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000 68 HOLLAND & HART ATTORNEYS AT LAW THE ENDANGERED SPECIES ACT Overview and Thoughts on Managing Exposure to the ESA The 1999 Endangered Species Conference Northglenn, Colorado Presented by Colorado Water Congress November 5, 1999 Michael J. Brennan Holland & Hart I. INTRODUCTION "One would be hard pressed to find a statutory provision whose terms were any plainer than those in Section 7 of the Endangered Species Act. Its very words affirmatively command all federal agencies 'to insure that actions authorized, funded or carried out by them do not jeopardize the continued existence' of an endangered species . . . . The language admits of no exception . . . Concededly, this view of the act will produce results requiring the sacrifice of the anticipated benefits of projects and of many millions of dollars in public funds. But examination of the language, history and structure of the legislation . . . indicates beyond a doubt that Congress intended endangered species to be afforded the highest of priorities '. And viewed the value of endangered species as incalculable." - Chief Justice Warren Burger, Tennessee Valley Authority v. Hill, 473 U.S. 153 (1978). A. The Endangered Species Act ("ESA") burst on the scene in the late 1970s with the Tellico Dam/Snail Darter conflict which gave rise to Chief Justice Burger's comments in Tennessee Valley Authority v. Hill. During the years that followed, the Act was relatively quiescent. In the latter part of the 1980s, however, the Act once again became the focus of controversy as conservation requirements for the Northern Spotted Owl, the Columbia River Chinook, Coho and Sockeye Salmon, the Grizzly Bear, the Colorado Squawfish, the Mexican Spotted Owl, the Golden Cheeked Warbler, the Sacramento River Chinook Salmon, the Delta Smelt, and the California Gnatcatcher (to name but a few) emerged to