The Endangered Species Act (ESA) in the 112th Congress: Conflicting Values and Difficult Choices
Released: 2013-01-16T00:00:00

Introduction

Increasing numbers of animal and plant species face possible extinction. Endangered and threatened species—and the law that protects them, the 1973 Endangered Species Act (ESA, P.L. 93-205 , as amended; 16 U.S.C. §§1531-1543)—are controversial, in part, because dwindling species are often harbingers of resource scarcity. The most common cause of species' decline is habitat loss or alteration. Habitat loss occurs due to development, climate change, changes in land management practices, competition from invasive species, and other factors, nearly all related to economic, political, or social interests.

ESA has been among the most contentious environmental laws because its substantive provisions can affect the use of both federal and nonfederal lands and resources. Congress faces the issue of how to balance these interests with the protection of endangered and threatened species and, as stated in ESA, "the ecosystems upon which endangered species and threatened species depend." Because of strong support and strong opposition, ESA has not been reauthorized since the last authorization expired in 1992. In the 109 th Congress, there were several unsuccessful attempts to enact comprehensive legislation that would have reauthorized ESA. Congressional efforts in the 110 th , 111 th , and 112 th Congresses focused on addressing specific controversial features of ESA and on oversight of concerns such as the science used for making decisions and designating critical habitat, but little legislation related to ESA was enacted.

Background

Overview

The 1973 ESA was a comprehensive attempt to protect species at risk of extinction and to consider habitat protection as an integral part of that effort. In addition, an express purpose of ESA is to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved" (16 U.S.C. §1531(b)). Under ESA, species of plants and animals (both vertebrate and invertebrate) may be listed as either endangered or threatened according to assessments of the risk of their extinction. More flexible management can be provided for species listed as threatened, compared to those listed as endangered. Distinct population segments of vertebrate species may also be listed as threatened or endangered. Consequently, some populations of Chinook, coho, chum, and sockeye salmon in Washington, Oregon, Idaho, and California have been listed under ESA, even as other healthy populations of these same species in Alaska are not listed and may be commercially harvested. More limited protection is available for plant species under ESA. Once a species is listed, legal tools, including penalties and citizen suits, are available to aid species recovery and protect habitat. Use of these tools, or the failure to use them, has led to conflict. A more detailed discussion of the major provisions of ESA is provided in CRS Report RL31654, The Endangered Species Act: A Primer , by [author name scrubbed], [author name scrubbed], and [author name scrubbed].

ESA is administered by the Fish and Wildlife Service (FWS, Department of the Interior) for terrestrial and freshwater species and some marine mammals, and by the National Marine Fisheries Service (NMFS) in the Department of Commerce's National Oceanic and Atmospheric Administration for the remaining marine and anadromous species. The U.S. Geological Survey's Biological Resources Division conducts research on species for which FWS has management authority; NMFS conducts research on the species for which it is responsible.

As of January 2, 2013, a total of 1,234 species of animals and 820 species of plants were listed as either endangered or threatened under the ESA, of which the majority (619 species of animals and 817 species of plants) occur in the United States and its territories (see Figure 1 and Figure 2 ). The remaining species occur only in other countries. Of the 1,436 U.S. species, 1,143 (about 80%) are covered in active recovery plans. In the most recent data available, FY2011 federal and state expenditures on endangered and threatened species totaled about $1.59 billion, of which about $1.53 billion was reported by federal agencies and about $58 million was reported by the states. The top 10 species with the highest total FY2011 expenditures (excluding land acquisition costs) included 7 subpopulations of steelhead and Pacific salmon ($338 million altogether), pallid sturgeon ($42 million), bull trout ($37 million), and red-cockaded woodpecker ($27 million).

However, species do not exist in isolation, but evolve and fluctuate in abundance because of their relationships with other species and the physical environment. Conservationists increasingly are talking about not only species, but also ecosystems as the units of interest. At times, efforts to protect and recover listed species are controversial; declining species often function like the proverbial canary in the coal mine, by flagging larger issues of resource scarcity and altered ecosystems. Past resource debates in which ESA-listed species were part of larger issues include Tennessee's Tellico Dam (water storage and construction jobs versus farmland protection and tribal graves, as well as snail darters); Pacific Northwest timber harvest (protection of logging jobs and communities versus commercial and sport fishing, recreation, and ecosystem protection, including salmon and spotted owls); and the management of the Apalachicola Basin in Alabama, Florida, and Georgia (allocation of water among metropolitan, agricultural, and industrial users along with commercial and recreational fishing interests, as well as one listed fish and three listed mussel species).

Implementation of Wildlife Treaties

ESA is the domestic implementing legislation for the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES; TIAS 8249), signed by the United States on March 3, 1973; and the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (the Western Hemisphere Convention; 50 Stat. 1354; TS 981), signed by the United States on October 12, 1940. CITES parallels ESA by dividing its listed species into groups according to the estimated risk of extinction, but uses three major categories (called appendices), rather than two. In contrast to ESA, CITES classifies species based solely on the risk that trade poses to their survival. Under ESA, violations of CITES are also violations of U.S. law if committed within U.S. jurisdiction (16 U.S.C. §1538). ESA also regulates import and export of controlled products and provides some exceptions.

Both ESA and CITES address illegal trade in wildlife. International illegal wildlife trade is estimated to be worth more than $10 billion annually and has been associated with the decline of species, spread of disease, and proliferation of invasive species, among other things.

In addition, FWS's Multinational Species Conservation Fund (MSCF) benefits tigers, the six species of rhinoceroses, Asian and African elephants, marine turtles, and great apes (gorillas, chimpanzees, bonobos, orangutans, and the various species of gibbons). This fund supports conservation efforts benefitting these species, often in conjunction with efforts under CITES.

In the 112 th Congress, H.Res. 47 would have expressed the sense of the House of Representatives regarding the contributions of CITES and urged that CITES adopt stronger protections for the polar bear, sharks, and bluefin tuna. H.R. 50 and Section 245(a-c) of S. 3525 would have reauthorized certain provisions of the MSCF related to elephants, rhinoceroses, and tigers. H.R. 1456 and Section 246 of S. 3525 would have reauthorized the Neotropical Migratory Bird Conservation Act through FY2017. H.R. 1760 and Section 245(d) of S. 3525 would have amended and reauthorized the Great Ape Conservation Act of 2000 through FY2017. H.R. 1761 and Section 245(e) of S. 3525 would have amended and reauthorized the Marine Turtle Conservation Act of 2004 through FY2017. On July 28, 2011, the House Natural Resources Subcommittee on Fisheries, Wildlife, Oceans, and Insular Affairs held a hearing on H.R. 50 , H.R. 1760 , and H.R. 1761 . H.R. 3510 , S. 3208 , and Section 244 of S. 3525 would have extended the authorization for the Multinational Species Conservation Funds Semipostal Stamp Act.

Issues in the 112th Congress

ESA reauthorization has been on the legislative agenda since the funding authorization expired in 1992, and bills have been introduced in each subsequent Congress to address various aspects of endangered species protection. Below are descriptions of some of the issues that received attention in the 112 th Congress.

Are Species Protection and Restoration Working?

The answer to this question depends on what is measured. Because a major goal of ESA is the recovery of species to the point at which ESA protection is no longer necessary, this may be a useful starting point. In the 39 years since ESA was enacted, 56 U.S. and foreign species or distinct population segments thereof have been delisted. The reasons cited by FWS are (a) recovery (28 species); (b) extinction (10 species; however, some may have been extinct when listed); and (c) original data in error (18 species). Recovered species include the American alligator, bald eagle, brown pelican (two areas), peregrine falcon (two subspecies), gray wolf (four areas), gray whale (except the Western Pacific Ocean), and three species of kangaroo. Extinct species include the dusky seaside sparrow, Guam broadbill (a bird), and two small fish living in desert springs. However, it can be quite difficult to prove whether extraordinarily rare species are simply that or, in fact, are already extinct. For example, the endangered ivory-billed woodpecker, thought by many to be extinct, was thought to have been rediscovered in a remote area of Arkansas a few years ago. Rare species are, by definition, hard to find.

Some have asserted that ESA is a failure since only 28 species have been delisted due to recovery; on the other hand, only 10 species have been delisted because of extinction. Others note that full recoveries are relatively few because the two principal causes of extinction—habitat loss and invasive non-native species—continue to increase. In addition, "only those species whose situations are known to be the most desperate will receive priority," thereby making recovery difficult, as conservation intervention would occur in only the later phases of a species' decline .

Another measure of "success" might be the number of species that have stabilized or increased their populations, even if the species are not actually delisted; for example, at least 35 species have been reclassified (downlisted) from endangered to threatened. Under this standard, ESA could be considered a success, since a large number of listed species (41%, according to one study) 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. One approach to gauge progress might be to look at what proportion of the recovery objectives identified in species recovery plans have been achieved. Table 1 indicates how the rate of achievement of recovery objectives changes with the increasing length of time after species are listed. In addition, one author concluded that the impact of species conservation efforts may be underestimated because measures do not account for species that (1) would have deteriorated further in the absence of conservation actions, or (2) have improved numerically, but not enough to change their status.

An April 2005 study by GAO found that, although FWS spends almost half of its recovery funds on the highest-priority species, in practice, factors other than a species' priority ranking (e.g., regional office workload and opportunities for partnerships to maximize scarce recovery funds) determine how funding is allocated. GAO found that FWS does not have a process to assess funding decisions routinely to ensure that they are appropriate. On May 17, 2005, the majority staff of the House Committee on Resources released an oversight report entitled Implementation of the Endangered Species Act of 1973 . It reviewed and critiqued various ways that recovery might be measured. In 2006, GAO examined federal efforts to recover 31 selected species. GAO determined that, while many factors affected the recovery of species, recovery plans played an important role in the recovery of all but one of the species examined. Critics claimed the GAO study was biased to reflect positively on the recovery planning process by the selection of species examined.

A December 2008 study by GAO found that, although FWS, NMFS, and other federal agencies had implemented a majority of recommendations to strengthen ESA implementation contained in 10 GAO reports released during the previous 10 years, almost one-third of these recommendations had not been implemented. For example:

FWS had not clarified the role of critical habitat and how and when it should be designated; FWS had not periodically assessed expenditures on species in relation to their relative priority; and FWS and NMFS were not tracking the amount of time spent by federal agencies preparing for consultation before the process officially began.

In August 2011, NMFS released its Biennial Report to the U.S. Congress on the Recovery Program for Threatened and Endangered Species, summarizing efforts to recover the 64 domestic species under NMFS's jurisdiction from October 1, 2008, to September 30, 2010.

In May 2012, the Center for Biological Diversity released a report focusing on the recovery rates of 110 species, concluding that 90% of species protected by ESA are recovering at the rates predicted in agency recovery plans.

In the 112 th Congress on December 6, 2011, the House Committee on Natural Resources held an oversight hearing on ESA and whether litigation may be impeding recovery efforts.

"Sound Science" and ESA

ESA requires that determinations of a species' status be made "solely on the basis of the best scientific and commercial data available." In several recent situations, legal, economic, and social disputes have resulted from actions under ESA. Examples of these controversies include the Florida panther, Klamath River Basin suckers and coho salmon, gray wolf, and Sonoran Desert bald eagles. Critics in some of these disputes suggest that the science supporting ESA action has been insufficiently rigorous or mishandled by the agencies.

Many rare and endangered species are little studied because they are hard to find and it is difficult to locate enough of them to study. There may be little information on many species facing extinction, and only limited personnel or funds available to conduct studies on many of the less charismatic species, or those of little known economic import. Some question what should be done in such instances. In response, some suggest that considerations other than species conservation should prevail; others seek to change the current posture of the law by changing the role of science. These considerations are complicated by the cost and time required to acquire more complete data, particularly in connection with many lesser-known species.

Courts, in considering the "best data available" language, have held that an agency is not obliged to conduct studies to obtain missing data, but cannot ignore available biological information, especially if the ignored information is the most current. Nor may an agency treat one species differently from other similarly situated species, or decline to list a dwindling species and wait until it is on the brink of extinction in relying on possible but uncertain future actions of an agency. "Best scientific and commercial data available" is not a standard of absolute certainty, reflecting Congress's intent that FWS take conservation measures before a species is conclusively headed for extinction. 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."

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. In Arizona Cattle Growers Association v. United States Fish and Wildlife Service , the court stated that the evidentiary bar FWS must clear is very low, but it must at least clear it. In the context of issuing incidental take permits under Section 10(a), this ruling means the agency must demonstrate that a species is or could be in an area before regulating it, and must establish the causal connection between the land use being regulated and harm to the species in question. Mere speculation as to the potential for harm is not sufficient. An agency must consider the relevant facts and articulate a rational connection between these facts and the choices made.

In July 2012, the Center for Biological Diversity published a study concluding that peer reviews of ESA critical habitat designations may not be adequately considered by federal agencies.

In the 112 th Congress, the House Science, Space, and Technology Subcommittee on Investigations and Oversight held a hearing on the nexus of science and policy under ESA on October 13, 2011. On October 17, 2011, the House Committee on Natural Resources held an oversight field hearing in Seattle, WA, on the scientific basis for fisheries restrictions to protect Steller sea lions by NMFS. On October 18, 2011, the House Natural Resources Subcommittee on Water and Power held an oversight field hearing in Highland, CA, on the scientific basis and economic impacts of expanded critical habitat designation for the Santa Ana sucker by FWS. Section 401(1) of H.R. 4301 would have amended ESA to expand the "best scientific and commercial" language to "best scientific and economic data available at the time, including analysis of the costs and benefits of the matter under consideration."

Endangered Species and Climate Change

In another version of the debate over science and ESA, the focus is less on the use of science in ESA decision-making per se and more on the use of the act to force decisions on a scientific issue. Specifically, some have argued that the ESA might be a suitable tool to restrict greenhouse gas emissions. However, years after the theory was proffered, no published court opinion has considered this issue.

The idea is that once a species is listed, the argument could be made that sources of substantial greenhouse gas emissions, such as coal-fired power plants, cause an unlawful "take" of these species under ESA Section 9 by the effect such emissions have, via climate change, on the species' habitat. This could force negotiation of an incidental take permit for the source, with conditions to limit greenhouse gases.

Case law, however, does not demonstrate that the ESA is used as an enforcement tool to make climate change arguments. In three cases where ESA challenges were directed at federal projects related to power plants, only one involved climate change allegations, Palm Beach County Environmental Coalition v. Florida , and it was not clear whether those claims were premised on the ESA or on another legal basis. In an Eighth Circuit case, Sierra Club v. U.S. Army Corps of Engineers , a claim was made that emissions harmed specific species near the power plant, and did not allege global harm. A similar claim was made in Palm Beach County . Neither court reviewed the ESA claims, finding procedural reasons. In the third case, United States v. Pacific Gas and Electric , the court held that the ESA had not been violated; also, the claims of harm to species related to a power plant were not based on GHGs.

Despite the apparent lack of litigation premised on climate change taking species, some regulatory changes were made to limit lawsuits based on that cause of action. In December 2008, FWS changed the regulations that dictated how a Service considered impacts of federal projects on listed species. Those regulations were effective only from January 15, 2008, to May 5, 2008, after Congress acted to halt them in P.L. 111-8 . During that period of regulatory change, definitions related to the effects of an action were modified to "reinforce the Services' current view that there is no requirement to consult on [greenhouse gas] emissions' contribution to global warming and its associated impacts on listed species." Despite the revocation of those changes, it does not appear that the scope of effects has expanded, likely due to the fact that the regulations already limited review to those effects with a reasonable certainty to occur.

Another regulatory change of the same time period is still in place. It restricts lawsuits claiming incidental takes of polar bears to instances where the agency action occurs in the state of Alaska. The polar bear was listed under the act primarily due to shrinking habitat caused by changing climate. The polar bear regulation prevents a lawsuit claiming that a power plant in any state other than Alaska harmed the polar bear by indirectly causing its ice floe habitat to diminish. The law that authorized revocation of the regulations discussed above, P.L. 111-8 , also authorized revocation of the polar bear rule, but the Secretary of the Interior and the Secretary of Commerce did not act to revoke that rule. On December 7, 2010, FWS designated approximately 187,000 square miles offshore and onshore in Alaska as critical habitat for the species (75 Federal Register 76085).

Regional Resource Conflicts

As open space dwindles and increasing human populations put pressures on wildlands and natural resources, efforts to conserve species and their habitats may highlight underlying resource crises and economic conflicts. Public values and affected economic interests may be complex and sometimes at odds. The situations described below are examples of regional issues that have been the subject of recent congressional oversight and legislative interest. There are many more regional resource issues that relate to ESA and are of congressional interest.

Klamath River Basin

Controversy arose in 2001 when the Bureau of Reclamation (Department of the Interior) announced it would not release water from part of its Klamath irrigation project to approximately 200,000 acres of farm and pasture lands within the roughly 235,000-acre project service area. The operational change sought to make more water available for three fish species under ESA protection—two endangered sucker species, and a threatened coho salmon population. The Klamath Project straddles the Oregon/California border and had been the site of increasingly complex water management conflicts involving several tribes, fishermen, farmers, environmentalists, and recreationists. Upstream farmers point to their contractual rights to water from the Klamath Project and to hardships for their families if water is cut off. Others assert that the downstream salmon fishery is more valuable and that farmers could be provided temporary economic assistance, while salmon extinction would be permanent. Still others assert that there are ways to serve all interests, or that the science underlying agency determinations is simply wrong.

Specifically at issue is how to operate the bureau's project facilities to meet irrigation contract obligations without jeopardizing the three listed fish. The Trinity River diversion from the Klamath basin to central California also has ramifications for the bureau's role in the Central Valley Project (CVP). Ten-year and annual operation plans, and associated biological assessments (by the bureau) and BiOps (by FWS and NMFS) have been variously criticized and defended. On July 31, 2007, the House Natural Resources Committee held an oversight hearing on allegations of political intervention influencing scientific and policy decisions at the Department of the Interior, with respect to Klamath River salmon.

A Klamath Basin Restoration Agreement was negotiated by 29 Klamath River stakeholders and signed on February 18, 2010, to address conflicting water management objectives. A second related Klamath Hydropower Settlement Agreement may result in the removal of four dams on the Klamath River that block salmon and steelhead from historic spawning areas. On September 21, 2012, Secretary of the Interior Salazar announced the completion of scientific and technical studies concerning the environmental and economic impacts of removing four Klamath River hydroelectric dams.

At issue for the 112 th Congress was whether to provide legislative support for the two new Klamath agreements. Parties to these agreements indicated that they would seek such legislative support from Congress. H.R. 3398 / S. 1851 would have authorized restoration of the Klamath Basin.

Gray Wolf

ESA protection for distinct population segments (DPSs) of wolves has changed back and forth since the first DPSs—Western and Eastern—were proposed in 2003. The result is an extremely complex regulatory and legal saga, in which each effort by FWS to delist the wolf or designate a DPS has been rejected by a court. The issue for the 112 th Congress was whether to attempt to delist any wolf population legislatively, to modify the effects of wolf recovery efforts, or to leave the issue to management of FWS (as affected by likely further court rulings).

In 2003, FWS determined that the two DPSs no longer needed the protection of the ESA and so they were delisted. The Western and Eastern DPS designations and delistings were nullified by courts. In 2007, FWS designated a Western Great Lakes DPS and simultaneously delisted it. And in early 2008, FWS also designated and delisted the Northern Rocky Mountains DPS. However, courts found both delistings flawed and vacated both rulemakings.

In December 2008, FWS responded by returning the wolves in the Western Great Lakes and parts of the Northern Rocky Mountains areas to their former protected status, eliminating the DPS designations. That same rulemaking returned wolves in southern Montana, southern Idaho, and all of Wyoming to the status of "nonessential experimental populations"—their status before the DPS efforts. In April 2009 FWS published notices establishing DPSs in the Western Great Lakes and the Northern Rockies and delisting both populations, except in Wyoming. FWS was sued for the Western Great Lakes delisting and settled the case, returning the population to its previous status (threatened or endangered, depending on location). A court held in August 2010 that the Northern Rockies delisting violated the ESA, directing that the delisting be declared invalid. The Northern Rockies wolves were returned to their experimental population status, meaning they are treated as threatened in most circumstances. Meanwhile, scientists argue that allowing Congress to remove or add protections for particular species would set a dangerous precedent.

However, Congress negated the effect of the August court decision when it approved the following language in P.L. 112-10 ( H.R. 1473 ):

Sec. 1713. Before the end of the 60-day period beginning on the date of enactment of this Act, the Secretary of the Interior shall reissue the final rule published on April 2, 2009 (74 Fed. Reg. 15123 et seq.) without regard to any other provision of statute or regulation that applies to issuance of such rule. Such reissuance (including this section) shall not be subject to judicial review and shall not abrogate or otherwise have any effect on the order and judgment issued by the United States District Court for the District of Wyoming in Case Numbers 09-CV-118J and 09-CV-138J on November 18, 2010.

The effect was to return to the April 2009 rule, described above, establishing the DPS in the Northern Rockies and delisting those wolves, except for those in Wyoming. The gray wolf becomes the 49 th species to be delisted under ESA, although it was delisted only in the states of Montana and Idaho plus eastern Washington, eastern Oregon, and north-central Utah. (It remains listed as either endangered or threatened in all of the other lower 48 states.) Of the 48 species delisted to date, none has been delisted due to specific legislative action. While there may be attempts to point to the language of P.L. 112-10 as a precedent for delisting other species, two facts are unlikely to find parallels in other species controversies: (1) FWS had previously attempted to delist the species, meaning FWS believed the science supported delisting; and (2) the species had met and exceeded the numeric goals for delisting in the species' recovery plan, although the genetic connectivity was disputed. The language of Section 1713 blocks judicial review of reissuance of the rule, and it appears to leave open the option for a subsequent proposal to re-list the species or to delist Wyoming's wolves.

Also in April 2011, FWS took action addressing wolves in other parts of the United States. FWS has proposed to delist the wolves in the Western Great Lakes and to recognize wolves in the eastern states as a different species ( Canis lycaon ) from the wolves found in most of the rest of the country:

After reviewing the latest available scientific and taxonomic information, the Service now recognizes the presence of two species of wolves in the Western Great Lakes: the gray wolf ( Canis lupus ), the wolf species currently listed under the ESA, and the eastern wolf ( Canis lycaon ), with a historical range that includes portions of eastern Canada and the northeastern United States. Recent wolf genetic studies indicate that what was formerly thought to be a subspecies of gray wolf ( Canis lupus lycaon ) is actually a distinct species ( Canis lycaon ). To establish the status of this newly recognized species, the Service is initiating a review of Canis lycaon throughout its range in the United States and Canada.

As with the many controversies surrounding wolf conservation, these proposals may also be subject to litigation and come to congressional attention.

Other bills in the 112 th Congress (besides H.R. 1473 ) proposed revising gray wolf protection. H.R. 509 and S. 249 would have amended ESA to prevent it from applying to the gray wolf, eliminating wolf protection throughout the United States. H.R. 510 would appear to have proposed amending the ESA to prohibit protection of gray wolves in Idaho and Montana under the act. S. 321 would have given the rulemaking addressed by P.L. 112-10 , Section 1713, the force of law, rather than regulation.

These bills were not pursued in light of passage of the Appropriations Act language. However, H.R. 838 addressed wolves in the Great Lakes area. It mirrored the language in H.R. 510 , appearing to prevent protecting the wolf under the ESA. This approach may become moot, provided that the FWS proposal for the Western Great Lakes delisting is finalized. H.R. 1819 would have amended ESA to provide for state management of population segments of gray wolves. Section 119 of H.R. 2584 would have declared that any final rule by FWS that determines the gray wolf in Wyoming or any of the states within the range of the Western Great Lakes Distinct Population Segment of the gray wolf not to be endangered or threatened is not to be subject to judicial review if the state has entered into an agreement with the Secretary of the Interior that authorizes the state to manage gray wolves. H.R. 3453 would have amended ESA to authorize permits for takings of wolves to protect from wolf depredation in states where wolf populations exceed the recovery goals in an ESA recovery plan.

Delta Smelt

Delta smelt ( Hypomesus transpacificus ) is a small, slender-bodied fish found only in the San Francisco Bay and Sacramento-San Joaquin Rivers Delta in California (Bay-Delta), where they were once abundant. The species was listed as threatened under ESA in 1993 and, in recent years, its abundance has declined to the lowest ever observed. The decline has been attributed to a combination of several factors, including entrainment (i.e., entrapment) in water export pumps, competition and predation from exotic fish species, warmer water temperatures, toxic contaminants, changes in habitat size and quality, and changes in food supply. The contribution of each factor in causing the species decline is controversial. Some contend that all causes might contribute to the observed decline.

The delta smelt decline has significant consequences for the operation of the federal Central Valley Project (CVP) and the State Water Project (SWP), which supply water to much of Central and Southern California. Because entrainment and/or adverse modification of delta smelt critical habitat by water pumps is believed to contribute to the decline of delta smelt, changes in how these pumps are operated have triggered consultation under ESA. ESA requirements following consultation have contributed to reduced pumping and less water for users, which has been very controversial.

To address the impact of pumping changes on delta smelt, an ESA Section 7 consultation between FWS and the Bureau of Reclamation was initiated in 2004. FWS initially issued a no-jeopardy BiOp with regard to impacts on delta smelt by the operations of the CVP and SWP in 2004, and re-issued the BiOp in 2005 to address potential critical habitat issues of the delta smelt. In May 2007, the FWS BiOp was found not to comply with ESA with regard to delta smelt. The Bureau of Reclamation and FWS reinitiated consultation based on new information on the delta smelt in 2007. While the consultation process was underway, the Bureau of Reclamation implemented interim protective measures required by a court order issued in December 2007. A revised BiOp was issued December 15, 2008. FWS determined that the continued operation of water projects in the Bay-Delta, as described in the CVP Operations Criteria and Plan (OCAP) biological assessment, was likely to jeopardize the continued existence of the delta smelt and adversely modify its critical habitat. Along with the revised BiOp, FWS outlined reasonable and prudent alternatives (RPAs) intended to protect each life-stage and critical habitat of the delta smelt, which resulted in reduction in water deliveries for many water users south of the Delta. These RPAs have been the subject of further litigation and much controversy. With more abundant water in the winter of 2011, the parties were able to agree on water flow levels through June 30, 2011, perhaps marking the first spring without litigation over water flow since the BiOp was issued.

At issue during the 112 th Congress were congressional oversight of proposals to change operations and authorities for the Bureau of Reclamation's Central Valley Project and environmental and/or economic damages from federal water project operations. In the 112 th Congress, H.R. 1 (seeking to provide continuing appropriations for the remainder of FY2011) included language that would have prohibited funds from being used by NMFS and FWS for implementing certain actions described in BiOps for the operations of the Central Valley Project and the California State Water Project (§1475, Division B, Title IV). On February 19, 2011, the House passed H.R. 1 (amended). However, the prohibition language was not included in P.L. 112-10 ( H.R. 1473 ), the Full-Year Appropriations Act of 2011. H.R. 1251 , Section 108 of H.R. 1837 , and Title V of S. 2365 would have provided congressional direction for ESA compliance as it related to operation of the Central Valley Project and the California State Water Project; H.R. 1837 was reported (amended) by the House Committee on Natural Resources on February 27, 2012 ( H.Rept. 112-403 ) and passed by the House (amended) on February 29, 2012, but no further action was taken. Section 308 of H.R. 1287 , Section 4138 of S. 1720 , and S. 706 would have prohibited the Bureau of Reclamation and California state agencies from restricting operations for the Central Valley Project pursuant to any BiOp under certain conditions.

Private Property and Fifth Amendment Takings

The prohibitions in Section 9 (private actions) and Section 7 (federal nexus) at times frustrate the economic desires of owners of land or other property. This has long been a central issue for ESA's detractors, who assert that restrictions under ESA routinely "take" property in the constitutional sense of the term. Conflicts between ESA and property owners come about despite the existence of ESA mechanisms intended to soften its impact on property owners.

Under the Fifth Amendment, property cannot be "taken" by the United States without just compensation. The Supreme Court has long tried, with limited success, to define which government actions affect private property so severely as to effect such a "taking." In briefest outline, government actions usually are deemed a taking when they cause either a permanent physical occupation of private property or, through regulation, a total elimination of its economic use. When the government regulation removes only part, but not all, of the property's use or value, a three-factor balancing test is used to determine whether a taking has occurred. Although these factors remain amorphous, it is at least clear from lower court decisions that, for a taking to occur, the regulation's impact on the property generally must be severe; and with regard to the property as a whole, not just the regulated portion.

Approximately 20 court decisions have addressed takings challenges to ESA restrictions on land or other property, with all but two finding no taking. These cases have involved restrictions on timber cutting, reductions in water delivery to preserve instream flows needed by listed species (a particularly active area now), restrictions on shooting animals that were responsible for loss of livestock, and prohibitions on the transport or sale of endangered species. In several of these cases, the taking claim failed because it was filed in the wrong court or was not "ripe." Where takings claims were reached by the court, they were rejected principally because the economic impact was insufficient as to the property as a whole, or because of the long-standing principle that the government is not responsible for the actions of wild animals. Of the two decisions favoring the property owner, one, involving reduced water delivery to a water district owing to the need to maintain in-stream flows for listed fish, has been undermined by the judge who wrote it in a later decision. The other, however, instructs that when government requires water subject to appropriative water rights to be physically diverted to a fish ladder (here, for the use of a listed fish species), the diversion must be analyzed under a physical rather than regulatory taking theory. Under such a theory, as noted, the holder of water rights is generally likely to win its taking claim. In the present case, however, the trial court on remand held that the water diverted to the fish ladder had not been shown to encroach on the water actually needed by the plaintiff water district for its customers. The court therefore dismissed the case as not ripe, and it is on appeal again.

In the 1990s, critics sought to amend ESA to afford compensation for a broader range of property impacts than the Constitution provides—perhaps by specifying a fixed percentage of ESA-related property value loss, above which compensation must always be paid. No such bills were enacted.

Additional Issues and Legislative Initiatives

Concern has been expressed over the adequacy of consultation and biological opinions related to pesticides and their possible effects on ESA-listed Pacific salmon. Recent investigations indicate that about 10% of ESA-listed plants are available for purchase online, with most of these sales being illegal. On May 3, 2011, the House Committee on Agriculture and the House Committee on Natural Resources held a joint oversight hearing on pesticide registration consultations under ESA Section 7. On December 6, 2011, the House Committee on Natural Resources held an oversight hearing on ESA and whether litigation may be impeding recovery efforts. On June 19, 2012, the House Committee on Natural Resources held an oversight hearing on the cost and impact of attorney fees and time spent on ESA litigation. P.L. 112-270 amended P.L. 106-392 to maintain annual base funding for the Upper Colorado and San Juan fish recovery programs through FY2019.

Other miscellaneous issues arose for which legislation was introduced in the 112 th Congress:

H.R. 1584 would have exempted state departments of transportation from ESA consultation requirements for construction to maintain the federal-aid highway system. Section 3016 of H.R. 7 and Section 615 of H.R. 4348 (as passed by the House on April 18, 2012) would have exempted state highway and public transportation projects from ESA if the Secretary of Transportation determined that state environmental review was essentially equivalent; Section 8201 of H.R. 7 would have provided a similar exclusion for rail projects. S. 1389 , H.R. 3347 , Section 128(7) of S. 1596 , Section 139(2)(E) of S. 1786 , Section 3004(7) of H.R. 7 , Section 603(7) of H.R. 4348 (as passed by the House on April 18, 2012), and Section 127(7) of H.R. 2112 , as amended and passed by the Senate on November 1, 2011, would have exempted from ESA the reconstruction of any road, highway, or bridge damaged by a declared emergency/disaster (§8201 of H.R. 7 would have provided a similar exclusion for rail lines); on September 21, 2011, the Senate Committee on Appropriations reported S. 1596 ( S.Rept. 112-83 ). The conference agreement on H.R. 2112 (subsequently enacted as P.L. 112-55 ) did not include this provision ( H.Rept. 112-284 ). The House Committee on Transportation and Infrastructure reported (amended) H.R. 7 on February 13, 2012 ( H.Rept. 112-397 ). Section 35205 of H.R. 14 / S. 1813 , as amended and passed by the Senate on March 14, 2012, and as inserted into H.R. 4348 and passed by the Senate on April 24, 2012, would have authorized the Secretary of Transportation to delegate authority and responsibility for ESA consultation to Amtrak for high speed and intercity passenger rail projects. H.R. 1837 would have repealed the San Joaquin Restoration Settlement (§203) and ordered that no distinction be made under ESA between anadromous fish of wild and hatchery origin in the Sacramento and San Joaquin Rivers and their tributaries (§207); this bill was reported (amended) by the House Committee on Natural Resources on February 27, 2012 ( H.Rept. 112-403 ) and passed by the House (amended) on February 29, 2012. S. 2365 would have declared ESA not to apply to the Central Valley Project and the California State Water Project (§518) and ordered that no distinction be made under ESA between anadromous fish of wild and hatchery origin in the Sacramento and San Joaquin Rivers and their tributaries (§519). Section 559 of H.R. 5326 , as passed by the House (amended) on May 10, 2012, would have prohibited the expenditure of FY2013 funds by the Department of Commerce for the reintroduction of California Central Valley spring run Chinook salmon. H.R. 946 and H.R. 3069 would have amended the Marine Mammal Protection Act of 1972 to permit activities aimed at reducing marine mammal predation on threatened and endangered Columbia River salmon; on June 14, 2011, the House Natural Resources Subcommittee on Fisheries, Wildlife, Oceans, and Insular Affairs held a hearing on H.R. 946 . On December 8, 2011, the House Committee on Natural Resources reported H.R. 3069 ( H.Rept. 112-322 ). On June 19, 2012, the House passed H.R. 2578 after amending this measure to include the language of H.R. 3069 as Title VII. H.R. 2111 would have (1) required a study by the National Academy of Sciences of federal salmon recovery actions on the Columbia and Snake River (§3) and (2) authorized the Secretary of the Army to remove the four Lower Snake River dams (§8). Section 3 of H.R. 3408 / H.R. 4211 would have declared (1) the final regulations regarding oil shale management published by the Bureau of Land Management on November 18, 2008, and (2) the November 17, 2008, U.S. Bureau of Land Management Approved Resource Management Plan Amendments/Record of Decision for Oil Shale and Tar Sands Resources to Address Land Use Allocations in Colorado, Utah, and Wyoming and Final Programmatic Environmental Impact Statement, to be fully compliant with ESA. On February 9, 2012, H.R. 3408 was reported (amended) by the House Committee on Natural Resources ( H.Rept. 112-392 ), with the ESA provisions in Section 2. The House passed H.R. 3408 on February 16, 2012. H.R. 991 , Title III of H.R. 4089 , S. 1066 , and Section 102 of S. 3525 would have amended the Marine Mammal Protection Act of 1972 to allow importation of polar bear trophies taken in sport hunts in Canada before the date the polar bear was determined to be a threatened species under ESA; on May 12, 2011, the House Natural Resources Subcommittee on Fisheries, Wildlife, and Oceans held a hearing on H.R. 991 . On December 1, 2011, the House Committee on Natural Resources reported (amended) H.R. 991 ( H.Rept. 112-308 ). On April 13, 2012, the House Committee on Natural Resources reported (amended) H.R. 4089 ( H.Rept. 112-426 , Part I); on April 17, 2012, the House passed H.R. 4089 . H.R. 4043 would have established special management areas for southern sea otters to accommodate military readiness activities, and declared that ESA incidental take restrictions were not applicable in these areas during military readiness activities. On April 19, 2012, the House Natural Resources Subcommittee on Fisheries, Wildlife, Oceans, and Insular Affairs held a hearing on this bill. On July 17, 2012, the House Committee on Natural Resources reported (amended) this bill ( H.Rept. 112-606 , Part I). On May 18, 2012, the House passed H.R. 4310 after amending this measure to include the language of H.R. 4043 in Section 316. Section 233 of H.R. 1777 , Section 363 of H.R. 3400 / S. 2199 , Section 142 of H.R. 4301 , Section 301 of H.R. 4383 , Section 531 of S. 3445 , and Section 531 of H.R. 4480 as passed by the House (amended) on June 21, 2012, would have directed the Secretary of the Interior to assign personnel to agency field offices to coordinate review of federal permits for oil and gas projects on federal lands onshore and on the OCS, with expertise in ESA Section 7 consultations and preparation of BiOps. On June 15, 2012, the House Committee on Natural Resources reported (amended) H.R. 4383 ( H.Rept. 112-528 , Part I). Section 447 of H.R. 2584 would have prohibited funds from being expended to modify, cancel, or suspend the registration of a pesticide in response to a final biological opinion or other written statement issued under Section 7(b) of ESA. Section 10016 of H.R. 6083 would have placed conditions on the modification, cancellation, or suspension of a pesticide registration in response to a biological opinion; on September 13, 2012, the House Committee on Agriculture reported (amended) this measure ( H.Rept. 112-669 ), with the ESA provision now in Section 10017. Section 2(c)(2) of H.R. 1505 and Section 1401 of H.R. 2578 as passed (amended) by the House on June 19, 2012, would have extended the authority of the Secretary of Homeland Security to waive ESA for actions to secure the border within 100 miles of any international land and maritime U.S. border. On April 17, 2012, the bill was reported (amended) by the House Committee on Natural Resources ( H.Rept. 112-448 , Part I). H.R. 1719 and Section 5 of H.R. 6247 would have required power marketing administrations to inform consumers regarding costs associated with compliance for protecting species under ESA; Section 8 of H.R. 6247 would have prohibited spilling water at federal dams if such action would harm endangered fish. On September 22, 2011, the House Natural Resources Subcommittee on Water and Power held a hearing on H.R. 1719 . H.Res. 301 and S.Res. 206 expressed support for designating June 20, 2011, as "American Eagle Day," and celebrating the recovery and restoration of the bald eagle; S.Res. 206 was agreed to by the Senate on June 8, 2011. S.Res. 498 expressed support for designating June 20, 2012, as "American Eagle Day," and celebrating the recovery and restoration of this bird; this measure was agreed to by the Senate on June 19, 2012. Section 1005(c) of H.R. 2954 / S. 2474 would have directed the President to arrange for the National Academy of Sciences to study and provide a scientific review of the impact—on public health, air quality, water quality, wildlife, and the environment—of the regulations for Interagency Cooperation under the Endangered Species Act, published in the Federal Register on December 16, 2008. Section 7 of H.R. 5744 / S. 3409 would have required (1) research to determine the impact of ESA listing on forest fuel loads, and (2) endangered species recovery plans and critical habitat determinations to include wildfire risk assessment analysis. Other provisions in this bill sought to reduce threats to endangered and threatened species posed by wildfire. S. 962 and H.R. 1858 would have reauthorized and amended the Northwest Straits Marine Conservation Initiative Act, including authorizing county Marine Resources Committees; one duty of these committees would have been to assist in identifying local implications, needs, and strategies associated with the recovery of ESA-listed Puget Sound salmon. Section 101 of H.R. 909 and Section 101(a) of H.R. 3302 would have declared the Draft Proposed Outer Continental Shelf (OCS) Oil and Gas Leasing Program 2010-2015 to be fully compliant with ESA. On May 31 and June 3, 2011, the House Energy and Commerce Subcommittee on Energy and Power held hearings on H.R. 909 . Section 3 of H.R. 4094 / S. 2372 and Section 1003 of H.R. 2578 as passed by the House (amended) on June 19, 2012, would have restricted ESA implementation at the Cape Hatteras National Seashore Recreation Area; on June 15, 2012, the House Committee on Natural Resources reported H.R. 4094 ( H.Rept. 112-526 , Part I). S. 826 and H.R. 1907 would have directed the Secretary of the Treasury to establish a program to provide loans and loan guarantees to enable eligible public entities to acquire interests in real property that were in compliance with habitat conservation plans approved by the Secretary of the Interior under ESA. S. 1401 would have established a Salmon Stronghold Partnership to promote international and interagency cooperation to improve salmon management; on January 30, 2012, the Senate Committee on Commerce, Science, and Transportation reported (amended) this measure ( S.Rept. 112-140 ). Section 105(e) of H.R. 4019 would have declared that environmental reports by the Secretary of Agriculture for certain Forest Service lands would suffice as compliance with ESA. On December 31, 2012, the House Committee on Natural Resources reported (amended) this bill ( H.Rept. 112-737 , Part I). H.R. 2929 and S. 1552 would have amended ESA to provide an exception for actions carried out against grizzly bears in self-defense, defense of others, or a reasonable belief of imminent danger. The ESA currently provides for self-defense at 16 U.S.C. 1540(b)(3). S. 3500 would have amended ESA to establish a procedure for approval of certain settlements, including a requirement that settlements be approved by each state and county in which the Secretary of the Interior believed an ESA-listed species occurred. H.R. 1042 would have amended ESA to require that certain species be treated as extinct if there were not a substantial increase in the population of a species during the 15-year period beginning on the date the species was determined to be endangered. Section 562 of H.R. 5326 , as passed by the House (amended) on May 10, 2012, would have prohibited the expenditure of FY2013 funds by the Department of Commerce to implement a proposed rule for sea turtle excluder devices in shrimp trawls. H.R. 4244 would have directed the Secretary of the Interior to issue a final decision on whether to issue a permit under ESA authorizing construction of an elementary school in San Diego, CA. On June 7 and 8, 2011, amendments to S. 782 were introduced in the Senate that proposed to exempt species from ESA ( S.Amdt. 397 , sand dune lizard; S.Amdt. 429 , lesser prairie chicken). H.R. 2973 and S. 1580 would have directed the Secretary of the Interior to amend the special rule at 50 CFR 17.40(g) to permit the taking of the Utah prairie dog under ESA. Section 306(a) of H.R. 1287 , Section 4136(a) of S. 1720 , and S. 706 would have provided a temporary exemption from certain ESA restrictions in a declared emergency. Section 3 of H.R. 332 would have required compliance by all federal defense agencies with certain environmental laws, including ESA. H.R. 1806 would have amended ESA to provide that bluefin tuna not be treated as an endangered or threatened species. Section 243 of H.R. 6474 would have repealed the income tax deduction for endangered species recovery expenditures. H.R. 1400 and S. 729 would have validated the final patent for Nevada lands beneficial for desert tortoise recovery. H.R. 6219 and S. 3446 would have amended ESA to prohibit listing of four species of salamanders in Texas. S.Res. 467 would have declared May 18, 2012, as "Endangered Species Day."

ESA Appropriations

Appropriations play an important role in the ESA debate, providing funds for listing and recovery activities as well as financing consultations that are necessary for federal projects. In addition, appropriations bills have served as vehicles for some substantive changes in ESA provisions.

Fish and Wildlife Service73

Table 2 summarizes recent ESA and related funding for FWS. The Administration's FY2012 request for endangered species and related funding within FWS's Ecological Services Account was released on February 14, 2011. On March 16, 2011, in a hearing before the House Appropriations Subcommittee on Interior, Environment, and Related Agencies, FWS asked that Congress add a cap on funding for the processing of new ESA petitions, in addition to the spending restrictions it has supported on listing and critical habitat designations for a number of years. The central issue in the 112 th Congress with these appropriations focused on what level of funding might be adequate to implement the programs required by law.

On July 19, 2011, the House Committee on Appropriations reported H.R. 2584 ( H.Rept. 112-151 ), proposing significantly lower FY2012 funding for many ESA programs, and proposing ESA policy restrictions. Under this measure, funding for FWS core ESA programs would have been reduced by $36.7 million (21%) from funding enacted for FY2011 and by $43.9 million (24%) from the Administration's FY2012 request, with no funds provided for ESA listing and critical habitat activities. To further implement the ban on funding for ESA listing and critical habitat activities, additional language in this bill would have prohibited FWS from spending any funds to implement subsections (a), (b), (c), and (e) of Section 4 of ESA (except for processing petitions, developing and issuing proposed and final regulations, and taking any other steps to implement actions described in subsection (c)(2)(A), (c)(2)(B)(i), or (c)(2)(B)(ii) of such section). On July 21, 2011, President Obama threatened to veto this bill, citing specific provisions limiting ESA activities. On July 27, 2011, during floor debate in the House, H.Amdt. 735 was adopted, striking the provision relating to funding limitations relating to ESA listing and critical habitat. On December 15, 2011, a conference report was filed on H.R. 2055 , proposing FWS appropriations for FY2012 in Division E, Title I ( H.Rept. 112-331 ). On December 23, 2011, President Obama signed P.L. 112-74 ( H.R. 2055 ), providing slightly more than $237 million for FWS endangered species and related programs; FY2012 funding for FWS core ESA programs was 0.5% more than the FY2011 enacted amount and 3.5% less than the FY2012 Administration request.

The Administration's FY2013 budget request was released on February 13, 2012. The Administration proposed that FY2013 funding for endangered species programs in FWS's Ecological Services account increase by about $3.7 million (+2.1%) above the FY2012 enacted funding. In addition, the Administration proposed an increase of $12.3 million (+25.8%) for the Cooperative Endangered Species Fund above what was enacted for FY2012. On July 10, 2012, the House Committee on Appropriations reported H.R. 6091 ( H.Rept. 112-589 ), proposing significantly reduced FY2013 funding for most ESA programs. Under this measure, funding for FWS core ESA programs would have been reduced by $41.9 million (24%) from funding enacted for FY2012 and by $45.7 million (25%) from the Administration's FY2013 request. In the absence of final action on this bill, a continuing resolution, P.L. 112-175 , provided FY2013 funding through March 27, 2013, for projects and activities at the FY2012 level.

National Marine Fisheries Service

For NMFS, funding for ESA programs is included under "protected species research and management", which also includes funding authorized under the Marine Mammal Protection Act (see Table 3 ). The Administration's FY2012 request for endangered species and related funding within NMFS's Protected Species Account was released on February 14, 2011. As for FWS, above, the central issue in the 112 th Congress with these appropriations focused on what level of funding is adequate to implement the programs required by law.

On July 20, 2011, the House Committee on Appropriations reported H.R. 2596 ( H.Rept. 112-169 ), proposing significantly lower FY2012 funding for NMFS's Protected Species Program. Funding for Protected Species was proposed to be reduced by $85 million (-39%) from funding proposed in the Administration's FY2012 request. On September 15, 2011, the Senate Committee on Appropriations reported S. 1572 ( S.Rept. 112-78 ), proposing that FY2012 funding for Protected Species be reduced by more than $38 million (-18%) from that proposed by the Administration. On November 1, 2011, the Senate passed H.R. 2112 , amended to include the language of S. 1572 , as reported, in Division B, Title I. On November 14, 2011, the conference report on H.R. 2112 was filed ( H.Rept. 112-284 ), proposing slightly more than $176 million for protected species programs, about $40 million (-19%) less than the Administration's request. On November 18, 2011, President Obama signed P.L. 112-55 ( H.R. 2112 ), providing slightly more than $176 million for protected species programs.

The Administration's FY2013 budget request was released on February 13, 2012. The Administration proposed that FY2013 funding for NMFS's protected species programs in NOAA's Operations, Research, and Facilities (OR&F) account decrease by about $6.4 million (-3.6%) below the FY2012 enacted funding. On April 19, 2012, the Senate Committee on Appropriations reported S. 2323 ( S.Rept. 112-158 ), recommending that FY2012 funding for Protected Species be increased by $14.3 million (8.4%) from that proposed by the Administration and by $7.9 million (4.5%) above the FY2012 enacted funding. On May 2, 2012, the House Committee on Appropriations reported H.R. 5326 ( H.Rept. 112-463 ), recommending that FY2012 funding for Protected Species be decreased by $15.8 million (-9.3%) from that proposed by the Administration and by $22.2 million (-12.6%) below the FY2012 enacted funding. On May 10, 2012, the House passed H.R. 5326 (amended). In the absence of final action on either bill, a continuing resolution, P.L. 112-175 , provided FY2013 funding through March 27, 2013, for projects and activities at the FY2012 level.