The Endangered Species Act (ESA) in the 113th Congress: New and Recurring Issues
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The Endangered Species Act (ESA) in the
113th Congress: New and Recurring Issues
(name redacted), Coordinator
Specialist in Natural Resources Policy
(name redacted)
Legislative Attorney
(name redacted)
Specialist in Natural Resources Policy
(name redacted)
Specialist in Natural Resources Policy
(name redacted)
Specialist in Natural Resources Policy
(name redacted)
Analyst in Natural Resources Policy
January 13, 2014
Congressional Research Service
7-....
www.crs.gov
R42945
The Endangered Species Act (ESA) in the 113th Congress: New and Recurring Issues
Summary
The Endangered Species Act (ESA; P.L. 93-205, 16 U.S.C. §§1531-1543) was enacted to increase
protection for, and to 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, energy resources in sagebrush country, or freeflowing 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 large-scale
ecosystem restoration issues.
Previous Congresses have conducted oversight hearings on the implementation of various federal
programs and laws that address threatened and endangered species. This has ranged from
addressing listing and delisting decisions under ESA to justifying funding levels for international
conservation programs. In the 113th Congress, resource-specific issues may be addressed
independently, whereas oversight on the implementation of ESA may be addressed in debates
about particular species (e.g., wolves, polar bears, sage grouse, and salmon).
Major issues for the 113th Congress include how to allocate funds to activities and programs
seeking to assist species adaptation to climate change. Other 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 of listed species, among
others.
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 was enacted. No legislative proposals were introduced in the 110th, 111th,
112th, or 113th Congresses for a broad reauthorization of ESA.
This report discusses oversight issues and legislation in the 113th Congress that address ESA
implementation and management of endangered and threatened species.
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The Endangered Species Act (ESA) in the 113th Congress: New and Recurring Issues
Contents
Introduction ..................................................................................................................................... 1
Background ..................................................................................................................................... 1
Overview ................................................................................................................................... 1
ESA and International Wildlife ................................................................................................. 4
Issues in the 113th Congress............................................................................................................. 5
Are Species Protection and Restoration Working? ................................................................... 6
“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 ..................................................................... 16
Additional Issues and Legislative Initiatives .......................................................................... 17
ESA Appropriations ................................................................................................................ 18
Fish and Wildlife Service .................................................................................................. 18
National Marine Fisheries Service .................................................................................... 19
Figures
Figure 1. Number of Listed Species, by State and Territory ........................................................... 3
Figure 2. Density of Listed Species, by State and Territory ............................................................ 4
Tables
Table 1. Percent Recovery Achieved Versus Time Listed ............................................................... 7
Table 2. Funding for FWS Endangered Species and Related Programs, FY2011-FY2014 .......... 18
Table 3. Funding for NMFS Protected Species Programs, FY2011-FY2014................................ 19
Contacts
Author Contact Information .......................................................................................................... 20
Acknowledgments ......................................................................................................................... 20
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The Endangered Species Act (ESA) in the 113th Congress: New and Recurring Issues
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. Under the act, species are to
be listed as threatened or endangered based solely on the best available scientific information,
without regard to economic considerations. Congress faces the issue of how to balance these
economic 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 few bills related to ESA were enacted.3 In the 113th Congress, no measures
have been introduced to reauthorize the act. A few bills have been introduced to limit its reach or
to prevent listing of one or more species.
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. In
addition to an entire species, distinct population segments of vertebrate species may also be listed
1
For example, see CRS Report R42375, H.R. 1837—The Sacramento-San Joaquin Valley Water Reliability Act, 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 actions in recent Congresses, see CRS Report RL33779, The Endangered Species Act (ESA) in the
110th Congress: Conflicting Values and Difficult Choices, by (name redacted) et al. ; CRS Report R40185, The
Endangered Species Act (ESA) in the 111th Congress: Conflicting Values and Difficult Choices, by (name redacted) et
al.; and CRS Report R41608, The Endangered Species Act (ESA) in the 112th Congress: Conflicting Values and
Difficult Choices, by (name redacted) et al.
4
Endangered species are defined as those species “in danger of extinction throughout all or a significant portion of its
range” while threatened species are defined as species “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 113th Congress: New and Recurring Issues
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 penalties and citizen suits, are available to aid species
recovery and to protect habitat. Use of these tools, or the failure to use them, has led to conflict.5
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 (NOAA) for the remaining marine and anadromous species.6 The U.S. Geological
Survey’s Ecosystems Division conducts research on species for which FWS has management
authority; NMFS conducts research on the species for which it is responsible.
As of December 26, 2013, a total of 1,268 species of animals and 877 species of plants were
listed as either endangered or threatened under the ESA, of which the majority (645 species of
animals and 874 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 1,519 U.S. species, 1,144
(75%) are covered in active recovery plans.9 In the most recent data available, FY2011
expenditures on endangered and threatened species, by all federal and state agencies together,
totaled about $1.39 billion, of which about $1.34 billion was reported by federal agencies and
about $57.8 million was reported by the states.10 The top 10 species with the highest total FY2012
expenditures (excluding land acquisition costs) included 7 subpopulations of steelhead and
Pacific salmon ($352.5 million for all 7 together), pallid sturgeon ($53.8 million), bull trout
($37.7 million), and red-cockaded woodpecker ($37.9 million). These expenditures can cover a
wide variety of activities, such as streamside cleanup, land acquisition, creation of artificial nest
sites, etc.
5
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).
6
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. 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 2013 that it considered 21,286 species to be threatened with extinction—an increase
of 2935 species (14%) since 2010. In addition, the IUCN identified 860 species that had become extinct or were extinct
in the wild (i.e., found only in captivity or in cultivation), including 268 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 in other countries. 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 2012;
available at http://www.fws.gov/endangered/esa-library/pdf/2012.EXP.FINAL.pdf.
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The Endangered Species Act (ESA) in the 113th Congress: New and Recurring Issues
Figure 1. Number of Listed Species, by State and Territory
Source: Created by CRS from data on the numbers of listed species available at http://ecos.fws.gov/tess_public/
pub/stateListing.jsp, Jan. 7, 2013.
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 because a declining—even seemingly
insignificant—species is a flag that signals both an ecosystem in danger and a scarcity of
economic resources. These actions have been especially controversial where they affect resourcebased economies. Controversies in which ESA-listed species are or have been part of larger
debates include water supply in central California (water for some users vs. effects of water
supply conveyance and other factors on commercial and recreational fishing), 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 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 113th Congress: New and Recurring Issues
Figure 2. Density of Listed Species, by State and Territory
Source: Created by CRS from data on the numbers of listed species available at http://ecos.fws.gov/tess_public/
pub/stateListing.jsp, Jan. 7, 2013; 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.
ESA and International Wildlife11
For foreign species, the Secretary of the Interior is authorized to consider actions taken by foreign
governments or agencies on species when determining if a foreign species should be listed.
Further, the Secretary must make determinations for listing species based on the best available
scientific and commercial data (which may include foreign sources) and taking into account
efforts by foreign governments and agencies.12 FWS reviews foreign species under the ESA’s
listing criteria, with a required regulatory and public comment process before listing. Foreign
governments and scientific organizations can and do comment on proposed listings.
Foreign species are also addressed by international wildlife treaties. ESA is the domestic vehicle
to implement 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
11
This section was prepared by (name redacted), Specialist in Natural Resources Policy ([redacted]@crs.loc.gov, 7....).
12
16 U.S.C. 1533(b).
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The Endangered Species Act (ESA) in the 113th Congress: New and Recurring Issues
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).13 CITES
focuses on extinction due specifically to trade. It parallels ESA by dividing its listed species into
groups according to the estimated risk of trade-caused extinction, but uses three categories (called
appendices), rather than two.14 CITES does not have enforcement authority and regulates the
international trade of species through permits. Under ESA, violations of CITES are also
violations of U.S. law if committed within U.S. jurisdiction (16 U.S.C. §1538), by a person
subject to U.S. jurisdiction. ESA also regulates import and export of controlled wildlife products
made from listed species (e.g., sport hunted trophies) and provides some specified exceptions to
import and export regulations.15
According to U.S. government estimates, illegal trade in endangered wildlife products, including
elephant ivory, rhino horns, and turtle shells, is worth at least $7 billion annually.16 (This figure
does not include illegal logging and illegal fishing, which can account for roughly an additional
$30 billion to $100 billion annually and $10 billion to $23 billion annually, respectively.)17 Such
figures may place illegal wildlife trafficking among the most lucrative criminal activities
worldwide, behind only narcotics, counterfeiting, and human trafficking.
Prosecutions by the Department of Justice of ESA and CITES violations have, in some cases, led
to the dismantling of wildlife trafficking rings in the United States and throughout the world.
Recent activity in the 113th Congress has addressed the illegal wildlife trade, in particular
elephant and rhino poaching and the trade of ivory.18
Issues in the 113th 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 have or are
likely to receive attention in the 113th Congress.
13
For additional background, see out-of-print CRS Report R42447, The Endangered Species Act (ESA) as
Implementing Legislation for International Treaties, available from the author.
14
For additional information on CITES, see http://www.cites.org/. For the most part, species found in Appendices I and
II of CITES are also listed under ESA and vice-versa.
15
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) .
16
State Department, “Secretary Clinton Hosts Wildlife Trafficking and Conservation,” media note, Nov. 8, 2012.
According to the National Intelligence Council, environmental crime, defined to include illegal wildlife trade, logging,
trade in CFCs, and toxic waste dumping, generates an estimated $20 billion to $40 billion per year for transnational
organized crime. See Office of the Director of National Intelligence, Special Report: The Threat to U.S. National
Security Posed by Transnational Organized Crime, 2011.
17
David J. Agnew et al., “Estimating the Worldwide Extent of Illegal Fishing,” PLoS ONE 4(2), Feb. 2009; Christian
Nellemann, ed. (INTERPOL and United Nations Environment Programme (UNEP)), Green Carbon, Black Trade,
2012.
18
For more on additional aspects of U.S. international wildlife conservation, CRS Report RS21157, International
Species Conservation Funds, by (name redacted) and (name redacted) , out-of-print CRS Report R42067, The Lacey
Act: Protecting the Environment by Restricting Trade (available from the author), and CRS Report R42119, The Lacey
Act: Compliance Issues Related to Importing Plants and Plant Products, by (name redacted) .
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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.19 In the 40 years since ESA was enacted, 58 U.S. and foreign species or
distinct population segments thereof have been delisted.20 The reasons cited by FWS are
(a) recovery (30 species); (b) extinction (10 species);21 (c) taxonomic revisions (7 species); and
(d) original data in error or legislative changes to ESA (11 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, long thought by many to be extinct, was thought to have
been rediscovered in a remote area of Arkansas a few years ago, and that rediscovery is itself in
question. Rare species are, by definition, hard to find.
Some have asserted that ESA is a failure because only 30 species have been delisted due to
recovery; on the other hand, only 10 species have been delisted due to extinction. Others note that
full recoveries are relatively few because the two principal causes of extinction—habitat loss and
invasive species—continue to increase. In addition, “only those species whose situations are
known to be the most desperate will receive priority.”22 This policy will make 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.23 Under this standard, ESA
could be considered a success, since a large number of listed species (41%, according to one
study)24 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.25 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
19
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.
20
These figures were updated on December 26, 2013; for the latest information, see http://ecos.fws.gov/tess_public/
DelistingReport.do.
21
However, some may have been extinct already when listed.
22
National Research Council Commission on Life Sciences, Science and the Endangered Species Act, National
Academy Press (Washington, DC: 1995), p. 169.
23
Krishna Gifford and Deborah Crouse, “Thirty-Five Years of the Endangered Species Act,” Endangered Species
Bulletin, v. 34, no. 1 (Spring 2009):.4-7.
24
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.
25
See archived CRS Report R42119, The Lacey Act: Compliance Issues Related to Importing Plants and Plant
Products, by (name redacted) .
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The Endangered Species Act (ESA) in the 113th Congress: New and Recurring Issues
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.26
Table 1. Percent Recovery Achieved Versus Time Listed
(data as of September 30, 2006)
% 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
Recovery Plan objectives
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 the Government Accountability Office (GAO) found that although FWS
spent 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.27 GAO found that FWS
did 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. It reviewed and critiqued
various ways that recovery might be measured, noting among other things, the difficulty in
choosing a measurable standard. In 2006, GAO examined federal efforts to recover 31 selected
species.28 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.29 For example:
26
Michael Hoffman et al., “The Impact of Conservation on the Status of the World’s Vertebrates,” Science, v. 330
(December 10, 2010): 1503-1509.
27
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.
28
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.
29
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.
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The Endangered Species Act (ESA) in the 113th Congress: New and Recurring Issues
FWS had not clarified the role of critical habitat and how and when it should be
designated;30
FWS had not periodically assessed expenditures on species in relation to their
relative priority; and
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, 2010.31 The
report provides summary tables on recovery efforts for all species under NMFS’s jurisdiction,
plus selected highlights for several species.
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.32
“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.”33 In several 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 the proposed
listing of sage grouse.34 Critics in some of these disputes suggest that the science supporting an
ESA action has been insufficiently rigorous or mishandled by the agencies. For example, 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.35
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,36 but cannot ignore available biological information,37
30
On August 28, 2013, FWS and NMFS published a final rule intended to provide an earlier assessment of economic
impacts in the designation of new critical habitat (CH) (78 Fed. Reg. 53058-53076).
31
This report is available at http://www.nmfs.noaa.gov/pr/laws/esa/biennial.htm.
32
Report available at http://www.eenews.net/assets/2012/05/17/document_gw_05.pdf.
33
16 U.S.C. §1533(b)(1)(A).
34
See CRS Report RL32992, The Endangered Species Act and “Sound Science”, by (name redacted).
35
Article available at http://www.biologicaldiversity.org/programs/biodiversity/endangered_species_act/pdfs/
bio201262712_Forum_Greenwald.pdf. The analysis suggested that peer reviewers recommending that critical habitat
designations increase in size were less likely to be adopted than those recommending decreases, and that no adequate
arbiter was available to ensure that reviews were considered.
36
Southwest Center for Biological Diversity v. Babbitt, 215 F. 3d 58 (D.C. Cir. 2000).
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The Endangered Species Act (ESA) in the 113th Congress: New and Recurring Issues
especially if the ignored information is the most current.38 Nor may an agency treat one species
differently from other similarly situated species,39 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.40 “Best scientific and commercial data available” is not a standard of absolute certainty,
reflecting Congress’s intent that FWS take conservation measures before a species is conclusively
headed for extinction.41 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.”42
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.43 In Arizona Cattle
Growers Association v. United States Fish and Wildlife Service,44 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.45
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, no published court opinion has considered this issue.
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
(...continued)
37
Connor v. Burford, 848 F. 2d 1441 (9th Cir. 1988).
38
Southwest Center for Biological Diversity v. Babbitt, 926 F. Supp. 920 (D.C. Ariz. 1996).
39
Id.
40
Biodiversity Legal Foundation v. Babbitt, 943 F. Supp. 23 (D. D.C. 1996).
41
Defenders of Wildlife v. Babbitt, 958 F. Supp. 670, 679-680 (D. D.C. 1997).
42
Building Industry Ass’n of Superior Cal. v. Norton, 247 F. 3d 1241, 1246-1267 (D.C. Cir. 2001), cert. denied 2002
U.S. LEXIS 479.
43
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).
44
273 F. 3d 1229 (9th Cir. 2001).
45
Pacific Coast Federation of Fishermen’s Associations, Inc. v. NMFS, 265 F.3d 1028, 1034 (9th Cir. 2001).
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The Endangered Species Act (ESA) in the 113th Congress: New and Recurring Issues
Environmental Coalition v. Florida, and it was not clear whether those claims were premised on
the ESA or on another legal basis.46 In an Eighth Circuit case, Sierra Club v. U.S. Army Corps of
Engineers,47 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 greenhouse gases (GHGs).48
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 the Service considered impacts of federal projects
on listed species.49 Those regulations were effective only from January 15, 2008, to May 5, 2008,
after Congress acted to halt them in P.L. 111-8.50 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.”51 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.52
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.53
The polar bear was listed under the act primarily due to shrinking habitat caused by changing
climate.54 The polar bear regulation prevents a lawsuit that claims that a power plant in any state
other than Alaska harms the polar bear by indirectly causing its ice habitat to diminish. The law
that authorized revocation of the regulations discussed above, P.L. 111-8, also authorized
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.55
In the 113th Congress, Section 307(b) of S. 17 would amend ESA to prohibit the consideration of
impacts from greenhouse gases in implementation of ESA.
46
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.
47
645 F.3d 978 (8th Cir. 2011).
48
776 F. Supp. 2d 1007 (N.D. Cal. 2011).
49
73 Federal Register 76272 (December 16, 2008) (effective January 15, 2009).
50
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”).
51
73 Federal Register 47872.
52
50 C.F.R. §402.02.
53
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) .
54
73 Federal Register 28212 (May 5, 2008).
55
75 Federal Register 76085.
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Regional Resource Conflicts
As 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 Basin56
Controversy first 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 has 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 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. Ten-year and annual operation plans, and
associated biological assessments (by the Bureau) and Biological Opinions (BiOps, by FWS and
NMFS), have been variously criticized and defended.
Recent agreements propose to resolve conflicts in the Klamath Basin and are supported by federal
and non-federal entities. In 2010, the Secretary of the Interior and the governors of Oregon and
California announced a Klamath Basin Restoration Agreement (KBRA), which was negotiated
and signed by more than 40 Klamath River stakeholders. It proposes to address conflicting water
management objectives and outstanding water rights claims in the Basin. A second agreement
with PacifiCorp (a private company), the Klamath Hydropower Settlement Agreement (KHSA),
may result in the removal of four dams on the Klamath River that block salmon and steelhead
from historic spawning areas. On September 21, 2012, the Secretary of the Interior announced the
completion of scientific and technical studies concerning the environmental and economic
impacts of removing four Klamath River hydroelectric dams.57
Another agreement, the Upper Klamath Basin Agreement in Principle, was announced in
December 2013 and includes provisions that would resolve outstanding disputes not settled in the
KBRA and result in some opponents of the KBRA being included under that agreement.
Implementation of the KBRA requires congressional authorization and subsequent appropriations.
While dam removal under the KHSA is expected to be funded by the states of Oregon and
California (i.e., it will not require federal appropriations), congressional authorization is required
for the Secretary of the Interior to make a final decision on whether dam removal is justified and
can move forward.
56
57
This section was prepared by (name redacted), Specialist in Natural Resources Policy ( [redacted]@crs.loc.gov
, 7-....).
See http://www.doi.gov/news/pressreleases/Salazar-Announces-Release-of-Klamath-Dam-Removal-Studies.cfm.
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Legislation authorizing the agreements was introduced but not acted upon in the 112th Congress.
Since that time, estimated costs for implementing the Klamath agreements has been revised
downward, among other developments. At issue for the 113th Congress is whether to provide
legislative approval and support for the Klamath agreements. Congress held oversight hearings on
the agreements in 2013, but to date no authorizing legislation has been proposed.
Gray Wolf
Until the last couple of centuries, wolves were found throughout North America. For wolves,
which are (or were) found in temperate and polar areas throughout the Northern Hemisphere,
some observers would argue that there were as many as 24 subspecies in North America.58 In
contrast, until recently, FWS divided all wolves in North America into two species: red wolves
(Canis rufus) and gray wolves (Canis lupus), with the latter having a subspecies, the Mexican
wolf (Canis lupus baileyi). Because these names have legal consequences, it is important to note
that the taxonomic debate is not whether the various groups of wolves around North America are
truly different species. The wide ranging habits of wolves and the intermixing of the genes in one
pack with those of another, as packs are formed and die out, mean that hard distinctions cannot be
made. Rather, from a taxonomic point of view, the question is whether wolves in one area are
different enough to be called different species or subspecies, all the while recognizing that
intermediate wolves will be found naturally.
Regardless of scientific names, wolves had all but disappeared from the contiguous United States
when Congress enacted the Endangered Species Act of 1973 (ESA), and FWS listed wolves as an
endangered species in most of the lower 48 states. Since then, the gray wolf (Canis lupus) has
held every status of protection under the ESA, as regulatory efforts have shifted from conserving
the wolf (which eventually led to reintroducing wolves into three areas in the American West in
the 1990s),59 to reducing wolf protections where its population has surged. Litigation has
followed each regulatory change. ESA protection for distinct population segments (DPSs) of
wolves has changed back and forth since the first DPSs—Western and Eastern—were proposed in
2003.60 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, until Congress enacted
legislation to exempt certain de-listing regulations from judicial review. This sequence of events
is described here.
In 2003, FWS determined that wolves in the western and eastern United States were distinct from
other wolves and designated them as distinct population segments (DPSs). At the same time,
FWS determined that the neither the Western nor the Eastern DPS needed the protection of the
ESA any longer and so they were delisted. The two 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, as ordered by the courts, FWS returned the wolves in the Western Great
Lakes and parts of the Northern Rocky Mountains areas to their former protected status,
58
See discussion, citing various authors, in L. David Mech, The Wolf: The Ecology and Behavior of an Endangered
Species, pp. 29-31 (Garden City, NY: Natural History Press 1970).
59
These areas were the Arizona-New Mexico border, the Yellowstone ecosystem, and the Idaho-Montana area.
60
For more information, see CRS Report RL34238, Gray Wolves Under the Endangered Species Act (ESA): Distinct
Population Segments and Experimental Populations, by (name redacted).
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eliminating the DPS designations.61 In April 2009 FWS published notices designating 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). In August
2010, a court held that the Northern Rockies delisting violated the ESA, and directed that the
delisting be declared invalid.62 The Northern Rockies wolves were returned to their experimental
population status, meaning they were treated as threatened in most circumstances.
Meanwhile, some proposed that the species be delisted legislatively, but critics argued that
allowing Congress to remove or add protections for particular species would set a dangerous
precedent.63 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. 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 09CV-118J and 09-CV-138J on November 18, 2010.
Besides marking the first legislative delisting under ESA, 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 became 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 previous 48 species delisted, none had been delisted due to
specific legislative action.64 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 P.L. 112-10 (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. On September
10, 2012, FWS published a rule delisting wolves in Wyoming, effective September 30, 2012.65
In May 2011, FWS again proposed to delist the wolves in the Western Great Lakes region. This
DPS was delisted in December 2011.66
In addition, in the May 2011 notice it also proposed designating any wolves in most of the eastern
states and Canadian provinces as a third species of wolf, to be called the “eastern wolf” (Canis
lycaon), in addition to the gray and red wolf species.67 Wolves in the east had been considered
61
The 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.
62
Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207 (D. Mont. 2010).
63
See http://www.ucsusa.org/assets/documents/scientific_integrity/Experts-Letter-to-Senate-on-Endangered-SpeciesAct-2011.pdf.
64
See http://ecos.fws.gov/tess_public/pub/delistingReport.jsp, which provides background on the 48 species delisted to
date.
65
77 Federal Register 55529.
66
76 Fed. Reg. 81666 (Dec. 28, 2011).
67
76 Fed. Reg. 26086 (May 5, 2011).
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The Endangered Species Act (ESA) in the 113th Congress: New and Recurring Issues
gray wolves (Canis lupus). Many scientists agree that they are different, but only enough to
constitute a different subspecies.68 FWS adopted the view that they are a different species
altogether, and stated:
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.69
This view of wolf taxonomy is controversial, and some newer research does not support this
proposal.70 If accepted, this proposal would have the effect of delisting any wolves remaining in
eastern states: Canis lupus is listed, but if these eastern wolves are not considered to be members
of this species, then this taxonomic change effectively delists them, and would require them to go
through a new listing process to provide ESA protections.
In June 2013, FWS proposed delisting all gray wolves in the lower 48 states and changing the
status of Mexican wolves to endangered.71 The proposal was based on (a) their revised
interpretation of gray wolf habitat; (b) their proposed taxonomic revision supporting a distinct
eastern wolf species (whose acceptance alone would be sufficient to delist any wolves said to be
in that new species); and (c) the notion that wolves were not likely to spread beyond their present
ranges, due to unsuitable habitats.
As with the many controversies surrounding wolf conservation, these proposals may also be
subject to litigation and come to congressional attention.
Delta Smelt72
Delta smelt (Hypomesus transpacificus) are small, slender-bodied fishes found only in the San
Francisco Bay and Sacramento-San Joaquin Rivers Delta in California (Bay-Delta), where they
were once abundant.73 The species had declined an estimated 90% over a 20-year period before it
was listed as threatened under ESA in 199374 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 large exports of freshwater from the Bay-Delta that results in entrainment (i.e.,
entrapment) in water export pumps and affects size, location, and quality of habitat. Other factors
contributing to the species’ decline include competition and predation from other fish species
68
For example, see the Integrated Taxonomic Information system (http://www.itis.gov/), which considers lycaon to be
a subspecies. FWS and USGS are members of this international academic and governmental scientific consortium.
69
See press release at http://us.vocuspr.com/Newsroom/Query.aspx?SiteName=fws&Entity=PRAsset&
SF_PRAsset_PRAssetID_EQ=115700&XSL=PressRelease&Cache=True.
70
See vonHoldt, B.M., et al. 2011. “A genome-wide perspective on the evolutionary history of enigmatic wolf-like
canids.” Genome Research 1-33.
71
78 Fed. Reg. 35663 (June 13, 2013).
72
This section was prepared by (name redacted), Specialist in Natural Resources Policy [redacted]@crs.loc.gov
(
, 7-....).
73
For background on legal issues, see out-of-print CRS Report R41876, Biological Opinions for the Sacramento-San
Joaquin Delta: A Case Law Summary, available from the author.
74
U.S. Fish and Wildlife Service, “Endangered and Threatened Wildlife and Plants; Determination of Threatened
Status for the Delta Smelt,” 58, No. 42 Federal Register 12854, March 5, 1993.
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The Endangered Species Act (ESA) in the 113th Congress: New and Recurring Issues
(including non-indigenous or “exotic” species such as striped bass), warmer water temperatures,
toxic contaminants, and changes in food supply.75 The contribution of each factor in causing the
species decline is controversial. Some contend that all causes contribute to the observed decline;76
however, only some of the factors are under direct federal control.
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 of the federal nexus, changes in how the federal pumps are
operated necessitated consultation with fish and wildlife agencies under ESA (i.e., consultation
was triggered because a proposed change in operation in 2004 was a federal action). Alternative
pumping actions imposed by fish and wildlife agencies following consultation have contributed to
less pumping and less water for many users south of the Delta. The reduction in water deliveries
has been very controversial, particularly in drought and below normal water years.
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 2004.77 FWS initially issued a no-jeopardy
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.78 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 that was issued in December 2007.79
In May 2008, the Bureau of Reclamation issued a revised biological assessment on the CVP
Operations Criteria and Plan (OCAP) and requested consultation.80 A revised FWS BiOp was
issued December 15, 2008.81 FWS determined that the continued operation of water projects in
the Bay-Delta, as described in the 2008 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 2008 FWS BiOp was issued. However, dry water conditions in 2013
75
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.
76
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 2008. See Pelagic Organism Decline
Progress Report: 2007 Synthesis of Results, at http://www.fws.gov/sacramento/es/documents/POD_report_2007.pdf.
77
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
Plan (OCAP), and initiated consultation with FWS. Consultation was also initiated with NMFS on several other
anadromous species (e.g., salmon and sturgeon), which also has been challenged in court.
78
NRDC v. Kempthorne, 506 F. Supp. 2d 322 (E.D. Cal. 2007).
79
NRDC v. Kempthorne, 2007 U.S. Dist. LEXIS 91968 (E.D. Cal. December 14, 2007).
80
http://www.usbr.gov/mp/cvo/OCAP/docs/Letters.pdf.
81
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 113th Congress: New and Recurring Issues
and projected drought conditions for 2014 continue to stress the water supply system and
pumping levels in the Delta. In the meantime, the litigation regarding the 2008 FWS BiOp and
the FY2009 NMFS BiOp are before the Ninth Circuit Court of Appeals.
At issue during the second session of the 113th Congress may be congressional oversight of
proposals to address water supply shortages due to hydrological and regulatory factors affecting
delivery of water from the CVP and SWP, as well as broader efforts to address environmental and
water supply challenges associated with the Bay-Delta (e.g., the Bay-Delta Conservation Plan).
Section 308 of S. 17 (H.R. 1881) would prohibit the Bureau of Reclamation and California state
agencies from restricting operations for the Central Valley Project pursuant to any BiOp under
certain conditions. Section 1(b) of H.R. 1927 would deem ESA requirements relating to the
operations of the CVP and SWP fulfilled if the 2008 FWS and 2009 NMFS BiOp RPAs are
implemented and certain Delta water flows and pumping regimens are not exceeded.
Private Property and Fifth Amendment Takings82
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
sense of the term.83 Conflicts between ESA and property owners come about despite the existence
of ESA mechanisms, such as incidental take permits 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 and value. 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.84
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 only one finding a 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
82
This section was prepared by (name redacted), Legislative Attorney
[redacted]@crs.loc.gov
(
, 7-....).
See CRS Report RL31796, The Endangered Species Act (ESA) and Claims of Property Rights “Takings”, by (name r
edacted)
.
84
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.
83
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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.
The one decision finding a taking involved a reduction in the water delivered to a water district
below the contractually promised amount because the water was needed to maintain in-stream
flows for ESA-listed fish.85 This decision, however, has been undermined by the same judge who
wrote it in a later decision.86 A second ESA/taking case appeared on course for a plaintiff win, but
was dismissed on ripeness grounds. In this case, the Federal Circuit instructed that when the
government requires water subject to appropriative water rights to be physically diverted to a fish
ladder (for ESA-listed fish), the diversion and resulting non-delivery to the water right holder
must be analyzed under a physical rather than regulatory taking theory.87 Under a physical taking
theory, the water right holder normally would be expected to be victorious. However, on second
appeal the Federal Circuit held that the water district had not shown that the water diverted to the
fish ladder was of sufficient amount to interfere with the district’s ability to satisfy its obligations
to its customers.88 So the case was dismissed as unripe.
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.
Additional Issues and Legislative Initiatives
Other miscellaneous issues have emerged for which legislation has been introduced in the 113th
Congress:
H.R. 1526 (Section 104(e)) would alter the consultation process for a timber sale
program on federal lands allowing the Department of Agriculture to make its own
no jeopardy determination in the ESA consultation process.
H.R. 1965 (Section 1302) provides that certain earlier actions by the Bureau of
Land Management concerning permitting for oil shale development shall be
deemed to satisfy the provisions of ESA, as well as of certain other laws.
H.R. 3533 (and its companion bill, S. 1731) would make an array of changes in
ESA. They would allow governors to determine whether species may be listed
within their states; allow governors to assume sole authority for listed species
found only within the state’s boundaries as determined by the governor; eliminate
petitions to list species; require congressional approval to list species; remove
species from protection five years after listing; and allow property owners to seek
compensation for a broad range of impacts on fair market value due to the
statute’s prohibitions on taking listed species, among other changes.
S. 17 (Section 309(d)) would prohibit any area necessary to construct or maintain
the Keystone XL pipeline from being considered critical habitat under ESA.
85
Tulare Lake Basin Water Storage Dist. v. United States, 49 Fed. Cl. 313 (2001).
Casitas Municipal Water Dist. v. United States, 76 Fed. Cl. 100 (2007). Though the judge’s 2007 opinion was
reversed in relevant respects on appeal (543 F.3d 1276 (Fed. Cir. 2008)), the appeals court’s rationale seems to leave
the lower court’s argument intact.
87
Casitas Municipal Water Dist. v. United States, 543 F.3d 1276 (Fed. Cir. 2008).
88
Casitas Municipal Water Dist. v. United States, 708 F.3d 1340 (Fed. Cir. 2013).
86
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The Endangered Species Act (ESA) in the 113th Congress: New and Recurring Issues
S. 17 (Section 307(a)) would provide a temporary exemption from ESA
restrictions on taking and adverse modification of critical habitat in a declared
emergency.
S. 19 would amend ESA to establish a procedure for state approval of consent
decrees or settlement agreements in actions brought under ESA Section
11(g)(1)(C).
S. 744 (Section 3(d)) would waive ESA and other legal requirements to ensure
expeditious construction of border fences and infrastructure.
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 Service89
Table 2 summarizes recent ESA and related funding for FWS. The Administration proposed that
FY2014 funding for endangered species programs in FWS’s Ecological Services account increase
by 7.3% above the FY2013 enacted funding. In addition, the Administration proposed an increase
of 17.4% for the Cooperative Endangered Species Fund above the FY2013 levels. There are two
related programs that also generally benefit endangered foreign or migratory species and these are
also shown. The Administration proposed level funding for the Multinational Species
Conservation Fund and for the Neotropical Migratory Bird Fund. FY2014 appropriations for
these programs are pending in congressional deliberations concerning an omnibus spending bill.
For more information on the status of Interior appropriations, see CRS Report R43142, Interior,
Environment, and Related Agencies: FY2013 and FY2014 Appropriations.
Table 2. Funding for FWS Endangered Species and Related Programs,
FY2011-FY2014
($ in thousands)
FY2011
Enacted
FY2012
Enacted
FY2013
Enacted
FY2014
Request
Candidate
Conservation
11,448
11,337
11,247
11,530
Listing
20,902
20,869
20,667
22,622
Consultation
61,877
60,943
60,672
64,751
Recovery
81,219
82,806
80,181
86,543
Subtotal
175,446
175,955
172,767
185,446
Cooperative
Endangered
Species Fund
59,880
47,681
47,681
56,000
89
For an overview of FWS appropriations, see CRS Report R42466, Fish and Wildlife Service: FY2013 Appropriations
and Policy, by (name redacted).
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The Endangered Species Act (ESA) in the 113th Congress: New and Recurring Issues
FY2011
Enacted
FY2012
Enacted
FY2013
Enacted
FY2014
Request
Multinational
Species Funda
9,980
9,466
9,787
9,787
Neotropical
Bird Fundb
3,992
3,786
3,786
3,786
249,298
236,888
234,021
255,019
Total
Sources: Annual budget justifications. FY2011-FY2013 enacted from House Committee reports.
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).
National Marine Fisheries Service90
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).91 The Administration proposed that FY2014 funding for NMFS’s protected species
programs in NOAA’s Operations, Research, and Facilities (OR&F) account increase by about
$20.4 million (12.4%) above the FY2013 National Oceanic and Atmospheric Administration
operating plan. On July 17, 2013, the House Committee on Appropriations approved H.R. 2787
(H.Rept. 113-171), recommending that FY2014 funding for Protected Species be increased by
$1.5 million (0.9%) from the FY2013 spend plan and decreased by $19.0 million (-10.2%) from
the funding level proposed by the Administration. On July 18, 2013, the Senate Committee on
Appropriations approved S. 1329 (S.Rept. 113-78), recommending that FY2014 funding for
Protected Species be increased by $18.2 million (11.0%) above the FY2013 spend plan,
decreased by $2.2 million (-1.2%) from the funding level proposed by the Administration, and
increased by $16.7 million (10.0%) above the level recommended by the House Committee on
Appropriations. On October 17, 2013, the Continuing Appropriations Act, 2014 (P.L. 113-46) was
signed into law. The act continues FY2013 appropriations for Commerce, Justice, and Science
(CJS) agencies and bureaus until January 15, 2014, or whenever the FY2014 CJS appropriations
bill is signed into law.
Table 3. Funding for NMFS Protected Species Programs, FY2011-FY2014
($ in thousands)
Protected Species
FY2011
Enacted
FY2012
Enacted
FY2013
Final Op.
Plan
FY2014
Request
FY2014
Hse Rpt.
FY2014
Sen Rpt.
188,101
176,451
165,521
185,969
167,000
183,758
Sources: Annual budget justifications, House and Senate committee and conference reports.
90
This section was prepared by (name redacted), Analyst in Natural Resources Policy ([redacted]@crs.loc.gov,-....)
7
.
The National Oceanic and Atmospheric Administration “Blue Book” is available at
http://www.corporateservices.noaa.gov/~nbo/14bluebook_highlights.html.
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The Endangered Species Act (ESA) in the 113th Congress: New and Recurring Issues
Author Contact Information
(name redacted), Coordinator
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)
Specialist in Natural Resources Policy
[redacted]@crs.loc.gov
, 7-....
(name redacted)
Specialist in Natural Resources Policy
[redacted]@crs.loc.gov
, 7-....
(name redacted)
Analyst in Natural Resources Policy
[redacted]@crs.loc.gov
, 7-....
Acknowledgments
(name redacted), former legislative attorney, contributed to an earlier version of this report.
specialist Gene Buck also made important contributions to this report.
Congressional Research Service
Retired CRS
20
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