Title: The Federal Endangered Species Act and Water Law
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Title: The Federal Endangered Species Act and Water Law
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Publisher: Center of Governmental Responsibility- University of Florida College of Law/Sept. 9, 1993
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Abstract: Richard Hamann Collection - The Federal Endangered Species Act and Water Law
General Note: Box 25, Folder 2 ( The Federal Endangered Species Act and Water Law - 1993 ), Item 1
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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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