WSPC02434

• File Number: 8065
• Description: Section D General Statewide Issues - Endangered Species Act - Fisheries
• State: CO
• Basin: Statewide
• Date: 4/19/1996
• Author: Various
• Title: Endangered Species Act - File - 1996-2003 - Includes Various Reports and Fact Sheets - Correspondence 99-03 - Data - Legislation
• Water Supply Pro - Doc Type: Report/Study

000285

MANAGING ENDANGERED SPECIES ACT ISSUES
by

Murray D. Feldman
Holland & Hart LLP
P.O. Box 2527
Boise, ID 83701-2527
[phone]

Michael J. Brennan
Holland & Hart
P.O. Box 68
Jackson, WY 83001-0068
[phone]

Lawrence E. Volmert
Holland & Hart LLP
PO. Box 8749
Denver, CO 80202-8749
[phone]

Introduction

The Endangered Species Act (ESA) is the most far-reaching wildlife protection
law in the world. It can significantly impact almost any federal action, including permits,
authorizations, or approvals that affect threatened or endangered species or their habitat.
Likewise, private landowners increasingly are finding that their activities are being
scrutinized at the federal, state, and local level by government agencies seeking to
conserve threatened and endangered species.

The purposes of this paper are first to outline briefly the principal provisions of
the ESA having significant impacts on development activities, second to highlight some
leading cases of import for ESNdevelopment activities issues, and third to identify the
opportunities for proactive intervention and management of potential ESA conflicts.

The Statutory Framework and Implementation of the Endangered Species Act

The purpose of the ESA is to conserve threatened and endangered species of fish,
wildlife and plants. Application of the Endangered Species Act is triggered by the listing
of a species under Section 4.1 The ESA protects "endangered" species (those in danger
of extinction throughout all or a significant portion of their range) and "threatened"
species (those likely to become endangered within the foreseeable future)2 The federal
agencies responsible for implementing the ESA are the Fish and Wildlife Service (FWS)
of the Department ofInterior and the National Marine Fisheries Service (NMFS) of the
Department of Commerce. 3 If the Service lists a species under Section 4, the agency
generally must also designate "critical habitat" for the species' Critical habitat includes

I 16 U.S.C. ~ 1533.

2 Id. ~ 2(6). (20).

3 16 U.S.C. ~ 1533(15). In general, FWS is responsible for terrestrial and freshwater species. NMFS
is responsible for marine species. including anadromous fish such as salmon and steelhead that hatch
in fresh water, spend most of their adult life in the ocean. and then return to fresh water to spawn. See
50 C.F.R. ~~ 17.2(b), 402.01(b).

4 16 U.S.C. ~ 1533(b)(2).