7852

• UCREFRP Catalog Number: 7852
• Author: Bolin, J. H.
• Title: Of Razorbacks and Reservoirs
• USFW Year: 1993
• USFW - Doc Type: The Endangered Species Act's Protection of Endangered Colorado River Basin Fish
• Copyright Material: YES

48

PACE ENVIRONMENTAL LAW REVIEW

[Vol. 11

1993]

section 7(a)(2) violai.lclf" the biological opinion may authorize
a specified "incident21.-,ake." The incidental take authoriza-
tion must set forth mandatory "reasonable and prudent
measures" to minimize take, and if the action agency exceeds
the permitted take, it is required to reinitiate section '7 con-
sultation immediately.72 It is unclear whether FW8 is re-
quired to authorize incidental takes so long as they do not
violate section 7(a)(2), but ESA section 7(b)(4) notes the
agency "shall provide" such authorization, suggesting that it
does not have the discretion to refuse.73

Four main rationales are usually advanced in support of
protecting all species, even small and apparently "useless"
ones such as the snail darter, from extinction.74 First, it is
often suggested that many species may have economic value
that is presently unknown and that would be lost if they were
permitted to become extinct. Proponents of this view point to
potential medical uses such as the recent discovery of the pos-
sible cancer-fighting properties of taxol, found in yew trees in
Pacific coast forests, or to the value of genetic material in
other plants for breeding disease-resistant strains of crops.
Critics of this view argue that we cannot know in advance
which species may be useful or what their uses might be, and
that we thus cannot justify the E8A in economic terms be-
cause the value of species preservation is unknown and UD-

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72. 50 C.F.R. ~ 402.14(i) (1992).
73. 16 U.S.C. 1536(bX4); see also, 50 C.F.R. ~ 402.14(i)(1) (1992) (When an
incidental take has occurred that does not violate the provisions of ESA section
7(a)(2) the agency must provide, with the biological opinion, a statement speci-
fying facts such as: the impact of the taking on the species; the reasonable
measures necessary to minimize such impact; and the procedures to be used in
the taking); see generally Frederico Cheever, An Introduction to the Prohibition
Against Takings in Section 9 of the Endangered Species Act of 1973: Learning
to Live with a Powerful Species Preservation Law, 62 U. COLO. L. REV. 109, 165
(1991).

74, For a thorough discussion of the arguments for and against protection
of Colorado River Basin species, see Rolston, supra note 8. For discussions of
the arguments for and against species preservation generally, see, e.g., RoHLF,
supra note 60, at 12-17; Cheever, supra note 73, at 113-17; A Dan Tarlock, The
Endangered Species Act and Western Water Rights, 20 LAND & WATER L. REV. 1,
3-5 (1985), and the works cited by these authors.

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