Major issues in reauthorization of the Endangered Species Act.
A brief summary of the basic. building blocks of the Endangered Species Act (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 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 Fish and Wildlife Service (FWS), or the Secretary of Commerce, through the National Marine Fisheries Service (NMFS), is charged with responsibility under section 4 of the ESA for listing any species, subspecies, 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, 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 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 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 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 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" 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.(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 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(28) with key provisions of the Clean Water Act such as the water quality planning program,(29) the nonpoint source pollution control program,(30) and the national estuary program.(31) Nor has there been any weave between the ESA and the nonpoint 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 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 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 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, 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 v. Yeutter, 926 F.2d 429, 438 (5th Cir. 1991) (finding harm to the red-cockaded woodpecker resulting from failure to remove midstory hardwood which led to abandonment of cavity trees by the woodpecker). 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 Going on Here. A Critique of NMFS' Definition of Species Under the ESA, supra 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 to Biodiversity, infra this volume, 24 Envt'l. L. at 603 (1994). (23.) See John C. Kunich, The Fallacy 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 at 16 U.S.C. [sections] 1455b (Supp. H 1990)). (33.) See John Ogan, The Need For A Smolt Travel Time Objective For Endangered Salmon in the Columbia Basin 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, 1992-1993; General Counsel, U.S. House of Representatives, Subcommittee on Fisheries and Wildlife Conservation and the Environment, 1987-1992. LL.M. 1981, University of Washington School of Law; J.D. 1978, University of Maine School of Law; B.A. 1974, magna cum laude, Boston University.
This essay was adapted from Mr. Stelle's address to the Third Annual Environmental Law and Management Conference, May 25, 1993, Seattle, Washington, 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 or any individual Federal department or agency.