Endangered Species Act (ESA): The Exemption Process

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 a project 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, with examples from past controversies.

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 project, and wish to proceed regardless of those effects. 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 federal action agency (or the affected license or permit applicant) may apply for an exemption in order to proceed with the project despite effects on listed species or their critical habitat.

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), timber sales (OR), and in three other instances when the process began, but was aborted before a decision was reached. In addition, there was a period of fairly recent interest in invoking the process in light of controversies over water management in California, although no application has 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.