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

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URL: https://www.frixlaw.com/law-library/documents/crs%3ARL33468

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** January 4, 2007
- **Citation:** RL33468

## 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.

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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

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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.

1

For additional background, see CRS Report RL31654, The Endangered Species Act: A Primer, by (name redacted),
(name redacted), and (name redacted).
2
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/.

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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

3

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

4

A list of species with designated CH is available at http://ecos.fws.gov/tess_public/
CriticalHabitat.do?listings=0&nmfs=1.
5
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.
6
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).
7
The list of candidate species is available at http://ecos.fws.gov/tess_public/SpeciesReport.do?listingType=C.

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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.

8

For additional background on CH, see CRS Report RS20263, Designation of Critical Habitat under the Endangered
Species Act (ESA), by (name redacted).
9
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).
10
See http://www.biologicaldiversity.org/swcbd/programs/policy/ch/bioscience2005.pdf.
11
Available at http://www.keystone.org/spp/documents/ESA%20Report%20FINAL%204 %2025%2006%20(2).pdf.
12
See CRS Report 95-778, Habitat Modification and the Endangered Species Act: The Sweet Home Decision, by
(name redacted).

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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
13

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

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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

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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:
•

14

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/.

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
68 Fed. Reg. 49512.
17

For additional information, see CRS Report RS22420, Enhancement-of-Survival Permits: Background and Status of
Proposed Policy, by (name redacted).
18
For more information on the MSCF, see CRS Report RS21157, Multinational Species Conservation Fund, by
(name redacted) and (name redacted).

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•

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
19
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.
20
Available at http://www.waterchat.com/Features/Archive/ESA_Implementation_Report5.17.05.pdf.

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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

96

94

64

26%-50% recovery
achieved

4

5.5

24

51%-75% recovery
achieved

0

0.25

9

76%-100% recovery
achieved

0

0.25

3

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
21
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.
22
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.

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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,
23
See CRS Report RL32992, The Endangered Species Act and “Sound Science”, by (name redacted), (name redacted),
and (name redacted).
24
Available at http://www.nmfs.noaa.gov/pr/pdfs/laws/esa_section7_handbook.pdf.

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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
25

67 Fed. Reg. 8452.
For example, see http://www.fws.gov/stand/standards/process_WWW.html.
27
59 Fed. Reg. 34271, July 1, 1994.
28
59 Fed. Reg. 34270, July 1, 1994.
26

29
For more information, see CRS Report RL32992, The Endangered Species Act and “Sound Science”, by (name reda
cted), (name redacted), and (name redacted).
30
Southwest Center for Biological Diversity v. Babbitt, 215 F. 3d 58 (D.C. Cir. 2000).
31
Connor v. Burford, 848 F. 2d 1441 (9th Cir. 1988).
32
Southwest Center for Biological Diversity v. Babbitt, 926 F. Supp. 920 (D.C. Ariz. 1996).
33
Id.
34
Biodiversity Legal Foundation v. Babbitt, 943 F. Supp. 23 (D. D.C. 1996).

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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
35

Defenders of Wildlife v. Babbitt, 958 F. Supp. 670, 679-680 (D. D.C. 1997).

36

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.
37
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.
38
273 F. 3d 1229, 9th Cir. 2001.
39
Pacific Coast Federation of Fishermen’s Associations, Inc. v. NMFS, 265 F.3d 1028, 1034 (9th Cir. 2001).

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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
40

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).

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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
41

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.
43
69 Fed. Reg. 47732; 50 C.F.R. Part 402, Subpart D.
44
See Washington Toxics Coalition v. EPA, Civ. No CO1-132C (W.D. Wa. 2002).
42

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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
45

Washington Toxics Coalition v. U.S. Department of the Interior, 04-1998 (W.D. Wa. 2006); see
http://www.eswr.com/latest/selfconsultationorder.pdf.
46
68 Fed. Reg. 68254; 50 C.F.R. Part 402, Subpart C.
47
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.

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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
48

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

49

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.

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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.

50

69 Fed. Reg. 29681, May 25, 2004.
69 Fed. Reg. 71723, December 10, 2004, 50 C.F.R. Part 17.
52
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.).
51

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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.

53

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.

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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.

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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.

54
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.

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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

17,759

17,859

Consultation

49,484

47,997

49,337

50,018

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

80,001

80,507

80,001

Multinational Species
Conservation Fundb

8,300

6,404

8,217

6,057

6,800

0

3,941

0

4,000

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.
a.

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.

b.

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3ARL33468. Public record. Not legal advice.