9649 - Laserfiche WebLink

Home Browse Search

f . . HABITAT CONSERVATION PLANNING: INTRODUCTION tailor his threatened species regulations in any manner he sees fit. However, his discretion must be grounded in what is necessary for the "conservation" of the species. ESA's definition of conservation is a nearly all-inclusive list of actions that might be taken for the benefit of a species. However, "regulated taking" is authorized under that definition only "in the extraordinary case where population pressures within a given ecosystem cannot be othetwise relieved." Thus, although the Secretary enjoys considerable flexibility in fashioning regulations to fit the needs of threatened species, his authority to allow "regulated taking" of such species is limited. Whether "regulated taking" includes taking incidental to the carrying out of othetwise lawful activities will be examined in more detail later. Before leaving the subject of taking, a word is in order concerning its scope. Historically, most wildlife legislation has used the term "taking" to refer to hunting, fishing, collecting, and similar activities that have as their purpose the killing, or bringing into personal posses- sion, of a wild animal. Gradually, the usage of the term has broadened to encompass still other activities. In the Endangered Species Act, the term "taking" has an extraordinarily broad definition. Most particularly, it includes killing, harassing, or harming a protected animal. No element of intent is included in the definition. Thus, a land developer whose bulldozers crush the larvae of an endangered butterfly on his land commits just as much of a taking as the hunter who deliberately shoots a bald eagle. In fact, it is not even necessary that any en- dangered animal be immediately killed in order for a taking to occur. ESA's definition of taking includes acts that "harm" a species. By regulation, the Fish and Wildlife Service has defined the term "harm" to include habitat modifications that significantly impair essential behavioral patterns and thereby result in actual death or injury to the species. Thus, for ex- ample, the developer who fills in one of the last major breeding ponds of an endangered am- 5 phibian has likely committed a taking violation even if none of the amphibians is present in the pond at the time of its filling. THE INTERPIAY BElWEEN SECTIONS 7 AND 9 The above summaries of Sections 7 and 9 reflect the interpretations and understandings of these provisions that have developed over the 17 -year history of the Endangered Species Act. At the time of ESA's passage, the scope of these provisions and the interplay between them were substantially less well understood. By 1982, however, the accumulated experience under ESA brought pressures for change. One of the concerns that had surfaced by 1982 was the apparent trap that Section 9's taking prohibition posed for federal agencies. Although this had never happened in practice, the possibility existed that a federal agency ac- tion could be judged consistent with the re- quirements of Section 7 (that is, it would not jeopardize the continued existence of any species), yet be stymied by the fact that it would result in the "taking" of one or more individuals of that species. This was generally perceived to be an unsatisfactory result because Section 7 had been understood to impose spe- cial, and rigorous, duties on federal agencies that, if met, gave a reasonable assurance that the effects of the federal action on listed species were "acceptable." If any amount of taking, no matter how inconsequential for the overall well-being of a species, could derail a federal project, then the very reason for Section 7 seemed questionable. To fix this dilemma, Congress in 1982 amended the Endangered Species Act to include, as part of the Section 7 consultation process, a mechanism for authorizing any takings that Occur incidental to the carrying out of a federal action that other- wise satisfies Section 7's substantive require- ments. The perception that a problem in need of fixing existed for federal agencies in such situa-