The Endangered Species Act: A Primer
Updated August 2, 2007
Resources, Science, and Industry Division Resources, Science, and Industry Division The Endangered Species Act (ESA) protects species identified as endangered or threatened with extinction and attempts to protect the habitat on which theydepend. It is administered primarily by the Fish and Wildlife Service and also by theNational Marine Fisheries Service for certain marine and anadromous species.
Dwindling species are listed as either endangered or threatened according toassessments of the risk of their extinction. Once a species is listed, legal tools areavailable to aid its recovery and to protect its habitat. The ESA can become thevisible focal point for underlying situations involving the allocation of scarce ordiminishing lands or resources, especially in instances where societal values may bechanging, such as for the forests of the Pacific Northwest, the waters in the KlamathRiver Basin, or the polar environment. This report discusses the major provisions ofthe ESA, both domestic and international, and also discusses some of the backgroundissues, such as extinction in general, and the effectiveness of the statute.
An amplified discussion is provided on four aspects of the ESA and its implementation that have raised concerns and promoted debate — listing species,designating critical habitat, consulting on projects, and exempting projects. Thisreport provides much of the context for understanding individual legislativeinitiatives discussed in CRS Report RL33779, The Endangered Species Act (ESA) inthe 110th Congress: Conflicting Values and Difficult Choices. This report will beupdated as circumstances warrant.
Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 What Is the ESA? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Why Is the ESA Controversial? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Has ESA Been Effective? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3Leading Causes of Extinction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3Is Extinction Normal? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Major Provisions of Current Law: Domestic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Endangered and Threatened Species . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5“Take” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5FWS and NMFS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Listings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Candidate Species . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Delisting and Downlisting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7Critical Habitat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7Recovery Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8Land Acquisition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8Cooperation with States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9Exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10Permits for Non-Federal Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10Other Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10Prohibitions and Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Major Provisions of Current Law: International . . . . . . . . . . . . . . . . . . . . . . . . . 11 Financial Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11Scientific Authority/CITES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12Management Authority/CITES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12Imports/Exports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12Particular Species . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Analysis of Domestic Law Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Listing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Bases for Listings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13Pre-Listing Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16Special Protection for Threatened Species . . . . . . . . . . . . . . . . . . . . . . 17 Designation of Critical Habitat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17Post-Listing Activities: Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19Exemptions: A History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 The Endangered Species Committee . . . . . . . . . . . . . . . . . . . . . . . . . . 20Eligible Applicants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21Secretarial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22Committee Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23Mitigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23Special Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23Duration and Effect of Exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Appendix: Exemption Applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Grayrocks Dam . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25Tellico Dam . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25Bureau of Land Management Timber Sales . . . . . . . . . . . . . . . . . . . . . 25Pittston Company Refinery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25Consolidated Grain and Barge Company Docking Area . . . . . . . . . . . 26Suwanee River Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 The Endangered Species Act (ESA)1 receives significant congressional attention. The associated power and reach of its comprehensive protection forspecies identified as endangered or threatened with extinction has ignited concernthat there be greater bounds on this power, and fanned the flames over assertions oflax implementation of its power. The following discussion provides an overview andbackground on the various features of the ESA that contribute to its stature and yetspark an ongoing debate over its implementation.
What Is the ESA?
The ESA is a comprehensive attempt to protect identified species and to consider habitat protection as an integral part of that effort. It is administeredprimarily by the Fish and Wildlife Service (FWS),2 but also by the National MarineFisheries Service (NMFS)3 for certain marine species. Under the ESA, species ofplants and animals (both vertebrate and invertebrate) are listed as either “endangered”or “threatened” according to assessments of the risk of their extinction. Once aspecies is listed, powerful legal tools are available to aid the recovery of the speciesand to protect its habitat. As of June 28, 2007, a total of 1,882 species of animals andplants had been listed as either endangered or threatened; 1,314 of these occur in theUnited States and its territories and the remainder only in other countries.4 Of theU.S. species, 1,078 are covered by recovery plans.5 The authorization for fundingunder ESA expired on October 1, 1992, although Congress has appropriated fundsin each succeeding fiscal year.
Why Is the ESA Controversial?
While the ESA plays an important role in protecting species, it can also become a surrogate in quarrels whose primary focus is the allocation of scarce or diminishinglands or resources. Indeed, a stated purpose of the ESA is to “provide a means 1 Act of December 28, 1973, P.L. 93-205, 87 Stat. 884. 16 U.S.C. §§ 1531-1544.
2 For detailed information on the FWS program for endangered species, see the FWSwebsite at [].
3 NMFS also is sometimes referred to as NOAA (National Oceanic and AtmosphericAdministration) Fisheries.
4 For updated information, see [].
whereby the ecosystems upon which endangered species and threatened speciesdepend may be conserved.”6 There can be economic interests on the various sidesof some vanishing species issues. Because other laws often lack the strict substantiveprovisions that Congress included in the ESA (see Major Provisions sections,below), the ESA often becomes a surrogate battleground in such disputes. Like theminers’ canaries signaling a scarce resource (safe air supply), declining species areoften symptoms of resource scarcities and altered ecosystems. Examples of suchresource controversies include the Tellico Dam (hydropower development andconstruction jobs versus farmland protection and tribal graves, as well as theendangered snail darter); Northwest timber harvest (protection of logging jobs andcommunities versus commercial and sport fishing, recreation, and ecosystemprotection, as well as salmon and spotted owls); and oil development on the energy-rich plain around the northern mountain states (coal bed methane development,grazing rights, ground water protection, traditional ranching, and a proposal for sagegrouse listing in a complex and varying stew of interests).7 And the worldwidedebate over global warming has found its avatar in the polar bear.
In recent years, tensions over the ESA have increased as species have been added to the protected list, and as the greater demands of a growing economy andhuman population have affected species’ habitats. Both Congress and the ExecutiveBranch have sought to lessen these tensions by, among other things, tailoringapplication of the ESA for particular circumstances. The ESA’s critics contend thatneither the ESA nor administrative efforts go far enough in accommodating needsother than species conservation, while the ESA’s defenders counter that it merelybalances an inherent bias toward development in other governmental laws andpolicies.
Debate, pro and con, on the ESA splits largely along demographic lines. While most demographic groups support species conservation, that support is strongeramong urban and suburban populations and less so in rural areas, and is strongeramong those in the East and along the coasts and less so in central and mountainstates. Sport hunters and anglers seem divided on the issue. Native Americans, asa group often dependent on natural resources (e.g. fish), are frequently involved inESA issues, most commonly siding with survival of listed species. Groups opposingstrong protections for listed species usually make claims that jobs will be lost ifconservation measures are stringent, but those seeking strong protections often claimthat jobs will be lost if they are not. It is also noteworthy that, while the debate oftencenters on jobs and biology, people on both sides claim ethical support for theirpositions, and some religious groups now participate in the debate. In addition, someindustries (e.g., logging and land development) generally see the ESA as a seriousproblem, while others (e.g., some commercial fishing and many recreation interests)see it as generally supporting their interests.
7 Ultimately, a petition to list this species was judged not to be warranted. The interestsmentioned here, and many others, had a variety of goals in supporting or opposing the listingproposal. For details, see [].
Has ESA Been Effective?
The answer to this question depends very much on the choice of measurement.
A major goal of the ESA is the recovery of species to the point at which theprotection of the ESA is no longer necessary. If this is the standard, the ESA mightbe considered a failure, since only 20 species have been delisted due to recovery, todate.8 Nine species have become extinct since their listing, and 16 have been delisteddue to improved data or scientific understanding.9 In the former case, some of thenine species now believed extinct were originally listed to protect any last remainingfew that might have been alive at the time of listing. It can be quite difficult to provewhether extraordinarily rare species are simply that, or in fact are already extinct. Forexample, a rare shorebird thought by many to be extinct was re-discovered in aremote area of Canada a few years ago; it might just as easily have quietly goneextinct without being rediscovered. Rare species are, by definition, hard to find.
Even so, since some scientific studies demonstrated that most species are listed only once they are very depleted (e.g., median population of 407 animals forendangered vertebrates according to one study), another measure of effectivenessmight be the number of species that have stabilized or increased their populations,even if the species is not actually delisted. If this is the standard, the ESA could beconsidered a success, since a large number (41% of listed species according to onestudy) have improved or stabilized their population levels. Other species (e.g., redwolves and California condors) might not exist at all without ESA protection, andthis too might be considered a measure of success, even though the species are stillrare.10 One could also ask what species might have become extinct if there were noESA. The authors are unaware of comprehensive studies regarding the likely statusof rare species were there no ESA, but for species such as spotted owls, salmon,Florida panthers, and plants of very narrow ranges, it seems likely that their numberswould be (at best) far fewer if ESA did not exist.
Leading Causes of Extinction
Until recent decades, the focus of the extinction debate was on losses due to over-exploitation, generally through hunting, trapping, or fishing. The poster speciesof the debate were passenger pigeons, tigers, wolves, and other well-known animals.
But during the 20th century, a shift of focus and probably of fact occurred. The vastmajority of species, including those for which direct taking was probably an earlyfactor in their decline, are generally also at risk due to habitat loss. Habitats reducednow to a small fraction of their former extent include tall-grass prairie, fresh and saltwater wetlands, old growth forests of most types, free-flowing rivers, coral reefs,undisturbed sandy beaches, and others.
8 See [] to obtain updated information.
9 Ibid. The recovered species include the recently delisted bald eagle and the Yellowstonearea population of grizzly bears.
10 See CRS Report 98-32 ENR, Endangered Species Act List Revisions: A Summary ofDelisting and Downlisting, by Robert J. Noecker.
Another high-ranking factor in the demise of many species is the introduction of non-native species. The non-native (invasive) species can be disease vectors orparasites (e.g., avian malaria in Hawaii, or Asian long-horned beetles in NorthAmerica), predators (brown tree snakes in Guam and Hawaii), or competitors (e.g.,barred owls in the Pacific Northwest). The gradual homogenization of the world’sflora and fauna has led to a demise of many species.11 Is Extinction Normal?
If extinction is normal, some argue that there is no need for the government to intervene to halt this natural process. But is it normal? Geological evidence showsthat the vast majority of species that have ever lived on Earth are now extinct — anobservation uncontested by paleontologists. However, many scientists are concernedthat the current rate of extinction exceeds background extinction rates over time.12But calculating current rates of extinction, much less making comparisons with thegeologic past, is extremely difficult. Current estimates of total species range from3.5 million to 100 million, with 10-30 million being commonly accepted numbers.
If scientists are unsure of how many species exist, it is naturally difficult to estimatehow fast they are going extinct, and whether current extinction rates exceedbackground extinction rates. Consequently, scientists use very conservativeassumptions to make these estimates. The resulting extinction rates (17,000 speciesper year being a typical estimate) still seem astonishingly large, in part because thepublic is generally unaware of the huge number of species in groups to which manypeople pay little or no attention (e.g., beetles, marine invertebrates, fish), and thelarge number of species estimated on Earth. How do these compare to backgroundrates? Widely diverse methods all suggest that current rates of extinction exceed background rates. Normal rates are thought to be from 1 to 10 species per every 10million species per year. (That is, if there are 20 million species now, backgroundlevels would be about 2 to 20 species extinctions per year.) Common estimates ofcurrent extinction rates range from 100 to 10,000 times such background rates —roughly comparable to the five great episodes of extinction in the geologic past.
Critics most frequently question these calculations by stressing uncertainties, ratherthan citing specific factual errors. This criticism is not surprising, since each step inthese calculations contains uncertainties (e.g., estimating the number of existingspecies). Most biologists counter by noting that similar numbers are generated instudies of widely different groups by a variety of scientists using different methods.
Robust results (i.e., similar results from the testing of a hypothesis in a variety ofways) are usually considered scientifically sound.
11 See CRS Report RL30123, Harmful Non-Native Species: Issues for Congress, by M.
Lynne Corn, Eugene H. Buck, Jean M. Rawson, Alejandro E. Segarra, and Eric A. Fischer.
12 Over the billions of years of life on Earth, extinction rates have varied, with five periodsof exceptionally high rates. The most famous periods are the mass extinctions at the end ofthe Age of Dinosaurs (Cretaceous Period), about 65 million years ago, and the even moremassive die-offs at the end of the Permian Period, about 250 million years ago, when about52% of the groups of marine species became extinct. Between each of these five events,extinctions continued at more moderate, background levels.
Once extinct, a species can never be revived. But, faced with high rates of extinction, some might take comfort in a return to an equal number of species, evenif those species are different. Evolution continues, even in the face of high extinctionrates, so perhaps new species will evolve that are better adapted to new conditions.
If so, how long would such a “recovery” take? Examining the geologic record aftermajor extinction episodes, some scientists estimate that recovery to approximatelyequal numbers of (different) species took up to 25 million years for the most severeextinction events. Thus, if the current extinction rate and recovery rate arecomparable to past rates, the return to species numbers of the pre-historic era wouldtake several million years.
Major Provisions of Current Law: Domestic
The modern ESA was passed in 1973, but was preceded by simpler acts in 1966 and 1969. It has been amended on numerous occasions since then: 1976, 1977, 1978,1979, 1980, 1982, and 1988. The following are brief summaries of the majordomestic provisions of the ESA in the order they appear in the U.S. Code. Severalmajor issues are discussed in more detail later in this report.
Endangered and Threatened Species
An endangered species is defined as “any species which is in danger of extinction throughout all or a significant portion of its range.” A threatened speciesis defined as “any species which is likely to become an endangered species within theforeseeable future throughout all or a significant portion of its range.” The ESA doesnot rely on a numerical standard: such a standard would not reflect the wide varietyof many species’ biology. (For example, a population of 10,000 butterflies, allconfined to one mountaintop, would clearly be at greater risk than 10,000 butterfliesscattered over thousands of square miles.) The protection of the ESA extends to allspecies and subspecies of animals (not just birds and mammals), although forvertebrates, further protection can be given for distinct population segments withina species, and not just the species as a whole. More limited protection is availablefor plant species under the ESA.13 There is currently no protection afforded underthe ESA for organisms (e.g., Eubacteria, Archaea, viruses) considered neither animalnor plant.
The term “take” under the ESA means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”14(Harassment and harm are further defined by regulation at 50 C.F.R. § 17.3.) Takingis prohibited under 16 U.S.C. § 1538. There has been controversy over the extent towhich the prohibition on taking may include habitat modification. A 1995 Supreme Court decision15 held that the inclusion of significant habitat modification was areasonable interpretation of the term “harm” in the law.
The Secretary of the Interior manages and administers most listed species through FWS. Marine species, including some marine mammals, and anadromousfish are the responsibility of the Secretary of Commerce, acting through NMFS. Thelaw assigns the major role to the Secretary of the Interior (all references to“Secretary” below are to the Secretary of the Interior unless otherwise stated) andprovides in detail for the relationship of the two Secretaries and their respectivepowers.16 Listings
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 listthe species based only on the best available scientific and commercial information,after an extensive series of procedural steps to ensure public participation and thecollection of relevant information. At this point, the Secretary may not consider theeconomic effects that listing may have on the area where the species occurs. This isthe only place in the ESA where economic considerations are expressly forbidden;such considerations may enter in a later stage.17 Economic factors cannot be takeninto account at this stage, because Congress directed that listing be fundamentally ascientific question: is the continued existence of the species threatened orendangered? Through the 1982 amendments particularly, Congress clearly intendedto separate this scientific question from subsequent decisions on appropriateprotection. This is evident upon comparing 16 U.S.C. § 1533(b) with § 1533(f) inthis regard.
Candidate Species
In the interval between a proposal and a listing decision, the Secretary must monitor the status of these “candidate” species and, if any emergency poses asignificant risk to the well-being of the species, promptly list them.18 Some steps inthe normal listing process may be skipped for emergency listings. Federal agenciesmust confer with the appropriate Secretary on actions likely to jeopardize the 15 Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995)(“Sweet Home”). See CRS Report 95-778, Habitat Modification and the EndangeredSpecies Act: The Sweet Home Decision, by Pamela Baldwin.
17 See CRS Report RL30792, The Endangered Species Act: Consideration of EconomicFactors, by Pamela Baldwin, for an analysis of when the ESA does allow consideration ofsuch factors.
continued existence of candidate species, but agencies need not limit commitmentsof resources.19 As of the date of this report, there were 277 candidate species.20 Delisting and Downlisting
The processes for delisting or downlisting a species from the Lists of Endangered and Threatened Wildlife and Plants are the same as the processes forlisting.21 Delisting is removing a species from the lists. Downlisting is reclassifyinga species from endangered to threatened, and uplisting is the reverse. The Secretaryof the Interior may initiate a change in the status of listed species. Alternatively, afterreceiving a substantive petition for any change in listing status, the Secretary is toreview the species’ status. The determination to delist, downlist, or uplist a speciesmust be made “solely on the basis of the best scientific and commercial dataavailable”22 and “without reference to possible economic or other impacts.”23 FWSregulations also state that, at least once every five years, the Director review eachlisted species to determine whether it should be removed from the list, changed fromendangered to threatened, or changed from threatened to endangered.24 Critical Habitat
When a species is listed, the Secretary must also designate critical habitat (either where the species is found or, if it is not found there, where there are featuresessential to its conservation).25 If the publication of this information is not “prudent”because it would harm the species (e.g., by encouraging vandals or collectors), theSecretary may choose not to designate critical habitat. The Secretary may alsopostpone designation for as long as one year if the information is not determinable.
As of June 28, 2007, critical habitat had been designated for 489 listed species.26Any area, whether or not federally owned, may be designated as critical habitat, butprivate land is only affected by critical habitat designation if some federal action(e.g., license, loan, permit) is also involved. Federal agencies must avoid 19 16 U.S.C. § 1536(a)(4). The limitation on commitments of resources originated in thedebate over Tellico dam. (See Appendix of this report.) As controversy over the dam ragedin Washington and in Tennessee, the Tennessee Valley Authority accelerated work on thedam, leaving the project nearly complete before the Endangered Species Committee hadmet. (See “Exemptions: A History,” below.) 20 For updated information, see [].
21 For more information on this topic, see CRS Report 98-32 ENR, Endangered Species ListRevisions: A Summary of Delisting and Downlisting, by Robert Noecker.
25 16 U.S.C. §§ 1533(a)(3) and (b)(2).
26 See [] for updatedinformation.
“destruction or adverse modification” of critical habitat, either through their directaction or activities that they approve or fund.27 P.L. 108-138 added a provision28 specifying that the Secretary shall not designate critical habitat on lands controlled by the Defense Department, if thoselands are subject to an Integrated Natural Resource Management Plan (INRMP)under the Sikes Act (16 U.S.C. § 670a). The provision was subject to the Secretary’sdetermination, in writing, that the INRMP provided “a benefit” to the lands whichmight otherwise have been designated as critical habitat.29 In addition, the Secretarywas directed to take national security into consideration in designating criticalhabitat. These provisions were added in response to a perception that designatedcritical habitat on some military lands interfered with military training and readinessactivities.
Recovery Plans
The appropriate Secretary must develop recovery plans for the conservation and survival of listed species.30 Recovery plans to date tend to cover birds and mammals,but a 1988 ESA amendment prohibits the Secretary from favoring particulartaxonomic groups. The ESA and its regulations provide little detail on therequirements for recovery plans, nor are these plans binding on federal agencies orothers, and the essentially hortatory nature of these plans has been widely criticized.
As of June 28, 2007, recovery plans had been completed for 1,078 U.S. species.31 Land Acquisition
Land may be acquired to conserve (recover) endangered and threatened species, and money from the Land and Water Conservation Fund may be appropriated for thisacquisition.32 In FY2005, a total of 1,655 acres were acquired by FWS for theNational Wildlife Refuge System under ESA authority.
Cooperation with States
The appropriate Secretary must cooperate with the states in conserving protected species and must enter into cooperative agreements to assist states in their 29 The military remains subject to ESA’s provisions other provisions, including consultationand taking. For additional information on the military and ESA, see CRS Report RS22149,Exemptions from Environmental Law for the Department of Defense: Background andIssues for Congress by David M. Bearden.
31 See [] for updated information.
endangered species programs, if the programs meet certain specified standards.33 Ifthere is a cooperative agreement, the states may receive federal funds to implementthe program, but the states must normally provide a minimum 25% matching amount.
The 1988 ESA amendments created a fund to provide for the state grants. While theauthorized size of the fund is determined according to a formula, money from thefund still requires annual appropriation.34 For FY2007, $81.0 million was providedto states and territories for cooperative activities, including land acquisition andplanning assistance. Consultation
Federal agencies must ensure that their actions are “not likely to jeopardize the continued existence” of any endangered or threatened species, nor to adverselymodify critical habitat.35 If federal actions or actions of non-federal parties thatrequire a federal approval, permit, or funding might affect a listed species, the federalaction agencies must complete a biological assessment.36 To be sure of the effectsof their actions, the action agency must consult with the appropriate Secretary. Thisis referred to as a § 7 consultation. “Action” includes any activity authorized,funded, or carried out by a federal agency, including permits and licenses. However,a 2007 Supreme Court decision held that the consultation process is required only forthose federal actions that involve agency discretion.37 Where a federal action isdictated by statute, such as where an agency must act if certain listed conditions aremet, a § 7 consultation is not required. If the appropriate Secretary finds that an action would not jeopardize a species or adversely modify critical habitat, the Secretary issues a Biological Opinion(“BiOp”) to that effect, and the agency is provided with a written statement under 16U.S.C. § 1536(b)(4), specifying the terms and conditions under which the federalaction may proceed in order to avoid jeopardy or adverse modification of criticalhabitat. The Secretary must suggest any reasonable and prudent alternatives thatwould be required to avoid harm to the species. The great majority of consultationsresult in “no jeopardy” opinions, and nearly all of the rest find that the project hasreasonable and prudent alternatives which will permit it to go forward. Actions thatwould result in jeopardy and have no reasonable and prudent alternatives areexceptionally rare. If no reasonable and prudent alternatives to the proposed actioncan be devised to avoid the jeopardy or adverse modification, the agency has threechoices: (1) choose not to proceed with the action; (2) proceed with the action at the 37 National Association of Home Builders v. Defenders of Wildlife, 127 S.Ct. 2518 (2007).
(holding that no § 7 consultation was required to transfer permitting power to a state undera portion of the Clean Water Act (CWA) because once the CWA statutory factors were met,EPA had no choice but to execute the transfer). See CRS Report RS22618, The SupremeCourt Decides Five Environmental Cases in Its 2006-2007 Term by Robert Meltz.
risk of penalties; or (3) apply for a formal exemption for the action.38 Pendingcompletion of the consultation process, agencies may not make irretrievablecommitments of resources that would foreclose any of these alternatives.
A federal agency, an applicant or permittee, or the governor of a state in which the action in question would occur may apply for an exemption that allows the actionto go forward without penalties. Exemptions are only available for actions (e.g.,water withdrawals), not for species (e.g., Delta smelt). A high-level EndangeredSpecies Committee of six specified federal officials and a representative of eachaffected state (commonly called the “God Squad”) decides whether to allow theaction to proceed despite future harm to a species; at least five votes are required topass an exemption. The law includes extensive rules and deadlines to be followedin applying for such an exemption and some stringent rules for the Committee indeciding whether to grant an exemption. The Committee must grant an exemptionif the Secretary of Defense determines that an exemption is necessary for nationalsecurity.39 In addition, and under specified circumstances, the President maydetermine whether to exempt a project for the repair or replacement of facilities indeclared disaster areas. A separate discussion of the complex exemption process andits history is provided in the Appendix.40 Permits for Non-Federal Actions
For actions that might take a listed species, but without any federal nexus such as a loan or permit, the Secretary may issue permits to allow “incidental take” ofspecies for otherwise lawful actions.41 The applicant for an incidental take permitmust submit a habitat conservation plan (HCP) that shows the likely impact, the stepsto minimize and mitigate the impact, the funding for the mitigation, the alternativesthat were considered and rejected, and any other measures that the Secretary mayrequire. Secretary Babbitt greatly expanded use of this section during the ClintonAdministration, and an agency handbook provides for streamlined procedures foractivities with minimal impacts.42 Other Provisions
Other provisions specify certain exemptions for raptors; regulate subsistence activities by Alaskan Natives; prohibit interstate transport and sale of listed species 40 See also CRS Report 90-242 ENR, Endangered Species Act: The Listing and ExemptionProcesses. A copy of this archived report can be obtained, on request, from M. Lynne Corn.
41 An incidental take occurs when listed species are harassed, harmed, pursued, hunted, shot,wounded, killed, trapped, captured, or collected incidently during activities donedeliberately but for a lawful purpose other than the objective of taking these listed species.
and parts; control trade in parts or products of an endangered species that wereowned before the law went into effect; and specify rules for establishing experimentalpopulations. (Provisions of the ESA referring to international activities are discussedbelow.) Prohibitions and Penalties
The ESA prohibits certain actions, specifies criminal and civil penalties, and provides for citizens’ suits to enforce certain aspects of the ESA.43 The citizen suitprovisions have been a driving force in the ESA’s history, and often have been usedto force reluctant agencies to provide for species conservation that might otherwisehave been neglected.
Major Provisions of Current Law: International
The ESA implements the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)44 and the Convention on Nature Protectionand Wildlife Preservation in the Western Hemisphere (the Western HemisphereConvention)45 for the United States. CITES parallels the ESA by dividing its listedspecies into groups according to the estimated risk of extinction, but uses three majorcategories,46 rather than two. In contrast to the ESA, CITES focuses exclusively ontrade, and does not consider or attempt to control habitat loss. The following are themajor international provisions of the ESA.
Financial Assistance
The Secretary may use foreign currencies (available under 7 U.S.C. § 1691, the Food for Peace program) to provide financial assistance to other countries forconserving endangered species. (As a practical matter, little money is currentlyavailable under this provision.) The ESA also authorizes appropriations for thispurpose.47 44 TIAS 8249, as signed by the United States, March 3, 1979. See CRS Report RL32751,The Convention on International Trade in Endangered Species of Wild Fauna and Flora(CITES): Background and Issues, by Pervaze A. Sheikh and M. Lynne Corn.
45 50 Stat. 1354; TS 981, as signed by the United States, October 12, 1940.
46 CITES arranges protected species in 3 Appendices. Appendix I includes speciesthreatened with extinction, and for which trade is permitted only in exceptionalcircumstances. Appendix II includes species not necessarily threatened with extinction, butfor which trade must be controlled to avoid exploitation incompatible with their survival.
Appendix III contains species that are protected in at least one country, which has askedother CITES Parties for assistance in controlling the trade.
Scientific Authority/CITES
The ESA designates the Interior Secretary as the Endangered Species Scientific Authority (ESSA) under CITES. As the ESSA, the Secretary must determine that theUnited States’ international trade of living or dead organisms, or their products, willnot harm the species in question. The Secretary has authority to enforce thesedeterminations. The Secretary is required to base export determinations upon “thebest available biological information,” although population estimates are notrequired. Certain other responsibilities are also spelled out in CITES.48 Management Authority/CITES
The Interior Secretary is also named as the Management Authority for the United States under CITES. The Management Authority must assure that specimensare exported legally, that imported specimens left the country of origin legally, andthat live specimens are shipped under suitable conditions. Certain otherresponsibilities are also spelled out in CITES.49 Violations
The ESA makes violations of CITES violations of U.S. law if committed within Imports/Exports
The ESA requires importers and exporters of controlled products to use certain ports and provides for exemptions for scientific purposes and for programs intendedto assist the recovery of listed species.51 There are also certain exemptions for AlaskaNatives and for products owned before December 28, 1973, including scrimshaw(carved ivory).52 Particular Species
The 1988 ESA amendments (P.L. 100-478, Title II; 16 U.S.C. §§ 4201 et seq.) created a major program for the conservation of African elephants. In 1994, 51 Subject to extra fees, importers or exporters may apply to use ports other than the 18specifically designated by the Secretary (16 U.S.C. § 1537(f)). These extra fees may beconsiderable since qualified FWS agents must be sent to oversee the shipment. Designatedports are Anchorage, Atlanta, Baltimore, Boston, Chicago, Dallas, Honolulu, Houston, LosAngeles, Louisville (KY), Memphis, Miami, New Orleans, New York, Newark, Portland(OR), San Francisco, Seattle. There have been pressures over the years to open other ports,but budget constraints have generally limited such changes.
Congress enacted a separate program for rhinoceros and tigers (P.L. 103-391; 16U.S.C. §§ 5301 et seq.). In 1997, a program for Asian elephants was established(P.L. 105-96; 16 U.S.C. §§ 4261 et seq.). In 2000, a program for great apes wasadded (P.L. 106-411; 16 U.S.C. §§ 6301 et seq.). In 2004, a program for marineturtles was added (P.L. 108-266; 16 U.S.C. §§ 6601 et seq.). While none of theseprograms is formally part of the ESA authorization per se, they provide funds forspecies which are protected under the ESA.
Analysis of Domestic Law Provisions
Because the listing of species, the designation of critical habitat, and the consultation and exemption processes are such important and controversial aspectsof the ESA, each of these components is discussed in greater detail in this portion ofthe report.
Bases for Listings. As discussed above, the listing of a species under the
ESA results in greater protection for the species, limitations on activities that mightaffect that species, and penalties for “taking” individuals of a listed species.
A species may be designated as either endangered or threatened, depending on the severity of its decline and threats to its continued survival. Under § 3 of the ESA,an endangered species is a species that is “in danger of extinction throughout all ora significant portion of its range.” A threatened species is defined as a species “likelyto become endangered within the foreseeable future throughout all or a significantportion of its range.” Because the ESA defines species as a species, a subspecies, or, — for vertebrates only — a “distinct population segment,”53 there is some flexibilityas to how to provide different levels of protection to less than a whole species. In the last several years, the Department of the Interior (DOI) has interpreted the definition of endangered species to find that only a species that is in danger ofextinction throughout all of its range is truly endangered. Under this interpretation,a species that was at risk of extinction in a significant portion of its range would notbe considered endangered. Just about every court that considered the issue foundDOI’s interpretation violated the ESA, including one federal court of appeals.54 Andin 2007, DOI changed its interpretation.55 Under the new interpretation issued by the 54 See, e.g., Defenders of Wildlife v. Norton, 258 F.3d 1136 (9th Cir. 2001); Nat’l WildlifeFed. v. Norton, 386 F. Supp. 2d 553 (D. Vt. 2005); Defenders of Wildlife v. Norton, 354 F.
Supp. 2d 1156 (D. Or. 2005); Defenders of Wildlife v. Norton 239 F. Supp. 2d 9 (D.D.C.
2002). The only two exceptions have been Ctr. for Biological Diversity v. U.S. Fish andWildlife Service, No. 05-CV-00305-RPM (D. Colo. March 7, 2007); Ctr. for BiologicalDiversity v. Norton, 411 F. Supp. 2d 1271 (D.N.M. 2005). 55 Memorandum from the Solicitor, DOI, to the Director, Fish and Wildlife Service, “The Solicitor of DOI, FWS must also consider whether a species is at risk of extinctionthroughout a significant portion of its range, allowing the agency discretion to definesignificant.56 The interpretation also states that the range of a species is the area inwhich a species currently exists, not the historical range where the species onceexisted.
The determination of whether a species should be listed as endangered or threatened must be based on several scientific factors related to a species and threatsto its continuance. The ESA expressly states that listing determinations are to bemade “solely on the basis of the best scientific and commercial data available.”57 Theword “solely” was added in the 1982 amendments to the ESA58 to clarify that thedetermination of endangered or threatened status was intended to be made withoutreference to its potential economic impacts. Observers have compared the decisionof whether to list a species to diagnosing whether a patient has cancer: the diagnosisshould be a strictly scientific decision, but other factors can be considered later indeciding how to treat the cancer. In discussing the addition of the word “solely,” acommittee report stated: . The principal purpose of the amendments to Section 4 is to ensure thatdecisions pertaining to the listing and delisting of species are based solely uponbiological criteria and to prevent non-biological considerations from affectingsuch decisions. To accomplish this and other purposes, Section 4(a) is amendedin several instances.
Section 4(b) of the Act is amended in several instances by Section 1(a)(2) ofH.R. 6133. First, the legislation requires that the Secretary base hisdeterminations regarding the listing or delisting of species “solely” on the basisof the best scientific and commercial data available to him. The addition of theword “solely” is intended to remove from the process of the listing or delistingof species any factor not related to the biological status of the species. The 55 (.continued)Meaning of ‘In Danger of Extinction Throughout All or a Significant Portion of its Range’”(March 16, 2007).
57 16 U.S.C. § 1533(a)(1) states that the Secretary by regulation shall “determine whetherany species is an endangered species or a threatened species because of any of the followingfactors: “(A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educationalpurposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms;or (E) other natural or manmade factors affecting its continued existence.” 16 U.S.C. § 1533(b)(1)(A) states: “The Secretary shall make determinations required by subsection (a)(1) of this section solely on the basis of the best scientific and commercialdata available to him after conducting a review of the status of the species and after takinginto account those efforts, if any, being made by any State or foreign nation, or any politicalsubdivision of a State or foreign nation, to protect such species, whether by predator control,protection of habitat and food supply, or other conservation practices, within any area underits jurisdiction, or on the high seas.” Committee strongly believes that economic considerations have no relevance todeterminations regarding the status of species and intends that the economicanalysis requirements of Executive Order 12291, and such statutes as theRegulatory Flexibility Act and the Paperwork Reduction Act not apply. Thecommittee notes, and specifically rejects, the characterization of this languageby the Department of the Interior as maintaining the status quo and continuingto allow the Secretary to apply Executive Order 12291 and other statutes inevaluating alternatives to listing. The only alternatives involved in the listing ofspecies are whether the species should be listed as endangered or threatened ornot listed at all. Applying economic criteria to the analysis of these alternativesand to any phase of the species listing process is applying economics to thedeterminations made under Section 4 of the Act and is specifically rejected bythe inclusion of the word “solely” in this legislation.
Section 4(b) of the Act, as amended, provides that listings shall be based solelyon the basis of the best “scientific and commercial data” available. TheCommittee did not change this information standard because of its interpretationof the word “commercial” to allow the use of trade data. Retention of the word“commercial” is not intended, in any way, to authorize the use of economicconsiderations in the process of listing a species.59 The conference report confirms that it was the intent of both chambers that economic factors not play a role in the designation and listing of species forprotection: Section 2 of the Conference substitute amends section 4 of the Act in severalways. The principal purpose of these amendments is to ensure that decisions inevery phase of the process pertaining to the listing or delisting of species arebased solely upon biological criteria and to prevent non-biological considerationsfrom affecting such decisions.60 The Committee of Conference (hereinafter the Committee) adopted the Houselanguage which requires the Secretary to base determinations regarding thelisting or delisting of species “solely” on the basis of the best scientific andcommercial date available to him. As noted in the House Report, economicconsiderations have no relevance to determinations regarding the status ofspecies and the economic analysis requirements of Executive Order 12291, andsuch statutes as the Regulatory Flexibility Act and the Paperwork Reduction Act,will not apply to any phase of the listing process. The standards in the Actrelating to the designation of critical habitat remain unchanged. The requirementthat the Secretary consider for listing those species that states or foreign nationshave designated or identified as in need of protection also remains unchanged.
The Committee adopted, with modifications, the Senate amendments whichcombined and rewrote section 4(b) and (f) of the Act to streamline the listingprocess by reducing the time periods for rulemaking, consolidating public meeting and hearing requirements and establishing virtually identical proceduresfor the listing and delisting of species and for the designation of critical habitat.61 In summary, the ESA makes clear that whether a species is endangered or threatened is a scientific question in which economic factors must not play a part.
Once this determination is made, economics then may be considered in analyzing andtaking other actions such as designating critical habitat or developing recovery plans.
Nothing in the ESA prevents choosing conservation methods that will lower costs tosociety, industry, or landowners, as long as the chosen methods still achieveconservation goals.
Pre-Listing Activities. The question may arise as to what the responsibilities
of the federal government are toward a species that is proposed for listing but has notyet been listed. This question could be important because there may be a significanttime between the proposal for listing and the actual listing, during which time afederal agency could be faced with decisions on contracts and management actionsof various types. Under current law, an agency must “confer” with the appropriateSecretary on any agency action that is likely to jeopardize the continued existence ofany species proposed to be listed or to destroy or adversely modify critical habitatproposed to be designated for such species.62 The implementing regulations state thatthe conference is designed to assist the federal agency and an applicant in identifyingand resolving potential conflicts at an early stage in the planning process.63 The conference process that applies to species proposed for listing is distinct from the consultation process that applies to listed species. The conference isintended to be less formal, and to permit FWS or NMFS to advise an agency on waysto minimize or avoid adverse effects. A federal agency has to follow more formalprocedures and provide more complete documentation once a species is listed. Theagency may choose to follow the more complete and formal process even at theproposed listing stage to avoid duplication of effort later.64 The ESA states that the conference stage does not require a limitation on the irreversible or irretrievable commitment of resources by agency action which wouldforeclose reasonable and prudent alternative measures.65 Once a species is listed, anagency will have definite responsibilities, and an agency might consider it prudentat the proposed listing stage both to avoid harm to a precarious species and to avoidpossible liability for compensation arising from agency actions creating private rightswhich later cannot be exercised. An agency might, for example, choose to avoidholding timber sales in an area containing a proposed species. The relevant Secretarymust monitor candidate species and prevent a significant risk to the well being of anysuch species.
Special Protection for Threatened Species. Under § 4(d) of the ESA,
the Secretary may promulgate special regulations to address the conservation ofspecies listed as threatened. Protections and recovery measures for a particularthreatened species can be carefully tailored to particular situations, as was done, forexample, with respect to the threatened northern spotted owl. A federal regulationalso clarifies that a threatened species for which a special rule has not beenpromulgated enjoys the same protections as endangered species.66 Designation of Critical Habitat
Critical habitat designation has been controversial, given FWS’s stated position (see below), the importance that the environmental community attaches to criticalhabitat (especially in some specific cases), and the distress its designation causesamong many landowners.
Concurrently with determining a species to be endangered or threatened, the Secretary “to the maximum extent prudent and determinable”67 is to designate thecritical habitat of the species. The reference to the designation of critical habitatbeing “prudent” reflects the need to consider whether designating habitat would harmthe species, for example, by identifying areas that could be damaged by specimencollecting. If the facts relevant to the designation of critical habitat are not yet“determinable,” the Secretary may postpone habitat designation for an additionalyear. Eventually, habitat is to be designated to the maximum extent it is prudent todo so.68 If the Secretary designates critical habitat, the Secretary must do so on the basis of the best scientific data available and after taking intoconsideration the economic impact, and any other relevant impact, of specifyingany particular area as critical habitat. The Secretary may exclude any area fromcritical habitat if he determines that the benefits of such exclusion outweigh thebenefits of specifying such area as part of the critical habitat, unless hedetermines, based on the best scientific and commercial data available, that thefailure to designate such area as critical habitat will result in the extinction of thespecies concerned.69 Therefore, although economic factors are not to be considered in the listing of a species as endangered or threatened, economic factors must be considered in thedesignation of critical habitat, and some habitat areas may be excluded fromdesignation based on such concerns, unless the failure to designate habitat wouldresult in the extinction of the species.
Although avoiding adverse modification of critical habitat is an express obligation only for federal agencies and actions, it is frequently misunderstood by thepublic as the major restriction on a private landowner’s authority to manage land.
The bulk of any restrictions on use of private land come primarily from the ESA’sprohibition on taking of listed species. Only occasionally — when some federalnexus is present — are they due to any additional strictures resulting from designatedcritical habitat.70 Both the Clinton and George W. Bush Administrations have supported restrictions on their own ability to designate critical habitat under the ESA (e.g.,proposed restrictions under the appropriations process).71 In an announcement onOctober 22, 1999, FWS placed designation of critical habitat at the lowest priorityin its listing budget, and stated that it could not comply with all of the demands of theESA under current budget constraints. Conservation groups saw a contradictionbetween that claim, and the agency’s repeated failure to request increased funds forlisting, together with requests that Congress place a special cap on funding fordesignation of critical habitat.72 FWS has designated critical habitat for 489 of the 1,314 listed domestic species.
The agency has been sued frequently for its failure to designate critical habitat andconsistently loses such suits. In the agency’s view, critical habitat offers littleprotection for a species beyond that already available under the listing process, andthus the expense of designation, combined with its perception of a small margin ofadditional conservation benefit, make critical habitat requirements a poor use ofscarce budgetary resources, especially if the public views critical habitat as the majorregulatory impact of the ESA, rather than as a supplement to the ESA’s prohibitionon “taking” a listed species.73 According to FWS, critical habitat designation shows its greatest conservation benefit when it includes areas not currently occupied by the species; these areas maybe important as connecting corridors between populations or as areas in which newpopulations may be re-introduced. FWS proposed to “develop policy or guidanceand/or revise regulations, if necessary, to clarify the role of habitat in endangered 70 See CRS Report RS20263, The Role of Designation of Critical Habitat under theEndangered Species Act, by Pamela Baldwin.
71 For the current status on appropriations restrictions, see CRS Report RL33779, TheEndangered Species Act (ESA) in the 110th Congress: Conflicting Values and DifficultChoices, by Eugene H. Buck, M. Lynne Corn, Pervaze A. Sheikh, Robert Meltz, andKristina Alexander.
72 See, for example, Robert Wiygul and Heather Weiner, “Critical Habitat Destruction,”Environmental Forum, vol. 16, no. 6 (May/June 1999): 12-21.
73 On May 27, 1999, FWS Director Jamie Clark testified: “. under Section 7, Federalagencies already consult with the Service on activities affecting listed species. In essence,these two processes [agency protection of listed species and of designated critical habitat]often are identical, making critical habitat designation a redundant expenditure ofconservation resources.” Senate Committee on Environment and Public Works, S. Hrg. 106-437 on S. 1100.
species conservation.”74 The notice reflected the agency’s longstanding disaffectionfor this provision of the law and its view that its conservation benefit is lowcompared to its cost. However, while workshops were held on the topic, ultimately,no action was taken on the proposal.
These agency assertions and conclusions rest on an agency regulation in 2000 that fails to consider the role of critical habitat in the recovery of species, rather thanits mere survival.75 In 2001, a federal court of appeals rejected that regulatoryinterpretation.76 In 2004, a second federal court of appeals found the regulationcontradicted the statute.77 If the agency interpretation is changed to more closelyreflect the statute, the role of critical habitat arguably would be more meaningful inpractice.
Post-Listing Activities: Consultation
Under § 7 of the ESA,78 federal agencies are required to consult with the Secretary about proposed actions that might affect a listed species; to use theirauthorities in furtherance of the ESA; and to insure that any action authorized,funded, or carried out by the agency is not likely to jeopardize the continuedexistence of any endangered or threatened species, or to destroy or adversely modifycritical habitat unless the agency has been granted an exemption under the ESA.79Consultation is usually begun at the request of the action agency, but may be initiatedat the request of an FWS Regional Director or NMFS’s Assistant Administrator forFisheries.80 Science plays an important role in the consultation process because the Secretary is to use the “best scientific and commercial data available” to ascertain ifa listed species might be present in the area of a proposed agency action.81 If so, theaction agency is to prepare a “biological assessment” to explore whether a proposedaction might jeopardize a listed species or its critical habitat. This assessment alsois to be based on “the best scientific and commercial data available.”82 Consultationmust also be initiated in connection with private lands if an applicant for (or recipient 74 64 Federal Register 31871-31874 (June 14, 1999).
76 Sierra Club v. U.S. Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 2001).
77 Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir.
79 Regulations on consultation are found at 50 C.F.R. Part 402.
80 50 C.F.R. § 402.14; and see the definition of Director in § 402.02.
81 16 U.S.C. § 1536(c). For additional information on the use of science in the ESA process,see CRS Report RS21500, The Endangered Species Act,Sound Science,and the Courts,by Pamela Baldwin; and CRS Report RL32992, The Endangered Species Act andSoundScience,” by Eugene H. Buck, M. Lynne Corn, and Pamela Baldwin.
of) federal funding, permit, or license has reason to believe that a listed species maybe present in the area affected by a project and implementation of the action willlikely affect a listed species.83 The relevant Secretary generally is to complete consultation within 90 days for a wholly federal action, unless the Secretary and the federal agency mutually agreeto a longer period (up to 150 days) and reasons are given for the delay.84 Aconsultation involving a non-federal party is to be completed within the time agreedto by the Secretary, the federal agency involved, and the applicant concerned.85 Thereafter, FWS or NMFS will prepare a written statement, known as the biological opinion, analyzing whether the proposed agency action is likely tojeopardize the continued existence of a listed species or destroy or adversely modifycritical habitat. The ESA does not expressly state that the biological opinion is to bebased on the “best scientific and commercial data available,” but this arguably isimplied, and is expressly required under the implementing regulations, which requirethat the consulting agency provide “the best scientific and commercial data availableor which can be obtained during the consultation.”86 Such information is to be thebasis of the biological opinion,87 and the biological opinion is to include a summaryof the information on which the opinion is based.88 The biological opinion may conclude that the agency action is not likely to jeopardize the species, or that it can be modified to avoid jeopardy. If so, FWS orNMFS may issue a permit that excuses the taking of listed species incidental to theotherwise lawful activities that are to take place. If the biological opinion concludesthat the proposed action is likely to jeopardize, FWS or NMFS must suggestreasonable and prudent alternatives to avoid jeopardy and mitigate the impacts of theaction. If this is not possible, then the agency proposing the action must forego theaction, risk incurring penalties under the ESA, or obtain a formal exemption from thepenalties of the ESA as set out below.
Exemptions: A History
The Endangered Species Committee. If the jeopardy that is expected to
result from a proposed agency action cannot be avoided and the agency proposing theaction nonetheless wishes to go ahead with the action, the agency (or the affectedgovernor(s) or license applicant(s)) may apply for an exemption to allow the actionto go forward. The exemption process is an important way in which economicfactors may be taken into account under the ESA. Because the exemption processinvolves convening a cabinet-level committee, there have only been six instances to date in which the exemption process was initiated. Of these six, one was granted,one was partially granted, one was denied, and three were dropped (see Appendix).
As originally enacted, the ESA contained an absolute prohibition against activities detrimental to listed species. When the prospective impoundment of waterbehind the nearly completed Tellico dam threatened to eradicate the only knownpopulation of the snail darter (a fish related to perch), the Supreme Court concludedthat the then-current “plain language” of the ESA mandated that the gates of the damnot be closed: Concededly, this view of the Act will produce results requiring the sacrifice ofthe anticipated benefits of the project and of many millions of dollars in publicfunds. But examination of the language, history, and structure of the legislationunder review here indicates beyond doubt that Congress intended endangeredspecies to be afforded the highest of priorities.89 After this Supreme Court decision, the ESA was amended by P.L. 95-632 to include a process by which economic impacts could be reviewed and projectsexempted from the restrictions that otherwise would apply. As originally enacted,the exemption process involved recommendations by the Secretary of the Interior,processing by a review board, and then an application to the Endangered SpeciesCommittee (ESC). In 1982, P.L. 97-304 changed this process to eliminate the reviewboard. Currently, the reviewing Committee is composed of the Secretary ofAgriculture, the Secretary of the Army, the Chair of the Council of EconomicAdvisors, the Administrator of the Environmental Protection Agency, the Secretaryof the Interior (who chairs the ESC), the Administrator of the National Oceanic andAtmospheric Administration, and one individual from each affected state.90 Byregulation, Committee members from affected states collectively have one vote.91 Eligible Applicants. A federal agency, the governor of a state in which an
agency action will occur, or a permit or license applicant may apply to the Secretaryfor an exemption for an agency action.92 How an agency action is structured —whether, for example, it is a separate action or a region-wide program — could berelevant to the various findings required under the exemption procedures. The term“permit or license applicant” is defined in the ESA as a person whose application toa federal agency for a permit or license has been denied primarily because of ESAprohibitions applicable to the agency action.93 The regulations do not elaborate onwho is included within this term.94 An exemption application from a federal agency must describe the consultation process carried out between the head of the federal agency and the Secretary, and 89 Tennessee Valley Authority v. Hill, 437 U.S. 153, 174 (1978).
include a statement explaining why the action cannot be altered or modified toconform with the requirements of the statute. All applications must be submitted tothe Secretary not later than 90 days after completion of the consultation process, orwithin 90 days of final agency action if the application involves a federal permit orlicense. An application must set out the reasons the applicant considers anexemption warranted. The Secretary then publishes a notice of receipt of theapplication in the Federal Register and notifies the governor of each affected state(as determined by the Secretary) so that state members can be appointed to the ESC.
The Secretary (acting alone) may deny the application, if the preliminary steps havenot been completed.
To be eligible for an exemption, the federal agency concerned and the exemption applicant must have carried out the consultation processes required under§ 7 of the ESA in good faith. The agency also must have made a reasonable andresponsible effort to develop and fairly consider modifications or reasonable andprudent alternatives to the proposed action that would not jeopardize the continuedexistence of any endangered or threatened species or destroy or adversely modifycritical habitat of a species. In addition, the agency must have conducted requiredbiological assessments; and, to the extent determinable within the time provided,refrained from making any irreversible or irretrievable commitment of resources thatwould foreclose the formulation or implementation of reasonable and prudentalternatives that would avoid jeopardizing the species and/or adversely modifying itshabitat.95 These qualifying requirements were put in place to insure that theexemption process is meaningful and that consideration of the issues would not bepreempted by actions already taken. Additional requirements for an application arecontained in the relevant regulations.96 It is important to note that the exemption process begins only after a species is listed, consultation has occurred, a finding has been made that the agency action islikely to jeopardize a species, and it is determined that there are no reasonable andprudent alternatives to the agency action.
Secretarial Review. The Secretary is to determine whether an application is
qualified within 20 days or a time mutually agreeable to the applicant and theSecretary. Within 140 days of the time the Secretary determines that the applicantis qualified, the Secretary, in consultation with the other members of the ESC, musthold a formal hearing on the application and prepare a report. The purpose of theformal hearing is to collect evidence both favoring and opposing the exemption.97The Secretary’s report reviews whether the applicant has made any irreversible orirretrievable commitment of resources; discusses the availability of reasonable andprudent alternatives and the benefits of each; provides a summary of the evidenceconcerning whether the action is in the public interest and is nationally or regionally significant, and, if so, states why; and outlines appropriate and reasonable mitigationand enhancement measures which should be considered by the ESC.98 Committee Determination. Within 30 days after receiving the report of the
Secretary, the ESC is to grant or deny an exemption. The ESC shall grant anexemption for the project or activity if, based on the evidence, the ESC determinesthat (i) there are no reasonable and prudent alternatives to the agency action;(ii) the benefits of such action clearly outweigh the benefits of alternative coursesof action consistent with conserving the species or its critical habitat, and suchaction is in the public interest;(iii) the action is of regional or national significance; and(iv) neither the federal agency concerned nor the exemption applicant made anyirreversible or irretrievable commitment of resources prohibited by subsection(d) of this section [commitments as described above that jeopardize species orcritical habitat].99 Mitigation. If the ESC grants an exemption, it also must establish reasonable
mitigation and enhancement measures that are “necessary and appropriate tominimize the adverse effects” of an approved action on the species or criticalhabitat.100 The exemption applicant (whether federal agency, governor, or permit orlicense applicant) is responsible for carrying out and paying for mitigation.101 The costs of mitigation and enhancement measures specified in an approved exemption must be included in the overall costs of continuing the proposed action,and the applicant must report annually to the Council on Environmental Quality oncompliance with mitigation and enhancement measures.102 Special Circumstances. The ESA specifies certain particular instances
1. Review by the Secretary of State. The ESC cannot grant an exemption
for an agency action if the Secretary of State, after a hearing and a review of theproposed agency action, certifies in writing that carrying out the action for which anexemption was sought would violate a treaty or other international obligation of theUnited States.103 This provision could enter in if a particular species listed under theESA were also protected under treaties, such as the Migratory Bird Treaties to whichthe United States is a party. The Secretary of State is to make this determinationwithin 60 days “of any application made under this section,” a time limit which maybe unrealistic given the longer length of time the Secretary of the Interior has to prepare the report that will fully describe the agency action to be reviewed by theSecretary of State.
2. National Security. The Committee is required to grant an exemption if
the Secretary of Defense finds that an exemption is necessary for reasons of nationalsecurity.104 We know of no instance on the public record in which this provision hasbeen used.
3. Domestic Disasters. The President may grant exemptions in certain
cases involving facilities in declared disaster areas. This provision appears to bewritten in contemplation of domestic disasters, such as hurricanes.105 The ESA doesnot have a general provision that allows the granting of an exemption in otheremergency conditions.106 Duration and Effect of Exemption. An exemption is permanent unless the
Secretary finds that the exemption would result in the extinction of a species that wasnot the subject of consultation or was not identified in a biological assessment andthe ESC determines that the exemption should not be permanent.107 The ESA expressly states that the penalties that normally apply to the taking of an endangered or threatened species do not apply to takings resulting from actionsthat are exempted.108 106 50 C.F.R. § 13.4 states that in emergency conditions, the FWS Director “may approvevariations from the requirements of this part [the general permit procedures] when he findsthat any emergency exists and that the proposed variations will not hinder effectiveadministration of [the subchapter on permits], and will not be unlawful.” It is not clear theextent to which this regulation may provide relief for an agency action that otherwise wouldlikely need an exemption.
Appendix: Exemption Applications
In three instances, an Endangered Species Committee (ESC) reached a decision Grayrocks Dam. The Platte River is a major stopover site on the migration
path of whooping cranes, listed under the ESA as an endangered species. FWS
determined that the construction of the Grayrocks Dam and Reservoir in
Wyoming, along with existing projects in the Platte River Basin, would
jeopardize the downstream habitat of whooping cranes. The ESC voted (7-0)
to grant an exemption for Grayrocks Dam and Reservoir on January 23, 1979,
conditioned on specified mitigation measures that included maintenance and
enhancement of critical whooping crane habitat on the Platte River, as well as
a permanent, irrevocable trust fund to pay for these activities. A previous
enactment by Congress would have exempted the project, if the ESC had not
reached a decision within a certain time.109
Tellico Dam. The Tellico Dam on the Little Tennessee River was to serve
multiple purposes. It was vigorously opposed by several sectors, including local
landowners and Indian tribes. After the snail darter (a fish) was listed as
endangered, litigation was filed to stop the construction of the dam, resulting in
the landmark Supreme Court case TVA v. Hill. The decision clarified the broad
reach of the ESA, and its relationship to the question of ratification of public
works projects through appropriations measures. The decision was quickly
followed by congressional passage of P.L. 95-632, which provided for an ESC
process. The measure also gave an automatic exemption to the dam if the ESC
did not reach a decision within a specified time. Directed to take economic
implications into account, the ESC denied an exemption for Tellico (on a 7-0
vote), but Congress enacted an exemption in P.L. 96-69, and the dam was
completed. Subsequently, additional snail darters were found in a few other
locations, and the snail darter was reclassified as threatened.
Bureau of Land Management Timber Sales. The Bureau of Land
Management, an agency in DOI, sought an exemption for 44 Oregon timber
sales in the habitat of the threatened northern spotted owl. In 1992, the ESC
voted (5-2) to grant an exemption for 13 of the sales. Controversy over the sales
and the processes within the Department continued, and the 13 timber sales
were subsequently withdrawn in the Clinton Administration.
In three other instances, there were applications for exemptions, but no ESC Pittston Company Refinery. The Pittston Company applied for an
exemption to build a refinery in Eastport, Maine. Following jeopardy opinions
based on probable effects on threatened bald eagles and endangered right and
humpback whales, the company applied for an exemption, but further action onthis application appears to have been discontinued in 1982.
Consolidated Grain and Barge Company Docking Area. This
company sought to build a docking area for barges at Mound City, Illinois, on
the Ohio River, an area that was habitat for an endangered mussel. Following
a jeopardy opinion, and a denial of permits by the Army Corps of Engineers, the
company applied for an exemption, but withdrew the application in 1986.
Suwanee River Authority. The consulting engineer of the Suwanee River
Authority applied for an exemption for a project to dredge Alligator Pass in
Suwanee Sound, Florida, part of the habitat for the endangered manatee. The
project had been denied a permit by the Army Corps of Engineers. The
engineer apparently lacked the authority to apply on behalf of the Authority,
which in 1986 refused to ratify his actions and withdrew the application.
Although the engineer attempted to continue the application, the withdrawal
was effective.


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