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

vIEW

[VoL 11

1993J

OF RAZORBACKS AND RESERV01'j,

51

health of ecosys-
. By radically al-
~vere unintended
~gest that we do
'N use electronic
this argument
;and all of the ef-
:reep up the food .
mnot foresee the
We thus ignore
-eriL
lergirds the cur-
lder the ESA. A
;es that the ESA
;: (1) single-pro-
ld (3) natural re-
!pified by TVA.v.
a single federal
., and sought to

block or alter it. Ruhl suggests that phase two glc\\ out of
the 1982 amendments' authorization of "incidental take" per-
mits for private actors in ESA section 10.85 One of section
10's requirements is a "habitat conservation plan."8G Accord-
ing to Ruhl, "the section 10 process has taken hold in states
such as California, Texas, Nevada, and Florida in the form of
huge regionalized extravaganzas covering tens of thousands
of acres of prime undeveloped urban and suburban land."87
Ruhl further contends that these habitat conservation plans
have required developers to set aside "vast conservation
tracts" and have limited growth on a region-wide scale, tak-
ing the ESA to new heights of controversy. 88
The third and current phase of ESA enforcement "is to
extend ESA jurisdiction to control large-scale resource man-
agement decisions."89 The watershed cases which ushered in
this new era were the Sierra Club Legal Defense Fund's
(SCLDF) efforts to restrict logging of old growth forest in or-
der to protect the northern spotted owl. 90 The spotted owl is
a classic "indicator species" in that it only nests in old growth,

87).
nee of DDT in the en-
ling problem. JOSEPH
.090, PERSISTENCE OF
GTON (1993). For ex-
Washington the U.S.

85. 16 U.S.C. ~ 1539(a)(1)(B) (1988) describes the "incidental take" as a tak-
ing which is incidental to, and not the purpose of, conducting an otherwise law-
ful activity.
86. Under 16 U.S.C. ~ 1539(a)(2)(A):
No permit may be issued by the Secretary authorizing any tak-
ing referred to in paragraph (l)(B) [incidental taking] unless the
applicant therefor submits to the Secretary a conservation plan
that specifies-
(i) the impact which will likely result from such taking;
(ii) what steps the applicant will take to minimize and miti-
gate such impacts, and the funding that will be available
to implement such steps;
(iii) what alternative actions to such taking the applicant con-
sidered and the reasons why such alternatives are not be-
ing utilized; and
(iv) such other measures that the Secretary may require as be-
ing necessary or appropriate for purposes of the plan.

ause, despite the
1972, concentra-
nmonly exceeded
n of freshwater
ated agricultural
m reserooir of T-
:in for decades to

tionale, see Jeb Boyt,
ity Under NEPA and
PACE ENVTL. L. REV.

>no

Id.
87. Ruhl, supra note 83, at 39.
88. Id.
89. Id.
90. See Seattle Audubon Soc'y v. Moseley, 798 F. Supp. 1484 (W.D. Wash.
1992) (granting injunctive relieO; Seattle Audubon Soc'y v. Moseley, 798 F.
Supp. 1473 (W.D. Wash. 1992) (granting partial summary judgment).

rjered Species Protec-
RESOURCES & ENV'T,