The Endangered Species Act (ESA) in the 109th Congress: Conflicting Values and Difficult Choices

Congressional research reportJan 4, 2007

Ask Donna

What actually matters in this document.

Text

The Endangered Species Act (ESA) in the

109th Congress: Conflicting Values and

Difficult Choices

(name redacted)

Specialist in Natural Resources Policy

(name redacted)

Specialist in Natural Resources Policy

(name redacted)

Specialist in Natural Resources Policy

(name redacted)

Legislative Attorney

January 4, 2007

Congressional Research Service

7-....

www.crs.gov

RL33468

CRS Report for Congress

Prepared for Members and Committees of Congress

The Endangered Species Act (ESA) in the 109th Congress

Summary

The 109th Congress considered numerous proposals to amend the Endangered Species Act (ESA;

P.L. 93-205, 16 U.S.C. §§1531-1543). Major issues in recent years have included changing the

role of science in decision-making, modifying critical habitat (CH) procedures, incorporating

further protection and incentives for property owners, and increasing protection of listed species,

among others. In addition, many have advocated enacting as law some ESA regulations

promulgated during the Clinton Administration.

The ESA has been one of the more contentious environmental laws. This may stem from its strict

substantive provisions, which can affect the use of both federal and nonfederal lands and

resources. Under the 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. Once a

species is listed, powerful legal tools are available to aid its recovery and protect its habitat. The

ESA may also be controversial because dwindling species are usually harbingers of broader

ecosystem decline: the most common cause of listing species is habitat loss.

The authorization for spending under the ESA expired on October 1, 1992. The prohibitions and

requirements of the ESA remain in force, even in the absence of an authorization, and funds have

been appropriated to implement the administrative provisions of the ESA in each subsequent

fiscal year. In the 109th Congress, H.R. 3824 and S. 2110 proposed to extensively amend and

reauthorize the ESA; the House passed H.R. 3824 (amended) on September 29, 2005. Proponents

of both bills argued that they were designed to make the ESA more effective by redefining the

relationship between private and public property uses and species protection, implementing new

incentives for species conservation, and removing what some see as undue land use restrictions.

However, critics argued that proposed changes created gaps in the ESA safety net of protections

and prohibitions.

The 109th Congress enacted legislation that (1) established a pilot project in Wyoming, Montana,

Colorado, Utah, and New Mexico to better coordinate consultations and the preparation of

biological opinions under ESA §7 (P.L. 109-58); (2) authorized certain activities related to the

Middle Rio Grande Endangered Species Collaborative Program (P.L. 109-103); (3) reauthorized

Upper Colorado and San Juan River Basin endangered fish recovery programs (P.L. 109-183); (4)

expanded a Hawaiian National Wildlife Refuge to protect habitat for endangered waterbirds (P.L.

109-225); (5) expanded the authority of the Secretary of the Interior to assist private landowners

in restoring, enhancing, and managing endangered and threatened species habitat on private land

through the Partners for Fish and Wildlife Program (P.L. 109-294); (6) reauthorized and amended

the Neotropical Migratory Bird Conservation Act and the Great Ape Conservation Act of 2000

(P.L. 109-363); and (7) established programs to manage marine debris and address its adverse

effects on endangered species (P.L. 109-449). This report also identifies additional bills that were

introduced in the 109th Congress to address specific concerns related to how the ESA is

implemented and how endangered species are managed.

Congressional Research Service

The Endangered Species Act (ESA) in the 109th Congress

Contents

Most Recent Developments.........................................................................................................1

Background and Analysis ............................................................................................................1

Overview ..............................................................................................................................1

Major Provisions of Domestic Law .......................................................................................2

Listing ............................................................................................................................2

Critical Habitat ...............................................................................................................2

Prohibitions and Penalties ...............................................................................................3

Permits and Consultation.................................................................................................4

Exemptions .....................................................................................................................4

Emergencies ...................................................................................................................5

Recovery Plans ...............................................................................................................5

Land Acquisition and Cooperation ..................................................................................5

Miscellaneous .................................................................................................................5

Major Provisions of International Law ..................................................................................6

Is Species Protection and Restoration Working? ....................................................................7

Issues in the 109th Congress.........................................................................................................8

Critical Habitat Designation ..................................................................................................8

“Sound Science” and the ESA...............................................................................................9

Information Quality ........................................................................................................9

Court Cases on the ESA and Science............................................................................. 10

Regional Resource Conflicts ............................................................................................... 11

Klamath River Basin..................................................................................................... 11

Pacific Salmon Restoration ........................................................................................... 12

Rio Grande Silvery Minnow.......................................................................................... 12

Counterpart Regulations: Pesticides and Fire Management Projects..................................... 13

Private Property and Fifth Amendment Takings................................................................... 14

Making the ESA More User-Friendly .................................................................................. 15

Additional Legislative Initiatives......................................................................................... 16

Appropriations .................................................................................................................... 18

ESA Listing Caps, New and Old ................................................................................... 19

Tables

Table 1. Percent Recovery Achieved versus Time Listed .............................................................8

Table 2. Funding for Endangered Species and Related Programs, FY2006-FY2007 ................... 20

Contacts

Author Contact Information ...................................................................................................... 20

Congressional Research Service

The Endangered Species Act (ESA) in the 109th Congress

Most Recent Developments

On December 22, 2006, President Bush signed P.L. 109-449 (S. 362), establishing NOAA and

Coast Guard programs to manage marine debris and address its adverse effects on endangered

species. On December 9, 2006, the Senate agreed to the House-amended S. 362. On December 9,

2006, the House passed the Senate-amended H.R. 5946. On December 7, 2006, the Senate passed

H.R. 5946, amended to incorporate language (1) requiring a study of sea turtle excluder devices

in shrimp trawls, and (2) implementing the Agreement on the Conservation and Management of

the Alaska-Chukotka Polar Bear Population. On December 6, 2006, the Senate passed H.R. 4075,

after amending this bill to incorporate language implementing the Agreement on the Conservation

and Management of the Alaska-Chukotka Polar Bear Population. (This report replaces CRS Issue

Brief IB10144, The Endangered Species Act (ESA) in the 109th Congress: Conflicting Values and

Difficult Choices, by (name redacted) et al.)

Background and Analysis

Overview

The 1973 ESA (P.L. 93-205, as amended; 16 U.S.C. §§1531-1543) was a comprehensive attempt

to protect species at risk of extinction and to consider habitat protection as an integral part of that

effort. A stated purpose of the ESA is to protect the ecosystems of which listed species are a part.

Under the 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. More

flexible management can be provided for species listed as threatened. Distinct population

segments may also be listed as threatened or endangered, but only of vertebrate species.

Consequently, some populations of chinook, coho, chum, and sockeye salmon in Washington,

Oregon, Idaho, and California are protected under the 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 the ESA. Once a species is listed, powerful legal

tools, including 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.1

The ESA is administered by the Department of the Interior’s Fish and Wildlife Service (FWS) for

terrestrial and freshwater species and some marine mammals, and by the National Marine

Fisheries Service (NMFS; also popularly referred to as NOAA Fisheries) in the Department of

Commerce’s National Oceanic and Atmospheric Administration (NOAA) for the remaining

marine and anadromous species. 2 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.

For additional background, see CRS Report RL31654, The Endangered Species Act: A Primer, by (name redacted),

(name redacted), and (name redacted).

For background on the 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/.

Congressional Research Service

The Endangered Species Act (ESA) in the 109th Congress

As of September 20, 2006, a total of 1,132 species of animals and 747 species of plants had been

listed as either endangered or threatened, of which the majority (567 species of animals and 744

species of plants) occur in the United States and its territories and the remainder only in other

countries. Of the 1,311 U.S. species (an increase of 49 species since December 31, 2002), 1,070

are covered in recovery plans (an increase of 70 species since December 31, 2002).3 Of the U.S.

species, 475 have designated critical habitat (CH) in some portion of their range. 4

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, as well as salmon and spotted owls); and Texas’s Edwards Aquifer (allocation of water

among various users with differing short- and long-term interests, as well as several springdependent species).

Major Provisions of Domestic Law

Listing

Species may be listed on the initiative of the appropriate Secretary or by petition from an

individual, group, or state agency. The Secretary must decide whether to list the species based

only on the best available scientific and commercial information, after an extensive series of

procedural steps to ensure public participation and the collection of scientific information. 5 In

deciding whether a species needs the protections of the ESA, the Secretary may not take into

account the economic effects that listing may have; economic and other considerations are taken

into account in structuring alternatives for assisting the species after listing.6

In addition, FWS and NMFS may identify selected species by adding them to a list of “candidate

species” believed at sufficient risk to warrant protection, but such protection is precluded by work

to protect listed species. As of September 13, 2006, there were 279 species on the list of candidate

species. 7

Critical Habitat

With certain exceptions, if a species is listed, the Secretary must designate critical habitat (CH) in

areas where the species is currently found or which might provide additional habitat for the

Daily updated statistics are available at http://ecos.fws.gov/tess_public/Boxscore.do.

A list of species with designated CH is available at http://ecos.fws.gov/tess_public/

CriticalHabitat.do?listings=0&nmfs=1.

For a more detailed discussion of the listing process, see http://www.fws.gov/endangered/listing/listing.pdf and

http://www.fws.gov/endangered/esb/99/11-12/6-9.pdf.

For an analysis of when and how the ESA allows consideration of economic factors, see CRS Report RL30792, The

Endangered Species Act: Consideration of Economic Factors, by (name redacted).

The list of candidate species is available at http://ecos.fws.gov/tess_public/SpeciesReport.do?listingType=C.

Congressional Research Service

The Endangered Species Act (ESA) in the 109th Congress

species’ recovery.8 However, if the publication of this information is not prudent (e.g., might

encourage vandals or collectors), the Secretary may decide not to designate CH. The Secretary

may postpone designation for up to one year after listing, if the information is not determinable

(16 U.S.C. §1533). As of June 16, 2006, FWS had designated CH for 36% of listed domestic

species.

As a practical matter, CH has not been designated for most listed species largely because FWS

prefers to allocate its limited resources to listing new species, based on its regulation (50 C.F.R.

§402.02) that takes away much of the legal value of designating CH to the recovery of the

species. Yet FWS consistently loses legal challenges for failure to designate CH, and several

courts have found the regulation in question to be an erroneous interpretation of the law, because

it does not take into account the duty to avoid adverse modification of CH.9 Others have asserted

the value of CH; for example, scientists with the Center for Biological Diversity published a

study in April 2005, concluding that CH designation enhances species recovery. 10 On April 28,

2006, the Keystone Center’s ESA Working Group on Habitat released a report on habitat

protection and the ESA.11 One of the conclusions of participants in this study was that

identification of the habitat that species require to recover is better done in the context of recovery

planning, after more rigorous analysis and deliberation have been completed, rather than at the

time of listing.

CH is frequently misunderstood by the public as posing a significant direct restriction on private

landowners’ authority to manage land. While a landowner may experience some additional

procedures and possible restrictions on land management because of the presence of an ESAlisted species (through the ESA’s prohibitions on taking a listed species), and the presence of CH

may shed light on whether “harm” has occurred, the duty to avoid adverse modification of CH is

an express obligation only for federal agencies and actions, or private (nonfederal) actors in

actions with a federal nexus (i.e., actions that involve any federal funding, permit, or license).

(See also “Issues in the 109th Congress,” below.)

Prohibitions and Penalties

The ESA contains prohibitions on the “take” of endangered species; take means to “harass, harm,

pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such

conduct” (16 U.S.C. §1532; harassment and harm are further defined in regulation at 50 C.F.R.

§17.3). There has been controversy over the extent to which habitat modification is prohibited. A

1995 Supreme Court decision held that the inclusion of significant habitat modification was a

reasonable interpretation of the term “harm” in the ESA. 12 The ESA provides civil and criminal

penalties for violations.

For additional background on CH, see CRS Report RS20263, Designation of Critical Habitat under the Endangered

Species Act (ESA), by (name redacted).

Sierra Club v. United States Fish and Wildlife Service, 245 F. 3d 434 (5th Cir. 2001), cited with approval in New

Mexico Cattle Growers Ass’n v. FWS, 248 F. 3d 1277 (10th Cir. 2001); Gifford Pinchot Task Force v. USFWS, 2004

U.S. App. LEXIS 16215 (9th Cir. August 6, 2004).

See http://www.biologicaldiversity.org/swcbd/programs/policy/ch/bioscience2005.pdf.

Available at http://www.keystone.org/spp/documents/ESA%20Report%20FINAL%204 %2025%2006%20(2).pdf.

See CRS Report 95-778, Habitat Modification and the Endangered Species Act: The Sweet Home Decision, by

(name redacted).

Congressional Research Service

The Endangered Species Act (ESA) in the 109th Congress

Permits and Consultation

Proposed actions that may have adverse impacts on listed species may be permitted in two ways.

First, under §7 of the ESA, if federal agency actions (or actions of a nonfederal party that require

an agency’s approval, permit, or funding) may affect a listed species, the federal agency must

ensure that those actions are “not likely to jeopardize the continued existence” of any endangered

or threatened species, nor to destroy or adversely modify CH. To review the possible effects of

their actions on listed species and CH, federal agencies must consult with the appropriate

Secretary. If the Secretary finds that an action would jeopardize a listed species or destroy or

adversely modify CH, the Secretary must suggest reasonable and prudent alternatives that would

avoid these harms. Pending completion of the consultation process, agencies may not make

irretrievable commitments of resources that would foreclose any alternatives. The Secretary

issues a written statement, called a biological opinion, that may allow the agency or the applicant

to take individuals of a species incidental to otherwise lawful activities without triggering the

ESA’s penalties, subject to terms and conditions specified in the opinion (16 U.S.C. §1536), or

may conclude that jeopardy cannot be avoided, in which case the agency may seek an exemption

for the action from the Endangered Species Committee.

For actions without a federal nexus (i.e., no federal funding, permit, or license), the appropriate

Secretary may issue permits under §10 of the ESA to allow the incidental take of species during

otherwise lawful actions.13 An applicant for a permit must submit a habitat conservation plan

(HCP) that shows the likely impact of the planned action; steps to be taken to minimize and

mitigate the impact; funding for the mitigation; alternatives that were considered and rejected;

and any other measures that the Secretary may require. The use of this section has been vastly

expanded, and streamlined procedures are provided for activities with minimal impacts (50 C.F.R.

§17.22).

Exemptions

Proponents of a federal action may apply for an exemption from the prohibition against jeopardy

for that action (not for a species). Under the ESA, a high-level Endangered Species Committee

(commonly called the “God Squad”) decides whether to allow a project to proceed despite likely

harm to a species. To date, this process has been little used and only one exemption (Grayrocks

Dam, WY) has been granted and carried out. The committee is required to accept the President’s

determination (under specified circumstances) on an exemption in declared disaster areas. The

ESA committee must grant an exemption if the Secretary of Defense determines that an

exemption is necessary for national security (16 U.S.C. §1536). DOD has claimed that

requirements under the ESA conflict with its readiness activities, but DOD has not requested any

exemptions to date. (See also “Issues in the 109th Congress,” below.) Other statutes may provide

for waivers of ESA provisions; for example, §102(c) of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 provides for a waiver of the ESA (and NEPA) to the extent

the Attorney General determines is necessary to ensure expeditious construction of barriers and

roads at borders.

In the 109th Congress, §2(b) of H.R. 3693 would have waived ESA provisions to the extent the

Secretary of Homeland Security deemed necessary to prevent illegal border crossings. In

addition, Section 2(b)(2)(A) of H.R. 5235 asserted that P.L. 108-148, the Healthy Forests

For additional background on FWS’s permitting program, see http://www.fws.gov/endangered/permits/permits.pdf.

Congressional Research Service

The Endangered Species Act (ESA) in the 109th Congress

Restoration Act of 2003, exempted certain actions by federal land management agencies from

ESA consultation and would require a National Academy of Sciences study of the impacts of P.L.

108-148. Section 3 of H.R. 5678 would have waived ESA review and consultation for certain

pipeline repair and replacement activities where best practices have been developed or adopted by

an interagency committee.

Emergencies

50 C.F.R. §402.05 provides for ESA procedures in case of emergencies, basically requiring only

very informal consultations during an emergency with more complete consultation after the

emergency has passed. According to FWS, any hurricane-related federal activities in

presidentially declared disaster areas would trigger the emergency consultation provisions of the

ESA. Specifically, for the 2005 Gulf of Mexico hurricanes, FWS stated that restoring “any

infrastructure damaged or lost due to the hurricane back into the original footprint does not

require ESA consultation with the Service.” In the 109th Congress, S. 2079/H.R. 4200 would have

authorized emergency procedures to comply with ESA §7 for pre-approved management

practices for federal land damaged by a catastrophe (§104(e)) and for catastrophic event research

and recovery projects (§105(c)). The House passed H.R. 4200 (amended) on May 17, 2006. The

Senate Agriculture Committee’s Subcommittee on Forestry, Conservation, and Rural

Revitalization held a hearing on H.R. 4200 on August 2, 2006.

Recovery Plans

The appropriate Secretary generally must develop a recovery plan for the survival and

conservation (defined in §3(3) of the ESA as “to bring any endangered species or threatened

species to the point at which the measures provided pursuant to this Act are no longer

necessary”—i.e., recovery) of a listed species; these plans are not binding on federal agencies or

others, but rather serve as guidelines. At first, recovery plans tended to cover popular species, like

birds or mammals, but a 1988 amendment forbade the Secretary from favoring particular

taxonomic groups (16 U.S.C. §1533).

Land Acquisition and Cooperation

The federal government may acquire land to conserve/recover listed species, and the ESA

authorizes money from the Land and Water Conservation Fund for land acquisition (16 U.S.C.

§1534). The appropriate Secretary must cooperate with the states in conserving protected species

and must enter into cooperative agreements to assist states in their endangered species programs,

if the programs meet certain specified standards. If there is a cooperative agreement, the states

may receive federal funds to implement the program, but must normally provide a minimum 25%

match. Under the 1988 amendments, the Cooperative Endangered Species Conservation Fund

was authorized to provide state grants. While regular annual deposits to this fund are set by a

formula (16 U.S.C. §1535(i)(1)), spending from the fund requires annual appropriation.

Miscellaneous

Other provisions specify exemptions for certain captive raptors and their progeny, regulate

subsistence activities by Alaskan Natives, prohibit interstate transport and sale of listed species

Congressional Research Service

The Endangered Species Act (ESA) in the 109th Congress

and parts, control trade in parts or products of endangered species owned before the ESA went

into effect, and specify rules for establishing experimental populations (16 U.S.C. §1539).

Major Provisions of International Law

For the United States, the 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. CITES parallels the 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. In contrast to the ESA, CITES classifies species

based solely on the risk that trade poses to their survival.14 The ESA makes violations of CITES

violations of U.S. law if committed within U.S. jurisdiction (16 U.S.C. §1538). The ESA also

regulates import and export of controlled products and provides some exceptions.15

On August 18, 2003, FWS published a draft policy for enhancement-of-survival permits for

foreign species listed under the ESA. 16 The permits would allow imports of endangered species

into the United States for scientific research and for the enhancement of survival of the species in

their range country (i.e., the country where the population of the species in question naturally

exists). The comment period on this draft policy has closed, but FWS has not yet published its

final policy.17

In addition, the Multinational Species Conservation Fund (MSCF) in FWS 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.18

In the 109th Congress, P.L. 109-363 reauthorized and amended the Neotropical Migratory Bird

Conservation Act (P.L. 106-247; 16 U.S.C. §§6101 et seq.) to increase the federal share of costs

for projects funded (Title III) and reauthorized the Great Ape Conservation Act of 2000 (P.L. 106411; 16 U.S.C. §§6301 et seq.) to provide grants and emergency assistance to address

conservation needs (Title VII). A number of other bills were considered in the 109th Congress:

•

Several bills would have expanded species eligible for assistance from the MSCF

by creating a Flagship Species Conservation Fund (H.R. 93), a Great Cats and

Rare Canids Conservation Fund (H.R. 1707), and a Crane Conservation Fund (S.

943/H.R. 3520).

For additional information on CITES, see http://www.cites.org/.

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).

68 Fed. Reg. 49512.

For additional information, see CRS Report RS22420, Enhancement-of-Survival Permits: Background and Status of

Proposed Policy, by (name redacted).

For more information on the MSCF, see CRS Report RS21157, Multinational Species Conservation Fund, by

(name redacted) and (name redacted).

Congressional Research Service

The Endangered Species Act (ESA) in the 109th Congress

•

S. 270 would have established a framework for legislative and executive

consideration of unilateral economic sanctions against foreign nations, such as

could be imposed in relationship to CITES.

•

H.R. 3469 would have provided measures to improve the conservation of coral

reef species and further the obligations of the United States under CITES.

Is Species Protection and Restoration Working?

The answer to this question depends on what is measured. Since a major goal of the ESA is the

recovery of species to the point at which ESA protection is no longer necessary, this seems a good

starting point. Since the ESA was enacted in 1973, 40 U.S. and foreign species have been

delisted. The reasons cited by FWS are (a) recovery (17); (b) extinction (9, but some may have

been extinct when listed); (c) new understanding of the taxonomy of the species, making some

ineligible for listing under current law (7); and (d) new information, including a determination

that erroneous data were provided to FWS at the time of listing (7). Recovered species include

alligators, peregrine falcons (two subspecies), and three species of kangaroos. 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, a rare shorebird thought by many to be extinct

was rediscovered in a remote area of Canada a few years ago; it might just as easily have quietly

gone extinct without being rediscovered. Rare species are, by definition, hard to find.

Some have asserted that the ESA is a failure since only 17 species have been delisted as

recovered, as of January 25, 2006. Others note that full recoveries are relatively few because the

two principal causes of extinction—habitat loss and invasive non-native species—are increasing.

In addition, some scientific studies have demonstrated that most species are listed only after they

become very depleted (e.g., median population of 407 animals for endangered vertebrates,

according to one study), thereby making recovery difficult. 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. If this standard is used, the ESA could be considered a success, since a

large number (41%, according to one study) of listed species 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.19

On May 17, 2005, the House Committee on Resources released an oversight report entitled

Implementation of the Endangered Species Act of 1973.20 It reviewed and critiqued various ways

that recovery might be measured. One approach is to look at what proportion of the recovery

objectives identified in species recovery plans have been achieved. Table 1 indicates how

recovery has progressed related to the length of time since species were listed.

On September 8, 2006, GAO released report GAO-06-730, entitled Endangered Species: Many

Factors Affect the Length of Time to Recover Select Species. This report examined federal efforts

to recover a nonprobability sample of 31 species. GAO determined that, while many factors

See out-of-print CRS Report 98-32, Endangered Species List Revisions: A Summary of Delisting and Downlisting, by

(name redacted), available from /redacted/@crs.loc.gov.

Available at http://www.waterchat.com/Features/Archive/ESA_Implementation_Report5.17.05.pdf.

Congressional Research Service

The Endangered Species Act (ESA) in the 109th Congress

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 by the selection of

species examined.21

Table 1. Percent Recovery Achieved versus Time Listed

(data as of September 30, 2002)

Recovery Plan

objectives

% species listed

5 years or less

% species listed

6-10 years

% species listed

11 years or more

0%-25% recovery achieved

26%-50% recovery

achieved

5.5

51%-75% recovery

achieved

0.25

76%-100% recovery

achieved

0.25

Source: FWS, Recovery Report to Congress: Fiscal Years 2001-2002, p. 13.

Issues in the 109th 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. The issues considered in the 109th Congress included effects of the

ESA on private and federal land use, how to better promote species recovery, agency use of

scientific information, specific regional resource conflicts, and other matters. Below are

descriptions of some of the issues that were most commonly raised.22

Critical Habitat Designation

With limited exceptions, FWS or NMFS must designate CH at the time a species is listed.

However, some critics argue that CH designation places undue burdens on landowners or that it

has little conservation benefit. Others argue (and the courts have largely agreed) that FWS and

NMFS have misinterpreted and failed to enforce the current statute. There are also disagreements

over the value and timing of CH designation. (See “Critical Habitat,” above, and “ESA Listing

Caps, New and Old,” below.)

In the 109th Congress, §5 of H.R. 3824 would have repealed the designation of CH and labeled

current areas of CH as areas of special value for recovery planning purposes. The House

Committee on Resources reported this bill (amended) on September 27, 2005 (H.Rept. 109-237),

and the House passed it (amended) on September 29, 2005. H.R. 1299 would have modified the

In their report, GAO acknowledges that results from nonprobability samples cannot be used to make inferences

about a population (i.e., all ESA-listed species). However, 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.

For additional background, see CRS Report RL33309, Reauthorization of the Endangered Species Act (ESA): A

Comparison of Pending Bills and a Proposed Amendment with Current Law, by (name redacted) et al.

Congressional Research Service

The Endangered Species Act (ESA) in the 109th Congress

CH definition as well as the process for determining and designating CH. H.R. 1837 would have

limited CH designation for some aquatic habitats. S. 2110 would have designated any habitat of

an endangered species or a threatened species that is considered to be CH in accordance with the

priority system.

“Sound Science” and the ESA

The ESA requires that determinations of species status be made “solely on the basis of the best

scientific and commercial data available ...”23 In several recent situations, legal, economic, and

social disputes have resulted from actions under the ESA. Examples of these controversies

include the Canada lynx, Florida panthers, and Klamath River Basin suckers and coho salmon.

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 or because it is

difficult to locate enough of them to support scientific research. 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. What

should be done in such instances? 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 costs and time required to acquire

more complete data, particularly in connection with many lesser-known species.

The ESA does not elaborate on this question, but some assert that, given the protective purpose of

the ESA—to save and recover species—and the wording of “best ... data available,” arguably

dwindling species are to be given the benefit of the doubt and a margin of safety provided. This is

the position taken on page 1-7 of the Endangered Species Consultation Handbook, which states

that efforts should be made to develop information, but if a biological opinion must be rendered

promptly, it should be based on the available information, “giving the benefit of the doubt to the

species,” with consultation possibly being reinitiated if additional information becomes

available. 24 This phrase is drawn from H.Rept. 96-697, p. 12 (1979), which states that the “best

information available” language was intended to allow FWS to issue biological opinions even

when information was incomplete, rather than being forced to issue negative opinions. The report

also states that if a biological opinion is rendered on the basis of inadequate information, the

federal agency proposing an action has the duty to show its actions will not jeopardize a species

and a continuing obligation to make a reasonable effort to develop information, and that the

statutory language “continues to give the benefit of the doubt to the species.”

Information Quality

Section 515 of P.L. 106-554, known as the Information Quality Act or the Data Quality Act,

directs the Office of Management and Budget (OMB) to issue government-wide guidelines to

federal agencies to ensure and maximize the quality, objectivity, utility, and integrity of

information disseminated by federal agencies. OMB published final guidelines on February 22,

See CRS Report RL32992, The Endangered Species Act and “Sound Science”, by (name redacted), (name redacted),

and (name redacted).

Available at http://www.nmfs.noaa.gov/pr/pdfs/laws/esa_section7_handbook.pdf.

Congressional Research Service

The Endangered Species Act (ESA) in the 109th Congress

2002.25 The Department of the Interior and FWS have both issued additional guidelines that are

available through their websites, 26 and a process is established for interested persons to seek

correction of information. Even before these latest guidelines, FWS had promulgated guidance on

information quality and peer review procedures—issues that also have been addressed in recent

legislation.

FWS and NMFS developed an Interagency Cooperative Policy on Information Standards Under

the Endangered Species Act.27 Under this policy, FWS and NMFS are to receive and use

information from a wide variety of sources, including from individuals. Submitted information

may range from the informal—oral, traditional, or anecdotal—to peer-reviewed scientific studies,

and hence the reliability of the information can vary widely. Agency biologists are to review and

evaluate all information impartially for purposes of listing, CH designation, consultation,

recovery, and permitting actions, and to ensure that any information used by the agencies to

implement the ESA is “reliable, credible, and represents the best scientific and commercial data

available.” Agency biologists are to document their evaluations of all information and, to the

extent consistent with the use of the best scientific and commercial data available, use primary

and original sources of information as the basis for recommendations. In addition, agency

managers are to review the work of FWS and NMFS biologists to “verify and assure the quality

of the science used to establish official positions, decisions, and actions...”

Additionally, a companion document, the Interagency Cooperative Policy for Peer Review in

Endangered Species Act Activities, 28 notes that, in addition to the public comments received on

proposed listing rules and draft recovery plans, the Services are also to formally solicit expert

opinions and peer review to ensure the best biological and commercial information. For listing

decisions, the agencies are to solicit the expert opinions of three specialists and summarize these

in the record of final decision. Special independent peer review can also be used when it is likely

to reduce or resolve an unacceptable level of scientific uncertainty.

Court Cases on the ESA and Science29

Courts that have considered the “best data available” language have held that an agency is not

obliged to conduct studies to obtain missing data,30 but cannot ignore available biological

information, 31 especially if the ignored information is the most current.32 Nor may an agency treat

one species differently from other similarly situated species, 33 nor decline to list a dwindling

species and wait until it is on the brink of extinction in reliance on possible but uncertain future

actions of an agency. 34 “Best scientific and commercial data available” is not a standard of

67 Fed. Reg. 8452.

For example, see http://www.fws.gov/stand/standards/process_WWW.html.

59 Fed. Reg. 34271, July 1, 1994.

59 Fed. Reg. 34270, July 1, 1994.

For more information, see CRS Report RL32992, The Endangered Species Act and “Sound Science”, by (name reda

cted), (name redacted), and (name redacted).

Southwest Center for Biological Diversity v. Babbitt, 215 F. 3d 58 (D.C. Cir. 2000).

Connor v. Burford, 848 F. 2d 1441 (9th Cir. 1988).

Southwest Center for Biological Diversity v. Babbitt, 926 F. Supp. 920 (D.C. Ariz. 1996).

Id.

Biodiversity Legal Foundation v. Babbitt, 943 F. Supp. 23 (D. D.C. 1996).

Congressional Research Service

The Endangered Species Act (ESA) in the 109th Congress

absolute certainty, reflecting Congress’s intent that FWS take conservation measures before a

species is conclusively headed for extinction. 35 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.”36

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.37 In Arizona Cattle

Growers Association v. United States Fish and Wildlife Service,38 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 §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. 39

Regional Resource Conflicts

One express purpose of the 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)). As

open space dwindles and increasing human populations put pressures on our wildlands and

natural resources, the conservation of 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 some of the situations that

have been the subject of recent congressional oversight and legislative interest. In the 109th

Congress and reflecting several of these regional conflicts, the House Resources Subcommittee

on Water and Power held an oversight hearing on June 22, 2005, focusing on the effect of the

ESA on water supplies.

Klamath River Basin

Controversy erupted in 2001 when the Department of the Interior’s Bureau of Reclamation

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 issues involving several tribes, fishermen, farmers,

environmentalists, and recreationists. Upstream farmers point to their contractual rights to water

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.

See Connor v. Andrus (453 F. Supp. 1037 (W.D. TX. 1978)) striking down regulations totally banning duck hunting

in an area to protect one listed species of duck.

273 F. 3d 1229, 9th Cir. 2001.

Pacific Coast Federation of Fishermen’s Associations, Inc. v. NMFS, 265 F.3d 1028, 1034 (9th Cir. 2001).

Congressional Research Service

The Endangered Species Act (ESA) in the 109th Congress

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. Various 10-year and annual operation plans, and associated biological assessments

(by the Bureau) and biological opinions (by FWS and NMFS) have been criticized and

defended.40

Pacific Salmon Restoration

Salmon protection in the Pacific Northwest in general presents many difficult choices, especially

because of recent droughts and the connection between regional hydropower facilities and fishery

management decisions. NMFS officials have listed a total of 26 distinct population segments

(called evolutionarily significant units or ESUs) of Pacific salmon and steelhead trout as either

threatened or endangered, and are working with state, local, and tribal officials, as well as the

public, to implement recovery measures addressing habitat restoration and other concerns. Recent

controversies and litigation have focused on three issues: (1) biological opinions on operation of

the Federal Columbia River Power System (FCRPS) as it relates to retaining (or removing) four

dams on the lower Snake River, and how properly to factor the presence of the dams into

evaluations of jeopardy; (2) whether or not salmon produced in hatcheries should be included in

listed ESUs of Pacific salmon; and (3) the role and extent of CH designation in the recovery of

Pacific salmon. Interim decisions of the federal district court for Oregon have invalidated

NMFS’s approach to evaluating jeopardy to salmon from dam operations on the Columbia and

Snake Rivers, and ordered increased spills of water to assist transit of juvenile salmon to the sea.

In the 109th Congress, S. 232 would have authorized the Bureau of Reclamation to assist in

implementing fish passage and screening facilities at nonfederal water projects in the Columbia

River Basin to meet the Bureau’s ESA obligations. On March 10, 2005, the Senate Committee on

Energy and Natural Resources reported S. 232 (S.Rept. 109-31); the Senate passed it on July 26,

2005. H.R. 1615 would have required a National Academy of Sciences analysis of federal salmon

recovery efforts and a Government Accountability Office study of the effects of partially

removing four lower Snake River dams, and would have authorized partial removal of these four

dams under certain conditions. Section 103 of S. 2432/H.R. 5006 would have designated salmon

restoration areas in California. H.R. 6377 and S. 4084 would have authorized implementing the

San Joaquin River Restoration Settlement providing for the reintroduction of spring-run chinook

salmon below Friant Dam.

Rio Grande Silvery Minnow

Efforts to hold back water necessary for the Rio Grande silvery minnow from competing New

Mexico water users (primarily the city of Albuquerque and irrigators) ignited considerable

controversy. At issue is the operation of two Bureau of Reclamation water projects on the Middle

For more information, see CRS Report RL31098, Klamath River Basin Issues: An Overview of Water Use Conflicts,

by (name redacted), (name redacted), and (name redacted).

Congressional Research Service

The Endangered Species Act (ESA) in the 109th Congress

Rio Grande: the San Juan-Chama Project and the Middle Rio Grande Project. The New Mexico

District Court held that withholding water from irrigators for ESA-related purposes was

permissible under the water contracts at issue.41 Congress halted implementation and an

agreement regarding the minnow has been negotiated.

In the 109th Congress, §121 (Title I, Corps of Engineers) of P.L. 109-103 authorized certain

activities related to the Middle Rio Grande Endangered Species Collaborative Program

(MRGESCP). S. 1540 would have directed the Secretary of the Army and the Secretary of the

Interior to establish the MRGESCP to improve water management and contribute to the recovery

of endangered species in the Middle Rio Grande, NM. S. 2254 would have directed the Corps of

Engineers to carry out restoration projects along the Middle Rio Grande in consultation with the

MRGESCP.

Counterpart Regulations: Pesticides and Fire Management Projects

In 50 C.F.R. §402.04, “counterpart” regulations are authorized that allow an action agency to

determine unilaterally whether its actions are likely to adversely affect listed species, thereby

avoiding §7 consultation with FWS or NMFS.42 Although the regulation has been on the books

for years, it has not been used until recently, and hence its validity has not yet been tested in the

courts. Several new counterpart regulations have recently been finalized and suits challenging the

regulations have been filed.

New counterpart pesticide regulations were finalized on August 5, 2004,43 for Environmental

Protection Agency (EPA) regulatory actions on pesticides, such that when the EPA is taking

action under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA; P.L. 80-104; 7

U.S.C. §§136, et seq.), the EPA and FWS may execute an alternative consultation agreement

under which the EPA will decide whether a proposed FIFRA action is likely to adversely affect a

listed species or critical habitat. The EPA may make this determination without informal

consultation with, and written concurrence from, the FWS Director. If the EPA makes such a

determination, no further consultation is required. There is to be FWS oversight of the

consistency of EPA’s determinations with the ESA. Under 50 C.F.R. §402.43, the EPA may ask

FWS for information on listed species that may be present in an area that might be affected by the

FIFRA action, including the applicable environmental baseline for each species or habitat, and

under new §402.44, the EPA may request FWS personnel to assist in an effects determination and

must use its “best efforts” to include the FWS representative in relevant discussions. These two

regulations appear to apply with or without an alternative consultation agreement. Critics note

that the EPA has a poor record on consultations, 44 and fear that the new self-consultation process

will allow more harm to listed species. Supporters counter that the new process will increase EPA

flexibility and efficiency.

On August 24, 2006, U.S. District Court Judge John Coughenour overturned EPA counterpart

regulations relating to pesticides, ruling that these regulations did not conform to the plain

Affirmed by the 10th Cir., 333 F.3d 1109 (10th Cir 2004).

Counterpart regulations are not authorized by the ESA, and there is some question whether they comport with the

law or go too far. One could argue that consultation is supposed to be with FWS; the argument on the other side is that

counterpart regulations might constitute a “de minimis” procedure for minor actions.

69 Fed. Reg. 47732; 50 C.F.R. Part 402, Subpart D.

See Washington Toxics Coalition v. EPA, Civ. No CO1-132C (W.D. Wa. 2002).

Congressional Research Service

The Endangered Species Act (ESA) in the 109th Congress

language or intent of the ESA §7 by excusing federal action agencies from engaging in

consultation with FWS or NMFS.45 In addition, he held that it was illegal for FWS or NMFS to

allow EPA to use emergency consultation procedures for FIFRA §18 actions. Judge Coughenour

let stand the process of “optional formal consultation” in which NMFS or FWS can adopt EPA

effects determinations as their own.

Counterpart regulations also were finalized December 8, 2003,46 among the Forest Service, the

Bureau of Land Management, the Bureau of Indian Affairs, the National Park Service, FWS, and

NMFS, to streamline consultation on projects supporting the National Fire Plan (NFP). The

alternative consultation process contained in these counterpart regulations eliminates the need to

conduct informal consultation with FWS or NMFS, and eliminates the requirement to obtain

written concurrence from FWS or NMFS for those NFP actions that the action agency determines

are “not likely to adversely affect” any listed species or designated CH.

Private Property and Fifth Amendment Takings

The presence of endangered species on private property is sometimes welcomed by owners.

Builders, for example, have been known to market a new residential development in part on the

basis of the wildlife present on undeveloped parts of the tract. Still, the prohibitions in §9 (private

actions) and §7 (federal nexus) may at times frustrate the economic desires of owners of land or

other property. This has long been a rallying cry for the ESA’s detractors, who assert that

restrictions under the ESA routinely “take” property in the constitutional sense of the term.

Conflicts between the 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 a total elimination of its economic use. When the

government restriction removes only part, but not all, of the property’s use or value, a three-factor

balancing test is used.47 Although these factors have been little explicated by the courts, it is clear

that for a taking to occur, the property impact must be severe. Moreover, except for physical

takings, the property impact is assessed with regard to the property as a whole, not just the

regulated portion.

More than a dozen court decisions have addressed takings challenges to ESA restrictions on land

or other property, with all but one finding no taking. These cases have involved restrictions on

timber cutting, reductions in water delivery to preserve instream flows needed by listed species,

restrictions on shooting marauding animals resulting in loss of livestock, and prohibitions on the

Washington Toxics Coalition v. U.S. Department of the Interior, 04-1998 (W.D. Wa. 2006); see

http://www.eswr.com/latest/selfconsultationorder.pdf.

68 Fed. Reg. 68254; 50 C.F.R. Part 402, Subpart C.

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. These are vague guideposts only; the Court stresses that

every case is to be decided ad hoc. Indeed, many question whether it’s even appropriate to call the three factors a test.

Congressional Research Service

The Endangered Species Act (ESA) in the 109th Congress

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 taking 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 longstanding principle that the government is not responsible for the

actions of wild animals. In the one decision favoring the property owner, ESA-related cutbacks in

water delivered by a state reclamation project to water districts were held a taking by the United

States of state-contract-created water rights.48 This decision has been controversial for several

reasons, including the Department of Justice’s settlement of the case (for $16.7 million) despite

arguments pressed on it from several quarters that the case was incorrectly decided. 49

ESA critics want the ESA amended 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. Similar provisions have

been included in bills of previous Congresses. In the 109th Congress, §14 of H.R. 3824 would

have required federal compensation for property owners who forgo use of property following

determinations that continued use would not comply with prohibitions on taking ESA-listed

species. The House Committee on Resources reported this bill (amended) on September 27, 2005

(H.Rept. 109-237), and the House passed it (amended) on September 29, 2005. Opponents of an

explicit compensation standard counter that the ESA should not be singled out for a more

property owner-friendly standard than other statutes’ or the Constitution’s. More fundamentally,

they note that property rights have never been absolute, and that regulation has long been

noncompensable as long as the impact on the property owner is not severe. The likely

consequences of a generous compensation threshold—added federal costs and/or a chill on ESA

implementation—are among the issues slowing action on ESA reauthorization. However, both

proponents and opponents of the ESA favor enacting incentives (primarily tax benefits) to

encourage landowner cooperation.

Also in the 109th Congress, §3 of H.R. 411 would have awarded compensation for ESA activities

that eliminate or reduce grazing privileges. H.R. 3166 would have authorized the waiver of

grazing permits in designated CH and provide compensation for waived permits. S. 2110 would

have provided a variety of tax benefits. S. 4087 would have provided a tax credit to individuals

who entered into agreements to protect endangered and threatened species habitat.

Making the ESA More User-Friendly

Former Interior Secretary Babbitt initiated actions to decrease ESA conflicts in several ways.

Joint FWS and NMFS policies streamlined permit procedures for small landowners, and other

initiatives encouraged landowners to increase protection for populations of listed species on their

land. Under safe harbor agreements, landowners who increased suitable habitat could return to

“baseline conditions” without penalty. No surprises agreements provided landowners with greater

certainty regarding activities that might otherwise trigger penalties—an incentive for landowners

to develop Habitat Conservation Plans (HCP), since a landowner properly implementing such an

agreement is assured that there will be no further costs or restrictions on the use of the property to

benefit the species covered by the HCP, except by mutual consent or in unforeseen circumstances

Tulare Lake Basin Water Storage Dist. v. United States, 49 Fed. Cl. 313 (2001).

See CRS Report RL31796, The Endangered Species Act (ESA) and Claims of Property Rights “Takings”, by (name r

edacted); and CRS Congressional Distribution Memorandum,

The ‘Tulare Lake’ Decision’s Implications for Use of

Bureau of Reclamation Project Water, by (name redacted) and (name redacted), available from /redacted/@crs.loc.gov.

Congressional Research Service

The Endangered Species Act (ESA) in the 109th Congress

in which changes may be implemented by the government without costs borne by the landowner.

Modifications to the no surprises rule required revoking an incidental take permit if the permitted

taking would be inconsistent with the survival and recovery of the relevant listed species, and the

inconsistency was not remedied in a timely fashion. These rules were reproposed50 and finalized51

in response to litigation, but may still present issues raised previously. Federal managers also

focused on listing species as threatened rather than endangered, to allow FWS to take advantage

of the ESA’s more flexible provisions for protecting threatened species. While administrative

changes have been made within the framework of existing law, there is great interest among some

groups in codifying many of these changes in an amended ESA. Others are critical of HCP

agreements as difficult to enforce, virtually lacking monitoring, and locking the government into

inflexible long-term positions that sometimes are based on inadequate knowledge.

In the 109th Congress, §365 of P.L. 109-58, the Energy Policy Act of 2005, established a pilot

project in WY, MT, CO, UT, and NM to better coordinate certain actions among federal

agencies,52 including consultations and the preparation of biological opinions under ESA §7. In

addition, P.L. 109-294 (S. 260) expanded the authority of the Secretary of the Interior to assist

private landowners in restoring, enhancing, and managing endangered and threatened species

habitat on private land through the Partners for Fish and Wildlife Program. A number of

additional bills were introduced in the 109th Congress:

•

H.R. 3300 would have authorized species recovery agreements obligating the

federal government to make annual payments or provide other compensation for

activities that improve the recovery of listed species;

•

S. 1497 would have required the Secretary of the Interior to provide incidental

take permits to public electric utilities that adopt measures to mitigate hazards to

eagles and other migratory birds;

•

S. 2110 would have codified the no surprises policy; and

•

Section 106(b) of H.R. 6064 and §205(c) of H.R. 6193 would have authorized

the Secretary of Agriculture to provide incentive payments to landowners through

the Wildlife Habitat Incentive Program to protect or restore the habitat of

federally or state-listed endangered, threatened, and candidate species.

Additional Legislative Initiatives

In the 109th Congress, bills were introduced in both the House and Senate to reauthorize and

amend the ESA. The House Committee on Resources reported H.R. 3824 (the Threatened and

Endangered Species Recovery Act of 2005, amended) on September 27, 2005 (H.Rept. 109-237);

the House passed H.R. 3824 (amended) on September 29, 2005. S. 2110, the Collaboration for the

Recovery of Endangered Species Act, was introduced on December 15, 2005.

69 Fed. Reg. 29681, May 25, 2004.

69 Fed. Reg. 71723, December 10, 2004, 50 C.F.R. Part 17.

Also included in this pilot program were (1) permits under §404 of Federal Water Pollution Control Act (33 U.S.C.

1344); (2) regulatory matters under the Clean Air Act (42 U.S.C. 7401 et seq.); (3) planning under the National Forest

Management Act of 1976 (16 U.S.C. 472a et seq.); and (4) the preparation of analyses under the National

Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

Congressional Research Service

The Endangered Species Act (ESA) in the 109th Congress

Proponents of both bills said that they were designed to make the ESA more effective by

redefining the relationship between private and public property uses and species protection,

implementing new incentives for species conservation, and removing what some see as undue

land use restrictions. Thus, both proposals contained provisions meant to encourage greater

voluntary conservation of species by states and private landowners, a concept that has been

supported by many observers. Further, both proposals would have modified or eliminated certain

procedural or other elements of the current ESA that some have viewed as significant protections

and prohibitions, including:

•

eliminating or changing the role of “critical habitat” (CH) (which would

eliminate one aspect of the current consultation process);

•

making the listing of all threatened and endangered species more difficult or less

likely;

•

expanding §10 permits allowing incidental take (which could incur a greater need

for agency oversight and enforcement); and

•

expanding state rather than federal implementation of ESA programs (which

might make oversight more difficult).

Proponents of these changes argued that tighter listing standards would enable a better focus on

species with the most dire needs, and that other measures would achieve recovery of more

species. Critics argued that proposed changes would create gaps in the ESA safety net of

protections and prohibitions. 53

P.L. 109-183 (S. 1578) reauthorized Upper Colorado and San Juan River Basin endangered fish

recovery programs. P.L. 109-225 (S. 1165) expanded Hawaii’s James Campbell National Wildlife

Refuge to protect habitat for endangered waterbirds. P.L. 109-449 established NOAA and Coast

Guard programs to manage marine debris and address its adverse effects on endangered species.

Additional measures were considered by the 109th Congress:

•

Section 212 of S. 2012 and §209 of H.R. 5051 would have required a study of

sea turtle excluder devices in shrimp trawls; S. 2012 was reported by the Senate

Committee on Commerce, Science, and Transportation on April 4, 2006 (S.Rept.

109-229), and was passed by the Senate (amended) on June 19, 2006. On

December 7, 2006, the Senate passed H.R. 5946, after amending this measure to

substitute language from amended S. 2012. The House passed the amended H.R.

5946 on December 9, 2006, with the turtle excluder language in §212.

•

S. 2013 and §17 of H.R. 4075, as passed by the House on July 17, 2006, would

have implemented the Agreement on the Conservation and Management of the

Alaska-Chukotka Polar Bear Population. The Senate Committee on Commerce,

Science, and Transportation reported S. 2013 on February 27, 2006 (S.Rept. 109217); the Senate passed this measure (amended) on June 6, 2006. On December

6, 2006, the Senate amended H.R. 4075 to insert the language of S. 2013 and

passed the amended H.R. 4075. On December 7, 2006, the Senate amended H.R.

5946 to insert the language of S. 2013 as Title IX, and passed the amended H.R.

5946. On December 9, 2006, the House agreed to the amended H.R. 5946.

For additional information, see CRS Report RL33309, Reauthorization of the Endangered Species Act (ESA): A

Comparison of Pending Bills and a Proposed Amendment with Current Law, by (name redacted) et al.

Congressional Research Service

The Endangered Species Act (ESA) in the 109th Congress

•

Section 1505 of S. 732, as reported on April 6, 2005 (S.Rept. 109-53), by the

Senate Committee on Environment and Public Works, would have authorized

state programs for mitigating highway and surface transportation impacts,

including those affecting endangered and threatened species.

•

H.R. 4857 would have required that certain electricity consumers be informed of

ESA compliance costs; the House Committee on Resources held a hearing on this

bill on March 16, 2006, and reported the bill on September 28, 2006 (H.Rept.

109-693).

•

H.R. 3110 would have amended the ESA to treat distinct population segments of

the Eastern oyster as separate species. On July 19, 2005, the House Committee

on Resources held an oversight hearing on ESA listing of this species.

•

S. 164 would have facilitated acquisition of UT lands to protect desert tortoise.

•

H.R. 2323 would have promoted southern sea otter recovery and research.

•

H.Res. 249 celebrated the rediscovery of the ivory-billed woodpecker in

Arkansas.

•

H.R. 2779 would have amended the ESA to enable federal agencies to rescue and

relocate threatened or endangered species in certain circumstances where flood

control levees are reconstructed, maintained, or repaired.

•

S.Res. 219 would have designated March 8, 2006, as “Endangered Species Day.”

S.Res. 431 designated May 11, 2006, as “Endangered Species Day”; the Senate

agreed to S.Res. 431 on April 5, 2006.

•

Section 203 of H.R. 3908 would have amended the Internal Revenue Code to

exempt payments from gross revenue for landowner incentive programs that

conserve species or protect habitat.

•

S. 3611 would have authorized the Secretary of the Interior to implement the

Platte River Recovery Implementation Program for Endangered Species in the

Central and Lower Platte River Basin.

•

Section 209 of H.R. 6193 would have directed the Secretary of Agriculture to

establish a pilot program to recover California endangered or threatened plant

species.

•

H.R. 6241 would have amended the Marine Mammal Protection Act to authorize

the taking of California sea lions to protect endangered and threatened salmon

species in the Columbia River drainage.

Section 1505(c) of H.R. 3, as agreed to by the Senate on May 17, 2005, would have provided for

state mitigation funds to benefit endangered and threatened species; however, these provisions

were not retained in the conference agreement, subsequently enacted as P.L. 109-59.

Appropriations

Appropriations play an important role in the ESA debate, providing funds for listing and recovery

activities as well as financing FWS and NMFS consultations that are necessary for federal

projects. In addition, appropriations bills have served as vehicles for some changes in the ESA.

Congressional Research Service

The Endangered Species Act (ESA) in the 109th Congress

Table 2 shows recent ESA funding. The FY2006 Department of the Interior, Environment, and

Related Agencies Appropriations Act, P.L. 109-54, provided $271.9 million for FWS’s ESA

activities. Overall, FY2006 FWS funding for ESA and related programs is $6.5 million less than

the President’s request, and $11.8 million more than the FY2005 appropriations level. FY2006

funding for ESA programs administered by NMFS was provided in the Science, State, Justice,

Commerce, and Related Agencies Appropriations Act, P.L. 109-108. Provisions in P.L. 109-148

(H.R. 2863, the Department of Defense, Emergency Supplemental Appropriations to Address

Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act) rescinded unobligated balances

of $2 million from FWS’s Landowner Incentive Program and $1 million from the Cooperative

Endangered Species Conservation Fund. For FY2007, FWS appropriations are provided in H.R.

5386, which passed the House (amended) on May 18, 2006; the Senate Committee on

Appropriations reported this bill (amended) on June 29, 2006 (S.Rept. 109-275). The 109th

Congress did not complete action on FY2007 appropriations for either FWS or NMFS.

An April 2005 GAO study found that, although FWS spends almost half of its recovery funds on

highest priority species, factors other than a species’ priority ranking (e.g., regional office

workload, opportunities for partnerships to maximize scarce recovery funds), in practice,

determine how funding is allocated. GAO found that FWS does not have a process to routinely

assess funding decisions to ensure that they are appropriate. 54

ESA Listing Caps, New and Old

Beginning in FY1998, Congress enacted annual limits (caps) on funding FWS could use for its

ESA listing function. This appropriations language limits FWS discretion to transfer funds to

finance additional listings, so that if courts mandate agency action on listing certain species, other

listings may not be able to be funded. FWS supported these limits to assure that funding for other

agency programs could not be diverted to finance additional ESA listing activities. However,

courts have held that budget constraints do not excuse an agency from compliance, in some

circumstances. These limits have been approved by Congress in succeeding fiscal year

appropriations bills. P.L. 109-54, FY2006 Department of the Interior appropriations, limits listing

activities to $18.13 million, of which no more than $12.852 million could be used for activities

related to critical habitat designation. For FY2007, the Bush Administration proposed limiting

listing activities to $17.759 million, of which no more than $12.581 million could be used for

activities related to critical habitat designation; the House agreed with the Administration’s

request, while the Senate Committee on Appropriations has reported limiting listing activities to

$17.859 million, of which no more than $12.672 million could be used for critical habitat

designation.

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.

Congressional Research Service

The Endangered Species Act (ESA) in the 109th Congress

Table 2. Funding for Endangered Species and Related Programs, FY2006-FY2007

($ in thousands)

FY2006

Request

FY2006

Approp.

FY2007

Request

FY2007

Hse Passed

FY2007

Sen Rptd

Endangered Species Program

Candidate Conservation

8,252

8,619

8,063

8,163

10,045

Listing

18,130

17,630

17,759

17,859

Consultation

49,484

47,997

49,337

50,018

Recovery

64,243

73,562

65,879

70,670

74,028

Subtotal

140,109

147,808

141,038

146,610

151,950

Landowner Incentive Program

40,000

21,667

24,400

15,000

10,000

Stewardship Grants

10,000

7,277

9,400

7,000

7,277

Cooperative Endangered Species

Conservation Funda

80,000

80,001

80,507

80,001

Multinational Species

Conservation Fundb

8,300

6,404

8,217

6,057

6,800

3,941

4,000

278,409

267,098

263,056

259,174

260,028

213,687

181,000

189,000

not

available

not

available

492,096

448,098

452,056

Related programs

Neotropical Migratory Bird Fundb

Total FWS

NMFS

Total (to date)

Sources: Annual budget justifications, House and Senate committee and conference reports.

For FY2006, the conference agreement derived $62.039 million from the Land and Water Conservation

Fund (LWCF); for FY2007, the Administration requests all $80.001 million from the LWCF.

From FY2002 to FY2007, the President’s budget proposed subsuming the Neotropical Migratory Bird Fund

within the Multinational Species Conservation Fund; to date, Congress has rejected this proposal.

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-....

Congressional Research Service

EveryCRSReport.com

The Congressional Research Service (CRS) is a federal legislative branch agency, housed inside the

Library of Congress, charged with providing the United States Congress non-partisan advice on

issues that may come before Congress.

EveryCRSReport.com republishes CRS reports that are available to all Congressional staff. The

reports are not classified, and Members of Congress routinely make individual reports available to

the public.

Prior to our republication, we redacted names, phone numbers and email addresses of analysts

who produced the reports. We also added this page to the report. We have not intentionally made

any other changes to any report published on EveryCRSReport.com.

CRS reports, as a work of the United States government, are not subject to copyright protection in

the United States. Any CRS report may be reproduced and distributed in its entirety without

permission from CRS. However, as a CRS report may include copyrighted images or material from a

third party, you may need to obtain permission of the copyright holder if you wish to copy or

otherwise use copyrighted material.

Information in a CRS report should not be relied upon for purposes other than public

understanding of information that has been provided by CRS to members of Congress in

connection with CRS' institutional role.

EveryCRSReport.com is not a government website and is not affiliated with CRS. We do not claim

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.