Endangered Species Act (ESA): The Exemption Process (CRS Report for Congress)
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| Release Date |
Revised Jan. 27, 2017 |
| Report Number |
R40787 |
| Report Type |
Report |
| Authors |
M. Lynne Corn and Betsy A. Cody, Specialists in Natural Resources Policy; Kristina Alexander, Legislative Attorney |
| Source Agency |
Congressional Research Service |
| Older Revisions |
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Summary:
The Endangered Species Act (ESA) is designed to protect species from extinction, but it includes
an exemption process for those unusual cases where the public benefit from an action is
determined to outweigh the harm to the species. This process was created by a 1978 amendment
to the ESA, but it is rarely used. This report will discuss the exemption process for an agency
action, with examples from past controversies, and its potential for application to actions that may
affect current controversies, such as water supply.
The ESA mandates listing and protecting species that are endangered or threatened with
extinction. Listing a species limits activities that could affect that species and provides penalties
for taking individuals of that species. The ESA also requires federal agencies to consult with the
Fish and Wildlife Service or the National Marine Fisheries Service (together, the Services) to
determine whether a federal action may jeopardize the continued existence of a species or harm
its critical habitat. The consultation process may lead to an opinion by one of the Services that the
action will jeopardize listed species or harm their critical habitats unless certain reasonable and
prudent alternatives are included in the action.
Rarely, the federal action agency may hold that those alternatives are inconsistent with the agency
action. In other extremely rare cases, the Services may find that no alternatives are available that
would allow the project to proceed and still prevent jeopardy. In either case, the following are the
categories of potential applicants that can apply for an exemption for a federal action despite its
effects on listed species or their critical habitat:
the federal action agency interested in proceeding with the action,
an applicant for a federal license or permit whose application was denied
primarily because of the prohibitions of ESA requiring that federal agency
actions avoid jeopardy to threatened or endangered species or harm to their
critical habitats, or
the governor of the state where the action was to have occurred.
An exemption application is considered by a specially convened committee which may exempt
the federal agency’s action from the prohibitions of the ESA. The exemption process allows
major economic factors to be judged to outweigh the ESA’s mandate to recover a species when
the federal action is found to be in the public interest and is nationally or regionally significant.
The exemption process has been invoked with a dam on the Tellico River (TN), a water project in
the Platt River (WY and NE), and timber sales (OR). In three other instances, the process was
begun but was aborted before a decision was reached. In addition, there has been interest over the
years in invoking the process in light of controversies over management of federal and state water
resource projects in California, although no application has ever been filed. When a project
achieves such levels of controversy, Congress is sometimes asked to intervene in the outcome, as
it did in the case of the Tellico Dam and an endangered fish in the late 1970s.
