Endangered Species Act (ESA): The Exemption Process

Congressional Research Service (CRS) | January 27th, 2017

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 fro

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.

Endangered Species Status for the San Francisco Bay-Delta Distinct Population Segment of the Longfin Smelt

U.S. Fish and Wildlife Service (FWS) | July 30th, 2024

We, the U.S. Fish and Wildlife Service (Service), determine endangered species status under the Endangered Species Act of 1973, as amended (Act), for the San Francisco Ba

We, the U.S. Fish and Wildlife Service (Service), determine endangered species status under the Endangered Species Act of 1973, as amended (Act), for the San Francisco Bay-Delta distinct population segment (DPS) of longfin smelt (Spirinchus thaleichthys), a fish species of the Pacific Coast. This rule extends the protections of the Act to this DPS and adds it to the List of Endangered and Threatened Wildlife.... This final rule is available on the internet at https://www.regulations.gov. Comments and materials we received on the proposed rule are available for public inspection at https://www.regulations.gov at Docket No. FWS-R8-ES-2022-0082. Availability of supporting materials: Supporting materials we used in preparing this rule, such as the species status assessment report, are available at https://www.regulations.gov at Docket No. FWS-R8-ES-2022-0082.

Enhancing the Vision for Managing California’s Environmental Information

Delta Stewardship Council (Delta Council) | July 1st, 2015

The Environmental Data Summit, convened under the auspices of the Delta Stewardship Council’s Delta Science Program in June 2014, witnessed remarkable participation fro

The Environmental Data Summit, convened under the auspices of the Delta Stewardship Council’s Delta Science Program in June 2014, witnessed remarkable participation from experts across California, the nation, and even the world. Summit attendees from the public, private, federal, and non-profit sectors shared their views regarding the urgent needs and proposed solutions for California’s data-sharing and data-integration challenges, especially pertaining to the subject of environmental resource management in the era of “big data.” After all, this is a time when our data sources are growing in number, size, and complexity. Yet our ability to manage and analyze such data in service of effective decision-making lags far behind our demonstrated needs. In its review of the sustainability of water and environmental management in the California Bay-Delta, the National Research Council (NRC) found that “only a synthetic, integrated, analytical approach to understanding the effects of suites of environmental factors (stressors) on the ecosystem and its components is likely to provide important insights that can lead to enhancement of the Delta and its species” (National Research Council 2012). The present “silos of data” have resulted in separate and compartmentalized science, impeding our ability to make informed decisions. While resolving data integration challenges will not, by itself, produce better science or better natural resource outcomes, progress in this area will provide a strong foundation for decision-making. Various mandates ranging from the California Water Action Plan to the President’s executive order demanding federal open data policies demonstrate the consensus on the merits of modern data sharing at the scale and function needed to meet today’s challenges. This white paper emerges from the Summit as an instrument to help identify such opportunities to enhance California’s cross-jurisdictional data management. As a resource to policymakers, agency leadership, data managers, and others, this paper articulates some key challenges as well as proven solutions that, with careful and thoughtful coordination, can be implemented to overcome those obstacles. Primarily featured are tools that complement the State’s current investments in technology, recognizing that success depends upon broad and motivated participation from all levels of the public agency domain. This document describes examples, practices, and recommendations that focus on California’s Delta as an opportune example likely to yield meaningful initial results in the face of pressing challenges.  Once proven in the Delta, however, this paper’s recommended innovations would conceivably be applied statewide in subsequent phases.

Enhancing Water Supply through Invasive Plant Removal: A Literature Review of Evapotranspiration Studies on Arundo Donax

Nature Conservancy | February 11th, 2019

Removal of the invasive, non-native plant Arundo donax (Arundo, giant reed) along riparian corridors is being considered by groundwater sustainability agencies

Removal of the invasive, non-native plant Arundo donax (Arundo, giant reed) along riparian corridors is being considered by groundwater sustainability agencies as a potential water savings strategy that could provide co-benefits for groundwater sustainability as well as native ecosystem restoration. Arundo is a fast growing, densely vegetated reed that has purportedly high-water consumption (i.e., transpiration). This paper is intended to help agencies develop estimates of the water supply benefits that could be realized from Arundo removal.

Ensuring the Public Trust

University of California, Davis (UC Davis) | July 1st, 2012

The California Supreme Court's recognition of the public trust doctrine as an integral part of California's water rights system was one of the momentous events in the h

The California Supreme Court's recognition of the public trust doctrine as an integral part of California's water rights system was one of the momentous events in the history of California (if not United States) environmental policy.' The court looked back to the foundational purposes of the public trust to hold that there are limits to the sovereign power to privatize the rights to use the waters of the state, and it looked forward to conclude that prudent development and sustainable use of California's water resources require the state to retain authority to protect the public trust for the benefit of all Californians. The court also defined the public trust as an environmental baseline that both protects the traditional interests of navigation, commerce, and fisheries and embodies the contemporary scientific and popular understanding that there are ecological limits to the diversion and use of water for consumptive purposes. The lessons of National Audubon Society v. Superior Court2 are now a commonplace of water rights law, appearing not just in administrative orders and judicial opinions, but also in standard water rights terms, policy studies, and legislation.

Environmental Baseline Biological Resources - Fauna, Total Water Management Study for the Central Valley, California

U.S. Bureau of Reclamation (USBR) | January 1st, 1975

Environmental Water Transactions in the Colorado River Basin: A Closer Look

Stanford University | November 14th, 2018

Over the last 30 years, the voluntary transfer of water and water rights for environmental uses has become a recognized strategy for restoring streamflow in the Western

Over the last 30 years, the voluntary transfer of water and water rights for environmental uses has become a recognized strategy for restoring streamflow in the Western United States. Historically, taking water out of a stream was a legally required element of an appropriative water right. Water rights holders who left all or a portion of their right instream to enhance fish populations, riparian habitat or recreation, risked forfeiture or diminishment of their water right. Beginning in the 1980’s, state laws began to recognize both the appropriation of new water rights for instream use and to allow the transfer and amendment of existing appropriative rights for those uses. Click here for previous report.

Envisioning Futures for the Sacramento-San Joaquin Delta

Public Policy Institute of California (PPIC) | January 25th, 2007

California’s Sacramento-San Joaquin Delta is widely perceived to be in crisis today: its levee system is fragile, many of its native species are declining rapidly, and

California’s Sacramento-San Joaquin Delta is widely perceived to be in crisis today: its levee system is fragile, many of its native species are declining rapidly, and it lacks strong governing institutions to deal with its problems. In its current state, the Delta is unsustainable for almost all stakeholders. This report provides a comprehensive, scientifically up-to-date analysis and outlines several alternative management strategies for the Delta.

Ephemeral floodplain habitats provide best growth conditions for juvenile Chinook salmon in a California river

Environmental Biology of Fishes (Springer) | June 6th, 2008

We reared juvenile Chinook salmon for two consecutive flood seasons within various habitats of the Cosumnes River and its floodplain to compare fish growth in river and

We reared juvenile Chinook salmon for two consecutive flood seasons within various habitats of the Cosumnes River and its floodplain to compare fish growth in river and floodplain habitats. Fish were placed in enclosures during times when wild salmon would naturally be rearing in floodplain habitats. We found significant differences in growth rates between salmon reared in floodplain and river enclosures. Salmon reared in seasonally inundated habitats with annual terrestrial vegetation experienced higher growth rates than those reared in a perennial pond on the floodplain. Growth of fish in the non-tidal river upstream of the floodplain varied with flow in the river. When flows were high, there was little growth and high mortality, but when the flows were low and clear, the fish grew rapidly. Fish displayed very poor growth in tidally influenced river habitat below the floodplain, a habitat type to which juveniles are commonly displaced during high flow events due to a lack of channel complexity in the main-stem river. Overall, ephemeral floodplain habitats supported higher growth rates for juvenile Chinook salmon than more permanent habitats in either the floodplain or river. Variable responses in both growth and mortality, however, indicate the importance of providing habitat complexity for juvenile salmon in floodplain reaches of streams, so fish can find optimal places for rearing under different flow conditions.

Estimated Ground-Water Discharge by Evapotranspiration from Death Valley, California, 1997–2001

U.S. Geological Survey (USGS) | July 1st, 2003