Major issues in reauthorization of the Endangered Species Act.
I. Three Basic Components of the ESA 1. (architecture) ESA - Enterprise Systems Architecture.
2. (body) ESA - European Space Agency.
A brief summary of the basic. building blocks of the Endangered Species Act The federal Endangered Species Act of 1973 (ESA) (16 U.S.C.A. §§ 1531 et seq.) was enacted to protect animal and plant species from extinction by preserving the ecosystems in which they survive and by providing programs for their conservation. (ESA)(1) is important in understanding the major issues that will be addressed in the coming reauthorization.(2) key element in this reauthorization involves the interrelationship in·ter·re·late
tr. & intr.v. in·ter·re·lat·ed, in·ter·re·lat·ing, in·ter·re·lates
To place in or come into mutual relationship.
in of these basic building blocks, which include the process for listing endangered and threatened species, restrictions on federal agency actions, and generally prohibited acts.
Depending largely upon whether a species swims in salt water, either the Secretary of the Interior, through the United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. Fish and Wildlife Service (FWS), or the Secretary of Commerce, through the National Marine Fisheries Service The U.S. National Marine Fisheries Service (NMFS) is a United States federal agency. A division of the National Oceanic and Atmospheric Administration (NOAA) and the Department of Commerce, NMFS is responsible for the stewardship and management of the nation's living marine (NMFS NMFS National Marine Fisheries Service
NMFS National Mortality Followback Survey
NMFS Network Multimedia File System
NMFS Nested Mount File System ), is charged with responsibility under section 4 of the ESA for listing any species, subspecies subspecies, also called race, a genetically distinct geographical subunit of a species. See also classification. , or "distinct population" that is endangered or threatened.(3) At the time of listing, FWS and NMFS must determine two things: whether the species should be listed as either "endangered" or "threatened"(4) and whether the agencies should designate "critical habitat" for a listed species.(5)
The listing of a species as either endangered or threatened then triggers prohibitions applicable to both the federal government and to other "persons." The prohibitions imposed on federal agency actions are contained in section 7 of the ESA, which requires all federal agencies to consult with FWS and NMFS and to carry out programs for the conservation of listed species.(6) Section 7 broadly prohibits any federal agency action that is likely to jeopardize the continued existence of any listed species or to adversely affect critical habitat designated during the listing process.
The listing of a species also triggers prohibitions imposed under section 9 of the ESA that apply to 'any person subject to the jurisdiction of the United States."(8) Section 9 basically prohibits anybody from doing acts that would result in the "taking" of a listed species.(9) On its face, section 9 applies only to endangered species endangered species, any plant or animal species whose ability to survive and reproduce has been jeopardized by human activities. In 1999 the U.S. government, in accordance with the U.S. , not to threatened species,(10) and that is an important distinction. However, the taking prohibitions of section 9 have been defined both by regulation and by case law to extend protection to threatened species" and to activities that affect critical habitat in a manner sufficiently severe to make it likely that death or destruction of the species could result from that habitat modification.(12)
The third basic component of the endangered species program is the recovery planning process contained in section 4 of the ESA.(13) Section 4 directs FVS FVS Forest Vegetation Simulator (USDA Forest Service)
FVS Florida Virtual School
FVS Fighting Vehicle System
FVS Fetal Valproate Syndrome
FVS Fetal Varicella Syndrome
FVS Foreign Visit System
FVS Flight Vehicle Simulator and NMFS to develop recovery plans for any listed species unless the agency "finds that such a plan will not promote the conservation of the species."(14) The recovery plans have as their objective the 'conservation and survival" of listed species.(15) This conservation objective is separate and distinct from the no jeopardy/no adverse modification of habitat requirements of section 7.(16) "Conservation" is one of the more important terms in the ESA, and it generally is defined to mean those "methods and procedures" necessary to enable the listing agency to delist delist
To drop a security from trading on an organized exchange. Delisting may occur for a number of reasons including failure to meet an exchange's standards or placement of a new listing on another exchange. Compare list. the species.(17)
II. MAJOR ISSUES IN REAUTHORIZATION
The fundamental issue in reauthorizing the Endangered Species Act is how to take these basic building blocks and relate them together so the program works better as a whole. What ought to be the relationship between the taking prohibitions of section 9, the jeopardy prohibitions of section 7, and the recovery obligations of section 4? Under the current program, there is no explicitly well-defined relationship at all.
For example, section 9 circles the other elements of the endangered species programs like an orbiting moon. Section 9 simply says, as a legal and biological matter, that it is a bad idea to allow people to act in a way that will kill individuals of an endangered species. But section 9 is not in explicitly tied to the larger issues of avoiding jeopardy to the species as a whole under section 7 or undertaking a recovery program for the species as a whole under section 4. I raise this point now because the reauthorization effort will involve many arguments that the section 9 prohibitions ought to bear some distinct relationship to the other elements of the endangered species program.
Similarly, does it make sense to require that the listing agency also designate critical habitat at the time when a species is listed?(18) If the designation of critical habitat is to serve a useful function in the program, when should that designation occur? Some will argue that habitat designation does not serve a useful function, and in fact, critical habitat has been defined by regulation in a manner that makes it largely meaningless under section 7.(19) However, if habitat designation is to serve a useful purpose, when should it occur and what relationship should it have with the recovery program in section 4 and the taking prohibitions in section 9? These are good questions that presently have no very good generally accepted answer.
Another question will undoubtedly arise in the reauthorization effort regarding how to define "species."(20) I personally hope this question is not answered by the legislature. One of my worst nightmares envisions a congressional floor debate regarding the definition of "subspecies" or distinct population."(21) This is an inherently scientific issue with no real place in the legislative process, and it should be resolved by scientists. The National Academy of Sciences is conducting a study that addresses this issue in part. The issue should remain in the scientific forum, but there is no doubt that the subject will arise in the reauthorization effort. The question is whether Congress will attempt to redefine "species" in a political forum, and if so, what function that new definition will serve.
The reauthorization effort also will involve the question of what ought to be the goal of habitat conservation To conserve habitat life for wild species and prevent their extinction or reduction in range is a priority of a great many groups that cannot be easily characterized in terms of any one ideology. in the endangered species program generally.(22) This is a more general issue than that of critical habitat designation. Ought the federal efforts to conserve endangered species continue to target the conservation of individual species and subpopulations?(23) Or ought these efforts more properly focus on conservation of important ecosystems? If we are to focus our efforts on ecosystem conservation, a second important issue arises: what ought to be the relationship of those broad ecosystem conservation efforts to the conservation of individual species and subspecies under the ESA? This question is being joined in earnest in the Pacific Northwest as it relates to conservation of old-growth forest ecosystems Forest ecosystem
The entire assemblage of organisms (trees, shrubs, herbs, bacteria, fungi, and animals, including people) together with their environmental substrate (the surrounding air, soil, water, organic debris, and rocks), interacting inside a defined and their dependent species.
Another issue originating in the Pacific Northwest involves the role of states and private parties in national efforts to conserve our biological resources. As a practical matter, should the federal government assume primary responsibility for these efforts, or should we involve the states and private parties as equal partners? The answer is not simple, and it may depend on a case-by-case evaluation. But the issue will be joined during the reauthorization process, and it presents an entire set of complicated intergovernmental institutional and political challenges not adequately recognized by the current ESA.
We also must try to avoid "train wrecks train wreck Medtalk A popular term for a multiproblem Pt in critical condition " where we can, meaning that we may want to develop a system of conservation efforts at the prelisting stage. This would allow federal and state agencies and private landowners to develop conservation programs for at-risk species that have not yet been listed under the ESA.(24) However, if we are to encourage earlier conservation efforts where more options might be available, then what relationship should we establish between those early efforts and later obligations that may arise under the ESA? To what degree can we promise landowners that, if they undertake early conservation efforts, they will be able to avoid further obligations if the targeted species later is listed under the ESA?
These questions also emerge when viewing the ESA in conjunction with other statutes such as the Clean Water Act(25) and the Coastal Zone Management Act The Coastal Zone Management Act of 1972 (16 USC 1451-1464, Chapter 33; Pub.L. 92-583, October 27, 1972; 86 Stat. 1280) was an Act of the United States Congress passed in 1972 to encourage coastal states to develop and implement coastal zone management plans. .(26) The intersection of efforts under the Clean Water Act to protect aquatic health and obligations under the ESA to conserve listed fish species is important. Administrative initiatives are underway to develop watershed protection The term watershed refers to an area of land that drains precipitation that falls on it to a common point. These points could be streams, lakes, etc. Precipitatoin falling on any part of a watershed can travel quickly on the surface of the land, known as surface runoff, or travel through options for the federal forests that may attempt to connect conservation under the ESA with state water quality standards and the development of total maximum daily loads (TMDLs) for those affected streams.(27) But I do not think there has been an adequate effort to weave together the elements of the ESM (1) (Enterprise Storage Management) Managing the online, nearline and offline storage within a large organization. It includes analysis of storage requirements as well as making routine copies of files and databases for backup, archiving, disaster recovery, (28) with key provisions of the Clean Water Act such as the water quality planning program,(29) the nonpoint source pollution Nonpoint source pollution (NPS) does not come from a single source like point source pollution. It comes from many different sources with no specific solution to rectify the problem, making it difficult to regulate. control program,(30) and the national estuary estuary (ĕs`chĕr'ē), partially enclosed coastal body of water, having an open connection with the ocean, where freshwater from inland is mixed with saltwater from the sea. program.(31) Nor has there been any weave between the ESA and the nonpoint non·point
Not found or located at a single, definable point, as pollution whose source cannot be ascertained. program for coastal waters established in the 1990 amendments to the Coastal Zone Management Act.(32) Yet, the obligations under the ESA and these other statutes involve management of common ecosystems.
Finally, reauthorization will raise the age-old question regarding when we ought to consider our decisions final and when those decisions might be reopened on the basis of new information. This question gets to the heart of the controversy regarding our ability to promise landowners that early conservation efforts will allow them to avoid later prohibitions under the ESA. We generally would love to make those promises, but such commitments may and should be rendered obsolete within a few years by the generation of new scientific evidence. Consequently, we need to consider when and under what circumstances we ought to reopen yesterday's decision based on today's new information.
The single most important obstacle confronting the reauthorization process involves the controversy in the Pacific Northwest regarding old-growth forest ecosystems. If this continuing controversy is resolved, it probably will serve as a springboard for the general reauthorization. The converse is also true--a failure to resolve the old-growth controversy will impair the ultimate success of the ESA reauthorization. A related issue in the Pacific Northwest concerns the development of conservation and recovery programs for the listed species of salmon in the Columbia and Snake River Snake River
River, northwestern U.S. It is the largest tributary of the Columbia River and one of the most important streams in the Pacific Northwest. It rises in the mountains of Yellowstone National Park in Wyoming and flows south and west through Idaho, turning north at systems.(33) If this effort to develop a conservation program for the salmon stalls in the same way that the effort to produce a conservation program for the northern spotted owl The Northern Spotted Owl, Strix occidentalis caurina, is one of three Spotted Owl subspecies. A Western North American bird in the family Strigidae, genus Strix, it is a medium-sized dark brown owl sixteen to nineteen inches in length and one to one and one sixth pounds. stalled, then the reauthorization process will be hindered. However, if these obstacles can be overcome, then the reauthorization process will present an opportunity to integrate the programs contained in the ESA and relate them to other government programs aimed at ecosystem protection. (1.) Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544 (1988). (2.) Appropriations to implement the ESA have been authorized only through fiscal year 1992. 16 U.S.C. [sections] 1542. (3.) 16 U.S.C. [sections] 1533(a). Protection under the ESA may extend to "any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate vertebrate, any animal having a backbone or spinal column. Verbrates can be traced back to the Silurian period. In the adults of nearly all forms the backbone consists of a series of vertebrae. All vertebrates belong to the subphylum Vertebrata of the phylum Chordata. fish or wildlife which interbreeds when mature." 16 U.S.C. [sections] 1532(16). FWS listings of endangered and threatened species may be found at 50 C.F.R. [subsections] 17.11-17.12 (1992). NMFS listings may be found at 50 C.F.R. 222.23(a) (1992) and 50 C.F.R. [sections] 227.4 (1992). (4.) 16 U.S.C. [sections] 1533(a). A species is endangered if it is "in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. [sections] 1532(6). A species is threatened if it is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. [sections] 1532(20). The factors for determining whether a species is endangered or threatened are provided at 16 U.S.C. [sections] 1533(a)(1). (5.) Endangered Species Act of 1973, 16 U.S.C. [sections] 1533(a)(3)(a) (1988). Critical habitat" includes "the specific areas within the geographical area occupied by the species ... on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection" as well as 'specific areas outside the geographical area occupied by the species ... essential for the conservation of the species." 16 U.S.C. [sections] 1532(5)(A). (6.) 16 U.S.C. [sections] 1536(a)(1). This 90-day formal consultation process is elaborated further in section 7(b), and the consultation concludes when FWS or NMFS issues an opinion regarding whether the proposed agency action would jeopardize the existence of the species or adversely modify its critical habitat. 16 U.S.C. [sections] 1536(b). (7.) 16 U.S.C. [sections] 1536(a)(2). The only exception to this prohibition occurs if the Endangered Species Committee established under section 7(e) grants an exemption to the agency pursuant to section 7(h). 16 U.S.C. [sections][sections] 1536(a)(2), 1536(e), and 1536(h). (8.) 16 U.S.C. [sections] 1538(a). (9.) 16 U.S.C. [sections] 1538(a). A person commits a taking if they "harass harass (either harris or huh-rass) v. systematic and/or continual unwanted and annoying pestering, which often includes threats and demands. This can include lewd or offensive remarks, sexual advances, threatening telephone calls from collection agencies, hassling by , harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" a listed species. 16 U.S.C. [sections] 1532(19). Definition of these terms has been further developed by regulation. See 50 C.F.R. [sections] 17.3 (1992). (10.) Endangered Species Act of 1973, 16 U.S.C. [sections] 1538(a)(1988). (11.) See 50 C.F.R. [sections] 17.31(a) (1992). Section 4(d) of the ESA expressly grants FWS and NMFS the authority to issue regulations extending the section 9 prohibitions to protect threatened species. 16 U.S.C. [sections] 1533(d). See also Sweet Home Chapter of Communities for a Great Oregon v. Lujan, 806 F. Supp. 279, 282-86 (D. D.C. 1992) (upholding extension of harm regulation to cover threatened species). (12.) The definition of "harm" in the FWS regulations specifically includes significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavior patterns, including breeding, feeding or sheltering." 50 C.F.R. [sections] 17.3 (1992). See Sierra Club Sierra Club, national organization in the United States dedicated to the preservation and expansion of the world's parks, wildlife, and wilderness areas. Founded (1892) in California by a group led by the Scottish-American conservationist John Muir, the Sierra Club v. Yeutter, 926 F.2d 429, 438 (5th Cir. 1991) (finding harm to the red-cockaded woodpecker About the size of the Northern Cardinal, the Red-cockaded Woodpecker (Picoides borealis) is approximately 20-22 cm long, with a wingspan of about 35 cm. Its back is barred with black and white horizontal stripes. resulting from failure to remove midstory hardwood which led to abandonment of cavity trees by the woodpecker woodpecker, common name for members of the Picidae, a large family of climbing birds found in most parts of the world. Woodpeckers typically have sharp, chisellike bills for pecking holes in tree trunks, and long, barbed, extensible tongues with which they impale ). Contra Sweet Home Chapter of Committees for a Great Oregon v. Babbitt, No. 92-5255 (D.C. Cir. Mar. 11, 1994). (13.) Endangered Species Act of 1973, 16 U.S.C. [sections] 1533(f)(1988). (14.) Id. [sections] 1533(f)(1). (15.) Id. [sections] 1533(f)(1). (16.) Id. [sections] 1536(a)(2). (17.) Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. Endangered Species Act of 1973, 16 U.S.C. [sections] 1532(3) (1988). (18.) 16 U.S.C. [sections] 1533(a)(3)(a) requires designation of critical habitat at the time of listing. This designation may be revised later pursuant to 16 U.S.C. [sections] 1533(A)(3)CB). (19). Section 7 prohibits agency actions that are likely to jeopardize the continued existence" of a listed species or 'result in the destruction or adverse modification" of critical habitat. 16 U.S.C. [sections] 1536(a)(2). However, FWS regulations define "destruction or adverse modification' as an alteration of the habitat that appreciably reduces the value of the habitat for the recovery and survival of the species. 50 C.F.R. [sections] 402.02 (1992). Thus, in effect, an agency action would result in the destruction or adverse modification' of critical habitat only if the action also would jeopardize the continued existence" of the listed species. Under this regulatory scheme, therefore, the designation of critical habitat adds nothing to the jeopardy standard. (20.) See Dan Rohlf, There's Something Fishy Something Fishy is a novel by P. G. Wodehouse, first published in the United Kingdom on January 18 1957 by Herbert Jenkins, London and in the United States on January 28 1957 by Simon & Schuster, Inc., New York, under the title The Butler Did It. Going on Here. A Critique of NMFS' Definition of Species Under the ESA, supra A relational DBMS from Cincom Systems, Inc., Cincinnati, OH (www.cincom.com) that runs on IBM mainframes and VAXs. It includes a query language and a program that automates the database design process. this volume, 24 Envt'l. L. at 617 (1994). (21.) See Endangered Species Act of 1973, 16 U.S.C. [sections] 1532(16) (1988). (22.) See Melinda Taylor, Promoting Recovery or Hedging a Bet Against Extinction: Austin, Texas's Risky Approach to Ensuring Endangered Species' Survival in the Texas Hill Country, supra this volume, 24 Envt'l. L. at 581 (1994); Craig Manson, Natural Communities Conservation Planning: California's New Ecosystem Approach The Ecosystem Approach is considered one of the most important principles of sustainable environmental management.
The Sixth Conference of the Parties to the Convention on Biological Diversity defined the Ecosystem Approach in Decision V/6, Annex A, section 1 as ‘a to Biodiversity biodiversity: see biological diversity.
Quantity of plant and animal species found in a given environment. Sometimes habitat diversity (the variety of places where organisms live) and genetic diversity (the variety of traits expressed , infra [Latin, Below, under, beneath, underneath.] A term employed in legal writing to indicate that the matter designated will appear beneath or in the pages following the reference.
infra prep. this volume, 24 Envt'l. L. at 603 (1994). (23.) See John C. Kunich, The Fallacy fallacy, in logic, a term used to characterize an invalid argument. Strictly speaking, it refers only to the transition from a set of premises to a conclusion, and is distinguished from falsity, a value attributed to a single statement. of Deathbed Conservation Under The Endangered Species Act, infra this volume, 24 Envt'l. L. at 501 (1994). (24.) See Robert Meltz, Where the Wild Things Are: The Endangered Species Act and Private Property, infra this volume, 24 Envt'l. L. at 369 (1994); Albert Gidari, The Endangered Species Act: The Impact of Section 9 on Private Landowners, infra this volume, 24 Envt'l. L. at 419 (1994). (25.) Federal Water Pollution Control Act, 33 U.S.C. [subsections] 1251-1387 (1988). (26.) Coastal Zone Management Act of 1972, 16 U.S.C. [subsections] 1451-1464 (1988 Supp. II 1990). (27.) See 33 U.S.C. [sections] 1313(d)(1) (1988). (28.) Perhaps the most obvious connection is contained in the listing process itself, which identifies as a factor for determining whether a species is endangered or threatened "the inadequacy of existing regulatory mechanisms." 16 U.S.C. [sections] 1533(a)(1)(d) (1988). (29.) Federal Water Pollution Control Act, [sections] 303, 33 U.S.C. [sections] 1313 (1988). (30.) Id. [sections] 319, 33 U.S.C. [sections] 1329. (31.) Id. [sections] 320, 33 U.S.C. [sections] 1330. (32.) Coastal Zone Act Reauthorization Amendments of 1990, Pub. L. No. 101-508, [sections] 6217, 104 Stat. 1388-314 codified cod·i·fy
tr.v. cod·i·fied, cod·i·fy·ing, cod·i·fies
1. To reduce to a code: codify laws.
2. To arrange or systematize. at 16 U.S.C. [sections] 1455b (Supp. H 1990)). (33.) See John Ogan, The Need For A Smolt smolt
young salmon on its way downriver en route to the sea; covered with distinctive silvery scales. Travel Time Objective For Endangered Salmon in the Columbia Basin The Columbia Basin, the drainage basin of the Columbia River, occupies a large area–about 673,396 square kilometres (260,000 square miles)—of the Pacific Northwest region of North America. Fish and Wildlife Program, infra this volume, 24 Envt'l. L. at 673 (1994).
William W. Stelle, Jr. Associate Director for Natural Resources, White House Office of Environmental Policy. Special Assistant to Secretary of Interior, 1993; Chief of Counsel, U.S. House of Representatives, Committee on Merchant Marine and Fisheries fisheries. From earliest times and in practically all countries, fisheries have been of industrial and commercial importance. In the large N Atlantic fishing grounds off Newfoundland and Labrador, for example, European and North American fishing fleets have long , 1992-1993; General Counsel, U.S. House of Representatives, Subcommittee on Fisheries and Wildlife Conservation and the Environment, 1987-1992. LL.M LL.M Legum Magister (Master of Laws) . 1981, University of Washington School of Law The University of Washington School of Law is the law school of the University of Washington. It is generally regarded as the top law school in the Pacific Northwest, as well as one of the top thirty law schools in the United States, as ranked by US News and World Report. ; J.D. 1978, University of Maine School of Law The University of Maine School of Law is located in Portland, Maine and is Maine's only law school. It is a freestanding institution within the University of Maine System. In practice, it is administered as a unit of the University of Southern Maine, which provides the law school's ; B.A. 1974, magna cum laude cum lau·de
adv. & adj.
With honor. Used to express academic distinction: graduated cum laude; 25 cum laude graduates. , Boston University Boston University, at Boston, Mass.; coeducational; founded 1839, chartered 1869, first baccalaureate granted 1871. It is composed of 16 schools and colleges. .
This essay was adapted from Mr. Stelle's address to the Third Annual Environmental Law and Management Conference, May 25, 1993, Seattle, Washington This page is protected from moves until disputes have been resolved on the .
The reason for its protection is listed on the protection policy page. , when the author was serving as Special Assistant to the Secretary of Interior for the development of the President's Forest Plan for the Pacific Northwest. The views and opinions expressed in this article are personal. They do not reflect the position of the Clinton Administration Noun 1. Clinton administration - the executive under President Clinton
executive - persons who administer the law or any individual Federal department or agency.