobcat is n o t listed on t h e U.S. list of endangered or threatened species. 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 (CITES), 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., through 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. State game 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 not. 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. They believe the international treaty obligations of the U.S. under C I T E S a r e properly a 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. Most 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. Many 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 they obtain the 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 one-year reauthorization without extensive amendment. Meanwhile, the 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. Senator Chafee, chairman of the S e n a t e Environment's Environmental Pollution Subcommittee, is reported drafting a multi-year reauthorization measure. His 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 CRS- 5 reauthorizations. Budgetary impacts Concern with reauthorization o f appropriations for the Endangered Species Act is inevitably intertwined with concern for a c t u a l appropriations and expenditures. The Administration has proposed a FY 83 budget f o r the Fish a n d Wildlife Service's endangered species program of $ 1 6 , 5 5 0 , 0 8 0 which is a b o u t 7 % below l a s t year's level, T h e proposed budget would reduce the 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 proposes z e r o funding under Section 6 for Federal-State cooperative endangered species program work. Additionally, the National Marine Fisheries S e r v i c e ' s endangered species 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 assumed the reauthorizing committees will seek to influence appropriations and obligations of the Administration with respect 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 Actual FY 1 9 8 2 Estimate (in thousands) are shown FY 1 9 8 3 Request Listing Protection Consultation Maintenance/Recovery Grants (to states) TOTAL Other issues Reauthorization measures may i n c l u d e proposed c h a n g e s affecting listing and delisting of species as endangered or threatened; the role of economics 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 of critical habitat; and degree of "intent" to be shown f o r prosecutions o f "takingst' of listed species. LEGISLATION S. 2309 (Chafee, Mitchell, and Gorton) Authorization of Appropriations Under the Endangered Species Act of 1973. Amends the Endangered Species Act of 1 9 7 3 , a s a m e n d e d ; t o encourage species listings by requiring that the Secretary of the Interior decide within two years whether or n o t to list a proposed s p e c i e s ; to clarify States' responsibilities f o r managing non-endangered resident species by not requiring the Secretary of the Interior when making non-detriment decisions i n accordance with CITES to use population estimates i f these a r e not the best available biological data; to eliminate possible conflict between section 7 and section 9 of the Act by exempting taking violations that a r e CRS- 6 made in the course of activities addressed by a biological opinion under section 7 ; to encourage new populations o f endangered species by treating 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 million 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 of 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. Mar. 30, 1982; referred to for Committee HEARINGS U.S. Congress. House. Committee o n Merchant Marine and Fisheries. Subcommittee on Fisheries and Wildlife Conservation and the Environment. Oversight and Reauthorization of the Endangered Species Act. 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. U.S. Congress. 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. In press U.S. fiscal Congress. 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 held REPORTS AND CONGRESSIONAL DOCUMENTS U.S. Congress. Senate. Committee o n Environment and Public Works.Subcommittee on Environmental Pollution. A legislative 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 Print. "Serial no. 97-6" on CRS- 7 CHRONOLOGY OF E V E N T S 09/30/82 -- 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 04/19/82-04/22/82 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. 03/08/82 -- 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 Fisheries Committee. 02/22/82 -- Ditto 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 1982. Holden, Constance. Endangered S p e c i e s Act in Jeopardy. v. 2 1 5 , Mar. 5 , 1982: 1212-1214. Science, 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: 1,3,6,8. U.S. Library of Congress. Congressional Research Service. Endangered Species Act and CITES (by) William C. Jolly. 5p. 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.