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Summary:
The 109th Congress is likely to consider 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 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 108th Congress, two bills were reported by the House Committee on Resources, but not enacted, that would have amended the ESA to modify scientific peer review and critical habitat procedures. Interior appropriations measures funded Fish and Wildlife Service programs related to endangered species (P.L. 108-108 provided $265 million for FY2004; P.L. 108-447 provided $262 million for FY2005). P.L. 108-136 (Defense authorization) included an ESA amendment to direct that critical habitat not be designated on military lands under certain conditions when Integrated Natural Resources Management Plans are in effect.
P.L. 108-137 (Energy and Water appropriations) prohibited use of FY2004 or earlier funds to reduce water deliveries under existing contracts for ESA compliance for the silvery minnow on the Middle Rio Grande River unless water is obtained from a willing seller or lessor; this prohibition appears to have been made permanent by §205 of Div. C of P.L. 108-447. P.L. 108-148 (Healthy Forests Act) authorized hazardous fuels reduction projects on BLM and national forest lands, including those containing habitat for listed species; directed establishment of a healthy forests reserve program to promote recovery of listed species; and directed the Secretary of the Interior to provide property rights assurances to landowners enrolled in the healthy forests reserve program.
