9367 ‎(2)‎

• UCREFRP Catalog Number: 9367
• Author: Colorado Water Workshop.
• Title: Proceedings
• USFW Year: 1992.
• USFW - Doc Type: Colorado Water Workshop July 22-24, 1992.
• Copyright Material: NO

proceedings under the Endangered Species Act. The Act is probably the
strongest wildlife law in the world. The Supreme Court in the Tellico
Dam case, Tennessee Valley Authority vs Hill, said the prohibition on
jeopardy admits of no exception. It is such a strong statutory
prohibition that courts are without equitable power to weigh and
balance competing and offsetting impacts from that total ban on
jeopardy. There is no environmental law that strong. None. The
courts are powerless to do anything about the prohibition. That
sounds very draconian. In fact, however, the act is far more flexible
than it sounds, or appears from that characterization that I just gave
you. There have been tens of thousands of consultations under the
Endangered Species Act. Formal and informal consultations with
potential conflict between proj ects and development involving a
variety of listed species. Out of that huge universe, there have been
very few jeopardy determinations, to begin with, and even fewer
situations where the problems could not be worked out so that the
development could continue, albeit with mitigation and adjustments
that may be expensive and painful; I do not mean to downplay that.
The point is, however, that the Act does not stop development in the
way that it has often been characterized. It certainly,
theoretically, has the power at any given moment to stop development.
That is a great cause for concern and anxiety among people trying to
pursue developmental activities where listed species may be impacted.
That anxiety, fear, and uncertainty is not to be trivialized. Those
are real concerns that have to be addressed. You cannot invest and
line up financing to undertake major developmental projects that have
great uncertainty as to whether the project will be allowed to
continue or not. These latent problems that the prohibition creates
have to be dealt with. The premise of the act is strong medicine, by
necessity it has to be since we are talking about species that are on
the brink of extinction. They are the emergency room patients of the
natural world. Extraordinary measures are required if they are going
to be saved, conserved, and recovered. Proof that something as strong
as the Endangered Species Act is needed can be found in the growing
list of threatened, endangered, and candidate species.
There are over three thousand North American species, primarily
from the United States, that have been determined to be eligible for
listing. They are simply waiting in a queue, a long line, for
consideration in the listing process. Many of them could be listed
immediately if there were enough resources applied to the task of
developing the rule making package that is needed for every listing.
Obviously, statutes like NEPA, and the Fish and Wildlife Coordination
Act, and many other of these "study it, think about it, consider it
and then go ahead with it anyway" statutes are not doing the job of
conserving large biological populations of fish, wildlife and plants.
Many studies, global as well as North American, show accelerating.
rates of decline and extinction of natural populations. We are losing
species on a global level before we even know what they are or give
them names. It is the human-caused acceleration of extinction that
is the problem. Extinction in and of itself is not a problem.
Extinction is not necessarily bad. It is part of the natural order
of things; however, the pace, scale and timing of extinction is an
issue in terms of maintaining the health and diversity of ecosystems,
and in the end, of the life support systems -- air, land , water --

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