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

Publication Date: May 2006

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Environment

Type:

Abstract:

The 109th Congress is considering various proposals to amend the Endangered Species Act of 1973 (ESA; P.L. 93-205, 16 U.S.C. §§1531-1543). Major issues in recent years have included changing the role of science in decision-making, modifying critical habitat (CH) procedures, reducing conflicts with Department of Defense activities, incorporating further protection and incentives for property owners, and increasing protection of listed species, among others. In addition, many have advocated enacting as law some ESA regulations promulgated during the Clinton Administration.

The ESA has been one of the more contentious environmental laws. This may stem from its strict substantive provisions, which can affect the use of both federal and nonfederal lands and resources. Under the ESA, species of plants and animals (both vertebrate and invertebrate) can be listed as endangered or threatened according to assessments of their risk of extinction. Once a species is listed, powerful legal tools are available to aid its recovery and protect its habitat. The ESA may also be controversial because dwindling species are usually harbingers of broader ecosystem decline: the most common cause of listing species is habitat loss.

The authorization for spending under the ESA expired on October 1, 1992. The prohibitions and requirements of the ESA remain in force, even in the absence of an authorization, and funds have been appropriated to implement the administrative provisions of the ESA in each subsequent fiscal year. In the 109th Congress, H.R. 3824 and S. 2110 propose to extensively amend and reauthorize the ESA; the House passed H.R. 3824 (amended) on September 29, 2005.

Other bills under consideration in the 109th Congress would modify the definition of CH as well as the process for determining and designating CH (H.R. 1299) or would amend the ESA to limit CH designation for certain aquatic habitats (H.R. 1837). Several bills would expand species eligible for assistance from the Multinational Species Conservation Fund by creating a Flagship Species Conservation Fund (H.R. 93), by creating a Great Cats and Rare Canids Conservation Fund (H.R. 1707), or by creating a Crane Conservation Fund (S. 943/H.R. 3520).

Also in the 109th Congress, bills would authorize the Bureau of Reclamation to assist in implementing fish passage and screening facilities at non-federal water projects in the Columbia River Basin to meet ESA obligations (S. 232) or would require analysis of federal salmon recovery efforts and a study of the effects of partially removing four lower Snake River dams, and would authorize partial removal of these dams under certain conditions (H.R. 1615). Section 3 of H.R. 411 proposes compensation for ESA activities that eliminate or reduce grazing privileges.

S. 260 and H.R. 2018 propose to expand the authority of the Secretary of the Interior to assist landowners in restoring and managing endangered and threatened species habitat on private land through the Partners for Fish and Wildlife Program. Section 365 of P.L. 109-58, the Energy Policy Act of 2005, establishes a pilot project in Wyoming, Montana, Colorado, Utah, and New Mexico designed to improve coordination of federal permits, including ESA §7 permits.