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THE FEDERAL ENDANGERED SPECIES ACT
AND WATER LAW
Richard Hamann
Principal Investigator
Thomas T. Ankersen
Co-Principal Investigator
center for Governmental Responsibility
University of Florida College of Law
September 9, 1993
TABLE OF CONTENTS
I. Introduction . . . . . 1
II. Overview of the Endangered Species Act . . 2
A. The Listing Process. . . . .. 3
B. Substantive Federal Duties: Conserving Species,
Protecting Critical Habitat and Avoiding Jeopardy 5
C. The Federal Procedural Duty to Consult . .. 7
1. Affirmative ESA Duties of the Corps of
Engineers Related to Actions involving the
Flood Control Project . . . 9
2. Potential Non-Federal Obligations for
Consultations ........ .. 11
D. Section 9 The Takings Provisions . .13
1. The Scope of Section 9. . .. 14
2. The Nature of Section 9 Liability . .15
3. The Standard of Review Under Section 9 .16
4. Habitat Modification and the Construction of
the Taking Provision . . .... 16
a. Palila I . . . .. 16
b. The FWS "Redefinition" of harm . 17
c. Palila II . . . 18
5. Further developments in Section 9 . 20
6. The Effect of Critical Habitat Designation on
Takings Claims . . . 22
7. The Failure to Develop and Implement Recovery
Plans as Takings . . . .. 23
8. The Failure to Manage Land for Endangered
Species as Takings . . . 24
9. Governmental authorization of activities as
ESA takings . . . . 24
III. The ESA and Water Related Decisions . ... 25
A. The ESA and State Water Law. . . 25
B. Federal Statutory "preemption" of state water law 26
1. ESA Case Law involving water allocation
decisions . . ..... 27
a. Oregon Natural Resources Council v.
Bureau of Reclamation, Case # 91-6284
(D. Ore. July 10, 1991). ..... 27
b. United States v. Glenn-Colusa Irrigation
Dist., Case # s-91-1074, DFL-JFM (E.D.
Cal. Jan. 9, 1992) 788 F. Supp. 1126
(E.D. Cal 1992) .......... 29
c. Sierra Club v. Lujan, Case No. 91-CA-069
(W.D. Tex. Feb. 1, 1993). . 30
d. Northwest Resource Information Center.
et al. v. National Marine Fisheries
Service, C921156(D)M (W.D. Wash. Aug. 4,
1992)(Complaint); Pacific Northwest
Generating Cooperative, et al. v. Brown,
Case No. 92-1260-MA, Slip Op., 1993 U.S.
Dist. LEXIS 5160 (D. Ore. April 1,
1993)(The "salmon cases"). . 31
e. Carson Truckee Water Conservancy Dist.
v. Clark, 741 F.2d 257 (9th Cir. 1984). 33
C. Water Related Issues that May Implicate the ESA .34
1. Management measures taken to protect one
listed species that may adversely affect
another listed species . . .. 35
2. Cumulative effects of water related
decisions . . . ... 36
IV. Mechanisms to Ensure Compliance with the ESA . 38
A. Section 10 and the Incidental Takings Provisions 39
B. Predecisional Endangered Species Review Early
and Informal Consultations on decisions that may
affect listed species . .. .... 40
C. Minimum Flows and Levels and Reservations of
Water ... .... . ... 41
D. Rulemaking and Permit Conditions ........ 42
APPENDICES . . .......... ...... 44
THE FEDERAL ENDANGERED SPECIES ACT
AND WATER LAW
I. Introduction
The South Florida Water Management District has requested
that the Center For Governmental Responsibility at the University
of Florida College of Law provide an analysis of the Federal
Endangered Species Act ("ESA"). This analysis provides a general
overview of the principle provisions of the ESA, especially as
they may relate to state water law. In addition, where
appropriate, reference is made to the United States Fish and
Wildlife Service ("FWS") 1991 Biological Opinion on the Corps of
Engineers proposed Modified Water Deliveries to Everglades
National Park to illustrate aspects of the Project/District
relationship under the ESA.
The relationship between the ESA and state water law has
arisen in the context of several western water allocation cases
that have been recently reported or are currently pending. The
status of these cases is summarized. Finally, a section of this
analysis is devoted to identifying mechanisms to fulfill the
intent of the ESA through federal and state procedural mechanisms
such as the incidental taking permit process offered by the ESA,
informal consultations with the FWS, and District rulemaking.
Copies of all relevant primary and secondary references are
provided in an appendix.
II. Overview of the Endangered Species Act
The Endangered Species Act of 1973 (ESA) is widely regarded
as one of the most powerful and uncompromised environmental laws
of the United States.1 The Act is administered by the U.S. Fish
and Wildlife Service (FWS) within the Department of Interior,
and, for most marine mammals, the National Marine Fisheries
Service ("NMFS"), of the Department of Commerce.2 The Florida
Game and Fresh Water Fish Commission cooperates in implementation
of the ESA3 and has adopted a similar set of rules.4
The protections of the Act apply only to species that have
been listed under Section 4 as either endangered or threatened,
and to their designated critical habitat.5 Once a species has
been listed, the Fish and Wildlife Service is required to develop
a recovery plan6 and all federal agencies have an obligation to
work toward recovery of the species.7 In addition, federal
P.L. 93-205, 16 U.S.C. SS 1531 et seq. See generally, D.J.
ROHLF, THE ENDANGERED SPECIES ACT: A GUIDE TO ITS PROTECTIONS AND
IMPLEMENTATIONS, 25 (1989); MICHAEL J. BEAN, THE EVOLUTION OF NATIONAL
WILDLIFE LAW (1983); O. Houck, The Endangered Species Act and Its
Implementation by the U.S. Departments of Interior and Commerce,
64 U. COLO. L. REV. 277-370 (1993); G. Coggins & I. Russell, Beyond
Shooting Snail Darters in Pork Barrels: Endangered Species and
Land Use in America, 70 GEORGETOWN L. J. 1433-1525 (1982).
2 16 U.S.C. S 1533(a).
3 Id. at S 1535.
4 FLA. ADMIN. CODE ANN. r. 39-27 (1992).
5 See infra.
6 16 U.S.C. S 1533(f).
7 Id. at S 1536(a) (1).
agencies have a duty under Section 7 to ensure that actions they
fund, authorize or carry out, do not jeopardize the continued
existence of a threatened or endangered species or adversely
modify critical habitat.8 To ensure that agency action conforms
to these substantive duties, there are procedural requirements to
conduct biological assessments and consult with fish and wildlife
agencies.9 Section 9 of the Act prohibits the taking of
endangered or threatened species by any person, including private
individuals and state or local agencies.10 Habitat modification
that harms a listed species may be a prohibited taking."
Incidental takings may be authorized only through the Section 7
consultation process2 or under Section 10, which provides for
the development of Habitat Conservation Plans.13
A. The Listing Process
Section 4 of the ESA creates a process for listing species
as endangered or threatened based upon the degree to which such
species are threatened with extinction.14 A species is
considered "endangered" if it is in jeopardy of becoming extinct
8 Id. at S 1536(a)(2). There is a limited exemption
available for projects of overriding national importance. Id. at
S 1536(e).
9 Id. at S 1536(a)(3),(4),(b),(c),(d).
10 Id. at S 1538(a).
1 See discussion infra.
1 Id. at S 1536(o).
13 Id. at S 1539(a).
14 Id. at S 1533.
through all or a portion of its range." A species is considered
"threatened" if it is in jeopardy of becoming endangered in the
foreseeable future.16 From the standpoint of substantive
protection there is little distinction between the two
classifications. Program regulations extend the same protections
to threatened species as endangered species.17 Species is
defined in such a way that it may include subspecies, as well as
distinct populations of a species that is threatened with
extirpation within a portion of its range."
Both plants and animals may be listed. Plants, however, do
not enjoy the same substantive protection that animals are
provided.19 In an apparent effort to eliminate political and
economic considerations, Congress required that listing decisions
be made solely on the best scientific and commercial evidence
available.20
Listing may be initiated by the two agencies charged with
administering the ESA, or it may be initiated by private parties
5 Id. at S 1532(6).
16 Id. at S 1532(20).
17 50 C.F.R. SS 17.31, 402.02 (definition of listed species)
(1992).
18 Id. at S 1531(a) (3).
19 Plants are excluded from the ESA's prohibition on "taking"
listed species. 16 U.S.C. S 1538(1). See 50 C.F.R. S 17.61
(1992).
20 16 U.S.C. at S 1531(b) (1) (A).
4
through a petition process." When a petition has been privately
initiated, FWS or NMFS may determine that the listing action is
not warranted, warranted but precluded by other listing
activities, or it may list the species.2
The ESA also creates a process for designating the "critical
habitat" of a species." Critical habitat is a geographic area
designated by the Secretary which contains physical or biological
features essential to the conservation of the species.2 Critical
habitat may include private lands. In designating critical
habitat, the Secretary can consider economic impact." Critical
habitat is generally required to be identified concurrently with
the listing of a species "to the maximum extent prudent and
determinable."26 A district court in the Northwestern Spotted
Owl litigation recently narrowed FWS discretion in determining
whether to designate critical habitat.n
B. Substantive Federal Duties: Conserving Species,
Protecting Critical Habitat and Avoiding Jeopardy
The ESA imposes affirmative obligations for federal agencies
21 Id. at
22 Id. at S
Id. at
24Id. at
25 Id. at
26 Id. at
2 Northern
Wash. 1991).
1533 (b) (3) (A).
1533 (b) (3) (B).
1533(a)(3).
1532(5).
1533(b) (1) (B) (2).
1533(a)(3); 50 C.F.R. S 424.12.
Spotted Owl v. Lujan, 758 F. Supp. 621, 629 (W.D.
and creates substantive liabilities for all persons. The Act
imposes an affirmative duty on all federal agencies to "conserve"
listed species, though the scope of this duty remains
uncertain.28 Federal duties are carried out through the
development and implementation of recovery plans,2 and through
biological assessments and consultations pursuant to Section 7 of
the Act. The Act mandates that the Secretary develop and
implement recovery plans for the conservation of listed species
unless it is determined that such plans will not promote the
conservation of the species." While the legal status of
recovery plans has not received much attention, a Texas district
court recently ruled that the FWS's failure to develop and
implement a recovery plan may subject the agency to liability for
"taking" under Section 9 of the ESA.3
Section 7(a)(2) of the Act also subjects federal agencies to
liability for actions that may "jeopardize the continued
28 16 U.S.C. S 1536 (a)(1). The terms "conserve" and
"conservation" mean "to use and the use of all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided in
this Chapter [the ESA] are no longer necessary." 16 U.S.C. S
1532(3). See note, Conservation Obligations Under the Endangered
Species Act: A Case Study of the Yellowstone Grizzly Bear, 64
U.CoLo.L.REv. 607 (1993); Hamann & Tucker, Legal Responsibilities
of the National Park Service in Preserving the Florida Panther
(October 26, 1987).
9 16 U.S.C. S 1533(f).
30 Id.
31 Sierra Club v. Lujan, Case No. 91-CA-069 (W.D. Tex.
February 1, 1993).
existence" of an endangered or threatened species.32 The term
"action" has been defined by regulation to mean "all activities
or programs of any kind authorized, funded, or carried out, in
whole or in part, by Federal agencies...." 33 Examples provided
include licenses, permits, contracts or actions "directly or
indirectly causing modifications to the land, water, or air."3
The term "Jeopardize the Continued Existence" means to engage in
an action that reasonably would be expected, directly or
indirectly, to reduce appreciably the likelihood of both the
survival and recovery of a listed species in the wild by reducing
the reproduction, numbers, or distribution of that species.35
This duty is generally regarded as imposing greater obligations
on federal agencies than the general prohibition against "taking"
listed species applicable to all persons.3
C. The Federal Procedural Duty to Consult
Section 7 of the ESA imposes a procedural "consultation"
requirement upon all federal agencies whose actions may
32 16 U.S.C. S 1536(a)(2).
3 50 C.F.R. S 402.02 (1992) (emphasis added).
34 d.
35 Id.
3 G. Coggins & I. Russell, Beyond Shooting Snail Darters in
Pork Barrels: Endangered Species and Land Use in America, 70
GEORGETOWN L. J. 1433-1525, 1462-1468 (1982); Houck, The
"Institutionalization of Caution" Under S 7 of the Endangered
Species Act: What Do You Do When You Don't Know?, 12 ELR 15001
(1982).
jeopardize listed species.3 The Act also requires the action
agency to consult with the Secretary at the request of a non-
federal applicant for a license or permit.38
The first step in consultation is to determine whether an
endangered or threatened species may be present. If the Secretary
determines that one may be present, then the agency proposing the
action must prepare a biological assessment to determine whether
any endangered or threatened species is likely to be affected by
the action.39 This may also be done in the context of the
National Environmental Policy Act's ("NEPA") process for
environmental impact assessment4 or a process of informal
consultation.41 If a listed species is likely to be affected,
formal consultation, resulting in a written biological opinion,
must be requested from the Secretary.42 A biological opinion
discusses how the agency's action affects the listed species or
their critical habitat.3 If the opinion concludes the action
may cause jeopardy to the species or adversely modify critical
habitat, the Secretary must suggest "reasonable and prudent"
alternatives to avoid the ESA violation and facilitate the
37 16 U.S.C. S 1536(a)(2).
38 Id. at S 1536(a)(3).
3 Id. at S 1536(c); 50 C.F.R. S 402.12 (1992).
40 Id.
41 50 C.F.R. S 402.14 (1992).
42 Id. at S 402.14.
3 16 U.S.C. S 1536(b).
action." This section also permits the Secretary to issue
permits for the "incidental taking" of listed species, where the
taking would not otherwise cause jeopardy.4 Although the
Secretary's biological opinion is persuasive, the decision
whether to halt or modify the proposed project to comply with ESA
is the responsibility of the agency proposing it." Because
those duties are continuing, there may be a duty to reinitiate
consultation as new information becomes available7
1. Affirmative ESA Duties of the Corps of Engineers
Related to Actions involving the Flood Control
Project
As a federal agency, the Corps is subject to the affirmative
obligations of section 7 of the ESA in its capacity as sponsor of
the Central and Southern Florida Flood Control Project. In that
capacity the Corps plans, finances and constructs works
associated with the Project, and authorizes or retains a veto
power over certain activities of the District.48 With certain
exceptions, the District retains responsibility for operation and
44 Id. at S 1536(b)(3)(A).
45 Id. at S 1536(b) (4).
See National Wildlife Federation v. Coleman, 529 F. 2d
359, 371 (5th Cir. 1975).
7 50 C.F.R. S 402.16. See Sierra Club v. Marsh, 816 F. 2d
1376, 17 ELR 20717 (9th Cir. 1987) (agency required to reinitiate
consultation where wetlands habitat mitigation had not been
implemented).
48 Surface Water Improvement and Management Plan for the
Florida Everglades, Supporting Information Document 12 (South
Florida Water Management District, March 13, 1992).
9
maintenance of the Project.49 Accordingly, many Corps activities
related to the Project require ESA consultation as actions
"authorized, funded or carried out" by the Agency.0
FWS Regulations spell out procedures for interagency
cooperation in consultations. These regulations apply in the
absence of a more specific agreement between an action agency,
such as the Corps, and the Service on consultation procedures.5
In addition, the regulations authorize consolidation of
consultations, conferences and biological assessment procedures
with other interagency cooperation procedures such as NEPA and
the Fish and Wildlife Coordination Act.2 For example, Section 7
consultation occurred in the context of the Fish and Wildlife
Coordination Act Report on Modified Deliveries to Everglades
49 Id. at 14.
50 16 U.S.C. S 1536(a)(2). Examples of actions requiring
consultation are described by regulation, and include: a) actions
intended to conserve listed species or their habitat, b) the
promulgation of regulations, c) the granting of licenses,
contracts, leases, easements, rights of way, permits, or grants-
in-aid, or d) actions directly or indirectly causing
modifications to the land, water or air. 50 C.F.R. S 402.2.
This term is similar to the language employed by the National
Environmental Policy Act which requires impact assessment for
"any major federal action significantly affecting the quality of
the human environment." 42 U.S.C S 4332(1)(C); 40 C.F.R. S
1508.18. Conceivably, however, the absence of the adjective major
in the ESA suggests a lower standard may be applicable to
consultations under Section 7. No cases have addressed this
distinction.
5 50 C.F.R. S 402.04 (1992).
52 Id. at S 402.06.
National Park.53 A copy of the FWS biological opinion may be
found in the appendix to this report.
The FWS regulations also permit the designation of a non-
federal representative to conduct informal consultation and
prepare a biological assessment." Presumably, under appropriate
circumstances, the District could assume this responsibility.
One potential vehicle for defining the Corps-District
relationship in the context of ESA review may arise through the
development of Local Cooperative Agreements required by Section
103(j) of the 1986 Water Resources Development Act.55 Such
agreements are intended to replace the series of ad hoc
resolutions, authorizations and contracts that have typified
Federal Flood Control Projects in the past.
Section 7 consultation has become an important tool in
comprehensive endangered species review of large-scale federal
water projects, particularly western irrigation projects." In
one instance, consultation became the vehicle for determining the
in-stream flow requirements for a major segment of the Colorado
5 Fish and Wildlife Coordination Act Report, Modified
Deliveries to Everglades National Park, U.S. and Wildlife Service
(March 1991) (Appendix A: Biological Opinion and Wood Stork
Model).
u Id. at S 402.08. The absence of any reference to formal
consultations suggest that duty, when triggered, may not be
delegated.
55 Pub. L. No. 99-662, 100 Stat. 4082 (1986).
6 See M. Zallen, Evolution of ESA Consultations on Western
Water Projects, 2 NAT. RES. & ENVT. 41 (1986).
River.5
2. Potential Non-Federal Obligations for
Consultations
While no ESA cases have addressed the issue, under NEPA the
Courts have uniformly held that a federal agency cannot abdicate
its responsibility to prepare an EIS, and that NEPA does not
impose a duty upon non-federal entities to perform or cease to
perform any activity.58 The ESA would probably suggest a similar
analogy. Analogy to NEPA also suggests, however, that non-
federal activities authorized or funded by the Corps may be
enjoined where the Corps has failed to comply with its
consultation duties.59
7 Id. at 70.
58 See Natural Resources Defense Council, Inc. v. Callaway,
524 F. 2d 79, 86 (2nd Cir. 1975); Biderman, 497 F. 2d at 1144;
Conservation Society of Southern Vermont, Inc. v. Secretary of
Transportation, 508 F. 2d 927, 931 (2nd Cir. 1974); Greene County
Planning Board v. FPC, 555 F. 2d 412, 418-20 (2nd. Cir. 1972);
Bradford Township v. Illinois State Toll Highway Authority, 463
F. 2d 537, 540 (7th Cir. 1972), cert. denied, 409 U.S. 1047
(1972); Ely v. Velde, 451 F. 2d 1130, 1139 (4th Cir. 1971); Named
Individual Members of the San Antonio Conservation Society v.
Texas Highway Department, 446 F. 2d 1013, 1027-28 (5th Cir. 1971)
(reversing lower court's denial of preliminary injunction under
NEPA because of the state-federal "partnership" in expressway
construction); Don't Ruin Our Park v. Stone, 749 F. Supp. 1386,
1387 (M.D. Penn. 1990); Fund for Animals, Inc. v. Florida Game
and Fresh Water Fish Commission, 550 F. Supp. 1206, 1207-08 (S.D.
Fla. 1982) (denying an injunction under NEPA because of no
federal funding, supervision or control); College Gardens Civic
Association, Inc. v. U.S. Department of Transportation, 522 F.
Supp. 377, 383 (D. Md. 1981).
59 See Biderman v. Morton, 497 F. 2d 1141, 1146-47 (2nd Cir.
1974) (denying an injunction against municipal defendants where
they solicited no federal aid or cooperation, and where no
federal agency approval was necessary to make municipal zoning
decisions); Named Individual Members of the San Antonio
D. Section 9 The Takings Provisions
With few exceptions, Section 9 of the ESA makes it unlawful
for any person" subject to the jurisdiction of the United States
to "take" any endangered species of fish or wildlife listed
pursuant to Section 4 of the ESA.61 "The term take means to
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in any such conduct."6
FWS has refined the statutory definition of "take" by
further defining the terms "harm" and "harass" to include
indirect takings. The Service defines "harm" as an "act" that
results in "significant habitat modification or degradation where
it actually kills or injures wildlife by significantly impairing
essential behavior patterns including breeding, feeding or
sheltering.63 "Harass" is defined to include an "intentional or
Conservation Society v. Texas Highway Department, 446 F. 2d 1013,
1027-28 (5th Cir. 1971) (holding that Texas Highway Department,
as well as federal Department of Transportation, would be
enjoined where state voluntarily entered into joint venture with
federal agency); Fund for Animals, Inc. v. Florida Game and Fresh
Water Fish Commission, 550 F. Supp. 1206, 1207-08 (S.D. Fla.
1982) (denying injunction where Florida Game and Fresh Water Fish
Commission was not federally funded in whole or in part, and was
not subject to federal supervision or control); Dalsis v. Hills,
424 F. Supp. 724, 787-88 (W.D. N.Y. 1976) (stating that private
developer could be enjoined where it entered into a joint venture
with HUD, if HUD had violated NEPA).
0 The term "person" is expansively defined to include
individuals, private and governmental entities, as well as
officers, employees, agents, departments or instrumentalities of
governmental entities. 16 U.S.C. S 1533(13).
61 16 U.S.C. S 1538(a)(1)(B).
Id. at S 1532(19).
63 50 C.F.R. S 17.3(c) (1992).
13
negligent act or omission that creates the likelihood of injury
to wildlife by annoying it to such an extent as to significantly
disrupt normal behavior patterns...."" This definition is drawn
directly from the statute's legislative history.6
1. The Scope of Section 9
On its face, Section 9 refers only to endangered species of
fish and wildlife." Endangered plants do receive some
protection, but are not subject to a "taking" provision.67
Threatened species, while not expressly subject to Section 9,
nonetheless receive virtually the same statutory protection.
Section 4(d) of the Act provides that "The Secretary may by
regulation prohibit with respect to any threatened species any
act prohibited under section 1538(a)(1)...." Read in
conjunction with the statutory definition of conservation, 16
U.S.C. S 1532(3), Section 4(d) does nothing more than authorize
the Secretary to permit the taking of threatened species under
narrowly circumscribed instances where it would ultimately
benefit the species."
Id.
See H.R. Rep. No. 412, 93rd Cong., 1st Sess. 11 (1973).
16 U.S.C. S 1538(a)(1).
67 See 16 U.S.C. S 1538(a)(2).
16 U.S.C. S 1533(d).
69 See Sierra Club v. Clark, 577 F. Supp. 783 (D. Minn.
1984), aff'd & rev'd, 755 F. 2d 608 (8th Cir. 1985). For a more
detailed discussion of the Act's distinctions between endangered
and threatened species see Goldman-Carter, Federal Conservation
of Threatened Species: By Administrative Discretion or by
14
Under the authority of Section 4(d), the United States Fish
and Wildlife Service has enacted a blanket regulation that
prohibits the "taking" of threatened species in the same manner
as the "taking" of endangered species is prohibited." This
regulation was recently upheld by the DC Circuit.7 Section 4(d)
does include a caveat that in states that have entered into
cooperative agreements pursuant to Section 6(c) of the Act, the
regulations apply only to the extent that such regulations have
been adopted by the state." Florida has entered into a
cooperative agreement with FWS, and has promulgated regulations
pursuant to the agreement which prohibit the "taking" of
endangered or threatened species without a permit.73
2. The Nature of Section 9 Liability
Civil liability under Section 9 appears to be in the nature
of strict liability. The ESA offers no statutory defenses. To
establish liability under Section 9 the plaintiff need only prove
Legislative Standard, 11 ENv. AFF. 63 (1983); Saxe, Regulated
Taking of Threatened Species Under the Endangered Species Act, 39
HASTINGS L.J. 399 (1988). See also D. ROHLF, THE ENDANGERED SPECIES ACT:
A GUIDE TO ITS PROTECTIONS AND IMPLEMENTATION, 73-78 (1989).
70 50 C.F.R. S 17.31(a) (1992).
71 Sweet Home Chapter of Communities for a Great Oregon v.
Babbit, 1993 U.S. App. LEXIS 18570, 6-10 (D.C. Cir, July 23,
1993). See infra Section II.D.5. of this report.
7 16 U.S.C. S 1533(d).
73 FLA. ADMIN. CODE ANN. r. 39-27 (1992). The Florida rule does
not specifically prohibit "taking" endangered species, but does
prohibit the same activities, e.g. "molest, harm, harass" as are
included in the federal definition of take. Id., Rule 39-
27.002(1). The rules for threatened species prohibit taking, but
do not define the term. Id., Rule 39-27.002(2).
15
(1) an act by the defendants; and (2) actual death or injury to
the endangered species as a result of the act.7 Criminal
liability will attach to "knowing" violations of the Act.75
Prior to the 1978 amendments to the Act, a "willful" violation
was required to establish criminal liability.
3. The Standard of Review Under Section 9
Unlike Section 7, which applies only to the federal
government, Section 9 claims are de novo evidentiary proceedings.
Since, unlike Section 7, Section 9 does not entail the
development of an administrative record, it seems unlikely that
administrative law standards and procedures are applicable.76
4. Habitat Modification and the Construction of the
Taking Provision
a. Palila I In Palila v. Hawaii Dep't of
Land and Natural Resources,77 the Palila bird, a federally listed
endangered species, and several environmental groups, sued the
4 See Palila v. Hawaii Dep't of Land and Natural Resources,
639 F. 2d 495, 497 (9th Cir. 1986) ("The only facts material to
this case are those relating to the questions whether the Palila
is an endangered species, and, if so, whether the defendants'
actions amounted to a taking.") See also M. BEAN, THE EVOLUTION OF
NATIONAL WILDLIFE LAW, 78-89 (1983) (discussing the scienter
requirement in other wildlife protection statutes that prohibit
takings).
7 16 U.S.C. S 1540(b)(1).
7 See Palila v. Hawaii Dep't of Land and Natural Resources,
471 F. Supp. 985, 992 n. 23 (D. Hawaii 1979) ("The jurisdiction
of this Court is not conditioned upon a final decision of a state
agency; rather, it is conditioned upon defendants' violation of
Section 9 of the Act....").
7 471 F. Supp. 985 (D. Hawaii 1979), aff'd 639 F. 2d 495
(9th Cir. 1981).
State of Hawaii to enjoin the state from continuing to manage
feral sheep and goats on land designated as critical habitat for
the Palila bird. Grazing by the sheep and goats in the bird's
habitat had destroyed the ability of the forest to regenerate
itself. Even though the plaintiffs did not establish that the
Palila bird population was actually in decline, the court
nonetheless ruled that the continuing destruction of its habitat
by the grazing activities would eventually drive the bird to
extinction.78 The court relied on the FWS regulatory definition
of harm to support its finding.9 In a brief opinion, the Ninth
Circuit Court of Appeals affirmed the district court opinion in
Palila I.80
b. The FWS "Redefinition" of harm The court's
ruling in Palila I prompted the U.S. Fish and Wildlife Service to
revise the regulatory definition of harm. The Service explained
that it sought to clarify its intent that violations of Section 9
reach only instances where "actual killing or injuring of
wildlife" is demonstrated."' Because many commentators in the
rulemaking proceeding regarded this as a significant limitation
to Section 9's reach, the FWS clarified its intent:
Some of the comments in favor of the [proposed]
78 Id. at 988-89.
79 Id. at 995.
s8 Palila v. Dep't of Land and Natural Resources, 639 F. 2d
589 (9th Cir. 1981).
81 6 Fed. Reg. 29491 (June 1981).
17
redefinition, however, viewed the action as
limiting "harm" to direct physical injury to an
individual member of the wildlife species. This
was not the intent of the Service and the final
redefinition addresses that perception. The
purpose of the redefinition was to preclude claims
of a Section 9 taking for habitat modification
alone without any attendant death or injury of
protected wildlife. Death or injury, however, may
be caused by impairment of essential behavioral
patterns which can have a significant and
permanent effect on a listed species.82
Thus the "redefinition" of "harm" adopted by FWS did nothing
to alter the substantive basis of a Section 9 habitat
modification claim, a fact recognized by the court in Palila II.
c. Palila II In 1986 the Palila bird again
made law. This time, new information showed that another type of
sheep, mouflon sheep, had picked up where the feral goats and
sheep had left off. These sheep also fed on the young mamane
tree shoots, preventing them from maturing into the forest upon
which the Palila bird depends. The court once again ruled that
the modification to the Palila's habitat that would result from
the degradation of the mamane forest by continued grazing
violated Section 9 of the ESA.8
The significance of Palila II stems from two sources.
First, the district court confirmed that the FWS "redefinition"
of harm did nothing to alter the substantive basis of a habitat
82 46 Fed. Reg. 54,748 (emphasis added).
83 Palila v. Hawaii Dep't of Land and Natural Resources, 649
F. Supp. 1070 (D. Hawaii 1986).
modification claim under Section 9." Secondly, and perhaps most
importantly, the court found that a "taking" had resulted even
though the Palila bird population had actually stabilized and
even increased in the years since the initial opinion. The court
noted:
A finding of "harm" does not require death to
individual members of the species; nor does it
require a finding that habitat degradation is
presently driving the species further toward
extinction. Habitat destruction that prevents the
recovery of the species by affecting essential
behavior patterns causes actual injury to the
species and effects a taking under Section 9 of
the Act.85
On appeal, the State of Hawaii sought to overrule this
expansive interpretation of Section 9 and the definition of
"harm." Instead, the Ninth Circuit Court of Appeals rejected the
State's efforts to establish a temporal test for the act alleged
to cause the injury and the subsequent "take."
In making this argument, the Department suggests
dichotomy between "actual" and "potential" harm.
The Department believes that actual harm only
includes those acts which result in immediate
destruction of the Palila's food sources; all
other acts are "potential" harm no matter how
clear the causal link and beyond the reach of the
Act.8
The circuit court refused, however, to consider whether "the
Id. at 1075.
8 Id. (emphasis supplied).
86 Palila v. Hawaii Dep't of Land and Natural Resources, 852
F. 2d 1106, 1108 (9th Cir. 1988).
district court properly found that harm included habitat
degradation that prevents recovery of an endangered species." 8
Nonetheless, in the wake of the Palila cases it is clear that,
with the proper facts, the present modification of future habitat
may be actionable under Section 9 of the Act."
5. Further developments in Section 9
The Court of Appeals for the District of Columbia recently
upheld two controversial regulations implementing the ESA against
a facial challenge to the validity of the regulations.89 The
circuit court first refused to find the regulation defining harm
to include habitat modification ultra vires or unconstitutionally
vague.9 Moreover, in the first reported case in which the issue
has arisen, the court upheld the FWS regulation extending Section
9's prohibition against "taking" endangered species to
threatened species as well.9'
"7 Id. at 1110-1111.
8 But see North Slope Borough v. Andrus, 486 F. Supp. 332,
362 (D.D.C. 1980), aff'd in part, rev'd in part, 639 F. 2d 589
(D.C. Cir. 1980) (mere possibility of future taking
insufficient); California v. Watt, 520 F. Supp. 1359 (C.D. Cal.
1981) aff'd in part, rev'd in part 683 F. 2d 1254 (9th Cir.),
rev'd on other grounds, 464 U.S. 312 (1984).
89 Sweet Home Chapter of Communities for a Greater Oregon v.
Babbitt, 1993 U.S. App. LExIS 18570 (D.C. Cir., July 23, 1993).
9 Id. at 4-6.
Id. at 6-10. The ESA provision and FWS regulation at issue
in this part of the opinion are discussed supra in Section II.D.1
of this report.
Sierra Club v. Lyng" is the only as applied reported
habitat modification case to arise since the second Palila
decision." In Sierra Club, the court found that timber
harvesting practices on the Texas National Forests had caused a
catastrophic decline in those forests' populations of red-
cockaded woodpeckers, one of the first species to be listed under
the Act." Relying on Palila I & II, and the FWS definition of
"harm", the court ruled that the modification of the bird's
habitat caused by clearcutting and other management practices had
effected a taking of the woodpecker in violation of Section 9."
The case confirms that population declines that can be traced to
specific management practices can result in a taking. Although
the decision was appealed, the Fifth Circuit did not disturb the
district court's findings related to the Section 9 claims."
In Defenders of Wildlife v. Administrator. Environmental
Protection Agency," the Eighth Circuit found that "the EPA's
decision to register pesticides containing strychnine or to
694 F. Supp. 1260 (E.D. Tex. 1988), aff'd in part and
rev'd in part, remanded, Sierra Club v. Yeutter, 926 F. 2d 429
(5th Cir. 1991).
3 Sierra Club v. Lujan, Case No. 91-CA-069, Slip Op. (W.D.
Tex. February 1, 1991), discussed below, also found takings due
to habitat modification. This case has not yet been reported,
however.
9 Id. at 1271.
Id. at 1272.
6 Sierra Club v. Yeutter, 926 F. 2d 429 (5th Cir. 1991).
7 882 F. 2d 1294, 1301 (8th Cir. 1989).
21
continue those registrations was critical to the resulting
poisoning of endangered species," and a violation of Section 9.
In that case, farmers and ranchers had been using strychnine to
rid their lands of nuisance animals. The court held, in essence,
that EPA's mere failure to prevent an action that would result in
a taking subjected the agency to Section 9 liability."
6. The Effect of Critical Habitat Designation on
Takings Claims
The definition of critical habitat read in conjunction with
the habitat modification cases, suggests that the destruction of
critical habitat can conceivably establish a taking." This is
particularly true if, as the District Court opinion in Palila II
suggests, it is not necessary to show a present decline in the
species to establish actual injury.10 The FWS apparently
subscribes to this interpretation. In its commentary to rules
governing the issuance of "incidental taking" permits under
Section 10(a) of the Act, the Service stated that such permits
would not be approved if they resulted in the destruction or
adverse modification of critical habitat.10' Implicit in this
98 See also National Wildlife Federation v. Hodel, 23 E.R.C.
1089, 1094, 15 ELR 20891 (E.D. Cal. 1985) (decision by the
Secretary of the Interior to authorize lead shot hunting of
migratory birds violates Section 9).
See Field, The Evolution of the Wildlife Taking Concept
from its Beginning to its Culmination in the Endangered Species
Act, 21 Hous. L. REV. 457 (1984).
00 Palila II, 649 F. Supp. at 1075.
10 50 Fed. Reg. 39,684 (1984).
22
statement is the assumption that such an action would necessarily
"jeopardize the continued existence of the species." Under
Palila II, it would also necessarily injure, and thus "take" the
species.102
7. The Failure to Develop and Implement Recovery
Plans as Takings
In a very recent opinion involving the ESA and water
allocations in Texas, a district court issued a novel opinion of
takings liability under the ESA. The case involves depletion of
springflows from the Edwards Aquifer, an unregulated ground water
source in Texas. The plaintiffs in the case argued that two
species of fish and a plant species were being taken as a result
of continued depletion of the water resource. Rather than sue
the water users, the plaintiffs filed suit against the Fish and
Wildlife Service. The district court held the failure of FWS to
develop and implement recovery plans for the listed species had
jeopardized their continued existence and resulted in the taking
of those species.10 The court's opinion is summarized in
02 See generally Note, Habitat Conservation Plans Under the
Endangered Species Act, 24 SAN DIEGO L. REV. 243 (1987). It is
worth noting, however, that in its Biological Opinion on Modified
Water Deliveries to Everglades National Park the FWS issued a no
jeopardy opinion and incidental take permit for the Everglades
Snail Kite despite the fact that the preferred alternative called
for modification of designated critical habitat. U.S. FISH AND
WILDLIFE SERVICE, BIOLOGICAL OPINION ON MODIFIED WATER DELIVERIES TO
EVERGLADES NATIONAL PARK, 19 (Feb. 13, 1990).
03 Sierra Club v. Lujan, Case No. 91-CA-069, Slip Op. 39-44
(W.D. Tex. Feb. 1, 1993). A Copy of the Court's Opinion, and a
memorandum by plaintiff's counsel is included in the appendix to
this report.
greater detail below and a copy of the Judgment, Findings of Fact
and Conclusions of Law and a memorandum discussing the case from
plaintiff's counsel is included in the appendix to this report.
8. The Failure to Manage Land for Endangered Species
as Takings
Many types of wildlife, including listed species, are
dependent on ecosystems that require affirmative management
practices to ensure their survival. For example, Florida
ecosystems such as the longleaf pine forests and the Ancient
Scrub require periodic fire to avoid transition to successional
habitat types. No cases have imposed an affirmative duty on a
non-federal landowner to employ land management techniques to
prevent habitat modification through "natural" ecosystem
succession. In Sierra Club v. Lvnq the District Court did find a
federal defendant liable in part for failing to affirmatively
manage the Texas National Forests for the endangered Red-Cockaded
Woodpecker.10 In Palila, the Court enjoined the state from
continuing to manage lands for an exotic species.1
9. Governmental authorization of activities as ESA
takings
Governmental agencies regularly issue permits for a broad
range of activities. Although the physical activity may be
10 694 F. Supp. 1260 (E.D. Tex. 1988). The court found that
the Forest Service's failure to employ midstory removal of
hardwoods contributes to woodpecker nest abandonment. Id. at
1271.
105 Palila II 649 F. Supp. at 1082.
24
carried forward by parties other than the agency, the agency may
nonetheless retain responsibility for the effects of the activity
on any federally listed species. No cases have specifically held
that a licensing agency may be liable under Section 9 for the
issuance of permits that result in takings. In a recent case,
however, the plaintiff sued the Bureau of Reclamation rather than
a state water rights holder as the agency responsible for
authorizing diversions that depleted the habitat of a listed
species.06 This case is also summarized below and included in
the appendix to this report.
Moreover, in Florida, the FWS field office recently issued a
letter to local governments advising them of potential liability
for the issuance of land development permits that could result in
the taking of listed species.1" And as noted above, in one
instance, a circuit court held a federal agency liable merely
because it failed to prevent a taking.10
III. The ESA and Water Related Decisions
A. The ESA and State Water Law
The relationship between the ESA and state water law has
been an uneasy one, due largely to the historic deference the
106 Oregon Natural Resources Council v. Bureau of
Reclamation, No. 91-6248 (D. Ore. July 10, 1991).
07 Correspondence from the Field Supervisor, U.S. Fish &
Wildlife Service to the Mayor of the City of Boca Raton.
106 Defenders of Wildlife v. Environmental Protection Agency,
882 F. 2d 1294, 1301 (8th Cir. 1989).
25
federal government has given the states in the administration of
water rights.'1 This uneasy relationship has been especially
pronounced in the west, where access to water often dictates
whether development may take place at all, where such access is
often provided through federal reclamation projects subject to
Section 7 of the ESA, and where water rights rise to the level of
a vested property interest.10 Nonetheless, it appears that when
a conflict arises, the ESA may effectively preempt state water
law to avoid jeopardy to, or the taking of, listed species."'
Scholars seeking to define the federal interest in state water
allocations have characterized both the ESA and CWA as "federal
regulatory rights" to distinguish them from federal reserve
rights and other species of federal water rights.12
B. Federal Statutory "preemption" of state water law
Western concern over the ESA's power to modify both federal
water projects and supersede state water law led to efforts to
amend the ESA to include a savings provision for state water
rights. The proposed amendment was weakened, however, to include
09 See generally, A. TARLOCK, LAW OF WATER RIGHTS AND RESOURCES, S
9.05[1],[2] (1992); Comment, The Effect of the Federal Endangered
Species Act on State Water Rights, 22 ENVT'L LAW 1026- (1992) (M.
Estes).
110 See generally, MARC REISNER AND SARAH BATES, OVERTAPPED OASIS:
REFORM OR REVOLUTION FOR WESTERN WATER 1-196, (1990).
11 See generally, Comment, The Effect of the Federal
Endangered Species Act on State Water Rights, 22 ENVT'L LAW 1026-
(1992) (M. Estes).
112 See A.D. Tarlock, "The Endangered Species Act and Western
Water Rights," 20 LAND AND WATER L. REV. 1 (1985).
26
a provision that merely encourages cooperation between the state
and federal governments. The ESA now makes it congressional
policy that "Federal agencies shall cooperate with State and
local agencies to resolve water resource issues in concert with
conservation of endangered species.""' This provision was
recently held to confer no special benefits to state water rights
holders.
This provision does not require that state water rights
should prevail over the restrictions set forth in the
Act. Such an interpretation would render the Act a
nullity. The Act provides no exemption from compliance
to persons possessing state water rights, and thus the
District's state water rights do not provide it with a
special privilege to ignore the Endangered Species Act.
Moreover, enforcement of the Act does not affect the
District's water rights but only the manner in which it
exercises those rights.14
1. ESA Case Law involving water allocation decisions
A number of cases decided or pending under the ESA have
involved water management and allocation. Without exception,
these cases have arisen in the context of federal water projects
in prior appropriation states. Moreover, as exemplified by the
above quotation, the courts invariably refused to defer to state
water law.
113 16 U.S.C. S 1531(c) (2).
114 United States v. Glenn Colusa Irrigation Dist., 788 F.
Supp. 1126 (E.D. Cal. Jan. 9, 1992). See also Truckee Carson
Pyramid Settlement Act, Pub. L. No. 101-613 SS 201-210, 104
Stat. 3289, 3294-3324 (codified at 16 U.S.C. S 668dd note, 43
U.S.C. S 614 note (1988)).
a. Oregon Natural Resources Council v. Bureau of
Reclamation, Case # 91-6284 (D. Ore. July 10,
1991).
In this case, Oregon Natural Resources Council ("ONRC")
claimed that the Federal Bureau of Reclamation's diversions from
an irrigation project lowered the water level in Upper Klamath
Lake and adversely affected the habitat for two federally listed
species of fish.15 ONRC alleged that the Bureau, rather than
the water rights holder, was responsible for taking protected
species in violation of the ESA by its operation of the Klamath
Project.
ONRC also claimed that the Bureau violated its duty to
consult because it failed to designate critical habitat and to
adopt a recovery plan, both considered by ONRC to be necessary
for the consultation to be meaningful or legally significant."6
The court found that the Bureau had fulfilled its obligation to
consult with FWS over the effects of the project and found
nothing in the ESA that requires the designation of critical
habitat or the development of recovery plans prior to
consultation.117 ONRC also contended that the Bureau was not
complying with the incidental taking statement of the biological
opinion, and therefore any takings were unauthorized and
115 Oregon Natural Resources Council v. Bureau of
Reclamation, case #91-6284 (D. Ore. July 10, 1991), at 2.
116 Id. at 6.
117 Id.
violations of Section 9 of the ESA."8 The court also dismissed
these claims.19
b. United States v. Glenn-Colusa Irrigation
Dist., Case # s-91-1074, DFL-JFM (E.D. Cal.
Jan. 9, 1992) 788 F. Supp. 1126 (E.D. Cal
1992).
The National Marine Fisheries Service ("NMFS") sought an
injunction to prevent the Glenn-Colusa Irrigation District
("GCID"), a state water rights holder, from diverting water for
irrigation from the Sacramento River in violation of the ESA
section 9. NMFS claimed that these diversions were killing, and
therefore a taking of, the Sacramento River winter-run chinook
salmon, a species designated as threatened and protected by the
ESA.120 GCID argued that it was not its pumping, but rather the
fish screens which were causing the taking of the salmon.121
These screens were supposed to prevent the salmon from entering
GCID's pump intakes.22
The court granted the NMFS a permanent injunction
restricting GCID's pumping.'n The court found that the water
18 Id. at 7.
119 Id.
120 United States v. Glenn-Colusa Irrigation Dist., 788 F.
Supp. 1126, 1132 (E.D. Cal. 1992).
121 Id. at 1133.
122 Id.
23 Id. at 1135.
diversions would cause irreparable harm to the salmon and that
the pumping itself, rather than the screens, resulted in a taking
of the salmon in violation of the ESA.12 The court rejected
GCID's claim that its state water rights should prevail over the
ESA, and instead held that the ESA does regulate the way those
rights are exercised.1"
c. Sierra Club v. Luian, Case No. 91-CA-069
(W.D. Tex. Feb. 1, 1993).
The plaintiff (Sierra Club) sued the Secretary of the
Interior and the U.S. Fish and Wildlife Service ("USFWS") to
compel them to develop a recovery plan for Comal Springs and to
implement its recovery plan for San Marcos Springs, both primary
outlets of the Edwards aquifer.26 The rate of flow from these
springs is related to the water level of the Edwards,n1 and
several endangered and threatened species in the area rely upon
adequate and continuous flows of water through the Edwards.128
Sierra Club also wanted the defendants to identify the necessary
springflow requirements of the endangered and threatened species
in the springs, information necessary to develop a regulatory
scheme for usage of the unregulated Edwards.
124 Id.
12 Id. at 1134.
126 Sierra Club v. Lujan, Case No. 91-CA-069 (W.D. Tex. Feb.
1, 1993), Unpublished Judgment and Findings of Fact, Finding No.
21.
1v Id. Finding No. 20.
128 Id. Finding No. 80.
Ruling in favor of Sierra Club, the court found that USFWS's
failure to develop and implement recovery plans caused or allowed
the taking of and caused or risked jeopardy to the endangered
species.'1 The court stated that the duty to prepare and
implement recovery plans is a mandatory duty.30 The court,
among other things, ordered USFWS to promptly determine the
minimum springflow requirements to avoid taking and jeopardy of
all of the listed species found at the springs and in the
aquifer.'31 The court also acknowledged the necessity of
regulating the Edwards to ensure water quality within the
aquifer,132 and to maintain the economic interests and endangered
species that rely on it.
d. Northwest Resource Information Center, et al.
v. National Marine Fisheries Service,
C921156(D)M (W.D. Wash. Aug. 4,
1992)(Complaint); Pacific Northwest
Generating Cooperative, et al. v. Brown, Case
No. 92-1260-MA, Slip Op., 1993 U.S. Dist.
LEXIS 5160 (D. Ore. April 1, 1993)(The
"salmon cases").
These related cases involve the complex issues arising from
the effects of hydroelectric generation facilities on migrating
129 Id. Findings No. 99, 100.
130 Id. Finding No. 69.
131 Id. Judgment, at 2.
132 Id. Finding No. 53.
salmon in the northwest. In Northwest Resource Information
Center, plaintiffs are seeking to compel the defendant agencies
to manage the Federal Columbia River Power System ("FCRPS"), the
state water rights holder, so that it would not jeopardize or
take endangered and threatened Snake River salmon. Plaintiffs
wanted defendants to engage in continuing, adequate and
comprehensive consultation under the ESA regarding FCRPS's direct
and indirect impacts on the salmon. Plaintiffs also wanted
defendants to insure sufficient in-river conditions for the
salmon to minimize the incidental take of the salmon by the
FCRPS. The case remains pending.133
In Pacific Northwest Generating Cooperative, plaintiffs, a
group interested in hydroelectric power allocation, complained
that defendants' decision to augment flows over dams in an effort
to improve juvenile fish migration had an insignificant impact
upon the protection of federally listed salmon species.134
Plaintiffs argue that these measures instead sought to rebuild a
commercial salmon harvest and contributed to increased power
rates and an unstable power supply.'35 Plaintiffs claim
133 In a ruling on a pretrial procedural motion, the District
Court dismissed one defendant, the Bonneville Power
Administration, on jurisdictional grounds. The District Court
held that a Federal statute vested exclusive jurisdiction for
actions involving the Northwest Power Act in the Circuit Court of
Appeals. Northwest Resource Information Center v. National
Marine Fisheries Service, et al., 1993 WL 98773 (W.D. Wash.).
134 Pacific Northwest Generating Cooperative, et. al. v.
Brown, Case No. 92-1260-MA, 1993 U.S. Dist. LEXIS 5160 (D. Ore.
April 1, 1993), at 3.
135 Id.
defendants violated the ESA by failing to conduct comprehensive
or adequate consultations, thus challenging the biological
opinions on several issues related to harvest and hydropower
management."36 Plaintiffs also contend that defendants violated
sec. 9 of the ESA by issuing incidental take permits for
harvests.37 Plaintiffs contend these permits authorized direct
rather than incidental takes of the salmon.138
The court dismissed plaintiffs' claims for lack of standing
under the ESA.139 The court reasoned that the plaintiffs'
claimed injury related to the water resource, not to the fish,
and that the ESA was not the appropriate vehicle for their
claims.10 Furthermore, the court reasoned that even if
defendants' fully complied with all ESA provisions, there would
be no causal link between the economic injury and the asserted
ESA violations.141 Also, the court noted that plaintiffs did not
satisfy the "redressibility" element of three-prong standing test
since nothing could ensure that the power rates would go down if
defendants fully complied with the ESA.142
e. Carson Truckee Water Conservancy Dist. v.
'3 Id. at 38.
137 Id. at 41.
138 Id. at 46.
139 Id. at 96.
140 Id. at 81.
141 Id. at 76.
142 Id.
Clark, 741 F.2d 257 (9th Cir. 1984).
Plaintiffs sought a declaratory judgment that the Secretary
of the Interior had violated the Washoe Project Act, 43 U.S.C.A.
SS 614 614d and related reclamation laws by refusing to sell
water from a dam and reservoir on the Little Truckee River.143
The Secretary operated the dam in manner which conserved two fish
species protected under the ESA and in so doing had found there
was no excess water to sell."1 Plaintiffs conceded that the
Secretary's obligations under the ESA superseded those under the
Washoe Project Act.145 However, they challenged the extent of
the Secretary's obligations under the ESA regarding the amount of
water needed to maintain the fish species.'~
The district court held for defendants, finding that the ESA
required prioritization of the protection of endangered or
threatened species.47 It thus permitted the Secretary to use
all of the water necessary at any given time to conserve the two
fish species.148 On appeal, the Ninth Circuit affirmed this
decision, reiterating the Secretary's superseding obligations
143 Carson Truckee Water Conservancy Dist. v. Clark, 741 F.
2d 257, 259 (9th Cir. 1984).
44 Id.
145 Id.
146 Id.
147 Id. at 262.
148 Id. at 261.
under the ESA.149
C. Water Related Issues that May Implicate the ESA
1. Management measures taken to protect one listed
species that may adversely affect another listed
species
The number of listed species in the Everglades watershed,150
coupled with their varying hydrologic requirements and the
history of hydroperiod manipulation in the region, virtually
ensures that interspecies conflicts will occur as multiple use
water management problems are addressed by the District. For
example, measures to assist the recovery of one species or whole
ecosystems may incidentally jeopardize another listed species.15
Planning and coordination with FWS and other wildlife agencies
consistency with the ecosystem or species specific management
alternatives implemented under the ESA and related wildlife laws.
Multispecies habitat conservation plans and ecosystem
recovery plans offer the greatest promise for avoiding
149 Id. at 263.
150 The U.S. Fish and Wildlife Service has listed 18 species
of animals that occur in the Everglades SWIM Plan area as
endangered or threatened. South Florida Water Management
District, Surface Water Improvement and Management Plan for the
Everglades, Supporting Information Document, 75 (March 13, 1992).
See 50 C.F.R. 17.11 (1992). The Florida Game and Freshwater Fish
Commission list 25 species as endangered or threatened. FLA.
ADMIN. CODE ANN. r. 39-27 (1992).
151 Indeed, the "single species" approach to the preservation
of biological diversity that the ESA embodies has been its
principle criticism. D. Rohlf, Six Biological Reasons Why the
Endangered Species Act Doesn't Work--And What to Do About It, 5
CONSERVATION BIOLOGY 273-282, 275 (Sept. 1991).
35
interspecies conflicts. Moreover, this appears to be the
direction the Department of the Interior is taking under the
current administration. Seeking Section 10 incidental take
permits whenever agency action to enhance habitat may affect a
listed species will help minimize conflicts. The procedures for
obtaining "incidental take" permits are discussed in greater
detail below.
2. Cumulative effects of water related decisions
Two large western water projects triggered the development
of a cumulative effects policy for consultations under Section 7
of the ESA.152 Both projects affected downstream flows in an
area designated as critical habitat for a listed species. The
Service sought a Solicitor's opinion on whether other water
projects planned in the area must be considered in the initial
consultation. The Solicitor first argued by analogy to NEPA that
the Service must consider the cumulative effects of all past
present and future federal and non-federal actions.53 However,
this aspect of the opinion was subsequently limited to non-
federal actions."' The Solicitor noted that, unlike NEPA,
Section 7 of the ESA imposes a substantive duty on federal
152 88 Interior Dec. 903 (1981).
153 85 Interior Dec. 275 (1978).
14 88 Interior Dec. 903 (1981). See also Sierra Club v.
Marsh, 17 ELR 20717, 20723 (9th Cir. 1987).
36
agencies not to jeopardize listed species.155 The Solicitor
reasoned that this substantive duty must be considered in every
subsequent federal agency action, ensuring that all future
actions must individually satisfy the ESA's non-jeopardy
obligations, and removing the need for cumulative effects
analysis.156 In essence, this controversial opinion creates a
priority system for ESA consultations on federal projects based
on the "first in time first in right" standard of western water
law.
Under the Solicitor's opinion, and by regulation,"57
cumulative effects analysis is required where future non-federal
actions are "reasonably certain to occur" prior to completion of
the federal project.""58 The Solicitor's opinion defines
"reasonably certain to occur" where
"the action requires the approval of a state or local
resource or land use control agency and such agencies
have approved the action, and the project is ready to
proceed. Other indicators which may also support such
a determination include whether the project sponsors
provide assurance that the action will proceed, whether
contracting has been initiated, whether there is
obligated venture capital, or whether State and local
planning agencies indicate that grant of authority for
the action is imminent....The more that state or local
administrative discretion remains to be exercised
155 Unlike the ESA, NEPA is regarded as a purely procedural
statute that merely requires federal agencies to "consider" the
environmental effects of agency action. Tennessee Valley
Authority v. Hill, 437 U.S. 153, 188 n.34 (1978).
156 88 Interior Dec. at 906.
157 50 C.F.R. S 402.2 (1992).
158 88 Interior Dec. at 908.
before a proposed state or private action can proceed,
the less reasonable certainty that the project will be
authorized. ,159
A cumulative effects rationale was alluded to in the FWS
Biological Opinion on Modified Water Deliveries to Everglades
National Park. In the opinion the FWS concluded that with the
adoption of certain measures the Modified Rainfall Driven
Alternative preferred by the Corps would not jeopardize the
continued existence of the endangered Snail Kite in its
designated critical habitat Conservation Area 3A.60 The FWS
therefore authorized the incidental taking of some individuals as
a result of the alterations in the water management regime within
the Project.161
FWS cautioned, however, that non-federal actions that would
further affect the hydrologic regime within Snail Kite habitat
might "tip the balance" toward jeopardy.162 Such actions might
include otherwise unrelated District water management activities
such as the issuance of consumptive use and MSSW permits. The
Biological Opinion suggests that the federal project has used up
159 Id.
60 U.S.Fish and Wildlife Service, Biological Opinion,
Modified Water Delivery to Everglades National Park (February 13,
1990).
161 Id.
162 Id.
all the available "cushion" between jeopardy and non-jeopardy.163
The priority implicitly granted to the Corps may diminish the
ability of others to obtain incidental taking permits in Snail
Kite habitat.
IV. Mechanisms to Ensure Compliance with the ESA
A. Section 10 and the Incidental Takings Provisions
The undeniable power of the ESA to thwart developments that
jeopardize endangered species became readily apparent in the wake
of the famous "snail darter case".16 Constrained by a
compelling legislative history, the Supreme Court found itself
powerless to avoid enjoining a nearly completed hydroelectric
project that would "jeopardize the continued existence" of a
small fish in the Tellico River.165 Congressional reaction was
swift, and the Act was amended to permit exceptions to Section
7's mandate to federal agencies to avoid jeopardy to endangered
and threatened species.66 Section 9, however, was not directly
implicated in TVA V. Hill. Non-federal parties remained subject
163 As the Solicitor's opinion on cumulative effects notes:
"It is this 'cushion' of remaining natural resources which is
available for allocation to projects until this utilization is
such that any future use may be likely to jeopardize a listed
species or adversely modify or destroy its critical habitat." 88
Interior Dec. at 907.
*6 TVA v. Hill, 437 U.S. 153 (1978).
165 Id. at 178.
166 16 U.S.C. S 1536(e).
to the Act's absolute taking "prohibition".
In 1982, however, the Act was again amended to afford all
persons subject to the Act a potential relief valve from the
absolute prohibition of Section 9.167 Amended Section 10 now
"addresses the concerns of private landowners who are faced with
having otherwise lawful actions not requiring Federal permits
prevented by Section 9 prohibitions against taking.""16 In
essence, the amendment to Section 10 has created for private
parties a consultation process with FWS, with substantive and
procedural requirements closely analogous to that found in
Section 7.69 Permits granted pursuant to Section 10(a) will
insulate parties from takings liability for actions consistent
with the permit.
To avoid liability under Section 9 a person who seeks to
engage in an activity that may "take" an endangered or threatened
species must seek an "incidental taking" permit from the FWS.
(Pursuant to Section 4(d) of the Act, FWS has adopted regulations
which authorize incidental takings of threatened species based
upon the same standards statutorily established for endangered
species.70) To qualify initially, the applicant must first
167 Endangered Species Act Amendments of 1982, Pub. L. No.
97-304, 96 Stat. 1411.
168 H.R. Conf. Rep. No. 835, 97th Cong., 2d Sess. 29,
reprinted in 1982 U.S. Code Cong. & Admin. News 2860, 2870.
169 Compare 16 U.S.C. S 1536(b)(4) with 16 U.S.C. S
1539(a)(2).
170 50 C.F.R. S 17.32(b).
establish that the proposed taking is in fact "incidental"; that
is "not for the purpose of, carrying out of the otherwise lawful
activity."171 Once this relatively simple threshold is crossed
the applicant must submit to the Secretary a "conservation
plan."172
B. Predecisional Endangered Species Review Early and
Informal Consultations on decisions that may affect
listed species
FWS regulations provide several mechanisms designed to
minimize listed species conflicts during the early stages of
proposed projects. For example, the regulations authorize non-
federal parties to require "early consultation" between FWS and
the action agency to reduce the likelihood of conflicts between
endangered species and applicants for federal permits or
licenses.173 Early consultation provides the same procedures as
formal consultation except that references are to "prospective
applicants" and "preliminary biological opinions.""1
In addition, FWS regulations authorize "designated non-
federal representatives" to engage in "informal consultations"
and to prepare biological assessments. Informal consultation is
an optional process used to determine whether formal consultation
is required, and consists of all discussions and correspondence
171 16 U.S.C. S 1539(a)(1)(B).
172 Id. at S 1539(a) (2) (A).
173 50 C.F.R. S 402.11 (1992).
174 Id. at S 402.11(d).
that lead up to a decision whether to undertake formal
consultation.175
C. Minimum Flows and Levels and Reservations of Water
Section 373.042, Florida Statutes, requires the Districts to
establish minimum flows and levels to protect water resources
from significant harm.17 Minimum flows must also protect the
"ecology of the area."177 The statute also authorizes the
Districts to reserve water from use by permit applicants for the
protection of fish and wildlife,17 and to prohibit or restrict
uses on designated bodies of water that may be inconsistent with
the objective of protecting fish and wildlife.17 Avoiding harm
to listed species would appear to be a valid criteria for the
establishment of minimum flows and levels, or for the reservation
of water. Moreover, there is precedent for the designation of
flows and levels in critical habitat determinations. For example,
for one listed snake species the FWS designated specific minimum
flows and continuous daily flows as critical habitat
requirements.180 In the recently decided Texas case discussed
175 Id. at S 402.13.
176 FLA. STAT. ch. 373.042 (1991). This provision was recently
held to impose a mandatory duty on the District's to adopt rules
establishing minimum flows and levels within a "reasonable time."
See generally Concerned Citizens of Putnam County v. St. John's
Water Management District, 18 F.L.W. D1643.
"1 Id.
178 Id. at S 373.223(3).
19 Id. at S 373.036(7).
180 50 C.F.R. S 17.95(c) (1992).
42
above the court imposed interim spring flows to avoid jeopardy to
three listed species and required FWS to establish minimum spring
flows thereafter.181
D. Rulemaking and Permit Conditions
The recent efforts of FWS and private plaintiffs to impose
liability on government agencies merely for their licensing and
other authorizing activities that may "take" listed species
suggests that permitting agencies should be extremely cautious in
their approach to endangered species review of such activities.
One approach that permitting agencies might consider would entail
conducting such reviews in accordance with the criteria
established by the ESA. This approach would inform the agency
whether the permitted action complies with the ESA in the first
instance.
181 Sierra Club v. Lujan, Case No 91-CA-069, Slip Op. at 2
(W.D. Tex. Feb. 1, 1993).
APPENDICES
A. List of Contacts
1. Melinda Taylor
Henry, Lowerre & Taylor
202 West 17th Street
Austin, Texas, 78701
(512)479-8125
fax(512)479-8269
Plaintiff's attorney in Sierra Club v. Lujan, et
al, Cas. No. 91-CA-069 (W.D. Tex. January 30,
1993)
2. Adam Berger
Sierra Club Legal Defense Fund, Inc.
Seattle, Washington
B. The Endangered Species Act of 1973, as amended, 16 U.S.C.
1531 et. seq. -
C. Regulations Implementing the Endangered Species Act
1. 50 C.F.R. 17.3
2. 50 C.F.R. S 402 et seq.
D. Relevant Case law and Pleadings
1. Palila v. Hawaii Dep't of Land and Natural Resources,
649 F. Supp. 1070 (D. Hawaii 1986).
2. Palila v. Hawaii Dep't of Land and Natural Resources,
852 F. 2d 1106, 1108 (9th Cir. 1988).
3. Sierra Club v. LvnQ, 694 F. Supp. 1260 (E.D. Tex. 1988),
aff'd in part and rev'd in part. remanded, Sierra Club v.
Yeutter, 926 F. 2d 429 (5th Cir. 1991).
4. Sierra Club v. Lujan, Case No. 91-CA-069, Slip Op. 39-44
(W.D. Tex. Feb. 1, 1993).
5. Oregon Natural Resources Council v. Bureau of
Reclamation, Case # 91-6248 D. Ore. July 10, 1991).
6. United States v. Glenn-Colusa Irrigation Dist., Case #
s-91-1074, DFL-JFM (E.D. Cal. Jan. 9, 1992) 788 F. Supp. 1126
(E.D. Cal 1992).
7. Northwest Resource Information Center, et al. v.
National Marine Fisheries Service, C921156(D)M (W.D. Wash. Aug.
4, 1992) (Complaint).
8. Pacific Northwest Generating Cooperative, et al. v.
Brown, Case No. 92-1260-MA, Slip Op., 1993 U.S. Dist. LEXIS 5160
(D. Ore. April 1, 1993).
9. Carson Truckee Water Conservancy Dist. v. Clark, 741 F.
2d 257 (9th Cir. 1984).
E. Relevant Secondary Literature
1. 88 Interior Dec. 903 (1981).
2. O. Houck, The Endangered Species Act and Its
Implementation by the U.S. Departments of Interior and Commerce,
64 U. COLO. L. REV. 277-370 (1993).
3. G. Coggins & I. Russell, Beyond Shooting Snail Darters in
Pork Barrels: Endangered Species and Land Use in America, 70
GEORGETOWN L. J. 1433-1525 (1982).
4. Hamann & Tucker, Legal Responsibilities of the National
Park Service in Preserving the Florida Panther (October 26,
1987).
5. M. Zallen, Evolution of ESA Consultations on Western
Water Projects, 2 NAT. RES. & ENVT. 41 (1986).
6. Comment, The Effect of the Federal Endangered Species Act
on State Water Rights, 22 ENVT'L LAW 1026- (1992) (M. Estes).
F. U.S.Fish and Wildlife Service, Biological Opinion, Modified
Water Delivery to Everglades National Park (February 13,
1990).
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