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. /, !I. 4 . RECONCILING CONFUCfS UNDER THE ENDANGERED SPECIES ACf others. Moreover, recovery plans often consist of very broad objectives and typically lack the fine detail needed to translate those objectives into specific action. As will be seen, recovery plans do not exist for many of the species that have been the subject of HCP efforts. Where such plans have existed, they have not had a panicularly significant impact on the HCP process. I ! I I FEDERAL AGENCY DUTIES TOWARD LISTED SPECIES \1 I Once a species is listed as either endangered or threatened, a variety of protections are con- ferred on it by ESA. Certain of these protec- tions penain only to the actions of federal government agencies. Section 7(a)(2) of ESA requires every such agency to ensure that any action it authorizes, funds, or carries out not jeopardize the continued existence of any threatened or endangered species or adversely modify or destroy its critical habitat. Agencies comply with this duty in the first instance by consulting with the Fish and Wildlife Service about each of their actions that may affect any listed species. That consultation process typical- ly concludes with the issuance by FWS of a "biological opinion" in which the Service ad- vises whether the action under consideration satisfies the duties that Section 7(a)(2) imposes. The duties imposed on federal agencies by Sec- tion 7(a)(2) have given rise to most of the litigation under ESA They were at issue in the Supreme Court's 1978 decision that the T en- nessee Valley Authority could not complete the construction of Tellico Dam because of its im- pacts on the snail darter. I In that case, and in the other litigation as well, the duties imposed on federal agencies by Section 7(a)(2) have been held to be far-reaching and stringent. Less clearly defined and less well explored are other, affirmative conservation duties im- posed on federal agencies by virtue of Section 7(a)(1). This provision of ESA directs all federal agencies to use their programs and !I ! '! ,I' ' 1 " ~ I I I I i I , , ! :; I! I i ! ~ I; : II j 'I' 1:,1 j' . authorities "in funherance of the purposes of this Act." Thus, whereas Section 7(a)(2) obliges federal agencies to refrain from actions that jeopardize the survival of listed species, Section 7(a)(l) seems to impose an affirmative duty to take actions that will benefit such species. Though this distinction is apparent from the face of ESA, and has been noted in most of the commentaries on it, there is very little judicial exploration of the precise nature of the affirm- ative duties imposed by Section 7(a)(l). THE TAKING PROHIBITION While Section 7 makes no distinction either between endangered and threatened species or between listed animals and plants, other provisions of ESA do make such distinctions. In panicular, Section 9 makes very significant such distinctions in spelling out certain prohibitions that apply to listed species. For endangered animals, Section 9 prohibits, among other things, their "taking." Taking is defined broadly in ESA to include not only killing and capturing, but, as will be explained later, other actions that may only indirectly af- fect the species. However, the taking prohibi- tion only applies to animals; for endangered plants, ESA has limited restrictions against removal from federal lands and certain other activities on private lands, but no general taking prohibition comparable to that which applies to animals. In contrast to endangered species, Section 9 does not automatically prohibit any specified activities with respect to threatened species. Rather, it prohibits only those activities that, by regulation promulgated under Section 4(d), the Secretary has chosen to prohibit because he has found such prohibitions "necessary and ad- visable for the conservation of such species." These "discretionary" prohibitions can be as restrictive as the automatic prohibitions that apply to endangered species under Section 9, but they need not be. On its face, this would appear to give the Secretary broad discretion to