Major issues in reauthorization of the Endangered Species Act.

• Author: Stelle, William W., Jr.
• Position: Endangered Species Act at Twenty-One: Issues of Reauthorization

1. Three Basic Components of the ESA

   A brief summary of the basic. building blocks of the Endangered Species Act (ESA)(1) is important in understanding the major issues that will be addressed in the coming reauthorization.(2) key element in this reauthorization involves the interrelationship of these basic building blocks, which include the process for listing endangered and threatened species, restrictions on federal agency actions, and generally prohibited acts.

   Depending largely upon whether a species swims in salt water, either the Secretary of the Interior, through the United States Fish and Wildlife Service (FWS), or the Secretary of Commerce, through the National Marine Fisheries Service (NMFS), is charged with responsibility under section 4 of the ESA for listing any species, subspecies, or "distinct population" that is endangered or threatened.(3) At the time of listing, FWS and NMFS must determine two things: whether the species should be listed as either "endangered" or "threatened"(4) and whether the agencies should designate "critical habitat" for a listed species.(5)

   The listing of a species as either endangered or threatened then triggers prohibitions applicable to both the federal government and to other "persons." The prohibitions imposed on federal agency actions are contained in section 7 of the ESA, which requires all federal agencies to consult with FWS and NMFS and to carry out programs for the conservation of listed species.(6) Section 7 broadly prohibits any federal agency action that is likely to jeopardize the continued existence of any listed species or to adversely affect critical habitat designated during the listing process.

   The listing of a species also triggers prohibitions imposed under section 9 of the ESA that apply to 'any person subject to the jurisdiction of the United States."(8) Section 9 basically prohibits anybody from doing acts that would result in the "taking" of a listed species.(9) On its face, section 9 applies only to endangered species, not to threatened species,(10) and that is an important distinction. However, the taking prohibitions of section 9 have been defined both by regulation and by case law to extend protection to threatened species" and to activities that affect critical habitat in a manner sufficiently severe to make it likely that death or destruction of the species could result from that habitat modification.(12)

   The third basic component of the endangered species program is the recovery planning process contained in section 4 of the ESA.(13) Section 4 directs FVS and NMFS to develop recovery plans for any listed species unless the agency "finds that such a plan will not promote the conservation of the species."(14) The recovery plans have as their objective the 'conservation and survival" of listed species.(15) This conservation objective is separate and distinct from the no jeopardy/no adverse modification of habitat requirements of section 7.(16) "Conservation" is one of the more important terms in the ESA, and it generally is defined to mean those "methods and procedures" necessary to enable the listing agency to delist the species.(17)

2. MAJOR ISSUES IN REAUTHORIZATION

   The fundamental issue in reauthorizing the Endangered Species Act is how to take these basic building blocks and relate them together so the program works better as a whole. What ought to be the relationship between the taking prohibitions of section 9, the jeopardy prohibitions of section 7, and the recovery obligations of section 4? Under the current program, there is no explicitly well-defined relationship at all.

   For example, section 9 circles the other elements of the endangered species programs like an orbiting moon. Section 9 simply says, as a legal and biological matter, that it is a bad idea to allow people to act in a way that will kill individuals of an endangered species. But section 9 is not in explicitly tied to the larger issues of avoiding jeopardy to the species as a whole under section 7 or undertaking...