The Endangered Species Act (ESA) in the 112th Congress: Conflicting Values and Difficult Choices
Congressional research reportJan 16, 2013
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The Endangered Species Act (ESA) in the
112th Congress: Conflicting Values and
Difficult Choices
(name redacted)
Specialist in Natural Resources Policy
(name redacted)
Specialist in Natural Resources Policy
(name redacted)
Legislative Attorney
(name redacted)
Specialist in Natural Resources Policy
(name redacted)
Legislative Attorney
January 16, 2013
Congressional Research Service
7-....
www.crs.gov
R41608
CRS Report for Congress
Prepared for Members and Committees of Congress
The Endangered Species Act (ESA) in the 112th Congress
Summary
The Endangered Species Act (ESA; P.L. 93-205, 16 U.S.C. §§1531-1543) was enacted to
increase protection for, and provide for the recovery of, vanishing wildlife and vegetation. Under
ESA, species of plants and animals (both vertebrate and invertebrate) can be listed as endangered
or threatened according to assessments of their risk of extinction. Habitat loss is the primary
cause for listing species. Once a species is listed, powerful legal tools are available to aid its
recovery and protect its habitat. Accordingly, when certain resources are associated with listed
species—such as water in arid regions like California, old growth timber in national forests, or
free-flowing rivers—ESA is seen as an obstacle to continued or greater human use of these
resources. ESA may also be controversial because dwindling species are usually harbingers of
broader ecosystem decline or conflicts. As a result, ESA is considered a primary driver of largescale ecosystem restoration issues.
Major issues concerning ESA in recent years have included the role of science in decision
making, critical habitat (CH) designation, incentives for property owners, and appropriate
protection for listed species, among others.
Although many bills were introduced, little legislation related to ESA was enacted by the 112th
Congress. Committees conducted oversight of the implementation of various federal programs
and laws that address threatened and endangered species. P.L. 112-10 (final appropriations for
FY2011) included a legislative delisting of a portion of the reintroduced Rocky Mountain gray
wolf population. P.L. 112-74 provided slightly more than $237 million for FWS endangered
species and related programs; this FY2012 funding for FWS core ESA programs was 0.5% more
than the FY2011 enacted amount and 3.5% less than the FY2012 Administration request. P.L.
112-270 amended P.L. 106-392 to maintain annual base funding for the Upper Colorado and San
Juan fish recovery programs through FY2019.
The authorization for spending under ESA expired on October 1, 1992. The prohibitions and
requirements of ESA remain in force, even in the absence of an authorization, and funds have
been appropriated to implement the administrative provisions of ESA in each subsequent fiscal
year. Proposals to reauthorize and extensively amend ESA were last considered in the 109th
Congress, but none were enacted. No legislative proposals were introduced in the 110th, 111th , or
112th Congresses to reauthorize ESA.
This report discusses oversight issues and legislation that was introduced in the 112th Congress to
address ESA implementation and management of endangered and threatened species.
Congressional Research Service
The Endangered Species Act (ESA) in the 112th Congress
Contents
Introduction...................................................................................................................................... 1
Background ...................................................................................................................................... 1
Overview ................................................................................................................................... 1
Implementation of Wildlife Treaties .......................................................................................... 4
Issues in the 112th Congress ............................................................................................................. 5
Are Species Protection and Restoration Working? .................................................................... 5
“Sound Science” and ESA......................................................................................................... 8
Endangered Species and Climate Change ................................................................................. 9
Regional Resource Conflicts ................................................................................................... 11
Klamath River Basin ......................................................................................................... 11
Gray Wolf .......................................................................................................................... 12
Delta Smelt ........................................................................................................................ 14
Private Property and Fifth Amendment Takings...................................................................... 15
Additional Issues and Legislative Initiatives ........................................................................... 17
ESA Appropriations ................................................................................................................. 21
Fish and Wildlife Service .................................................................................................. 21
National Marine Fisheries Service .................................................................................... 23
Figures
Figure 1. Number of Listed Species, by Jurisdiction ....................................................................... 3
Figure 2. Density of Listed Species, by Jurisdiction ....................................................................... 4
Tables
Table 1. Percent Recovery Achieved Versus Time Listed ............................................................... 7
Table 2. Funding for FWS Endangered Species and Related Programs, FY2011-FY2013........... 22
Table 3. Funding for NMFS Protected Species Programs, FY2011-FY2013 ................................ 23
Contacts
Author Contact Information........................................................................................................... 24
Congressional Research Service
The Endangered Species Act (ESA) in the 112th Congress
Introduction
Increasing numbers of animal and plant species face possible extinction. Endangered and
threatened species—and the law that protects them, the 1973 Endangered Species Act (ESA, P.L.
93-205, as amended; 16 U.S.C. §§1531-1543)—are controversial, in part, because dwindling
species are often harbingers of resource scarcity. The most common cause of species’ decline is
habitat loss or alteration. Habitat loss occurs due to development, climate change, changes in land
management practices, competition from invasive species, and other factors, nearly all related to
economic, political, or social interests.1
ESA has been among the most contentious environmental laws because its substantive provisions
can affect the use of both federal and nonfederal lands and resources. Congress faces the issue of
how to balance these interests with the protection of endangered and threatened species and, as
stated in ESA, “the ecosystems upon which endangered species and threatened species depend.”
Because of strong support and strong opposition, ESA has not been reauthorized since the last
authorization expired in 1992. In the 109th Congress, there were several unsuccessful attempts to
enact comprehensive legislation that would have reauthorized ESA.2 Congressional efforts in the
110th, 111th, and 112th Congresses focused on addressing specific controversial features of ESA
and on oversight of concerns such as the science used for making decisions and designating
critical habitat, but little legislation related to ESA was enacted.3
Background
Overview
The 1973 ESA was a comprehensive attempt to protect species at risk of extinction and to
consider habitat protection as an integral part of that effort. In addition, an express purpose of
ESA is to “provide a means whereby the ecosystems upon which endangered species and
threatened species depend may be conserved” (16 U.S.C. §1531(b)). Under ESA, species of
plants and animals (both vertebrate and invertebrate) may be listed as either endangered or
threatened according to assessments of the risk of their extinction.4 More flexible management
can be provided for species listed as threatened, compared to those listed as endangered. Distinct
population segments of vertebrate species may also be listed as threatened or endangered.
Consequently, some populations of Chinook, coho, chum, and sockeye salmon in Washington,
Oregon, Idaho, and California have been listed under ESA, even as other healthy populations of
these same species in Alaska are not listed and may be commercially harvested. More limited
protection is available for plant species under ESA. Once a species is listed, legal tools, including
1
For example, see CRS Report RL34326, Apalachicola-Chattahoochee-Flint (ACF) Drought: Federal Water
Management Issues, coordinated by (name redacted).
2
For a review of action by the 109th Congress on ESA, see CRS Report RL33468, The Endangered Species Act (ESA)
in the 109th Congress: Conflicting Values and Difficult Choices, by (name redacted) et al.
3
For a review of action by the 110th Congress on ESA, see CRS Report RL33779, The Endangered Species Act (ESA)
in the 110th Congress: Conflicting Values and Difficult Choices, by (name redacted) et al.; for a review of action by the
111th Congress on ESA, see CRS Report R40185, The Endangered Species Act (ESA) in the 111th Congress:
Conflicting Values and Difficult Choices, by (name redacted) et al.
4
Endangered species are defined as “in danger of extinction throughout all or a significant portion of its range” while
threatened species are defined as “likely to become an endangered species in the foreseeable future throughout all or a
significant portion of its range.”
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The Endangered Species Act (ESA) in the 112th Congress
penalties and citizen suits, are available to aid species recovery and protect habitat. Use of these
tools, or the failure to use them, has led to conflict. A more detailed discussion of the major
provisions of ESA is provided in CRS Report RL31654, The Endangered Species Act: A Primer,
by (name redacted), (name redacted), and (name redacted).
ESA is administered by the Fish and Wildlife Service (FWS, Department of the Interior) for
terrestrial and freshwater species and some marine mammals, and by the National Marine
Fisheries Service (NMFS) in the Department of Commerce’s National Oceanic and Atmospheric
Administration for the remaining marine and anadromous5 species.6 The U.S. Geological
Survey’s Biological Resources Division conducts research on species for which FWS has
management authority; NMFS conducts research on the species for which it is responsible.
As of January 2, 2013, a total of 1,234 species of animals and 820 species of plants were listed as
either endangered or threatened under the ESA, of which the majority (619 species of animals and
817 species of plants) occur in the United States and its territories (see Figure 1 and Figure 2).7
The remaining species occur only in other countries.8 Of the 1,436 U.S. species, 1,143 (about
80%) are covered in active recovery plans.9 In the most recent data available, FY2011 federal and
state expenditures on endangered and threatened species totaled about $1.59 billion, of which
about $1.53 billion was reported by federal agencies and about $58 million was reported by the
states.10 The top 10 species with the highest total FY2011 expenditures (excluding land
acquisition costs) included 7 subpopulations of steelhead and Pacific salmon ($338 million
altogether), pallid sturgeon ($42 million), bull trout ($37 million), and red-cockaded woodpecker
($27 million).
5
Anadromous refers generally to fish that hatch in fresh water, migrate to the ocean to grow and mature, and then
migrate back to fresh water to reproduce.
6
For background on ESA programs of the two administering agencies, see FWS programs at http://www.fws.gov/
endangered/ and NMFS programs at http://www.nmfs.noaa.gov/pr/species/.
7
For comparison, the International Union for Conservation of Nature and Natural Resources (IUCN; World
Conservation Union) announced in 2011 that it considered 19,570 species to be threatened with extinction—an increase
of 1,219 species since 2010. In addition, the IUCN identified 825 species that had become extinct or were extinct in the
wild (i.e., found only in captivity or in cultivation), including 239 species in the United States. For more information,
see http://www.iucnredlist.org/about/summary-statistics.
8
As early as 1940, when the United States signed what is known as the Western Hemisphere Convention, the United
States has acknowledged a goal of conserving species and their habitats. Subsequent U.S. ratification of the Convention
on International Trade in Endangered Species of Wild Fauna and Flora (CITES) also confirmed U.S. interest in
preserving nature, not just on our own shores, but worldwide. ESA protects foreign endangered species by regulating
their importation into the United States, but does not directly regulate any take of foreign species in their country of
origin. FWS reviews foreign species under the ESA’s listing criteria and conducts a required regulatory and public
comment process before listing a foreign species under ESA. Listed foreign species can be imported to the United
States if they meet requirements of §10 or §4(d) of ESA.
9
Statistics are updated daily at http://ecos.fws.gov/tess_public/Boxscore.do.
10
Fish and Wildlife Service, Federal and State Endangered and Threatened Species Expenditures, Fiscal Year 2011;
available at http://www.fws.gov/endangered/esa-library/pdf/2011.EXP.FINAL.pdf.
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The Endangered Species Act (ESA) in the 112th Congress
Figure 1. Number of Listed Species, by Jurisdiction
Source: Created by CRS from the number of listed species available at http://ecos.fws.gov/tess_public/pub/
stateListing.jsp, March 30, 2012.
However, species do not exist in isolation, but evolve and fluctuate in abundance because of their
relationships with other species and the physical environment. Conservationists increasingly are
talking about not only species, but also ecosystems as the units of interest. At times, efforts to
protect and recover listed species are controversial; declining species often function like the
proverbial canary in the coal mine, by flagging larger issues of resource scarcity and altered
ecosystems. Past resource debates in which ESA-listed species were part of larger issues include
Tennessee’s Tellico Dam (water storage and construction jobs versus farmland protection and
tribal graves, as well as snail darters); Pacific Northwest timber harvest (protection of logging
jobs and communities versus commercial and sport fishing, recreation, and ecosystem protection,
including salmon and spotted owls); and the management of the Apalachicola Basin in Alabama,
Florida, and Georgia (allocation of water among metropolitan, agricultural, and industrial users
along with commercial and recreational fishing interests, as well as one listed fish and three listed
mussel species).
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The Endangered Species Act (ESA) in the 112th Congress
Figure 2. Density of Listed Species, by Jurisdiction
Source: Created by CRS from the number of listed species available at http://ecos.fws.gov/tess_public/pub/
stateListing.jsp, March 30, 2012; Areas of jurisdictions from Tables 1 and 17 in 2000 Census of Population and
Housing, available at http://www.census.gov/prod/cen2000/phc3-us-pt1.pdf.
Notes: Areas of jurisdiction include both land and water.
Implementation of Wildlife Treaties
ESA is the domestic implementing legislation for the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES; TIAS 8249), signed by the United States
on March 3, 1973; and the Convention on Nature Protection and Wildlife Preservation in the
Western Hemisphere (the Western Hemisphere Convention; 50 Stat. 1354; TS 981), signed by the
United States on October 12, 1940.11 CITES parallels ESA by dividing its listed species into
groups according to the estimated risk of extinction, but uses three major categories (called
appendices), rather than two.12 In contrast to ESA, CITES classifies species based solely on the
risk that trade poses to their survival. Under ESA, violations of CITES are also violations of U.S.
11
For additional background, see CRS Report R42447, The Endangered Species Act (ESA) as Implementing
Legislation for International Treaties, by (name redacted).
12
For additional information on CITES, see http://www.cites.org/.
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The Endangered Species Act (ESA) in the 112th Congress
law if committed within U.S. jurisdiction (16 U.S.C. §1538). ESA also regulates import and
export of controlled products and provides some exceptions.13
Both ESA and CITES address illegal trade in wildlife. International illegal wildlife trade is
estimated to be worth more than $10 billion annually and has been associated with the decline of
species, spread of disease, and proliferation of invasive species, among other things.14
In addition, FWS’s Multinational Species Conservation Fund (MSCF) benefits tigers, the six
species of rhinoceroses, Asian and African elephants, marine turtles, and great apes (gorillas,
chimpanzees, bonobos, orangutans, and the various species of gibbons). This fund supports
conservation efforts benefitting these species, often in conjunction with efforts under CITES.15
In the 112th Congress, H.Res. 47 would have expressed the sense of the House of
Representatives regarding the contributions of CITES and urged that CITES adopt stronger
protections for the polar bear, sharks, and bluefin tuna. H.R. 50 and Section 245(a-c) of S. 3525
would have reauthorized certain provisions of the MSCF related to elephants, rhinoceroses, and
tigers. H.R. 1456 and Section 246 of S. 3525 would have reauthorized the Neotropical
Migratory Bird Conservation Act through FY2017. H.R. 1760 and Section 245(d) of S. 3525
would have amended and reauthorized the Great Ape Conservation Act of 2000 through FY2017.
H.R. 1761 and Section 245(e) of S. 3525 would have amended and reauthorized the Marine
Turtle Conservation Act of 2004 through FY2017. On July 28, 2011, the House Natural
Resources Subcommittee on Fisheries, Wildlife, Oceans, and Insular Affairs held a hearing on
H.R. 50, H.R. 1760, and H.R. 1761. H.R. 3510, S. 3208, and Section 244 of S. 3525 would
have extended the authorization for the Multinational Species Conservation Funds Semipostal
Stamp Act.
Issues in the 112th Congress
ESA reauthorization has been on the legislative agenda since the funding authorization expired in
1992, and bills have been introduced in each subsequent Congress to address various aspects of
endangered species protection. Below are descriptions of some of the issues that received
attention in the 112th Congress.
Are Species Protection and Restoration Working?
The answer to this question depends on what is measured. Because a major goal of ESA is the
recovery of species to the point at which ESA protection is no longer necessary, this may be a
useful starting point.16 In the 39 years since ESA was enacted, 56 U.S. and foreign species or
13
For more information on CITES, see CRS Report RL32751, The Convention on International Trade in Endangered
Species of Wild Fauna and Flora (CITES): Background and Issues, by (name redacted) and (name redacted).
14
For more information on illegal wildlife trade, see CRS Report RL34395, International Illegal Trade in Wildlife:
Threats and U.S. Policy, by Liana Sun Wyler and (name redacted).
15
For more information on the MSCF, see CRS Report RS21157, International Species Conservation Funds, by
(name redacted) and (name redacted).
16
For a more extended discussion of this issue, see Maile C. Neel et al., “By the Numbers: How is Recovery Defined
by the US Endangered Species Act?” BioScience, vol. 62, no. 7 (July 2012): 646-657.
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The Endangered Species Act (ESA) in the 112th Congress
distinct population segments thereof have been delisted.17 The reasons cited by FWS are
(a) recovery (28 species); (b) extinction (10 species; however, some may have been extinct when
listed); and (c) original data in error (18 species). Recovered species include the American
alligator, bald eagle, brown pelican (two areas), peregrine falcon (two subspecies), gray wolf
(four areas), gray whale (except the Western Pacific Ocean), and three species of kangaroo.
Extinct species include the dusky seaside sparrow, Guam broadbill (a bird), and two small fish
living in desert springs. However, it can be quite difficult to prove whether extraordinarily rare
species are simply that or, in fact, are already extinct. For example, the endangered ivory-billed
woodpecker, thought by many to be extinct, was thought to have been rediscovered in a remote
area of Arkansas a few years ago. Rare species are, by definition, hard to find.
Some have asserted that ESA is a failure since only 28 species have been delisted due to
recovery; on the other hand, only 10 species have been delisted because of extinction. Others note
that full recoveries are relatively few because the two principal causes of extinction—habitat loss
and invasive non-native species—continue to increase. In addition, “only those species whose
situations are known to be the most desperate will receive priority,”18 thereby making recovery
difficult, as conservation intervention would occur in only the later phases of a species’ decline .
Another measure of “success” might be the number of species that have stabilized or increased
their populations, even if the species are not actually delisted; for example, at least 35 species
have been reclassified (downlisted) from endangered to threatened.19 Under this standard, ESA
could be considered a success, since a large number of listed species (41%, according to one
study)20 have improved or stabilized their population levels after listing. Other species (e.g., red
wolves and California condors) might not exist at all without ESA protection, and this too might
be considered a measure of success, although these species are still rare.21 One approach to gauge
progress might be to look at what proportion of the recovery objectives identified in species
recovery plans have been achieved. Table 1 indicates how the rate of achievement of recovery
objectives changes with the increasing length of time after species are listed. In addition, one
author concluded that the impact of species conservation efforts may be underestimated because
measures do not account for species that (1) would have deteriorated further in the absence of
conservation actions, or (2) have improved numerically, but not enough to change their status.22
17
These figures were updated on January 3, 2013; for the latest information, see http://ecos.fws.gov/tess_public/
DelistingReport.do.
18
National Research Council Commission on Life Sciences, Science and the Endangered Species Act, National
Academy Press (Washington, DC: 1995), p. 169.
19
Krishna Gifford and Deborah Crouse, “Thirty-Five Years of the Endangered Species Act,” Endangered Species
Bulletin, v. 34, no. 1 (Spring 2009):.4-7.
20
U.S. Dept. of the Interior, Fish and Wildlife Service, Endangered Species Bulletin, Washington, DC, September
2007. Available at http://www.fws.gov/endangered/bulletin/2007/ES_Bulletin_09-2007.pdf.
21
See CRS Report 98-32, Endangered Species List Revisions: A Summary of Delisting and Downlisting, by (name reda
cted).
22
Michael Hoffman et al., “The Impact of Conservation on the Status of the World’s Vertebrates,” Science, v. 330
(December 10, 2010): 1503-1509.
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Table 1. Percent Recovery Achieved Versus Time Listed
(data as of September 30, 2006)
Recovery Plan objectives
% of 48 species listed
5 years or less
% of 279 species listed
6-10 years
% of 940 species listed
11 years or more
0%-25% recovery achieved
100
95.0
67.8
26%-50% recovery achieved
0
3.9
22.8
51%-75% recovery achieved
0
0.4
6.2
76%-100% recovery achieved
0
0.7
3.2
Source: FWS, Report to Congress on the Recovery of Threatened and Endangered Species: Fiscal Years 2005-2006,
p. 1-53. Note that “% recovery achieved” has not been reported in more recent reports in this series.
An April 2005 study by GAO found that, although FWS spends almost half of its recovery funds
on the highest-priority species, in practice, factors other than a species’ priority ranking (e.g.,
regional office workload and opportunities for partnerships to maximize scarce recovery funds)
determine how funding is allocated.23 GAO found that FWS does not have a process to assess
funding decisions routinely to ensure that they are appropriate. On May 17, 2005, the majority
staff of the House Committee on Resources released an oversight report entitled Implementation
of the Endangered Species Act of 1973.24 It reviewed and critiqued various ways that recovery
might be measured. In 2006, GAO examined federal efforts to recover 31 selected species.25
GAO determined that, while many factors affected the recovery of species, recovery plans played
an important role in the recovery of all but one of the species examined. Critics claimed the GAO
study was biased to reflect positively on the recovery planning process by the selection of species
examined.
A December 2008 study by GAO found that, although FWS, NMFS, and other federal agencies
had implemented a majority of recommendations to strengthen ESA implementation contained in
10 GAO reports released during the previous 10 years, almost one-third of these
recommendations had not been implemented.26 For example:
•
FWS had not clarified the role of critical habitat and how and when it should be
designated;27
•
FWS had not periodically assessed expenditures on species in relation to their
relative priority; and
23
U.S. Government Accountability Office, Endangered Species: Fish and Wildlife Service Generally Focuses
Recovery Funding on High-Priority Species, but Needs to Periodically Assess Its Funding Decisions, GAO-05-211
(April 6, 2005). Available at http://www.gao.gov/new.items/d05211.pdf.
24
Available at http://www.waterchat.com/Features/Archive/050517_ESA_Implementation_Report.pdf.
25
U.S. Government Accountability Office, Endangered Species: Many Factors Affect the Length of Time to Recover
Select Species, GAO-06-730 (Washington, DC: GPO, September 8, 2006). In this report, GAO acknowledged that
results from nonprobability (i.e., non-random) samples cannot be used to make inferences about a population (i.e., all
ESA-listed species). However, in the view of GAO, review of the selected species provides valuable, case-level
insights into their progress toward recovery and the role that recovery plans have played in that progress.
26
U.S. Government Accountability Office, Endangered Species Act: Many GAO Recommendations Have Been
Implemented, But Some Issues Remain Unresolved, GAO-09-225R (December 19, 2008). Available at
http://www.gao.gov/new.items/d09225r.pdf.
27
On August 24, 2012, FWS and NMFS published a proposed rule that would simplify the designation of new critical
habitat (CH) by offering an earlier assessment of economic impacts (77 Fed. Reg. 50503-50510).
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•
FWS and NMFS were not tracking the amount of time spent by federal agencies
preparing for consultation before the process officially began.
In August 2011, NMFS released its Biennial Report to the U.S. Congress on the Recovery
Program for Threatened and Endangered Species, summarizing efforts to recover the 64 domestic
species under NMFS’s jurisdiction from October 1, 2008, to September 30, 2010.28
In May 2012, the Center for Biological Diversity released a report focusing on the recovery rates
of 110 species, concluding that 90% of species protected by ESA are recovering at the rates
predicted in agency recovery plans.29
In the 112th Congress on December 6, 2011, the House Committee on Natural Resources held an
oversight hearing on ESA and whether litigation may be impeding recovery efforts.
“Sound Science” and ESA
ESA requires that determinations of a species’ status be made “solely on the basis of the best
scientific and commercial data available.”30 In several recent situations, legal, economic, and
social disputes have resulted from actions under ESA. Examples of these controversies include
the Florida panther, Klamath River Basin suckers and coho salmon, gray wolf, and Sonoran
Desert bald eagles.31 Critics in some of these disputes suggest that the science supporting ESA
action has been insufficiently rigorous or mishandled by the agencies.
Many rare and endangered species are little studied because they are hard to find and it is difficult
to locate enough of them to study. There may be little information on many species facing
extinction, and only limited personnel or funds available to conduct studies on many of the less
charismatic species, or those of little known economic import. Some question what should be
done in such instances. In response, some suggest that considerations other than species
conservation should prevail; others seek to change the current posture of the law by changing the
role of science. These considerations are complicated by the cost and time required to acquire
more complete data, particularly in connection with many lesser-known species.
Courts, in considering the “best data available” language, have held that an agency is not obliged
to conduct studies to obtain missing data,32 but cannot ignore available biological information,33
especially if the ignored information is the most current.34 Nor may an agency treat one species
differently from other similarly situated species,35 or decline to list a dwindling species and wait
until it is on the brink of extinction in relying on possible but uncertain future actions of an
agency.36 “Best scientific and commercial data available” is not a standard of absolute certainty,
28
This report is available at http://www.nmfs.noaa.gov/pr/laws/esa/biennial.htm.
Report available at http://www.eenews.net/assets/2012/05/17/document_gw_05.pdf.
30
16 U.S.C. §1533(b)(1)(A).
31
See CRS Report RL32992, The Endangered Species Act and “Sound Science”, by (name redacted), (name redacted),
and (name redacted).
32
Southwest Center for Biological Diversity v. Babbitt, 215 F. 3d 58 (D.C. Cir. 2000).
33
Connor v. Burford, 848 F. 2d 1441 (9th Cir. 1988).
34
Southwest Center for Biological Diversity v. Babbitt, 926 F. Supp. 920 (D.C. Ariz. 1996).
35
Id.
36
Biodiversity Legal Foundation v. Babbitt, 943 F. Supp. 23 (D. D.C. 1996).
29
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reflecting Congress’s intent that FWS take conservation measures before a species is conclusively
headed for extinction.37 If FWS does not base its listings on speculation or surmise, or disregard
superior data, the imperfections of the studies upon which it relies do not undermine those studies
as the best scientific data available—“the Service must utilize the best scientific ... data available,
not the best scientific data possible.”38
Judicial review can also help ensure that agency decisions and their use of scientific data are not
arbitrary or capricious and that regulations are rationally related to the problems causing the
decline of a species, especially when other interests are adversely affected.39 In Arizona Cattle
Growers Association v. United States Fish and Wildlife Service,40 the court stated that the
evidentiary bar FWS must clear is very low, but it must at least clear it. In the context of issuing
incidental take permits under Section 10(a), this ruling means the agency must demonstrate that a
species is or could be in an area before regulating it, and must establish the causal connection
between the land use being regulated and harm to the species in question. Mere speculation as to
the potential for harm is not sufficient. An agency must consider the relevant facts and articulate a
rational connection between these facts and the choices made.41
In July 2012, the Center for Biological Diversity published a study concluding that peer reviews
of ESA critical habitat designations may not be adequately considered by federal agencies.42
In the 112th Congress, the House Science, Space, and Technology Subcommittee on
Investigations and Oversight held a hearing on the nexus of science and policy under ESA on
October 13, 2011. On October 17, 2011, the House Committee on Natural Resources held an
oversight field hearing in Seattle, WA, on the scientific basis for fisheries restrictions to protect
Steller sea lions by NMFS. On October 18, 2011, the House Natural Resources Subcommittee on
Water and Power held an oversight field hearing in Highland, CA, on the scientific basis and
economic impacts of expanded critical habitat designation for the Santa Ana sucker by FWS.
Section 401(1) of H.R. 4301 would have amended ESA to expand the “best scientific and
commercial” language to “best scientific and economic data available at the time, including
analysis of the costs and benefits of the matter under consideration.”
Endangered Species and Climate Change
In another version of the debate over science and ESA, the focus is less on the use of science in
ESA decision-making per se and more on the use of the act to force decisions on a scientific
issue. Specifically, some have argued that the ESA might be a suitable tool to restrict greenhouse
gas emissions. However, years after the theory was proffered, no published court opinion has
considered this issue.
37
Defenders of Wildlife v. Babbitt, 958 F. Supp. 670, 679-680 (D. D.C. 1997).
Building Industry Ass’n of Sup. Cal. v. Norton, 247 F. 3d 1241, 1246-1267 (D.C. Cir. 2001), cert. denied 2002 U.S.
LEXIS 479.
39
See Connor v. Andrus (453 F. Supp. 1037 (W.D. Tex. 1978)) (striking down regulations totally banning duck hunting
in an area to protect one listed species of duck).
40
273 F. 3d 1229 (9th Cir. 2001).
41
Pacific Coast Federation of Fishermen’s Associations, Inc. v. NMFS, 265 F.3d 1028, 1034 (9th Cir. 2001).
42
Article available at http://www.biologicaldiversity.org/programs/biodiversity/endangered_species_act/pdfs/
bio201262712_Forum_Greenwald.pdf.
38
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The Endangered Species Act (ESA) in the 112th Congress
The idea is that once a species is listed, the argument could be made that sources of substantial
greenhouse gas emissions, such as coal-fired power plants, cause an unlawful “take” of these
species under ESA Section 9 by the effect such emissions have, via climate change, on the
species’ habitat. This could force negotiation of an incidental take permit for the source, with
conditions to limit greenhouse gases.
Case law, however, does not demonstrate that the ESA is used as an enforcement tool to make
climate change arguments. In three cases where ESA challenges were directed at federal projects
related to power plants, only one involved climate change allegations, Palm Beach County
Environmental Coalition v. Florida, and it was not clear whether those claims were premised on
the ESA or on another legal basis.43 In an Eighth Circuit case, Sierra Club v. U.S. Army Corps of
Engineers,44 a claim was made that emissions harmed specific species near the power plant, and
did not allege global harm. A similar claim was made in Palm Beach County. Neither court
reviewed the ESA claims, finding procedural reasons. In the third case, United States v. Pacific
Gas and Electric, the court held that the ESA had not been violated; also, the claims of harm to
species related to a power plant were not based on GHGs.45
Despite the apparent lack of litigation premised on climate change taking species, some
regulatory changes were made to limit lawsuits based on that cause of action. In December 2008,
FWS changed the regulations that dictated how a Service considered impacts of federal projects
on listed species.46 Those regulations were effective only from January 15, 2008, to May 5, 2008,
after Congress acted to halt them in P.L. 111-8.47 During that period of regulatory change,
definitions related to the effects of an action were modified to “reinforce the Services’ current
view that there is no requirement to consult on [greenhouse gas] emissions’ contribution to global
warming and its associated impacts on listed species.”48 Despite the revocation of those changes,
it does not appear that the scope of effects has expanded, likely due to the fact that the regulations
already limited review to those effects with a reasonable certainty to occur.49
Another regulatory change of the same time period is still in place. It restricts lawsuits claiming
incidental takes of polar bears to instances where the agency action occurs in the state of Alaska.50
The polar bear was listed under the act primarily due to shrinking habitat caused by changing
climate.51 The polar bear regulation prevents a lawsuit claiming that a power plant in any state
other than Alaska harmed the polar bear by indirectly causing its ice floe habitat to diminish. The
law that authorized revocation of the regulations discussed above, P.L. 111-8, also authorized
43
Palm Beach County Environmental Coalition v. Florida, 651 F. Supp. 2d 1328 (S.D. Fla. 2009). Plaintiffs also had
alleged violations of the Clean Air Act, National Environmental Policy Act, and the Clean Water Act.
44
645 F.3d 978 (8th Cir. 2011).
45
776 F. Supp. 2d 1007 (N.D. Cal. 2011).
46
73 Federal Register 76272 (Dec. 16, 2008) (effective Jan. 15, 2009).
47
74 Federal Register 20421 (May 8, 2009) (“With this final rule, the Department of the Interior and the Department of
Commerce amend regulations governing interagency cooperation under [the ESA]. In accordance with the statutory
authority set forth in the 2009 Omnibus Appropriations Act (P.L. 111-8), this rule implements the regulations that were
in effect immediately before the effective date of the regulation issued on December 16, 2008”).
48
73 Federal Register at 47872.
49
50 C.F.R. § 402.02.
50
50 C.F.R. § 17.40(q)(4). See also, CRS Report RL33941, Polar Bears: Listing Under the Endangered Species Act,
by (name redacted), (name redacted), and (name redacted).
51
73 Federal Register 28212 (May 5, 2008).
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The Endangered Species Act (ESA) in the 112th Congress
revocation of the polar bear rule, but the Secretary of the Interior and the Secretary of Commerce
did not act to revoke that rule. On December 7, 2010, FWS designated approximately 187,000
square miles offshore and onshore in Alaska as critical habitat for the species (75 Federal
Register 76085).
Regional Resource Conflicts
As open space dwindles and increasing human populations put pressures on wildlands and natural
resources, efforts to conserve species and their habitats may highlight underlying resource crises
and economic conflicts. Public values and affected economic interests may be complex and
sometimes at odds. The situations described below are examples of regional issues that have been
the subject of recent congressional oversight and legislative interest. There are many more
regional resource issues that relate to ESA and are of congressional interest.
Klamath River Basin
Controversy arose in 2001 when the Bureau of Reclamation (Department of the Interior)
announced it would not release water from part of its Klamath irrigation project to approximately
200,000 acres of farm and pasture lands within the roughly 235,000-acre project service area. The
operational change sought to make more water available for three fish species under ESA
protection—two endangered sucker species, and a threatened coho salmon population. The
Klamath Project straddles the Oregon/California border and had been the site of increasingly
complex water management conflicts involving several tribes, fishermen, farmers,
environmentalists, and recreationists. Upstream farmers point to their contractual rights to water
from the Klamath Project and to hardships for their families if water is cut off. Others assert that
the downstream salmon fishery is more valuable and that farmers could be provided temporary
economic assistance, while salmon extinction would be permanent. Still others assert that there
are ways to serve all interests, or that the science underlying agency determinations is simply
wrong.
Specifically at issue is how to operate the bureau’s project facilities to meet irrigation contract
obligations without jeopardizing the three listed fish. The Trinity River diversion from the
Klamath basin to central California also has ramifications for the bureau’s role in the Central
Valley Project (CVP). Ten-year and annual operation plans, and associated biological assessments
(by the bureau) and BiOps (by FWS and NMFS) have been variously criticized and defended.52
On July 31, 2007, the House Natural Resources Committee held an oversight hearing on
allegations of political intervention influencing scientific and policy decisions at the Department
of the Interior, with respect to Klamath River salmon.
A Klamath Basin Restoration Agreement was negotiated by 29 Klamath River stakeholders and
signed on February 18, 2010, to address conflicting water management objectives. A second
related Klamath Hydropower Settlement Agreement may result in the removal of four dams on
the Klamath River that block salmon and steelhead from historic spawning areas.53 On September
21, 2012, Secretary of the Interior Salazar announced the completion of scientific and technical
52
For background on this regional issue, see CRS Report RL33098, Klamath River Basin Issues and Activities: An
Overview, by (name redacted) et al.
53
Copies of the two agreements can be found at http://www.edsheets.com/Klamathdocs.html.
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The Endangered Species Act (ESA) in the 112th Congress
studies concerning the environmental and economic impacts of removing four Klamath River
hydroelectric dams.54
At issue for the 112th Congress was whether to provide legislative support for the two new
Klamath agreements. Parties to these agreements indicated that they would seek such legislative
support from Congress. H.R. 3398/S. 1851 would have authorized restoration of the Klamath
Basin.
Gray Wolf
ESA protection for distinct population segments (DPSs) of wolves has changed back and forth
since the first DPSs—Western and Eastern—were proposed in 2003.55 The result is an extremely
complex regulatory and legal saga, in which each effort by FWS to delist the wolf or designate a
DPS has been rejected by a court. The issue for the 112th Congress was whether to attempt to
delist any wolf population legislatively, to modify the effects of wolf recovery efforts, or to leave
the issue to management of FWS (as affected by likely further court rulings).
In 2003, FWS determined that the two DPSs no longer needed the protection of the ESA and so
they were delisted. The Western and Eastern DPS designations and delistings were nullified by
courts. In 2007, FWS designated a Western Great Lakes DPS and simultaneously delisted it. And
in early 2008, FWS also designated and delisted the Northern Rocky Mountains DPS. However,
courts found both delistings flawed and vacated both rulemakings.
In December 2008, FWS responded by returning the wolves in the Western Great Lakes and parts
of the Northern Rocky Mountains areas to their former protected status, eliminating the DPS
designations. That same rulemaking returned wolves in southern Montana, southern Idaho, and
all of Wyoming to the status of “nonessential experimental populations”—their status before the
DPS efforts. In April 2009 FWS published notices establishing DPSs in the Western Great Lakes
and the Northern Rockies and delisting both populations, except in Wyoming. FWS was sued for
the Western Great Lakes delisting and settled the case, returning the population to its previous
status (threatened or endangered, depending on location). A court held in August 2010 that the
Northern Rockies delisting violated the ESA, directing that the delisting be declared invalid.56
The Northern Rockies wolves were returned to their experimental population status, meaning
they are treated as threatened in most circumstances. Meanwhile, scientists argue that allowing
Congress to remove or add protections for particular species would set a dangerous precedent.57
However, Congress negated the effect of the August court decision when it approved the
following language in P.L. 112-10 (H.R. 1473):
Sec. 1713. Before the end of the 60-day period beginning on the date of enactment of this Act, the
Secretary of the Interior shall reissue the final rule published on April 2, 2009 (74 Fed. Reg.
54
See http://www.doi.gov/news/pressreleases/Salazar-Announces-Release-of-Klamath-Dam-Removal-Studies.cfm.
For more information, see CRS Report RL34238, Gray Wolves Under the Endangered Species Act (ESA): Distinct
Population Segments and Experimental Populations, by (name redacted) and (name redacted), and CRS Report
R41730, The Gray Wolf and the Endangered Species Act: A Brief Legal History, by (name redacted).
56
Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207 (D. Mont. 2010).
57
See http://www.ucsusa.org/assets/documents/scientific_integrity/Experts-Letter-to-Senate-on-Endangered-SpeciesAct-2011.pdf.
55
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The Endangered Species Act (ESA) in the 112th Congress
15123 et seq.) without regard to any other provision of statute or regulation that applies to
issuance of such rule. Such reissuance (including this section) shall not be subject to judicial
review and shall not abrogate or otherwise have any effect on the order and judgment issued by
the United States District Court for the District of Wyoming in Case Numbers 09-CV-118J and
09-CV-138J on November 18, 2010.
The effect was to return to the April 2009 rule, described above, establishing the DPS in the
Northern Rockies and delisting those wolves, except for those in Wyoming. The gray wolf
becomes the 49th species to be delisted under ESA, although it was delisted only in the states of
Montana and Idaho plus eastern Washington, eastern Oregon, and north-central Utah. (It remains
listed as either endangered or threatened in all of the other lower 48 states.) Of the 48 species
delisted to date, none has been delisted due to specific legislative action.58 While there may be
attempts to point to the language of P.L. 112-10 as a precedent for delisting other species, two
facts are unlikely to find parallels in other species controversies: (1) FWS had previously
attempted to delist the species, meaning FWS believed the science supported delisting; and (2)
the species had met and exceeded the numeric goals for delisting in the species’ recovery plan,
although the genetic connectivity was disputed. The language of Section 1713 blocks judicial
review of reissuance of the rule, and it appears to leave open the option for a subsequent proposal
to re-list the species or to delist Wyoming’s wolves.
Also in April 2011, FWS took action addressing wolves in other parts of the United States. FWS
has proposed to delist the wolves in the Western Great Lakes and to recognize wolves in the
eastern states as a different species (Canis lycaon) from the wolves found in most of the rest of
the country:
After reviewing the latest available scientific and taxonomic information, the Service now
recognizes the presence of two species of wolves in the Western Great Lakes: the gray wolf
(Canis lupus), the wolf species currently listed under the ESA, and the eastern wolf (Canis
lycaon), with a historical range that includes portions of eastern Canada and the northeastern
United States. Recent wolf genetic studies indicate that what was formerly thought to be a
subspecies of gray wolf (Canis lupus lycaon) is actually a distinct species (Canis lycaon). To
establish the status of this newly recognized species, the Service is initiating a review of Canis
lycaon throughout its range in the United States and Canada.59
As with the many controversies surrounding wolf conservation, these proposals may also be
subject to litigation and come to congressional attention.
Other bills in the 112th Congress (besides H.R. 1473) proposed revising gray wolf protection.
H.R. 509 and S. 249 would have amended ESA to prevent it from applying to the gray wolf,
eliminating wolf protection throughout the United States. H.R. 510 would appear to have
proposed amending the ESA to prohibit protection of gray wolves in Idaho and Montana under
the act. S. 321 would have given the rulemaking addressed by P.L. 112-10, Section 1713, the
force of law, rather than regulation.
58
See http://ecos.fws.gov/tess_public/pub/delistingReport.jsp, which provides background on the 48 species delisted to
date.
59
There is no notice yet in the Federal Register. See press release at http://us.vocuspr.com/Newsroom/Query.aspx?
SiteName=fws&Entity=PRAsset&SF_PRAsset_PRAssetID_EQ=115700&XSL=PressRelease&Cache=True.
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The Endangered Species Act (ESA) in the 112th Congress
These bills were not pursued in light of passage of the Appropriations Act language. However,
H.R. 838 addressed wolves in the Great Lakes area. It mirrored the language in H.R. 510,
appearing to prevent protecting the wolf under the ESA. This approach may become moot,
provided that the FWS proposal for the Western Great Lakes delisting is finalized. H.R. 1819
would have amended ESA to provide for state management of population segments of gray
wolves. Section 119 of H.R. 2584 would have declared that any final rule by FWS that
determines the gray wolf in Wyoming or any of the states within the range of the Western Great
Lakes Distinct Population Segment of the gray wolf not to be endangered or threatened is not to
be subject to judicial review if the state has entered into an agreement with the Secretary of the
Interior that authorizes the state to manage gray wolves. H.R. 3453 would have amended ESA to
authorize permits for takings of wolves to protect from wolf depredation in states where wolf
populations exceed the recovery goals in an ESA recovery plan.
Delta Smelt
Delta smelt (Hypomesus transpacificus) is a small, slender-bodied fish found only in the San
Francisco Bay and Sacramento-San Joaquin Rivers Delta in California (Bay-Delta), where they
were once abundant.60 The species was listed as threatened under ESA in 1993 and, in recent
years, its abundance has declined to the lowest ever observed. The decline has been attributed to a
combination of several factors, including entrainment (i.e., entrapment) in water export pumps,
competition and predation from exotic fish species, warmer water temperatures, toxic
contaminants, changes in habitat size and quality, and changes in food supply.61 The contribution
of each factor in causing the species decline is controversial. Some contend that all causes might
contribute to the observed decline.62
The delta smelt decline has significant consequences for the operation of the federal Central
Valley Project (CVP) and the State Water Project (SWP), which supply water to much of Central
and Southern California. Because entrainment and/or adverse modification of delta smelt critical
habitat by water pumps is believed to contribute to the decline of delta smelt, changes in how
these pumps are operated have triggered consultation under ESA. ESA requirements following
consultation have contributed to reduced pumping and less water for users, which has been very
controversial.
To address the impact of pumping changes on delta smelt, an ESA Section 7 consultation between
FWS and the Bureau of Reclamation was initiated in 2004.63 FWS initially issued a no-jeopardy
60
For additional background, see CRS Report R41876, Biological Opinions for the Sacramento-San Joaquin Delta: A
Case Law Summary, by (name redacted).
61
Testimony of Bob Johnson, Commissioner of the Bureau of Reclamation, at House Committee on Natural Resources,
Subcommittee on Water and Power, hearing on “The Immediate Federal and State Role in Addressing Uncertain Water
Deliveries for California and the Impacts on California Communities,” 110th Cong., 2nd sess., January 29, 2008.
62
In 2005, the Pelagic Organism Decline working group was created to address the decline in fish and zooplankton
populations in the Bay-Delta. Subsequently, they hypothesized that pelagic fish decline could be a result of three
factors acting individually or together. These factors included (1) toxic contaminants, (2) exotic species, and (3) water
project effects. Based on this hypothesis, the group developed a set of conceptual models to explain pelagic fish
decline. Their results have so far been inconclusive and more research is planned for 2008. See Pelagic Organism
Decline Progress Report: 2007 Synthesis of Results, at http://www.fws.gov/sacramento/es/documents/
POD_report_2007.pdf.
63
In 2004, the Bureau of Reclamation, which operates the CVP, issued a biological assessment (BA) of its proposal to
increase pumping as part of a revised coordinated operational plan with the SWP, known as Operations Criteria and
(continued...)
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The Endangered Species Act (ESA) in the 112th Congress
BiOp with regard to impacts on delta smelt by the operations of the CVP and SWP in 2004, and
re-issued the BiOp in 2005 to address potential critical habitat issues of the delta smelt. In May
2007, the FWS BiOp was found not to comply with ESA with regard to delta smelt.64 The Bureau
of Reclamation and FWS reinitiated consultation based on new information on the delta smelt in
2007. While the consultation process was underway, the Bureau of Reclamation implemented
interim protective measures required by a court order issued in December 2007.65 A revised BiOp
was issued December 15, 2008.66 FWS determined that the continued operation of water projects
in the Bay-Delta, as described in the CVP Operations Criteria and Plan (OCAP) biological
assessment, was likely to jeopardize the continued existence of the delta smelt and adversely
modify its critical habitat. Along with the revised BiOp, FWS outlined reasonable and prudent
alternatives (RPAs) intended to protect each life-stage and critical habitat of the delta smelt,
which resulted in reduction in water deliveries for many water users south of the Delta. These
RPAs have been the subject of further litigation and much controversy. With more abundant water
in the winter of 2011, the parties were able to agree on water flow levels through June 30, 2011,
perhaps marking the first spring without litigation over water flow since the BiOp was issued.
At issue during the 112th Congress were congressional oversight of proposals to change
operations and authorities for the Bureau of Reclamation’s Central Valley Project and
environmental and/or economic damages from federal water project operations. In the 112th
Congress, H.R. 1 (seeking to provide continuing appropriations for the remainder of FY2011)
included language that would have prohibited funds from being used by NMFS and FWS for
implementing certain actions described in BiOps for the operations of the Central Valley Project
and the California State Water Project (§1475, Division B, Title IV). On February 19, 2011, the
House passed H.R. 1 (amended). However, the prohibition language was not included in P.L.
112-10 (H.R. 1473), the Full-Year Appropriations Act of 2011. H.R. 1251, Section 108 of H.R.
1837, and Title V of S. 2365 would have provided congressional direction for ESA compliance
as it related to operation of the Central Valley Project and the California State Water Project; H.R.
1837 was reported (amended) by the House Committee on Natural Resources on February 27,
2012 (H.Rept. 112-403) and passed by the House (amended) on February 29, 2012, but no
further action was taken. Section 308 of H.R. 1287, Section 4138 of S. 1720, and S. 706 would
have prohibited the Bureau of Reclamation and California state agencies from restricting
operations for the Central Valley Project pursuant to any BiOp under certain conditions.
Private Property and Fifth Amendment Takings
The prohibitions in Section 9 (private actions) and Section 7 (federal nexus) at times frustrate the
economic desires of owners of land or other property. This has long been a central issue for ESA’s
detractors, who assert that restrictions under ESA routinely “take” property in the constitutional
(...continued)
Plan (OCAP), and initiated consultation with FWS. Consultation was also initiated with NMFS on several other
anadromous species (e.g., salmon and sturgeon).
64
NRDC v. Kempthorne, 506 F. Supp. 2d 322 (E.D. Cal. 2007).
65
NRDC v. Kempthorne, 2007 U.S. Dist. LEXIS 91968 (E.D. Cal. December 14, 2007).
66
Available at http://www.fws.gov/sacramento/es/documents/SWP-CVP_OPs_BO_12-15_final_OCR.pdf.
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The Endangered Species Act (ESA) in the 112th Congress
sense of the term.67 Conflicts between ESA and property owners come about despite the existence
of ESA mechanisms intended to soften its impact on property owners.
Under the Fifth Amendment, property cannot be “taken” by the United States without just
compensation. The Supreme Court has long tried, with limited success, to define which
government actions affect private property so severely as to effect such a “taking.” In briefest
outline, government actions usually are deemed a taking when they cause either a permanent
physical occupation of private property or, through regulation, a total elimination of its economic
use. When the government regulation removes only part, but not all, of the property’s use or
value, a three-factor balancing test is used to determine whether a taking has occurred.68 Although
these factors remain amorphous, it is at least clear from lower court decisions that, for a taking to
occur, the regulation’s impact on the property generally must be severe; and with regard to the
property as a whole, not just the regulated portion.
Approximately 20 court decisions have addressed takings challenges to ESA restrictions on land
or other property, with all but two finding no taking. These cases have involved restrictions on
timber cutting, reductions in water delivery to preserve instream flows needed by listed species (a
particularly active area now), restrictions on shooting animals that were responsible for loss of
livestock, and prohibitions on the transport or sale of endangered species. In several of these
cases, the taking claim failed because it was filed in the wrong court or was not “ripe.” Where
takings claims were reached by the court, they were rejected principally because the economic
impact was insufficient as to the property as a whole, or because of the long-standing principle
that the government is not responsible for the actions of wild animals. Of the two decisions
favoring the property owner, one, involving reduced water delivery to a water district owing to
the need to maintain in-stream flows for listed fish, has been undermined by the judge who wrote
it in a later decision.69 The other, however, instructs that when government requires water subject
to appropriative water rights to be physically diverted to a fish ladder (here, for the use of a listed
fish species), the diversion must be analyzed under a physical rather than regulatory taking
theory.70 Under such a theory, as noted, the holder of water rights is generally likely to win its
taking claim. In the present case, however, the trial court on remand held that the water diverted
to the fish ladder had not been shown to encroach on the water actually needed by the plaintiff
water district for its customers. The court therefore dismissed the case as not ripe, and it is on
appeal again.
In the 1990s, critics sought to amend ESA to afford compensation for a broader range of property
impacts than the Constitution provides—perhaps by specifying a fixed percentage of ESA-related
property value loss, above which compensation must always be paid. No such bills were enacted.
67
See CRS Report RL31796, The Endangered Species Act (ESA) and Claims of Property Rights “Takings”, by (name r
edacted).
68
The three factors, announced by the Supreme Court in Penn Central Transp. Co. v. New York City in 1978 and
reaffirmed by the Court many times since, are (1) the economic impact of the government action on the property
owner; (2) the extent to which the government action interferes with the owner’s reasonable investment-backed
expectations; and (3) the “character” of the government action, 438 U.S. 104, 124 (1978). These are vague guideposts
only; the Court stresses that every case is to be decided ad hoc.
69
See Casitas Municipal Water Dist. v. United States, 76 Fed Cl. 100 (2007), aff’d in part, reversed in part on other
grounds, 543 F.3d 1276 (Fed. Cir. 2008), holding to the contrary of Tulare Lake Basin Water Storage Dist. v. United
States, 49 Fed. Cl. 313 (2001).
70
Casitas Municipal Water Dist., 543 F.3d 1276.
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Additional Issues and Legislative Initiatives
Concern has been expressed over the adequacy of consultation and biological opinions related to
pesticides and their possible effects on ESA-listed Pacific salmon.71 Recent investigations
indicate that about 10% of ESA-listed plants are available for purchase online, with most of these
sales being illegal.72 On May 3, 2011, the House Committee on Agriculture and the House
Committee on Natural Resources held a joint oversight hearing on pesticide registration
consultations under ESA Section 7. On December 6, 2011, the House Committee on Natural
Resources held an oversight hearing on ESA and whether litigation may be impeding recovery
efforts. On June 19, 2012, the House Committee on Natural Resources held an oversight hearing
on the cost and impact of attorney fees and time spent on ESA litigation. P.L. 112-270 amended
P.L. 106-392 to maintain annual base funding for the Upper Colorado and San Juan fish
recovery programs through FY2019.
Other miscellaneous issues arose for which legislation was introduced in the 112th Congress:
•
H.R. 1584 would have exempted state departments of transportation from ESA
consultation requirements for construction to maintain the federal-aid highway
system. Section 3016 of H.R. 7 and Section 615 of H.R. 4348 (as passed by the
House on April 18, 2012) would have exempted state highway and public
transportation projects from ESA if the Secretary of Transportation determined
that state environmental review was essentially equivalent; Section 8201 of H.R.
7 would have provided a similar exclusion for rail projects. S. 1389, H.R. 3347,
Section 128(7) of S. 1596, Section 139(2)(E) of S. 1786, Section 3004(7) of
H.R. 7, Section 603(7) of H.R. 4348 (as passed by the House on April 18,
2012), and Section 127(7) of H.R. 2112, as amended and passed by the Senate
on November 1, 2011, would have exempted from ESA the reconstruction of any
road, highway, or bridge damaged by a declared emergency/disaster (§8201 of
H.R. 7 would have provided a similar exclusion for rail lines); on September 21,
2011, the Senate Committee on Appropriations reported S. 1596 (S.Rept. 11283). The conference agreement on H.R. 2112 (subsequently enacted as P.L.
112-55) did not include this provision (H.Rept. 112-284). The House
Committee on Transportation and Infrastructure reported (amended) H.R. 7 on
February 13, 2012 (H.Rept. 112-397). Section 35205 of H.R. 14/S. 1813, as
amended and passed by the Senate on March 14, 2012, and as inserted into H.R.
4348 and passed by the Senate on April 24, 2012, would have authorized the
Secretary of Transportation to delegate authority and responsibility for ESA
consultation to Amtrak for high speed and intercity passenger rail projects.
•
H.R. 1837 would have repealed the San Joaquin Restoration Settlement (§203)
and ordered that no distinction be made under ESA between anadromous fish of
wild and hatchery origin in the Sacramento and San Joaquin Rivers and their
tributaries (§207); this bill was reported (amended) by the House Committee on
71
See http://naturalresources.house.gov/UploadedFiles/012611-CEQ-letter-pesticide-biops.pdf.; see also
http://www.cbbulletin.com/403308.aspx.
72
Patrick D. Shirey and Gary A. Lamberti, “Regulate Trade in Rare Plants,” Nature, v. 469 (January 27, 2011): 465467.
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Natural Resources on February 27, 2012 (H.Rept. 112-403) and passed by the
House (amended) on February 29, 2012. S. 2365 would have declared ESA not
to apply to the Central Valley Project and the California State Water Project
(§518) and ordered that no distinction be made under ESA between anadromous
fish of wild and hatchery origin in the Sacramento and San Joaquin Rivers and
their tributaries (§519). Section 559 of H.R. 5326, as passed by the House
(amended) on May 10, 2012, would have prohibited the expenditure of FY2013
funds by the Department of Commerce for the reintroduction of California
Central Valley spring run Chinook salmon.
•
H.R. 946 and H.R. 3069 would have amended the Marine Mammal Protection
Act of 1972 to permit activities aimed at reducing marine mammal predation on
threatened and endangered Columbia River salmon; on June 14, 2011, the House
Natural Resources Subcommittee on Fisheries, Wildlife, Oceans, and Insular
Affairs held a hearing on H.R. 946. On December 8, 2011, the House Committee
on Natural Resources reported H.R. 3069 (H.Rept. 112-322). On June 19,
2012, the House passed H.R. 2578 after amending this measure to include the
language of H.R. 3069 as Title VII. H.R. 2111 would have (1) required a study
by the National Academy of Sciences of federal salmon recovery actions on the
Columbia and Snake River (§3) and (2) authorized the Secretary of the Army to
remove the four Lower Snake River dams (§8).
•
Section 3 of H.R. 3408/H.R. 4211 would have declared (1) the final regulations
regarding oil shale management published by the Bureau of Land Management
on November 18, 2008, and (2) the November 17, 2008, U.S. Bureau of Land
Management Approved Resource Management Plan Amendments/Record of
Decision for Oil Shale and Tar Sands Resources to Address Land Use Allocations
in Colorado, Utah, and Wyoming and Final Programmatic Environmental Impact
Statement, to be fully compliant with ESA. On February 9, 2012, H.R. 3408 was
reported (amended) by the House Committee on Natural Resources (H.Rept.
112-392), with the ESA provisions in Section 2. The House passed H.R. 3408
on February 16, 2012.
•
H.R. 991, Title III of H.R. 4089, S. 1066, and Section 102 of S. 3525 would
have amended the Marine Mammal Protection Act of 1972 to allow importation
of polar bear trophies taken in sport hunts in Canada before the date the polar
bear was determined to be a threatened species under ESA; on May 12, 2011, the
House Natural Resources Subcommittee on Fisheries, Wildlife, and Oceans held
a hearing on H.R. 991. On December 1, 2011, the House Committee on Natural
Resources reported (amended) H.R. 991 (H.Rept. 112-308). On April 13, 2012,
the House Committee on Natural Resources reported (amended) H.R. 4089
(H.Rept. 112-426, Part I); on April 17, 2012, the House passed H.R. 4089.
•
H.R. 4043 would have established special management areas for southern sea
otters to accommodate military readiness activities, and declared that ESA
incidental take restrictions were not applicable in these areas during military
readiness activities. On April 19, 2012, the House Natural Resources
Subcommittee on Fisheries, Wildlife, Oceans, and Insular Affairs held a hearing
on this bill. On July 17, 2012, the House Committee on Natural Resources
reported (amended) this bill (H.Rept. 112-606, Part I). On May 18, 2012, the
Congressional Research Service
18
The Endangered Species Act (ESA) in the 112th Congress
House passed H.R. 4310 after amending this measure to include the language of
H.R. 4043 in Section 316.
•
Section 233 of H.R. 1777, Section 363 of H.R. 3400/S. 2199, Section 142 of
H.R. 4301, Section 301 of H.R. 4383, Section 531 of S. 3445, and Section 531
of H.R. 4480 as passed by the House (amended) on June 21, 2012, would have
directed the Secretary of the Interior to assign personnel to agency field offices to
coordinate review of federal permits for oil and gas projects on federal lands
onshore and on the OCS, with expertise in ESA Section 7 consultations and
preparation of BiOps. On June 15, 2012, the House Committee on Natural
Resources reported (amended) H.R. 4383 (H.Rept. 112-528, Part I).
•
Section 447 of H.R. 2584 would have prohibited funds from being expended to
modify, cancel, or suspend the registration of a pesticide in response to a final
biological opinion or other written statement issued under Section 7(b) of ESA.
Section 10016 of H.R. 6083 would have placed conditions on the modification,
cancellation, or suspension of a pesticide registration in response to a biological
opinion; on September 13, 2012, the House Committee on Agriculture reported
(amended) this measure (H.Rept. 112-669), with the ESA provision now in
Section 10017.
•
Section 2(c)(2) of H.R. 1505 and Section 1401 of H.R. 2578 as passed
(amended) by the House on June 19, 2012, would have extended the authority of
the Secretary of Homeland Security to waive ESA for actions to secure the
border within 100 miles of any international land and maritime U.S. border. On
April 17, 2012, the bill was reported (amended) by the House Committee on
Natural Resources (H.Rept. 112-448, Part I).
•
H.R. 1719 and Section 5 of H.R. 6247 would have required power marketing
administrations to inform consumers regarding costs associated with compliance
for protecting species under ESA; Section 8 of H.R. 6247 would have prohibited
spilling water at federal dams if such action would harm endangered fish. On
September 22, 2011, the House Natural Resources Subcommittee on Water and
Power held a hearing on H.R. 1719.
•
H.Res. 301 and S.Res. 206 expressed support for designating June 20, 2011, as
“American Eagle Day,” and celebrating the recovery and restoration of the bald
eagle; S.Res. 206 was agreed to by the Senate on June 8, 2011. S.Res. 498
expressed support for designating June 20, 2012, as “American Eagle Day,” and
celebrating the recovery and restoration of this bird; this measure was agreed to
by the Senate on June 19, 2012.
•
Section 1005(c) of H.R. 2954/S. 2474 would have directed the President to
arrange for the National Academy of Sciences to study and provide a scientific
review of the impact—on public health, air quality, water quality, wildlife, and
the environment—of the regulations for Interagency Cooperation under the
Endangered Species Act, published in the Federal Register on December 16,
2008.
•
Section 7 of H.R. 5744/S. 3409 would have required (1) research to determine
the impact of ESA listing on forest fuel loads, and (2) endangered species
recovery plans and critical habitat determinations to include wildfire risk
Congressional Research Service
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The Endangered Species Act (ESA) in the 112th Congress
assessment analysis. Other provisions in this bill sought to reduce threats to
endangered and threatened species posed by wildfire.
•
S. 962 and H.R. 1858 would have reauthorized and amended the Northwest
Straits Marine Conservation Initiative Act, including authorizing county Marine
Resources Committees; one duty of these committees would have been to assist
in identifying local implications, needs, and strategies associated with the
recovery of ESA-listed Puget Sound salmon.
•
Section 101 of H.R. 909 and Section 101(a) of H.R. 3302 would have declared
the Draft Proposed Outer Continental Shelf (OCS) Oil and Gas Leasing Program
2010-2015 to be fully compliant with ESA. On May 31 and June 3, 2011, the
House Energy and Commerce Subcommittee on Energy and Power held hearings
on H.R. 909.
•
Section 3 of H.R. 4094/S. 2372 and Section 1003 of H.R. 2578 as passed by
the House (amended) on June 19, 2012, would have restricted ESA
implementation at the Cape Hatteras National Seashore Recreation Area; on June
15, 2012, the House Committee on Natural Resources reported H.R. 4094
(H.Rept. 112-526, Part I).
•
S. 826 and H.R. 1907 would have directed the Secretary of the Treasury to
establish a program to provide loans and loan guarantees to enable eligible public
entities to acquire interests in real property that were in compliance with habitat
conservation plans approved by the Secretary of the Interior under ESA.
•
S. 1401 would have established a Salmon Stronghold Partnership to promote
international and interagency cooperation to improve salmon management; on
January 30, 2012, the Senate Committee on Commerce, Science, and
Transportation reported (amended) this measure (S.Rept. 112-140).
•
Section 105(e) of H.R. 4019 would have declared that environmental reports by
the Secretary of Agriculture for certain Forest Service lands would suffice as
compliance with ESA. On December 31, 2012, the House Committee on Natural
Resources reported (amended) this bill (H.Rept. 112-737, Part I).
•
H.R. 2929 and S. 1552 would have amended ESA to provide an exception for
actions carried out against grizzly bears in self-defense, defense of others, or a
reasonable belief of imminent danger. The ESA currently provides for selfdefense at 16 U.S.C. 1540(b)(3).
•
S. 3500 would have amended ESA to establish a procedure for approval of
certain settlements, including a requirement that settlements be approved by each
state and county in which the Secretary of the Interior believed an ESA-listed
species occurred.
•
H.R. 1042 would have amended ESA to require that certain species be treated as
extinct if there were not a substantial increase in the population of a species
during the 15-year period beginning on the date the species was determined to be
endangered.
•
Section 562 of H.R. 5326, as passed by the House (amended) on May 10, 2012,
would have prohibited the expenditure of FY2013 funds by the Department of
Congressional Research Service
20
The Endangered Species Act (ESA) in the 112th Congress
Commerce to implement a proposed rule for sea turtle excluder devices in shrimp
trawls.
•
H.R. 4244 would have directed the Secretary of the Interior to issue a final
decision on whether to issue a permit under ESA authorizing construction of an
elementary school in San Diego, CA.
•
On June 7 and 8, 2011, amendments to S. 782 were introduced in the Senate that
proposed to exempt species from ESA (S.Amdt. 397, sand dune lizard; S.Amdt.
429, lesser prairie chicken).
•
H.R. 2973 and S. 1580 would have directed the Secretary of the Interior to
amend the special rule at 50 CFR 17.40(g) to permit the taking of the Utah prairie
dog under ESA.
•
Section 306(a) of H.R. 1287, Section 4136(a) of S. 1720, and S. 706 would
have provided a temporary exemption from certain ESA restrictions in a declared
emergency.
•
Section 3 of H.R. 332 would have required compliance by all federal defense
agencies with certain environmental laws, including ESA.
•
H.R. 1806 would have amended ESA to provide that bluefin tuna not be treated
as an endangered or threatened species.
•
Section 243 of H.R. 6474 would have repealed the income tax deduction for
endangered species recovery expenditures.
•
H.R. 1400 and S. 729 would have validated the final patent for Nevada lands
beneficial for desert tortoise recovery.
•
H.R. 6219 and S. 3446 would have amended ESA to prohibit listing of four
species of salamanders in Texas.
•
S.Res. 467 would have declared May 18, 2012, as “Endangered Species Day.”
ESA Appropriations
Appropriations play an important role in the ESA debate, providing funds for listing and recovery
activities as well as financing consultations that are necessary for federal projects. In addition,
appropriations bills have served as vehicles for some substantive changes in ESA provisions.
Fish and Wildlife Service73
Table 2 summarizes recent ESA and related funding for FWS. The Administration’s FY2012
request for endangered species and related funding within FWS’s Ecological Services Account
was released on February 14, 2011. On March 16, 2011, in a hearing before the House
Appropriations Subcommittee on Interior, Environment, and Related Agencies, FWS asked that
Congress add a cap on funding for the processing of new ESA petitions, in addition to the
spending restrictions it has supported on listing and critical habitat designations for a number of
73
For an overview of FWS appropriations, see CRS Report R42466, Fish and Wildlife Service: FY2013 Appropriations
and Policy, by (name redacted).
Congressional Research Service
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The Endangered Species Act (ESA) in the 112th Congress
years. The central issue in the 112th Congress with these appropriations focused on what level of
funding might be adequate to implement the programs required by law.
Table 2. Funding for FWS Endangered Species and Related Programs,
FY2011-FY2013
($ in thousands)
FY2011
Request
FY2011
Enacted
FY2012
Request
FY2012
Enacted
FY2013
Request
FY2013
Hse Rpt
Endangered Species Program
Candidate
Conservation
11,471
11,448
11,426
11,337
11,463
10,554
Listing
20,945
20,902
24,644
20,869
22,431
14,564
Consultation
63,299
61,877
62,888
60,943
64,095
45,865
Recovery
85,611
81,219
83,692
82,806
81,709
63,034
Subtotal
181,326
175,446
182,650
175,955
179,698
134,017
Related Programs
Cooperative
Endangered
Species Fund
85,000
59,880
100,000
47,681
60,000
14,129
Multinational
Species
Funda
10,000
9,980
9,750
9,466
9,980
4,735
Neotropical
Bird Fundb
4,000
3,992
5,000
3,786
3,786
1,893
Total FWS
280,326
249,298
297,400
236,888
253,464
154,774
Sources: Annual budget justifications, House and Senate committee and conference reports. FY2011 enacted
and FY2012 House Report figures from H.Rept. 112-151.
a.
Appropriations for species conservation authorized by the African Elephant Conservation Act (16 U.S.C.
§4201), Rhinoceros and Tiger Conservation Fund (16 U.S.C. §5301), Asian Elephant Fund (16 U.S.C. §4261),
Great Ape Conservation Fund (16 U.S.C. §1603), and Marine Turtle Conservation Act (16 U.S.C. §6601).
b.
Appropriations authorized by the Neotropical Migratory Bird Conservation Act (16 U.S.C. §§6101-6109).
On July 19, 2011, the House Committee on Appropriations reported H.R. 2584 (H.Rept. 112151), proposing significantly lower FY2012 funding for many ESA programs, and proposing
ESA policy restrictions. Under this measure, funding for FWS core ESA programs would have
been reduced by $36.7 million (21%) from funding enacted for FY2011 and by $43.9 million
(24%) from the Administration’s FY2012 request, with no funds provided for ESA listing and
critical habitat activities. To further implement the ban on funding for ESA listing and critical
habitat activities, additional language in this bill would have prohibited FWS from spending any
funds to implement subsections (a), (b), (c), and (e) of Section 4 of ESA (except for processing
petitions, developing and issuing proposed and final regulations, and taking any other steps to
implement actions described in subsection (c)(2)(A), (c)(2)(B)(i), or (c)(2)(B)(ii) of such section).
On July 21, 2011, President Obama threatened to veto this bill, citing specific provisions limiting
Congressional Research Service
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The Endangered Species Act (ESA) in the 112th Congress
ESA activities.74 On July 27, 2011, during floor debate in the House, H.Amdt. 735 was adopted,
striking the provision relating to funding limitations relating to ESA listing and critical habitat.
On December 15, 2011, a conference report was filed on H.R. 2055, proposing FWS
appropriations for FY2012 in Division E, Title I (H.Rept. 112-331). On December 23, 2011,
President Obama signed P.L. 112-74 (H.R. 2055), providing slightly more than $237 million for
FWS endangered species and related programs; FY2012 funding for FWS core ESA programs
was 0.5% more than the FY2011 enacted amount and 3.5% less than the FY2012 Administration
request.
The Administration’s FY2013 budget request was released on February 13, 2012.75 The
Administration proposed that FY2013 funding for endangered species programs in FWS’s
Ecological Services account increase by about $3.7 million (+2.1%) above the FY2012 enacted
funding. In addition, the Administration proposed an increase of $12.3 million (+25.8%) for the
Cooperative Endangered Species Fund above what was enacted for FY2012. On July 10, 2012,
the House Committee on Appropriations reported H.R. 6091 (H.Rept. 112-589), proposing
significantly reduced FY2013 funding for most ESA programs. Under this measure, funding for
FWS core ESA programs would have been reduced by $41.9 million (24%) from funding enacted
for FY2012 and by $45.7 million (25%) from the Administration’s FY2013 request. In the
absence of final action on this bill, a continuing resolution, P.L. 112-175, provided FY2013
funding through March 27, 2013, for projects and activities at the FY2012 level.
National Marine Fisheries Service
For NMFS, funding for ESA programs is included under “protected species research and
management”, which also includes funding authorized under the Marine Mammal Protection Act
(see Table 3). The Administration’s FY2012 request for endangered species and related funding
within NMFS’s Protected Species Account was released on February 14, 2011. As for FWS,
above, the central issue in the 112th Congress with these appropriations focused on what level of
funding is adequate to implement the programs required by law.
Table 3. Funding for NMFS Protected Species Programs, FY2011-FY2013
($ in thousands)
FY2011
Enacted
FY2012
Request
FY2012
Enacted
FY2013
Request
FY2013
Sen Rpt
FY2013
Hse Psd
199,447
216,581
176,451
170,041
184,347
154,234
Protected
Species
Sources: Annual budget justifications, House and Senate committee and conference reports.
On July 20, 2011, the House Committee on Appropriations reported H.R. 2596 (H.Rept. 112169), proposing significantly lower FY2012 funding for NMFS’s Protected Species Program.
Funding for Protected Species was proposed to be reduced by $85 million (-39%) from funding
proposed in the Administration’s FY2012 request. On September 15, 2011, the Senate Committee
74
See http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saphr2584r_20110721.pdf.
The Department of Commerce “Budget in Brief” is available at http://www.osec.doc.gov/bmi/budget/FY13BIB/
fy2013bib_final.pdf.
75
Congressional Research Service
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The Endangered Species Act (ESA) in the 112th Congress
on Appropriations reported S. 1572 (S.Rept. 112-78), proposing that FY2012 funding for
Protected Species be reduced by more than $38 million (-18%) from that proposed by the
Administration. On November 1, 2011, the Senate passed H.R. 2112, amended to include the
language of S. 1572, as reported, in Division B, Title I. On November 14, 2011, the conference
report on H.R. 2112 was filed (H.Rept. 112-284), proposing slightly more than $176 million for
protected species programs, about $40 million (-19%) less than the Administration’s request. On
November 18, 2011, President Obama signed P.L. 112-55 (H.R. 2112), providing slightly more
than $176 million for protected species programs.
The Administration’s FY2013 budget request was released on February 13, 2012.76 The
Administration proposed that FY2013 funding for NMFS’s protected species programs in
NOAA’s Operations, Research, and Facilities (OR&F) account decrease by about $6.4 million (3.6%) below the FY2012 enacted funding. On April 19, 2012, the Senate Committee on
Appropriations reported S. 2323 (S.Rept. 112-158), recommending that FY2012 funding for
Protected Species be increased by $14.3 million (8.4%) from that proposed by the Administration
and by $7.9 million (4.5%) above the FY2012 enacted funding. On May 2, 2012, the House
Committee on Appropriations reported H.R. 5326 (H.Rept. 112-463), recommending that
FY2012 funding for Protected Species be decreased by $15.8 million (-9.3%) from that proposed
by the Administration and by $22.2 million (-12.6%) below the FY2012 enacted funding. On
May 10, 2012, the House passed H.R. 5326 (amended). In the absence of final action on either
bill, a continuing resolution, P.L. 112-175, provided FY2013 funding through March 27, 2013, for
projects and activities at the FY2012 level.
Author Contact Information
(name redacted)
Specialist in Natural Resources Policy
[redacted]@crs.loc.gov, 7-....
(name redacted)
Specialist in Natural Resources Policy
[redacted]@crs.loc.gov, 7-....
(name redacted)
Specialist in Natural Resources Policy
[redacted]@crs.loc.gov, 7-....
(name redacted)
Legislative Attorney
[redacted]@crs.loc.gov, 7-....
(name redacted)
Legislative Attorney
[redacted]@crs.loc.gov, 7-....
76
The Department of Commerce “Budget in Brief” is available at http://www.osec.doc.gov/bmi/budget/FY13BIB/
fy2013bib_final.pdf.
Congressional Research Service
24
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