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

, .

EW

[V 01. 11

J.'

OF RAZORBACKS AND RESERVOIRS

43

1 in violation of

the j:,ct required enjoining the completion of Tellico dam, vir-
tually complete at the time the suit was filed,42 to protect the
habitat of the endangered snail darter, a three-inch long43
fish with no commercial value. The Court held that the "lan-
guage, history and structure" of the ESA "indicate[ ] beyond
doubt that Congress intended endangered species to be af-
forded the highest of priorities."44 The opinion was - and is
- highly controversial, but the ESA remained essentially in-
tact after Congress reconsidered it in the wake of TVA v.
Hill.45 The 1978 amendments created a process by which
species could be exempted from the ESA's protection by the
extraordinary action of a cabinet level committee. This group
of ten, known as the "God Committee," has, however, rarely
been convened, and the ESA's substantive protections have
remained intact through several other rounds of
amendments.
ESA section 4 authorizes the Secretary ofthe Interior, or
the Secretary of Commerce in the cases of certain marine ani-
mals,46 to list species as "threatened" or "endangered," and so

ndicator of just
ie basin. Their
lter policy and
ntelligently for
:lless and fasci-
servation, and
It is precisely
policy that the
eyond. Rather
ld Wildlife Ser-
1 States Army
ies responsible
f assume their
: Act.40

~cation to the

mId have fore-
)me to have in
nnessee Valley
laurt held that

42. [d. at 157-58. The dam was 50% complete at the time the Endangered
Species Act became effective and some 70-80% complete when the snail darter
was officially listed as an endangered species. Id. at 165.
43. [d. at 158.
44. [d. at 174.
45. The ESA is up for reauthorization again in 1994, but Congress is not
likely to consider it until late that year. See William K Stevens, Battle Looms
Over U.S. Policy on Species, NY TIMES, Nov. 16, 1993 at Cl. It is predicted
that the battle over reauthorization will be a bitter one, with environmentalists
on one side arguing for a strengthening of the Act and property rights advocates
on the other arguing for a weakening of the Act. Id. The environmentalists are
likely to argue for the inclusion of a multi-species preventative focus, rather
than the single species-by-species focus of the current Act. See H.R. 2043,
l03rd Cong., 1st Sess. (1993) (Sponsored by Rep. Gerry E. Studds, D-MA). The
property rights advocates are likely to argue for the inclusion of mandatory
compensation for the loss in value of their property due to the enforcement of
the Act. See H.R. 1490, 103rd Cong., 1st Sess. (1993) (Sponsored by Rep. W.J.
Tauzin, D-LA). Property rights advocates hope that by requiring compensation
to affected property owners, the government will be discouraged from enforcing
the Act aggressively.
46. The Department of Commerce has jurisdiction under the ESA over
marine animals, 16 D.S.C. ~ 1533(aX2) (1988), and has delegated this responsi-
bility to the National Marine Fisheries Service, 50 C.F.R. ~ 402.01(b) (1990), for
the marine animal species listed in 50 C.F.R. ~~ 222.23(a), 227.4 (1990).

hAT. ~ 537.455(2)
~s to sell or lease
stream flow main-
md The Future of
tion, the Reclama-
.des for some mar-
'e Pub. L. No. 102-
93)).
p. IV 1992), these
=retary about pos-
must confer with
lee of a listed spe-
.t any irreversible.
a reasonable and
I implementing a
n received during