WSP03664

• File Number: 8065
• Description: Section D General Statewide Issues - Endangered Species Act - Fisheries
• State: CO
• Basin: Statewide
• Date: 8/1/1993
• Author: American Bar Associa
• Title: Natural Resources and Environment - Number 8-Volume 1 - Summer 1993 - Endangered Species Protection
• Water Supply Pro - Doc Type: Publication

Mr. Rubl is
departments editor
o/Natural Resources
& Environment.
He practices
species protection law
as a partller in tbe
Austin, Texas.. office
of Fulbright &
jaworski, l.L.P.

26

OOZ~33

Section 4
of the ESA
The Cornerstone
of Species
Protection Law

J.B. Ruhl

The starting point for any comprehensive
review of the Endangeted Species Act (ESA)
should be the procedures found in section 4 of
the Act, which focus on "listing" species eli-
gible for protection underrhestatute. 16 U.S.c.
ill 1533 (1988). Congress, when reauthorizing
the ESA in 1982, confirmed that these proce-
dures are nothing less than the "keystone" of
the nation's first meaningful species protection
law. See H.R. REp. No. 567, 97th Cong., 2d Sess.
8, reprinted in 1982 U.S.C.C.A.N. 2807, 2810.
They authorize the Secretary of the Interior, in
the case of freshwater and terrestrial species,
and the Secretary of Commerce, in the case of
most marine species, to designate species which
are "threatened" or "endangered" by virtually
any natural or man-made factors affecting their
continued existence. The "critical habitat" of
a listed species may also be designated, thereby
extending the Act's special protections to such
areas.
Listing of a species triggers several impor-
tant duties and prohibitions under the ESA. Un.
der section 7, all federal agencies must ensure
that actions which they fund, approve, or carry
out do not "jeopardize" a listed or proposed
endangered or threatened species or adversely
affect designated or proposed critical habitat.
16 U.S.c. illill 1536(a)(2)-(3) (1988). Federal
agencies must also promote "conservation" of
endangered and threatened species through their
programs. /d. ill 1536(a)(I).Agencies must sat-
isfy these duties through "consultation" with
the Secretaries. /d. All persons, public or pri-
vate, must comply with the prohibitions set fonh
in section 9, the most familiar of which is the
"take" prohibition of listed endangered fish and
wildlife species. /d. ill 1538(a)(I). Finally, the
Secretaries must prepare plans for the "recov-
ery" of endangered and threatened species. /d.

NR&E/SUMMER ]993

ill 1533(f). The Secretaries may extend these
provisions to threatened species where the stat-
ute does not expressly do so. /d. ill 1533(d).
Once a species is listed, the tremendous force
of these provisions (particularly the take pro.
hibition found in section 9) comes to bear-
some would say with toO great a potency, and
some would say without enough.
Ironically, notwithstanding all the front-
page attention the ESA has received since the
infamous snail darter case involving the Tellico
Dam, TVA v. Hill, 437 U.S. 153 (1978), to the
more current debates involving the spotted owl
in the Pacific Northwest, the delta smelt in Cal.
ifornia, and several aquatic species found in
streams fed by the Edwards Aquifer in central
Texas, remarkably lillle allention has been paid
to the species listing process. MOSl litigation
under the Act has involved the effects of a list.
ing, nO! whether the listing should have oc.
curred. Recently. however, through the surge
in the number of species being listed or ex-
amined for listing, and through an increasing
awareness by environmentalists and industry
alike of the true force of the ESA's prohibitions,
the species listing process has become the focus
of intensified advocacy and litigation. With that
heightened focus in mind, a blueprint of the
listing process as presently structured is sup-
plied here with an introduction to some im-
portant issues which will likely shape the debate
over how the listing process will look and be
implemented in the future.

The Basic Species Listing Definitions

and Criteria

The breadth of the ESA is plainly illustrated
by the statutory definitions relevant to the list-
ingprocess, found in section 3 of the Act, which
have not materially changed in substance since
the Act's initial implementation. These statu-
tory definitions are for the most part incorpo-
rated into the administrative regulations adopted
by the United States Fish and Wildlife Service
(FWS) for the Department of the Interior and
the National Marine Fisheries Service (NMFS)
for the Department of Commerce. 50 C.F.R. Part
424 (1992). For example, the statutory defi-
nition of species includes any "species or any
subspecies of fish or wildlife or plants, and any
distinct population segment of any species of
vertebrate fish or wildlife which interbreeds
when mature." 16 u.s.c. ill 1532(16) (1988).
A species is endangered if it is "in danger of
extinction throughout all or a significant por-
tion of its range." id. ill 1532(6), or a species
may be threatened if it is "likely to become an
endangered species within the foreseeable fu.