Briefing Paper On The Federal Endangered Species Act
and Its Application to EPA
Prepared for:
EPA Workshop on the Endangered Species Act
'January 12-13, 1994
Prepared by:
Office of General Counsel
Grants and Intergovernmental Division
Environmental Protection Agency
Pstar Lallas, Tony Guadagno/ and Howard Corcoran
vita the assistance of Annette Washington, Bonita Follins,
SaDonni Langley, Stephanie McCoy, Deborah Warrick, and Cheryl
Rose
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Table of Contents
Topic Page Number
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background Information . . . . . . . . . . . . . . . . . . 2
1. OriginandPurposes of the ESA...
2. General Structure of the EBA..........................3
3, The Listing Process.. •......... . ........ . . . •....... .1.4
4. The Critical Rabitat Designation Process............ . .7
5 . Recovery Plans . . . . . . . . . . . . . . 9
Legal Assumptions ........... 11
1. Substantive Obligations Under Section 7 of the Act...11
• No Likelihood of “Jeopardy” or “Destruction or
Adverse Modification of Critical Habitat Under
Section 7(a) (2) . . 11
— BasicStandardofSection7(a)(2).. 11
— The No-Jeopardy Requirement.....................11
- The No Likelihood of Jeopardy (No-Jeopardy)
Requirement. . . . . . . 11
- The Prohibition Against Likelihood of
Destruction or Adverse Modification of Critical
Habitat . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
- Scope of Agency Actions Covered by
Section 7(a) (2) 14
— Type of Effects that Must be Considered.........14
• Exemptions from Section 7(a)(2) Substantive
Standard 17
• No Irretrievable or Irreversible Commitments... .18
• Affirmative Obligation to Conserve 19
2. Substantive Obligations Under Section 9 of the Act.. .22
• Prohibition Against “Take” of Listed Fish and
Wildlife Species. ........... 1lIl• .22
• Special Provisions for “Incidental Take” by
Federal Agencies .. 26
• Special Provisions for “Incidental Take” by
N on—Federal Entities.... • ... 1I . .1.1.27
• Prohibitions Relating to Listed Plant Species...27
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3. Procedural Obligations Under Section 7 of the Act....28
The Duty to Consult. .......... . . . . • • • • • • • • • .1.28
— General .. •1l 28
— Informal Consultation 28
— Biological Assessments..........................29
— Trigger for Formal Consultation.................30
— Designation of Lead Agency and Non-
Federal Representatives •1 31
— The Formal Consultation Process - Action
Agency Responsibilities... 1••lSSS •••• •• • ... .31
— The Formal Consultation Process - Service
Responsibilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
- Time Period for and Termination of Formal
Consultation. . 34
— Reinitiation of Consultation. • .......... .34
— Information Standard and Ultimate
Responsibility for Action..................... .135
— Early Consultation. . . . . . . . . . . . . . . . . . . . . . . 36
— Obligationto”Confer” 37
— Importance of Consultation Obligations 37
4. Internationally—Based Obligations....................38
5. Types of EPAActions Covered.........................39
6. Common Issues Regarding EPA Interaction with the
Service. . . 41
7. Alternative Mechanisms to Facilitate Compliance with
Consultation Requirements.. . ....44
• Ecosystem—Based Approaches............. 44
• Memoranda of Agreement 44
• CounterpartRegulations 44
• Optional Consultation Procedures 45
• Other Actions and Possibilities for Cooperation.45
8. Types of EPA Authorities that Could be Utilized
under Section 7(a) (1) •‘ . 46
9. Penalty Provisions...... . 48
Civil Penalties . . . .. 1.11.1.48
Criminal Penalties. . . . . . . . . . . . . . 49
• Interpretation of the “Knowingly” Standard......49
• Violations by Government Officials 51
10. Citizen Suits 52
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Introduction
The federal Endangered Species Act (the “ESA” or “Act”)
contains a number of specific substantive and procedural
obligations that apply to the activities of federal agencies,
including EPA. This briefing paper sets forth background
information and legal assumptions relevant to EPA’S management of
these obligations in furtherance of the Agency’s endangered species
initiative. See generally the EPA Memoranda at TAB A.
At the outset, it is important to consider how ESA obligations
relate to the environmental protection responsibilities of EPA.
Many EPA-administered laws call upon the Agency to establish
environmental quality standards, regulate industrial activities and
take other actions to prevent or reverse pollution and protect the
nation’s air, waters and land. These actions, like actions to
implement the ESA, are essential to the protection of wildlife and
biodiversity: they protect individuals of a species from harms of
pollution or contaminants; and they serve to maintain (against the
threat of pollution) the health and vitality of habitat and
ecosystems.
These same actions, however, also create the possibility of
harm to species, as well as benefits. The establishment of
environmental standards or permissible levels of pollution or
contaminants, for example, could make possible the introduction of
agents or contaminants into the environment that may adversely
affect species and habitat protected by the ESA. Such EPA actions
are subject to the obligations of the ESA, which can act as a
substantive bar in specific cases.
This briefing paper seeks to strengthen the understanding
within the Agency of the ESA, and identify opportunities to
facilitate compliance with ESA obligations relevant to EPA. It
also identifies several ways in which EPA’s own authorities and
responsibilities could be utilized in furtherance of the
affirmative conservation obligations of the ESA.
This briefing paper is not intended to be a substitute for
specific legal advice in individual cases. The ESA is a detailed,
substantive statute. Moreover, EPA actions and related compliance
issues and opportunities vary according to the particular
circumstances surrounding each case or program. Programs should
seek the advice of the General Counsel’s office in each specific
situation where an ESA obligation may be relevant.
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Background Information
1. Origin and Purposes of the EBA
The ESA’ was enacted in 1973 in response to mounting concerns
about the impacts of human activities on wildlife, habitat and
natural ecosystems. The stated purposes of the Act are to:
conserve ecosystems upon which endangered and threatened species
depend; provide a program for the conservation of such species; and
support the purposes of specified international treaties for the
protection of wildlife and habitat. The term “conserve” is defined
under the Act to 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 (under the
Act] are no longer necessary.” 2
The Supreme Court has stated the explicit congressional
decision embodied in the ESA to require agencies to afford “first
priority” to the national policy of saving endangered species.
Chief Justice Burger, writing for the majority in TVA v. Hill, 3 437
U.s. 153 (1977), indicated that agencies are under a substantive
mandate to “prevent the loss of any endangered species, regardless
of the cost.” (emphasis in original). 4
The protection of wildlife and ecosystems remains a major
concern twenty years after the adoption of the Act. Although
there has been important progress in achieving the Act’s goals, 5
the causes of species decline, including loss, degradation and
fragmentation of habitat, persist. 6 Private citizen litigation to
1 16 U.S.C. §S 1531-1544. The ESA is reproduced at TAB B.
2 16 U.S.C. § 1532(3).
TVA v. Hill and several of the other selected cases cited
in this briefing paper are reproduced at TAB C.
TVA v. Hill , 437 U.S. at 188 n.34.
A December, 1993 News Release of the Fish and Wildlife
Service indicated, for example, that the Act has been essential to
the protection of the bald eagle, the American alligator, the gray
whale and the peregrine falcon, which all seemed headed toward
extinction twenty years ago. Today, the alligator no longer needs
protection under the Act, and the bald eagle, the peregrine and the
gray whale show high promise of returning to healthy numbers.
6 , e.g., Threats to Biological Diversity in the United
States , U.S. Environmental Protection Agency, September 1990 (TAB
D); Statement of Administrator Browner before the Committee on
Merchant Marine and Fisheries, U.S. House of Representatives, April
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compel compliance with the Act has been extensive.
Although the Act has been amended several times, its essential
substantive mandates have changed very little since its adoption.
Following amendments to the ESA in the aftermath of TVA v. Hill ,
the First Circuit noted that the legislative intent was that the
Act “continues to give the benefit of doubt to the species.” 7
2. General Btructure of the ESA
The ESA contains a number of provisions and obligations to
protect species and achieve its basic purposes. These include:
provisions for the listing of endangered or threatened species and
designating critical habitat, requirements to develop recovery
plans for such species, and specific substantive and procedural
obligations that apply to federal agencies and individual citizens.
The ESA is administered by the U.S. Fish and Wildlife Service
(USFWS) of the Department of Interior (for terrestrial species) and
the National Marine Fisheries Service (NMFS) of the Department of
Commerce (for marine species) (collectively the Service) •8 In some
instances (e.g., sea turtles), jurisdiction is shared. 9
The Service has promulgated regulations to implement the
listing procedures under section 4 of the Act (“Listing
Regulations”) ’° and the consultation requirements of section 7 of
the Act (the “Joint Service Regulations” or “Regulations”).’ 1 The
Listing Regulations are reproduced at TAB F. The Preamble to the
Joint Service Regulations (“Preamble”) along with the regulatory
text, is reproduced at TAB G. The Service has broad authority
under the Act to promulgate other regulations to provide for the
conservation of species.’ 2
1, 1993 (TAB E).
Roosevelt Cam obello International Park Commission v. EPA ,
684 F.2d 1041, 1049 (1st Cir. 1982).
8 16 U.S.C. § 1533(a)(2). The Secretary of Agriculture also
has authority under the Act for import/export of threatened plants.
50 c.F.R. § 17.2(b).
‘° 50 C.F.R. Part 424.
“ 50 C.F.R. Part 402.
12 16 U.S.C. s 1533(d). See also State of Louisiana, ex. rel.
Guste v. Verity , 853 F.2d 322 (5th Cir. 1988) (upholding authority
of NMFS to issue regulations requiring shrimp trawlers to install
and use “Turtle Excluder Devices” to protect sea turtles).
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3. The Listing Process
The protective provisions of the Act apply principally to
species which are listed as either threatened or endangered by, or
upon request of, the Service. The term “species” is defined to
include “any subspecies of fish or wildlife or plants, and any
distinct population segment of any species of vertebrate fish or
wildlife which interbreeds when mature.” 3 The Act also contains
certain provisions for unlisted (“proposed” or “candidate”)
species.’ 4
The ESA provides specific definitions for “endangered” and
“threatened” species. An endangered species means any species in
danger of extinction throughout all or a significant portion of its
range, other than a species of Class Insecta (pests) whose
protection would present an overwhelming and overriding risk to
man.’ 5 A threatened species means any species likely to become an
endangered species within the foreseeable future throughout all or
•a significant portion of its range. 16 The geographic scope of
these definitions, coupled with the taxonomically broad definition
of the term “species,” permits listing of a species or subspecies
throughout all or part of its range, including particular
geographical locations.’ 7
13 16 U.S.C. § 1522(16). In considering whether to list
“distinct population segments,” the USFWS assesses the biological
significance of the population segment to the subspecies as a
whole. 57 Fed. Reg. 33,478; 33,479 (July 29, 1992). NMFS has
labeled taxonomic units worthy of protection as “evolutionarily
significant units.” 56 Fed. Reg. 58,612 (Nov. 20, 1991).
14 “Proposed species” means any species proposed in the
Federal Register to be listed under section 4 of the Act. 50
C.F.R. § 402.2 Candidate species refer to any species being
considered for listing, but not yet the subject of a proposed rule
(e.g., when a petition to list is filed for such species). 50
C.F.R. S 402.12(d). Actions likely to jeopardize proposed species
are subject to “conference” requirements under section 7 of the
Act. Candidate species, however, have no legal status under the
Act.
16 U.S.C. S 1532(6).
16 16 U.S.C. S 1532(20).
See, e.g. , 50 C.F.R. § 17.11(h) (indicating that bald eagle
populations in Washington, Oregon, Minnesota, Wisconsin, and
Michigan are threatened, populations in the rest of the coterminous
United States are endangered, and populations in Alaska are not
listed).
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Listing may cover not only native species, but also species
outside of United States jurisdiction.’ 8 The listing process is
initiated either by the Secretary of Interior or Commerce (the
Secretary), or by a petition for listing by any interested party.
As specified in section 4(a) of the Act, a listing determination is
based on any one or a combination of five criteria, including the
present or threatened destruction or curtailment of a species’
habitat or range, overutilization for commercial, recreational,
scientific or educational purposes, disease or predation, the
inadequacy of existing regulatory mechanisms, or other natural or
man—made factors affecting its continued existence.’ 9
The Secretary makes the listing determination “solely on the
basis of the best scientific and commercial data available” after
reviewing the species’ status and considering efforts made by any
State or foreign nation to protect the species through conservation
practices such as predator control, habitat protection and food
supply. tm Economic factors cannot be considered. 2 ’ In the listing
process, the Secretary must give consideration to species which
have been designated as requiring protection from unrestricted
commerce by any foreign nation, or pursuant to international
agreement, or identified as in danger of extinction, or likely to
become so within the foreseeable future, by any State agency or any
agency of a foreign nation responsible for conservation of fish or
wildlife or plants.
The Secretary must comply with a series of steps and deadlines
for listing petitions and rulemakings. Selections are made,
50 C.F.R. § 17.11(h).
19 16 U.S.C. S 1533(a) (1).
16 U.S.C. § 1533(b) (1) (A).
21 See H.R. Conf. Rep. No. 835, 97th Cong., 2d Sess. 20,
reprinted .j 11 1982 U.S. Code Cong. & Admin. News 2807, 286].
(“(E]conomic considerations have no relevance to determinations
regarding the status of species.”).
16 U.S.C. § 1533(b) (1) (B).
Upon receipt of a petition, the Secretary generally has
ninety days to determine whether there is substantial information
that may warrant listing. If a positive determination is made, the
Secretary must then issue, within a year, one of three findings:
1) a finding that listing is not warranted; 2) a finding that
listing is warranted, which leads to prompt publication of a
proposed regulation; or 3) a finding that listing is warranted but
precluded by higher-priority listings (any such finding must be
reexamined within the following twelve months). 50 C. F. R.
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according to a threat-based priority system, from a list of
candidate species. 26 The Act contains special provisions for
“emergency” listing for up to 240 days “to prevent a significant
risk” to candidate species) Listings of endangered and
threatened species appear at 50 C.F.R. § 17.11 (endangered and
threatened wildlife) and 50 C.F.R. § 17.12 (endangered and
threatened plants) (USFWS) and at 50 C.F.R. § 222 • 23(a) (endangered
species) and 50 C.F.R. § 227.4 (threatened species) (NNFS). See TAB
H. Nearly 750 species that have all or a portion of their range in
the United States have been listed as threatened or endangered and
there are over 3,600 active candidate species. 28 As part of a
settlement in recent litigation brought by the Fund For Animals,
the Service committed to taking steps to reduce delays in the
listing process for a large number of candidate species.
§ 424.14. Negative determinations that there is not substantial
information to support listing or that listing is warranted but
precluded, are subject to judicial review. 16 U.S.C. S 1533(b(3) (C)
(ii).
Listing rulemaking basically involves publication of a
proposed rule in the Federal Register , with direct notice given to
specified parties, at least one public hearing within forty-five
days at the request of any person, a sixty—day comment period, and,
within twelve months of the proposed rule, one of four outcomes:
1) promulgation of a final listing rule; 2) a determination not to
list; 3) withdrawal of the proposed rule if available evidence does
not adequately support either a favorable or unfavorable listing
decision; or 4) extension of the review period for up to six months
if there is disagreement over the accuracy or sufficiency of the
available data. 16 U.S.C. §S 1533(b)(5)—(6).
See, e.g. , 48 Fed. Reg. 43,098 (Sept. 21, 1983) (USFWS) and
55 Fed. Reg. 24,296 (June 15, 1990) (NMFS).
26 Candidate species are generally of three types: 1) Category
- 1, those for which there is substantial information to support
listing; 2) Category 2, those for which there is some information
indicating that listing may be appropriate but for which more
conclusive data are needed; and 3) Category 3, those which were
previously considered for listing. g 50 C.F.R. § 424.15(b);
“Endangered Species Act: A Summary of the Act and Service
Activities,” U.S. Fish and Wildlife Service, May 23, 1990.
‘ 16 U.S.C. S 1533(b) (3) (C) (iii).
28 J.B. Ruhi, “Section 4 of the ESA - The Cornerstone of
Species Protection Law,” 8 Natural Resources & Environment 26, 70
(Summer 1993).
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Under section 4(e) of the Act, 29 the Secretary may treat, as
threatened or endangered, a species that is similar in appearance
to a listed species if the similarity would make it substantially
difficult for enforcement personnel to distinguish between the two,
thereby resulting in an additional threat to the listed species.
Because ‘similarity in appearance’ species technically do not meet
the endangered/threatened criteria in section 4(a)(1) of the Act,
they do not trigger the federal “no jeopardy” obligations under
section 7 of the ESA. The USFWS may issue permits to authorize the
taking or trade of such species. ° In addition, under section
10(j) of the Act, 3 ’ the Secretary may designate, through a
rulemaking process, a population of a listed species as an
“experimental population”, which involves the introduction of the
population into a new range wholly separate geographically from
nonexperimental populations of that species. Protective
regulations for experimental populations may be promulgated under
section 4(d) of the Act. 32
The ESA also establishes a process to review species that have
been listed to determine whether any species should be removed from
the list, or be reclassified (from threatened to endangered or vice
versa).” Reclassifications or delistings follow the same criteria
and procedures used for listing, with delistings being authorized
only if the best scientific and commercial data available
substantiate that the species is no longer endangered or threatened
due to extinction or recovery, or if the data supporting the
original classification was in error.
4. The Critical Habitat Designation Process
The Act requires the Secretary “to the maximum extent prudent
and determinable” to designate critical habitat for a species at
the time it is listed. 35 The term “prudent” is defined, by
regulation, in the negative, identifying non-prudent situations as
those where: identification of critical habitat could be expected
to increase the threat either of takings or impacts from other
human activity; or identification of critical habitat would not be
16 U.S.C. § 1533(e).
3° 50 C.F.R. Part 17, Subpart E.
31 16 U.S.C. § 1539(j).
32 50 C.F.R. Part 17, Subpart H.
16 U.S.C. § 1533(c) (2).
50 C.F.R. § 424.11(d).
“ 16 U.S.C. § 1533(a) (3) (A).
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beneficial to the species. Critical habitat is not
“determinable” either when information is insufficient to do the
required analysis of impacts of designation, or when the biological
needs of the species are insufficiently understood to permit
identification of an area as critical habitat. 3 ’ The legislative
history of the phrase “prudent and determinable” suggests that it
was intended to allow the Secretary to defer listing in only
limited circumstances. 3 ’
Critical habitat includes specific areas within the geographic
area occupied by the species at the time it is listed if those
areas contain physical or biological features essential to species
conservation and which may require “special management
considerations or protection.” 39 It also includes specific areas
outside the species’ current geographic range that the Secretar
determines “are essential for the conservation of the species.”
It is generally not to encompass the entire geographic area a
species could potentially occupy. 4 ’
50 C.F.R. § 424.12(a) (1).
‘ 50 C.F.R. § 424.12(a) (2).
See, e.g. , H.R. Rep. No. 1625, 95th Cong., 2d Sess. 17,
reprinted jn 1978 U.S. Code Cong. & Admin. News 9453, 9467 (House
Report concluding that it is only in rare circumstances that
designating critical habitat concurrent with listing would not
benefit the species). See also Northern Spotted Owl v. Lulan , 758
F. Supp. 621 (W.D.Wash. 1991)(finding that USFWS abused its
discretion in failing to designate critical habitat for the
northern spotted owl concurrently with listing of the owl as a
threatened species).
16 U.S.C. S 1532(5)(A)(i). Physical and biological
features considered by USFWS include: 1) space for individual and
population growth and normal behavior; 2) food, water, air, light,
minerals, or other nutritional or physiological requirements;
3) sites for breeding, reproduction, rearing of offspring,
germination, or seed dispersal; and 4) habitats protected from
disturbance or representative of the species’ historic geographical
and ecological distributions. These features are broken down into
primary constituent elements, including roost sites, nesting
grounds, spawning sites, feeding sites, seasonal wetland or
dryland, water quality or quantity, geological formation,
vegetation type, tide, and specific soil types. 50 C.F.R. § 424.12
(b).
4° 16 U.S.C. § 1532(5) (A) (ii).
‘ 16 U.S.C. 5 1532(5) (C).
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In contrast to listing, the designation of critical habitat is
made on the basis of both scientific data and economic or other
relevant factors (as a result of amendment to the Act in 1978) •42
The Secretary may exclude any area from critical habitat based on
a determination that the benefits of exclusion outweigh those of
designation, unless the best scientific and commercial data
available demonstrates that a failure to designate would result in
the extinction of the species. 43 While the listing process may
cover non-native species, critical habitat may not be designated in
areas outside United States jurisdiction.
Similar to the listing process, critical habitat designations
or subsequent revisions are initiated by petition or directly by
the Secretary. The rulemaking process for designations generally
tracks that for listing, except for additional requirements
involving the publication of a critical habitat map, a description,
to the maximum extent practicable, of public or private activities
in the area that may adversely modify habitat or be affected by the
designation, and an analysis of economic and other impacts. 45
Where it is essential to the conservation of a species that it be
listed promptly without waiting for a final habitat designation,
the Secretary may issue a listing rule without concurrently
publishing a final designation. If the Secretary determines at
the time of listing that critical habitat is not determinable, a
final decision on the designation may be deferred for no longer
than two years. 47
Current critical habitat designations are contained at 50
C.F.R. § 17.95 (fish and wildlife), § 17.96 (plants), and 50 C.F.R.
Part 226 (NMFS). See TAB I. Critical habitat has not been
designated for the vast majority of species listed under the Act.
4. Recovery Plans
The Act also requires the Secretary to develop and implement
recovery plans for the “conservation and survival of (listed)
endangered species and threatened species ... unless (the
42 16 U.S.C. § 1533(b) (2).
43
44 50 C.F.R. § 424.12(h).
16 U.S.C § 1533(b) (8); 50 C.F.R. §S 424.18(a) and 424.19.
16 U.S.C. § 1533(b)((6)(C)(i).
16 U.S.C. § 1533(b) (6) (C) (ii).
48 Compare TAB H and TAB I.
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Secretary] finds that such a plan will not promote the conservation
of the species.” 49 The Secretary is required, to the maximum
extent practicable, to give priority to species most likely to
benefit from such plans, and to incorporate in each plan site-
specific management actions necessary to achieve conservation and
survival, objective criteria to be met on the path to de-list the
species, and cost and time estimates to achieve intermediate and
final objectives. 50 Legislative history suggests that the contents
of recovery plans must be based solely on biological
considerations.” Pursuant to 1988 amendments to the ESA, the
public now receives formal notice and opportunity to comment on all
proposed recovery plans. 52 It is unclear whether recovery plans
are binding on action agencies. 53 The Service has indicated that
foreign species do not require a recovery plan because the U.S.
government has not means to implement management options.M
The interagency recovery planning process underway for the
Northern Spotted Owl is one recent example of how agencies and the
• public can work together to implement recovery provisions. EPA has
played a major role in this process, helping to establish a focus
on watershed protection as a key component of this effort.
16 U.S.C. § 1533(f). See also Sierra Club v. Interior
DeDartment , 36 ERC 1533, 1546 (W.D.Tex. 1993) (finding no rational
basis for Interior Department to find that a recovery plan for the
Texas Blind Salamander “would not promote the conservation of the
species”).
5° Id.
H.R. Conf. Rep. No. 928, 100th Cong., 2d Sess. 21 (1988).
52 16 U.S.C. § 1533(f) (4).
See National Wildlife Federation v. National Park Service ,
669 F. Supp. 384, 388—89 (D.Wyo. 1987).
U.S. Fish and Wildlife Service Summary of the Act and
Service Activities, supra note 26.
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Legal Assumptions
1. Substantive Obligations Under Section 7 of the Act
• Mo Likelihood of “Jeopardy” or “Destruction or Adverse
Modification” of Critical Habitat Under Section 7(a)(2)
Basic Standard of Section 7(a)(2) . Section 7(a)(2) of the ESA
requires federal agencies, including EPA, to insure that any action
authorized, funded, or carried out by such agency (“agency action”)
is “ not likely to jeopardize the continued existence of any
endangered or threatened species” result in the “ destruction or
adverse modification of Icriticall habitat ” of such species. 55
As originally enacted in 1973, and highlighted most
prominently in TVA v. Hill (enjoining completion of the federally-
funded Tellico Dam where evidence indicated that flooding caused by
dam would destroy the remaining habitat of the endangered snail-
darter), section 7(a)(2) required agencies to ensure that their
actions did not jeopardize endangered species or destroy or modify
critical habitat. In describing this substantive bar to agency
action, Justice Burger issued his now famous words: “One would be
hard pressed to find a statutory provision whose terms were an
plainer than those in Section 7 of the Endangered Species Act.”
In response to TVA v. Hill , Congress slightly qualified the
original prohibition by amending section 7(a)(2) to require that
federal actions be “likely” not to jeopardize endangered species or
destroy or adversely modify critical habitat, and by adding a very
stringent and limited exemption process. The final
responsibility for compliance with this obligation rests with the
agency undertaking the action, rather than the Service. 58
The No Likelihood of Jeopardy (No-Jeopardy) Requirement . The
Joint Service Regulations define the phrase “jeopardize the
continued existence of” to mean “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.” Several cases, in addition to
TVA v. Hill , illustrate the application of the jeopardy standard.
“ 16 U.S.C. S 1536(a)(2). (emphasis added).
I3 , 437 U.S. at 173.
16 U.S.C. SS 1536(f)—(p).
58 50 C.F.R. § 402.15.
50 C.F.R. S 402.2.
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In Roosevelt Canmobello International Park Commission v. EPA ,
684 F.2d 1041 (1st Cir. 1982), environmental groups challenged an
Administrative Law Judge’s (AU) order to EPA to issue a national
pollution discharge elimination (NPDES) permit to an oil refinery
(Pittston). The permit authorized the refinery to construct and
operate a 250,000 barrel per day oil refinery associated with a
deep water terminal in Maine, in accordance with specified effluent
limitations, monitoring requirements, and other conditions.
Plaintiffs alleged that pollution stemming from the refinery,
including air emissions containing mercury, increased acidification
of lakes, other problems associated with economic development and
problems caused by oil spills, would affect the endangered right
and humpback whales and the northern bald eagle.
EPA initially had denied the permit, in light of “jeopardy”
opinions from the Services, and due to the ecological importance of
the area. Pittston challenged the denial. The ALT agreed with
Pittston, and ordered EPA to issue the permit, concluding that: the
amount of mercury (and other heavy metal) emissions was too small
to affect the food chain of the eagles; the emissions would have no
important impact on lake acidity; economic development would not
affect eagle nesting areas; and, although a significant oil spill
could adversely affect the whales and the eagle, the risk of such
a spill was “minute.”
The First Circuit reversed the AU’s decision, finding error
in the determination that the risk of a significant oil spill was
“minute.” The court held that the AU’s failure to require, at a
minimum, that “real time simulation” studies be done to assure
there would be a low risk of spill, prior to the granting of the
permit, violated the requirement under Section 7 to use the best
scientific data available. Accordingly, a no-jeopardy finding
could not be sustained.
In Sierra Club v. Marsh , 816 F.2d. 1376 (9th Cir. 1987), the
Army Corps of Engineers entered into consultation with USFWS
relating to the effects of a construction project on two endangered
birds. USFWS concluded that public acquisition and protection of
188 acres of wetlands adjacent to a construction site was necessary
to avoid jeopardy. When the ability of the Corps to secure rights
over the mitigation area became unclear, environmental groups
brought suit to halt the project. The Ninth Circuit held that the
project must be stopped, finding that the Corps’ “insurance”
against jeopardy lapsed when its expectations under the wetlands
acquisition agreement were not being fulfilled. 61
Roosevelt Campobello International Park Commission v. EPA ,
684 F.2d 1041, 1052 (1st Cir. 1982).
Sierra Club v. Marsh , 816 F.2d 1376, 1386 (9th Cir. 1987).
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The Prohibition Against Likelihood of Destruction or Adverse
Modification of Critical Habitat . The Joint Service Regulations
and cases also elaborate upon the prohibition in section 7(a)(2)
against actions likely to result in the “destruction or adverse
modification” of critical habitat. The Regulations define this
phrase to mean:
a direct or indirect alteration that appreciably
diminishes the value of critical habitat for both the
survival and recovery of a listed species. Such
alterations include, but are not limited to, alterations
adversely modifying any of those physical or biological
features that were the basis for determining the habitat
to be critical. 62
In National Wildlife Federation v. Coleman , 529 F.2d 359 (5th
Cir. 1976), cert denied , 429 U.S. 979 (1976), the Fifth Circuit
concluded that the excavation of borrow pits for a proposed highway
interchange funded by the Federal Highway Administration within an
area determined to be “critical habitat” for the endangered
Mississippi Sandhill Crane would destroy and modify that habitat in
violation of section 7. In TVA v. Hill, supra , the Court relied
directly on the fact that the area affected by the dam had been
designated as critical habitat for the snail darter. In Nebraska
v. Rural Electrification Administration , 12 Env’t Rep. Cas. (BNA)
1156 (D.Neb. 1978), the court enjoined an upstream dam proposed for
the Platte River on the basis that it would not insure no jeopardy
to the endangered Whooping Crane or its habitat.
We are aware of no reported judicial decision to date that has
approved a challenged intrusion into designated critical habitat.
As a practical matter, although section 7 establishes adverse
modification and destruction of critical habitat as a separate and
distinct prohibition, courts have tended to incorporate it as part
of the no jeopardy standard. Stated another way, an intrusion
into critical habitat will normally be found to implicate jeopardy.
62 50 C.F.R. § 402.02. It has been argued that this
regulatory definition is in conflict with the statute, by requiring
that the action diminish the value of critical habitat for both
survival recovery, rather than survival or recovery. Rohif,
The Endangered Species Act: A Guide to Its Protections and
Implementation , Stanford Environmental Law Society 152 (1989).
Nat’l. Wildlife Federation v. Coleman , 529 F.2d 359, 374-
375 (5th Cir. 1976), cert. denied 429 U.S. 979 (1976).
See J. Salzinan, Evolution and Application of Critical
Habitat under the Endangered Species Act , 14 Harvard Environmental
Law Review 311, 324—27 (1990) (citing cases).
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Scope of A encv Actions Covered By Section 7(a) (2) . The scope
of “agency actions” covered by section 7(a) (2) is broad. The Joint
Service Regulations provide that section 7 applies “to all actions
in which there is discretionary Federal involvement and control”
and define “action” as:
all activities or programs of any kind authorized,
funded, or carried out, in whole or in part, by Federal
agencies in the United States or upon the high seas.
Examples include, but are not limited to:
(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;
(d) actions directly or indirectly causing
modifications to the land, water or air.
This does not mean that every action of a federal agency is subject
to section 7(a) (2). Where the nexus between a federal activity and
the effect on a listed species or designated critical habitat is
too attenuated, courts have found that the activity is not “action”
for purposes of section 7•67 Further, the Service regulations
apply section 7(a)(2) to actions in the United States or upon the
high seas, but not to actions in foreign countries. 68
Types of Effects that Must Be Considered . Although section
7(a) (2) does not expand the scope of an agency’s authority, it does
require agencies to consider the effects of their actions on listed
50 C.F.R. § 402.3.
50 C.F.R. § 402.02.
67 Proffitt v. Lulan , 825 F. Supp. 159 (W.D.Ky. 1993)
(voluntary EPA assistance to metropolitan sewer district not action
under section 7 where EPA did not assume responsibility for
district’s action plan); Mann Audubon Society v. Seidman , 1991
U.S. Dist. LEXIS 17,322 (N.D.Cal. 1991)(sale of note by FDIC
secured by wetland property not action under section 7).
In regulations issued in 1978, the Service took the
position that section 7 applied to federal actions abroad. The
Service changed this position in 1986, due to concerns over the
potential for section 7 to interfere with the sovereignty of
foreign nations, and the apparent domestic orientation of the
consultation and exemption process. See 50 C.F.R. § 402.01(a);
Preamble, 51 Fed. Reg. at 19,929-30.
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species. The Joint Service Regulations define broadly the types
of effects that agencies and the Service must consider. The
“effects of the action” are:
the direct and indirect effects of an action on the
species or critical habitat, together with the effects
of other activities that are interrelated or
interdependent with that action, that will be added to
the environmental baseline. The environmental baseline
includes the past and present impacts of all Federal,
State, or private actions and other human activities in
the action area, the anticipated impacts of all proposed
Federal projects in the action area that have already
undergone formal or early section 7 consultation, and
the impact of State or private actions which are
contemporaneous with the consultation process. Indirect
effects are those that are caused by the proposed action
and are later in time, but still are reasonably certain
to occur. Interrelated actions are those that are part
of a larger action and depend on the larger action for
their justification. Interdependent actions are those
that have no independent utility apart from the action
under consideration •70
The Regulations clarify elsewhere that cumulative effects must be
considered by the action agency and the Service in the process of
consultation to determine whether jeopardy is likely to occur. 7 ’
The term “cumulative effects” is defined as “those effects of
future State or private activities, not involving Federal
activities, that are reasonably certain to occur within the action
area of the Federal action subject to consultation.”
This definition excludes the cumulative effects of future
Federal actions, based on the rationale that such effects will be
examined in section 7 consultation at the time the actions are
proposed. The Preamble also explains that cumulative effects
includes “those effects on the species caused by other projects and
activities unrelated to the action under consideration.” The
Preamble further clarifies that interrelated or interdependent
Riverside Irrigation District v. Andrews , 568 F. Supp. 583
(D. Cob. 1983), aff’d , 758 F.2d 508, 512 (10th Cir. 1985).
7° 50 C.F.R. § 402.02. (emphasis added)
71 50 C.F.R. SS 402.14(c) (4) and 402.14(g) (3).
50 C.F.R. § 402.2.
fl Preamble, 51 Fed. Reg. at 19,932.
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actions are those that would not occur “but f or” the agency
action. 74
In considering the effects of an action, an agency may not
limit its review only to the immediate project area. Consistent
with the breadth of the term “effects of the action,” the relevant
“action area” for purposes of section 7 review encompasses “all
areas to be affected directly or indirectly by the Federal
action.” 75
Based on the Preamble and regulations, the analysis of effects
of an action that agencies must perform may be divided into four
steps:
o Step 1 —- Determine the environmental baseline, i.e., the
current environmental status of the listed species or
critical habitat, taking into account present and past
effects of any type of human activity, effects of
proposed federal actions that have concluded formal or
early consultation, and effects of private or state
actions contemporaneous with the consultation process.
o Step 2 —- Determine the “effects of the action.”
o Step 3 — Determine “cumulative effects.”
o Step 4 —- Add environmental baseline, “effects of the
action,” and “cumulative effects” to determine potential
for jeopardy.
The case of National Wildlife Federation v. Coleman , 529 F.2d.
359 (5th Cir. 1976) illustrates the types of indirect effects that
agencies must consider. In that case, the court enjoined
construction of a highway because the federal agency failed to
consider how Drivate development resulting from the construction of
the road would affect endangered cranes. The court determined
these types of effects to be linked to the construction of the
highway even though it recognized that the federal government had
no formal control over private development near the highway. 76
The case of Roosevelt Cam obello , supra , is also instructive.
In that case, which involved issuance by EPA of an NPDES permit to
an oil refinery, the district and appeals courts both considered--
among other things--effects stemming from “the intrusion of
economic development and human population” in the area around the
Id.
50 C.F.R. § 402.02.
76 Coleman , 529 F.2d at 374.
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refinery made possible the issuance of the permit and the
operation of the refinery.
• Exemptions from Section 7(a) (2) Substantive Standard
Following TVA V. Hill , Congress amended the ESA to include the
possibility for federal agencies to obtain an exemption from the
prohibitions in section 7(a)(2) in specified circumstances. This
exemption process contains very strict conditions which must be met
before an exemption can be granted. The regulations governing the
exemption process appear at 50 C.F.R. Parts 450-53, which are
reproduced at TAB J.
Applications for an exemption from section 7(a)(2) are
reviewed by an Endangered Species Committee, also known as the “God
Squad” or “God Committee.” An agency action is not eligible for
review by the Committee unless the consulting agency (USFWS or
NMFS) has issued a jeopardy biological opinion and determined that
the action agency has carried out its consultation obligations in
good faith, 1 and the action agency has previously prepared
adequate environmental documentation under the National
Environmental Policy Act.
The Committee is composed of seven members: the Secretary of
Agriculture; the Secretary of the Army; the Chairman of the Council
of Economic Advisors; the Administrator of the Environmental
Protection Agency; the Secretary of the Interior; the Administrator
of the National Oceanic and Atmospheric Administration; and an
individual appointed by the President from each affected State. 8 °
The Secretary of the Interior is designated chair of the Committee.
After a formal hearing on the exemption application, the
Secretary prepares a report on the application and submits it to
the Committee for consideration. 8 ’ In order to grant an exemption,
the Committee must by a vote of not less than five of its members
voting in person determine, on the record, that:
(1) there are no reasonable and prudent alternatives
to the agency action;
(ii) the benefits of such action clearly outweigh the
benefits of alternative courses of action consistent
77 Roosevelt CamDobello , 684 F.2d at 1049—1050.
78 16 U.S.C. SS 1536(g) (1) and (3).
16 U.S.C. § 1536(k).
° 16 U.S.C. § 1536(e) (3).
81 16 U.S.C. § 1536(g) (4).
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with conserving the species or its critical habitat,
and such action is in the public interest;
(iii) the action is of regional or national significance;
and
(iv) neither the Federal agency concerned nor the
exemption applicant made any irreversible or
irretrievable commitment of resource prohibited by
Section 7(d) of [ the ESA]. 82
The Committee also must establish such reasonable mitigation and
enhancement measures as are necessary and appropriate to minimize
the adverse effects of the agency action upon the species or
critical habitat concerned. 83
To date, the Endangered Species Committee has considered only
three exemption applications, one which it denied (for the Tellico
Dam) and two which it granted (for the Grayrocks Dam project in
Wyoming and for sale of certain timber lands in the Pacific
Northwest).
• No Irretrievable or Irreversible Commitments
After a consultation process is initiated with the Service,
section 7(d) of the ESA prohibits a federal agency from making any
irreversible or irretrievable commitment of resources which would
foreclose the formulation of reasonable and prudent alternatives to
the action that meet the substantive obligations of section
7(a) (2) .
Section 7(d) was added to the Act following the controversy
over the Tellico Dam in TVA v. Hill , to prevent federal agencies
and proponents of specific federal actions from “steanrolling”
those actions toward completion. The court in North Slope Borouah
v. Andrus , 486 F. Supp. 332, 356 (D.D.C. 1980), aff’d , 642 F.2d.
589 (D.C. Cir. 1980), suggested that if a resource commitment is
not retrievable, it is irreversible, even if subsequent work could
restore a project site to original condition.
In examining whether a commitment is retrievable, the court in
- North Slope Borouah established the following test: (1) can the
resources be used in a manner different from the one proposed in
the original plan in a way that would not violate section 7(a) (2);
or (2) can the resources be devoted to another project that would
82 16 U.S.C. § 1536(h).
83 Id.
16 U.S.C. § 1536(d).
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not violate section 7(a) (2) The court found that resources
spent on pre-production oil and gas exploration and development
were retrievable, even if the ultimate production and development
would have violated section 7(a) (2), because the information
gathered was valuable in its own right, e.g., would be useful for
other Arctic leasing activities. Hence, there was no section 7(d)
violation.
Other cases on section 7(d) also are instructive. In
OilDort v. Carter , 520 F. Supp 334 (W.D.Wash. 1981), a federal
permit granting a right—of-way through Puget Sound, which required
the permittee to obtain a Notice to Proceed contingent upon
compliance with the ESA, was held not to violate Section 7(d). In
The Bays’ Legal Fund v. Browner , 828 F. Supp. 102 (D.Mass. 1993),
a eal docketed , No. 93—2128 (1st dr. Aug. 31, 1993), plaintiffs
complained that continued construction of an outfall tunnel
violated section 7(d). The court rejected this argument because
several plausible scenarios existed for incorporating the tunnel
into alternative discharge approaches, and halting construction
would not be reasonable given the adverse impact that such non-
action had already had on coastal water quality.
The section 7(d) prohibition applies after the initiation or
reinitiation of consultation under section 7(a) (2) of the Act, and
applies until the requirements of section 7(a) (2) are satisfied. 87
• Affirmative Obligation to Conserve
Section 7(a)(1) of the ESA requires federal agencies, in
consultation with the Services, to “utilize their authorities in
furtherance of the purposes of (the ESA] by carrying out programs
for the conservation of ( listed] species.” 88 This provision
creates an affirmative obligation upon the Agency to use its
authorities to “conserve” species. As noted above, the ESA defines
the term “conserve” to include the use of all methods and
procedures necessary to bring a listed species back to recovery.
The exact contours of this obligation have not been precisely
defined by the courts. The Preamble to the Joint Service
Regulations suggests that, at a minimum, section 7(a)(1) requires
agencies to factor endangered species considerations into their
North Slope Borough v. Andrus , 486 F. Supp. 332, 356
(D.D.C. 1979).
j at 357.
16 U.S.C. § 1536(d); 50 C.F.R. § 402.09.
88 16 U.S.C. § 1536(a) (1).
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planning and program processes. 89 The Preamble also notes that the
Act does not mandate “particular actions” to be taken by Federal
agencies to implement section 7(a)(1).
The cases help to illustrate the dimensions of this obligation
in more detail. In Carson-Truckee Water Conservancy District v.
Watt , 549 F. Supp. 704 (D.Nev. 1982), aff’d j part and vacated
part , 741 F.2d 257 (9th Cir. 1984), cert. denied , 470 U.S. 1083
(1985), plaintiff water district sought to compel the Secretary of
Interior to sell it water for a dam and reservoir project, rather
than release the water downstream to protect and restore two
endangered and threatened species of fish. The district court,
however, held that the ESA required the Secretary to give priority
to fishery protection “over all other purposes” related to the dam
until the two species could be delisted. The court based its
decision on provisions in section 2 (purposes and policy) and
section 3 (definitions) of the ESA calling upon agencies to seek to
conserve species and to utilize their authorities in furtherance of
the Act, as well as on previous cases under section 7(a)(1).
The Ninth Circuit affirmed the result, linking it expressly to
the section 7(a)(l) obligation to conserve. 9 ’ The circuit court
declined, however, to reach the issue of whether the conservation
requirement of section 7(a) (1) must take priority over conflicting
directives in other statutes, or to determine the extent of the
Secretary’s obligation had the Secretary decided neither to protect
the fish nor sell the vater.
In Pyramid Lake Paiute Tribe of Indians v. U.S. Department of
Navy , 898 F.2d 1410 (9th dr. 1990), the Paiute tribe challenged
the Navy’s program of leasing land with rights to water to farmers
for farming (the farmland was intended to establish a buffer zone
around runways of an air station), as a violation of the Navy’s
conservation obligation under section 7(a)(1). The Tribe argued
that the water diversion depleted flows into Pyramid Lake, the
habitat of the endangered cui-cui, and proposed an alternative to
the Navy’s program. The Tribe then argued that if an alternative
approach would be equally effective in serving the government’s
interest, and would enhance the conservation of the species, then
the Navy must adopt it under section 7(a) (1). The Navy argued, in
response, that agencies must develop programs to conserve listed
species, but only in a manner consistent with achieving its primary
89 Preamble, 51 Fed. Reg. at 19,934.
9° Id.
‘ 741 F.2d. 257, at 261—262.
., at 262 n.5.
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goals.
The court rejected both formulations. It found that the
Navy’s version understated the conservation duty in light of
legislative history showing Congress had rejected language to limit
the duty to where it was “practicable and consistent with” an
agency’s primary purpose. On the other hand, the court found
that the Tribe had overstated the duty because “it would work to
divest an agency of virtually all discretion in deciding how to
fulfill its duty to conserve.” 95
Given the facts at hand (which included a USFWS biological
opinion that the leasing program would not jeopardize the cui—cui),
the court held that the Navy had not abused its discretion in
following the leasing program, since it had taken a number of
actions to promote water conservation. These included: a cut back
on the amount of water rights for lease, hiring of experts to study
conservation alternatives, and--pursuant to the studies--a
commitment to reduce water consumption further and improve the
delivery system to reduce water loss.
In sum, the courts have held that the section 7(a) (1) duty is
binding, but that federal agencies have some discretion in
determining how best to carry out conservation programs. One
recent commentator summarized recent decisions as follows:
Federal actions have been deemed consistent with
Section 7(a) (1) where they do not jeopardize listed
species, will aid to some degree the conservation of
listed species, and the federal agency has had
reasonable grounds for rejecting other alternative
plans. Certainly, federal agencies ought to be on
safest ground where they are implementing conservation
recommendations included in a biological opinion, or
are actively participating in an interagency recovery
plan ....
For EPA, the affirmative conservation obligation of section
7(a) (1) presents major opportunities. EPA’s mission and authority
to combat pollution and protect ecosystems make it particularly
Pyramid Lake Paiute Tribe of Indians v. U.S. Dept. of Navy ,
898 F.2d 1410, 1417 (9th Cir. 1990).
j . at 1418.
Id.
J. Kilbourne, The Endangered Species Act under the
Microscope: A Closeup Look from a Litigator’s Perspective , 21
Environmental Law 499, 572 (1991).
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well-placed to take actions that broadly support section 7(a)(1)
and the broader conservation purposes of the ESA. Possible ways in
which this authority could be utilized, pursuant both to EPA
statutes and section 7(a)(].) obligations, are discussed in more
detail in Part 8, below.
2. Substantive Obligations Under Section 9 of the Act
• Prohibition Against “Take” of Listed Fish and Wildlife
Species
Section 9(a) (1) of the ESA bans the import/export, possession,
or sale of endangered fish and wildlife, interstate/foreign
commerce activities involving such species, or violation of related
protective regulations issued by the Secretary. More
significantly, it also prohibits any “any person subject to the
juris e States,” including individuals, private
governmental entities 9 from taking endangered species of fish
• wildlife within t ited States, the territorial sea of the
Unite , r upon the high seas. In accordance with Service
practice of applying, by regulation, the Act’s protections for
endangered species to threatened species, the prohibition against
“take” enera1ly extends to threatened fish and wildlife
species.’
It should be noted that the prohibition against taking species
under section 9(a) (1) is broader than the substantive ‘no jeopardy’
bar in section 7(a)(2). This is because the “take” prohibition
applies to actions by any person that injure even a single member
of a listed species. By comparison, section 7(a) (2) addresses only
federal actions that jeopardize the survival of a listed species as
a whole.
The term “take” is defined broadly under the ESA to mean
“harass, harm, pursue ... kill ... collect, or attempt to engage in
16 U.S.C. § 1538(a) (1).
See 16 U.S.C. § 1532(13) (defining the term “person”).
16 U.S.C. §5 1538(a) (1) (B)and (C).
‘ See, e.g. , 50 C.F.R. S 17.31(a) (threatened wildlife). The
authority for this general rule is section 4(d) of the Act, 16
U.S.C. § 1533(d), which allows the Secretary by regulation to
extend the prohibitions in section 9(a)(1) to threatened species.
In Sweet Home Chaoter of Communities for a Greater Oreaon v. Lilian ,
806 F. Supp. 279 (D.D.C. 1992), the court upheld USFWS’s blanket
approach to extending the takings prohibition, finding that the
agency was not required to issue regulations on a species-specific
basis justifying the extension for each particular species.
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any such conduct.” 10 ’ The legislative history indicates that
Congress intended to define the term in the “broadest possible
manner to include every conceivable way” in which a person could
take or attempt to take wildlife.’ The terms “harm” and “harass”
also are broadly defined by regulation.
“Harm”, as defined by USFWS in 1981, means “an act which
actually kills or injures wildlife. Such act may include
significant habitat modification or degradation where it actually
kills or injures wildlife by significantly impairing essential
behavioral patterns, including breeding, feeding or sheltering. W
The case of Paula v. Hawaii Department of Land & Natural
Resources , 471 F. Supp. 985 (D.Ha. 1979), aff’d , 639 F.2d 495 (9th
Cir. 1981) ( Paula I) , and its companion case at 649 F. Supp. 1070
(D.Ha. 1986) aff’d 852 F.2d 1106 (9th Cir. 1988)(Palila__II),
illustrate the potential breadth of the term “harm” under the ESA.
In Paula I , the court found that grazing by feral goats and sheep,
maintained by the State of Hawaii for sport hunting, degraded the
habitat of the endangered paula bird by destroying the vegetation
that it relied upon, thereby resulting in illegal “harm” to the
species. Following the decision, the Interior Department redefined
“harm” in response to what it considered the erroneous conclusion
of the court that habitat modification alone could constitute a
“taking” absent proof of death or injury to the species.
The revised definition of “harm” was a major issue in Paula
II, which had the same facts as Paula I except that it involved a
different species of sheep. The district court in Paula II
rejected the government’s argument that because the paula
population had remained static or slightly increased, there was no
evidence of injury and hence no taking. Instead, the court found
that destruction by the sheep of the paula’s food supply and
nesting sites was injuring the species by suppressing the
population as a whole to critically endangered levels. On that
basis, the court held that habitat destruction or modification that
prevents a species from recovering by affecting essential
behavioral patterns causes actual injury to the species so as to
‘° 16 U.S.C. § 1532(18).
S.Rep. No. 307, 93d Cong., 1st Sess. 1, reprinted j 1973
U.S. Code Cong. & Adinin. News 2989, 2995.
‘ 50 C.F.R. § 17.3. In Sweet Home Chanter of Communities v.
Lulan , 806 F. Supp. 279 (D.D.C. 1992), plaintiffs challenged this
regulation, contending that Congress did not intend for habitat
modification to constitute a “take.” The court concluded that the
Secretary’s interpretation was consistent with the statutory
definition of the term and was entitled to deference.
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effect a taking.’ In affirming the district court, the Ninth
Circuit found injury in the potential for extinction of the paula
due to continued sheep grazing of its food source. 105 It also
noted that the district court’s holding applied only to the
Drevention of recovery, and did not address whether an activity
that delays recovery also could constitute a taking.’° 6 The
“prevention of recovery” theory in Paula II is a far-reaching
interpretation of section 9, which, in effect, links section 9 to
the stated “conservation” purposes of the ESA.
The Paula decisions suggest that future (potential) injury may
constitute a taking and that plaintiffs in takings cases may
satisfy their burden of demonstrating “harm” through population
statistics/trends as opposed to proof of injury to individual
members of a species.” Other courts appear to place greater
emphasis on actual present in ury, ’ 05 or insist on proof of actual
injury to individual members.
The link between habitat disturbance and takings also was
addressed in National Wildlife Federation v. Hodel , 23 Env’t Rep.
Cas. (BNA) 1089 (1985). , urt determined that USFWS had
“taken” bald eagles permitting h nters to use lead shot in
locations where bald e es were esent. The parties all had
agreed that eagles were poisone when they ingested lead present in
their prey, and the USFWS conceded that its action constituted a
taking of eagles. ”° In effect, the court decision upheld the
notion that degradation of habitat (in this case, the prey of the
eagles) could result in a taking of the protected species.
‘ 649 F. Supp. at 1082.
‘ 852 F.2d. at 1108.
‘° Id . at 1110.
107 Accord, Sierra Club v. Lvna , 694 F. Supp. 1260, 1270 (E.D.
Tex. 1988) (finding a taking of the red-cockaded woodpecker due to
Forest Service even-aged timber management practices based on
evidence of precipitous population decline).
g Sweet Home Chanter of Communities , 806 F. Supp. at 284.
109 gg Morrill v. Lulan , 802 F. Supp. 424, 430 (S.D.Ala.
1992).
110 at 1092. The Department of Interior had attempted to
justify its action on the grounds that it was a permitted
“incidental taking. t ’ The court rejected this argument on the basis
that the procedures to allow incidental taking had not been
followed.
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The case of Defenders of Wildlife v. EPA , 668 F. Supp. 1334
(D.Minn. 1988), aff’d , 882 F.2d 1294 (8th dr. 1989), illustrates
the application of the section 9 prohibition against “take” to EPA.
In that case, EPA had decided to restrict certain uses of
strychnine but allow other above-ground uses to continue. Rather
than challenge this decision under FIFRA, plaintiffs argued that
EPA’S continued registration of strychnine constituted a “taking”
of protected species in violation of section 9 of the ESA and other
wildlife statutes (related to the protection of bald and golden
eagles and migratory birds).
The Eighth Circuit affirmed the holding of the district court,
finding that EPA’S continued registration of strychnine constituted
an impermissible taking,” 1 based upon evidence of plaintiffs that
protected species had died from strychnine poisoning.” 2 It
attributed the taking to EPA even though private parties, rather
than EPA, actually used the strychnine, noting that strychnine
could only be distributed and used if it was registered by EPA.
The Eight Circuit also rejected EPA’s argument that FIFRA provided
the exclusive remedy for plaintiffs, and that the plaintiffs had to
exhaust remedies under FIFRA before claiming a violation under the
ESA.” 3
USFWS has defined the term “harass” to mean “an intentional or
negligent act or omission which creates the likelihood of injury to
wildlife by annoying it to such an extent as to significantly
disrupt normal behavioral patterns which include, but are not
limited to, breeding, feeding or sheltering.” 4 This term differs
from “harm” in that it emphasizes potential, as opposed to actual
injury, incorporates intentional/negligent acts or omissions rather
than a strict liability standard, and does not encompass physical
habitat modification.” An example of “harassment” outlined in
the Act’s legislative history entails birdwatching that disturbs
birds from hatching and raising their young. 116 In one reported
case, Fund For Animals v. Florida Game & Fresh Water Fish
Commission , 550 F. Supp. 1206 (S.D.Fla. 1982), the court found that
“ Defenders of Wildlife v. EPA , 882 F.2d 1294, 1301 (8th Cir.
1989).
112 Defenders of Wildlife v. EPA , 668 F.Supp 1334, 1342 n. 14
(D. Minn. 1988).
“ Defenders , 882 F.2d at 1298.
114 50 C.F.R. § 17.3.
40 Fed. Reg. 44,413 (Sept. 26, 1975).
116 H.R. Rep. No. 412, 93d Cong., 1st Sess., reprinted in 1973
U.S. Code Cong. & Admin. News 2989.
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increased noise from airboats stemming from a four-day hunting
season extension would not constitute “harassment.”
• Special Provisions for “Incidental Take” by Federal
Agencies
In 1982, congress amended the ESA to provide an exemption from
the no-take provisions of section 9 for action agencies.’ 17
Specifically, where the Service determines upon consultation with
an agency that the agency’s action will not violate section
7(a) (2) (or corresponding provisions of the Marine Mammal Protection
Act), and the “taking” is “incidental” to the action, the Service
will provide to the action agency an “incidental take” statement
which authorizes the action agency to “incidentally take” species
under certain conditions.
The incidental take statement must, among other things:
specify the impact of such incidental taking on the species;
specify those reasonable and prudent measures that the Service
consider necessary or appropriate to minimize such impact; and set
forth terms and conditions that must be complied with by the
Federal agency to implement such measures.” 8
The phrase “reasonable and prudent measures” refers to “those
actions the (Service] believes necessary or appropriate to minimize
the impacts (i.e •, amount or extent, of incidental take) •h19 Such
measures, along with the terms and conditions that implement them,
“cannot alter the basic design, location, scope, duration, or
timing of the action and may involve only minor changes.” 2 ° The
Preamble to the Joint Service Regulations states that such measures
were “intended to minimize the level of incidental taking, but
Congress also intended that the action go forward essentially as
planned.”’ 2 ’
In order to monitor the effects of incidental take, the agency
(or applicant) must report the progress of the action and its
impact on the species to the Service as specified in the incidental
take statement. If at any time the actual takings exceed the level
of takings contemplated by the statement, the action agency must
immediately reinitiate section 7 consultation.
117 16 U.S.C. § 1536(b) (4).
16 U.S.C. § 1536(b) (4).
119 50 C.F.R. § 402.2.
120 50 C.F.R. § 402.14(i) (2).
121 Preamble, 51 Fed. Reg. at 19937.
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• Special Provisions for “Incidental Take” by Non-Federal
Entities
In the 1982 amendments, Congress also included in section 10
of the ESA exceptions from the prohibition against take for non-
federal entities, to create a process analogous to that available
for federal agencies under section 7. In order to obtain a permit
from the Service for such a taking, a private entity must submit to
the Service a habitat conservation plan (HCP) which specifies: the
likely impact of the taking; the steps the applicant will take to
minimize and mitigate such impact, and available funding;
alternative actions to such taking considered by the applicant, and
why they were not chosen; and such other measures as the Service
considers necessary and appropriate)
The Service shall issue a permit only where it finds, with
respect to the permit application and the HCP, that: the taking
will be incidental; the applicant will, to the maximum extent
practicable, minimize and mitigate such impact; the applicant will
ensure adequate funding for the HCP is provided; the taking will
not appreciably reduce the likelihood of the survival and recovery
of the species in the wild; such other measures considered
necessary and appropriate by the Service will be met; and the
Service has received such other assurances as it may require that
the HCP will be implemented. The Secretary must revoke a permit
if the permittee is not complying with its terms and conditions.
• Prohibitions Relating to Listed Plant Species
Endangered plant species are not subject to the takings
prohibition in section 9(a) (1) of the Act, but instead are governed
by the provisions of section 9(a)(2).’ Section 9(a)(2) bans the
sale, the import/export, and interstate/foreign commerce activities
involving endangered plants. It also bans removing or reducing to
possession endangered plants from areas under Federal jurisdiction
or violating protective regulations issued by the Secretary. USFWS
has extended these prohibitions by regulation to threatened plant
species. Pursuant to 1988 amendments to the Act, section
9(a) (2) establishes different prohibitions against removing or
destroying endangered plants on federal land and non-federal land.
On federal land, endangered plants cannot be removed or
16 U.S.C. § 1539(a) (2) (A).
123 Id.
‘ 16 U.S.C. § 1538(a) (2).
‘ 50 C.F.R. §S 17.61 and 17.71.
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“maliciously” damaged or destroyed;’ tm conversely, on non-federal
land, it is unlawful to remove or destroy endangered plants in
knowing violation of State law or regulation, including State
criminal trespass law. USFWS does not appear to have applied, by
regulation, the concepts added by the 1988 amendments to threatened
plant species.
3. Procedural Obligations Under Section 7 of the Act
• The Duty to Consult
General . In order to assure implementation of the substantive
obligations upon agencies not to create the likelihood of jeopardy
or destruction or adverse modification of critical habitat, section
7(a)(2) of the ESA requires federal agencies to consult with the
USFWS or NMFS. As interpreted by the Service, the duty to consult
is triggered by agency actions that “may affect” species or
critical habitat, including “ [ a]ny possible, effect, whether
beneficial, benign, adverse, or of an undetermined character.”
Agencies are to review their actions “at the earliest possible
time” to determine whether this low threshold is met.’ 28
There is no consultation requirement where the action agency
determines that there will be no effect on listed species (e.g.,
where there are no listed species in the proposed action area.
Action agencies are, however, responsible to ensure that this
determination is supportable under the Act.
The consultation process contains a number of requirements and
optional procedures. A chart representing the key elements of this
process is attached as TAB K. The discussion below reviews these
requirements and options in more detail.
Informal Consultation . Action agencies may elect to undertake
“informal consultation” with the Service, as opposed to “formal
consultation” as a means of meeting their obligation to consult.
Informal consultation is an informal process that includes all
discussions and correspondence between the action agency and the
Service, and is designed to assist the agency in determining
126 The legislative history of the 1988 amendments indicates
that this prohibition would not apply to otherwise lawful
development activities on federal lands such as mining, logging,
and grazing. See H.R. Rep. No. 1467, 100th Cong., 1st Sess. 15
(1987).
n Preamble, supra , 51 Fed. Reg. at 19,949.
128 50 C.F.R. § 402.14(a). g Romero-Barcelo V. Brown , 643
F.2d 835, 857 (1st Cir. 1981).
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whether formal consultation is required. 129 It concludes if the
Service concurs in writing that the agency action is not likely to
adversely affect listed species or critical habitat. During
informal consultation, the Service may suggest modifications to the
action that the action agency could implement to avoid the
likelihood of such adverse effects.
Bio1o ica1 Assessments . For “major construction activities”
subject to an environmental impact statement under the National
Environmental Policy Act (“NEPA”), action agencies must prepare a
biological assessment. ’ 3 ° This assessment is designed to aid in
determining whether there is an adverse effect and whether formal
consultation is necessary. “Major construction activity” is
defined by regulation as “a construction project (or other
undertaking having similar physical impacts) which is a major
Federal action significantly affecting the quality of the human
environment as referred to in (NEPA].” 3 ’ Congress added the
requirement to prepare biological assessments in 1978, to
facilitate the assessment of impacts of proposed actions on
species. ’ 32 If a biological assessment is required, an action
agency or permit applicant may not enter into any contract for
construction or begin construction before the assessment is
completed.’ 33 Action agencies may, of course, prepare biological
assessments even in cases where they are not required.
As part of the process for biological assessments, action
agencies must either make a written request to the Director of the
Service for a list of any listed or proposed species or designated
or proposed critical habitat in the “action area,” or notify the
Director in writing of the species and critical habitat that are
being included in the biological assessment.IM If the Service
determines, based upon the best scientific and commercial data
available, that no listed species or critical habitat are in the
action area, a biological assessment is not needed and further
‘ 50 C.F.R. § 402.13.
‘ ° 16 U.S.C. § 1536(c); 50 C.F.R. § 402.12.
‘ ‘ 50 C.F.R. § 402.2.
132 Pub. L. No. 95—632, Section 3, 92 Stat. 3751, 3752—53
(1978).
133 16 U.S.C. § 1536(c) (1); 5Ô C.F.R. § 402.12(b) (2).
50 C.F.R. § 402.12(c). See Thomas v. Peterson , 753 F.2d 754
(9th Cir. 1985) (failure of Forest Service to make a formal request
to USFWS as to whether any listed species were present in the
action area, and to prepare a biological assessment, violated the
Act).
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consultation is not required.’ 35 If listed species or critical
habitat are present, the agency is obliged to prepare a biological
assessment.
The contents of a biological assessment are at the discretion
of the Federal agency, and will depend upon the nature of the
action. The following elements may be considered for inclusion:
(1) the results of an on-site inspection of the
affected area to determine whether listed species
occur;
(2) the views of recognized experts on the species
at issue;
(3) a review of the literature or other information;
(4) an analysis of the effects of the action on the
species and habitat, including consideration of
cumulative effects, and the results of any related
studies;
(5) an analysis of alternate actions considered by
the agency for the proposed action.’ 37
The Federal agency shall complete the biological assessment within
180 days after its initiation, unless a different time period is
agreed to by the Director and the agency. 138 The Federal agency
must submit the completed biological assessment to the Director of
the Service for review, who must in turn respond in 30 days as to
whether the Service concurs with its findings. At the option of
the Federal agency, formal consultation may be initiated
concurrently with the submission of the biological assessment.’ 39
Trigger for Formal Consultation . An action agency must enter
into “formal consultation” with the USFWS or NMFS for any agency
‘ 50 C.F.R. § 402.12(d) (1).
136 50 C.F.R. § 402.12(f).
137 In one recent case, a court indicated that EPA’s
- “reasonably thorough” examination of potential effects of an action
on listed species contained in a supplemental environmental impact
statement prepared under NEPA could constitute a biological
assessment as required for that action under the ESA, irrespective
of EPA’s intent in preparing the analysis. Bays’ Leaal Fund v.
Brower , 1993 U.S. Dist LEXIS 10289. Section 7(c) of the Act
provides that a biological assessment may be undertaken as part of
an agency’s compliance with the requirements of section 102 of
NEPA. 16 U.S.C. § 1536(c).
138 50 C.F.R. § 402.12(i).
Id.
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action that “may affect” a listed species or its critical habitat,
unless the agency determines through “informal consultation” or
“biological assessment” procedures, with the written concurrence of
FWS or NMFS, that its action is “not likely to adversely affect”
such species or habitat. See Chart at TAB K.
As noted above, the “may affect” threshold is a very low
threshold under the ESA regulations. In addition, the ESA requires
agencies to take into account a broad range of different types of
“effects” in determining whether the consultation obligation is
triggered, including “indirect effects,” “cumulative effects” and
the effects of “interrelated and interdependent activities.” The
Preamble to the Joint Service Regulations provides that the burden
is on the action agency to show the absence of likely, adverse
effects in order to be excepted from formal consultation.’ 4 °
Designation of Lead Agency and non-Federal Rei resentatives .
Where a particular action involves more than one federal agency,
consultation (or conference’ 41 ) responsibilities may be fulfilled
by a single lead agency. Relevant factors in determining who is
lead agency include: the time sequence in which agencies become
involved in the action; the magnitude of their involvement; and
their relative expertise with respect to the environmental effects
of the action. The lead agency shall notify the Service in writing
of its designation. 142
A Federal agency also may designate a non—federal
representative to conduct informal consultation or conduct a
biological assessment, by giving notice to the Service of such
designation, subject to certain conditions. However, the ultimate
responsibility for compliance with section 7 remains with the
action agency.’ 43
The Formal Consultation Process - Action Agency
Responsibilities . Formal consultation commences with an action
agency’s written request for consultation or, in some cases, upon
the request of USFWS or NMFS. During consultation, the Service
will review relevant information, evaluate the effects of the
action, and formulate a “biological opinion” as to whether or not
the federal action is likely to create jeopardy or destroy or
adversely modify critical habitat.
‘4° Preamble, 51 Fed. Reg. at 19,949.
‘4’ pages 37—38, infra .
142 50 C.F.R. §402.07.
‘ 50 C.F.R. § 402.08.
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An action agency must submit a written request to the Director
of the Service to initiate formal consultation, which includes:
(1) A description of the action to be considered;
(2) A description of the specific area that may be
affected by the action;
(3) A description of any listed species or critical
habitat that may be affected by the action;
(4) A description of the manner in which the action
may affect any listed species or ritical habitat
and an analysis of any cumulative effects;
(5) Relevant reports, including any environmental
impact statement, environmental assessment, or
biological assessment prepared; and
(6) Any other relevant available information on the
action, the affected listed species, or critical
habitat. ‘
Formal consultation may not be initiated by the Federal agency
until any required biological assessment has been submitted to the
Service. Requests for formal consultation may encompass, subject
to the approval of the Service, a number of similar actions within
a geographic area or a segment of a comprehensive plan. 145
The Federal agency requesting consultation is required to
provide the Service with the “best scientific and commercial data
available or which can be obtained during the consultation” for an
adequate review of the effects the action may have on listed
species or critical habitat.’ The meaning of this information
standard is discussed in more detail below.
The Formal Consultation Process — Service Responsibilities .
During formal consultation, the Service responsibilities include:
(1) reviewing all relevant information provided by
the agency;
(2) evaluating the current status of the listed
species or critical habitat;
(3) evaluating the effects of the action and
cumulative effects on listed species or critical
habitat;
(4) formulating its biological opinion as to whether
the action, taken together with cumulative effects, will
violate the substantive standard of Section 7 (a) (2);
(5) discussing with the Federal agency the basis for
144 50 C.F.R. S 420.14(c).
145 Id.
‘ 50 C.F.R. §402.14(d).
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any finding in its biological opinion;
(6) formulating discretionary conservation
recommendations, if any, which will assist the agency in
reducing or eliminating the impacts its proposed action
may have on listed species or critical habitat (these are
advisory only and do not carry binding legal force; they
can be considered by the action agency under section
7(a)(l)); and
(7) formulating a statement concerning incidental take,
if such take may occur.’ 47
The biological opinion shall include: a summary of the information
upon which it is based; a detailed discussion of the effects of the
action on listed species or critical habitat; the Service’s opinion
as to whether the action is likely to jeopardize the continued
existence of a listed species or destroy or adversely modify
critical habitat (a “jeopardy biological opinion”) or not do so (a
“no jeopardy biological opinion”).’ 4
If the Service finds that the agency action is likely to
jeopardize the continued existence of a listed species or adversely
modify critical habitat, the biological opinion must suggest
“reasonable and prudent alternatives,” if any exist, that can be
taken by the agency to avoid jeopardy. The phrase “reasonable and
prudent alternatives” is defined to refer to:
alternative actions identified during formal consultation
that can be implemented in a manner consistent with the
intended purpose of the action, that can be implemented
consistent with the scope of the Federal agency’s legal
authority and jurisdiction, that is economically and
technologically feasible, and the Director (of the
Service] believes would avoid the likelihood of
jeopardizing the continued existence of listed species or
resulting in the destruction or adverse modification of
critical habitat.’ 49
If a jeopardy opinion is issued, the Service is required to discuss
with the action agency the availability of reasonable and prudent
alternatives that the agency (and applicant) can take to avoid
violation of Section 7(a) (2). If requested, the Service shall make
available to the Federal agency the draft biological opinion for
the purpose of analyzing reasonable and prudent alternatives.
‘ 50 C.F.R. § 402.14(g).
148 50 C.F.R. § 402.14(h).
50 C.F.R. § 402.2.
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The Regulations also contain separate provisions for
consultation relating to actions authorized by a statute that
allows the agency to take incremental steps toward completion of
the action. ’ 5 °
Time Period for and Termination of Formal Consultation .
Formal consultation concludes within 90 days after its initiation,
unless extended by mutual agreement between the Service and the
action agency. If an applicant is involved, such extension may be
obtained only if the Service submits to the applicant, before the
close of the 90-day period, a written statement setting forth the
reasons why a longer period is required and certain other
information.’ 5 ’ Within 45 days after concluding formal
consultation, the Service is required to deliver its biological
opinion to the agency. Formal consultation may also be concluded
if the action agency notifies the Service that its action is not
likely to occur, or the agency determines, with the written
concurrence of the Service, that the action is not likely to
adversely affect listed species or critical habitat.’ 52
Reinitiation of Consultation . The Regulations provide that
reinitiation of formal consultation is required, and shall be
requested by the action agency or by the Service, where
discretionary federal involvement or control over an action has
been retained or is authorized by law and:
(a) If the amount or extent of taking specified in
an incidental take statement is exceeded;
(b) If new information reveals effects of the
action that may affect listed species or critical
habitat in a manner or to an extent not previously
considered;
(C) If the identified action is subsequently
modified in a manner that causes an effect to the
listed species or critical habitat that was not
considered in the biological opinion; or
(d) If a new species is listed or critical habitat
designated that may be affected by the identified
action. 153
Section 7(d) of the Act prohibits irreversible or irretrievable
commitment of resources in these circumstances until consultation
50 50 C.F.R. § 402.14(k).
‘ 50 C.F.R. § 402.14(e).
152 50 C.F.R. § 402.14(1).
‘ 50 C.F.R. § 402.16.
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is reinitiated and a new biological opinion is prepared.’
Information Standard and Ultimate ResDonsibility for Action .
Section 7(a) (2) requires that in fulfilling its requirements, each
agency shall use the “best scientific and commercial data
available.” 55 The Joint Service Regulations make clear, in
particular, that the biological opinion, as well as the action
agency’s decision about the project, must be premised on this basic
information standard.’
The cases and the Joint Service Regulations also indicate that
the final decision about whether an action complies with the ESA,
and therefore about whether to proceed with an action, rests with
the action agency rather than the Service.’ 57 The courts have
noted, however, that they will give “substantial weight” to
biological opinions as evidence of an agency’s compliance.” 58
In essence, the section 7(a) (2) information standard obligates
the Service and the action agency to be informed, as much as
possible, by credible scientific evidence. Where there is
scientific uncertainty, this information standard does not preclude
the issuance of a biological opinion or a final decision by the
action agency to proceed. The legislative history of 1979
amendments to the Act indicates that a favorable biological
opinion. 159
However, to better promote species protection, and because
courts may err on the side of protecting listed species where there
is scientific uncertainty, it may be to an action agency’s
advantage to perform, where practicable and feasible, additional
studies in order to strengthen the scientific basis for a decision
that a project will have no jeopardy. See Roosevelt Canmobello,
su ra (“an agency which proceeds with an action in the face of
‘ Village of False Pass v. Watt , 556 F. Supp. 1123, 1155
(D.Ala. 1983), aff’d , 733 F.2d 605 (9th dr. 1984).
155 16 U.S.C. § 1536(a) (2).
£ 50 C.F.R. 55 402.14(d) and (g)(8).
‘ See, e.g. , 50 C.F.R. § 402.15.
‘ Roosevelt Campobello , 684 F.2d at 1049 (citing to
legislative history of 1979 amendments).
159 See H.R. Conf. Rep. No. 697, 96th Cong., 1st Sees. 12,
reprinted in 1979 U.S. Code Cong. & Admin. News 2576. This
legislative history also provides that if a biological opinion is
issued based on inadequate information, the action agency is
obliged to make reasonable efforts to develop the information.
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inadequate knowledge or information ... does so with the risk that
it has not satisfied the standard of Section 7(a)(2)”)) ° The
possible need for additional studies was recognized in Village of
False Pass . There, the district court explained that under the
Act’s information standard, an agency must conduct a “full and
careful review of the then available and relevant data” and that
the duty would be violated by a failure “to initiate feasible and
necessary tests or studies,” or to act “prematurely before the
results [ of the studies) are known.” 16 ’
The Joint Service Regulations provide that where the Service
determines that additional data would provide a better information
basis for a biological opinion, the Service may request an
extension of formal consultation and request the action agency to
obtain additional data to determine how and to what extent the
action may affect listed species or critical habitat.’ 62 If formal
consultation is extended by mutual agreement, the action agency is
required to obtain, to the extent practicable, that data which can
be developed during the extension; the responsibility for
conducting studies to obtain such data rests with the action agency
and the applicant.’ 63
The Service’s request for additional data, however, is not to
be construed as its opinion that the agency has failed to satisfy
the information standard of section 7(a)(2). 1 M If no extension of
formal consultation is agreed to, the Service will issue a
biological opinion using the best scientific and commercial data
Early Consultation . Section 7(a)(3) of the ESA also
authorizes “early consultation,” a process that may be requested by
a prospective applicant for a license or permit who has reason to
believe that a potential action will likely affect endangered or
threatened species.’ This process is similar to formal
consultation and is designed to reduce the likelihood of conflicts
between potential actions and species protection prior to the
160 Roosevelt Campobello , 684 F.2d at 1049.
161 556 F. Supp. at 1154 (citing Roosevelt Cam obello and other
cases).
162 50 C.F.R. § 402.14(f).
‘ Id.
164 Id.
‘ Id.
‘ 16 U.S.C. § 1536(a) (3).
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filing of a license/permit application. A preliminary biological
opinion issued during early consultation may subsequently be
confirmed as a biological opinion after formal consultation if the
Service reviews the proposed action and finds there have been no
significant changes in the action as planned, or in the information
used, during early consultation.’ 67
Obligation to “Confer” . Section 7(a) (4) of the ESA requires
federal agencies to “confer” with the Services on any agency action
which is “likely” to create jeopardy of any proposed species or
destroy or adversely modify critical habitat proposed for
designation.’ In general, conferences are to be conducted on an
informal basis between the Federal agency and the Service. If
requested by the agency, such conferences may be conducted in
accordance with the procedures for formal consultation. The
conclusions reached during a conference and any recommendations
shall be documented by the Service and provided to the Federal
agency.
The purpose of these provisions is to have agencies identify
and resolve possible conflicts between an action and proposed
species or proposed critical habitat at an early stage in the
decision-making process. Service recommendations under conference
procedures are “advisory” in nature, as the substantive
prohibitions under section 7(a) (2) apply to listed species or
designated habitat, rather than proposed species or critical
habitat. However, the Preamble to the Regulations states that an
agency should give serious consideration to implementing these
recommendations since if listing or habitat designation occurs, the
agency will be re uired to evaluate the action under section
7(a) (2) standards.’
Importance of Consultation Obligations . The consultation
process is an essential and integral element of the ESA. It serves
to help agencies identify more fully the potential impacts of their
actions, and ensure compliance with the substantive protective
standards under the Act.
There is no doubt that the process requires an investment of
both time and effort. Part 7 of this paper reviews some promising
mechanisms under the ESA that EPA program offices might be able to
use to facilitate and improve the consultation process.
167 50 C.F.R. § 402.11.
‘ 16 U.S.C. § 1536(a) (4).
‘ Preamble, 51 Fed. Reg. at 19,941.
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4. Internationally-Based Obligations
Section 8 of the ESA encourages the President to demonstrate
the United States’ commitment to the worldwide protection of
endangered and threatened species through, inter alia , the
conclusion and implementation of international conservation
agreements.’ 7 ° Section 8A of the Act includes specific provisions
for implementation of two such agreements, the Washington
Convention on International Trade in Endangered Species of Wild
Flora and Fauna (CITES) and the Convention on Nature Protection and
Wildlife Preservation in the Western Hemisphere (Western
Convention) 171
While the provisions of section 8A create no specific
requirements for EPA, one of the underlying international
agreements, the Western Convention, creates obligations which are
in part fulfilled or violated through EPA action or inaction.
These obligations are similar to ESA provisions analyzed elsewhere
in this memorandum.’
The ESA may in the future be utilized to implement new
international conservation agreements, including the Convention on
Biological Diversity signed by President Clinton in 1993.’
Because the Biodiversity Convention takes a preventive ecosystem
management approach to the protection of biota, EPA will play an
important role in implementing the Convention’s international
obligations should the United States ratify this agreement.
As noted previously, the Joint Service Regulations provide
that section 7(a) (2) obligations apply to agency actions on the
high seas and within the jurisdiction of the United States, and not
to actions in foreign countries.’ 74 Nonetheless, the Preamble
makes clear that the Service maintains a strong commitment to
preserve species and habitat worldwide, and will continue to list
170 16 U.S.C. S 1537.
16 U.S.C. § 1537a.
172 See, e.g. , Article V, agreement to adopt suitable laws and
regulations for the protection of flora and fauna; Article VII,
requiring the adoption of measures for the protection of migratory
birds; and Article VIII, restricting the “taking” of certain listed
species.
‘ Convention on Biological Diversity, 31 I.L.M. 818 (1992),
done at Rio de Janeiro, June 5, 1992. A copy of the Convention is
attached separately.
50 C.F.R. § 402.01(a); Preamble, 51 Fed. Reg. at
19,929—30.
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species found outside U.S. jurisdiction when they are determined to
be endangered or threatened. 17 S
EPA’S own statutes also provide authority to engage in
cooperation with other countries that could be instrumental in
supporting the protection of wildlife and biodiversity in the
international context. The Clean Water Act, for example, states a
policy for the President to take such action as may be necessary to
insure to the fullest extent possible that all foreign countries
take “meaningful action for the prevention, reduction, and
elimination of pollution in their waters and in international
waters” to achieve improvement of water quality to at least the
same extent as the United States achieves under its laws. 176
Several other EPA-administered statutes contain provisions for EPA
to cooperate on various environmental issues with foreign
.h7
5. Types of EPA Actions Covered
Many categories of EPA actions may be subject to the various
obligations of the ESA. As noted above, the term “agency action”
is described broadly under section 7(a)(2) of the Act to refer to
“any action authorized, funded, or carried out by (an] agency.” 78
Types of EPA actions generally covered under this definition
include, but are not limited to: permits and related EPA approvals;
standard setting and rulemaking; approval of state programs; EPA
facilities construction; and financial assistance. Covered actions
may, in some manner, affect a listed species or critical habitat
and therefore be subject to the ESA. In Roosevelt Campobello,
su ra , for example, a court found the issuance by EPA of a NPDES
permit to constitute an agency action under section 7 of the ESA.
In Defenders of Wildlife, supra , a court found that EPA’S continued
registration of a pesticide (strychnine) constituted a taking under
section 9 the ESA.
The Defenders case could suggest parameters for when agency
inaction may constitute action under the ESA, for purposes of both
section 9 and section 7. There, the so-called “action” was simply
the fact that EPA continued the registration of strychnine
following the discovery of information that strychnine was harming
listed species. The Agency did not engage in any specific new
at 19,930.
176 u•s•c § 1251(c).
IT? E.g. , Section 17(d) of FIFRA, 7 U.S.C. § 1360(d).
178 16 U.S.C. § 1536(a) (2).
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action to trigger ESA application. Nevertheless, the Eighth
Circuit found the Agency subject to the ESA, establishing a type of
“but for” test for this purpose (i.e., “but for” EPA’S continued
registration, the taking would not have occurred). The district
court in Defenders also suggested that “inaction” by an agency may,
in some circumstances, be covered by the ESA.’ 79 This suggestion
is arguably consistent with the position taken in the Joint Service
Regulations that section 7 applies to actions where there is
“discretionary Federal involvement or control.” 180
The action/inaction issue may be particularly important for
Agency oversight of EPA-approved state programs. There is little
doubt that the EPA’S approval of an authorized state program,
establishment of standards to govern a state program, or issuance
of a federal permit in lieu of a vetoed state permit, constitutes
action by the Agency subject to section 7. Conversely, based on
analogous NEPA case law holding that issuance of state-issued NPDES
permits are state actions, rather than federal actions within the
meaning of NEPA, a strong argument can be made that state decisions
under EPA-authorized programs are not subject to section 7 of the
ESA. 181 The more difficult question is whether EPA action under
section 7 is implicated where the Agency fails to exercise
discretionary authority to review or veto state actions” 2 that may
adversely affect listed species or designated critical habitat.
While the fact of EPA discretionary control can support the
argument that section 7 is triggered, the Agency can argue that an
EPA decision not to object to, or veto, a state action is outside
the scope of section 7. This argument is premised on case law in
the water area holding that EPA’s non-objection to State NPDES
permits, a matter committed to Agency discretion, is not federal
action under NEPA and the judicial review provisions of the Clean
‘ 668 F. Supp. at 1354.
180 50 C.F.R. § 402.03.
181 E.g., District of Columbia v. Schramm , 631 F.2d 854 (D.C.
Cir. 1980). Of course, to the extent that a state permit actually
injures members of a listed fish and wildlife species, the state
may be subject to takings liability under section 9(a)(1) of the
Act.
182 An example of where the Agency retains such discretionary
authority is section 402(d) (2) of the Clean Water Act, 33 U.S.C.
§ 1342(d), which provides that a proposed state NPDES permit may
not issue if the Administrator files an objection.
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Water Act,’ 83 as veil as general NEPA case law excluding agenc
inaction from the environmental impact statement requirement. I
A related issue is whether “passive” review by the Agency of
a proposed activity constitutes agency action under section 7 and
section 9 of the ESA. For example, it could be argued that where
a company submits an application under TSCA that is deemed approved
unless denied, EPA’S failure to approve the application is an
action subject to the ESA. Again, however, the analogy to NEPA
cases refusing to characterize government inaction as action may
argue for an opposite conclusion. ’
6. Common Issues Regarding EPA Interaction with the Service
The courts recognize the important role played by, and give
great weight to the views of, the Service under the ESA.
Nonetheless, it is ultimately EPA’S responsibility to ensure
compliance with section 7, and the Act does not authorize the
Service to veto Agency decisions. Given the Agency’s
substantial environmental expertise, opportunities exist to make
the existing section 7 process more manageable, even to the point
of Agency disagreement with the Service on technical issues. While
it is clearly preferable to reach consensus with the Service, to
the extent that EPA’S disagreements reflect sound technical
judgement based on credible scientific evidence, they are entitled
to deference from the courts.’ 87
183 .g Schranm , 631 F.2d at 854; Save the Bay. Inc. v. EPA ,
556 F.2d 1282 (5th Cir. 1977); Mianus River Preservation Commission
v. EPA , 541 F.2d 899, 909 (2d. Cir. 1976); ChesaDeake Bay
Foundation, Inc. v. Virginia State Water Control Board , 452 F.
Supp. 22 (E. D .Va. 1978). The procedural requirements of NEPA are
analogous to those of the ESA. Mann Audubon Society v. Seidman,
suDra . Both apply to federal “action” which are similarly defined
by implementing regulations. One difference between the two
statutes that might influence a court is that NEPA is primarily a
procedural statute, while the ESA also contains substantive
mandates. TVA v. Hill , 437 U.S. at 188 n.34.
IM See e.g., State of Alaska v. Andrus , 429 F.Supp. 958,
aff’d , 591 F.2d 537 (9th Cir. 1979).
185 See footnotes 179 and 181, supra .
‘ See e.g., Sierra Club v. Marsh , 816 F.2d 1376, 1386 (9th
Cir. 1987).
‘ A Federal agency decision to disagree with the Service and
proceed with an alternative approach is not a pg violation of
the ESA and, if challenged in court, would be reviewed under the
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First, it is the action agency--rather than the Service--that
has the responsibility to determine whether a proposed action “may
affect” listed species (or is “likely to jeopardize” proposed
species), and therefore whether consultation (or conference) with
the Service is required. 188 In this regard, the Preamble notes
that the Service does not have authority to require agencies to
document a “no effect” finding, although the Service encourages the
use of NEPA documentation to illustrate the ESA analysis.’ 89
Accordingly, where EPA properly identifies the ESA action area for
a particular project and reasonably determines that no species are
present in the area, the project may proceed without additional
section 7 review. Where the Service states that it believes that
the action may affect species, the Agency should ensure that it has
strong record support for its no-effect finding.
Second, the Agency retains the authority to disagree with the
Service, using the best scientific and commercial information
available, on determinations whether an action is likely to
jeopardize listed species or adversely destroy or modify the
critical habitat of listed species. As with disagreements over no—
effect determinations, the Agency should have a strong technical
basis and record for its determination.
“arbitrary and capricious” standard of the Administrative Procedure
Act. As courts are reluctant to substitute their judgment for that
of an agency under this standard, a decision to disagree with the
Service may be sustained if it has a sound technical basis.
Tribal Village of Akutan v. Hodel , 859 F.2d 651, 659—60; National
Wildlife Federation v. National Park Service , 669 F.Supp. 384, 389,
391—92 (D.Wyo. 1987).
The Preamble to the Joint Service Regulations makes it
clear that:
Although the Service will, when appropriate, request
consultation on particular actions, it lacks the
authority to require the initiation of consultation.
The determination of possible effects is the Federal
agency’s responsibility. The Federal agency has the
ultimate duty to ensure that its actions are not
likely to jeopardize listed species or adversely
modify critical habitat. The Federal agency makes
the final decision on whether consultation is required,
and it likewise bears the risk of an erroneous
decision.
51 Fed. Reg. at 19,949.
189 Preamble, 51 Fed. Reg. at 19,945.
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Third, the courts and the Service have placed some limits on
the amount of technical and commercial information that must be
supplied to form conclusions under the Act. In cases where the
Service requests additional data during formal consultation, and an
extension is agreed upon, the Agency is required only to provide
information that can practicably be obtained within the scope of
the extension. Moreover, if the Agency determines that the best
data then available provides a strong technical basis for an
evaluation of whether there is jeopardy, it remains free to refuse
to agree to an extension, in which case the biological opinion will
be based upon the existing data.’ 9 ° In the event of scientific
uncertainty, studies that the Agency can perform are bound by
notions of necessity and feasibility.
Fourth, it is important to remember that the formal
consultation process is subject to specific time limits that must
be observed both by the Agency and the Service. In some cases, to
move consultation to conclusion, it may be to the Agency’s
advantage to initiate formal consultation rather than continue
informal consultation, so that these time limits are brought into
play.
Fifth, the Joint Service Regulations place specific
constraints: 1) on the types of conditions (“reasonable and prudent
measures”) that the Service can impose upon the Agency in an
incidental take statement, so as not to fundamentally alter the
Agency action; and 2) on the content of “reasonable and prudent
alternatives” in biological opinions (which must be within the
Agency’s legal authority, consistent with the project’s original
purpose, and technically and economically feasible) • 19 1
Finally, the Regulations create many opportunities for the
Agency to request information from the Service and work with the
Service to address issues that arise during consultation. For
example, as previously discussed, the Regulations require the
Service to make available, upon request, drafts of the biological
opinion, and to discuss with action agencies reasonable and prudent
‘ As noted in the Preamble, “(t]he (action] agency still has
the discretion to reject the Service’s request for additional data
provided it is not arbitrary or capricious in doing so.” Preamble,
supra , 51 Fed. Reg. 19,952.
The Preamble states that “ [ t)he Service will, in most
cases, defer to the Federal agency’s expertise and judgment as to
the feasibility of an alternative.” 51 Fed. Reg. at 19,952. For
a summary of statistics showing that formal consultation results,
in the vast majority of cases, in the development of reasonable and
prudent alternatives, see 0. Houck, “The Endangered Species Act and
its Implementation by the Department of Interior and Commerce,”
University of Colorado Law Review , Volume 62, Issue 2, pp. 317—321.
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‘alternatives in the case of a jeopardy opinion.
7. Alternative Mechanisms to Facilitate Compliance with
Consultation Requirements
There are a number of promising opportunities to support and
improve agency management of ESA obligations, and in particular
obligations relating to consultation under section 7.
• Ecosystem-Based Approaches
In particular, it may be possible to develop “programmatic”
and ecosystem-based approaches to the consultation process, to
address at the same time a number of interrelated actions,
including actions the Agency anticipates taking under some or all
media programs in a particular ecosystem. This would be consistent
with the Joint Service Regulations, which provide that requests for
formal consultation may encompass a number of similar actions
within a given geographic area.’
The use of such an approach would be consistent with the
Administrator’s priority of addressing environmental issues on an
ecosystem basis, and could offer opportunities to leverage Agency
resources in a way that may significantly strengthen protection of
wildlife and habitat. Such approaches also could improve the
efficiency of the consultation process by identifying and
addressing potential ESA issues early in the process, thereby
reducing the level of detail needed for review of subsequent site-
specific actions.
• Memoranda of Agreement
In some cases, it may be helpful to set forth these and other
approaches and mechanisms (e.g., mechanisms for dispute resolution)
in “memoranda of agreement” (or “MOAS”) with the Services. The
Office of Water has taken the initiative to successfully negotiate
MOA5 with the Service addressing consultation regarding water
quality criteria and standards, as well as NPDES permits and
section 404 program approvals.
• Counterpart Regulations
The Joint Service Regulations also authorize the drafting, by
Federal agencies and the Service, of joint “counterpart”
regulations to allow Federal agencies to tailor the general
consultation framework to reflect their particular program
responsibilities and obligations. Counterpart regulations will
supersede the consultation procedures, but must “retain the overall
degree of protection afforded listed species required by the Act
192 50 C.F.R. § 402.14(c).
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and (the Regulations].”’ 93 Changes in the consultation process
must be designed to enhance its efficiency without eliminating
agency responsibility for compliance. The Preamble to the Joint
Service Regulations states that as long as agencies use the general
consultation process as a starting point, they can anticipate
little difficulty in securing approval from the Service for
counterpart regulations • 195
• Optional Consultation Procedures
“Informal consultation” is often an appropriate alternative to
formal consultation. ’ 9 Also, “early consultation” procedures
provide an opportunity to identify at an early stage potential ESA
issues associated with EPA—issued permits.
• Other Actions and Possibilities for Cooperation
Other actions could be taken within the Agency. The Agency
could, for example, strengthen initiatives to examine and respond
to ecological impacts in the development of rules and regulations,
or in the context of other Agency actions.
There also are opportunities to cooperate with the Service in
the development and implementation of “recovery plans” under the
Act. Cooperation with the Service and other agencies to protect
watersheds offers one example. EPA also could work with the
Service, private entities and others to develop broadly-based
habitat conservation plans under section 10 of the ESA, or other
authority. Such approaches could support compliance both with EPA-
administered statutes, the general purposes of the ESA, the
affirmative conservation obligation of ESA section 7(a)(1) and
other ESA obligations.
Many of these initiatives and approaches also can be extended
to include cooperation or partnership with states, local and tribal
governments, foreign governments, NGOs and the public.
193 50 C.F.R. § 402.04; Preamble, supra , 51 Fed. Req. at
19,937.
194 Preamble, 51 Fed. Req. at 19,937.
195
‘ Studies performed by the World Wildlife Fund and the
General Accounting Office indicate that more than ninety percent of
consultations under the ESA are concluded informally. See 0.
Houck, supra , at 318.
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8. Types of EPA Authorities that Could be Utilized under section
7(a) (1)
As noted above, section 7(a)(l) of the ESA imposes an
affirmative obligation upon federal agencies to utilize their
authorities to carry out programs for the conservation of listed
species. The courts have indicated that this provision creates a
continuing obligation, with discretion left to each agency to
determine the best way to implement it. The term conservation
means, in effect, to bring species back to the point where
protection under the Act no longer is needed.
This provision creates both a duty and an opportunity for EPA
to support the protection of wildlife and habitat, consistent with
EPA’s own authorities and environmental protection mission. In
many respects, EPA is in a unique position among agencies with
respect to the implementation of section 7(a) (1). EPA—administered
statutes and regulations confer authority (and responsibility) upon
•the Agency to take a wide range of actions to protect the land, air
and waters from pollution and degradation.
These authorities apply to activities on both public and
private lands. Their utilization is essential to the protection of
individual species, and to the protection of wildlife habitat and
the healthy functioning of natural systems. As noted in one recent
article, actions under these authorities (based upon the Commerce
Clause of the Constitution) are a powerful complement to
traditional forms of governance undertaken by land management and
wildlife agencies, which focus principally upon the protection and
management of public lands (based upon the Property Clause of the
Constitution).
Administrator Browner has indicated the importance of EPA
actions in this context:
Many of the laws that we administer, like the Clean
Water Act and the Federal Insecticide, Fungicide,
and Rodenticide Act, clearly contribute to the
protection of species and ecosystems. Whenever EPA
has acted to control acid rain, clean up waste sites,
construct sewage treatment plants, or prohibit the
use of certain pesticides, we have--implicitly or
explicitly--helped preserve biological diversity and
natural habitat.’ 98
197 R. Fischman, “Biological Diversity and Environmental
Protection: Authorities to Reduce Risk,” Environmental Law , Vol.
22, pp. 435—502 (1992).
April 1993 Statement, supra , note 6.
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The Administrator noted that the Agency clearly must do more
because, notwithstanding demonstrable successes, natural habitat in
the country still is seriously stressed. She indicated that EPA is
placing more emphasis on habitat protection, in line with the
recommendations of the Science Advisory Board (1990) relating to
the intrinsic value of biodiversity and ecosystems.
The Administrator also highlighted several opportunities in
EPA programs to foster the health of ecosystems, including: the
Environmental Monitoring and Assessment Program (EMAP); initiatives
targeted at specific geographic areas and ecosystems, such as the
Gulf of Mexico, the Chesapeake Bay and the Great Lakes; watershed
protection; and the National Estuary Program.
This commitment is further bolstered by provisions in many EPA
statutes to take into account the effects of EPA regulated
activities on wildlife, habitat and/or ecosystems. These include
provisions relating to: standard setting; issuance or denial of
permits for polluting activities; registration or denial of
pesticides and chemicals; establishment of technology-based
pollution control measures; research and monitoring relating to
environmental conditions; oversight of EPA-approved state programs;
cooperation with foreign governments to protect against
transboundary pollution and protect the global commons and global
environment; and many others.
For example, the basic objective of the Clean Water Act
(“CWA”) is to “restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.” CWA programs
support this objective, including: the NPDES permitting program;
the section 404 program; approval and funding of state nonpoint
source management programs, the National Estuary Program, and the
antidegradation policy. Further, under the Marine Protection,
Research and Sanctuaries Act, EPA is called upon to issue
guidelines that must be met to address the effects on marine
ecosystems of ocean duinping.
The registration program under FIFRA provides EPA authority to
regulate against harms to species and ecosystems. 20 ’ The Toxic
Substances Control Act confers EPA authority to regulate chemicals
that pose a risk to health or the environment. The term
“environment” is defined to include “water, air and land and the
interrelationship which exists among and between water, air and
‘ 33 U.S.C. § 1251(a).
33 U.S.C. § 1343(c) (1).
‘ 7 U.S.C. § 136a.
202 15 U.S.C. §S 2601—2671.
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land and all living things.” 203 The National Contingency Plan
under the Superfund program is required to have criteria that take
into account “the potential for destruction of sensitive ecosystems
•••• i204 The hazardous waste management program under the Resource
Conservation and Recovery Act (“RCRA”) provides EPA with authority
to issue facility operating standards, and to impose additional
conditions in permits, as necessary to protect human health and the
environment. The RCRA regulations specifically provide for the
consideration of ESA provisions during the issuance of a RCRA
permit by EPA. 206
The Clean Air Act (“CAA”) requires EPA to promulgate secondary
national ambient air quality standards to protect public
welfare. 207 Effects on welfare include, among other things, the
effects of pollution on soils, water, animals and wildlife. 206
Title IV of the CAA, conferring EPA authority to address the
problem of acid deposition, is based upon--among other things--
congressional findings that acid deposition from the atmosphere
represents a threat to natural resources and ecosystems. 2
As this discussion suggests, EPA has many authorities that it
can utilize to protect wildlife and biodiversity, and fulfill its
duty under section 7(a)(1). Unlike other federal agencies whose
authority to protect wildlife may be limited to the ESA, EPA can
also rely upon its own authorities to protect wildlife and
biodiversity. Consistent with the Agency’s commitment to pollution
prevention, these authorities can be instrumental in achieving
protection before critical stages are reached where protection
under the ESA is required.
9. Penalty ProviBions
Section 11210 of the ESA contains provisions for civil
penalties and criminal enforcement for ESA violations.
203 15 U.S.C. § 2602(5).
42 U.S.C. § 9605(a) (8) (A).
205 42 U.S.C. § 3005(c) (3).
40 C.F.R. § 270.3.
‘ 42 U.S.C § 7409.
42 U.S.C. § 7602(h).
42 U.S.C. § 7651(a) (1).
210 16 U.S.C. § 1540 (1988).
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• Civil Penalties
Under the ESA, the Secretary may assess civil penalties
against “any person who knowingly violates” the Act or its
implementing regulations. Section 11(a) addresses administrative
civil penalties of up to $25,000.2h1 It also provides for notice
and hearing requirements for civil administrative penalties and the
cancellation or mitigation of penalties. It also authorizes the
Federal government to collect penalties through civil judicial
actions. Section 11(a) expressly provides that each ESA violation
constitutes a separate offense.
• Criminal Penalties
Section 11(b) provides for criminal liability under the ESA.
This provision is reserved to address the most serious violations
of the ESA. Persons who “knowingly” violate the Act, an ESA permit
or certificate, or ESA regulations are subject to fines and
imprisonment. 212 The 1984 Sentence Reform Act and the 1987
Criminal Fines Improvement Act increased the criminal penalties
under the ESA; the maximum penalty per violation is a $100,000 fine
and/or imprisonment for one 1 ear for individuals and a $200,000
fine for corporate violators. 13
• Interpretation of the “Knowingly” Standard
In both the civil and criminal contexts, courts have
interpreted the “knowingly” standard very broadly. In fact, the
Conference Committee Report to the 1978 ESA Amendments states that
Congress did “not intend to make knowledge of the law an element of
either civil penalty or criminal violations of the Act.” 214 For
example, ignorance of a listed animal’s protected status is no
defense to civil charges of ESA violations. 215 Under section
211 at § 1540(a) (1). Section 11(a) (1) also provides civil
penalties for ‘inadvertent’ violations not to exceed $500 per
violation.
212
213 See E. Sobeck, “Enforcement of the Endangered Species Act,”
8 Natural Resources & Environment 30 (Summer 1993).
214 H.R. Conf. Rep. No. 1804, 95th Cong., 2d Sess. 26 (1978),
reprinted jj 1 1978 U.S. Code Cong. & Admin. News 9453, 9494.
2 15 Christy v. Hodel , 857 F.2d 1324 (9th Cir. 1988) (defendant
claimed that he did not know that the grizzly bear he shot was
listed as threatened; the court held Christy liable and found that
ignorance of the law was not a viable defense), cert. denied sub
nom., Christy v. Lulan , 490 U.S. 1114 (1988).
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11(a) (3), persons are exempt from civil penalties if they can prove
that they acted with a good faith belief to protect themselves or
others from bodily harm from an endangered or threatened
species. 216 Acting to protect personal property, however, is not
a viable defense to civil penalties under the ESA. 217 For civil
penalties, persons who import and export of fish, wildlife, and
plants in violation of the ESA are held to a strict liability
standard, a deviation from the “knowingly” standard. 218
As with civil liability, the “knowingly” standard is
interpreted broadly for purposes of criminal liability. 219 The
term “knowingly” in this context has been defined to mean that an
“act was done voluntarily or intentionally, and not because of
mistake or accident.” United States v. Billie , 667 F. Supp. 1485,
1492—1493 (S.D.Fla. 1987) (prosecution of Seminole Indian for
violation of ESA) (citing Pattern Jury Instructions for criminal
cases). Persons can avoid prosecution if their actions were taken
in accordance with a good faith belief that they were protecting
themselves or others from bodily harm from endangered or threatened
species. ° Otherwise, criminal violations are treated as a
general intent crime, rather than a specific intent crime.
This means, in effect, that criminal liability may be imposed
under the ESA absent mens , and may apply to certain acts
“regardless of the actor’s mental state.” ’ The court in Billie
216 16 U.S.C. § 1540(a) (3).
217 Hodel , 857 F.2d at 1330. In this case, Christy tried to
escape liability by claiming that he shot a threatened grizzly bear
in order to protect his sheep herd from attack, thus protecting his
personal property. The court declined the defendant’s “invitation
to construe the Fifth Amendment as guaranteeing the right to kill
federally protected wildlife in defense of property,” and found
Christy liable for the “take” of the listed species.
218 Richard Littel, Endangered and Other Protected Species:
Federal Law and Regulation 79 (1992).
219 The pre—1978 version of ESA section 1540(b) (1), relating
to criminal sanctions, required the government to prove that a
defendant had “willfully commit(ted] an act which” violated the
regulations. See 16 U.S.C.A. § 1540 note (West 1985). In 1978,
however, Congress substituted the word “knowingly” for “willfully,”
stating that it did “not intend to make knowledge of the law an
element of either civil penalty or criminal violations.” g e.g.,
United States v. Nguyen , 916 F.2d 1016, 1019 (5th Cir. 1990).
no 16 U.S.C. § 1540(b) (3).
‘ Nguyen , 916 F.2d at 1019.
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referred to California Supreme Court Chief Justice Traynor’s
distinction between general and specific intent crimes, as follows:
When the definition of a crime consists of only the
description of a particular act, without reference to
intent to do a further act or achieve a future
consequence, we ask whether the defendant intended to do
the prescribed act. This intention is deemed to be
general criminal intent. When the definition refers to
defendant’s intent to do some further act or achieve some
additional conse ience, the crime is deemed to be one of
specific intent.
In Nguyen , for example, the absence of a specific intent
requirement meant that it was “sufficient that Nguyen knew that he
was in possession of a turtle. The government was not required to
prove that Nguyen knew that this turtle is a threatened or
endangered species or that it is illegal to transport or import
it.” 916 F.2d at 1018. Similarly, if a person shoots an
endangered grizzly bear when he thought he was shooting an elk,m
or kills an endangered panther without the knowledge of what type
of panther he had hunted, that person can still be convicted for
a criminal violation of the ESA. Once a person is convicted, the
government may immediately modify, suspend, or revoke any export
and import licenses, land—use leases, and related perinits.
• Violations by Government Officials
Under a literal reading of the ESA, federal officials are
potentially subject to civil and criminal liability for violations
under section 11 of the Act. The civil penalty and criminal
enforcement provisions in section 11 apply to any person who
knowingly commits a violation; section 3 of the Act defines the
term “person” to include “any officer, employee, agent, department,
United States v. Billie , 667 F. Supp. 1485, 1493 (S.D.Fla.
1987).
United States v. St. Onge , 676 F. Supp. 1044 (D.Mont.
1988) (defendant was convicted of “taking” an endangered grizzly
bear in violation of ESA section 11(b) when he was hunting for elk;
defendant thought he had shot an elk instead of the grizzly).
224 Billie , 667 F. Supp. at 1485 (Defendant was convicted of
“taking” an endangered panther; defendant thought he had killed a
different, not endangered, species of panther).
16 U.S.C. § 1540(b) (2).
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or instrumentality of the Federal government.” 6 In practice,
however, federal officials generally have not been the subjects of
civil or criminal liability under the ESA. While federal officials
are liable as individuals for ESA violations for actions outside
the scope of their employment, it appears that no federal officials
have ever been held liable under the ESA for actions within the
scope of their employment. In any event, federal officials acting
in their official capacity are duty bound to comply with the Act
and its implementing regulations.
In general, legal action against federal officials and their
agencies has been in the form of injunctive relief to bar an agency
action due to noncompliance with the ESA. While section 11(e) of
the ESA authorizes the U.S. Attorney General to enjoin agencies
from violating the ESA,m citizen suits are the traditional means
by which agencies are enjoined from taking action because of ESA
violations. Citizen suits are discussed in more detail below.
10. Citizen Suits
Section 11(g) of the ESA authorizes citizen suits. It allows
private individuals to sue persons (including federal officials and
agencies) to enjoin them from violating the ESA or its implementing
regulations. At least sixty days before filing suit, citizen
plaintiffs must provide the Secretary and the alleged violator with
written notice of intent to sue for the violation. Moreover,
they must establish an actual case or controversy under article III
of the Constitution to maintain standing. Lulan v. Defenders of
Wildlife , 112 S.Ct. 2130 (1992).
Citizen suits have been used to enjoin agency actions under
both sections 7 and 9 of the Act. The most common citizen suits
against federal agencies involve alleged violations of section 7 of
the ESA. ° In the recent past, there has been a growing number of
citizen suit notices and actions against EPA for alleged
noncompliance with section 7. TAB L contains a current list of
16 U.S.C. § 1532(13). gg also United States v. City of
Rancho Palos Verdes , 841 F.2d 329 (9th Cir. 1988) (noting that
officers, employees and agents of municipalities all are clearly
subject to prosecution under the ESA).
See 16 U.S.C. § 1540(e) (6).
16 U.S.C. S 1540(g) (1) (A).
at S 1540(g) (2) (A) (i).
E. Sobeck, “Enforcement of the Endangered Species Act,” 8
Natural Resource & Environment at 73.
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litigation against EPA and notices of intent to sue the Agency
under the ESA’s citizen suit provision.
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re sP4
I ____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
\ WASHINGTON. D.C. 20460
OC1 29 19 .
THE ADMINISTRATOR
MEMORANDUM
Subject: EPA Roles and Responsibilities under the Endangered
Species Act
Assistant Administrators
Regional Administrators
The Environmental Protection Agency has a vital role to play
in protecting ecosystems and biological diversity. I have made
ecosystem protection one of my highest priorities for EPA. The
End .ngered Species Act (ESA) is an important tool in achieving
this goal because it is designed to protect not only endangered
species but the ecosystems upon which these species depend.
Based on the endangered species background paper submitted to my
office, EPA has a significant role to play in the preservation of
endangered and threatened species, but we must take concrete
steps to ensure that our ESA obligations are consistently
implemented.
In order to strengthen EPA’s commitment to protecting
endangered species, I have asked the Endangered Species
Coordinating Committee (ESCC) under the direction of Deputy
Administrator, Bob Sussman, to assist EPA in developing a .process
to more efficiently and effectively undertake our ESA
responsibilities. We are expanding the Committee to include
representatives from Region 9, the lead region for this effort,
and the program offices. The Committee’s task will be to improve
the consistency and effectiveness of EPA’S efforts to implement
its ESA obligations. A focus of this imQroventent will, be to
increase endangered species protection without overburdening the
resources of the Agency.
As a first step, we are asking the Assistant Administrators
and Region 9 to appoint a person to the Committee who is
knowledgeable about your ESA implementation activities and is
able to represent your office in this effort. In addition, we
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request that management for all offices participate in a workshop
organized by the Deputy Administrator’s Office that will take
place in early January. Office Directors from each Headquarters
Program and at least one Division Director in each Region should
plan to attend. The intent of the workshop will be to clarify
the ESA Section 7 consultation, affirmative conservation and
Section 9 provisions, to exchange information and experiences to•
date, and to outline steps to be taken to improve our management
of ESA obligations.
These steps could involve the development of guidance on the
coilsultation process, negotiation of additional program—specific
MOU’s with the Fish and Wildlife Service, and the National Marine
Fisheries Service, and agreements with the Services to streamline
the consultation process. They could also include steps that EPA
could take to implement the ESA’s affirmative conservation
• provision.
Please forward the names and phone numbers of your ESCC
representative and workshop attendees by November 10, 1993 to Jim
Serf is, Office of Federal Activities (mail code 2253, (202) 260—
7072).
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O Sr ,.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, DC. 20460
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ENDANGERED SPECIES BACKGROUND PAPER
INTRODUCTION
As the federal agency established to protect the total
environment, EPA has a vital role to play in managing biological
diversity and ecosystems. Part of that role is supporting
efforts to protect and recover federally-listed threatened and
endangered (T&E) species. Indeed, EPA’s Science Advisory Board
has identified species extinction as among the four highest risks
to our ecological systems.
Resources protected by EPA statutes are of critical
importance to T&E species. For example, eighty-five percent of
all such species utilize wetlands and aquatic habitats.
Moreover, there are many opportunities for EPA to assist with the
protection of T&E species. A preliminary analysis by the
Environmental Defense Fund and the Wilderness Society indicates
that fifty-two percent of the 920 T&E species they examined are
affected by, among other threats, pollutants regulated by EPA or
EPA-approved environmental programs (see Attachment 1).
The Endangered Species Act (ESA) provides authority for, and
constraints upon, EPA’S T&E species management. Currently, there
are a number of separate initiatives in the Agency which will
contribute to EPA’S ability to protect and recover listed species
under the ESA. However, there is no common understanding within
the Agency of how the ESA applies to particular programs or a
coordinated Agency strategy for developing ESA guidance and
procedures. Accordingly, affirmative efforts are needed to
improve EPA management of its ESA responsibilities.
The following provides an overview of the ESA, highlights
current Agency ESA activities, identifies important issues, and
sets forth recommendations for improving ESA administration in
the Agency.
THE ENDANGERED SPECIES ACT
The ESA requires federal agencies, in consultation with the
Fish and Wildlife Service (FWS) and the National Marine Fisheries
Service (NNFS), to ensure that any action authorized, funded, or
carried out by Federal agencies is not likely to jeopardize the
continued existence of T&E species or designated critical
habitat.’ Under ESA implementing regulations, consultation with
FWS (or NMFS, for most marine species) is required when a federal
action within the United States or upon the high seas may affect
listed species or species proposed for listing. For major
“Action” is defined by regulation to include permits,
regulations, grants, and actions that directly or indirectly
cause modifications to the land, water, or air.
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construction activities that are likely to affect listed species,
the action agency must prepare a biological assessment, to
identify the potential effects on T&E species. So that FWS
and/or NMFS (“the Service”) review all actions affecting T&E
species, the ESA regulations require consultation even on actions
intended toconserve T&E species or that otherwise benefit such
species. The regulations also provide that, subject to the
approval of the Service, a single consultation may encompass a
number of similar individual actions within a geographic area or
a segment of a comprehensive plan.
Generally, consultation is carried out by completing either
“informal” or “formal” consultation. 2 Informal consultation is
an optional process that may be conducted in any manner but
concluded only if the Service concurs in writing that the agency
action is not likely to adversely affect T&E species. There is
no set schedule for informal consultation. If adverse effects
are likely or the agency proceeds directly to formal
consultation, the process results in the Service’s issuance of a
biological opinion on whether the agency action is likely to
jeopardize the existence of any T&E species or adversely modify
designated critical habitat. The standard time frame for formal
consultation is 135 days: 90 days for consultation between the
action agency and the Service, and 45 days for the Service to
issue its biological opinion. Extensions of this time frame are
common but can be made only with the agreement of the action
agency.
If the Service finds jeopardy, it also must identify all
reasonable and prudent alternatives available that would avoid
jeopardy. These alternatives must be within the agency’s
statutory authority, and economically and technologically
feasible. After receipt and consideration of the Service’s
biological opinion, the action agency decides whether and how to
proceed. 3 Consultation must be based on the best scientific and
commercial data available, which generally does not require
agencies to conduct new studies.
2 Prospective permit applicants may also request that the
action agency and the Service conduct “early” consultation if the
applicant believes that listed species may be affected by the
prospective action, in order to minimize the likelihood of
conflict once the permitting process commences.
A recent study of the 71,560 consultations conducted by
the Service with all federal agencies over a five—year period
found that 2,000 went to formal consultation and 17.5% of those
resulted in jeopardy findings. Significantly, however, less than
1% of the formal consultations resulted in the action ultimately
being terminated.
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Beyond consultation on specific actions, the ESA requires
that agencies, in consultation with the Service, utilize their
authorities to further the purposes of the ESA by carrying out
programs for the protection and recovery of T&E species. To
date, the courts have not precisely defined the scope of this
affirmative conservation obligation. Nevertheless, one of the
stated purposes of the ESA is to provide a means whereby the
ecosystems upon which T&E species depend may be conserved.
Under the ESA, no “person,” including federal agencies, may
harm or kill (“take”) individuals of a T&E species. The ESA also
provides for citizen suits, which allow private individuals to
sue for alleged agency non-compliance with the ESA. EPA is
currently defending five cases involving ESA issues, and the
Agency has received six notices of intent to sue in the last two
years that have not resulted in court filings (see Attachment 2).
HIGHLIGHTS OF CURRENT EPA ACTIVITIES 4
The Office of Water (OW) . OW and the Service are refining a
memorandum of understanding to ensure efficient compliance with
the ESA as EPA develops water quality criteria, approves state
water quality standards, and administers the NPDES program. Most
EPA Regions (1, 2, 4, 5, 6, 9, and 10) are in consultation with
the Service on various activities, including NPDES permits, New
Jersey’s 404 wetlands program assumption, the Great Lakes Water
Quality Initiative, water quality standards, and total maximum
daily load allocations.
The Office of Pesticides Programs (OPP) . OPP has a comprehensive
program ready to enter Red Border review that covers all
pesticide actions. A voluntary program is currently in place in
146 counties nationwide. This program involves an extensive
outreach and education effort, which has been well received.
Over the past 15 years, OPP has consulted at least in part on
one—third of the 400 already-registered pesticides.
The Office of Pollution Prevention and Toxics (OPPT) . Currently,
OPPT is considering options for including endangered species
considerations in the existing and new chemicals program.
The Office of Air and Radiation (OAR) . Although OAR includes
consideration of ecological effects in implementing many of its
programs, it does not currently consult under the ESA in
administering the Clean Air Act.
The Office of Solid Waste and Emergency Response (OSWER) . Under
RCRA, EPA—issued permits, including corrective action permits,
Attachment 3 contains a more detailed description of
activities and issues submitted by each program.
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are subject to ESA consultation by regulation; one RCRA
consultation is ongoing in Region 5. OSWER is also examining the
ESA’s possible applicability to EPA’S authorization of state RCRA
programs. With regard to CERCLA, the Agency takes the legal
position that the substantive, but not the procedural,
requirements of the ESA apply to the selection of Superfund
response actions. However, as a matter of policy, the Superfurid
program does follow the consultation process during the process
of selecting remedies at a site. The presence of endangered
species is also a factor in the formula for selecting sites for
the National Priorities List.
The Office of Enforcement WE) . OE has no specific ESA
initiatives ongoing, but could support endangered species
conservation through T&E—targeted enforcement and T&E—focused
supplemental environmental projects negotiated in exchange for
reduced liability.
The Office of Federal Activities (OFA ) • OFA and their regional
counterparts provide ESA-related assistance to EPA programs, as
requested, on an ad hoc basis. OFA recently negotiated an MOU
with the FWS that establishes a mechanism for improving EPA-FWS
cooperation.
The Office of International Activities (0Th) . OIA voluntarily
supports efforts to conserve endangered species through its
bilateral activities, including protection of endangered cichlid
fish in Lake Victoria, Africa. OIA is coordinating EPA
participation in an interagency review of existing U.S. policy
not to apply the ESA’s consultation provisions to U.S. actions
abroad. OIA also coordinated EPA participation in the
negotiations for the Biodiversity Convention, which includes
various mechanisms to protect endangered species.
The Office of Research and Development (ORD) . ORD is assisting
in a consultation in Region 1, has identified the existence of
new populations of endangered species through EMAP, and is
developing methods to apply toxicity data from surrogate species
to T&E species management.
The Endanaered 8 ecies Coordinating Committee . This Committee,
composed of members from OPPE, OFA, and OGC, was established by
the Deputy Administrator in August 1992 to conduct an Agency-wide
review of ESA implementation and to develop, with the programs
and regions, an Agency—wide endangered species strategy.
ISSUES
1. Guidance Needs
The Agency has not addressed its responsibilities under the
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ESA on a comprehensive basis. As a result, many program offices
?re unclear as to the extent of their ESA obligations. In some
instances, questions about ESA applicability have caused program
disruption stemming from litigation and/or last-minute
consideration of ESA issues. Where guidance does exist, actions
are not always consistent across Regions and within programs.
Further, where programs have conducted ESA consultation, they
often have done so without an awareness of the flexibility or
control available to the Agency in the consultation process.
Accordingly, an affirmative effort to develop appropriate
guidance is needed. In this regard, recurring issues of critical
importance to EPA programs requiring clarification include: the
degree to which consultation may occur on combined actions or an
ecosystem basis, EPA information-gathering requirements, EPA
control over consultation time schedules, the scope of effects
outside EPA’S jurisdiction that must be considered in a
consultation, and EPA discretion over whether and how to proceed
with an action after issuance of a Service biological opinion.
2. Resource Implications
The potentially broad applicability of the ESA to EPA
programs may have significant resource implications. Several
program offices have produced budget estimates based on
projections or experience under existing consultation approaches.
The Office of Pesticides Program (OPP) currently obligates $3
million annually to endangered species concerns. OPP estimates
that 8 FTEs would be necessary to eliminate expeditiously the
current consultation backlog. Once the backlog is eliminated, 3
FTEs would be sufficient to meet consultation requirements.
These estimates do not include the additional money and FTEs
necessary for program implementation after consultation.
Several Regional Water Divisions have estimated that each
formal consultation ranges, on the average, from 0.25 to 1.5 FTE.
The Office of Pollution Prevention and Toxics estimates that 1.5
FTEs and $150,000/year would be needed for the ESA under TSCA.
Finally, other agencies, most notably the Forest Service, have
been successful in obtaining budget add-ons from Congress for ESA
compliance activities.
3. Affirmative T&E Conservation Programs
The ESA provides that agencies, in consultation with the
Service, utilize their authorities to carry out programs for
protecting and recovering T&E species. This provision may be a
vehicle for developing affirmative T&E conservation efforts
within the context of EPA ’s programs, to protect ecosystems upon
which T&E species depend. To date, the Agency has not explored
how use of this provision might fit into the Agency’s approach to
managing biodiversity and ecosystems. However, as the Service
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accelerates its shift in focus under the ESA from single-species
to multi-species and ecosystem management, increased cooperation
with the Service under this provision could augment EPA’s own
ecosystem management efforts.
4. ESA Reauthorization
It is unlikely that the ESA will be reauthorized this year,
but several bills have been introduced recently. Senator Max
Baucus (D—Mont.), chair of the Committee on Environment and
Public Works, and Senator John Chafee (R-R.I.) have introduced
legislation to reauthorize and restructure the Act. The bill
shifts the ESA’s focus toward earlier species protection and
comprehensive ecosystem management, encourages species protection
by private landowners through technical assistance grants, and
supports building a stronger partnership with the states in
realizing the ESA’s goals. Gerry Studds (D—Mass.), chair of the
House Merchant Marine and Fisheries Committee, has introduced a
bill to extend and strengthen the ESA. The proposal sets
deadlines for developing recovery plans for species and provides
for incentives to private landowners. Representative W.J. Tauzin
(D—La.) has introduced a bill to limit the scope of the Act.
RECOMMENDATIONS AND OPTIONS
* To ensure effective compliance with the ESA, issue a policy
statement from the Administrator concerning EPA’S
responsibilities under the Act.
o Could direct compliance in the most efficient and
environmentally effective manner ( e.g. , by consulting on
similar individual actions on an ecosystem basis, where
appropriate).
o Could be made as part of a broader statement on
biodiversity and/or ecosystem management.
o Could set in motion some or all of the steps described
below.
* Clarify the applicability of the ESA to EPA activities.
o Program offices, with assistance from the Office of
General Counsel, could resolve issues regarding the
applicability of the ESA to particular EPA activities.
* Develop and issue implementation procedures.
O Could involve the issuance of general guidance on the
consultation process, program-specific guidance or
regulations, and the negotiation of program—specific
MOU’s with the Service.
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o Could entail the development of a separate Agency-wide
ESA regulation a joint regulation with the Service
that would allow for deviations from current ESA
procedural requirements where T&E species protection is
maintained.
* Develop an ESA management system to provide assistance to
programs and ensure effective interaction with the Services.
o To be coordinated by the Office of Federal Activities.
o Could involve specific procedures for intra-Agency
coordination, management of ThE species data bases, and
development of an umbrella MOU with the Service (e.g., to
foster endangered species management on an ecosystem
basis).
* Develop a strategy to address ESA resource implications.
* Establish an EPA workgroup to investigate the extent to
which the ESA’S affirmative conservation provision may be
advanced to enhance the Agency’s efforts to manage
biodiversity and ecosystems.
* Participate, as appropriate, in the ESA reauthorization
process, in coordination with the Departments of Interior
and Commerce.
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ATTACHMENT ONE
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LISTED SPECIES AFFECTED BY POLLUTION *
The Environmental Defense Fund and the Wilderness Society
are currently compiling a database on the threats to T&E species
listed or proposed for listing under the ESA. Preliminary
analysis provided to the ESCC in April, 1993 indicate that
approximately 52% of 920 listed species or proposed listings
included in their database are affected by pollution. The number
of species affected by pollution are as follows:
Mining : 52
Pesticides, herbicides : 93
Water Pollutants : 96
Sewage : 47
Toxics & Other Chemicals ; 43
Garbaae Dumping : 38
Air Pollution : 4
River/Stream siltation & Sedimentation : 106
TOTAL SPECIES AFFECTED: 479
* The attached raw data printouts were provided on condition
that they not be published, and should be attributed to EDF
and The Wilderness Society; additions and percentages were
calculated by the ESCC. Further explanation of methods and
interpretation of these numbers will be provided in their
final published report.
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PR L’ffNARY ANALYSIS--NOT FOR PUBLICATION
DATA COMPILED BY TUE VI Q 1’AL DEFENSE FUND AND TR WILDERNESS SOCIETY
LIST OF SPECIES AFFECTED BY POLLUTION
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ATTACHMENT TWO
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The following summarizes the status of Endangered Species
Act (ESA) litigation involving. EPA as of 6/15/93. The Agency is
currently defending five active cases and has received six
notices of intent to file suit under S 11 of the ESA, 16 U.S.C.
§ 1540.
ACTIVE CASES:
1. The Bays’ Legal Fund. et al. v. Browner. et p1 . (D. Mass)
Issues: Whether EPA and the Corps fully complied with the ESA,
the National Environmental Policy Act (NEPA), and the Marine
Mammal Protection Act in connection with EPA funding of the
Boston Harbor sewage treatment plant, the Army Corps of
Engineers’ permitting of construction for an ocean outfall pipe
from the plant, and EPA consideration of an NPDES permit
application for the outfall pipe.
Status: Plaintiffs’ motions for preliminary injunction pending.
2. Mudd. et al. v. Reilly (N.D. Ala.)
Issues: Whether EPA complied with the ESA in approving state
water quality standards, reviewing state NPDES permits, awarding
state program grants, and approving NPDES general permitting
authority in Alabama’s water quality program.
Status: Case settled through EPA agreement to consult with FWS
on Alabama’s existing water quality standards. EPA’S
supplemental motion to dismiss the State of Alabama pending.
3. Proffitt v. Lujan. et p1 . (W.D. Ky.)
Issues: Whether EPA fully complied with the ESA and NEPA in its
supplemental environmental impact statement (SEIS) for a proposed
sewer project not funded by EPA.
Status: Motion to disaiss pending.
4. Wilson v. Formosa Plastics et p1 . (S.D. Tex.)
Issues: Whether EPA complied with the ESA and NEPA during its
consideration of an application for a new source NPDES permit.
Status: Motions to dismiss and for summary judgment pending.
5. Pyramid Lake Paiute Tribe v. EPA (0. Nev.)
Issues: Whether EPA fully complied with the ESA and NEPA prior
to award of a Clean Water Act (CWA) wastewater treatment
construction grant.
Status: Summary judgment motions pending.
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CITIZEN SUIT NOTICU:
1. Notice of Suit Re: EPA NPDES Permit Re-issuance to the City
of San Marcos Sewaae Treatment Plant (Joe Gaddy, Jeff
Stefancff, and Joseph Ptak (three separate notices), 11/92).
Issues: Whether EPA complied with the ESA and CWA in re-issuing
an NPDES permit to the City of San Marcos, Texas.
2. Notice of Suit Re: EPA A oroval of Arizona Water Quality
Standards (Arizona Center for Law in the Public Interest,
8/92).
Issues: Whether EPA complied with the ESA and CWA in approving
Arizona’s water quality standards.
3. Notice of SuitRe: EPA’s Failure to Veto a ç 404(c ) CWA
Permit (Hickory Hills Land Company, 7/92).
Issue: Whether EPA complied with the ESA in failing to veto a
permit under § 404(c) of the CWA.
4. Notice of Suit Re: Florida Solid Waste Incinerator Permit
(Save the Florida Panther, 7/92).
Issues: Whether EPA complied with the ESA prior to allegedly
approving a proposed state issuance of a solid waste incinerator
permit, whether EPA’S alleged approval was consistent with the
Migratory Bird Treaty Act, and whether EPA complied with the ESA
in considering issuance of a proposed rule under the Clean Air
Act establishing mercury emission standards.
5. Notice of Suit Re: Bonneville Power Administration (BPA)
Operations (Northwest Irrigation Utilities, 6/92).
Issues: The notice focuses on the National Marine Fisheries
Service’s (NI4FS) compliance with the ESA. EPA appears to be
included because the impacts of NPDES-permitted discharges were
not considered in a N14FS biological opinion on BPA operations.
6. Notice of Suit Re: Operations of the Trinity/Shasta Divisions
of the Central Valley Prolect (Sacramento River Council, g
12/91).
Issues: The notice focuses on the Bureau of Reclamation’s
compliance with the ESA. EPA appears to be included because of
allegations involving state water quality standards.
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ATI’ACHXENT THREE
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Offic. of Water
Overview
To date, the Office of Water and Regional Water Divisions have
engaged in limited formal consultation under Section 7 of the ESA
and more often in informal consultations. In addition, the
geographically targeted programs all include habitat protection
components which can be crucial to the survival of listed
species, of which 85% depend on wetlands or aquatic habitats.
Office of Water exDerience to date with the ESA
o Water Quality Criteria Standards and the NPDES Program. A
task force composed of regional and HQ staff from EPA
(Office of Water), the Fish and Wildlife Service, and the
National Marine Fisheries Service met the week of April 26
to revise the current MOU on water quality standards
development. The new agreement will also address procedures
for actions by EPA and the Services for 1) EPA approval of
state NPDES programs, 2) issuance of NPDES permits by
authorized states, and 3) EPA issuance of NPDES permits.
o Region 1 is in formal consultation with NNFS on the proposed
Boston Harbor Treatment Plan Outfall and is preparing a
biological assessment about the potential effect of the
proposed outfall on seven listed species, including the
humpback and right whales.
o Total Daily Maximum Load (TMDL)
- Headquarters Activities: Section 303(d) of the CWA
requires States to identify waters that are water
quality—limited; prioritize these waters; and target
high priority waters for TMDL development within the
next two years. The development and implementation of
TMDLS can potentially involve ESA consultations with
the U.S. Fish and Wildlife Service when endangered or
threatened species are present in a targeted water and
may be affected by the controls implemented based upon
the TMDL.
- Regional Example: Region 10 issued a dioxin TMDL on
the Columbia River. Following issuance, in response to
legal challenge, Region 10 initiated formal
consultation. FWS may find that the current dioxin
TMDL is not protective enough of Bald Eagles.
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Potential for EPA oroarams toorotect endangered soecies
o EcosyIte Programs: The watershed protection approach and
the geographic initiative. such as the National Estuary
Program and the Great Waterbody programs provide an
ecosystem approach to the environmental problems of an area.
In addition, many Federal agencies and State agencies with
various responsibilities and capabilities are involved in
these programs. Accordingly, these programs may be able to
address any of the diverse stressors which could jeopardize
an endangered species, whether it be a specific pollutant or
habitat loss or degradation.
o Ground Water: Ground water discharge to streams provides,
on the average, 40% of streamf low nationwide. In humid
regions, such as the East coast, it can provide as much as
80-90%. Many surface water ecosystems, including rivers,
wetlands, and estuaries are dependent on the quantity and
quality of ground water discharge to maintain their
integrity. GWPD is developing a strategic plan to protect
ground water for ecological benefits. One benefit that will
be addressed is the role of ground water discharge in
maintaining habitats of endangered species.
o Section 404(b) Guidelines (at 40 CFR 230.10) specifically
state that no Section 404 permit will be issued for an
activity that jeopardizes a threatened or endangered species
or that adversely modifies critical habitat under the ESA.
o Nonpoint Source Programs: As States implement their-section
319 and CZARA NPS programs, the management measures and
watershed restoration activities will protect and enhance
riparian zones and wetlands, thereby increasing and
maintaining habitat for all species.
C
o Monitoring: EPA and other Federal and State efforts on
increasing use of biomonitoring and environmental indicators
(including recommendations of Interagency Task Force on
Monitoring) have the potential to improve information about
TIE species and the health of their habitats.
Budgetary and resource imolications of formal consultations
o Consultation is resource intensive for EPA. Regional
estimates indicate that one formal consultation in water
involves —on the average — .25 FTE/year — 1.5 FTE/year and
$20K - $30K have been spent for biological assessments,
although it should be noted that they would not be required
by the ESA for virtually all EPA actions.
o The Office of Water must reduce its total number of FTEs by
90 in FY94; meanwhile, FWS will get a 60% increase in its
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Endangered Species Program. The reality is that neither the
Services nor EPA can consult on every action so we must find
ways to address the causes of listings before species have
to be listed and to protect those plants and animals already
listed in the most efficient ways.
Issues
o Consultation Trigger: A concern for the program offices is
the determination of what the trigger is for requiring
endangered species act consultation. If a broad definition
of direct and indirect impacts is used as the trigger, then
an argument could be made that virtually any Federal action
would require consultation, including the majority of grants
issued by EPA to a State.
o Limits of Scientific Knowledge: Not all of the habitat and
food requirements of the endangered species are known.
Information about chemical pathways and cumulative impacts -
are also often insufficient. This leads to a situation
where a conclusive biological opinion cannot be given with
out more studies and data. While the ESA does not require
the Agency to collect data, the EPA would be willing to do
so where appropriate but cannot in all cases because of
resources and other considerations.
o Difference in Scientific Methods: EPA concludes the
likelihood of effects from extrapolation from laboratory
tests and modeling. These conclusions are verified in the
field. FWS relies on site specific research. FWS is unsure
about the site specific value of EPA scientific data. On
the other hand, the FWS has in some cases, indicated that it
would accept field data that EPA would consider anecdotal.
o Autonomy of FWS Regional Offices: The FWS Regional Offices
are even more independent of their Washington headquarters
than are EPA’S Regional Offices. The result is that
separate accommodations on consultation are made with each
FWS Region and that the success of the consultation process
relies more heavily on personalities and personal
expectations of the individuals involved than is usual in
such processes.
o Indirect Impacts: The FWS is concerned that actions taken
by EPA’S issuance of a Section 402 permit allows
construction or development that will threaten an endangered
species and that EPA should therefore consider these
secondary effects, the so-called “upland effects” in
consultation. Because the Section 402 program has
traditionally focused on the effects of the discharge
itself, including an evaluation of upland effects would
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significantly expand the scope of the program and it is not
certain whether that authority exists in the CWA.
o Reverse Impacts: Since all of the Office of Water’s
Programs actions are intended to improve the environment,
significant delays attendant to consultation may have the
unintended effect of increasing the risks to the T/E species
and habitats because of a delay in reduction of pollution
stresses. This situation should not be considered an excuse
for avoiding consultation, but a reason to ensure that the
process is expeditious and conclusive.
o Differences between EPA and the Services Deadlines:
Currently, EPA deadlines for issuing permits, approving
state programs, etc., do not take into consideration the
consultation process. Problems may develop where
consultation extends beyond statutory or regulatory
deadlines.
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Off ic. of ergency and Remedial Response
Since 1982, the Superfund Program has evaluated the effect
of potential Superfund sites on listed species and their
habitats. In the earliest stages of the site assessment process,
the impact on listed species is factored into the investigation
of a site. Ecological risks (including risks posed by the site
to listed species or their habitats) can be sufficient for a site
to qualify for inclusion on the National Priorities List.
Further steps are taken once a site is identified as a
National Priorities List site. The National Contingency Plan
(NCP) (the blueprint for the Superfund Program) addresses listed
species, or ecosystem protection more generally, in a number of
ways:
o The NCP delineates the duties of Natural Resource
Trustees (generally DOt or NOAA), and identifies stages
of Superfund responses at which notifying or consulting
with Trustees is required.
o Remedies selected under Superfund are required to be
protective of human health and the environment.
Ecological threats are therefore considered in cleaning
up Superfund sites.
o When EPA scopes the extent of damage caused by a
hazardous waste release and selects potential cleanup
alternatives, the NCP requires that “environmental
evaluations shall be performed to assess threats to the
environment, especially sensitive habitats and critical
habitats of species protected under the ESA.”
o Whether listed species are present is studied during
the RI/FS in order to determine whether the ESA is
potentially an applicable or relevant and appropriate
requirement.
o If listed species are present, EPA complies with
the substantive requirements of ESA in selecting
and performing any response action. Program
guidance directs the staff to follow the
consultation process, commencing it early enough
to avoid d.laying response actions.
OSWER has included in the CERCLA Compliance with Other Laws
Manual: Part II a section which explains the procedures staff
must follow to comply with the ESA at all Superfund sites. To
further assist parties when conducting response actions at
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Superfund sites, OSWER has developed a fact sheet highlighting
how the ESA impacts CERCLA response actions.
The Agency has identified a number of Superfund sites where
endangered species reside in the study area and are likely to be
impacted. In addition, OSWER continues to foster better
communication and cooperation with other Federal agencies,
especially in the area of natural resource damages. EPA and the
Fish and Wildlife Service have entered into a Memorandum of
Understanding (MOU) which establishes how EPA’s and EWS’s
responsibilities towards protecting endangered species are to be
met. In addition, most Regions have already initiated these
procedures through Biological Technical Assistance Groups (BTAG).
The BTAG membership usually includes biologists from NOAA, DOl
and state agencies. The BTAGB provide assistance to Remedial
Project Managers on a variety of site specific environmental
issues, including endangered species.
Budaetarv and resource implications of ESA consultation
It is difficult to estimate the budget impact of the ESA
consultation requirements. The ESA requirements are included as
one of many regulations and requirements Superfund evaluates
during the Remedial Investigation/Feasibility Study phase of the
cleanup.
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Office of Solid Waste
RCRA regulations at 40 CFR section 270.3 provide that when
the ESA is applicable to the issuance of a RCRA permit (e.g.,
when an endangered or threatened species is affected or
potentially affected), the Agency must follow ESA procedures.
Section 270.3 (C) requires that EPA Regional Administrators
ensure, in consultation with the Secretary of the Interior or
Commerce, that any action authorized by EPA is not likely to
jeopardize the continued existence of any endangered or
threatened species or adversely affect its critical habitat. In
addition, if the ESA requires consideration of the adoption of
particular permit conditions or requires the denial of a permit,
the Agency must also follow these requirements.
All RCRA permits are issued by EPA Regional Administrators
except in States authorized to do so in lieu of EPA. In the
course of EPA Regional permitting activities, Regional staff
inform the Fish and Wildlife Service as well as other appropriate
authorities of the proposed location of the RCRA facility. There
is no formal RCRA guidance on the ESA and procedures vary across
Regions, but most Regions follow the general guidance on ESA for
the Superfund program, which is outlined in the CERCLA Compliance
with Other Laws document. If any impact on the habitat of a
particular endangered or threatened species is suspected, the
Region may require that the owner/operator of the facility
conduct a site survey and perform sampling analysis. These
procedures would apply to all EPA RCRA permitting actions
including permit provisions for corrective action.
The ESA may also affect cleanups ordered under EPA’s RCRA
enforcement authorities (e.g., RCRA Sections 3008 and 7003).
Cleanup orders require facility owners/operators to identify on-
site or nearby ecological receptors, including endangered or
threatened species. If any endangered or threatened species or
their habitats may be affected by the cleanup, then the plan for
the cleanup will take that into account.
The RCRA regulations do not require States to include
provisions that are equivalent to 40 CFR Section 270.3 in their
authorized State programs (see 40 CFR Section 271.14). To
address this issue, some Regions are working to incorporate such
responsibilities into Memoranda of Agreement with their States
(see 40 CFR Section 271.8). It should also be noted that many
States have statutes comparable to the ESA.
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Budgetary and resource implications of ESA consultation
It is difficult to estimate the budget impact of the ESA
consultation requirements. Consideration of the ESA requirements
is part of a larger evaluation of the requirements of federal
laws, as well as the requirements of the RCRA regulations
themselves, during the RCRA permitting and corrective action
processes.
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Office of Enforcement
The enforcement program provides an excellent vehicle for
increasing the Agency’s protection of endangered species and
critical habitats. Over time, environmental and ecosystem
considerations increasingly can be incorporated into the
regulatory development process; however, the enforcement of
existing statutes and regulations offers an immediate opportunity
to enhance the level of protection afforded to environmental
resources.
In the process of developing and resolving facility non-
compliance with regulations controlling atr, surface water,
ground water, land pollution, and pesticide and toxic substance
use, the Agency is frequently in a position to assess whether
endangered species or critical habitats have been adversely
impacted and, if so, whether additional protection may be
afforded through injunctive relief and/or supplemental projects
(SEPs) .
The Agency’s media specific and multimedia base enforcement
programs offer unique opportunities to enhance endangered species
and critical habitat protection. For example, it may be
appropriate to explore specific opportunities to focus the
enforcement program on endangered species and critical habitats
by: (1) instructing the regions to explicitly consider these
issues during the screening of potential enforcement actions, and
later during the development of enforcement litigation reports;
(2) amending the guidance on SEPs to include specific endangered
species and critical habitat projects which meet the nexus
requirement of the policy; (3) ensuring that endangered species
and critical habitat considerations are contained in yearly
program enforcement priority communications and documents; and,
(4) integrating endangered species and critical habitat data into
OE’s integrated compliance data system, IDEA. In addition,
multimedia, cross-program enforcement approaches could provide
additional strategic opportunities to target enforcement
resources on a geographic basis to address the problems of
species endangerment and critical habitat loss. The following
are examples of potential areas in which each enforcement program
can enhance the protection of endangered species and critical
habitats.
SEPs allow defendants to mitigate penalty liability in
exchange for environmentally beneficial actions beyond what is
necessary to comply with the law.
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Clean Water Act (CWA) Enforcement
Wetlands enforcement cases under the CWA may involve
endangered species and critical habitat problems since wetlands
provide rich habitats for wildlife, including migratory birds,
and vegetation. Endangered species impacts may also be
encountered in certain major oil spills. Although water
enforcement cases generally involve individual dischargers or
small classes of dischargers which are rarely associated with the
general environmental problems contributing to species extinction
( e.g . pesticide applications), the cumulative impact of numerous
individual dischargers can result in adverse ecosystem impacts,
such as wetlands destruction or depleted waterbodies. Geographic
CWA enforcement activities have the potential to respond to the
cumulative impacts that may adversely affect critical habitats.
Toxic Substances Control Act (TSCM & Federal Insecticide.
Fungicide and Rodenticide Act (FIFRM Enforcement
OE’s Toxics Litigation Division and the Environmental Crimes
Unit at the Department of Justice have brought criminal
enforcement actions against individuals who, in their efforts to
control predators using poison baits, have killed non-target
species, including falcons and American Bald Eagles. Misuse of
pesticides can also result in the death of other animal and plant
species, resulting in violations of FIFRA, the ESA, and the
Federal Migratory Bird Treaty Act.
Resource Conservation and Recovery Act (RCRA) Enforcement
Hazardous waste treatment, storage, and disposal facilities
located in critical habitat areas are potential targets of RCRA
enforcement. Pursuant to RCRA S 7003 the Administrator is also
authorized to enjoin activity that may create an imminent and
substantial threat to health or the environment , and take “such
other action as may be necessary.” EPA recently filed a S 7003
enforcement action based, in part, on an imminent and substantial
endangerment to endangered species. The action involving the
Powder River Crudes .it. alleges that, among other things, the
oil reprocessing area in question poses a danger to several types
of migratory birds, including endangered peregrine falcons and
bald eagles.
CERCLA Enforcement
OE’s significant role in obtaining commitments from
potentially responsible parties to implement the selected
remedies, through enforcement orders or settlements, provides an
opportunity to enhance the assessment of endangered species
impacts.
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Clean Air Act (CAM Enforcement
The vigorous enforcement of several CAA provisions has the
potential to enhance the protection of endangered species and
critical habitats. Particulate matter and ozone impacts on
National Parks can be addressed under the Prevention of
Significant Deterioration (PSD) provisions of the CAlL. Acid rain
impacts on freshwater lakes and forest habitat should be reduced
by the provisions of Title IV of the 1990 Amendments to the CAA
which will result in substantial reductions in sulfur dioxide
emissions from coal burning power plants. The weakening of
forests and their habitats caused by extreme and severe ozone
pollution should also be diminished with the implementation and
enforcement of new provisions to control volatile organic
compounds from both mobile and stationary sources.
Multimedia Enforcement Strategies
In addition to individual media—specific enforcement
efforts, the protection of endangered species and critical
habitats can be enhanced by cross-program enforcement approaches:
Multimedia enforcement strategies are designed to coordinate the
Agency’s multiple enforcement authorities in a unified fashion to
address environmental problems too broad or complex to be handled
by any single program. By targeting enforcement activity at
facilities threatening critical habitats, either individually or
cumulatively, the Agency could potentially fashion injunctive
relief and supplemental environmental projects that will improve
the protection of endangered species living in close proximity.
Implementation of this type of multimedia enforcement
strategy would, in general terms, require: (1) the identification
of critical habitat areas nationwide using existing priority
lists ( e.g . Office Pesticides Program’s county-based endangered
species list, Nature Conservancy Last Great Places list); (2) the
determination of industrial sources in close proximity to
critical areas; (3) the identification of significant
noncompliers; and (4) the development of model pollution
prevention, pollutant remediation, and risk—reduction projects
( e.a . wetland restoration, contaminated sediment remediation,
critical habitat set-asides) which can be implemented through the
enforcement process.
The benefits of a multimedia enforcement approach were
recently demonstrated by the innovative sediment remediation
provisions obtained in the Agency’s settlement of a multimedia
enforcement action, U.S. v. Inland Steel Company , announced on
March 9, 1993. Under the terms of the settlement with Inland
Steel, contaminated sediments surrounding the facility will be
cleaned-up, significantly improving the habitat quality of
several species of fish and wildlife.
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Off ic. of ir and Radiation
Past Positions on the Endanaered Species Act
In implementing the Clean Air Act (CAA), EPA has not taken a
legal position on its potential substantive or procedural legal
obligations under the Endangered Species Act (ESA).
EPA has not taken a position on what aspects of CAA
implementation trigger the obligation under the ESA to consult or
confer with the Secretary of Interior regarding impacts on
endangered or threatened species. Hence, the Office of Air and
Radiation does not currently consult with the Secretary regarding
particular aspects of CAA implementation, and no policy to do so
currently exists.
Potential for Endangered Species Act Activities Within OAR
Many CAA provisions authorize EPA to consider welfare and
environmental impacts of air pollution, which is defined or may
be interpreted to include impacts on endangered or threatened
species or their habitats.
The CAA defines effects on welfare to specifically include,
among other things, effects on animals, wildlife, and vegetation.
Examples of these provisions include the following:
1. National secondary ambient air quality standards
for criteria pollutants are to protect the public
welfare from any known or anticipated adverse
effects. Similarly, the purposes of the program
to prevent significant deterioration in air
quality specifically include the protection of
public welfare from any actual or potential
adverse effects due to air pollution,
notwithstanding attainment and maintenance of all
national ambient air quality standards.
2. The Adainistrator is authorized to list hazardous
air pollutants that cause “adverse environmental
effects”, which are specifically defined to
include “any significant and widespread adverse
effect, which may reasonably be anticipated, to
wildlife, aquatic life, or other natural
resources, including adverse impacts on
populations of endangered or threatened species.
.“ Emissions standards for hazardous air
pollutants are to require the maximum achievable
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reduction in emissions, taking into account
various factors, including environmental impacts.
3. EPA is obligated under the CAA to conduct a
- research and development program, in cooperation
with the Fish and Wildlife Service and others, to
evaluate the short- and long-term causes, effects,
and trends of ecosystem damage due to air
pollution. Key program elements include
evaluating the effects of air pollution on
biological diversity and other terrestrial and
aquatic systems.
4. EPA has discretion to consider ecological impacts
in many additional provisions relating to mobile
sources, acid deposition control, stratospheric
ozone protection, and renewable energy and energy
conservation incentives.
Budgetary and Resource Implications
The Office of Air and Radiation intends to establish a task
force to identify the most effective mechanisms for considering
impacts of EPA actions taken pursuant to its air programs on
species. The task force will also evaluate potential budgetary
and resource implications of EPA consultation with the Fish and
Wildlife Service or National Marine Fisheries Service regarding
the impact of air programs on endangered species. The task force
would evaluate the most efficient mechanism to consider the
impacts of air programs on species. We are concerned that the
costs of case-by—case review of the thousands of permitting
decisions we issue each year could be prohibitive. Our goal is,
wherever possible, to incorporate species/habitat concerns into
the development of programs and standards, rather than into
individual permitting decisions. OAR is concerned that
consultation be reasonably contained so that the costs associated
with it will not become prohibitive.
Malor Endanaered SDecies Act Reauthorization Issues
Careful consideration should be given the extent to which
EPA believes it appropriate for it, in pursuing its mission to
protect the environment under the authority of various specific
statutes, to be subject to separate legally enforceable
substantive and procedural obligations under the ESA. ESA legal
obligations may raise issues regarding Agency flexibility and
priorities, budgetary and resource constraints, and regulatory
delay. EPA should address endangered species issues by actively
exercising its existing authority to consider ecological impacts
in implementing its environmental programs and by enhancing
consultative mechanisms between federal agencies.
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Off ic. of Research and Development
In general, all of ORD’s habitat and ecosystem-related
activities directly or indirectly benefit endangered and
threatened species. The Environmental Monitoring and Assessment
Program (EMAP) is developing indicators to detect changes in
ecosystem condition over time. The Eabitat/Biodiversity Research
Program plans to develop a landscape-scale framework to compare
and prioritize relative risks to habitats. The Global Change
Research Program is investigating potential habitat changes due
to ozone depletion and the increase in atmospheric levels of
carbon dioxide and other trace gases from human activities. The
Ecological Risk Assessment Research Program and the Risk
Assessment Forum provide hazard and exposure assessment tools,
and Agency guidelines (respectively) for characterizing
ecological risks. The Wetlands Research Program is involved in
wetland restoration and in developing landscape—scale assessment
methods which can enhance the conservation of endangered species.
ORD also is an active Federal partner in the Neotropical
Migratory Bird Program (Partners in Flight”), and is
coordinating the biodiversity component of the Agency’s follow-up
to the United Nation’s Commission on Environment and Development
(tTNCED).
The following sections describe potential areas of R&D
support for programs engaged in ESA activities, major research
issues for the agency, and specific ORD activities relating to
endangered and threatened species. ORD’s specific projects are
grouped under the following categories: protecting ecosystems and
biological diversity, assessing contaminant risks to endangered
and threatened species, the impacts of exotic (introduced, non-
native) species on endangered and threatened species, and the
development of aquatic life and wildlife criteria.
Potential areas of R&D subDort for roarams enaaaed in Endanaered
SDecies Act (ESA) activities
ORD scientist. ar. rarely asked for scientific advice during
Section 7 consultations, or asked to provide information on
endangered specie.. These are two areas where R&D support could
potentially be expanded, however, the budgetary and resource
implications of providing such support have not been discussed.
ORD also could feasibly provide scientific and technical
assistance to the U.S. Fish and Wildlife Service (FWS) in
maintaining critical habitats, particularly those impacted by
pollution (e.g., provide advice on wetland restoration methods,
and pollution prevention engineering technologies).
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The range of potential support that ORD scientists could
provide in protecting endangered species is exemplified by Romona
Haebler, a marine mammal veterinarian at the Narragansett
Laboratory. Dr. Haebler is working with Region I on a Section 7
consultation on the potential adverse impacts of a proposed
sewage outfall on Right Whales and other endangered marine
species (Congressman Studda convened and chaired the initial
meeting in Provincetown, MA). Her other activities include:
working with representatives from Region I and the National
Marine Fisheries Service (NI4FS) to determine how EPA can best
participate in implementing Recovery Plans for the Humpback and
Right Whales, serving on a consultative group to the FWS and NFWS
which prepares Contingency Plans in response to unusual marine
mammal or endangered species mortalities, and providing technical
advice on a national archive of tissues from endangered and other
marine mammal species available for chemical residue analysis.
Dr. Haebler also responds to ro ram office requests , for
example, an Office of Water request stemming from a newly signed
agreement among EPA, the FWS, and the NMFS. The request asked
for the identification of endangered and threatened marine
species, a summary of water quality related problems that these
species face, and a summary of the Narragansett Laboratory
studies related to the impacts of water quality on these species.
Maior Research Issues for the Aaency -
Reauthorization of the ESA will likely involve a more
“ecosystem” or “habitat” approach to protecting endangered and
threatened species. If so, much of ORD’s environmental research
and monitoring efforts will be vital to implementing such a
revised approach. However, the emergence of the Department of
the Interior’s proposed ‘National Biological Survey” raises
questions about EPA’S ecological research role within the Federal
community and how EPA should specifically coordinate its similar
research efforts. The Interior’s proposal is a terrific idea;
its utility for environmental management, policy formation, and
research direction and focus cannot be overstated. Over the last
9 years, substantial advances have been made in developing the
ecological survey design used in EPA’S Environmental Monitoring
and Assessment Program (EMAP). Much of this progress is a result
of cooperative partnerships with other Federal agencies
(including several within the Department of Interior). Along
with changes starting in EPA’S ecological research program, we
think we can complement the Interior’s proposal nicely. The
Administrator should pursue discussions with Secretary Babbitt to
assure that their work and ours is fully integrated so that it
best serves both our needs for sound environmental policy and
regulation.
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Specific ORD Projects Relating to Endanaered and Threatened
Species
Protecting Ecosystems and Biological Diversity
The Endangered Species Act (ESA) was established to protect
the biological resources of the United States, particularly those
that are currently on the brink of being lost forever. The Act
provides the legislative support needed for the actual protection
of these plants and animals. An element which is lacking,
however, is a mechanism for tracking whether the actions we put
into place are resulting in the effects we planned and/or whether
additional organisms are becoming rare, threatened or endangered.
The Environmental Monitoring and Assessment Program (EMAP )
EMAP is an interagency program designed to describe the
status and trends in the condition of our Nation’s ecological
resources. The Fish and Wildlife Service, National Park Service,
Bureau of Land Management, Forest Service, National Oceanic and
Atmospheric Administration, and many others are active partners
in this program. EMAP is a recurring survey of ecological
resources based on an established, peer reviewed statistical
design. This survey design will allow EPA and collaborating
Agencies to objectively determine the condition of ecological
resources with known confidence.
EMAP activities on surface waters have operated for just two
years, sampling lakes in the northeastern U.S. and streams in
Oregon. In this brief time, this new, systematic approach to
environmental assessment has demonstrated great promise,
especially from the perspective of providing knowledge regarding
endangered species. For example, EZ4AP has identified one new
population of an endangered species of fish in Oregon, documented
an extended range for two specie. of lake fish in the northeast
and identified two new taxa of zooplankton. The focus on
biological components of our natural resources will allow EMAP
to provide needed information on biodiversity and native species.
Habitat/Biodiversitv Research Proaram
The Habitat/Biodiversity Research Program will develop a new
risk-based framework to identify and target the protection of
habitats where plant and animal communities contribute the
greatest genetic diversity to their broader biogeographic
regions. The framework will enable EPA and other governmental
and non-governmental agencies to identify and collaboratively
manage those areas to sustain biodiversity. The framework will
be implemented in two stages. First, priorities for management
action will be identified by comparatively assessing risks across
broad geographic regions. This step will permit cost-effective
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targeting of where more intensive diagnostic and remediation
efforts may be needed and allow accurate evaluation of the many
species which have extensive geographic distributions. Secondly,
specific remedial action plans will be developed and implemented
at a finer spatial scale (i.e., ecological subregions within a
state). Attention will be directed to ameliorating the adverse
effects of habitat fragmentation, reducing other forms of
anthropogenic stress, restoring habitat, and evaluating the land
management tradeoffs required to sustain biodiversity.
EPA cannot address the loss of biological diversity alone.
Effective partnerships need to be formed with other land
management agencies and non-government organizations. In
recognition of this, EPA has formed a biodiversity research
consortium to develop the technical information and data bases
needed to assess and manage risks to biodiversity. Initially,
membership in the consortium includes the Fish and Wildlife
Service, Forest Service, U.S. Geological Survey, and the Nature
Conservancy. Additional organizations will be added, such as the
“Partners in Flight” program which has been created for the
conservation of neotropical migratory bird populations. (Robert
Lackey, Corvallis Laboratory)
Regionally Applied Research Efforts (RARE) Proaram
The RARE program supports regions, states, and localities by
setting up applied, cooperative projects involving the protection
of sensitive habitats and biodiversity. These efforts include:
helping states develop biological criteria to protect aquatic
diversity, creating inventories of and identifying threats to
localized important ecological areas, examining anthropogenic
stressors on marine mammals and other threatened species,
enhancing regional capabilities in habitat assessment techniques,
exploring restoration strategies for sensitive arctic habitats,
and developing control methodologies for exotic species. (Ron
Landy, Office of Science, Planning and Regulatory Evaluation).
Assessing Contaminant Risks to Endanaered and Threatened
Species
Marine Mammals
The ‘Sentinel Species: Marine Mammals and Endangered Species
Programw at the Narragansett Laboratory provides emergency
technical assistance to Regions and States during unusual events
of morbidity and mortality of marine mammals and endangered
species in the marine environment. The research program, now
over five years old, focuses on: (1) understanding the effects
that environmental contaminants may have on the health of marine
mammals and endangered species, (2) developing and implementing
methods to monitor contaminant levels in these species and
quantifying risks, and (3) identifying selected species of marine
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mammals and endangered species- that can serve as indicators of
environmental quality and early warning signals of ecological
risk. Specific project. include pathotoxicology research on sea
otters associated with the Exxon Valdez oil spill, the
development of methods to monitor contaminant residue levels in
biopsy samples of free ranging Humpback and Fin Whales, and a
retrospective study of contaminant levels in stranded Kemps
Ridley turtles to evaluate their use as sentinel species.
(Romona Haebler, Narragansett Laboratory)
Fish
Methods are not presently available for adequately assessing
the risks posed by environmental contaminants to endangered fish
species. At present, toxicological information obtained from
studies with standard test organisms (rainbow trout, flathead
minnow, and sheepshead minnow) is assumed to be applicable to
endangered fish species. However, research is needed to test
this assumption. -An initial project in a planned series is to
validate the above assumption using acute toxicity data for
fishes. The objective is to establish correlations for
extrapolating acute toxicity among surrogate and endangered
fishes and improve comparative toxicity approaches. This project
will be completed shortly. Next steps requiring additional
funding include: (1) testing the above assumption using chronic
toxicity data for fish, (2) developing a genetic basis for
sensitivity and/or resistance to anthropogenic pollutants, and
(3) expanding the research to include all aquatic organisms, and
developing non—consumptive techniques (sampling without loss of
life) to monitor health of endangered species in the field. Our
desire is to involve other agencies such as BLM, NPS, USDA and
others to provide a more encompassing effort. (Foster Mayer,
Gulf Breeze Laboratory)
Terrestrial Snails
EPA’S regulatory decisions on pesticide use in areas
inhabited by endangered species have to be made in consultation
with the U. S. Fish and Wildlife Service. However, there is a
paucity of pesticide toxicity data on many taxonomic groups for
making such decision.. Nina species of terrestrial or arboreal
snails listed as threatened or endangered are potentially at risk
from forest pesticide uses. Corvallis scientists conducted
toxicity teat . on twelve forest-use pesticides on the brown
garden snail ( Helix a surrogate for the endangered and
threatened species. After screening tests found that five of the
pesticides were virtually non-toxic to snail., more intensive
tests were conducted on the other seven. Concentrations of
pesticide in food that reduced snail survival, growth and
activity were determined. The insecticides azinphos—methyl and
aminocarb were found to be most toxic to the snails. This
comparative toxicity data has been developed for the Endangered
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Species Program of the Office of Pesticide Programs. A
peer-reviewed journal article has been completed and submitted
for publication. (Rick Bennett, Corvallis Laboratory)
Coral Reef 8
Some coral species, especially those found in the
Philippines, are disappearing at an alarming rate as a result of
anthropogenic pressures such as mass collections and pollution
stress. Some of these coral species have already been placed on
the International Union for the Conservation of Nature (IUCN)
list of international endangered species. Coral reefs located in
U.S. Territories, the Florida Keys, Hawaii, and Texas are
showing increased incidence of disease, necroses, and mass
mortalities resulting in decreased abundances and diversity.
A research scientist at the Gulf Breeze Laboratory is
studying disease processes of reef corals in the Florida Keys
National Marine Sanctuary and the Texas Flower Gardens National
Marine Sanctuary. Disease mechanisms are investigated at the
cellular and microbiological levels to understand the causative
agents and the factors which contribute to their increased
incidence in these areas. Preliminary data suggest that coastal
development of the Florida Keys is exposing the reefs to
increased anthropogenic—induced stresses which invoke greater
sensitivities of the corals to natural diseases and new
physiological disorders not previously described. If the trend
of coral decline continues in these areas, coral species in the
United States may be placed on the endangered species list.
(Debbie Santavy, Gulf Breeze Laboratory)
Amphibians
ORD conducts research on the causes of amphibian declines.
The Director of the IUCN’s Declining Amphibians Project is
located at the Corvallis Laboratory. (Jim Vial, Corvallis
Laboratory)
Effects of Exotic Soecies on Endanaered Species
The Duluth Laboratory is conducting research on the
potential impact of zebra mussels on the native mussel community
in the St. Croix River (Wisconsin). Some of the mussels are
listed as endangered species. Surrogate species in evaluating
water quality criteria are being used to determine if endangered
species are protected. Results of this research will determine
whether the invasion of exotic species, which have little
competition, place additional stress on endangered or threatened
species. (Steven Hedtke, Duluth Laboratory)
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Aquatic Life and Wildlife Criteria
One of the major areas of R&D support in the protection of
endangered and threatened species is through the development of
aquatic life and wildlife criteria. Some major questions include
the following:
• Do current aquatic life criteria (i.e., AWQC) and
proposed wildlife criteria protect endangered and
threatened species?
• Are endangered and threatened species more
sensitive to toxics than other species?
• Do they suffer more from physical or biological
stressors on habitat?
There is a possibility that further interpretation of the methods
used to develop aquatic life and wildlife criteria will be
necessary to incorporate endangered species concerns. Currently
there are no R&D resources for such a re—interpretation for
developing aquatic life criteria. (Steven Hedtke, Duluth
Laboratory)
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Of tic. of Pesticide Programs, OPPTS
Past OPP position on threatened & endanaered species
OPP has been evaluating the effects of pesticides on
threatened and endangered (T&E) species for 15 years. OPP
started in the 1970s, made a surge in the SOS, had to regroup
because of Congressional action, and is now moving forward again.
In 1985 OPP began implementation of a formal program by
requiring pesticide registrants to label their products with a
T&E species precautionary statement which would refer pesticide
users to county-specific bulletins containing maps of T&E species
habitats, and tables prescribing use limitations for pesticides
of concern. Draft bulletins were prepared in 1987 and sent to
the Fish and Wildlife Service (FWS) for review when the
agricultural community became aware of the program. The
bulletins, intended for 1988 implementation, apparently surprised
and frightened the agricultural community and there was a
substantial negative reaction. In December 1987, Congress cut
off appropriations for OPP’s T&E species program. OPP withdrew
the program and proposed it for public comment in the Federal
Register in March 1988.
In October 1988, amendments to the ESA directed EPA to
conduct a study and provide an opportunity for public comment on
its implementation of any program that would protect T&E species
from pesticides while minimizing impacts to agriculture. A final
Federal Register Notice describing OPP’s final program could be
published in 1993 with the concurrence of FWS, USDA, and 0MB. An
interim program, which depends on voluntary compliance with
pesticide use limitations, is in effect until the final program
is issued. OPP has issued maps and bulletins addressing some
pesticide uses for species in 146 counties and has published 32
T&E species fact sheets as well as other educational information.
OPP uses a risk—based approach which focuses on the most
vulnerable endangered species first. Pesticides to which the
most vulnerable species may be exposed are evaluated first, but
risks of those pesticides are considered for all other listed
species at the same time. The more vulnerable species are also
the first focus for implementation of protective measures.
app also provides states the opportunity to develop their
own recommendations, based on localized situations, for EPA to
adopt in the state. These •gtate injtiated plans” are being
developed by about a dozen states, and range from a permit system
(e.g., North Dakota) to site-specific protection plans (e.g.,
Florida) to landowner agreements (e.g. Minnesota).
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Aside from its own program concerns, OPP recognized the need
for Agency-wide T&E specieB coordination. Thus, OPP submitted a
budget initiative in FY92 to establish a “Cross Media Endangered
Species Protection Program.” OPP felt that the EPA, as a world
leader in regulating management of chemicals affecting our
natural resources, has a critical responsibility to set an
example of assertive compliance with all legislation, including
the ESA.
The initiative proposed to establish a HQ Endangered Species
Office, probably in the Office of Federal Activities, that would
provide national level coordination and oversight of a species-
oriented field program. Field offices would provide critical
interface at the level of effect and cooperate with all affected
agencies and private concerns to protect T&E species from EPA
actions g consider the needs of people affected.
The proposal was favorably received but, apparently because
it requested new FTE5 and funds, it was not adopted at that time.
Potential for program if full coin 1iance with ESA
When the program becomes enforceable, and if resources are
available to catch up on consultation and implementation, the
program should have a very high potential to protect T&E species
from pesticide threats. With current resource levels it is
necessary to be less specific and more restrictive in prescribing
use limitations in order to ensure T&E species protection.
Overly restrictive use limitations can reduce the likelihood of
pesticide user compliance. Effective protection is more likely
when use limitations are clear, site—specific, and make logical
and inherent sense to the pesticide user.
Budget and resource implications
OPP currently obligates almost $3 million annually to T&E
species concerns nation-wide. Almost half goes to the states,
one fourth to contracts and expenses (e.g., preparation and
dissemination of County Maps and Bulletins), and one fourth to
salaries and benefits. There are 7 FTEs nation-wide (4 in HQ)
assigned to OPP’s endangered species program. Most of these are
oriented towards implementation. About 1.5 of the FTE5 at HQ are
committed to ESA Si consultation requirements.
There are hundreds of pesticides, thousands of crops or
other use patterns, and hundreds of T&E species. Because every
combination of species, pesticide, and its use requires
assessment, the task of assessment will be continuous and
burdensome for the foreseeable future. Under the current
scenario of 1.5 FrEe/year, it will take OPP about 20 years to
catch up on consultation responsibilities, (total effort of 30
FTEs is required). This includes OPP’s significant mandates in
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the upcoming final program to adequately address risk assessment
methodology, and to coordinate with those affected by
consultation actions.
In order to accelerate OPP’s catch up period to 5 years, on
ESA S7 responsibilities, for the pesticides and uses already
registered and ThE species already listed, OPP HQ needs 8 new
FTEs/year with adequate support and travel costs for field
observation of agricultural practices, exposure scenarios and
ecological effects. Four of the 8 FrEs are needed to conduct
risk assessments and consultations (both very labor intensive
efforts); 2 others to collect and evaluate baseline data on
species and pesticides, and later, facilitate recovery; and 2
more plus $500,000/year to implement the protective measures of
the program.
Although OPP cannot fully predict the number and kinds of
T&E species that will be listed in the future, nor pesticides
which will be registered, it is likely that after the 5 year
catch-up phase, OPP’S maintenance level to deal with new species,
new pesticides, and revisions would require permanent retention
of 3 of the 8 FTEs and $250,000/year. Because pesticide
registrations are done at the national level, the consultations
need to occur at HQ.
Proaram issues on ESA reauthorization
(a) No funding is provided to carry out the
responsibilities under section 7 of the ESA. Nor was funding
provided for EPA under Section 1010 of the 1988, ESA amendments
which specifically directed EPA to conduct a study of, and
provide an opportunity for public comment on its implementation
of any endangered species protection program. We believe that
massive and perpetual regulatory programs like those in EPA must
be addressed and considered in formulating and reauthorizing the
ESA. Thus, ESA reauthorization should delegate new funds to EPA
to continue implementation of its endangered Species Program in a
manner consistent with SlOb of the 1988 ESA amendments.
(b) All EPA program offices, as well as other agencies,
would substantially benefit from ESA-appropriated funds to
develop consultation requests. EPA, as a major regulatory agency
oversees, approves or permits literally thousands and thousands
of actions which potentially may affect ThE species. Because
they are often national in scope, many EPA actions do not fit the
mold used to cast the structure of the ESA, i.e . a localized
major construction project.
(c) T&E species could be better protected if the locations
of certain T&E species ( i.e. , those subject to collection or
vandalism) were exempted from disclosure under the Freedom of
Information Act.
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Off ice of Po11 atio Prevention and Toxics, OPPTB
Past OPPT consideration of endanaered sDecies
OPPT and FWS staff held a series of meetings in 1987 to
discuss procedures for coordinating efforts in asses5ing risks to
endangered species presented by chemical substances under TSCA
jurisdiction. As a result of those meetings, a draft letter of
understanding was written establishing consultation procedures to
be followed when OPPT suspected a significant endangered species
exposure to a TSCA chemical. Upon review, however, OPPT
management raised serious concerns over the potential resource
implications of the proposed procedures -— specifically, the
resources needed to identify chemical release locations and to
match those locations with critical habitat containing endangered
or threatened species. OPPT management was also particularly
concerned with the effect of the proposed procedures upon EPA’s
ability to comply with its statutory mandate to complete new
chemical reviews within 90 days. As a result of these concerns,
and because of uncertainty regarding the consultation
requirements of the Endangered Species Act as it applied to the
new chemical program, the proposed procedures were not
implemented.
In light of Administrator Reilly’s increased emphasis on
eco-risk management in 1991, OPPT staff reinitiated contact with
FWS, this time in the context OPPT’s reorganized risk-management
program for chemical substances. From those contacts it became
clear that new computer data bases that had recently come on line
would greatly enhance OPPT’s ability to quickly match chemical
release sites with critical habitat. Such data bases would
greatly reduce the resources required to determine when chemical
releases would be likely to expose members of an endangered
species population. Consequently, OPPT management established
workgroups to reevaluate methods of assessing endangered species
considerations in the new and the existing chemical risk
management programs. The new chemicals workgroup has designed
and are commencing a study to evaluate the usefulness of the new
data bases in conjunction with mpdjtications to OPPT’s screening
procedures to j e tjf f new chemical cases for closer scrutiny of
possible iinp(d ri on th .ate 4 or endangered species. OPPT is
also considering how to aod y the current review process for
existing chemicals to include en 1angered species considerations.
Current litthation
C
OPPT has been petitioned under S21 of TSCA to address lead
sinker mortality to wildlife and a suit has been filed
challenging EPA’s response. There are also recent reports of
lead sinker mortality to the endangered Mississippi sandhill
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crane. There are several areas where OPPT could be vulnerablo to
ESA litigation (i.e., dioxins in paper sludge, lead fishing
sinkers, and potentially other TSCA S6 actions).
Potential for orogram if full compliance with ESA
There is the possibility that OPPT may make regulatory
decisions on chemicals that might impact an endangered or
threatened species. Hence, in some cases, ESA consultations may
be appropriate, and would have the potential to protect
endangered species.
Budaet and resource implications
Conducting consultations with the FWS as part of its review
of individual new and existing chemicals would require about 1.5
FTE and $150,000 per year. OPPT will be more certain regarding
the resource implications of this type of review after it
completes its study of the implementation of ESA for the new
chemicals program. This study is estimated to cost 0.5 FTE and
$150,000. If, however, a larger program is needed, i.e., a
program designed to more rapidly and comprehensively address the
universe of new and existing chemicals and their potential
impacts on endangered species, the project could easily require a
much higher level of resources and effort.
Proaram issues on ESA reauthorization
In light of OPPT’s responsibilities for making regulatory
decisions pertaining to the manufacture, processing,
distribution, and use of new and existing chemicals,
consultations on the potential impacts of these chemicals on
endangered species could result in OPPT actions to reduce
impacts. OPPT would substantially benefit from ESA—appropriated
funds which would allow OPPT to develop consultation requests in
a timely manner.
Endangered species could be better protected if the
locations of certain endangered species (i.e., those most likely
to be “collected” because of high monetary value) were exempted
from disclosure under the Freedom of Information Act.
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ENDANGERED SPECIES
ENDANGERED SPECIES ACT OF 1973 [ ESA § —]
(16 U.S.C.A. § 1531 to 1544)
CHAPTER 35—ENDANGERED SPECIES
se
1531. Congressional findings and declaration of purposes
and policy.
(a) Findings.
(b) Purposes.
(c) Policy.
1532. Definitions.
1533. Determination of endangered species and threat,
ened species.
(a) Generally.
(b) Basis for determinations.
(c) Lists.
(d) Protective regulations.
(e) Similarity of appearance cases.
(f) Recovery plans.
(g) Monitoring.
(h) Agency guidelines; publication in Federal Reg-
ister; scope; proposals and amendments; no-
tice and opportunity for comments.
(i) Submission to State agency of justification for
regulations inconsistent with State agency’s
comments or petition.
1534. Land acquisition.
(a) Implementation of conservation program; au-
thorization of Secretary and Secretary of
Agriculture.
(b) Availability of funds for acquisition of lands,
waters, etc.
1535. Cooperation with States.
(a) Generally.
(b) Management agreements.
(C) Cooperative agreements.
(d) Allocation of funds.
Ce) Review of State programs.
(f) Conflicts between Federal and State laws.
(g) Transition.
(h) Regulations.
(i) Appropriations.
1536. Interagency cooperation.
(a) Federal agency actions and consultations.
(b) Opinion of Secretary.
(c) Biological assessment.
(d) Limitation on commitment of resources.
(e) Endangered Species Committee.
(f) Promulgation of regulations; form and con-
tents of exemption application.
(g) Application for exemption; report to Commit-
tee.
(h) Grant of exemption.
(I) Review by Secretary of State; violation of in-
ternational treaty or other international obli-
gation of United States.
U) Exemption for national security reasons.
Se
1536. Interagency cooperation.
( Ii) Exemption decision not considered major Fed-
eral action; environmental impact statement.
(1) Committee order granting exemption; cost of
mitigation and enhancement measures; re
port by applicant to Council on Environmen-
tal Quality.
(m) Notice requirement for citizen suits not applica-
ble.
(n) Judicial review.
(o) Exemption as providing exception on taking of
endangered species.
(p) Exemptions in Presidentially declared disaster
areas.
1537. International cooperation.
(a) Financial assistance.
(b) Encouragement of foreign programs.
(c) Personnel.
(d) Investigations.
1537a. Convention implementation.
(a) Management Authority and Scientific Authori-
ty.
(b) Management Authority functions.
(C) Scientific Authority functions; determinations.
(d) Reservati rns by the United States under Con-
vention.
(e) Wildlife preservation in Western Hemisphere.
1639. Prohibited acts.
(a) Generally.
(b) Species held in captivity or controlled environ-
ment.
(e) Violation of Convention.
(d) Imports and exports.
(e) Reports.
(f) Designation of ports.
(g) Violations.
1539. Exceptions.
(a) Permits.
(b) Hardship exemptions.
(c) Notice and review.
(d) Permit and exemption policy.
(e) Alaska natives.
(f) Pre—Act endangered species parts exemption;
application and certification; regulation; va
lidity of sales contract; separability of provi-
sions; renewal of exemption; expiration of
renewal certification.
(g) Burden of proof.
(h) Certain antique articles; importation; port des-
ignation; application for return of articles.
(i) Noncommercial transshipments.
C i) Experimental populations.
1540. Penalties and enforcement.
(a) Civil penalties.
(b) Criminal violations.
I
160
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Sen.
1640. Penalties and enforcement
(c) District court jurisdiction.
(d) Rewards and certain incidental expenses.
(e) Enforcement.
(f) Regulations.
(g) Citizen suits.
(h) Coordination with other laws.
1541. Endangered plants.
1542. Authorization of appropriations.
(a) In general.
(b) Exemption from chapter.
(C) Convention implementation.
1543. Construction with Marine Mammal Protection Act
of 1912.
1544. Annual cost analysis by the Fish and Wildlife Serb
vice.
§ 1531. Congressional findings and decla-
ration of purposes and policy
[ ESA 2]
t on.
(a) Findings
The Congress finds and declares that—
(1) various species of fish, wildlife, .and plants
- - in the United States have been rendered extinct
as a consequence of economic growth and devel-
opment untempered by adequate concern and con-
servation;
(2) other species of fish, wildlife, and plants
have been so depleted in numbers that they are in
danger of or threatened with extinction;
(3) these species of fish, wildlife, and plants
are of esthetic, ecological, educational, historical,
recreational, and scientific value to the Nation
and its people;
(4) the United States has pledged itself as a
sovereign state in the international community to
16 §1531
ESA 2
conserve to the extent practicable the various
species of fish or wildlife and plants facing extinc-
tion, pursuant to—
(A) migratory bird treaties with Canada and
Mexico;
(B) the Migratory and Endangered Bird
Treaty with Japan;
(C) the Convention on Nature Protection and
Wildlife Preservation in the Western Hemi-
sphere;
(D) the International Convention for the
Northwest Atlantic Fisheries;
(E) the International Convention for the
High Seas Fisheries of the North Pacific Ocean;
(F) the Convention on International Trade in
Endangered Species of Wild Fauna and Flora;
and
(G) other international agreements; and
(5) encouraging the States and other interested
parties, through Federal financial assistance and
a system of incentives, to develop and maintain
conservation programs which meet national and
international standards is a key to meeting the
Nation’s international commitments and to better
safeguarding, for the benefit of all citizens, the
Nation’s heritage in fish, wildlife, and plants.
(b) Purposes
The purposes of this chapter are to provide a
means whereby the ecosystems upon which endan-
gered species and threatened species depend may be
conserved, to provide a program for the conserva-
tion of such endangered species and threatened
species, and to take such steps as may be appropri-
ate to achieve the purposes of the treaties and
conventions set forth in subsection (a) of this sec-
(e) Policy
(1) It is further declared to be the policy of
Congress that all Federal departments and agencies
shall seek to conserve endangered species and
threatened species and shall utilize their authorities
in furtherance of the purposes of this chapter.
(2) It is further declared to be the policy of
Congress that Federal agencies shall cooperate with
State and local agencies to resolve water resource
issues in concert with conservation of endangered
species.
(Pub.L. 93—205, § 2, Dec. 28, 1973, 87 Stat 884; Pub.L.
96—159, § 1, Dec. 28, 1979. 93 Stat. 1225; Pub.L. 97—304,.
§ 9(a), Oct. 13, 1982, 96 Stat. 1426; Pub.L. 100—478. Title I,
* 1018(a), Oct. 7, 1988, 102 Stat 2315.)
161 ENDM4GERED SPECIES
CROSS REFERENCES
Conservation of Antarctic fauna and flora—
Assessment of penalty not to preclude assessment of penalty
under this chapter, see section 2407 of this title.
Conviction of offense not to preclude conviction of offense
under this chapter, see section 2408 of this title.
Permit apphcadons with respect to native mammal, bird or
plant endangered or threatened submitted to appropri.
- ate Secretary, see section 2404 of this title.
Construction of this chapter with subsistence management and use
provisions of Alaska National Interest Lands Conservatios
Act., see section 8125 of this title.
Depletion or depleted for purposes of marine mammal protection
defined as case in which species or population stock listed as
endangered or threatened, see section 1362 of this title.
Imminent hazard for purposes of pesticide control defined as
continued use of pesticide likely to result in hazard to
survival of species declared endangered or threatened, see
section 136 of Title 7. Agriculture.
Licensing procedures for small hydroelectric power projects not to
exempt project from requirements of this chapter, see sec-
tion 2705 of this title.
Nongame fish and wildlife for purposes of fish and wildlife conser
vation defined as vertebrate animals not endangered or
threatened, see section 2902 of this title.
-------
16 § 1531
ESA 2
Short Title
Section 1 of Pub.L 93-205 provided: “That this Act (enacting
this chapter, amending sections 460k—I, 46014, 668dd, 7151, 715..
1362, 1371, 1372 and 1402 of this title sod aection 136 of title 7,
Agriculture, repealing sections L6Saa to 668cc-S of this title, sad
enacting provisions set out as notes under this section] sy be
cited as the ‘Endangered Species Act of 1978’.” -
CODE OF FEDERAL REGULATIONS
Endangered and threatened wildlife and plants, see 50 CFR 17.1 et
seq.
CROSS REFERENCES
Granting of permits and exemptions for taking endangered species
to be conditioned on finding that such grant will be eonais.
tent with the purposes and policy set forth In this section,
see section 1539 of this title.
West’s Federal Forms
Complaint, see 91713 and comment thereunder.
LAW REVIEW COMMENTARIES
American and British offshore oil development. Uisdean H.
Vass. 21 Tulsa L..J. 23 (1985).
Effectiveness of judicial review under the 1979 Amendment to
the Endangered Species Act. 7 J. Energy I. & Pol’y 345 (1986).
Environmental claims in bankruptcy: Policy conflicts, procedural
pitfalls and problematic precedent Thomas G. Gruenert, 82 S.Tex.
L.Rev. 899 (1991).
Grazing management on the public lands: Opening the process
to public participation. Joseph H. Feller, 26 Land and Water
L.Rev. 571 (1991).
Is the “Endangered Species Act” endangered! David P. Her
schauer, 21 Sw.U.L Rev. 991 (1992).
Protecting national park system buffer sones: Existing, pro-
posed, and suggested authority. John W. Hiacoek. 7 J.Energy 1.
& Poly 85 (1986).
Public interest and intimidation suIts: A new approach. Joseph
J. Brecher, 28 Santa Clara L.Rev. 105 (1988).
Regulated taking of threatened species under the Endangered
Species Act Note, 39 Hast.Ll. 399 (1988).
Sierra Club V. Clark: The government cries wolf Keith I.
Halleland. 1985, 11 Wm Mitchell L.Rev. 969.
LIBRARY REFERENCES
Fish 8, 10, 12, 14.
Game 3’h, 5, 7 to 10.
Health and Environment 25.5.
States 4.19.
Urnted States 55, 85.
C.J.S Fish 9 26, 28 et seq., 86, 88 et seq.
C.J.S. Game 5* 7, 10 et seq., 16 to 18.
162
C.J.S Health and Environment ft 61 to 66,69,71 to 73,78 toss,
82 to 85,88 to 90, 94, 104, 110, 115 to 126,128,123, i iss,
135, 137 to 140, 142, 144 to 168.
C.J.S. States * 28.
CJS. United States ft 71, 78, 123.
United States Supreme Court
Protection of endangered species, under this chapter, to
accorded the highest priority, see Tennessee Vafley Authority v.
Hill, Tenn.1978 , 98 S.Ct. 2279, 437 U.& 158, 67 LEd.24 iii.
§ 1532. DefinItions [ ESA § 3]
For the purposes of this chapter—
(1) The term “alternative courses of action”
means all alternatives and thus is not limited to
original project objectives and agency jurisdiction,
(2) The term “commercial activity” means all
activities of industry and trade, including, but not
limited to, the buying or selling of commodities
and activities conducted for the purpose of facili.
tating such buying and selling: Provided, howev.
er, That it does not include exhibition of commodi-
ties by museums or similar cultural or historical
organizations.
(3) The terms “conserve”, “conserving”, and
“conservation” mean to use and the use of all
methods and procedures which are necessary to
bring any endangered species or threatened spe-
des to the point at which the measures provided
pursuant to this chapter are no longer necessary.
Such methods and procedures include, but are not
limited to, all activities associated with scientific
resources management such as research, census,
law enforcement, habitat acquisition and mainte-
nance, propagation, live trapping, and transplan.
tation, and, in the extraordinary case where popu.
lation pressures within a given ecosystem cannot
be otherwise relieved, may include regulated talc.
ing.
(4) The term “Convention” means the Conven-
tion on International Trade in Endangered Species
of Wild Fauna and Flora, signed on March 8,
1973, and the appendices thereto.
(5)(A) The term “critical habitat” for a threat-
ened or endangered species means—
(I) the specific areas within the geographical
area occupied by the species, at the time it I
listed in accordance with the provisions of sec-
tion 1533 of this title, on which are found those
physical or biological features (I) essential to
the conservation of the species and (II) which
may require special management considerations
or protection; and
(II) specific areas outside the geographies 1
area occupied by the species at the time it IS
listed in accordance with the provisions of see-
SELECTED ENVIRONMENTAL LAW STATUTES
Relstlonshlp of Other Act to Endangered Species Act of 1973
PubL 102—251, Title III, 9 805, Mci’. 9, 1992, 106 Stat. 66,
provided thau “The special areas defined In section 8(24) of the
Magnuson Fishery Conservation and Management Act (16 US.C.
3802(24)) (section 1802(21) of this title] shall be considered places
that are subject to the jurisdiction of the United States for the
purposes of the Endangered Species Act of 1978(16 US.C. 1581 et
seq.) (this chapter].”
(Section 805 of Pub.L. 102-251 effective on the date on which the
Agreement between the United States and the Union of Soviet
Socialist Republics on the Maritime Boundary, signed June 1, 1990,
enters into force for the United States, with authority to prescribe
implementing regulations effective Mar. 9, 1992, but with no such
regulation to be effective until the date on which the Agreement
enters into force for the United States, see section 808 of Pub.!..
102—251, set Out as a note under section 778 of this title.]
-------
tion 1533 of this title, upon a determination by
the Secretary that such areas are essential for
the conservation of the species.
(B) Critical habitat may be established for
those species now listed as threatened or endan-
gered species for which no critical habitat has
heretofore been established as set forth in sub-
paragraph (A) of this paragraph.
(C) Except in those circumstances determined
by the Secretary, critical habitat shall not include
the entire geographical area whiéh can be occu-
pied by the threatened or endangered species.
(6) The term “endangered species” means any
species which is in danger of extinction through.
out all or a significant portion of its range other
than a species of the Class Insects determined by
the Secretary to constitute a pest whose protec-
tion under the provisions of this chapter would
present an overwhelming and overriding risk to
man.
(7) The term “Federal agency” means any de-
partment, agency, or instrumentality of the Unit-
ed States.
(8) The term “fish or wildlife” means any mem-
ber of the animal kingdom, including without
limitation any mammal, fish, bird (including any
migratory, nonmigratory, or endangered bird for
which protection is also afforded by treaty or
other international agreement), amphibian, rep-
tile, mollusk, crustacean, arthropod or other in-
vertebrate, and includes any part, product, egg,
or offspring thereof, or the dead body or parts
thereof.
(9) The term “foreign commerce” includes,
among other things, any transaction—
(A) between persons within one foreign
country;
(B) between persons in two or more foreign
countries;
(C) between a person within the United
States and a person in a foreign country; or
(D) between persons within the United
States, where the fish and wildlife in question
are moving in any country or countries outside
the United States.
(10) The term “import” means to land on, bring
into, or introduce into, or attempt to land on,
bring into, or introduce into, any place subject to
the jurisdiction of the United States, whether or
not such landing, bringing, or introduction consti-
tutes an importation within the meaning of the
customs laws of the United States.
(11) Repealed. Pub.L 97—304, • 4(b), Oct. 18,
1982, 96 Stat 1420.
16 § 1532
ESA 03
(12) The term “permit or license applicant”
means, when used with respect to an action of a
Federal agency for which exemption is sought
under section 1536 of this title, any person whose
application to such agency for a permit or license
has been denied primarily because of the applica-
tion of section 1536(a) of this title to such agency
action.
(13) The term “person” means an individual,
corporation, partnership, trust, association, or any
other private entity; or any officer, employee,
agent, department, or instrumentality of the Fed-
eral Government, of any State, municipality, or
political subdivision of a State, or of any foreign
government; any State, municipality, or political
subdivision of a State; or any other entity subject
to the jurisdiction of the United States.
(14) The term “plant” means any member of
the plant kingdom, including seeds, roots and
other parts thereof.
(15) The term “Secretary” means, except as
otherwise herein provided, the Secretary of the
Interior or the Secretary of Commerce as pro.
gram responsibilities are vested pursuant to the
provisions of Reorganization Plan Numbered 4 of
1970; except that with respect to the enforcement
of the provisions of this chapter and the Conven-
tion which pertain to the importation or exporta-
tion of terrestrial plants, the term also means the
Secretary of Agriculture.
(16) The term “species” includes any subspe-
des of fish or wildlife or plants, and any distinct
population segment of any species of vertebrate
fish or wildlife which interbreeds when mature.
(17) The term “State” means any of the several
States, the District of Columbia, the Common-
wealth of Puerto Rico, American Samoa, the Vii ’
gin Islands, Guam, and the Trust Territory of the
Pacific Islands.
(18) The term “State agency” means any State
agency, department, board, commission, or other
governmental entity which is responsible for the
management and conservation of fish, plant, or
wildlife resources within a State.
(19) 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
(20) The term “threatened species” means any
species which is likely to become an endangered
species within the foreseeable future throughout
all or a significant portion of its range.
163 ENDANGERED SPECIES
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16 § 1532
ESA IS
(21) The term “United States”, when used in a
geographical context, includes all States.
(Pub.L 93-205, { 8, Dec. 28, 1978, 87 Stat 885; P%ab.L.
94—359, § 5, July 12, 1976, 90 Stat. 918; Pub.L. 95—632,
§ 2, Nov. 10, 1978, 92 Stat, 3751; Pub.L 96—159,3 2, Dec.
28, 1979, 93 Stat. 1225; Pub.L 97-304, 3 4(b), Oct. 13,
1982, 96 Stat. 1420; Pub.L 100—478, Title 1, 31001, Oct. 7,
1988, 102 Stat 2306.)
CROSS REFERENCES
Judicial review of any decision of Endangered Species Committee
by any “person” as defined in this section, see section 1586
of this this.
CODE OF FEDERAL REGULATIONS
Endangered species regulations concerning terrestrial plants, see 7
CFR 355.1 et seq.
§ 1533. Determination of endangered ape.
cies and threatened species
(ESA § 4]
(a) Generally
(1) The Secretary shall by regulation promulgat-
ed in accordance with subsection (b) of this section
determine whether any species is an endangered
species or a threatened species because of any of
the following factors:
(A) the present or threatened destruction, mod-
ification, or curtailment of its habitat or range;
(B) overutilization for commercial, recreational,
scientific, or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory
mechanisms; or
(E) other natural or manmade factors affecting
its continued existence.
(2) With respect to any species over which pro-
gram responsibilities have been vested in the Secre-
tary of Commerce pursuant to Reorganization Plan
Numbered 4 of 1970—
(A) in any case in which the Secretary of Com-
merce determines that such species should—
(I) be listed as an endangered species or a
threatenid species, or
(ii) be changed in status from a threatened
species to an endangered species,
he shall so inform the Secretary of the Interior,
who shall list such species in accordance with this
section;
(B) in any case in which the Secretary of Com-
merce determines that such species should—
(I) be removed from any list published pursu-
ant to subsection (c) of this section, or
164
(ii) be changed in status from an endangered
Species to a threatened species,
he shall recommend such action to the Secretary
of the Interior, and the Secretary of the Interior,
if he concurs in the recommendation, shall imple-
ment such action; and
(C) the Secretary of the Interior may not list or
remove from any list any such species, and may
not change the status of any such species which
are listed, without a prior favorable determination
made pursuant to this section by the Secretary of
Commerce.
(3) The Secretary, by regulation promulgated in
accordance with subsection (b) of this section and to
the maximum extent prudent and determinable—
(A) shall, concurrently with making a determi-
nation under paragraph (1) that a species is an
endangered species or a threatened species, desig-
nate any habitat of such species which is then
considered to be critical habitat; and
(B) may, from time-to-time thereafter as appro-
priate, revise such designation.
(b) Bash, for determination.
(1)(A) The Secretary shall make determinations
required by subsection (a)(1) of this section solely on
the basis of the best scientific and commercial data
available to him after conducting a review of the
status of the species and after taking into account
those efforts, if any, being made by any State or
foreign nation, or any political subdivision of a State
or foreign nation, to protect such species, whether
by predator control, protection of habitat and food
supply, or other conservation practices, within any
area under its jurisdiction, or on the high seas.
(B) In carrying out this section, the Secretary
shall give consideration to species which have
been—
(I) designated as requiring protection from un-
restricted commerce by any foreign nation, or
pursuant to any international agreement; or
( II) identified as in danger of extinction, or’
likely to become so within the foreseeable future,
by any State agency or by any agency of a
foreign nation that is responsible for the conser’
vation of fish or wildlife or plants.
(2) The Secretary shall designate critical habitat,
and make revisions thereto, under subsection (a)(3)
of this section on the basis of the best scientific data
available and after taking into consideration the
economic impact, and any other relevant impact, of.
specifying any particular area as critical habitat.
The Secretary may exclude any area from critical
SELECTED ENVIRONMENTAL LAW STATUTES
-------
habitat if he determines that the benefits of such
exclusion outweigh the benefits of specifying such
area as part of the critical habitat, unless he deter-
mines, based on the best scientific and commercial
data available 1 that the failure to designate such
area as critical habitat will result in the extin tion
of the species concerned.
(3)(A) To the maximum extent practicable, within
90 days after receiving the petition of an interested
person under section 553(e) of Title 5 to add a
species to, or to remove a species from, either of the
lists published under subsection (C) of this section 1
the Secretary shall make a finding as to whether
the petition presents substantial scientific or com-
mercial information indicating that the petitioned
action may be warranted. If such a petition is
found to present such information, the Secretary
shall promptly commence a review of the status of
the species concerned. The Secretary shall prompt-
ly publish each finding made under this subpara-
graph in the Federal Register.
(B) Within 12 months after receiving a petition
that is found under subparagraph (A) to present
substantial information indicating that the peti-
tioned action may be warranted, the Secretary shall
make one of the following findings:
(I) The petitioned action is not warranted, in
which case the Secretary shall promptly publish
such finding in the Federal Register.
(Ii) The petitioned action is warranted, in which
case the Secretary shall promptly publish in the
Federal Register a general notice and the com-
plete text of a proposed regulation to implement
such action in accordance with paragraph (5).
( II I) The petitioned action is warranted, but
that—
(I) the immediate proposal and timely pro-
mulgation of a final regulation implementing
the petitioned action in accordance with para-
graphs (5) and (6) is precluded by pending pro-
posals to determine whether any species is an
endangered species or a threatened species, and
(II) expeditious progress is being made to
add qualified species to either of the lists pub-
lished under subsection (c) of this section and to
remove from such lists species for which the
protections of this chapter are no longer neces-
sary,
in which case the Secretary shall promptly publish
such finding in the Federal Register, together
with a description and evaluation of the reasons
and data on which the finding is based.
16 § 1533
ESA 04
(C)(l) A petition with respect to which a finding
is made under subparagraph (B)(iii) shall be treated
as a petition that is resubmitted to the Secretary
under subparagraph (A) on t ’e date of such finding
and that presents substantial scientific or commer-
cial information that the petitioned action may be
warranted.
( II) Any negative finding described in subpara-
graph (A) and any finding described in subpara-
graph (B)(i) or (iii) shall be subject to judicial review.
(Ill) The Secretary shall implement a system to
monitor effectively the status of all species with
respect to which a finding is made under subpara-
graph (B)(iii) and shall make prompt use of the
authority under paragraph 7 to prevent a significant
risk to the well being of any such species.
(D)(l) To the maximum extent practicable, within
90 days after receiving the petition of an interested
person under section 553(e) of Title 5, to revise a
critical habitat designation, the Secretary shall
make a finding as to whether the petition presents
substantial scientific information indicating that the
revision may be warranted. The Secretary shall
promptly publish such finding in the Federal 1 egis-
tsr.
( II) Within 12 months after receiving a petition
that is found under clause (i) to present substantial
information indicating that the requested revision
may be warranted, the Secretary shall determine
how he intends to proceed with the requested revi-
sion, and shall promptly publish notice of such in-
tention in the Federal Register.
(4) Except as provided in paragraphs (5) and (6)
of this subsection, the provisions of section 553 of
Title 5 (relating to rulemaking procedures), shall
apply to any regulation promulgated to carry out
the purposes of this chapter.
(5) With respect to any regulation proposed by
the Secretary to implement a determination, desig-
nation, or revision referred to in subsection (a)(1) or
(3) of this section, the Secretary shall—
(A) not less than 90 days before the effective
date of the regulation—
(I) publish a general notice and the complete
text of the proposed regulation in the Federal
Register, and
(II) give actual notice of the proposed regula-
tion (including the complete text of the regula-
tion) to the State agency in each State in which
the species is believed to occur, and to each
county or equivalent jurisdiction in which the
species is believed to occur, and invite the corn-
165 ENDANGERED SPECIES
-------
16 § 1533
EU 14
inent of Buch agency, and each such jurisdic-
tion, thereon;
(B) insofar as practical, and in cooperation with
the Secretary of State, give notice of the proposed
regulation to each foreign nation in which the
species is believed to occur or whose citizens
harvest the species on the high seas, and invite
the comment of such nation thereon;
(C) give notice of the proposed regulation to
such professional scientific organizations as he
deems appropriate;
(D) publish a si mmary of the proposed regula-
tion in a newspaper of general circulation in each
area of the United States in which the species is
believed to occur; and
(E) promptly hold one public hearing on the
proposed regulation if any person files a request
for such a hearing within 45 days after the date
of publication of general notice.
(6)(A) Within the one-year period beginning on
the date on which general notice is published in
accordance with paragraph (5)(A)(i) regarding a pro-
posed regulation, the Secretary shall publish in the
Federal Register—
(I) if a determination as to whether a species is
an endangered species or a threatened species, or
a revision of critical habitat, is involved, either—
(I) a final regulation to implement such de-
termination,
(II) a final regulation to implement such re-
vision or a finding that such revision should not
be made,
(III) notice that such one-year period is be-
ing extended under subparagraph (B)(i), or
(IV) notice that the proposed regulation is
being withdrawn under subparagraph (B)(ii), to-
gether with the finding on which such with-
drawal is based; or
(ii) subject to subparagraph (C), if a designa-
tion of critical habitat is involved, either—
(I) a final regulation to implement such des-
ignation, or
(II) notice that such one-year period is being
extended under such subparagraph.
(B)(l) If the Secretary finds with respect to a
proposed regulation referred to in subparagraph
(A)(i) that there is substantial disagreement regard-
ing the sufficiency or accuracy of the available data
relevant to the determination or revision concerned,
the Secretary may extend the one-year period speci-
fied in subparagraph (A) for not more than six
months for purposes of soliciting additional data.
166
(II) If a proposed regulation referred to in sub-
paragraph (A)(i) is not promulgated as a final regu-
lation within such one-year period (or longer period
if extension under clause (i) applies) because the
Secretary finds that there is not sufficient evidence
to justify the action proposed by the regulation, the
Secretary shall immediately withdraw the regula-
tion. The finding on which a withdrawal is based
shall be subject to judicial review. The Secretary
may not propose a regulation that has previously
been withdrawn under this clause unless he deter-
mines that sufficient new information is available to
warrant such proposal.
(Ill) If the one-year period specified in subpara-
graph (A) is extended under clause (i) with respect
to a proposed regulation, then before the close of
such extended period the Secretary shall publish in
the Federal Register either a final regulation to
implement the determination or revision concerned,
a finding that the revision should not be made, or a
notice of withdrawal of the regulation under clause
(ii), together with the finding on which the with-
drawal is based.
(C) A final regulation designating critical habitat
of an endangered species or a threatened species
shall be published concurrently with the final regu-
lation implementing the determination that such
species is endangered or threatened, unless the Sec-
retary deems that—
(1) it is essential to the conservation of such
species that the regulation implementing such
determination be promptly published; or -
( Ii) critical habitat of such species is not then
determinable, in which case the Secretary, with
respect to the proposed regulation to designate
such habitat, may extend the one-year period
specified in subparagraph (A) by not more than
one additional year, but not later than the close of
such additional year the Secretary must publish a
final regulation, based on such data as may be
available at that time, designating, to the maxi-
mum extent prudent, such habitat.
(7) Neither paragraph (4), (5), or (6) of this sub-
section nor section 553 of Title 5 shall apply to any
regulation issued by the Secretary in regard to any
emergency posing a significant risk to the well•
being of any species of fish or wildlife or plants, but
only if—
(A) at the time of publication of the regulation
in the Federal Register the Secretary publishes
therein detailed reasons why such regulation is
necessary; and
SELECrED ENVIRONMENTAL LAW STATUTES
-------
(B) in the case such regulation applies to resi-
dent species of fish or wildlife 1 or plants, the
Secretary gives actual notice of such regulation to
the State agency in each State in which such
species is believed to occur.
Such regulation shall, at the discretion of the Secre-
tary, take effect immediately upon the puhlication
of the regulation in the Federal Register. Any
regulation promulgated under the authority of this
paragraph shall cease to have force and effect at
the close of the 240-day period following the date of
publication unless, during such 240-day period, the
rulemaking procedures which would apply to such
regulation without regard to this paragraph are
complied with. If at any time after issuing an
emergency regulation the Secretary determines, on
the basis of the best appropriate data available to
him, that substantial evidence does not exist to
warrant such regulation, he shall withdraw it
(8) The publication in the Federal Register of any
proposed or final regulation which is necessary or
appropriate to carry out the purposes of this chap-
ter shall include a summary by the Secretary of the
data on which such regulation is based and shall
show the relationship of such data to such regula-
tion; and if such regulation designates or revises
critical habitat, such summary shall, to the maxi-
mum extent practicable, also include a brief descrip-
tion and evaluation of those activities (whether pub-
lic or private) which, in the opinion of the Secretary,
if undertaken may adversely modify such habitat,
or may be affected by such designation.
(c) Lists
(1) The Secretary of the Interior shall publish in
the Federal Register a list of all species determined
by him or the Secretary of Commerce to be endan-
gered species and a list of all species determined by
him or the Secretary of Commerce to be threatened
species. Each list shall refer to the species con-
tained therein by scientific and common name or
names, if any, specify with respect to each such
species over what portion of its range it is endan-
gered or threatened, and specify any critical habitat
Within such range. The Secretary shall from time
to time revise each list published under the authori-
ty of this subsection to reflect recent determina-
tions, designations, and revisions made in accor-
dance with subsections (a) and (b) of this section.
(2) The Secretary shall—
(A) conduct, at least once every five years, a
review of all species included in a list which is
published pursuant to paragraph (1) and which is
in effect at the time of such review; and
16 § 1533
ESA * 4
(B) determine on the basis of such review
whether any such species should—
(I) be removed from such list ,
( I I) be changed in status from an endadgered
species to a threatened species; or
(Ill) be changed in status from a threatened
species to an endangered species.
Each determination under subparagraph (B) shall
be made in accordance with the provisions of
subsections (a) and (b) of this section.
(d) Protective regulation. -
Whenever any species is listed as a threatened
species pursuant to subsection (c) of this section,
the Secretary shall issue such regulations as he
deems necessary and advisable to provide for the
conservation of such species. The Secretary may
by regulation prohibit with respect to any threat-
ened species any act prohibited under section
1538(a)(1) of this title, in the case of fish or wildlife,
or section 1538(a)(2) of this title, in the case of
plants, with respect to endangered species; except
that with respect to the taking of resident species of
fish or wildlife, such regulations shall apply in any
State which has entered into a cooperative agree-
ment pursuant to section 1535(c) of this title only to
the extent that such regulations have also been
adopted by such State.
(e) Similarity or appearance cases
The Secretary may, by regulation of commerce or
taking, and to the extent he deems advisable, treat
any species as an endangered species or threatened
species even though it is not listed pursuant to this
section if he finds that—
(A) such species so closely resembles in ap-
pearance, at the point in question, a species which
has been listed pursuant to such section that
enforcement personnel would have substantial
difficulty in attempting to differentiate between
the listed and unlisted species; -
(B) the effect of this substantial difficulty is an
additional threat to an endangered or threatened
species; and
(C) such treatment of an unlisted species will
substantially facilitate the enforcement and fur-
ther the policy of this chapter.
(t) Recovery plans
(1) The Secretary shall develop and implement
plans (hereinafter in this subsection referred to as
“recovery plans”) for the conservation and survival
of endangered species and threatened species listed
pursuant to this section, unless he finds that such a
plan will not promote the conservation of the spe-
167 ENDANGERED SPECIES
-------
16 § 1538
ESA 14
des. The Secretary, in developing and implement-
ing recovery plans, shall, to the maximum extent
practicable—
(A) give priority to those endangered species
or threatened species, without regard to taxonom-
ic classification, that are most likely to benefit
from such plans, particularly those species that
are, or may be, in conflict with construction or
other development projects or other forms of eco-
nomic activity;
(B) incorporate in each plan—
(I) a description of such site-specific manage-
inent actions as may be necessary to achieve
the plan’s goal for the conservation and surviv-
al of the species;
(I I) objective, measurable criteria which,
when met, would result in a determination, in
accordance with the provisions of this section,
that the species be removed from the list; and
(iii) estimates of the time required and the
cost to carry out those measures needed to
achieve the plan’s goal and to achieve interme-
diate steps toward that goal.
(2) The Secretary, in developing and implement-
ing recovery plans, may procure the services of
appropriate public and private agencies and institu-
tions, and other qualified persons. Recovery teams
appointed pursuant to this subsection shall not be
subject to the Federal Advisory Committee Act.
(3) The Secretary shall report every two years to
the Committee on Environment and Public Works of
the Senate and the Committee on Merchant Marine
and Fisheries of the House of Representatives on
the status of efforts to develop and implement
recovery plans for all species listed pursuant to this
section and on the status of all species for which
such plans have been developed.
(4) The Secretary shall, prior to final approval of
a new or revised recovery plan, provide public notice
and an opportunity for public review and comment
on such plan. The Secretary shall consider all infor-
mation presented during the public comment period
prior to approval of the plan.
(5) Each Federal agency shall, prior to implemen-
tation of a new or revised recovery plan, consider all
information presented during the public comment
period under paragraph (4).
(g) Monitoring
(1) The Secretary shall implement a system in
cooperation with the States to monitor effectively
for not less than five years the status of all species
which have recovered to the point at which the
168
measures provided pursuant to this chapter are no
longer necessary and which, in accordance with the
provisions of this section, have been removed from
either of the lists published under subsection Cc) of
this section.
(2) The Secretary shall make prompt use of the
authority under paragraph 7 of subsection (b) of
this section to prevent a significant risk to the well
being of any such recovered species.
(h) Agency guidelines; publication in Federal Register,
scope; proposals and amendments: notice and
opportunity for comments
The Secretary shall establish, and publish in the
Federal Register, agency guidelines to insure that
the purposes of this section are achieved efficiently
and effectively. Such guidelines shall include, but
are not limited to—
(1) procedures for recording the receipt and
the disposition of petitions submitted under sub-
section (b)(3) of this section;
(2) criteria for making the findings required
under such subsection with respect to petitions;
(3) a ranking system to assist in the identifica-
tion of species that should receive priority review
under subsection (a)(1) of this section; and
(4) a system for developing and implementing,
on a priority basis, recovery plans under subsec-
tion (f) of this section.
The Secretary shall provide to the public notice of,
and opportunity to submit written comments on,
any guideline (including any amendment thereto)
proposed to be established under this subsection.
(I) Submission to State agency of justification for regu-
lations Inconsistent with State agency’s comments
or petition
If, in the case of any regulation proposed by the
Secretary under the authority of this section, a
State agency to which notice thereof was given in
accordance with subsection (b)(5)(A)(ii) of th1 sec-
tion files comments disagreeing with all or part of
the proposed regulation, and the Secretary issues a
final regulation which is in conflict with such com-
ments, or if the Secretary fails to adopt a regulation
pursuant to an action petitioned by a State agency
under subsection (b)(3) of this section, the Secretary
shall submit to the State agency a written justifica.
tion for his failure to adopt regulations consistent
with the agency’s comments or petition.
(Pub L 93—205, * 4, Dec. 28, 1973, 87 Stat. 886; Pub.!...
94—359, 1, July 12, 1976, 90 StaL 911; Pub.!... 95—632,
0*11, 13, Nov. 10, 1978, 92 Stat. 3764, 8766; Pub.!...
96—159, § 3, Dec. 28, 1979, 93 Stat 1225; Pub.L. 97—304,
• 2(a), Oct 13, 1982, 96 Stat. 1411; Pub.!... 100—478, Title I,
0*1002—1004, Oct. 7, 1988, 102 Stat 2306.)
SELECI’ED ENVIRONMENTAL LAW STATUTES
-------
References In Text
The Federal Advisory Committee Act, referred to in text, is let
out in Appendix 2 to Title 5, Government Organization and Em-
ployees.
CROSS REFERENCES
Acquisition of areas of land suitable for conservation of endan-
gered and threatened species in conservation recreational
areas, see section 460k-i of this title.
Areas of lands or waters acquired through migratory bird conser
vation provisions administered in accordance with treaty
obligations to protect endangered and threatened species,
see section 715i of this title.
Citizen suits to compel Secretary to apply pro(èctive regulation or
against Secretary to perform nondiscretionary act or duty
under this section, see section 1540.
Conservation program with respect to National Forest System to
include fish, wildlife, and plants listed as endangered or
threatened species pursuant to this section, see section 1534
of this title.
Cooperative agreements by state agencies for implementation of
public land conservation and rehabilitation programs to pro-
vide adequate protection for endangered and threatened
species, see section 670h of this title.
Cooperative agreements with States not to affect protective regu-
lations issued under this section, see section 1535 of this
title.
Duty of Marine Mammal Commission to recommend revisions of
endangered and threatened species list, see section 1402 of
this title.
Federal agencies to utilize their authorities in furtherance of
purposes of this chapter by carrying out program for con-
servation of endangered or threatened species listed pursu-
ant to this section, see section 1536 of this title.
International cooperation and encouragement of foreign programs
for conservation of endangered or threatened species listed
pursuant to this section, see section 1537 of this title.
Listing of endangered or threatened species in accordance with
this section as determinative of “critical habitat”, see section
1532 of this title.
National Wildlife Refuge System to include lands acquired or
reserved for protection of endangered and threatened spe-
cies, see section 715s of this title.
Prohibited acts, see section 1538 of this title.
Regulations on hunting and fishing of endangered and threatened
species on lands not within National Wildlife Refuge Sys-
tem, see section SGSdd of this title.
CODE OF FEDERAL REGULATIONS
Coal mining exploration plans, see 43 CFR 3482.1 et seq.
Compliance with National Environmental Policy Act, see 7 CFR
650.1 ci seq.
General provisions, see 50 CFR 217.1 et seq.
Identification of—
Endangered and threatened wildlife and plants, United States
Fish and Wildlife Service, see 60 CFR 17.1 et seq.
Threatened fish and wildlife, National Marine Fisheries See ’-
vice, see 60 CFR 227.1 et seq.
Listing endangered and threatened species and designating critical
habitat, see 50 CFR 424.01 et seq.
§ 1534. Land acquisition [ ESA § 5]
(a) Implementation of conservation program; authori-
zation of Secretary and Secretary of Agriculture
The Sect-etary, and the Secretary of Agriculture
with respect to the National Forest System, shall
establish and implement a program to conserve fish,
wildlife, and plants, including those which are listed
as endangered species or threatened species pursu-
16 § 1535
ESA 16
(b) Availability of funds for acquisition of lands, waters,
etc.
Funds made available pursuant to the Land and
Water Conservation Fund Act of 1965, as amended
(16 U.S.C.A. § 4601-4 et seq.], may be used for the
purpose of acquiring lands, waters, or interests
therein under subsection (a) of this section.
(Pub.L 93—205, § 5, Dec. 28, 1973, 81 Stat. 889; Pub.L
95-632, § 12, Nov. 10, 1978, 92 Stat, 3766.)
References In Text
The Fish and Wildlife Act of 1956, as amended, referred to in
subsec. (aXl), is Act Aug. 8, 1956, c. 1036, 70 Stat. 119, as
amended, which is classified generally to sections 7424 et seq. of
this title. For complete classification of this Act to the Code, see
Short Title note set out under section 742a of this title and Tables
volume.
The Fish and Wildlife Coordination Act, as amended, referred to
in subsec. (aXI), is Act Mar 10, 1934, c. 65, 48 Stat. 401, as
amended, which is classified generally to sections 661 to 666c of
this title. For complete classification of this Act to the Code, see
Short Title note set out under section 661 of this title and Tables
volume.
The Migratory Bird Conservation Act, referred to in subsee.
(aXi), is Act Feb. 18, 1929, c. 257, 45 Stat. 1222, as amended, which
is classified generally to subchapter Ill (section 715 et seq.) of
chapter 7 of this title. For complete classification of this Act to
the Code, see section 715 of this title and Tables volume.
The Land and Water Conservation Fund Act of 1965, as amend-
ed, referred to in subsec (b), is Pub 1. 88-578, Sept. 3, 1964, 78
Stat. 897, as amended, which is classified to section 4601—4 et seq
of this title. For complete classification of this Act to the Code,
see Short Title note set out under section 4601-4 of this title and
Tables volume.
CROSS REFERENCES
Land and water conservation fund, acquisition for National Wild-
Lie Refuge System of land or water for endangered and
threatened species, see section 4601—9 of this title.
169 ENDANGERED SPECIES
ant to section 1533 of this title. To carry out such a
program, the appropriate Secretary—
(1) shall utilize the land acquisition and other
authority under the Fish and Wildlife Act of 1956,
as amended (16 U.S.C.A. § 742a et seq.], the Fish
and Wildlife Coordination Act, as amended (16
U.S.C.A. § 661 et seq.], and the Migratory Bird
Conservation Act [ 16 U.S.C.A, § 715 et seq.], as
appropriate; and
(2) is authorized to acquire by purchase, dona-
tion, or otherwise, lands, waters, or interest there-
in, and such authority shall be in addition to any
other land acquisition authority vested in him.
§ 1535. CooperatIon with States [ ESA § 61
(a) Generally
In carrying out the program authorized by this
chapter, the Secretary shall cooperate to the n ’iaxi-
mum extent practicable with the States. Such coop-
eration shall include consultation with the States
concerned before acquiring any land or water, or
-------
16 § 1535
EM I S
interest therein, for the purpose of conserving any
endangered species or threatened species.
(b) Management agreement.
The Secretary may enter into agreements with
any State for the administration and management
of any area established for the conservation of
endangered species or threatened species. Any rev-
enues derived from the administration of such areas
under these agreement. shall be subject to the
provisions of section 715s of this title.
(c) Cooperative agreement.
(1) Tn furtherance of the purposes of this chap.
ter, the Secretary is authorized to enter into a
cooperative agreement in accordance with this sec-
tion with any State which establishes and maintains
an adequate and active program for the conserva-
tion of endangered species and threatened species.
Within one hundred and twenty days after the Sec-
retary receives a certified copy of such a proposed
State program, he shall make a determination
whether such program is in accordance with this
chapter. Unless he determines, pursuant to this
paragraph, that the State program is not in accor-
dance with this chapter, he shall enter into a cooper-
ative agreement with the State for the purpose of
assisting in implementation of the State program.
In order for a State program to be deemed an
adequate and active program for the conservation
of endangered species and threatened species, the
Secretary must find, and annually thereafter recon-
firm such finding, that under the State program—
(A) authority resides in the State agency to
conserve resident species of fish or wildlife deter-
mined by the State agency or the Secretary to be
endangered or threatened;
(B) the State agency has established accept-
able conservation programs, consistent with the
purposes and policies of this chapter, for all resi-
dent species of fish or wildlife in the State which
are deemed by the Secretary to be endangered or
threatened, and has furnished a copy of such plan
and program together with all pertinent details,
information, and data requested to the Secretary;
(C) the State agency is authorized to conduct
investigations to determine the status and re-
quirements for survival of resident species of fish
and wildlife;
(D) the State agency is authorized to establish
programs, including the acquisition of land or
aquatic habitat or interest. therein, for the con-
servation of resident endangered or threatened
species of fish or wildlife; and
170
(E) provision is made for public participation in
designating resident species of fish or wildlife as
endangered or threatened; or
that under the State program—
(I) the requirement. set forth in subpara.
graphs (C), (1)), and CE) of this paragraph are
complied with, and
( Ii) plans are included under which immedi-
ate attention •will be given to those resident
species of fish and wildlife which are deter-
mined by the Secretary or the State agency to
be endangered or threatened and which the
Secretary and the State agency agree are most
urgently in need of conservation programs; ex-
cept that a cooperative agreement entered into
with a State whose program is deemed ade-
quate and active pursuant to clause (I) and this
clause shall not affect the applicability of prohi-
bitions set forth in or authorized pursuant to
section 1533(d) of this title or section 1538(aXl)
of this title with respect to the taking of any
resident endangered or threatened species.
(2) In furtherance of the purposes of this chap-
ter, the Secretary is authorized to enter into a
cooperative agreement in accordance with this sec-
tion with any State which establishes and maintains
an adequate and active program for the conserva-
tion of endangered species and threatened species
of plants. Within one hundred and twenty days
after the Secretary receives a certified copy of such
a proposed State program, he shall make a determi-
nation whether such program is in accordance with
this chapter. Unless he determines, pursuant to
this paragraph, that the State program is not in
accordance with this chapter, he shall enter into a
cooperative agreement with the State for the pin’
pose of assisting in implementation of the State
program. In order for a State program to be
deemed an adequate and active program for the
conservation of endangered species of plants and
threatened species of plants, the Secretary must
find, and annually thereafter reconfirm such find-
ing, that under the State program—
(A) authority resides in the State agency to
conserve resident species of plants determined by
the State agency or the Secretary to be endan-
gered or threatened;
(B) the State agency has established accept-
able conservation programs, consistent with the
purposes and policies of this chapter, for all resi-
dent species of plants in the State which are
deemed by the Secretary to be endangered or
threatened, and has furnished a copy of such plan
SELECTED ENVIRONMENTAL LAW STATUTES
-------
and program together with all pertinent details,
information, and data requested to the Secretary;
(C) the State agency is authorized to conduct
investigations to determine the status and re-
quirements for survival of resident species of
plants; and
(D) provision is made for public participation in
designating resident species of plants as endan-
gered or threatened; or
that under the State program—
(I) the requirements set forth in subpara-
graphs (C) and (D) of this paragraph are com-
plied with, and
(I I) plans are included under which immedi-
ate attention will be given to those resident
species of plants which are determined by the
Secretary or the State agency to be endangered
or threatened and which the Secretary and the
State agency agree are most urgently in need
of conservation programs; except that a coop-
erative agreement entered into with a State
whose program is deemed adequate and active
pursuant to clause (i) and this clause shall not
affect the applicability of prohibitions set forth
in or authorized pursuant to section 1533(d) or
section 1538(a)(1) of this title with respect to
the taking of any resident endangered or
threatened species.
Cd) Allocation or funds
(1) The Secretary is authorized to provide finan-
cial assistance to any State, through its respective
State agency, which has entered into a cooperative
agreement pursuant to subsection (c) of this section
to assist in development of programs for the conser-
vation of endangered and threatened species or to
assist in monitoring the status of candidate species
pursuant to subparagraph (C) of section 1533(b)(3)
of this title and recovered species pursuant to sec-
tion 1533(g) of this title. The Secretary shall allo-
cate each annual appropriation made in accordance
with the provisions of subsection (1) of this section
to such States based on consideration of—
(A) the international commitments of the Unit-
ed States to protect endangered species or threat-
ened species;
(B) the readiness of a State to proceed with a
conservation program consistent with the objec-
tives and purposes of this chapter;
(C) the number of endangered species and
threatened species within a State;
(D) the potential for restoring endangered spe-
cies and threatened species within a State;
16 § 1535
ESA S
(E) the relative urgency to initiate a program
to restore and protect an endangered species or
threatened species in terms of survival of the
species;
(F) the importance of monitoring the status of
candidate species within a State to prevent a
significant risk to the well being of any such
species; and
(G) the importance of monitoring the status of
recovered species within a State to assure that
such species do not return to the point at which
the measures provided pursuant to this chapter
are again necessary.
So much of the annual appropriation made in accor-
dance with provisions of subsection (i) of this sec-
tion allocated for obligation to any State for any
fiscal year as remains unobligated at the close
thereof is authorized to be made available to that
State until the close of the succeeding fiscal year.
Any amount allocated to any State which is unobli-
gated at the end of the period during which it is
available for expenditure is authorized to be made
available for expenditure by the Secretary in con-
ducting programs under this section.
(2) Such cooperative agreements shall provide for
(A) the actions to be taken by the Secretary and the
States; (B) the benefits that are expected to be
derived in connection with the conservation of en-
dangered or threatened species; (C) the estimated
cost of these actions; and (D) the share of such
costs to be borne by the Federal Government and by
the States; except that—
(I) the Federal share of such program costs
shall not exceed 75 percent of the estimated pro-
gram cost stated in the agreement; and
(ii) the Federal share may be increased to 90
percent whenever two or more States having a
common interest in one or more endangered or
threatened species, the conservation of which may
be enhanced by cooperation of such States, enter
jointly into an agreement with the Secretary.
The Secretary may, in his discretion, and under such
rules and regulations as he may prescribe, advance
funds to the State for financing the United States
pro rats share agreed upon in the cooperative
agreement. For the purposes of this section, the
non-Federal share may, in the discretion of the
Secretary, be in the form of money or real property,
the value of which will be determined by the Secre-
tary, whose decision shall be final.
(e) Review of state programs
Any action taken by the Secretary under this
section shall be subject to his periodic review at no
greater than annual intervals.
171 ENDANGERED SPECIES
-------
16 § 1535
ESA IS
(f) Conflicts between Federal and State laws
Any State law or regulation which applies with
respect to the importation or exportation of, or
interstate or foreign commerce in, endangered spe-
cies or threatened species is void to the extent that
it may effectively (1) permit what is prohibited by
this chapter or by any regulation which implements
this chapter, or (2) prohibit what is authorized pur.
suant to an exemption or permit provided for in this
chapter or in any regulation which implements this
chapter. This chapter shall not otherwise be con-
strued to void any State law or regulation which is
intended to conserve migratory, resident, or intro-
duced fish or wildlife, or to permit or prohibit sale
of such fish or wildlife. Any State law or regula-
tion respecting the taking of an endangered species
or threatened species may be more restrictive than
the exemptions or permits provided for in this chap-
ter or in any regulation which implements this chap.
tsr but not less restrictive than the prohibitions so
defined.
(g) TransItion
(1) For purposes of this subsection, the term
“establishment period” means, with respect to any
State, the period beginning on December 28, 1973
and ending on whichever of the following dates first
occurs: (A) the date of the close of the 120-day
period following the adjournment of the first regu-
lar ession of the legislature of such State which
commences after December 28, 1973, or (B) the date
of the close of the 15-month period following De-
cember 28, 1978.
(2) The prohibitions set forth in or authorized
pursuant to sections 1533(d) and 1538(aXl)(B) of this
title shall not apply with respect to the taking of
any resident endangered species or threatened spe-
cies (other than species listed in Appendix I to the
Convention or otherwise specifically covered by any
other treaty or Federal law) within any State—
(A) which is then a party to a cooperative
agreement with the Secretary pursuant to subsec-
tion (c) of this section (except to the extent that
the taking of any such species is contrary to the
law of such State); or
(B) except for any time Within the establish-
ment period when—
(I) the Secretary applies such prohibition to
such species at the request of the State, or
( I I) the Secretary applies such prohibition af-
ter he finds, and publishes his finding, that an
emergency exists posing a significant risk to
the well-being of such species and that the
prohibition must be applied to protect such spe-
172
‘p , 1 eci ’€ta y’s finding and publication
may be made without regard to the public hear.
ing or comment provisions of aettion 553 of
Title 5 or any other provision of this chapter,
but such prohibition shall expire 90 days after
the date of its imposition unless the Secretary
further extends such prohibition by publishing
notice and a statement of justification of such
extension.
( Ii) Regulations
The Secretary is authorized to promulgate such
regulations as may be appropriate to carry out the
provisions of this section relating to financial assis-
tance to States.
(I) Appropriations
(1) To carry out the provisions of this section for
fiscal years after September 80, 1988, there shall be
deposited into a special fund known as the coopera-
tive endangered species conservation fund, to be
administered by the Secretary, an amount equal to 5
percent of the combined amounts covered each fis-
cal year into the Federal aid to wildlife restoration
fund under section 669b of this title, and paid,
transferred, or otherwise credited each fiscal year
to the Sport Fishing Restoration Account estab-
lished under 1016 of the Act of July 18, 1984.
(2) Amounts deposited into the special fund are
authorized to be appropriated annually and allocat-
ed in accordance with subsection (d) of this section.
(Pub.L 93—205, § 6, Dec. 28, 1973, 87 Stat. 889, Pub.L .
95—212, Dec. 19, 1977, 91 Stat. 1493; Pub L. 95—632, § 10,
Nov. 10, 1978, 92 Stat. 3762; Pub.L. 96—246, May 23, 1980,
94 Stat. 348; Pub.L. 97—304, § 3, 8(b), Oct. 13, 1982, 96
Stat. 1416, 1426; Pub.L 100—478, Title I, § 1005, Oct. 7,
1988, 102 Stat. 2307.)
Reference. In Test
Section 1016 of the Act of July 18, 1984, referred to in subsec (I).
probably means Pub L 98469. Div. A, Title X. I 1016, July 18.
1984,98 Stat. 1019, which enacted section 9504 of Title 26. internal
Revenue Code, amended section 9503 of Title 26, repealed secuon
18107 of Title 46, Shipping, and enacted provisions set out as a
note under section 9504 of Title 26.
CROSS REFERENCES
SELEC E1) O MEWVAL LAW STATUTES
Authorization of appropriations, see section 1542 of this title.
Citizen suit to compel Secretary to apply prohibitions with respect
to taking of any resident endangered or threatened species
within any State, see section 1540 of this title
Exception to prohibited acts, see section 1538 of this title.
Regulations on hunting and fishing of endangered and threatened
species on lands not within National Wildlife Refuge Sys-
tem, see section 668dd of this title.
Resident species of fish or wildlife, protectave regulations applica-
ble in any State which has entered into cooperative ape..
ment only to extent such regulations have also been adopted
by such State, see seebon 1533 of this title.
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173
ENDANGERED SPECIES
CODE OF FEDERAL REGULATIONS
Cooperation with states in conservation efforta, see 50 CFR 81.1 et
seq., 225.1 et seq.
LAW REVIEW COMMENTARIES
Georges bank—Common ground or continued battleground?
Donna R. Christie, 23 San Diego L Rev. 491 (1986).
The Fishery Conversation and Management Act The states’ role
in domestic and international fishery management. Leslie M.
MacRae, 88 Dick.L.Rev. 806 (1984).
LIBRARY REFERENCES
States 4.19.
CJ.S. States ft 1, 7.
United States Supreme Court
State imposed environmental regulation of mining operations on
national forest lands, see California Coastal Commission v. Granite
Rock Company, Cal.1987, 107 S.Ct. 1419.
§ 1536. Interagency cooperation (ESA
§71
(a) Federal agency actions and consultations
(I) The Secretary shall review other programs
administered by him and utilize such programs in
furtherance of the purposes of this chapter. All
other Federal agencies shall, in consultation with
and with the assistance of the Secretary, utilize
their authorities in furtherance of the purposes of
this chapter by carrying out programs for the con-
servation of endangered species and threatened spe-
cies listed pursuant to section 1533 of this title.
(2) Each Federal agency shall, in consultation
with and with the assistance of the Secretary, in.
sure that any action authorized, funded, or carried
out by such agency (hereinafter in this section re-
ferred to as an “agency action”) is not likely to
jeopardize the continued existence of any endan-
gered species or threatened species or result in the
destruction or adverse modification of habitat of
such species which is determined by the Secretary,
after consultation as appropriate with affected
States, to be critical, unless such agency has been
granted an exemption for such action by the Com-
mittee pursuant to subsection (h) of this section. In
fulfilling the requirements of this paragraph each
agency shall use the best scientific and commercial
data available.
(3) Subject to such guidelines as the Secretary
may establish, a Federal agency shall consult with
the Secretary on any prospective agency action at
the request of, and in cooperation with, the prospec.
tive permit or license applicant if the applicant has
reason to believe that an endangered species or a
threatened species may be present in the area a!.
16 § 1536
ESA 7
fected by his project and that implementation of
such action will likely affect such species.
(4) Each Federal agency shall confer with the
Secretary on any agency action which is likely to
jeopardize the continued existence of any species
proposed to be listed under section 1533 of this title
or result in the destruction or adverse modification
of critical habitat proposed to be designated for
such species. This paragraph does not require a
limitation on the commitment of resources as de-
scribed in subsection (d) of this section.
(b) Opinion of Secretary
(1)(A) Consultation under subsection (a)(2) of this
section with respect to any agency action shall be
concluded within the 90.day period beginning on the
date on which initiated or, subject to subparagraph
(B), within such other period of time as is mutually
agreeable to the Secretary and the Federal agency.
(B) In the case of an agency action involving a
permit or license applicant, the Secretary and the
Federal agency may not mutually agree to conclude
consultation within a period exceeding 90 days un-
less the Secretary, before the close of the 90th day
referred to in subparagraph (A)—
(i) if the consultation period proposed to be
agreed to will end before the 150th day after the
date on which consultation was initiated, submits
to the applicant a written statement setting
forth—
(I) the reasons why a longer period is re-
quired,
(II) the information that is required to com-
plete the consultation, and
(III) the estimated date on which consulta-
tion will be completed; or
(ii) if the consultation period proposed to be
agreed to will end 150 or more days after the date
on which consultation was initiated, obtains the
consent of the applicant to such period.
The Secretary and the Federal agency may mutual.
ly agree to extend a consultation period established
under the preceding sentence if the Secretary, be.
fore the close of such period, obtains the consent of
the applicant to the extension.
(2) Consultation under subsection (a)(3) of this
section shall be concluded within such period as is
agreeable to the Secretary, the Federal agency, and
the applicant concerned.
(3)(A) Promptly after conclusion of consultation
under paragraph (2) or (3) of subsection (a) of this -
section, the Secretary shall provide to the Federal
agency and the applicant, if any, a written state.
-------
16 § 1536
ESA *7
ment setting forth the Secretary’s opinion, and a
summary of the information on which the opinion is
based, detailing how the agency action affects the
species or its critical habitat. If jeopardy or ad-
verse modification is found, the Secretary shall sug-
gest those reasonable and prudent alternatives
which he believes would not violate subsection (a)(2)
of this section and can be taken by the Federal
agency or applicant in implementing the agency
action.
(B) Consultation under subsection (aX3) of this
section, and an opinion issued by the Secretary
incident to such consultation, regarding an agency
action shall be treated respectively as a consultation
under subsection (a)(2) of this section, and as an
opinion issued after consultation under such subsec-
tion, regarding that action if the Secretary reviews
the action before it is commenced by the Federal
agency and finds, and notifies such agency, that no
significant changes have been made with respect to
the action and that no significant change has oc-
curred regarding the information used during the
initial consultation.
(4) If after consultation under subsection (a)(2) of
this section, the Secretary concludes that—
(A) the agency action will not violate such sub-
section, or offers reasonable and prudent alterna-
tives which the Secretary believes would not vio-
late such subsection;
(B) the taking of an endangered species or a
threatened species incidental to the agency action
will not violate such subsection; and
(C) if an endangered species or threatened spe-
cies of a marine mammal is involved, the taking is
authorized pursuant to section 1371(a)(5) of this
title;
the Secretary shall provide the Federal agency and
the applicant concerned, if any, with a written state-
ment that—
Ci) specifies the impact of such incidental tak-
ing on the species,
( I I) specifies those reasonable and prudent
measures that the Secretary considers necessary
or appropriate to minimize such impact,
(Iii) in the case of marine mammals, specifies
those measures that are necessary to comply with
section 137 1(a)(5) of this title with regard to such
taking, and
(lv) sets forth the terms and conditions (includ-
ing, but not limited to, reporting requirements)
that must be complied with by the Federal agency
or applicant (if any), or both, to implement the
measures specified under clauses (ii) and (iii).
(c) BlologIca aueument
174
(1) To facilitate compliance with the require-
ments of subsection (a)(2) of this section, each Fed-
eral agency shall, with respect to any agency action
of such agency for which no contract for construe.
tion has been entered into and for which no con-
sti-uction has begun on November 10, 1978, request
of the Secretary information whether any species
which is listed or proposed to be listed may be
present in the area of such proposed action. If the
Secretary advises, based on the best scientific and -
commercial data available, that such species may be
present, such agency shall conduct a biological as-
sessment for the purpose of identifying any endan-
gered species or threatened species which is likely
to be affected by such action. Such assessment
shall be completed within 180 days after the date on
which initiated (or within such other period as is
mutually agreed to by the Secretary and such agen-
cy, except that if a permit or license applicant is
involved, the 180-day period may not be extended
unless such agency provides the applicant, before
the close of such period, with a wi-itten statement
setting forth the estimated length of the proposed
extension and the reasons therefor) and, before any
contract for construction is entered into and before
construction is begun with respect to such action.
Such assessment may be undertaken as part of a
Federal agency’s compliance with the requirements
of section 102 of the National Environmental Policy
Act of 1969 (42 U.S.C. 4332).
(2) Any person who may wish to apply for an
exemption under subsection (g) of this section for
that action may conduct a biological assessment to
identify any endangered species or threatened spe-
cies which is likely to be affected by such action.
Any such biological assessment must, however, be
conducted in cooperation with the Secretary and
under the supervision of the appropriate Federal
agency.
(4) LimItation on commitment or resources
After initiation of consultation required under
subsection (aX2) of this section, the Federal agency
and the permit or license applicant shall not make
any irreversible or irretrievable commitment of re-
sources with respect to the agency action which has
the effect of foreclosing the formulation or imple-
mentation of any reasonable and prudent alterna-
tive measures which would not violate subsection
(aX2) of this section.
SELECTED ENVIRONMENTAL LAW STATUTES
-------
(e) Endangered Species Committee
(I) There is established a committee to be known
as the Endangered Species Committee (hereinafter
in this section referred to as the “Committee”).
(2) The Committee shall review any application
submitted to it pursuant to this section and deter.
mine in accordance with subsection (h) of this sec-
tion whether or not to grant an exemption from the
requirements of subsection (a)(2) of this section for
the action set forth in such application.
(3) The Committee shall be composed of seven
members as follows:
(A) The Secretary of Agriculture.
(B) The Secretary of the Army.
(C) The Chairman of the Council of Economic
Advisors.
(D) The Administrator of the Environmental
Protection Agency.
(E) The Secretary of the Interior.
(F) The Administrator of the National Oceanic
and Atmospheric Administration.
(G) The President., after consideration of any
recommendations received pursuant to subsection
• (g)(2)(B) of this section shall appoint one individu-
al from each affected State, as determined by the
Secretary, to be a member of the Committee for
the consideration of the application for exemption
for an agency action with respect to which such
recommendations are made, not later than 30
days after an application is submitted pursuant to
this section.
(4)(A) Members of the Committee shall receive
no additional pay on account of their service on the
Committee.
(B) While away from their homes or regular
places of business in the performance of services
for the Committee, members of the Committee shall
be allowed travel expenses, including per diem in
lieu of subsistence, in the same manner as persons
employed intermittently in the Government service
are allowed expenses under section 5703 of Title 5.
(5)(A) Five members of the Committee or their
representatives shall constitute a quorum for the
transaction of any function of the Committee, ex-
cept that, in no case shall any representative be
considered in determining the existence of a quorum
for the transaction of any function of the Commit-
tee if that function involves a vote by the Commit-
tee on any matter before the Committee.
(B) The Secretary of the Interior shall be the
Chairman of the Committee.
16 § 1536
ESA 17
(C) The Committee shall meet at the call of the
Chairman or five of its members.
(D) All meetings and records of the Committee
shall be open to the public.
(6) Upon request of the Committee, the head of
any Federal agency is authorized to detail, on a
nonreimbursable basis, any of the personnel of such
agency to the Committee to assist it in carrying out
its duties under this section.
(7)(A) The Committee may for the purpose of
carrying out its duties under this section hold such
hearings, sit and act at such times and places, take
such testimony, and receive such evidence, as the
Committee deems advisable. -
(B) When so authorized by the Committee, any
member or agent of the Committee may take any
action which the Committee is authorized to take by
this paragraph.
(C) Subject to the Privacy Act (5 U.S.C.A.
§ 552a], the Committee may secure directly from
any Federal agency information necessary to enable
it to carry out its duties under this section. Upon
request of the Chairman of the Committee, the head
of such Federal agency shall furnish such informa-
tion to the Committee.
(D) The Committee may use the United States
mails in the same manner and upon the same condi-
tions as a Federal agency.
(E) The Administrator of General Services shall
provide to the Committee on a reimbursable basis
such administrative support services as the Commit-
tee may request
(8) In carrying out its duties under this section,
the Committee may promulgate and amend such
rules, regulations, and procedures, and issue and
amend such orders as it deems necessary.
(9) For the purpose of obtaining information nec-
essary for the consideration of an application for an
exemption under this section the Committee may
issue subpenas for the attendance and testimony of
withesses and the production of relevant papers,
books, and documents.
(10) In no case shall any representative, including
a representative of a member designated pursuant
to paragraph (3XG) of this subsection, be eligible to
cast a vote on behalf of any member.
(f) Promulgation or regulations; form and contents of
exemption application
Not later than 90 days after November 10, 1978,
the Secretary shall promulgate regulations which
set forth the form and manner in which applications
175 ENDANGERED SPECIES
-------
16 § 1536
EU IT
for exemption shall be submitted to the Secretary
and the information to be contained in such applica-
tions. Such regulations shall require that informa-
tion submitted in an application by the head of any
Federal agency with respect to any agency action
include, but not be limited to—
(1) a description of the consultation process
carried out pursuant to subsection (aX2) of this
section between the head of the Federal agency
and the Secretary; and -
(2) a statement describing why such action can-
not be altered or modified to conform with the
requirements of subsection (aX2) of this section.
(g) Application for ezemption; report to Committee
(1) A Federal agency, the Governor of the State
in which an agency action will occur, if any 1 or a
permit or license applicant may apply to the Secre-
tary for an exemption for an agency action of such
agency if, after consultation under subsection (aX2)
of this section, the Secretary’s opinion under subsec-
tion (b) of this section indicates that the agency
action would violate subsection (aX2) of this section.
An application for an exemption shall be considered
initially by the Secretary in the manner provided for
in this subsection, and shall be considered by the
Committee for a final determination under subsec-
tion (h) of this section after a report is made pursu-
ant to paragraph (5). The applicant for an exemp-
tion shall be referred to as the “exemption appli-
cant” in this section.
(2)(A) An exemption applicant shall submit a
written application to the Secretary, in a form pre-
scribed under subsection (f) of this section, not later
than 90 days after the completion of the consulta-
tion process; except that, in the case of any agency
action involving a permit or license applicant, such
application shall be submitted not later than 90 days
after the date on which the Federal agency con-
cerned takes final agency action with respect to the
issuance of the permit or license. For purposes of
the preceding sentence, the term “final agency ac-
tion” means (i) a disposition by an agency with
respect to the issuance of a permit or license that is
subject to administrative review, whether or not
such disposition is subject to judicial review; or (ii)
if administrative review is sought with respect to
sucb disposition, the decision resulting after such
review. Such application shall set forth the reasons
why the exemption applicant considers that the
agency action meets the requirements for an exemp-
tion under this subsection.
(B) Upon receipt of an application for exemption
for an agency action under paragraph (1), the Secre-
176
tary shall promptly (1) notify the Governor of each
affected State. if any, as determined by the Secre-
tary, and request the Governors so notified to rec-
ommend individuals to be appointed to the Endan-
gered Species Committee for consideration of such
application; and (ii) publish notice of receipt of the
application in the Federal Register, including a sum-
mary of the information contained in the application
and a description of the agency action with respect
to which the application for exemption has been
filed.
(3) The Secretary shall within 20 days after the
receipt of an application for exemption, or within
such other period of time as is mutually agreeable
to the exemption applicant and the Secretary—
(A) determine that the Federal agency con-
cerned and the exemption applicant have—
(I) carried out the consultation responsibili-
ties described in subsection (a) of this section in
good faith and made a reasonable and responsi-
ble effort to develop and fairly consider modifi-
cations or reasonable and prudent alternatives
to the proposed agency action which would not
violate subsection (a)(2) of this section;
(I I) conducted any biological assessment re-
quired by subsection (c) of this section; and
(iii) to the extent determinable Within the
time provided herein, refrained from making
any irreversible or irretrievable commitment of
resources prohibited by subsection (d) of this
section; or
(B) deny the application for exemption because
the Federal agency concerned or the exemption
applicant have not met the requirements set forth
in subparagraph (AXi), (ii), and (lii).
The denial of an application under subparagraph (B)
shall be considered final agency action for purposes
of chapter 7 of Title 5.
(4) If the Secretary determines that the Federal
agency concerned and the exemption applicant have
met the requirements set forth in paragraph
(3XAXI), (ii), and (iii) he shall, in consultation with
the Members of the Committee, hold a hearing on
the application for exemption in accordance with
sections 554, 555, and 556 (other than subsection
(bXl) and (2) thereof) of Title 5 and prepare the
report to be submitted pursuant to paragraph (5).
(5) Within 140 days after making the determina-
tions under paragraph (3) or within such other peri-
od of time as is mutually agreeable to the exemp-
tion applicant and the Secretary, the Secretary shall
submit to the Committee a report discussing—
SELECTED ENVIRONMENTAL LAW STATUTES
-------
(A) the availability of reasonable and prudent
alternatives to the agency action, and the nature
and extent of the benefits of the agency action
and of alternative courses of action consistent
with conserving the species or the critical habitat;
(B) a summary of the evidence concerning
whether or not the agency action is in the public
interest and is of national or regional significance;
(C) appropriate reasonable mitigation and en-
hancement measures which should be considered
by the Committee; and
(D) whether the Federal agency concerned and
the exemption applicant refrained from making
any irreversible or irretrievable commitment of
resources prohibited by subsection (d) of this sec-
tion.
(6) To the extent practicable within the time re-
quired for action under subsection (g) of this sec-
tion, and except to the extent inconsistent with the
requirements of this section, the consideration of
any application for an exemption under this section
and the conduct of any hearing under this subsec.
tion shall be in accordance with sections 554, 555,
and 556 (other than subsection (b)(3) of section 556)
of Title 5.
(7) Upon request of the Secretary, the head of
any Federal agency is authorized to detail, on a
nonreimbursable basis, any of the personnel of such
agency to the Secretary to assist him in carrying
out his duties under this section.
(8) All meetings and records resulting from activ-
ities pursuant to this subsection shall be open to the
public.
(h) Grant of exemption
(1) The Committee shall make a final determina-
tion whether or not to grant an exemption within 30
days after receiving the report of the Secretary
pursuant to subsection (g)(5) of this section. The
Committee shall grant an exemption from the re-
quirements of subsection (a)(2) of this section for an
agency action if, by a vote of not less than five of
its members voting in person—
(A) it determines on the record, based on the
report of the Secretary, the record of the hearing
held under subsection (g)(4) of this section and on
such other testimony or evidence as it may re-
ceive, that—
(1) there are no reasonable and prudent alter-
natives to the agency action;
(LI) the benefits of such action clearly out-
weigh the benefits of alternative courses of
action consistent with conserving the species or
8s&En Law S -8
16 §1536
ESA $7
its critical habitat, and such action is in the
public interest;
(I II) the action is of regional or national sig-
nificance; and
(Lv) neither the Federal agency concerned
nor the exemption applicant made any irrevers-
ible or irretrievable commitment of resources
prohibited by subsection (d) of this section; and
(B) it establishes such reasonable mitigation
and enhancement measures, including, but not
limited to, live propagation, transplantation, and
habitat acquisition and improvement, as are nec-
essary and appropriate to minimize the adverse
effects of the agency action upon the endangered
species, threatened species, or critical habitat con-
cerned.
Any final determination by the Committee under
this subsection shall be considered final agency
action for purposes of chapter 7 of Title 5.
(2)(A) Except as provided in subparagraph (B),
an exemption for an agency action granted under
paragraph (1) shall constitute a permanent exemp-
tion with respect to all endangered or threatened
species for the purposes of completing such agency
action—
(I) regardless whether the species was identi-
fied in the biological assessment; and
(LI) only if a biological assessment has been
conducted under subsection (c) of this section with
respect to such agency action.
(B) An exemption shall be permanent under sub.
paragraph (A) unless—
(I) the Secretary finds, based on the best scien-
tific and commercial data available, that such
exemption would result in the extinction of a
species that was not the subject of consultation
under subsection (a)(2) of this section or was not
identified in any biological assessment conducted
under subsection (c) of this section, and
(II) the Committee determines within 60 days
after the date of the Secretary’s finding that the
exemption should not be permanent.
If the Secretary makes a finding described in clause
(I), the Committee shall meet with respect to the
matter Within 30 days after the date of the finding.
(I) Review by Secretary of State; violation of intertia-
tional treaty or other international obligation of
United Statee
Notwithstanding any other provision of this chap-
ter, the Committee shall be prohibited from consid-
ezing for exemption any application made to it, if
the Secretary of State, after a review of the pro-
posed agency action and its potential implications,
177 ENDANGERED SPECIES
-------
-.-
16 § 1536
ESA I?
and after hearing, certifies, in writing, to the Com-
mittee within 60 days of any application made under
this section that the granting of any such exemption
and the carrying out of such action would be in
violation of an international treaty obligation or
other international obligation of the United States.
The Secretary of State shall, at the time of such
certification, publish a copy thereof in the Federal
Register.
Ci) Exemption for national security reasons
Notwithstanding any other provision of this chap-
ter, the Committee shall grant an exemption for any
agency action if the Secretary of Defense finds that
such exemption is necessary for reasons of national
security.
(k) Exemption decision not considered major Federal
action; environmental impact statement
An exemption decision by the Committee under
this section shall not be a major Federal action for
purposes of the National Environmental Policy Act
of 1969 (42 U.S.C.A. § 4321 et seq.]: Provided, That
an environmental impact statement which discusses
the impacts upon endangered species or threatened
species or their critical habitats shall have been
previously prepared with respect to any agency
action exempted by such order.
(I) Committee order granting exemption; coat of miti-
gation and enhancement measures; report by appli.
cant to Council on Environmental Quality
(1) If the Committee determines under subsection
(h) of this section that an exemption should be
granted with respect to any agency action, the
Committee shall issue an order granting the exemp-
tion and specifying the mitigation and enhancement
measures established pursuant to subsection (h) of
this section which shall be carried out and paid for
by the exemption applicant in implementing the
agency action. All necessary mitigation and en-
hancement measures shall be authorized prior to the
implementing of the agency action and funded con-
currently with all other project features.
(2) The applicant receiving such exemption shall
include- the costs of such mitigation and enhance-
ment measures within the overall costs of continu-
ing the proposed action. Notwithstanding the pre-
ceding sentence the costs of such measures shall
not be treated as project costs for the purpose of
computing benefit cost or other ratios for the pro-
posed action. Any applicant may request the Secre-
tary to carry out such mitigation and enhancement
measures. The costs incurred by the Secretary in
carrying out any such measures shall be paid by the
applicant receiving the exemption. No later than
178
one year after the granting of an exemption, the
exemption applicant shall submit to the Council on
Environmental Quality a report describing its com-
pliance with the mitigation and enhancement mea-
sures prescribed by this section. Such a report
shall be submitted annually until all such mitigation
and enhancement measures have been completed.
Notice of the public availability of such reports shall
be published in the Federal Register by the Council
on Environmental Quality.
(m) Notice requirement for citizen suita not applicable
The 60-day notice requirement of section 1540(g)
of this title shall not apply with respect to review of
any final determination of the Committee under
subsection (h) of this section granting an exemption
from the requirements of subsection (a)(2) of this
section.
(n) Judicial review
Any person, as defined by section 1532(18) of this
title, may obtain judicial review, under chapter 7 of
Title 6 of any decision of the Endangered Species
Committee under subsection (h) of this section in
the United States Court of Appeals for (1) any
circuit wherein the agency action concerned will be,
or is being, carried out, or (2) in any case in which
the agency action will be, or is being, carried out
outside of any circuit, the District of Columbia, by
filing in such court within 90 days after the date of
issuance of the decision, a written petition for re-
view. A copy of such petition shall be transmitted
by the clerk of the court to the Committee and the
Committee shall file in the court the record in the
proceeding, as provided in section 2112, of Title 28.
Attorneys designated by the Endangered Species
Committee may appear for, and represent the Com-
mittee in any action for review under this subsec-
tion.
(0) Exemption as providing exception on taking of en-
dangered species -
Notwithstanding sections 1533(d) and
1538(a)(1)(B) and (C) of this title, sections 1371 and
1372 of this title, or any regulation promulgated to
implement any such section—
(1) any action for which an exemption is grant-
ed under subsection (h) of this section shall not be
considered to be a taking of any endangered
species or threatened species with respect to any
activity which is necessary to carry out such
action; and
(2) any taking that is in compliance with the
terms and conditions specified in a written state-
ment provided under subsection (b)(4)(iv) of this
SELECTED ENVIRONMENTAL LAW STATUTES
-------
section shall not be considered to be a prohibited
taking of the species concerned.
(p) Exemptions in Presidentially declared disaster areas
In any area which has been declared by the
President to be a major disaster area under the
Disaster Relief and Emergency Assistance Act (42
U.S.C.A. § 5121 et seq.], the President is authorized
to make the determinations required by subsections
(g) and (h) of this section for any project for the
repair or replacement of a public facility substan-
tially as it existed prior to the disaster under section
405 or 406 of the Disaster Relief and Emergency
Assistance Act [ 42 U.S.C.A. § 5171 or 5172], and
which the President determines (1) is necessary to
prevent the recurrence of such a natural disaster
and to reduce the potential loss of human life, and
(2) to involve an emergency situation which does not
allow the ordinary procedures of this section to be
followed. Notwithstanding any other provision of
this section, the Committee shall accept the determi-
nations of the President under this subsection.
(Pub.L 93—205, § 7, Dec. 28, 1913, 87 Stat 892; Pub.L
95-632, § 3, Nov. 10, 1978, 92 Stat 3752; Pub.L 96—159,
§ 4, Dec. 28, 1979, 93 Stat. 1226; Pub.L. 97—304, § 4(a),
8(b), Oct 13, 1982, 96 Stat. 1417, 1426; Pub.L. 99—659,
Title IV, § 411(b), (C), Nov. 14, 1986, 100 Stat. 3742;
Pub.L 100—707, Titie I, § 109(g), Nov. 23, 1988, 102 Stat
4709.)
16 § 1537
ESA 8
West’s Federal Form.
Enforcement and review of decisions and orders of administrative
agencies, see 851 et seq.
CODE OF FEDERAL REGULATIONS
Critical habitats, see 50 CFR 17.94 et seq.
LAW REVIEW COMMENTARIES -
Effectiveness of judicial review under the 1979 Amendment to
the Endangered Species Act 7 J.Energy L. & Pol’y 145 (1986).
Protecting Public Values In the Platte River. Eric Pearson and
J. David Aiken 20 Creighton LRev. 361 (1986—1987).
Warrior and the Druid—the DOD and environmental law. Mi.
chael Donnelly and James G. Van Ness, 33 Fed Bar News 37
(1986).
§ 1537. International cooperation (ESA
§ 8]
(a) Financial assistance
As a demonstration of the commitment of the
United States to the worldwide protection of endan-
gered species and threatened species, the President
may, subject to the provisions of section 1306 of
Title 31, use foreign currencies accruing to the
United States Government under the Agricultural
Trade Development and Assistance Act of 1954 [ 7
U.S.C.A. § 1691 et seq.] or any other law to provide
to any foreign country (with its onsent) assistance
in the development and management of programs in
that country which the Secretary determines to be
necessary or useful for the conservation of any
endangered species or threatened species listed by
the Secretary pursuant to section 1533 of this title.
The President shall provide assistance (which in-
cludes, but is not limited to, the acquisition, by lease
or otherwise, of lands, waters, or interests therein)
to foreign countries under this section under such
terms and conditions as he deems appropriate.
Whenever foreign currencies are available for the
provision of assistance under this section, such cur’
rencies shall be used in preference to funds appro-
priated under the authority of section 1542 of this
title.
(b) Encouragement of foreign program.
In order to carry out further the provisions of this
chapter, the Secretary, through the Secretary of
State, shall encourage—
(1) foreign countries to provide for the conser-
vation of fish or wildlife and plants including
endangered species and threatened species listed
pursuant to section 1533 of this title;
(2) the entering into of bilateral or multilateral
agreements with foreign countries to provide for
such conservation; and
(3) foreign persona who directly or indirectly
take fish or wildlife or plants in foreign countries
179 ENDANGERED SPECIES
Reference. In Text
The Privacy Act, referred to in aubsec. (e)(7XC), I. Pub L. 93-579,
Dec. 31, 1914, 88 S Lat. 1896, as amended, which enacted section
552a of Title 5, Government Orgsniration and Employees, and
provisions set out as notes under section 552s of Title 5. For
complete classification of this Act to the Code, see Short Title note
set out under section 552a of Title 5 and Tables volume.
The National Environmental Policy Act of 1969, referred to in
subsec. (k), is Pub.L. 91—190, Jan. 1, 1970, 83 Stat. 852, as amended.
which i. classified generally to chapter 55 (section 4321 et seq.) of
Title 42, The Public Health and Welfare. Section 102 of the
National Environmental Policy Act of 1969, referred to in subsec.
(eXi), is classified to secuon 4332 of Title 42. For complete
classification of this Act to the Code, see Short Title note set out
wider section 4321 of Title 42 and Tables Volume.
The Disaster Relief and Emergency Assistance Act (redesignat-
ed “The Robert T. Stafford Disaster Relief and Emergency Assis
lance Act” by Pub.L 93-288, 1, as amended by 100-707,
•102(a)), referred to in subsec. (p), is Pub.L 93-288, May 22, 1974,
88 Stat. 143, as amended, which is classified principally to chapter
68 (section 5121 et seq.) of Title 42, The Public Health and Welfare.
Secton. 405 and 406 of the Disaster and Emergency Assistance
Act are classified to sections 5171 and 5172 of Title 42. For
complete classification of this Act to the Code, see Short Title note
set out wider section 5121 of Title 42 and Tables volume.
CROSS REFERENCES
Authorization of appropriations, see section 1542 of this title.
Experimental populations, exception, see section 1539 of this title.
“Permit or license applicant” defined when used with respect to an
action of a Federal agency for which an exemption I. sought
tinder this section, see section 1532 of this title.
-------
16 1537
ESA II
or on the high seas for importation into the Unit-
ed States for commercial or other purposes to
develop and carry out with such assistance as he
may provide, conservation practices designed to
enhance such fish or wildlife or plants and their
habitat.
(e) Personnel
After consultation with the Secretary of State,
the Secretary may—
(1) assign or otherwise make available any offi-
cer or employee of his department for the purpose
of cooperating with foreign countries and interna-
tional organizations in developing personnel re-
sources and programs which promote the conser-
vation of fish or wildlife or plants; and
(2) conduct or provide financial assistance for
the educational training of foreign personnel, in
this country or abroad, in fish, wildlife, or plant
management, research and law enforcement and
to render professional assistance abroad in such
matters.
(d) Investigations
After consultation with the Secretary of State and
the Secretary of the Treasury, as appropriate, the
Secretary may conduct or cause to be conducted
such law enforcement investigations and research
abroad as he deems necessary to carry out the
purposes of this chapter.
(Pub.L. 93—205, § 8, Dec. 28, 1973, 87 Stat. 892; Pub.L
96—159, § 5, Dec. 28, 1979, 93 Stat. 1228.)
Referencri In Text
The Agricultural Trade Development and Assistance Act of
1954. referred to in subsec. (a), is Act July 10, 1954, c. 469, 68 Stat.
454, as amended, which is classified generally to chapter 41 (see-
don 1691 et seq) of Title 7. Agriculture For complete classifies-
don of this Act to the Code, see Short Title note set out under
section 1691 of Title 7 and Tables volume.
CodificatIon
In subsec. (a), “section 1306 of Title 31” was substituted for
“section 1415 of the Supplemental Appropriation Act. 1953 (81
U.S.C. 724)” on authority of Pub.L 97—258, I 4(b), Sept. 13. 1982,
96 Stat. 1067, the first section of which enacted Title 31, Money
and Finance.
180
bilateral and multilateral treaties with such countries topro e
such species of sea turtles;
“(3) encourage such other agreements to promote the par.
poses of this section with other nationi for the protection of
specific ocean and land regions which are of special significance
to the health and stability of such species of sea turtles;
“(4) initiate the amendmentjf any existing international trea-
ty for the protection and conservation of such species of sea
turtles to which the United States is a party in order to make
such treaty consistent with the purposes and policies of this
section; and
“(5) provide to the Congress by not later than one year after
the date of enactment of this section (Nov. 21, 1989]
“(A) a list of each nation which conducts commercial shrimp
fishing operations within the geographic range of distribution
of auch sea turtles;
“(B) a list of each nation which conducts commercial shrimp
fishing operations which may affect adversely such species of
sea turtles; and
“(C) a full report on—
“(I) the results of his efforts under this section; and
“(I I) the status of measures taken by each nation listed
pursuant to paragraph (A) or (B) to protect and conserve such
sea turtlea.
“(bXl) In genersl.—The importation of shrimp or products from
shrimp which have been harvested with commercial fishing tech.
nology which may affect adversely such species of sea turtles shall
be prohibited not later than May 1, 1991, except as provided in
paragraph (2).
“(2) CertifIcation procedure.—The ban on importation of
shrimp or products from shrimp pursuant to paragraph (1) shall
not apply if the President shall determine and certify to the
Congress not later than May 1, 1991, and annually thereafter
that-
§ 1537a. Convention Implementation
[ ESA § SAl
(a) Management Authority and ScIentific Authority
The Secretary of the Interior (hereinafter in this
section referred to as the “Secretary”) is designated
as the Management Authority and the Scientific
Authority for purposes of the Convention and the
respective functions of each such Authority shall be
carried out through the United States Fish and
Wildlife Service.
(b) Management Authority functions
The Secretary shall do all things necessary and
appropriate to carry out the functions of the Man-
agement Authority under the Convention.
SELECTED ENVIRONMENTAL LAW STATUTES
“(A) the government of the harvesting nation has provided
documentary evidence of the adoption of a regulatory program
governing the incidental taking of such sea turtles in the course
of such harvesting that is comparable to that of the United
States; and
“(B) the average rate of that incidental taking by the vessels
of the harvesting nation is comparable to the average rate of.
incidental taking of sea turtles by United States vessels in the
course of such harvesting; or
“(C) the particular fishing environment of the harvesting na-
tion does not pose a threat of the incidental taking of such sea
turtles in the course of such harvesting.”
Conservation of Sea Turtles; Importation of Shrimp
Pub L 101—162, Title VI, 609, Nov. 21, 1989, 103 Stat. 1037,
provided that:
“(a) The Secretary of State, in consultation with the Secretary
of Commerce, shall, with respect to those species of sea turtles the
conservation of which is the subject of regulations promulgated by
the Secretary of Commerce on June 29, 1987—
“II) initiate negotiations as soon as possible for the develop.
ment of bilateral or multilateral agreements with other nations
for the protection and conservation of such species of sea turtles;
“(2) initiate negotiations as soon as possible with all foreign
governments which are engaged in, or which have persons or
companies engaged in, commercial fishing operations which, as
determined by the Secretary of Commerce, may affect adversely
such species of sea turtles, for the purpose of entering into
-------
181
(e) Scientific Authority functions; determinations
(1) The Secretary shall do all things necessary
and appropriate to carry out the functions of the
Scientific Authority under the Convention.
(2) The Secretary shall base the determinations
and advice given by him under Article IV of the
Convention with respect to wildlife upon the best
available biological information derived from profes.
sionally accepted wildlife management practices;
but is not required to make, or require any State to
make, estimates of population size in making such
determinations or giving such advice.
(d) Reservations by the United States under Convention
If the United States votes against including any
species in Appendix I or II of the Convention and
does not enter a reservation pursuant to paragraph
(3) of Article XV of the Convention with respect to
that species, the Secretary of State, before the 90th
day after the last day on which such a reservation
could be entered, shall submit to the Committee on
Merchant Marine and Fisheries of the House of
Representatives, and to the Committee on the Envi-
ronment and Public Works of the Senate, a written
report setting forth the reasons why such a reserva-
tion was not entered.
(e) Wildlife Preservation in Western Hemisphere
(1) The Secretary of the Interior (hereinafter in
this subsection referred to as the “Secretary”), in
cooperation with the Secretary of State, shall act on
behalf of, and represent, the United States in all
regards as required by the Convention on Nature
Protection and Wildlife Preservation in the Western
Hemisphere (56 Stat. 1354, T.S. 982, hereinafter in
this subsection referred to as the “Western Conven-
tion”). In the discharge of these responsibilities,
the Secretary and the Secretary of State shall con-
sult with the Secretary of Agriculture, the Secre-
tary of Commerce, and the heads of other agencies
with respect to matters relating to or affecting their
areas of responsibility.
(2) The Secretary and the Secretary of State
shall, in cooperation with the contracting parties to
the Western Convention and, to the extent feasible
and appropriate, with the participation of State
agencies, take such steps as are necessary to imple-
ment the Western Convention. Such steps shall
include, but not be limited to—
(A) cooperation with contracting parties and
international organizations for the purpose of de-
veloping personnel resources and programs that
will facilitate implementation of the Western Con-
vention;
16 § 1538
ESA 9
(B) identification of those species of birds that
migrate between the United States and other
contracting parties, and the habitats upon which
those species depend, and the implementation of
cooperative measures to ensure that such species
will not become endangered or threatened; and
(C) identification of measures that are neces-
sary and appropriate to implement those provi-
sions of the Western Convention which address
the protection of wild plants.
(3) No later than September 30, 1985, the Secre-
tary and the Secretary of State shall submit a
report to Congress describing those steps taken in
accordance with the requirements of this subsection
and identifying the principal remaining actions yet
necessary for comprehensive and effective imple-
mentation of the Western Convention.
(4) The provisions of this subsection shall not be
construed as affecting the authority, jurisdiction, or
responsibility of the several States to manage, con-
trol, or regulate resident fish or wildlife under State
law or regulations.
(Pub.L. 93—205, § 8A, as added Pub.L. 96—159, § 6(aXl),
Dec. 28, 1979, 93 Stat. 1228, and amended Pub.L. 97—304,
• 5, Oct. 13, 1982, 96 Stat. 1421.)
CROSS REFERENCES
Authorization of appropriations, see section 1542 of this title.
CODE OF FEDERAL REGULATIONS
Endangered species convention, see 50 CFR 23.1 et seq.
§ 1538. Prohibited acts [ ESA § 9]
(a) Generally
(1) Except as provided in sections 1535(g)(2) and
1539 of this title, with respect to any endangered
species of fish or wildlife listed pursuant to section
1533 of this title it is unlawful for any person
subject to the jurisdiction of the United States to—
(A) import any such species into, or export any
such species from the United States;
(B) take any such species within the United
States or the territorial sea of the United States;
(C) take any such species upon the high seas;
(D) possess, sell, deliver, carry, transport, or
ship, by any means whatsoever, any such species
taken in violation of subparagraphs (B) and (C);
(E) deliver, receive, carry, transport, or ship in
interstate or foreign commerce, by any means
whatsoever and in the course of a commercial
activity, any such species;
(F) sell or offer for sale in interstate or foreign
commerce any such species; or
ENDANGERED SPECIES
-------
16 § 1538
ESA 19
(G) violate any regulation pertaining to such
species or to any threatened species of fish or
wildlife listed pursuant to section 1533 of this title
and promulgated by the Secretary pursuant to
authority provided by this chapter.
(2) Except as provided in sections 1535(g)(2) and
1539 of this title, with respect to any endangered
species of plants listed pursuant to section 1533 of
this title, it is unlawful for any person subject to the
jurisdiction of the United States to—
(A) import any such species into, or export any
such species from, the United States;
(B) remove and reduce to possession any such
species from areas under Federal jurisdiction;
maliciously damage or destroy any such species
on any such area; or remove, cut, dig up, or
damage or destroy any such species on any other
area in knowing violation of any law or regulation
of any State or in the course of any violation of a
State criminal trespass law;
(C) deliver, receive, carry, transport, or ship in
interstate or foreign commerce, by any means
whatsoever and in the course of a commercial
activity, any such species;
(D) sell or offer for sale in interstate or for-
eign commerce any such species; or
(E) violate any regulation pertaining to such
species or to any threatened species of plants
listed pursuant to section 1533 of this title and
promulgated by the Secretary pursuant to author-
ity provided by this chapter.
(b) Specie. held in captivity or controlled environment
(1) The provisions of subsections (aXl)(A) and
(a)(1)(G) of this section shall not apply to any fish or
wildlife which was held in captivity or in a con-
trolled environment on (A) December 28, 1973, or
(B) the date of the publication in the Federal Regis-
ter of a final regulation adding such fish or wildlife
species to any list published pursuant to subsection
(C) of section 1533 of this title: Provided That such
holding and any subsequent holding or use of the
fish or wildlife was not in the course of a commer-
cial activity. With respect to any act prohibited by
subsections (aX1XA) and (a)(1)(G) of this section
which occurs after a period of 180 days from Ci)
December 28, 1973, or (ii) the date of publication in
the Federal Register of a final regulation adding
such fish or wildlife species to any list published
pursuant to subsection (c) of section 1533 of this
title, there shall be a rebuttable presumption that
the fish or wildlife involved in such act is not
entitled to the exemption contained in this subsec-
tion.
182
(2)(A) The provisions of subsection (aXi) of this
section shall not apply to—
( I) any raptor legally held In captivity or in a
controlled environment on November 10, 1978; or
(II) any progeny of any raptor described in
clause Ci);
until such time as any such raptor or progeny 18
intentionally returned to a wild state.
(B) Any person holding any raptor or progeny
described in subparagraph (A) must be able to dem-
onstrate that the raptor or progeny does, in fact,
qualify under the provisions of this paragraph; and
shall maintain and submit to the Secretary, on re-
quest, such inventories, documentation, and records
as the Secretary may by regulation require as being
reasonably appropriate to carry out the purposes of
this paragraph. Such requirements shall not unnec-
essarily duplicate the requirements of other rules
and regulations promulgated by the Secretary.
Cc) Violation of Convention
(1) It is unlawful for any person subject to the
jurisdiction of the United States to engage in any
trade in any specimens contrary to the provisions of
the Convention, or to possess any specimens traded
contrary to the provisions of the Convention, includ-
ing the definitions of terms in Article I thereof.
(2) Any importation into the United States of fish
or wildlife shall, if—
(A) such fish or wildlife is not an endangered
species listed pursuant to section 1533 of this title
but is listed in Appendix II to the Convention,
(B) the taking and exportation of such fish or
wildlife is not contrary to the provisions of the
Convention and all other applicable requirements
of the Convention have been satisfied,
(C) the applicable requirements of subsections
Cd), (e), and (f) of this section have been satisfied,
and
(D) such importation is not made in the course
of a commercial activity,
be presumed to be an importation not in violation of
any provision of this chapter or any regulation
issued pursuant to this chapter.
(d) Import. and exports
(1) In general.—It is unlawful for any person,
without first having obtained permission from the
Secretary, to engage in business—
(A) as an importer or exporter of fish or
wildlife (other than shellfish and fishery prod-
ucts which (i) are not listed pursuant to section
1533 of this title as endangered species or
threatened species, and (ii) are imported for
SELECTED ENVIRONMENTAL LAW STATUTES
-------
purposes of human or animal consumption or
taken in waters under the jurisdiction of the
United States or on the high seas for recre-
ational purposes) or plants; or
(B) as an importer or exporter of any
amount of raw or worked African elephant
ivory.
(2) Requlrementa.—Any person required to ob-
tain permission under paragraph (1) of this sub-
section shall—
(A) keep such records as will fully and cor-
rectly disclose each importation or exportation
of fish, wildlife, plants, or African elephant
ivory made by him and the subsequent disposi-
tion made by him with respect to such fish,
wildlife, plants, or ivory;
(B) at all reasonable times upon notice by a
duly authorized representative of the Secretary,
afford such representative access to his place
of business, an opportunity to examine his in.
ventory of imported fish, wildlife, plants, or
African elephant ivory and the records required
to be kept under subparagraph (A) of this para-
graph, and to copy such records; and
(C) file such reports as the Secretary may
require.
(3) Regulatlons.—The Secretary shall pre-
scribe such regulations as are necessary and ap-
propriate to carry out the purposes of this subsec.
tion.
(4) RestrIction on consideration of value or
amount of African elephant Ivory Imported or
exported.—In granting permission under this
subsection for importation or exportation of Afri-
can elephant ivory, the Secretary shall not vary
the requirements for obtaining such permission
on the basis of the value or amount of ivory
imported or exported under such permission.
Ce) Reports
it is unlawful for any person importing or export-
ing fish or wildlife (other than shellfish and fishery
products which (1) are not listed pursuant to section
1533 of this title as endangered or threatened spe-
cies, and (2) are imported for purposes of human or
animal consumption or taken in waters under the
jurisdiction of the United States or on the high seas
for recreational purposes) or plants to fail to file
any declaration or report as the Secretary deems
necessary to facilitate enforcement of this chapter
or to meet the obligations of the Convention.
(f) Designation of ports
(1) It is unlawful for any person subject to the
jurisdiction of the United States to import into or
16 §1538
ESA 19
export from the United States any fish or wildlife
(other than shellfish and fishery products which (A)
are not listed pursuant to section 1533 of this title
as endangered species or threatened species, and (B)
are imported for purposes of human or animal con-
sumption or taken in waters under the jurisdiction
of the United States or on the high seas for recre-
ational purposes) or plants, except at a port or ports
designated by the Secretary of the Interior. For
the purpose of facilitating enforcement of this chap-
ter and reducing the costs thereof, the Secretary of
the Interior, with approval of the Secretary of the
Treasury and after notice and opportunity for public
hearing, may, by regulation, designate ports and
change such designations. The Secretary of the
Interior, under such terms and conditions as he may
prescribe, may permit the importation or exporta-
tion at nondesignated ports in the interest of the
health or safety of the fish or wildlife or plants, or
for other reasons if, in his discretion, he deems it
appropriate and consistent with the purpose of this
subsection.
(2) Any port designated by the Secretary of the
Interior under the authority of section 668cc—4(d) of
this title, shall, if such designation is in effect on
December 27, 1973, be deemed to be a port designat-
ed by the Secretary under paragraph (1) of this
subsection until such time as the Secretary other-
wise provides.
(g) Violation.
it is unlawful for any person subject to the juris-
diction of the United States to attempt to commit,
solicit another to commit, or cause to be committed,
any offense defined in this section.
(Pub.L 93—205, 9, Dec. 28, 1973, 87 Stat. 893; Pub.L
95-632, § 4, Nov. 10, 1978, 92 Stat. 3760; Pub.L. 97—304,
O 9(b), Oct 13, 1982, 96 Stat. 1426; Pub.L. 100—478, Title I,
* 1006, Title II, § 2301, Oct. 7, 1988, 102 Stat. 2308, 2321;
Pub.!.,. 100-653, Title IX, § 905, Nov. 14, 1988, 102 Stat
3835.)
Reference. In Text
Section 668cc-4(d) of this title, referred to in subsee. (f)(2), was
repealed by Pub.L 93-205, § 14, Dec. 28, 1973, 87 Stat 003.
CROSS REFERENCES
Exemption as providing exception on taking of endangered species,
see section 1536 of this title.
Issuance of protective regulations, see section 1533 of this title.
Penaltiss and enforcement, see section 1540 of this title.
Permits and hardship exemptions, see section 1539 of this title.
Taking of resident endangered or threatened species, cooperative
agreements with States, see section 1535 of this title.
CODE OF FEDERAL REGULATIONS
Importation of wild animals, birds, fish, insects, etc., see 19 CFR
12.26 et seq.
Off-road vehicles on public lands, see 43 CFR 8340.0-1 et seq.
183 ENDANGERED SPECIES
-------
16 § 1538
ESA i.
Plants, see 50 CFR 17.61 ci seq., 17.71 it seq.
Wildlife, see 50 CFR 17.21 ci seq., 17.81 et seq.
LAW REVIEW COMMENTARIES
WIZTiOT and the Druid—the DOD and envfrvn,nental law. Mi-
chael Donnelly and James 0. Van Ness, 83 Fed.Baz News 87
(1986).
LIBRARY REFERENCEa
Customs Duties ‘28.
Fish 1S.
Game 7.
United States 41.
C4.S. Customs Duties 0 80.
C4.S. Fish § 28 et seq.
C J.S. Game 0* 1, 5.
C.J.S. United States 41.
WESTLAW ELECTRONIC RESEARCH
United States: 393k (add key number)
§ 1539. Exceptions (ESA § 10]
(a) Permits
(1) The Secretary may permit, under such terms
and conditions as he shall prescribe—
(A) any act otherwise prohibited by section
1538 of this title for scientific purposes or to
enhance the propagation or survival of the affect-
ed species, including, but not limited to, acts
necessary for the establishment and maintenance
of experimental populations pursuant to subsec-
tion Ci) of this section; or
(B) any taking otherwise prohibited by section
1538(a)(1)(B) of this title if such taking is inciden-
tal to, and not the purpose of, the carrying out of
an otherwise lawful activity.
(2)(A) No permit may be issued by the Secretary
authorizing any taking referred to in paragraph
(1)(B) unless the applicant therefor submits to the
Secretary a conservation plan that specifies—
( I) the impact which will likely result from such
taking;
( I I) what steps the applicant will take to mini-
mize and mitigate such impacts, and the funding
that will be available to implement such steps;
(iii) what alternative actions to such taking the
applicant considered and the reasons why such
alternatives are not being utilized; and
( Iv) such other measures that the Secretary
may require as being necessary or appropriate for
purposes of the plan.
(B) If the Secretary finds, after opportunity for
public comment, with respect to a permit application
and the related conservation plan that—
(I) the taking will be incidental;
184
(I I) the applicant will, to the maximum extent
practicable, minimize and mitigate the impacts of
such taking;
( III) the applicant will ensure that adequate
funding for the plan will be provided;
(Iv) the taking will not appreciably reduce the
likelihood of the survival and recovery of the
species in the wild; and
Cv) the measures, if any, required under sub-
paragraph (A)(iv) will be met;
and he has received such other assurances as he
may require that the plan will be implemented, the
Secretary shall issue the permit The permit shall
contain such terms and conditions as the Secretary
deems necessary or appropriate to carry out the
purposes of this paragraph, including, but not limit-
ed to, such reporting requirements as the Secretary
deems necessary for determining whether such
terms and conditions are being complied with.
(C) The Secretary shall revoke a permit issued
under this paragraph if he finds that the permittee
is not complying with the terms and conditions of
the permit
(b) Hardship exemptions
(1) If any person enters into a contract with
respect to a species of fish or wildlife or plant
before the date of the publication in the Federal
Register of notice of consideration of that species as
an endangered species and the subsequent listing of
that species as an endangered species pursuant to
section 1533 of this title will cause undue economic
hardship to such person under the contract, the
Secretary, in order to minimize such hardship, may
exempt such person from the application of section
1538(a) of this title to the extent the Secretary
deems appropriate if such person applies to him for
such exemption and includes with such application
such information as the Secretary may require to
prove such hardship; except that (A) no suth ex-
emption shall be for a duration of more than one
year from the date of publication in the Federal
Register of notice of consideration of the species
concerned, or shall apply to a quantity of fish or
wildlife or plants in excess of that specified by the
Secretary; (B) the one-year period for those species
of fish or wildlife listed by the Secretary as endan-
gered prior to December 28, 1973 shall expire in
accordance with the terms of section 668cc-I of this
title; and (C) no such exemption may be granted for
the importation or exportation of a specimen listed
in Appendix I of the Convention which is to be used
in a commercial activity.
SELECI’ED ENVIRONMENTAL LAW STATUTES
-------
(2) As used in this subsection, the term “undue
economic hardship” shall include, but not be limited
to:
(A) substantial economic loss resulting from
inability caused by this chapter to perform con.
tracts with respect to species of fish and wildlife
entered into prior to the date of publication in the
Federal Register of a notice of consideration of
such species as an endangered species;
(B) substantial economic loss to persons who,
for the year prior to the notice of consideration of
such species as an endangered species, derived a
substantial portion of their income from the law.
ful taking of any listed species, which taking
would be made unlawful under this chapter; or
(C) curtailment of subsistence taking made un-
lawful under this chapter by persons (i) not rea-
sonably able to secure other sources of subsis-
tence; and (ii) dependent to a substantial extent
upon hunting and fishing for subsistence; and (iii)
who must engage in such curtailed taking for
subsistence purposes.
(3) The Secretary may make further require-
ments for a showing of undue economic hardship as
he deems fit. Exceptions granted under this section
may be limited by the Secretary in his discretion as
to time, area, or other factor of applicability.
Cc) Notice and review
The Secretary shall publish notice in the Federal
Register of each application for an exemption or
permit which is made under this section. Each
notice shall invite the submission from interested
parties, within thirty days after the date of the
notice, of written data, views, or arguments with
respect to the application; except that such thirty-
day period may be waived by the Secretary in an
emergency situation where the health or life of an
endangered animal is threatened and no reasonable
alternative is available to the applicant, but notice
of any such waiver shall be published by the Secre-
tary in the Federal Register within ten days follow-
ing the issuance of the exemption or permit. Infor-
mation received by the Secretary as a part of any
application shall be available to the public as a
matter of public record at every stage of the pro-
ceeding.
(d) Permit and exemption policy
The Secretary may grant exceptions under sub-
sections (aX1XA) and (b) of this section only if he
finds and publishes his finding in the Federal Regis-
ter that (1) such exceptions were applied for in good
faith, (2) ii granted and exercised will not operate to
the disadvantage of such endangered species, and
16 § 1539
ESA *10
(3) will be consistent with the purposes and policy
set forth in section 1581 of this title.
Ce) Alaska natives
(1) Except as provided in paragraph (4) of this
subsection the provisions of this chapter shall not
apply with respect to the taking of any endangered
species or threatened species, or the importation of
any such species taken pursuant to this section,
by—
(A) any Indian, Aleut, or Eskimo who is an
Alaskan Native who resides in Alaska; or
(B) any non-native permanent resident of an
Alaskan native village;
if such taking is primarily for subsistence purposes.
Non-edible byproducts of species taken pursuant to
this section may be sold in interstate commerce
when made into authentic native articles of handi-
crafts and clothing; except that the provisions of
this subsection shall not apply to any non-native
resident of an Alaskan native village found by the
Secretary to be not primarily dependent upon the
taking of fish and wildlife for consumption or for
the creation and sale of authentic native articles of
handicrafts and clothing.
(2) Any taking under this iubsection may not be
accomplished in a wasteful manner.
(3) As used in this subsection—
(I) The term “subsistence” includes selling any
edible portion of fish or wildlife in native villages
and towns in Alaska for native consumption with-
in native villages or towns; and
(U) The term “authentic native articles of
handicrafts and clothing” means items composed
wholly or in some significant respect of natural
materials, and which are produced, decorated, or
fashioned in the exercise of traditional native
handicrafts without the use of pantographs, mul-
tiple carvers, or other mass copying devices. Tra-
ditiOnal native handicrafts include, but are not
limited to, weaving, carving, stitching, sewing,
lacing, beading, drawing, and painting.
(4) Notwithstanding the provisions of paragraph
(1) of this subsection, whenever the Secretary deter-
mines that any species of fish or wildlife which is
subject to taking under the provisions of this sub-
section is an endangered species or threatened spe-
cies, and that such taking materially and negatively
affects the threatened or endangered species, he
may prescribe regulations upon the taking of such
species by any such Indian, Aleut, Eskimo, or non-
Native Alaskan resident of an Alaskan native vil-
lage. Such regulations may be established with
185 ENDANGERED SPECIES
-------
16 § 1539
ESA 110
reference to species, geographical description of the
area included, the season for taking, or any other
factors related to the reason for establishing such
regulations and consistent with the policy of this
chapter. Such regulations shall be prescribed after
a notice and hearings in the affected judicial dis-
tricts of Alaska and as otherwise required by sec-
tion 1373 of this title, and shall be removed as soon
as the Secretary determines that the need for their
impositions has disappeared.
(f) Pro-Act endangered specie, parts exemption; app11.
cation and certification; regulation; validity of
sale. contract; separability of provisions; renewal
of exemption; expiration of renewal certification
(1) As used in this subsection—
(A) The term “pre-Act endangered species
part” means—
(I) any sperm whale oil, including derivatives
thereof, which was lawfully held within the
United States on December 28, 1973, in the
course of a commercial activity; or
(ii) any finished scrimshaw product, if such
product or the raw material for such product
was lawfully held within the United States on
December 28, 1973, in the course of a commer-
cial activity.
(B) The term “scrimshaw product” means any
art form which involves the substantial etching or
engraving of designs upon, or the substantial
carving of figures, patterns, or designs from, any
bone or tooth of any marine mammal of the order
Cetacea. For purposes of this subsection, polish-
ing or the adding of minor superficial markings
does not constitute substantial etching, engrav-
ing, or carving.
(2) The Secretary, pursuant to the provisions of
this subsection, may exempt, if such exemption is
not in violation of the Convention, any pre-Act en-
dangered species part from one or more of the
following prohibitions:
(A) The prohibition on exportation from the
United States set forth in section 1538(a)(1)(A) of
this title.
(B) Any prohibition set forth in section
1538(aXl)(E) or (F) of this title.
(3) Any person seeking an exemption described in
paragraph (2) of this subsection shall make applica-
tion therefor to the Secretary in such form and
manner as he shall prescribe, but no such applica-
tion may be considered by the Secretary unless the
application—
(A) is received by the Secretary before the
close of the one-year period beginning on the date
186
on which regulations promulgated by the Secre-
tary to carry out this subsection first take effect;
(B) contains a complete and detailed inventory
of all pre-Act endangered species parts for which
the applicant seeks exemption;
(C) is accompanied by such documentation as
the Secretary may require to prove that any en-
dangered species part or product claimed by the
applicant to be a pre-Act endangered species part
is in fact such a part; and
(D) contains such other information as the Sec-
retary deems necessary and appropriate to carry
out the purposes of this subsection.
(4) If the Secretary approves any application for
exemption made under this subsection, he shall is-
sue to the applicant a certificate of exemption which
shall specify—
(A) any prohibition in section 1538(a) of this
title which is exempted;
(B) the pro-Act endangered species parts to
which the exemption applies;
(C) the period of time during which the exemp-
tion is in effect, but no exemption made under
this subsection shall have force and effect after
the close of the three-year period beginning on
the date of issuance of the certificate unless such
exemption is renewed under paragraph (8); and
(D) any term or condition prescribed pursuant
to paragraph (5)(A) or (B), or both, which the
Secretary deems necessary or appropriate.
(5) The Secretary shall prescribe such regula-
tions as he deems necessary and appropriate to.
carry out the purposes of this subsection. Such
regulations may set forth—
(A) terms and conditions which may be im-
posed on applicants for exemptions under this
subsection (including, but not limited to, require-
ments that applicants register inventories, keep
complete sales records, permit duly authorised
agents of the Secretary to inspect such invento-
ries and records, and periodically file appropriate
reports with the Secretary); and
(B) terms and conditions which may be im-
posed on any subsequent purchaser of any pre-
Act endangered species part covered by an ex-
emption granted under this subsection;
to insure that any such part so exempted is ade-
quately accounted for and not disposed of contrary
to the provisions of this chapter. No regulation
prescribed by the Secretary to carry out the pur-
poses of this subsection shall be subject to section
1533(fX2)(A)(i) of this title.
SELECFED ENVIRONMENTAL LAW STATUTES
-------
(6)(A) Any contract for the sale of pre-Act endan-
gered species parts which is entered into by the
Administrator of General Services prior to the effec-
tive date of this subsection and pursuant to the
notice published in the Federal Register on January
9, 1973, shall not be rendered invalid by virtue of
the fact that fulfillment of such contract may be
prohibited under section 1538(aXl)(F) of this title.
(B) In the event that this paragraph is held inval-
id, the validity of the remainder of this chapter,
including the remainder of this subsection, shall not
be affected.
(7) Nothing in this subsection shall be construed
te--
(A) exonerate any person from any act commit-
ted in violation of paragraphs (1)(A), (1)(E), or
(1)(F) of section 1538(a) of this title prior to July
12, 1976; or
(B) immunize any person from prosecution for
any such act.
(8)(A)(I) 1 Any valid certificate of exemption
which was renewed after October 13, 1982, and was
in effect on March 31, 1988, shall be deemed to be
renewed for a six-month period beginning on Octo-
ber 7, 1988. Any person holding such a certificate
may apply to the Secretary for one additional re-
newal of such certificate for a period not to exceed
5 years beginning on October 7, 1988.
(B) If the Secretary approves any application for
renewal of an exemption under this paragraph, he
shall issue to the applicant a certificate of renewal
of such exemption which shall provide that all
terms, conditions, prohibitions, and other regula-
tions made applicable by the previous certificate
shall remain in effect during the period of the
renewal.
(C) No exemption or renewal of such exemption
made under this subsection shall have force and
effect after the expiration date of the certificate of
renewal of such exemption issued under this para-
graph.
(D) No person may, after January 31, 1984, sell
or offer for sale in interstate or foreign commerce,
any pre-Act finished scrimshaw product unless such
person holds a valid certificate of exemption issued
by the Secretary under this subsection, and unless
such product or the raw material for such product
was held by such person on October 13, 1982.
(9) Repealed. Pub.L. 100-478, Title 1, § 1011(d),
Oct. 7, 1988, 102 Stat. 2314.
(a) Burden of proof
16 § 1539
ESA 10
In connection with any action alleging a violation
of section 1538 of this title, any person claiming the
benefit of any exemption or permit under this chap.
tsr shall have the burden of proving that the exemp-
tion or permit is applicable, has been granted, and
was valid and in force at the time of the alleged
violation.
(h) Certain antique articles; Importation; port deelgna-
tion; application for return of articles
(1) Sections 1533(d) and 1538(a) and (C) of this
title do not apply to any article which—
(A) is not less than 100 years of age;
(B) is composed in whole or in part of any
endangered species or threatened species listed
under section 1533 of this title;
(C) has not been repaired or modified with any
part of any such species on or after December 28,
1973; and
(D) is entered at a port designated under para-
graph (8).
(2) Any person who wishes to import an article
under the exception provided by this subsection
shall submit to the customs officer concerned at the
time of entry of the article such documentation as
the Secretary of the Treasury, after consultation
with the Secretary of the Interior, shall by regula-
tion require as being necessary to establish that the
article meets the requirements set forth in para-
graph (1)(A), (B), and (C).
(3) The Secretary of the Treasury, after consults.
tion with the Secretary of the Interior, shall desig-
nate one port within each customs region at which
articles described in paragraph (1)(A), (B), and (C)
must be entered into the customs territory of the
United States.
(4) Any person who imported, after December 27,
1973, and on or before November 10, 1978, any
article described in paragraph (1) which—
(A) was not repaired or modified after the date
of importation with any part of any endangered
• species or threatened species listed under section
1533 of this title;
(B) was forfeited to the United States before
November 10, 1978, or is subject to forfeiture to
the United States on such date of enactment,
pursuant to the assessment of a civil penalty
under section 1540 of this title; and
(C) is in the custody of the United States on
November 10, 1978;
may, before the close of the one-year period begin-
ning on November 10, 1978, make application to the
187 ENDANGERED SPECIES
-------
16 § 1539
ESA *10
Secretary for return of the article. Application
shall be made in such form and manner, and contain
such documentation, as the Secretary prescribes. If
on the basis of any such application which is timely
filed, the Secretary is satisfied that the require-
ments of this paragraph are met with respect to the
article concerned, the Secretary shall return the
article to the applicant and the importation of such
article shall, on and after the date of return, be
deemed to be a lawful importation under this chap-
tar.
(I) Noncommercial transshipment.
Any importation into the United States of fish or
wildlife shall, if—
(I) such fish or wildlife was lawfully taken and
exported from the country of origin and country
of reexport, if any;
(2) such fish or wildlife is in transit or trans-
shipment through any place subject to the juris-
diction of the United States en route to a country
where such fish or wildlife may be lawfully im-
ported and received;
(3) the exporter or owner of such fish or wild-
life gave explicit instructions not to ship such fish
or wildlife through any place subject to the juris-
diction of the United States, or did all that could
have reasonably been done to prevent transship-
rnent, and the circumstances leading to the trans-
shipment were beyond the exporter’s or owner’s
control;
(4) the applicable requirements of the Conven-
tion have been satisfied; and
(5) such importation is not made in the course
of a commercial activity,
be an importation not in violation of any provision
of this chapter or any regulation issued pursuant to
this chapter while such fish or wildlife remains in
the control of the United States Customs Service.
Q) Experimental populations
(1) For purposes of this subsection, the term
“experimental population” means any population
(including any offspring arising solely therefrom)
authorized by the Secretary for release under para-
graph (2), but only when, and at such times as, the
population is wholly separate geographically from
nonexperimental populations of the same species.
(2)(A) The Secretary may authorize the release
(and the related transportation) of any population
(including eggs, propagules, or individuals) of an
endangered species or a threatened species outside
the current range of such species if the Secretary
188
determines that such release will further the conser-
vation of such species.
(B) Before authorizing the release of any popula-
tion under subparagraph (A), the Secretary shall by
regulation identify the population and determine, on
the basis of the best available information, whether
or not such popolation is essential to the continued
existence of an endangered species or a threatened
species.
(C) For the purposes of this chapter, each mem- -
ber of an experimental population shall be treated
as a threatened species; except that—
(1) solely for purposes of section 1536 of this
title (other than subsection (a)(1) thereof), an ex-
perimental population determined under subpara-
graph (B) to be not essential to the continued
existence of a species shall be treated, except
when it occurs in an area within the National
Wildlife Refuge System or the National Park
System, as a species proposed to be listed under
section 1533 of this title; and
( Ii) critical habitat shall not be designated un-
der this chapter for any experimental population
determined under subparagraph (B) to be not
essential to the continued existence of a species.
(3) The Secretary, with respect to populations of
endangered species or threatened species that the
Secretary authorised, before October 13, 1982, for
release in geographical areas separate from the
other populations of such species, shall determine
by regulation which of such populations are an
experimental population for the purposes of this
subsection and whether or not each is essential to
the continued existence of an endangered species or
a threatened species.
(Pub.L. 93—205, § 10, Dec. 28, 1973, 87 Stat. 896; Pub.L.
94—359, § 2, 3, July 12, 1976, 90 Stat. 911, 912; Pub.L
95-632, § 5, Nov. 10, 1978, 92 Stat. 3760; Pub.L. 96—159,
§ 7, Dec. 28, 1979, 93 Stat. 1230; Pub.L. 97—304, § 6(1) to
(3), (.4XA)(5), (6), Oct. 13, 1982, 96 Stat. 1422—1424; Pub.L.
100—478, Title I, fi 1011, 1013(b), (c), Oct. 7, 1988. 102
Stat 2314, 2315.)
ISo in original. No. ci. (ii) has been enacted.
SELECTED ENVIRONMENTAL LAW STATUTES
Reference. In Teat
Section 668cc-S of this title, referred to in subeec. (b), we.
repealed by Pub L 93-205, i . Dec. 28. 1973. 87 Stat. 903
Pre .Act, referred to in subsec. (f), means the period prior to the
effective date of the Endangered Species Act of 1973, Dec. 28,
1973.
Subsec. (1) of section 1533 of thin title, referred to in eubsec.
(f)(5), which related to promulgation of regulations by the Secre-
tary was struck out, and subsec. (g) of section 1533 of this title
was redesignated as aubsec. (0. by Pub.L. 97—304, (2XaX4XB).
(C), Oct. 13, 1982, 96 Stat. 1415. For provisions related to promul-
gation of regulations, see eubsecs (b) and (h) of section 1533 of
this title.
-------
Effective date of this subsection, refereed to in subsec. (fl(6XA),
probably means the date of enactment of subsec. (I) by section 2 of
Pub.!. 94459, July 12, 1976.
CROSS REFERENCES
Provisions of this section as exception to prohibited aeta, see
section 1538 of this title.
CODE OF FEDERAL REGULAT1O ! 1S
Exemptions—
Application procedure, see 50 CFR 451.01 it seq.
Consideration of application by Secretary, see 50 CFR 452.01
et seq.
General provisions, see 50 CFR 450.01 et seq.
Pro-Act endangered species, see 50 CFR 222.1 et seq.
Review of apphcation by Endangered Species Committee, see
50 CPR 453.01 et seq.
General permit procedures—
National Marine Fisheries Service, see 50 CFR 220.1 et seq.
United States Fish and Wildlife Service, see 50 CFR 13.1 et
seq.
Plants, see 50 CFR 17.62 et seq., 17.72 et seq.
Subsistence uses by Alaska natives, see 36 CFR 13.40 et seq.
Surface coal mining and reclamation operation., see 30 CFR 773.1
it seq.
Wildlife, see 50 CFR 17.22 et seq., 17.32 et seq.
Food 8.
Game ‘3Y,.
CJ.S. Food 18.
C.J.S. Game 7.
LIBRARY REFERENCES
WESTLAW ELECTRONIC RESEARCH
Food cases: 178k (add key number)
Game cases: 187k (add key number)
§ 1540. Penalties and enforcement [ ESA
§ 11]
(a) Civil penaltIes
(1) Any person who knowingly violates, and any
person engaged in business as an importer or ex-
porter of fish, wildlife, or plants who violates, any
provision of this chapter, or any provision of any
permit or certificate issued hereunder, or of any
regulation issued in order to implement subsection
(aX1XA), (B), (C), (D), (E), or (F), (a)(2XA), (B), (C), or
(D), (c), (d) (other than regulation relating to record.
keeping or filing of reports), (f) or (g) of section
1538 of this title, may be assessed a civil penalty by
the Secretary of not more than $25,000 for each
violation. Any person who knowingly violates, and
any person engaged in business as an importer or
exporter of fish, wildlife, or plants who violates, any
provision of any other regulation issued under this
chapter may be assessed a civil penalty by the
Secretary of not more than $12,000 for each such
violation. Any person who otherwise violates any
provision of this chapter, or any regulation, permit,
or certificate issued hereunder, may be assessed a
civil penalty by the Secretary of not more than $500
for each such violation. No penalty may be as.
16 § 1540
ESA III
sessed under this subsection unless such person is
given notice and opportunity for a hearing with
respect to such violation. Each violation shall be a
separate offense. Any such civil penalty may be
remitted or mitigated by the Secretary. Upon any
failure to pay a penalty assessed under this subsec-
tion, the Secretary may request the Attorney Gener-
al to institute a civil action in district court of the
United States for any district in which such person
is found, resides, or transacts business to collect the
penalty and such court shall have jurisdiction to
hear and decide any such action. The court shall
hear such action on the record made before the
Secretary and shall sustain his action if it is sup-
ported by substantial evidence on the record consid-
ered as a whole,
(2) Hearings held during proceedings for the as-
sessment of civil penalties authorized by paragraph
(1) of this subsection shall be conducted in accor-
dance with section 554 of Title 5. The Secretary
may issue subpenas for the attendance and testimo-
ny of witnesses and the production of relevant
papers, books, and documents, and administer
oaths. Witnesses summoned shall be paid the same
fees and mileage that are paid to witnesses in the
courts of the United States. In case of contumacy
or refusal to obey a subpena served upon any
person pursuant to this paragraph, the district court
of the United States for any district in which such
person is found or resides or transacts business,
upon application by the United States and after
notice to such person, shall have jurisdiction to issue
an order requiring such person to appear and give
testimony before the Secretary or to appear and
produce documents before the Secretary, or both,
and any failure to obey such order of the court may
be punished by such court as a contempt thereof.
(3) Notwithstanding any other provision of this
chapter, no civil penalty shall be imposed if it can be
shown by a preponderance of the evidence that the
defendant committed an act based on a good faith
belief that he was acting to protect himself or
herself, a member of his or her family, or any other
individual from bodily harm, from any endangered
or threatened species.
(b) CrimInal violations
(1) Any person who knowingly violates any provi-
sion of this chapter, of any permit or certificate
issued hereunder, or of any regulation issued in
order to implement subsection (aX1XA), (B), (C), (D),
(E), or (F); (a)(2XA), (B), (C), or (D), (c), (d) (other
than a regulation relating to recordkeeping, or fil-
ing of reports), (f), or (g) of section 1538 of this title
189 ENDANGERED SPECIES
-------
16 § 1540
ESA Ill
shall, upon conviction, be fined not more than
$50,000 or imprisoned for not more than one year,
or both. Any person who knowingly violates any
provision of any other regulation issued under this
chapter shall, upon conviction, be fined not more
than $25,000 or imprisoned for not more than six
months, or both.
(2) The head of any Federal agency which has
issued a lease, license, permit, or other agreement
authorizing a person to import or export fish, wild-
life, or plants, or to operate a quarantine station for
imported wildlife, or authorizing the use of Federal
lands, including grazing of domestic livestock, to
any person who is convicted of a criminal violation
of this chapter or any regulation, permit, or certifi-
cate issued hereunder may immediately modify, sus-
pend, or revoke each lease, license, permit or other
agreement. The Secretary shall also suspend for a
period of up to one year, or cancel, any Federal
hunting or fishing permits or stamps issued to any
person who is convicted of a criminal violation of
any provision of this chapter or any regulation,
permit, or certificate issued hereunder. The United
States shall not be liable for the payments of any
compensation, reimbursement, or damages in con-
nection with the modification, suspension, or revoca-
tion of any leases, licenses, permits, stamps, or
other agreements pursuant to this section.
(3) Notwithstanding any other provision of this
chapter, it shall be a defense to prosecution under
this subsection if the defendant committed the of-
fense based on a good faith belief that he was
acting to protect himself or herself, a member of his
or her family, or any other individual, from bodily
harm from any endangered or threatened species.
Cc) District court jurisdiction
The several district courts of the United States,
including the courts enumerated in section 460 of
Title 28, shall have jurisdiction over any actions
arising under this chapter. For the purpose of this
chapter, American Samoa shall be included within
the judicial district of the District Court of the
United States for the District of Hawaii.
Cd) Rei ards and certain incidental expenses
The Secretary or the Secretary of the Treasury
shall pay, from sums received as penalties, fines, or
forfeitures of property for any violation of this
chapter or any regulation issued hereunder (1) a
reward to any person who furnishes information
which leads to an arrest, a criminal conviction, civil
penalty assessment, or forfeiture of property for
any violation of this chapter or any regulation is-
sued hereunder, and (2) the reasonable and neces-
190
sary costs Incurred by any person in providing
temporary care for any fish, wildlife, or plant pend-
ing the disposition of any civil or criminal proceed-
ing alleging a violation of this chapter with respect
to that fish, wildlife, or plant. The amount of the
reward, if any, is to be designated by the Secretary
or the Secretary of the Treasury, as appropriate.
Any officer or employee of the United States or any
State or local government who furnishes informa-
tion or renders service in the performance of his
official duties is ineligible for payment under this
subsection. Whenever the balance of sums received
under this section and section 3375(d) of this title, as
penalties or fines, or from forfeitures of property,
exceed $500,000, the Secretary of the Treasury shall
deposit an amount equal to such excess balance in
the cooperative endangered species conservation
fund established under section 1535(i) of this title.
Ce) Enforcement
(1) The provisions of this chapter and any regula-
tions or permits issued pursuant thereto shall be
enforced by the Secretary, the Secretary of the
Treasury, or the Secretary of the Department in
which the Coast Guard is operating, or all such
Secretaries. Each such Secretary may utilize by
agreement, with or without reimbursement, the per-
sonnel, services, and facilities of any other Federal
agency or any State agency for purposes of enforc-
ing this chapter.
(2) The judges of the district courts of the United
States and the United States magistrate judges
may, within their respective jurisdictions, upon
proper oath or affirmation showing probable cause,
issue such warrants or other process as may be
required for enforcement of this chapter and any
regulation issued thereunder.
(3) Any person authorized by the Secretary, the
Secretary of the Treasury, or the Secretary of the
Department in which the Coast Guard is operating,
to enforce this chapter may detain for inspection
and inspect any package, crate, or other container,
including its contents, and all accompanying docu-
ments, upon importation or exportation. Such per-
son may make arrests without a warrant for any
violation of this chapter if he has reasonable
grounds to believe that the person to be arrested is
committing the violation in his presence or view,
and may execute and serve any arrest warrant,
search warrant, or other warrant or civil or criminal
process issued by any officer or court of competent
jurisdiction for enforcement of this chapter. Such
person so authorized may search and seize, with or
without a warrant, as authorized by law. Any fish,
SELECTED ENVIRONMENTAL LAW STATUTES
-------
wildlife 1 property, or item so seized shall be held by
any person authorized by the Secretary, the Secre-
tary of the Treasury, or the Secretary of the De-
partment in which the Coast Guard is operating
pending disposition of civil or criminal proceedings,
or the institution of an action in rem for forfeiture
of such fish, wildlife, property, or item pursuant to
paragraph (4) of this subsection; except that the
Secretary may, in lieu of holding such fish, wildlife,
property, or item, permit the owner or consignee to
post a bond or other surety satisfactory to the
Secretary, but upon forfeiture of any such property
to the United States, or the abandonment or waiver
of any claim to any such property, it shall be
disposed of (other than by sale to the general public)
by the Secretary in such a manner, consistent with
the purposes of this chapter, as the Secretary shall
by regulation prescribe.
(4)(A) All fish or wildlife or plants taken, pos-
sessed, sold, purchased, offered for sale or pur-
chase, transported, delivered, received, carried,
shipped, exported, or imported contrary to the provi-
sions of this chapter, any regulation made pursuant
thereto, or any permit or certificate issued hereun-
der shall be subject to forfeiture to the United
States.
(B) All guns, traps, nets, and other equipment,
vessels, vehicles, aircraft, and other means of trans-
portation used to aid the taking, possessing, selling,
purchasing, offering for sale or purchase, transport-
ing, delivering, receiving, carrying, shipping, export-
ing, or importing of any fish or wildlife or plants in
violation of this chapter, any regulation made pur-
suant thereto, or any permit or certificate issued
thereunder shall be subject to forfeiture to the
United States upon conviction of a criminal violation
pursuant to subsection (b)(1) of this section.
(5) All provisions of law relating to the seizure,
forfeiture, and condemnation of a vessel for viola-
tion of the customs laws, the disposition of such
vessel or the proceeds from the sale thereof, and
the remission or mitigation of such forfeiture, shall
apply to the seizures and forfeitures incurred, or
alleged to have been incurred, under the provisions
of this chapter, insofar as such provisions of law are
applicable and not inconsistent with the provisions
of this chapter; except that all powers, rights, and
duties conferred or imposed by the customs laws
upon any officer or employee of the Treasury De-
partment shall, for the purposes of this chapter, be
exercised or performed by the Secretary or by such
persons as he may designate.
16 § 1540
ESA 111
(6) The Attorney General of the United States
may seek to enjoin any person who is alleged to be
in violation of any provision of this chapter or
regulation issued under authority thereof.
U) Regulations -
The Secretary, the Secretary of the Treasury, and
the Secretary of the Department in which the Coast
Guard is operating, are authorized to promulgate
such regulations as may be appropriate to enforce
this chapter, and charge reasonable fees for ex-
penses to the Government connected with permits
or certificates authorized by this chapter including
processing applications and reasonable inspections,
and with the transfer, board, handling, or storage of
fish or wildlife or plants and evidentiary items
seized and forfeited under this chapter. All such
fees collected pursuant to this subsection shall be
deposited in the Treasury to the credit of the appro-
priation which is current and chargeable for the
cost of furnishing the services. Appropriated funds
may be expended pending reimbursement from par-
ties in interest
(g) Citizen suits
(1) Except as provided in paragraph (2) of this
subsection any person may commence a civil suit on
his own behalf—
(A) to enjoin any person, including the United
States and any other governmental instrumentali-
ty or agency (to the extent permitted by the
eleventh amendment to the Constitution), who is
alleged to be in violation of any provision of this
chapter or regulation issued under the authority
thereof; or
(B) to compel the Secretary to apply, pursuant
to section 1535(g)(2)(B)(ii) of this title, the prohibi-
tions set forth in or authorized pursuant to sec-
tion 1533(d) or 1538(a)(1)(B) of this title with re-
spect to the taking of any resident endangered
species or threatened species within any State; or
(C) against the Secretary where there is al-
leged a failure of the Secretary to perform any
act or duty under section 1533 of this title which
is not discretionary with the Secretary.
The district courts shall have jurisdiction, without
regard to the amount in controversy or the citizen-
ship of the parties, to enforce any such provision or
regulation, or to order the Secretary to perform
such act or duty, as the case may be. In any civil
suit commenced under subparagraph (B) the district
court shall compel the Secretary to apply the prohi-
bition sought if the court finds that the allegation
that an emergency exists is supported by substan-
tial evidence.
191 ENDANGERED SPECIES
-------
16 §1540
ESA *11
(2)(A) No action may be commenced under sub-
paragraph (1XA) of this section—
(I) prior to sixty days after written notice of
the violation has been given to the Secretary, and
to any alleged violator of any such provision or
regulation;
( I I) if the Secretary has commenced action to
impose a penalty pursuant to subsection (a) of
this section; or
( I II) if the United States has commenced and is
diligently prosecuting a criminal action in a court
of the United States or a State to redress a
violation of any such provisi’m or regulation.
(B) No action may be commenced under subpara-
graph (1)(B) of this section—
(I) prior to sixty days after written notice has
been given to the Secretary setting forth the
reasons why an emergency is thought to exist
with respect to an endangered species or a threat-
ened species in the State concerned; or
(Ii) if the Secretary has commenced and is dili-
gently prosecuting action under section
1535(g)(2)(B)(ii) of this title to determine whether
any such emergency exists.
(C) No action may be commenced under subpara-
graph (1)(C) of this section prior to sixty days after
written notice has been given to the Secretary;
except that such action may be brought immediately
after such notfication in the case of an action under
this section respecting an emergency posing a sig-
nificant risk to the well-being of any species of fish
or wildlife or plants.
(3)(A) Any suit under this subsection may be
brought in the judicial district in which the violation
occurs.
(B) In any such suit under this subsection in
which the United States is not a party, the Attorney
General, at the request of the Secretary, may inter-
vene on behalf of the United States as a matter of
right.
(4) The court, in issuing any final order in any
suit brought pursuant to paragraph (1) of this sub-
section, may award costs of litigation (including
reasonable attorney and expert witness fees) to any
party, whenever the court determines such award is
appropriate.
(5) The injunctive relief provided by this subsec-
tion shall not restrict any right which any person (or
class of persons) may have under any statute or
common law to seek enforcement of any standard
or limitation or to seek any other relief (including
relief against the Secretary or a State agency).
(h) Coordination with other law.
192
The Secretary of Agriculture and the Secretary
shall provide for appropriate coordination of the
administration of this chapter with the administra-
tion of the animal quarantine laws (21 U.S.C.
101—105, 111—135b, and 612—614) and section 806 of
the Tariff Act of 1930 (19 U.S.C. 1306). Nothing in
this chapter or any amendment made by this Act
shall be construed as superseding or limiting in any
manner the functions of the Secretary of Agricul-
ture under any other law relating to prohibited or
restricted importations or possession of animals and
other articles and no proceeding or determination
under this chapter shall preclude any proceeding or
be considered determinative of any issue of fact or
law in any proceeding under any Act administered
by the Secretary of Agriculture. Nothing in this
chapter shall be construed as superseding or limit.
ing in any manner the functions and responsibilities
of the Secretary of the Treasury under the Tariff
Act of 1930 (19 U.S.C.A. § 1202 et seq.], including,
without limitation, section 521 of that Act (19 U.S.C.
1527), relating to the importation of wildlife taken,
killed, possessed, or exported to the United States in
violation of the laws or regulations of a foreign
country.
(Pub.L. 93—205, § 11, Dec. 28. 1973, 87 Stat. 897; Pub.L.
g4_359, § 4, July 12, 1976, 90 Stat. 913; Pub.L. 95-632,
§* 6—8, Nov. 10, 1978, 92 Stat. 3761, 3762; Pub.L. 91—79,
§ 9(e), Nov. 16, 1981, 95 Stat. 1079; Pub.L. 97—304, § 7,
9(c), Oct. 13, 1982, 96 Stat. 1425, 1427; Pub.L. 98—327, § 4,
June 25, 1984, 98 Stat. 271; Pub.L. 100—478, Title I,
§ 1007, Oct. 7, 1988, 102 Stat. 2309; Pub.L. 101—650, Title
III, * 321, Dec. 1, 1990, 104 Stat 5117.)
SELECTED ENVIRONMENTAL LAW STATUTES
References In Teat
The customs laws, referred to In subsee. (eX5), are classified
generally to Title 19, Customs Duties.
The amendments “made by this Act”, referred to In subsec. (h),
refer to the amendments made by Pub.L. 93—205, which amended
sections 460k—i, 4601—9, 668dd. 715i, 7158. 1862, 1371, 1372 and
1402 of this title and section 136 of Title 7, Agneulture, and
repealed sections 668as to 668cc-4 of this title.
The Tariff Act of 1930, referred to in subsee (h), is Act June U,
1930, c. 497, 46 Stat. 590, as amended, which is classified generally
to chapter 4 (section 1202 et seq.) of Title 19, Customs Duties. For
complete classification of this Act to the Code, see section 1654 of
Title 19 and Tables volume.
Change of Name
United States magistrate appointed under section 631 of Title 28,
Judiciary and Judicial Procedure, to be known as United States
magistrate judge after Dec 1, 1990, with any reference to United
States magistrate or magistrate in Title 28, in any other Federal
statute, etc., deemed a reference to United States magistrate judge
appointed under section 631 of Title 28, see section 321 of Pub.L.
101—650, set out as a note under section 631 of Title 28.
CROSS REFERENCES
Application for return of antique articles subject to forfeiture
pursuant to assessment of civil penalty under this section,
see section 1539 of this title.
-------
Notice requirement for citizen suits not applicable with respect to
review of final determination of Endangered Species Com-
mittee granting exemption from consultations for Federal
agencies, see section 1536 of this title.
Federal Practice and Procedure
Expansion of standing by Congress, see Wright, Miller & Cooper
Jurisdiction 2d 0 3531.13. -
West’s Federal Practice Manual
Attorney fees, see § 7683.25.
West’s Federal Forms
Administrative subpenas, enforcement of, sees 6004 et seq.
Complaint to enjoin actions in violation of this chapter, sees 1718
and Comment thereunder.
Contempt proceedings, see §5651 et seq.
Exceptions to pretrial order on behalf of plaintiffs, see § 2511.5
and Comment thereunder.
Initial appearance before magistrate, see 0 7041 et seq.
Intervention, matters pertaining to, see § 3111 et seq.
Jurisdiction and venue in district courta, matters pertaining to, see
§ 1003 et seq.
Magistrate’s arrest warrants, see § 7031 et seq.
Preliminary injunctions, matters pertaining to, see § 5271 et seq.
Pretrial order—injunctive relief, see § 2806 10 and Comment there-
under.
Production of documents, motions and orders pertaining to, see
0 8551 et seq.
Sentence and fine, see 0 7531 ci seq.
Taxation of costs, see 4612 et seq.
CODE OF FEDERAL REGULATIONS
Civil procedures—
National Oceanic and Atmospheric Administration, see 15 CFR
904.100 et seq.
United States Fish and Wildlife Service, see 50 CFR 11.1 et
seq.
Endangered species regulations concerning terrestrial plants, see 7
CFR 355.1 et seq.
Establishment of ports for importation, exportation, and reexporta.
tion of plants, see 50 CFR 24.1 et seq.
General permit procedures, see 50 CFR 13.1 t seq.
Importation, exportation, and transportation of wildlife, see 50
CFR 14.1 et seq.
Rules of practice governing proceedings under certain acts, see 7
CFR 380.1 et seq.
Seizure, forfeiture, and disposal procedures—
Animal and Plant Health Inspection Service, see I CFR 356.1
et seq.
National Marine Fisheries Service. see 50 CFR 219 1 at seq.
United States Fish and Wildlife Sernee, see 50 CFR 12.1 et
seq.
LAW REVIEW COMMENTARIES
Reducing attorneys’ fees for partial success: A comment on
Hensley and Blum. Dan B. Dobbs, WiLL Rev. 835 (1986).
The market test for attorney fee awards: Is the hourly rate test
mandatory! Dan B. Dobbs, 28 Ariz LRev. 1(1986).
Warrior and the Druid—the DOD and environmental law. Mi-
chael Donnelly and James 0. Van Ness, 33 Fed.Bar News 87
(1986).
LIBRARY REFERENCES
16 § 1542
ESA 116
§ 1541. Endangered plants [ ESA § 12]
The Secretary of the Smithsonian Institution, in
conjunction with other affected agencies, is autho-
rized and directed to review (1) species of plants
which are now or may become endangered or
threatened and (2) methods of adequately conserv-
ing such species, and to report to Congress, within
one year after December 28, 1973, the results of
such review including recommendations for new
legislation or the amendment of existing legislation.
(Pub.L. 98—205, § 12, Dec. 28, 1973, 87 Stat. 901.)
LIBRARY REFERENCES
Health and Environment 25.5.
C.J.S. Health and Environment §0 61 to 66, 69, 71 to 73,78 to 80,
82 to 86, 88 to 90, 94, 104, 110, 115 to 126, 128, 129, 132, 133,
135, 137 to 140, 142, 144 to 153.
§ 1542. Authorization of appropriations
[ ESA § 15]
(a) In general
Except as provided in subsections (b), (c), and (d)
of this section, there are authorized to be appropri-
ated—
(1) not to exceed $35,000,000 for fiscal year
1988, $36,500,000 for fiscal year 1989, $38,000,000
for fiscal year 1990, $39,500,000 for fiscal year
1991, and $41,500,000 for fiscal year 1992 to en-
able the Department of the Interior to carry out
such functions and responsibilities as it may have
been given under this chapter;
(2) not to exceed $5,750,000 for fiscal year
1988, $6,250,000 for each of fiscal years 1989 and
1990, and $6,750,000 for each of fiscal years 1991
and 1992 to enable the Department of Commerce
to carry out such functions and responsibilities as
it may have been given under this chapter; and
(3) not to exceed $2 200,O00 for fiscal year
1988, $2,400,000 for each of fiscal years 1989 and
1990, and $2,600,000 for each of fiscal years 1991
and 1992, to enable the Department of Agricul-
tare to carry out its functions and responsibilities
with respect to the enforcement of this chapter
and the Convention which pertain to the importa-
tion or exportation of plants.
(b) ExemptIons from chapter
There are authorized to be appropriated to the
Secretary to assist him and the Endangered Species
Committee in carrying out their functions under
sections 1536(e), (g), and (h) of this title not to
exceed $600,000 for each of fiscal years 1988, 1989,
1990, 1991, and 1992.
193 ENDANGERED SPECIES
Fish 14.
Game 8.
C.J.S. Fish 0 38 et seq.
CJ.S. Caine § 11
-------
16 § 1542
ESA $15
(c) Convention Implementation
There are authorized to be appropriated to the
Department of the Interior for purposes of carrying
out section 1537a(e) of this title not to exceed
$400,000 for each of fiscal years 1988, 1989, and
1990, and $500,000 for each of fiscal years 1991 and
1992, and such sums shall remain available unb ’l
expended.
(Pub.L. 93—205, § 15, Dec. 28, 1973, 87 Stat. 903; Pub.L.
94—325, June 30, 1976, 90 Stat. 724; Pub.L. 95—632, $ 9,
Nov. 10, 1978, 92 Stat. 3762; Pub.L. 96—159, $ 8, Dec. 28,
1979, 93 Stat. 1230; Pub.L. 97—304, 5 8(a), Oct. 18, 1982,
96 Stat. 1425; Pub.L. 100-478, Title I, 51009, Oct. 7, 1988,
102 Stat. 2312.)
CROSS REFERENCES
Int.ernational cooperation, use of foreign currencies when available
in preference to funds appropriated under this section, see
section 1537 of this title.
§ 1543. Construction with Marine Mam.
mal Protection Act of 1972 (ESA
§ 17J
Except as otherwise provided in this chapter, no
provision of this chapter shall take precedence over
any more restrictive conflicting provision of the
Marine Mammal Protection Act of 1972 [ 16 U.S.C.A.
§ 1361 et seq.).
(Pub.1. . 93—205, 517, Dec. 28, 1973, 87 Stat. 903.)
References In Text
The Marine Mammal Protection Act of 1972, referred to In text,
is Pub.L. 92—522, Oct. 21, 1972, 86 Stat. 2027, as amended, which is
classified generally to chapter 81 (section 2861 ct seq.) of this this.
For complete classification of this Act to the Code, see Short Title
note set out under section 1361 of this title and Tables volum..
§ 1544. Annual cost analysis by the Fish
and Wildlife Service [ ESA § 18]
On or before January 15, 1990, and each January
15 thereafter, the Secretary of the Interior, acting
through the Fish and Wildlife Service, shall submit
to the Congress an annual report covering the pie.
ceding fiscal year which shall contain—
(1) an accounting on a species by species basis
of all reasonably identifiable Federal expenditures
made primarily for the conservation of endan.
gered or threatened species pursuant to this chap.
ter; and
(2) an accounting on a species by species basis
of all reasonably identifiable expenditures made
primarily for the conservation of endangered or
threatened species pursuant to this chapter by
States receiving grants under section 1535 of this
title.
(Pub.L. 93—205, § 18, as added Pub.L. 100—478, Title I,
* 1012, Oct. 7, 1988, 102 Stat. 2314.)
LIBRARY REFERENCES
United States 41.
CJ.S. United States I 41.
WESTLAW ELECTRONIC RESEARCH
United States eases. 393k(add key number)
SELECTED ENVIRONMENTAL LAW STATUTES
194
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152 OcTOBER. TERM, 1977
TVA v HILL
TENNESSEE VALLEY AUTHORITY v. HILL ET AL.
CERTIORARI TO ‘FUR UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT
No 7i%—1701 Argued April IS, 19Th—Decided June 15, 1978
The Endangered Species Act of 1 7 (Act) :cutliorizes the Secretary of the
Int .enor (Secretary) in § 4 to (leclare a species of life “endangered
Section 7 .spcciflcs that all ‘ Federal itcp;i rt ments .ind :igcnries sli:i It,
with the a ,ist.inee of t lie Secretary, Utilize their :1 1 11 hunt ics iii In rt her—
ance of the purposes of I (lid Act, by e.arryiiig out, progr.tm for the
conservation of endangered peuIcs . and l,v taking ‘ iiuii action
nec try to insure that. actions authorized, fiuiicl d, or carried out. by
them do not jeopardize. (lie eont uniiett exi ’ terice of ,iieli onidangc•rcd
Sj)CCiC and t lircatened species or result in I he de truci inn or moclifira—
lion of habitat of such speci s which is deteriniiiecl by the Set rotary
to be critical “ Shortly after the Act’s passage the Secretary was Peti-
tioned to list a small fish popularly kn vn as the snail darter as an
endaiigercd species under th Act. Thereafter th Secretary iii:ude the
designation having determined that tile snail darter apparently lives
only in that portion of t lie Little ‘rennc-s ee River hat oiil.I be corn—
lilctely inundated by the impoundmeiit of the reservoir created ac a
.OIisCqUCiIce of tlic ed)nil)lctioii of (lie 1’ellicu I )arn, lie ulcc ’l:creul that.
urea as (lie snail darter’s ‘c ru n,il habitat ‘‘ Nut it list .iiul i,ig I lit I ie.i r
completion of the mull imillion—dollar chin, t he Sc ret.iry issued :i
tion in which it was declared th. t, pursuant to § 7, “all Fcder.il :lgencics
must take such action as is necessary to ensure tli,&t .ictioiis author—
ized, funded, or carried out by t hem do not result in the destruct ion or
modi.ficnt ion of this critical habitat area “ B poiitlciits brought this
suit to enjoin completion of the dam :iiid impoutidinemit of the reservoir,
claiming that those actions would violate the AiL by e:iuslng the snail
darter’s extinction The District Court after trial denied relief and dis-
missed the complaint Though finding that the impoundment of the
reservoir would probabb’ jeopardize the snail darter’s continued c’ isL—
ence, the court noted that. Congress, though fully :tw.Lre of the snail
darter problem, had continued Tellico’s appropriations, amid concluded
that “ [ alt some point in time a federal project hecoinc so near com-
pletion and so incapable of inndifir:ition that a ednirt at equity ‘,liouikl
not apply a stat tite enact cd long ,.fur imicept mu of t hue proj( t to pro-
duce an unreasonable result “ The Court of Appcal reversed arid
Syllabus
Opiuiion of lti ,ACi M UN, .1 437 U S
Second, al)pe llees argue, as (11(1 the court, of Appeals, that
§ (b) and (c) dO not, (lIscrllniflat.e iIiIl)erinjssth ly because the
Maryland J. gisIature l)assc(I tiietn With the intent to Preserve
COiilpet,it ,jon As CXl)lflhi)e(l aIJoVe, however, the mere asser—
tioni of a laLidahle,purpose does not. carry the State’s burden
to justify the (Iisernnhiiatory effects of the statute. See Parts
1—B and 11—B. sup ”ra. -
Third, ftt)l)CIJCCS rely upon the Court of Appeals’ Coliten—
Lion that UneOlistjtutjoi zil (lI.Scrjiflhiiatjoii againist iii terstat .e
commerce can be found only where the flow of interstate goods
is curtailed. Appellee.s’ assertion fares no better than did
the court’s because the appellees fail to show how the effect
on the flow of iliterstate goods varies in kind between this
case and Dean Milk. See Pprt Il—B, su;.ra.
111
‘I’lie Court’s (k ’eiSiOii brings to mimi the weIl—ktiown words
of Mr Justmc Cardo’zo:
“To give entrance to [ protectloiiisnil would be to invite
a S )eedy mid of our iiatioiiaj solidarity ‘fhie Constit,ti—
timi was framed under the (IoiiiiiiiOmi of a Political
philosophy less parochial iii range. It was framed Upon
the theory that, the peoples of the several states must,
sink or swim together, and that iii the long rtin prosperity
and salvation are in union and not. divisiOn “ Baldwin v.
0. A. P. Seeli j, Inc., 204 U. S. 511, 523 (19:35).
Today, tho Court fails to heed the Justice’s a(hmnonition. The
parochial Political philosophy of the Maryland I. gislature
thereby i)revamls. I would reverse the judgment of the Mary-
land Court of Appeals.
-------
OCTOBER TERM, 1977
TVA v HILL 155
Syllabus 437 U S
ordered the District Court permanently to enjoin completion of the
project “until Congress, by appropriate legislation, e en)l)ts Tellico
front compliance with the Act or ike snail darter has boon deleted from
the list of endatigered i cws or its critical habitat m:itereilly redefined
The court held that the record revealed a prima facie violation of § 7
in that the Teniwssee Valley Authority had failed to take necessary
action to avoid jeopardizing the snail darter’s critical habitat by its
“actions” The court thus rejected (he contention that the word
“.ictions” as used in § 7 was not intended by Congress to encompass the
terminal phases of ongoing pmject . At various times bcfore during,
and after the foregoing judicial proceedings, TVA represented to con-
gressional Appropriations Committee., that the Act did not prohibit.
completion of the Tellico Project and (lescriI)ed its efforts to t.razisplant.
the snail darter The Committees ron ’ .i tently recommended appro-
print ions for the dam, somet iini ’s stat u,ig I heir view., flint, the Act. did not,
prohibit completion of t he dam at its ad v.i need st .igi ’, and Congress each
time approved TVA’s general budget, which contained funds for the
dam’s continued construction Field
1 The End:i iigercd Species Art i rolii hits im ni iidmeii I. of t lie Lit tIe
Ten rics.see 1 iver lw t lie T.’lliro Da in ‘p 172—1 OJ
(.i) The Ii ngi iagc if § 7 is pIn iii a ml lila ki ‘s no l .i’pI ion such as
lint ii rged lv petit inner wiierel v i he Act. woii In i nit. .i ppls’ to a project
like Tellico tli.it. Wa.’, ieU tinder w.iv when Comigre..,s iia.’tsed the Act
Pp 172—174
(b) It is clear from t lie Aet,’ legislat o c history that Congress
intended to halt and rever. ’ ,u the trend toward species extin tjon—
whatever the cost The pointed omission of (lie type of titialified
language previously included in etidangered peeies legislation reveals a
conscious eongrenaoiial design to give endangered spe Ies Priority over
the “primary missions” of federal agencies Congress, moreover, foresaw
flint § 7 would on occasion require :igeiiries to :ilter ongoing projects in
order to fulfill the Act’s goaI .’ Pp 174—1 7
(c) None of the limitt’d “hiard’..liip e einpl ioiis” provided in the Act
would oven remnot ely ,ip 1 iiy to I lie ‘lcllut’o l’rojt.i ’t I’ 1S
(ci) Though statements in Ap 1 urolirual ions oinniiU en Reports re-
flected the view of the Coinmim tees cii her that. the Act did not apply to
Telliro or that t he dam should be completed regardless of I lie Act’s pro-
visions, nothing in the TVA appruprint ions iiie.isiircs hiassed l)y Congress
stated that. the Telliro Project was io be coinh)lc•teiI reg:irullesb of the Act’s
requirements To find a repeal tinder Ilie’,e e lr(’Iinm(nnres, as Petitioner
li.i., urged, woiilil violate the “ ‘cardinal nile t hat repeals by implic.i—
tion iire not. favored ‘“ Morton v Mancarm, 417 U. S 535, 549. The
153 Syllabus
doct.rine disfavoring repeals by iiiipliealion applies wit Ii full vigor i lieu
the subsequent. lcgi’ .l.u (ion i a ii a I propri.i (uins nu’nsii ri When vol ing
on approprial ions measures, legi ’.l:tturs are entitled to .is.clime I hat I In
funds will hi’ devoted to luirlifises t h.it are lawful .uuid not for a n
purpose forbidden A contrary ioliry would viiil.itt’ the express rule’.. of
both Hon s of ongre , whiie.li pru ’icl that. :i 1 ipropriatiofls measures
may not change o\ist iiig substantive law An :tppropriat ions commit —
tee’s c pres ion does not operate to repeal or modify suibstaiit i i’
legislation Pp. 159—193
2 TI a’ Comi rt. of A Ill s’a Is did not err iii ordering t Ihi t coin i 1 et ion of
(he Tell ieo 1)ain, which vnmild lei ye viola I nil t lie , eI , 1)0 C’uiJoi ned Coui —
gress hi s spoken in i he plaiiiest words, ninkiuig it. clear (lint eiuliimigerrd
s )enmcs are to be. :meeordc ’d (Ito highest. priorit mc’s Since thai legisl:ii i i’
power has heemi e’erci’ed, it is up to the 1 xerti( lvi’ Braiueli to :idniu,ii tvr
the l:iw and for I lie .Iuidiei.irv to emif.urc’e it whiiii. as here, eiifurci’mruit
has been sought Pp 193—194
549 F. 2d 1064, tffirmcd
Buicrian, C .1 , delivered thu opinion of thu Court, in which Biu:NNA N,
STEWART, \VmnmTE, MARSHAU,, amid S ’r :vims, .7.1 , joined Powi:Lm., .7 , tiled
a (lissent ing opinion, in which BLACK M tin, .1 , joined, post. p 195 lii: i i N—
ums r, J , filed a dissent i ig opinion, post. p 211
Attorney General Bell argued the cause for l)ctittoiIer. On
the briefs wer e Actwg Solicitor General ?ried,,,an, Deputy
Solicitor General Barnctt, Herbert S. San ger, Jr., Ridu:zrd A.
Allen, Charles A. H’agner If!, Thomas A. Pedersen, and
Nicholas A. Della Volpe.
Zygmunt J. B.’ Plater argued the ,cause for respondents.
With him on the brief was JV. P. Boone Dougherty.
Briefs of amic& curiae urging rcvcrs.il icre filed by Robert J 1 ’1m;m1n/-
ton for Monroe County c i , al , amid by l(o,,ald A Zambriw, lu’a!Jniond %!
Momboisse. Robert K Rest, Albert Fern. Jr, Donethi C Smsnpsun, amid
W Hugh O’Riordan for the Pacific Legal Foundatiomi
Briefs of ainicz curiae urging affirmanee were filed by Ben Osliel ilgers
for the Eastern Band of Cherokee Imi(lians; by William A Bullrr for the
Environmental Defense Fund et al ; and by Howell H .cherrod, Jr., for
the East. Tennessee Valley Landowners’ Assn
Ben B. Blackburn and Wayne T Elliott filed a brief for dir’ Son! Ii-
eastern Legal Foundation as amicus curiae
-------
156 OCTOBER ‘i’i ;n M, 1977
TVA v. HILL
01)1111011 01 the Court. . 4.37 U S
Mi t. CHii F JUSTICE BURGER (leliVere(l the 01)110011 tif the
Court.
The questions preseiitt d iii this case are (a) whether the
Etidatigured Species Act. of 1973 requires a court to enjoin the
operation of a vi rtuti I ly coin )let .e(I federal dain— vh ichi hi ad
h)eeii authorized prior to 1973—when, inirsuan L to authority
iii lii i ii h y Coiigrcs , the Secretary of the Iii tenor has
detcriniiicij that operation of the tlain W otild eradicate an
( ‘I I(l:uIgere (h S u’eies ; aiid (h ) wlieLli( ’r (‘uu Liii uiP( I eoi igrcssioiial
ap )ropriatioiis for the (hill I afti’r I P73 (()ilStit,iite(l ii iin )lied
repeal of tlic Eiiclangcre SpeCies Act, at least as to the Par-
ticular dam.
I
The Little Tennessee River originates in the mountains of
northern Georgia and flows through the national forest lands
of North Carolina into Tennessee, when’ it converges with the
Big Tennessee River near Knoxville ‘l’hii ’ lower 33 miles of
the Little Tennessee takes the river’s elear, free—flowing ‘vaters
through au area of great natural heILilty. Among other
efl viroii I nental amenities, this stretch of river is said to con tai ii
abundant trout. Considerable historical itnportaiice attaches
to the areas immediately adjacent to this portion of the Little
Teiinessee’s banks. ‘l’o the south of the river’s edge lies Fort
Loudon, cstal)lished in 1756 as England’s southwestern outpost
iii the French and Indian War Nearby are also the ancieiit
sites of several native Ainericaii villages, the archeological
stores of which are to a large extent unexplored l These
include the Cherokee towns of Echota and Ten iiasc, the former
Tlii d scrip(ioii i taken from I he opin ion of I Ii I )i t net, Judge in
thu first litigation involving the TeIIi o D.imn and Ro ervoir Project.
Ri ,vironmeutal Defense Fund v TVA, 339 F Supp S06, 508 (ED Tenii
1972) lii hii OJ)iiiiOfl, “all of i Iie c heiu’Iits of I lie Little ‘I’ennes—
ce Hi ver ‘.iI Icy will 1)0 (l troyNl by un I mu mi(lumviit. of t lie river
I/nil ‘I ’li,• I )o ,trici .Ju.lgi ’ iutit ’i] iIi.i I ‘‘Ii liii. fri i —flip i uliJ rivir h tIme Iik’lv
lii 1,11.11 ol mm , or mmmiii i’ of sever i r.i ri: or •iitli iugcred I i Im iuci ‘‘ Ib id
153 Opinion of the Court
being the sacred capital of the Cherokee Nation as early as the
16th century and the latter providing the linguistic basis from
which the State of Tennessee derives its name. 2
In this area of the Little Tennessee River the Tennessee
Valley Authority, a wholly owned Public corporation of the
United States, began constructing the• Tellico Dam and
Reservoir Project iii 1967, shortly after Congress appropriated
initial funds for its development. 3 Tellicb is a multipurpose
regional development project designed pi’iricipally to stimu-
late sliorelimie development, generate suffieieiit electric current
to heat 20,000 homes, 4 and provide flatwatcr recreation and
flood control, as well as improve economic con(lItions in “an
area characterized by underiit,ilization of human resources and
outmigratioii of young people.” Hearings on Public Works
for Power and Energy Research Appropriation Bill, 1077,
before a Subcommittee of the House Committee on Appro-
priations, 94th Cong., 2d Sess., pt. 5, p. 261 (1976). Of
particular relevance to this case is one aSl)eCt of the project, a
dam which TVA determined to place on the Little Tennessee,
a short distance from where the river’s waters meet with the
Big Tennessee. When fully operational, the dam would
impound water covering some 16,500 acres—much of which
represents valuable and l)rod ucti ye farmland—thereby con-
verting the river’s shallow, fast-flowing waters into a deep
reservoir over 30 miles in length.
The Tellico Darn has never opened, however, despite the
fact that construction has been virtually completed and the
Brief for the Eastern Band of Cherokee Indians as Amicus Curiae 2
See also Mooney, Myths of the Cherokee, 19 Bureau of American Etirnol-
ogy Ann Rep 11 (1900), H Timberlake, Memoirs, 1756—1705 (Watamiga
Press 1927), A Brewer & C Brewer, Valley So Wild’ A Folk History
(East Tenn Historical Soc 1975)
Public Works Appropriation Act, 1967, 80 Stat 1002, 1014
Tellmco Dam itself will eonl:min no electric generators, however, an
interrcservoi r c: , U:, I ei in n ,i’i mile Till no B e rt’ ii r wi i Ii :L n rhy hvd roi lN ’—
tric plant will augment the hitter’s capacity
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OCTOBEIt ‘1’El M, 1u77
TVA v HILL 159
Opinion of the Court 437 U. S
darn is essentially ready for operation. Although Congress has
appropriated inoiues for Tellico every year since 1967, progress
was delayed, and ultimately stol)h)eil, by a tangle of lawsuits
and admi ii istrati ye proceedings. A fter ui ècessfu1ly urging
TVA to Coitsider alternatives to dannning tl q Little Tennessee,
loo til citizeits a I id lIat io)uia I ( ‘OIIsrVatioii groups lirotigli 1. sti it, in
the District Court, claiming that the project did not coiiforiii
to the requirements of the National Enviroiirneiital Policy Act
of 1969 (NEPA), 83 Stat. 852, 42 U. S. 0. §4321 et seq.
After finding TVA to be iii violation of NEPA, the District
Court enjoined the (lam’s eoiiIJ)Ietioii pendiiig the filing of au
appropriate cii viron mental impact. statement. En uLronmental
l)efensc Fund v. TV,l, 339 F. Su p. 806 (ED Teuti.), aff’d, 468
F. 2d 1164 (CAG 1972). The injunction remained in effect
until late 1973, when the District Court. concluded that TVA’s
fiuial environmuie,ital impact. StatAmneIit for Tellico was in porn—
p1 iauice with t.he law. En vLroIsnie,l tat I)cf cuss Fund v TVA
371 F. Supp. lO04.(EDT miii 1973), aff’d, 492 F. 2d 466 (CA6
J974 )i
j% iiuniut.lis J)ri()r tO) the l)istrict (‘ouiit’s h’eusuni dissolving
liii ’ N KPA Im lj l iiuctioti, a diseovrry was iuiade iii titi, waters of
the Little Tennessee which wouI l profoundly affect the Tellico
Project. Exploring the area around Coytec Springs, which is
ahout, seven miles from the mouth of tile river, a University
of Tennessee ichthyologist. Dr David A. Etmmier, found a pre-
viously unknown species of perch, the snail darter, or Percina
(!nzosto na) tanasi.G Tb is three—inch, tan n ish—coloreci fish,
The NEPA injlii le( ion WaS in effect some 21 mouths, when it wa
enleund TVA had spent some S29 million ou( the project Must, of these
fuuids lowe gone to purchase land, construct, tIm eoiicretc portions of the
dam, and build a four—lane steel—span bridge to carry a state hiigliwiy over
the proposed re rvoir 339 F. Supp , at &)8
‘l’hie snail darter was scieuitiflcally described by l)r Etnier iii i lie
I ‘na Iluiiiigs of I lii . Buiilugir:iI i ’u’t ’ of V.I,hiiuIL’lt ,ii Vol 55 No 44, P1’
.l( ’J—4 $ (.l.iii 22, 1976) ‘l’he cioiil ulie uiiti it auth euiil.,i,t. Dr ht iII, ’r’
153 Opinion of the Court
whose numbers are estimate(l to be in the range of 10,000 to
15,000, would soon engage the attention of environmentalists,
the TVA. the Department of t.he Interior, the Congress of the
United States, and ultimately the federal courts, as a new and
additional basis to halt construction of the dam.
Until n ’ee,utly tin’ fm I uiig of ii new s n’ries of niiiiiiiil life
would hardly generate a cause cékbrc. This is l)artieularly SO
in the case of darters, of which there are approximately 130
known species, 8 to 10 of these having been identified only in
the last five years. 7 The moving force l)ehund the snail darter’s
sudden fame came some four months after its discovery, when
the Congress passed the Endangered Species Act of 1973
(Act), 87 Stat. 884, 16 U. S. C. § 1531 et seq. (1976 ed.). This
legislation, among other things, authorizes the Secretary of the
Interior to declare species of animal life “endangered”’ and to
paper on tim snail darter were checked by a p:inel From tine Smit he oni:,ii
Institution prior to publication See App. lii
In Tennessee alone there are 85 to 90 species of darters, ud , t. 131, of
which upward to 45 live in the Tennessee River system 1(1 . at. 130 New
species of darters are being constantly discovered and cl,ev.ified—at the
rat’ of about o,uie pei ’ year hi at. 131 Thus is :i dullicuili t:i k fur even
rained ichthyologist., slilec specie’. of darters . re often hun rd In different late
from one another Ibid
An “endangered species” is defined by the Act (0 mean “any species
which is in danger of extinction throughout all or a significant portion of
its range other than a S CCiCS of the Cla Insecta detenmned by the
Secretary to constitute a pest. whose protection under the provisions of this
chapter would present an overwhelming and overriding risk to man “ 16
U. S. C § 1532 (4) (1976 ed.)
‘The act covers every animal and plant species, subspecies, and 1)oPU-
lation in the world needing proteétion There are approximately 1 4
million full species of animals auid 800,000 full species of plants in the
world. Vanous authorities calculate as many as 10% of them ome
200,000—may need to be listed as Endangered or Threatened When one
counts in subspecies, not to mention individual populations, the total could
increase to three to five tinies that number’” Keith Shireiner, Associate
Director and Endangered Species Program Manager of the U S Fish and
Wildlife Service, quoted iii a letter from A J Vagncr, Clutirmnan, TVi , to
-------
OCTOBER TERM, 1977
TVAv HILL
Cu. 1 , 1 lli.Ui , I !oii .t. ( olliililI lei ’ liii Mcrrli:i lit ] ‘r:t nIh ’ a n Il Fi heries, dated
Apr 25, P177, )llnte(I iii Wood. On I’rnl( ’. ing .in Elolillgeull $taliiie
‘I’IIl’ 1:11(1:1 iigered SJH’eIe Act of 1973. t7 I’ i hr., I 14 .1 25, 27 (I 975)
TI in A’ I does lot. (1(11 ne “rrlt i ,:i I Ii:i 1 ii:ii ‘ in i i the See rot:t ry of I lie
lot (‘nor leo, aclmuiiist ’rat iveiy Const rued I lie tenn
‘Cr11 lea I ha bit a I’ mc mn.s any .i ir, Li 11(1, or t ’:u I er .1 re t (e i ’Iui i “c of I hose
e%NI itig in;in—macje . truct ures or sell Iemeiu I wii irli ire 1101 IICrCS. iI ry to
I lie sti rv i .il u ,id reenv ’rs ’ of a listed a• fl.’, ) :ilnh c i ,is t in lent eleinenti,
I Iu’riof I 110 (1..., (41 Wiiil ’li would itJhlprO( i.il,I ’ di:i ri :u o I lii ’ IIk ( ’Iiiio ()(I (If I lie
sii rt’ i v ,i I aiid FCI ’OV( ’ ry of a listed ies or it i I uiiu t segi lIi ’iit of i i h po mki—
I loll Tiii’ consi it u(’nt. elemr ’,i I of eril I cal ii:i hit a I i rich a Ii ’, mu are riot. I an—
ted tii - uiiy icaI st ruict uure 8 11(1 I o x gritpIi v, biul a, climate, hum.u ii ac—
tis’ity, :ural the quality :111( 1 chc ’mit ’,iI i onlr ’ni of 18,1(1, w.iter, and air
Craitr.iI ii.ui t,uL miy repui ’serii_ ins’ loll loll ol I lie Ir l ’iii Ii.uluilaI. of a
Ii’.IId 954 ii ’ .. .uiir l ll4.I ’ iiii’lii ,ti . .khit ii ,i:il .i rc.u-, IIF rl ’.i ’ .lpiIaI ,li ’ l)iiIiIlLuliijii
‘ ‘ ‘ ui —iou ‘‘ • 13 Fit Hug I ( 1 1 )7S) (ii, I n’ roulified .r.’. 51) (‘FU § 402 1)2)
153 Ojiiiiioui of the Court
Tn Jan nary 1975. tJe re onth’nts in this ease ‘° and others
pet .it.ioiued the Secrl ’t.arV of the Iii tA’rior ‘‘ to list the snail darter
as an eiu Ia ,iigered species A fter r(’cei Vi iig (‘0111 m c l i ts froi n
various itut (‘rested parties. ii ichmal i mig rr\IA and the State of
Tennessee, LI I(’ Secr4 ’t a ry (on Ilally histe I I lie sitni I darter as an
( ‘Ildaliger( ’(l SI)P( ’i( ’S ofl O( ’tUl)er 8, l07 40 Fed Reg. 4750 . —
47506; see 50 (‘FR § 1711(i) (1076). En so acting, it was
noted that ‘‘the snail darter is a Ii vi iig cut Li ty wit ich is genet—
ieally (IlstIil( ’t aiid r(pro(IlietIvoly isolatcI I from other fishes.”
40 Fed lIeg. 47505 Mon iinportaiit for the Iurposes of this
case, the Secretary (leterInhl lc ’(i that the’ snail darter appareli tly
lives only iii that I)ort l1 of till’ [ i We Tt - ,i ua ’ s( ’e 11 iv ’r wh icli
would be (‘01 11I)let(’l V 111(1 iith:t ( ( ‘ (i I y the reservoir cr( ’ate( I :ts it
consecttieit ’t’ of the T( ’lluco 1 )a ill’s ( ‘omplet.iolu. 1(1 . at 475011. ‘
I )) 1 ’ .Im ,Illvull ’ . :ure a r(’guuii.ul .i_ ’ . (Il i.ut 11)11 lIt i.I(ll(lgil ’.Il l 14 ’iil its :i
Teniues ee (-(ili ’ —c’r% 11111111 grollp, 811(1 iuiiIi I i.iI’. s’IIu) .ir’’ lii iZl ’lI ’ . iii li —er. iii
(he Lit.t he Io’i t l1(’ e0 V.t 11ev .1 FC.I ii i(’l i 5% (1111(1 lIe 1 Ill ‘c i t’d I v I iii - h-ti ico
Project
‘the Au-I ,,Itl Iiori.’.4” . ‘‘IIlt (-rl-sl(-ll iIer ’ .lJliI I’’ 1 h)l’l 1111111 iii ,’ l’l rl’I.Irs (if
the Interior to list a spi ’eu •i’. (‘1141 I iigerrd 16 11 S C § I 533 (4’) (2)
(19Th ed ) , ee 5 U S C § 553 0’) (11176 ed
Sea rclu ” 1w T\’A In flU ire t 11.111 60 %% ate ri-oil r—i ‘ S I Ia ’ . I’ 1.i iled 1(1 6041
out her O iiuil ,tl 101 I ’. of Sn. it (I:) Fl er’. A tIll 36. 410—412 TI ir’ Sr’e ret are hi.i
noted thi:it. ‘‘nulIre I han I ,0(X) collect ioli in rel ’I’uil VeiN : 111(1 :uildi 1.1411181
earlier 4-ni led 811 Is from cciii r. ii .111(1 ( ..I ’ .t I4’ii ne ’ .M’(’ I i; , ‘.4’ iltil ri-rca I,’oI 1 ill’
preserico of I he n:i II uI:r ri i’r ( III I.’.iu In I Ia’ I A m,li’ “Inn n ‘ ‘ . ( ‘oi Iti . ‘r ‘‘ H) 19(1
keg 47505 (I 975) II — (‘I 1111.11 I, I II 4%’. 0’. or, I I i I I I ii ’ ii.t ii 4 1:t Ft t’F’s r. , ii go
Once e I (‘,iLti’(I I ii r ii igtio illI I lie 111)141’ F 114.1 iii Ten lie ’ . ’ S’I’ 1 is r .11111 I Iii’ hi’.’. or
tori’, of i i . , ii c i jor I ru nit ., ru ’ . 1110’. C’ (iIi. , It :1 noog.i—a II of s’. Ii in t :1 ri’ tU is v
the .II’ of (l.u m I Inpoll IHIuliel its i’e I I’’.t ring’. (Ill I’i ii die Wu irk’. for Wa Icr
:10(1 Power i)’s (‘IoIlml’nI .11 ill 1-ii ’rgv 11 i”. ’:i reli A p ‘rot irla huh 14iI I, I 17$,
1 efore a Suiwolnml it (5’ II i’ lioi i ’ .o (‘inlimil I si (Ill A p rt ipro. I ion’., 951 Ii
Cong , 1st. Sn’.’. , p1 4. pp 2- 1 11—241 (1977) (st:uO’llU ’iil of wit iie for ‘I’VA
I Ie,’.ruig’ . oii Eiuil.riigt-red I ‘. .% I Oversight, l a’for ,’ till’ Suil II’iiliiIIiil lu’.’
on Rt ouur ( ’u ’ i’ri,ceo 11(111 (If thi ’ i-lI.iti’ (0u 1)lli iili-e iiii 1”iu ’ . lro liln ,’lit .uiil
Public Work’., (1St ii (‘img , I —I Si . — ’ . , 201 (1977) , App 13’)
OplfliOhi of I he Con rt 437 ti S
identify the “erit ,uca,l ilah)itat” of these creatures, When a
species 1)1 its liahi tat , is so listedl 1.1 ic S il li iwi hg I)0l’tIOui of the
Act—relevant here—becomes effect ,i ye:
“The Secretary I of (lie I utterior shall review other
programs adi uiisterptj by Ii un and utilize such program,s
in furtIIeI’auu(:e of (hue purposes of this chapter. All otlrcr
Federal depa rtmen ts a lull ageu uca’s shall, ill couusultatjou)
with and with the assista ice of the Secretary, Li tili ze their
authorities in furt hernuice of the pilr )os( ’s (if this chapter
by carrying out I)rograuits for the conservation of endan-
gered SPeCIeS cud threatened species listed h)Iirsuant to
Section 1533 of titus title and bij takEng such action
necessary to iflsur,c that ariwn,s nnh/mrizpd, funded, or
carried out by them do -hot jcopard,zc the eontwucd exist—
CHCC of .S”U(’hI e’ida; rjered ,s/)ce.ie.s (1110’ t/,rCate,,(’d speeies or
rc , u1t iii the (l(’.s(r-ucl,o,i or i ioiI fi ”u1n,,, of habitat (If ,‘iuch
speci es which is dctcu-u nit fl’( I by (.he Si’cretary, after con—
su Itation as apI)ro urjat( with (lie a ffl’eu’d Slates, to he
critical “ 16 U. S C. § 1136 (1976 ed.) (cuiipIi sis added).
-------
OCTOBER ‘rEl M, 1977
v H1LE 163
Opinion ol I lie Court 437 U S
‘l’he Secretary went, oii to explaiii the siginfleance of the dam
to the habitat of thc.siiail darter
‘‘IT 1w snail darter occurs (oily ii the swifter I)orLioIls of
shoals Over clean gravel substratA ’ I I I cool, lo % —turl)i(iIt ,y
water. Food cif the snail darter is aliiiost exclusively
siiails vli icli requili! a (dean gravel substrate for their
survival. ‘I’/ic proposed viiipoundniciit of water be/ii?,d
tiw projioscd Tellico Dan, would resvlt in total destruc—
hint of I/sc sieast dartcr’N habitat “ Ibut. (cm i diasis
a(li’lU(l).
Sul sequei it to Lii is deteri iii iiatioii , the cretary declared the
area of the Little leitnessee which would l affected by the
Tdllico Darn to he the ‘‘critical habitat” f the snail larter.
41 Fed. Iteg. 13926—13928 (1976) (to he co( ifie(l as 50 FIt
§ 1781) Using these deterini,iat,ioiis as a predicate, and not—
withstanding the near coinl)k ’tIoIi of tin’ darn, the Secretary
tlt ’elarpd that Pursuant to § 7 of the Art. “all Federal agencies
must take such action as is iwCeSsary to ii 1.sure that actions
;LIItlioriy.e(I, fiminled or carried (ott by thriti (10 lie) result iii the
dt’st.rtiction oi i ins lificatioti (if tins en tica I habitat area.’’ 41
Fell Rt’g. 13928 (1976) (to be codified as 50 CFR § 17.81 (b)).
This notice, of course, was poiiite(lly directed at TVA and
clearly aimed at halting completion or Operation of the dazim.
During the l)efldcnCy of these administrative actions, other
developments of relevance to the snail darter issue were trait-
spiring. Coin inui icatioii was occu rn iig between the Depart—
nieiit,of the Interior’s Fi hi and Wildlife Service and TVA with
a view toward settling the issue informally. These negotia—
tunis ‘cre to no avail, however, since TVA consistently took
the position that the only available alternative was to attempt
relocating the snail darter Population Li) another suitable loca—
tion To this end, TVA coi ldLicte(l a .searcli of alternative sites
wi i irh iii igh t siistai ii the fish. ciilm ii mt iimg iii the experi immeiital
Ii.i ii—j ihai 11: 1 lii ‘ii i ‘I’ a iiii iiii i(’r u i i ia i i ‘halt er. to the nearl iv
I l(i ,i I II,%%I I i iii ,’ —i•ri , ’i:ui iii lii , lliIl ’riiir t as .
153 Opiiiui,i ol I lit’ ( ‘upurl
not satisfied vitli the results of t,lie e efforts. fiinliimg dial. ‘l’\’:
had preseitted ‘‘little e ’iilt ’iice that they have (‘:tieftilly studied
the Hiwassee to (let.ci ’I liii IC wli ether or not’’ tl ere crc ‘‘1 )iO—
logical and (11.11cr factu irs iii t It is river that I mild negate a
successful transplant.” ‘‘ 41) Fed. Th’g 475()6 (1975).
Mi’a,mwlmile. (‘ongress IauI also ln’eoi,u’ involved iii the fate
of tile snail darter “l t )(‘a ruimg ls ’fore a Siilwoiniiiittee (if thI(’
house Coimilittee on A l)I)i ’opriatit )iIS iii April 1 97f—soi ime
SCVC 11 mouths I I(’fturu’ tin’ snail i lart,u’r as I isteul a einhaii—
gerNl——TV/ rrpre r’iit.:it:uvus (l(’ (’i’il)t’tl I lie tlisruvri V ui lit’ 6-li
and time relt’va_iiru’ ( tlmu’ Eu ii laum4 i’r(u I S )u’(’i( ’S A ’t, I ( ii u’ ‘l’ell 1(1
Project. 1 learings tom Pul)l,ic Woi’ks for \ ‘ater aimtl I’ov,ui’
Development and Eiiu’mgy Research Appropriatuout fill, 197(.
before a Suiheoinniittec of’ the llouisc ’ (oiniiuuttee oil Appropria-
tions, 04th Cong , lstSess pt. 7. pp. 4fl6—4( 7 (1 )7 ) ; 1-1 eariiig’
on I [ . R. 8122, Public \Vorks for Water and Power l)rvelopineiil.
and Energy Research i\ppropi’iatioims for Fiscal Year I 97 .
before a Subcommittee of the Seitate Cominit.tee ott Appro-
priations, 04th Cong 1st. Sess . t. 4, . :3775—3777 (1975).
At that time TVA Pr( ’ imt d a 1 ositioii whirli it. wouiltl advance
in S 11CCCSSi”C forums thereafter, namely, that the Act did not
prohibit the counpletioii of a project aumthori’,ed. funded, a nil
substantially construlctA’(l before the Act ‘as ias.secl TVA
also (lescrihr’d its efforts to t.raimsj)lalI t the sula ii darter. but
contended that the daii i should be finished regardless of time
The Fish and VuItIlife Servmv, : ,,iul_1)r l’tuiu,’r lm.i ..e st:it,d that. it may
take from S to 15 years for seu’iit i t lu drlerniimmt’ liii her t hi’ il:iil
darter an suee ,1uIly survive .i miii r ’ 1 irouhice in I hiu mw iumvironmnent
Sec General Accounting Oflut’e, Tim ,’ Teimime’..cec Valley A’it hunt v , Tu’Iiiro
Darn Project—Costs, Altu’rn.ut ives, anti 1’nrfit 4 (Oct 14, 1t177) lii
c’cprc uumg doubt over I lie Ioug—uu’rm fuut uirc of I lie II uw:u o’ t r:uui— 1.iit , I lii’
Secre.L’trv noted’ ‘“T’li:ut the siiail d.irter doe . mu : irc:uiv iilhi.il)it the
1-Iiww ”,ci, llm er, (it’ ,. 1 iitC ilmi’ fact tli: ,I thic fiji I’: ,’. hail it, ‘ — . to it in the
pa_st , us a strong uiulieit ion I liii, i lien, univ ha hiolngiu.uI .iiui iii her f:,cuuini .
I II liii 1 1% ,‘r I hi:it uiug:iti’ i —iii, ,— . . .I’iul I r.uii .iul.uuui ‘‘ 4(1 l” ,’uI l ,g —I7.’ (Hi
( 975)
-------
0C1 ’()BI ’ I{. i’i :i i i. i’ 177
TVA ii HILL 16 5
c 1(IIIl&;Ii IPI ili ( ‘uui
437 U S
( XP riil1I iit’s Miie(c’.s ‘I’h(’r( ’aft ri, t In ’ II OIISP ( ‘oinmitScc ott
pI)r I)riat .ioIls. in its .11 1 un 20:1975, 1 i orL, statt’ I the fol Io —
lug iii the course of rrcoiiiiiieiitliiug t.IULI. au a(I(hltlohlai $29
million I)e ap )ropria.tcd for I( ’l I leo
‘‘I’hio ’ (‘on,,n,IIrr ohiro’rt, (lint. liii ’ I ,° I( ’(’t . fur ‘ii eli :ui
( ‘ I IV Ii ’ (Julliio ’iitaI iIfljniet. Sttlt( ’iii( ’lIt hi:is hio ’ ii ( ‘OlIlI)ICto. ’(I auiol
provj(I(’d the Coiiinimttee , .should I)( ’ (‘0111 j)li’tNI a.s iromptly
a.S poSsil)le . . .“ H. R. Rei. No. 94—319, Il 76 (1975).
(Emphasis addecJ.)
Coiigr’ss t,hemi approved t,he I’VA go wral budget, which con—
taii ied In in Is for coiit ,i ii UC(l Couist,ructio ii of the ‘Fel hco Project,.’’
lii ])eceiiiber 1975. one itioti th • f(p, the snail clart .er was ole—
dared a ii eIl(la tigered SperIeS, .tI ir Presalemu t. signed the bill into
law l’ill)lJc \Vorks for \ r, tosm. aini Power De ’e1Oi)fl1eflt aiiol
I i n ’rgy Rrseat( ’I i A iproIn matani Art,. I 170, $9 Stat J 035, I ()47.
In ]“rI)r l lary 1976, i)(lrSIiaiut, to § II ( g) (if the EiHIiiIIg( ’r( ’(l
S 1 H ’ei (M A t,, $7 Stat 900, I 6 11. 5 ( ‘ § I 54() ( g) (1970 r ’d )
r( ’sjn)u i(i( ’Iit ,s flied the Case IIoW Ii imoler review, se( ’kiulg W (9 1J0h 1 1
euuiuiilet,i()mI of t.iie daiui 811(1 iiiiiniiiiii liili ’iit of I lit’ i ’’ ’uui’ (iii
tin’ ground that. t.hiuso ’ aeLimi wouhi violate the Art, by oIin ’ct,ly
caiisuiug the ( ‘xl metion of the .spenies I’crcw & (Insostoina)
tana i The 1)istrict Court (leliled respoiucleiit,s’ request for a
hlreluniliary iiijumictmoii and set. thin itiatter for trial. Shortly
thereafter the I-louse aiRl Spiia(.e held ap )roprlat Ions heart ngs
w I licli would include (IISCUSSIOIIS of the Tellico budget
TVi P’ ojee I geiler:i liv 1 rt’ Mi i i iii irlM ’(l Ii I he A ii i I inn I y u (self a ml .i re
fiiilde(l—wit hoot. the jired fo siwrili I oiigro ’.uiiuaI :11 11 liorizat iou—from
Iuiinhi—suiiii .ui)llr(IIlrI:il 1(105. roviiIo’d iii ve riv Innij. i ’i gralits J(j
tJ S ( §l .‘3i (j) .tid S31z (197oi i
Sl• I vii , II (g) :iIkw. ‘‘.• i.iv ll’I’,t ,II’ Iii (l)llifll(ii(’i’ it iIVii tIiiiii iii it
I I,iiied SILl.”. 1 )i ’ .(rirt Co irf. ( , ml .’, tutu. ‘‘eii (iuiIi .Iii ’ )i .’r ’ .(uI, iIi(’llI(IIIlg
ih . ’ Si. .te, •iiid .IlI ’ (It her g(l u’I, ,I, , . iii ii iii’.t rii ,iu ’u ,t.uiuI ’ or .ig’n . v
(i. ito’ ‘ l ,’iii j . .’riiiiti .’sI I, iIii elt’ i’iuiI , .. ,ii ,’iiili ,ui iii ii , ii i , ( ‘I l , .Ii (iiii ( ., ,),
I I. . ‘.i I., I. ii , u.I ,ti.ii ,,I ,i , Ili.. u—i..u ,’ ..i ii ,. ’ , ‘i ‘,.i
i. I i
153
OlinIoiI UI i II( ( uurt
At these hearings, ‘l’VA (‘hiairmnaui Wagner reiterat(’(I the
agency’s positiohi that, tin’ Act did miot ap 1 d ’ to a i)roJ( ’ct
%‘h1 ich ‘.‘ i4 over 5O 7 flu i mshie(I hy tin’ liii u tin’ . et. I)O ’(’a I lie
effective amid sonic 70 X to S0 comuiplete ‘t hemi (lie snail darter
was offiria I ly I istA ’( I a ’ (‘In lam igo ’re(I . It, a iso muotmfio l’ tl ir (‘01 11—
iuiitt.rcs (it thi( ’ o’er lit hy (tIed la vstiit ’s St4It,Ii 58iI(l ro’i;oirt.eol that.
TVi ‘s efforts to tI’i II:sh )liLflt. the stiami dart(’r 118(1 ‘‘I)C( ’lI Vo’l ’y
emicouragmiug.’ Hearings on Public Works for WaLer 811(1
Power Development and Energy fleseareli Appropriation l3ilI.
1977, before a Suhcomiiiittee of the 1-bust’ (‘ominittee on
Appropriations, 94th Cong., 2d Ses.s.. p1. 5, pp 261—262 (1976)
Hearings on Public Works for Water and Power 1)evelopineiit
an(I Energy Research Appropriations for Fiscal Year 1977.
before a Subcommittee of the Senate Committee on Appro—
priat.iOflS. 94th Cong . 2d Ses ’ . pt. 4. rir. 309G—3099 (1976).
Trial as held iii tin’ l)istm irt ( ‘utirl oIl April 29 and 30. 1976.
and oti iViny 25, 1976. LIII’ court entere(I its tuiemmairamnl titit
opin iOfl 8 11(1 order denyl mig resi moiidemi ts their reo i ieste I r(’l i(’f
and dmsmuiissitig the eumiiplamiit. The District (‘otirt, foiiinl that
closure of the (18111 amid t.Iit ’ cOmiS( ’(iil(’ilt. imi1h Wuii(iui1(’Ilt , of tin’
reservumi’ oiiihl ‘‘i , ‘simlt iii tin’ ailverse i innlmIirat iu’i, if mi(it
complete (iest .ructioil, of the snail darter’s Cl’iti( ’1t1 hial)it ,at,,’’
(6 The 1 )l ’.trl(’t. Coiii I in:ui .’ till’ foillowimig fiinhing ’ . %% m iii N i)IM ’t to) I Is’
dam’s effeel on the ecology of I lie 5 11:1 11 darter
‘‘The evitlt’nce mt rodin’ed . ,l. trial ‘ .iin u ’d t l t (lie ‘. 11: 111 ii:, , hr r(’(Iiimr I ”.
for its sii r iv:i I : ele ,t r, g r:i el .. imI ‘.1 ri I .‘, ill:. I. i rge —t i—in. .i iiuiii . flowi iig ri er
The snail .h,irter ha’ a f, ,mrlv high ri’qiiiro’meiit for os’, geii 81111 SiIl(’i’ it. mend,
to c i t iii (lie bottom of till’ riser, th . flowing w Ier i .le— . tito Ii(’eo’——.irv
oxygen at, gre;ttrr dept Ii’. 1 e ’ .ervoir ’, iiiilik .u flowing ri IN, I eii .I ((I 11.1’. C
a low o vgrii (‘(lilt emit. :it greater dept Ii ’ .
‘‘I ePr%oirs : ,l ’ .o tenil Iii ii.i o’ m.,re iIt uii tis’ iiotti.ii I kin fhiwiimg ri IN,
ann lii i’. I.iet .ir, coinli ,mi ,’ii itli iii.’ lowir i) vg .II (‘( 1i 114’iII , ‘.uiuiti iii.ike ii
hmglil ’ I)riI)).Il)h(’ thai ‘ii:iil il.ii li’r egg’. %%ii(ilIl ii1 .I lien II I “ ,u.’hi Iii e ,i iron—
ineiit 1 ”iirthii’riiioro’, Iii ,’ , .iliiti ‘ .,i.,il (iIrtl’r , ‘ioihuh l)r .lhi.iliiv (huh liii’. t ’Iil’
of re’,er ,ilr environniellt iiii iii. ,I,li ’ br ..p:Iw’ImIng
“Aiu Ihii’r I irtor (hi i w iiuihl no.1 tu iii uki’ .L ri’—4’r mr Ii: ,hital iin iiit.ihiu’
for ..ui.uil .l.trter ’ . I, 111.1 111.11 t.rilmI.li ‘i ‘.1111111’ i ii I’uiu ,ll, ‘.ui: ,uI ’., 1 ir . hi: ,tily
-------
()C’I’( )I IIt 1’ I I( 1, i (477
TVA v HILL 167
)iiiiiinii ul ihe ( ilII I 437 II S
i laLkilig •it “highly l)nli Lhh .’ that ‘‘i.iit oiiI.iii neil existeiiee of
the snail ilarter’ %%uIihl he ‘‘jeoisinhi’,.eI d .‘‘ 419 F. Supp. 753,
757 (El) Twiii. ). flVSpitA ’ thiest findings, the Distri t Court,
l ljii , I to ernl>raee the l)huIlItJflS’ l)(ISitIoJI oil the merits I,IIa.t.
onee a federal hiroIe(•t was Jiow,i to jeopardize au eiidniigered
SI)CeieS, a (z)lirt. of Nfui i t.y is CoilipeIlNi to issue au i flj Li uiet ,ioi I
restraining violal.ioui of the l ilclailg(•r( ’(l Species Act.
Iii reaching this result. the [ )istrict. Court, stressed that t;h
C I I tire hroject as tli n aholi I,. 0% eouiIf)lete an(l, based on
available (‘i(h’flce, “there were iw alt(riiati ’es tO impound—.
ilu iit of the reservoir. short, of:sT:I ung flit’ entire projectS.”
1(1 , at. 755. TIn ’ l)ist,rirt, Uourt :tlsu fuiiuah that if t,hie Tellico
l’roiect, Was lH ’ru llahi( ’IItly (llIOiiI( ’(I, ‘‘Soilie $53 million ouihi
lie lost, iii mIoIIre (•overa l)Ip obli’gatiouis .” id , at. 759, !fleaiiing
t ,hl;Ll. a large l)OrtiOuI (If tim 875 11111114)11 iLIr( ’ally ( ‘Xlfl ’mule(I woiil I
he wasted ‘l’lie court also uIoIA ’d that tin’ Eildiulgt .red Species
Act . of 197:3 was i)OSSC(I 5011W seveii Years alter coiistruct.ioui on
the tiam C(,iilifleiieNl aiid that ( ongre .s luni comitiiiuied p ro—
J)riat.ions fur Tellieo, with full a arein ’ss of tin’ snail darter
woi ikii i ,\ssessj Iig these vu rious factors, the J)istrict Court
COilCI tided
‘‘. t 50 11W point in time a federal projcci. h )ecornes so
near eomnpletioui and So incapal)Ie of modification that a
court of equity silolild not apply a statim to eiiacted long
after m I lCept.ioI l of the project to irod ice an tiiIrPa.soiIal)le
result. . Where t ,Iiere has iweii an irreversible and
irret ,ru ahlt’ coiiimnituiieuit (If resullrees by ( oiigress to a
project over a span of aliiios(, a decat le. the Court shoui(t
l )roceed with a great deal of eircii inst tectiumi .“ Id., at 760.
To ;ieeept the P18111t 1ff 5’ position. thi ’ District Court argued.
o i lii ii iexorai )ly lead to what it rhiarnel en ZI ’I I as the absurd
uesimli. )f rec iminiuig ‘‘a court •I4 ) hi:ilt, iininiiiiitluiiu’iit of water
1.1 —uIr i . iii —tiii I II II ii ..i,ii ,.iii iI ’l I. 7• • 7
s I I ‘ i.,,u. I ’ I7t ,
153 OPinion of tho Court
h)cil iiid a fully comi ilef ( ‘(I da i ii if au ci ala u igeu (‘4 I s )(•(‘j s WCI ’C
diSCovere(l iii Liit ’ nv ( ’r Oil the day before Sli( ’li iui IpOuitl(liil ( ’iit .
Was SeiIe(hIIled to take 1)18CC. W’e canhiot c iieci ’e that Coii—
gress intended such a result.” Id., at 763.
Less than a month after the 1)istnict Court decision, t.}ic
Senate and I louse Appropruatiou us Coi nun m ttees recoin uiiended
the full budget request of $9 million for COlltiflUC(l work omi
Tellico. See S. Rep. No 94—960, p. 96 (1976); H. R. Rep.
No. 94—1223, p. 83 (1076). In tts Report accompanying the
appropriations bill, the Senate Coinmit ,tce stated:
‘‘Dun ng subcomuii i t,tve lien nil igs, TVA was q tiestu HINh
about. the relatioiish ip 1 mtweemi t.he Tell ucu ro jeet’s coil i—
l)lctioil and the Novci nber 1975 1 isti m ig of II 14’ 511811 tia rti ’r
(a small 3—inehl fish which was discovered iii I 973 8
an endangered species under tile Endangered Species Act..
T\’A informed the Committee that it was continuing its
efforts to preserve the darter, while working towards tile
scheduled 1977 completion date. TVA repeated its view
that the Endangered Species Act did not h)rCveflt the
completion of the Telhico project, which has been under
construction for nearly a decade. Th subcommittee
brought. this matter, as well as the recent U. S. District
Court’s dcci oii tll)hol(lii )g TVA’s decision to complete the
project, to the attention of the full Committee. The
Committee does not view the Endangered Species Act as
prohibiting the completion of the Tellico project at its
advanced stage and (lirCCts that this l)rOjPCt, he conipleted
as Promptly US pOsSiI)1e in the 1 )tibliC interest.” S. Rep.
No. 94—960, supra, at 96. (Emphasis added.)
On June 20, 1976, both T-Touses of Congress passed TVA’s
general budget. whieh iiieliided funds for Tellieo ; the President
signed the 1)111 Ofl .Jtily 12. 1076 P111)1 iC Works for Water and
Power Di ‘ ‘eb at ici ii :11111 Energy 1 eseardi A 1 )P UI inn t.ion Ad,,
1977, 00 Stat. 889, SOD.
-------
O ’1’OBER TERM, 1977
TVA v. HILL
O ornori of liii ’ Con ri 437 U S
Thereafter, in the Court of Appeals, respondents argued
that the District court lund ahirseti its (liseretioli I v not issuing
an mi iii ictiori iii time face of “a I data n t. statu tory violation.”
549 F. 2d 1064. 1069 (CAG 11)77). TIme Court of Appeals
agreed, and on January 31. 1977. it reversed, remanding “with
instructions that a permanent iujumnetioim issue halting all
activities incidcimt to the Tellico Project which may destroy or
modify the critical habitat of the snail darter.” I d . at 1075.
Tine Court, of Ap s’,uls iiiceted I lint Liii ’ iii uiinet loll ‘‘relmmnlili
iii effect until Congress, by appropriate legislation, exempts
Tellico from compliance with time Act or t,iu’ snail (larter has
beeui deleted from the list of endangered species or its critical
habitat, materially redefined “ Thid.
The Court of Appeals accepted the District Court’s finding
that closure of the damn would result. iii the known population
of snarl rlartnrs being “sigiiific;iimt lv mi’dii ed if not completely
( ‘\Iirl nIteiI // ( 1069 T :t. iii t:u ’I., hind (‘Oiie(’d(’(i as
iiiiieii iii i iii ’ ( ‘cnuii i I hhmu ’a l . hut :ui giii’il I limit ‘‘elo’ujre of time
‘l ’lhii ’u, I ):uuii, :i ’. t lie last ‘ I agu’ III a iiii—Vi ’ar lii inject,, f:ill
oiit’.uiht’ liii hegil ,iiunmimu ’ piii nw ol liii’ Act. ml it is rationally
( ‘Oiis triie(l ‘‘ Id at 1070 l)isagreci rig, I.In Court. of Appeals
held that. t.lie record revealed a pririna facuc violation of § 7 of
LIre Act, iiamrmely that TVA hind f;uih’ul to take ‘‘stint action
iieeessary to insure’’ that I t.s ‘‘LiCtiOiIS” did riot ,Ieopar(lmzc the
snail darter or its critical habitat..
The reviewmii court tiiu rejected TVA’s conteiitjon that.
the word .‘‘aetions” iii § 7 of the Act. as not intended by
Congress to cimeomimpass the terimiiiial phases of ongoing projects
Not only could time court find no “positive rein forccincnt” for
TVA’s argument in the Act’s legislative history, but also such
an interpretation was seen as being “iniiiuical to . . . its objec-
t ,ivcs,” 54 F. 2d, at 107Q.’ By. way of illustration, that, court
pointed flut, that ‘‘the detrimental impact of a. project upon an
eiidaiigc .r cii Species may not’ always Is’ den ny , (‘ren ’i ‘ed i eforc
coi ist.ruint,in Hi is t cli ii inderway.’’ 1(1 at, 11)71. C j V(’ii suidi a
153 Opinion of th Court.
likelihood, time Court of Appeals was of the Opinion that. TVA’s
position would require time 1)istrict Court, sitting as a chancel-
lor, to balance the worth of an endangered Species against the
value of aim ongoing public works measure, a result which time
appellate court was not willing to acce 1 )t Emphasizing the
limits on udicmal l)o t’er in this setting, the court stated:
“Current Project status cannot be translated into a
workable stanilard of iudiciai review. Whether a darn is
50% or 00 couum deted is irrelevant iii calcuulatimig the
social a iii i seii’iu t,ifw eost ,s at ,tril n ithl ule to the I isappemn rio ire
of a unique form of life Courts are m Il—equipped to
calculate how immany dollars must be invested before the
value of a (lam excce(ls that of time. (‘mnclangere(l species.
Our responsibility tinder § 1540 (g) (1) (A) is merely t’.’
- preserve the status quo where emudangered species auT
threatened, thereby gninran teeing the legislative or execu-
tive branches sufficient opportunity to grapple with the
alternatives “ Ibid.
As far :m time Court of Appeals was concerned, it made ito
(liff( ’rel ln(’ i.itat ( ‘omigress haul rela ’mLt(MIly nI)I)rov( ’nl apIroIruI—
tions for ‘I’cll ico, referri rig to sumh legislative a l mrov:il as am
“advisory opinio [ n]” concerning the proper application of an
existing statute In that court’s view, time only relevant legis-
lation wa.s the Act itself, “It] he meaning amid spirit’’ of which
was “clear on its face.” Id , at 1072.
Turning to time question of an appropriate remedy. the Court
of Appeals ruled that thc District Court had erred by not
issuing an mn,j unction While rcc.ogun mzm mug the irretrievable loss
of millions of dollars of public funds which would accompany
injunctive relief, the court nonetheless decided that the Act
explicitly commanded precisely that result:
“It is conceivable that the welfare of an endangered
species may weigh more heavily upoim the public coil-
seiencc, as expressed by tIne final will of Congress, than
the writ.eoff of those mumilliomis of dollars already expcul(lrd
-------
170 O.()’l’oHElt ‘I ’EItM , 1977
TVA v. HILL 171
)iIIIIl&III ul I lie ( oiirI, 4: 7 I J S
for T I I ICO iii ( ‘Xe(Ss of i Is )reseii t S;i Ivageable vttlue.’
Id., at 1074.
Following the iSsl ia liet ’ of the perinallelil, inj unction, mern—
hers of TVA’s Board of l)ireetors appeared before Sithcoiii—
1) Iitte s of LLii’ I louse . uiiil Seiiate Ap )roprjatjo,js Coin iuui t.fees
to testify iii 51 1 1) 1 5) 1 L of coIit.IIuue(I appropriations fur ‘l’eliieo.
‘I’iuu’ S1ll)C IiuiIIitt,( 5 s %Ver(’ iLi)l)rlse(l of all iLSi)CCts of Tellico’s
status, ii ieliidiiig liii ’ (‘01 111. of A p Ha Is’ ilecusioti. TVA i •—
POrte(I t,liat the (lain stood ‘reaily for the gates to he closed
and the reservoji filh• 1.’’ I hearings oii Puihia: Works for Water
aiid Po ’t ’i l•)( ’v( ’loI)iil(IIf, aiuil l;iu’igv Research Approiiriatiun
Bill, 1978, before a Suh)eoiIuiiilt((.(. (if tue hluti& ’ OOflhiiiitt,ee on
- Appropriations 95th ( ‘otig., 1st , Sess.. I)L 4. p. 234 (1977), and
iiestd funds for coinjdi.t ,i()I ) of ( ert .ai,i aiieillary parts of tJie
)i ojeef,, suidi as l)Iil)II(. 1154’ lIleils. roads, nial hr lge As 1.4) f.ln’
•..iiail darter itself, ‘I’\’ ei ,iiiiuui ’,it , ,J uI)t Iiliist .I( . Llly oh it..s Linus—
‘ii i (‘fort’., l ’ q)iI ’ ’. .— .llig the l ipIhii. 1 1 diaL the relocated
1l%Ii ‘ i.l l• “‘hung t hI ti ul ha Idi e , is I IW(’i I ‘‘ I i ! . i. 2: 5.
ii
I oIhi . IuhHoI)ri1Lf,ioiis ( ‘uiuiiuiit ii’i.s silh..(.(lui.i)t ,ly r( ’eoIIIiiu ’iiile i l
the full alilOuiit, re(luest(.(I fur iaiiph’t,ioii of the Telhico Proj-
ect lii its .Itiiic 2, 1977, Report, the I Louse Appropriatioiis
Coin Inittee stated:
‘ 1 t is tlu Conjmjtt( ’I .’x vIew (.1 mt the Eimdai mgerei I Sj )ecies
Act, was not, ii iteli(h’ij to unIt, Iro.Ircts sUch as f,he e in their
advanced stage of eOiIlpl i ’t ,ioit, and I the cominitt ]
strongly recoiniia n ( l that. these projects not, he stopped
because of misuse of the Act.” IL R. Rep. No. 95—379,
r. 104. (Emphasis a lileiI.)
As a solution to the probh’in, the I lotise Coinnii t, advised
that TVA should coOper;ite with the Department, of the
Interior “to relocate thl( ’ (‘ii(langerl’(I species to another suitable
liahitat so as to penni I, the i rujeet. to i rucee(l as rapidly as
liussible.’’ 1(1 , at, 11 Toward this cmiii, the ( uuimiuuif,Le recotii—
153 Opinion of the Court
mended a special appropriation of $2 million to facilitate
relocation of the snail darter and other endangered species
which threatened to delay or stop TVA projects. Much the
same occurred on the Senate side, with its Appropriations
Committee recornineuicling both the amount requested to corn-
plete Tellico and the special appropriation for transplantation
of endangered speci s. Reporting to the Senate on these
measures, the Appropriations Committee took a particularly
strong stanch on the snail darter issue:
“This committee has not viewed the Endangered Species
Act as preventing the completion and use of these projects
which were well under way at the time the affected species
were listed as endangered. If the act has such an effect,
which is contrary to lhc Comm ittcc’.q undcrsto_ndzng of the
intent, of Congress in enacting tile Endangered Species
Act, funds shld)uil(l be appropriated to allow these projects
to be completer! and their benefits realized in the public
interest, the Endangered Species Act notwithstanding.”
S Rep. No. 95—301, p. 99 (1977). (Emphasis added.)
TVA’s budget, including funds for completion of Tellico and
relocation of the snail darter, passed both Houses of Congress
and was signed into law on August 7, 1977. Public Works for
Water and Power Development and Energy Research Appro-
priation Act, 1978, 91 Stat. 797.
We granted certiorari, 434 U. S. 954 (1977), to review the
judgment of the Court of Appeals.
11
We begin with the premise that operation of the Telhico
Dani will either eradicate the known population of snail darters
or destroy their critical habitat. Petitioner does not now
seriously dispute this fact. ’ 1 In any event, under § 4 (a)(1)
‘ The District Cuiir findings arc to the same effect and arc unchallenged
here
-------
172 OCTOBER TI RM, J 77
TVA v HILL
Opinion of I ho Couri 437 U S
of the Act, 87 Stat. 886, 16 U. S. C. § 1533 (a)( 1) (1 )7G
ed), the Secretary of the Interior is vested with exclusive
authority to determine wliet ,her a species such as the snail
darter is “endangered” or “threatened” and to ascertain the
factors wh ieli have led to i iieli a precarious exi.stciice By
§ 4 (d) Congress has LUtliOrI7.ed—_jndCed commanded—the
Secretary to “issue such regulations as lie deems necessary and
advisable to lro ’icle for the coii . ’rvatioii ( f sucl peeies.” 16
U. S. C. § 1533 (d) (1976 ed.). As we have seen, the Secretary
promulgated regulatioiis winch declared the snail darter an
endangered sj ecies whose critical I mahi tat. WOLI Id be destroyed
by creation of the Tellico Reservoir. 1)oubtless Petitioner
would prefer not to have these regulatioiis on the books, but,
there is no suggestion that the Secretary exceeded his authority
or abused his discretion in issuing time regulations. Indeed, no
judicial review of the Secretary’s (l( ’ternuiiat ,ions has ever beeii
sough t and I imiire ‘the val 1(1 It)’ of his actions are hot open to
review iii this ( ourL
St.artiiig fro,ui ’ t,hic th)(JV( l)rl ’IIiis( ’. tW P (Ili(St ,IohiS arc’ wc—
Seiih ’ml . (a) ‘ iiiIml ‘I’’/A hc’ I I I vimilatioii of the Act. if it, ( (lIIi—
pleted and operated hie Tel liro Daiim S Plaflhled? (b) if
TVA’s actions would oficliti the Act, is aim in lunction the
appropriate remimedy for the violation? For the roasoiis stated
hereinafter, we hold that 1)0th q liest ,ious iliust be answered in
the affirmative.
(A)
It may seem curious to some that the survival of a relatively
small number of three-inch fish among all the countless mil-
lions of species extant would r qIiira time permanent halting
of a virtually completed dam fur which Congress has expended
more than $100 million. •The paradox is not mniniihw.ed by
the fact that Congress continued to appropriate large sums
of public money for the project,, (‘veii after congressional
A mprojiriat.ioi is Comnini ttees ‘cre at rised of its apparent
ihilluLet, U )Ofl the survival of the snail darter. We conclude,
153 Opinion of the’ Court
however, that the explicit. provisions of the Enclauigered Species
Act require precisely that, result.
One would be hard pressed to find a statutory provision
whose ternis were any plainer than those in § 7 of the Endan-
gered Species Act. Its very words affirmatively command all
federal agencies “to wsnre flint actions onh/,orizr(I, funded, or
carried out by them do not )copordlze the coiitinuied existence”
of an endangered species or “result in the destruction or mock-
fication of habitat of such species . . .“ 16 U S. C. § 1536
(1976 ed.). (Emphasis added.) This language admits of no
exception. Nonetheless, petitioner urges, as do the dissenters,
that the Act cannot reasonably be interpreted as applying to
a federal project which was well under way when Congress
passed the Endangered Species Act of 1973. ‘Fo sustain that
position, however, we would be forced to ignore time or(liuary
meaning of plain language. It’ has not. been shown, for
example, how TVA can close the gates of the Tellico Dam
without “carrying out” an action that has been “authorized”
and “funded” by a federal agency Nor can we understand
how such action will “in.s ’urc” that the snail (larter’s habitat is
not disrupted.’ 8 Accepting time Secretary’s (k’t4’riniimatioils, as
18 Tn di ent, Mn .1USTiCi F0wFLI. argues that time meaning of “actions”
n § 7 is “far from ‘plain’ “ and that. “it seems evident that the ‘actions’
referred to are not all act ions that. an agency en n ever I :ike, ho r:tther
actions that the agency h deciding whet her to authorize, to fund, or to carry
out “ Post, at 205 Aside from I I ns hare asse ,‘t iou, Iiov . P er, 110 c’ plnna—
tion is given to support the proffered interpretation This recalls I wis
Carroll’s elie.sic advice on time onstniction of Iaiiguuge’
“‘When 1 use a word,’ Humpty Dumpty said, in rather a scornful tone,
‘it means just what. I choose it. to mean—neither more nor less ‘ “ Through
the Looking Glass, in Thc Complete Works of Lewa. C.mrroll 106 (1939)
Aside from being unc pIie.tted, the cli ’ sent’s reading of § 7 is flawed on
several counts First, uiider its viuw, the words “or carry out” in § 7 would
be superfluous since all pro ’ peetive nctions of an agency remain to be
“authorized” or “funded “ Second, the di eimt’s posit ion logically means
that an agency woumirl tie (ii 11g:lte(I to comlily wit Ii § 7 ,nlv when a project.
is in the planning stage But if Congress had meuiuit to o limit the Act, it
-------
174 oc’roBEIt ‘l’l ’llM, 1977
‘l’VA v hILL 175
Ojutiioii of I 1w Ciiiirl 437 U S
we niust,, it. is clear that. TVA’s pros tu t ’d o iern.tio,i of the (hull
II I ha ie j)recI ely Lhte OL)f)OSI tA effi’ct., iiaiiwly till’ erwl (caI ion
of an eiidaiigercd species.
Concededly, this view of the Aet will produce results requir—
ing the sacrifice of the anticLp8tA4h l)elIcflt .s of the project afl(l
of mai ty iii iH ioi is of dol lars iii pithite fti,uls. 10 But e aIn i ‘iii—
Lion of LI ic Iaiigiiage. Ii istory, a iid st.riiettire of the legislation
utl(ler revie. v here in(l icates latyotli I doubt that Congress
int.en(Icd endangered species to he afforded the highest of
priori tics.
When Congress l)flSS(’(I the Acts in 1073. it was not legislating
on a cicait shth’. The first litajor coligi cssioiial concern for
the prcservatioi i of the eiida iigert I i a’cios I tad conic i Lii
passage of the Endangered Siiecies Att of 1966. SO Stat. 926,
repealed, 87 Stat. 9O3. lii that legislation (‘oiigress gave the
iiriIv wuiikl li:i’. ii’id (iril, Ii, iii i i fTi it , .i— ii ilid iii th N.LtiIili.il
1iit iriinnii ’iil.iI l ’uiIn Ail, 42 t S (‘ §* 1.1.12 12) (A), (C)
l Thu I )i.t rut (null. ili’itrttiiiuil I hit. $.iiliiri lii i iuii ih’Ii’ I he Ti’llico
Dun t otiliI re—tilt. iii (he ln ’ of iuiii .{ iiiillui iii iii liiIiIrl9l I er.II)II• olilig.i—
I lIflN. .upre, it i(;(; 1 ( .iiiiitiIi ’tit iii iiit, liii, lugiir., .iiiil 1101111. II) a
ree l iii. ,tui I v I iv I lie Oent• ra I / (‘111111111 tig ( )II ie., ‘ h uli tiggi ’.st. . t Ii. ii. t lie
figure cotulil 1)1. iiinsider ibly l i $ei ’ CM) i iulv, ii 13, u na, .iI
5—14, re aku Cook, Cook, & (o e, Tlii’ Siu .iul I liner t he Darn, 5 )
N.i I lOn:i I I ‘.i rk, & Coiiscrv:i lion i Li g:i 211 ii ’ 1(1 (1977 ) . Cot uMl ‘:u I ion lou tid:i —
I 1(111 Lii I cr 1—2 (Apr 1978) The CA( ) l iulv il ,o euuiiliiiIi I hi.tt. ‘I’VA
au I Congre’.s hutild e pIore :ihtern:iI i i ’ hi itiiiiotiiiihiien l. tif I lie reservoir,
iii’Ii I lie crc_it loll of a regi iiui:iI di ’s I .IilIiitR’iit. irugr.Ilui lo’.ed on a free—
(lowing rlypr Ni ,tic of i.Iue ,e ciiii iilt’i.it itu .iri rthv.u lit. to our deei ioii,
luit ’e er , lhie ’ are properly addre seiI to liii ’ I’ u•i ’uit ive :iiitl ( uugress
1 rior fecler.il 111% oIv tiiiuit. it Ii iiiI iigrnil . iieuei hi:ul lx ’cIl (utile
liiiiiteil l’iir i’ .uiiiiili ’, liii, 1..ire Pu I iii P11 ) 1 1, .11 Slit l. ”i7, ii.iriiallv iittlu—
fied iii Iii U S C § 667t’ and 701 (197(1 t l ) , .iuiil t lii ’ 1)1 uk lt:I . . Art of
1926, 44 SI :ut 576, :i.i 8 tui,uded, I 6 II S C s5I .‘I e ’q (I 9711 ed ) pro—
Iiiluii ru i hr I r.in l)lirelt tOil 10 lilt er I :iio riiiiili urrt iii liali or wildlife t.ikt’ii
iii uujl.iu io u oF 11.11 ioiial, ‘,Iate, or Fui) eigui law ‘l’lir rife. t iif hot Ii (if I lie e
sl.itluIu ’— iiu .t r:iiiieil, lin ri’ver, liv Iii . ’ f.iu ( I liii. liriuur to ).i u .ag4 ’ iii iii, ’
1 .uuuI .uigeri d Spiuui-’, Pot. of I97 , tli(•r( wcru: few l .iws regiilat iuig I hçse
.4
153 Opititon of I he Court
Secretary power to nien tify “the names of tile SI WCI( ’S of iiat,i VU
fish anti wildlife fotiurl to be t,iireatencd wit Ii ext ,iiicLioli,’’
§ 1 (c), SO SLat. 926. as vcll as atithiorizatioll to p(it’(’llitS ( laud
for the eonscrvat,ioil: irotectioll, restoration, a li(l I )ro )agatilJll
of ‘‘selected sfccies’’ of ‘‘native fish and wildlife’’ threatcilNi
with extiiiet,ion. § 2 (a)—(c ’). 80 Stat 926—927. Declaring
the pros r itioit of li(l I 1gel1”i a iiat,iutial pohey, the
1966 Act directed all federal agencies l,ot.li to i irotc(:t t,Iiest’
SpCCiCS flUhl “iiISOfOr (t. IS practiCable osid resists! Cii! iou/i
tI,.e( ir I prilflar7/ pur /ioscS, § 1 (li). 80 Stat. 926, ‘‘preserve the
habitats Of sticli t.Iireatelletl SpCC1CS 01) lUi )(lS llil(IC1 ’ tIl( ’lr
jurls(llctioil ‘‘ Ibid. (Emphasis atd(lNl. ) TIn’ 1966 stattitv
was not a SWee )iilg 1 )i ()h1ih)iti(m ott the taking (if eiuiaiigeretl
Sl)CCICS, liowt’ver. eXCI ’l)t. ott federal law Is, 4 (e ) . MO Stat 925.
uuid even in those federal areas the Secretary was authorizcu F
to allow the ittiiit.iiig aini fishing of endangered sIn ’eIes. § 4
(dl (1), SO Stat. 925
In I 961) Cotigress . ‘littCt((l l,lit ’ I’.i it Ia ilgeret I SIn ’cics ( ‘iii iserva—
ttoii Act,. 53 Stat. 275, repealed, 57 Stat. 903. wIt icit cot it,ii i liet I
tile provisions of the 1966 Act while at the Salin’ tuft’ hro uI—
en ung federal iilvOlv(’lilent iii the preservatuoit of t iidatigerci I
species Under tile 1969 legislation, the Se.cretarv was (‘il )l) 0W
crecl to list species “thrcatoiicd with world wide exti rwt,ioil,”
§ 3 (al, 83 Stat 2Th; iii addition, the iinportatiotl of any
Species so reCogIU ’/A’(l into the ITiiited States was proiilI)itA (I
§ 2. 83 Stat. 27fi. Al) indirect approach to the taking of
creat tire— Coggin , Conserving Wilull lie 1(e ,iiiirres Mu ( ) er ii ’ of
the I.;nd,iutgerod Spl ’t ’l( ’s Art of 1’)7.t, si N 1) 1, Hi ’s 315, 317—.4 IS (1975)
The Migr: iti.rY itirul Tre:it v Aul , ii:i ruI in 11)15, 41) Stat 755. :i :trnciiulid,
16 U S C § 70:1 et eq (1976 .d ) , Wa — lout.’ e I i ’ui i t, gu iuig I lie Sri ri—
tu ry of tIn I lit erli r power to 81101)1 regi II (liii iS fui r i I ii’ I’ ru ii Ci I ion i f i nig ra —
orb’ hi rd’ OIlier !ne. .—ll re— CI i,ieelil ri I ri I (iii ust .11 jI i Iii iig ru ’fu ugu for wi Ii I —
lift’ See, e , 1 ..iii(I tituI V.iter (‘u,u’ .en :iI iuii }‘iii I Put iii 11)65, 7$ ‘iI l
97, 16 II S C § 46(11—4 el rq ( P )76 ed ) See gener:ulIv Eii iruniluielil.il
La%%’ 1 ilsI it ute, ‘I’Iic Et oltit lull of N.ii ioiial Wildlife I tw (1977)
-------
176 O TO13J lt TI;RM, 1977
‘I’VA u HILL
Opinion of I lie Court 437 U S
endangered species was also adopted iii ilu’ Conservation Act
by way of a ban Oil the transl)ort ,at ,ioii :tiid sale of wildlife
taken in violation of any federal, state, or foreign law. § 7
(a)—(b), 83 Stat. 279.21
Despite the fact that the 196( and 1069 Iegislat,ain repre—
sentecl ‘‘the most. corn 9r(theiisive of its type to he enacted by
any nation” tip to that time, Congress was sooii persuaded
that a iliore exl)ailSive al)proaehI was nev(le(l if the itewly
declared iiutiona I pol icy of )resvrviI1g (‘in langered species was
to he realized By I 973. when ( nhigrvss Ii(’l d henri iigs ( Iii what
WOO 1(1 later hwcoitie t,hi(’ l ’ i ulni igered fisles Act of I 973, it
was iiiforiiiecl that stn ’cns crc still hiiiig lost at the rate of
about one lm! year, 1973 house [ lcariiigs 306 (stateineiit of
Stephen R. Seater, for Defenders of \Vildlife), and “the ilCC of
disappearance of Species” ai)l)eare(l to he “accelerating.”
II. R Rep No 93—412, p. 4 (1973). Moreover, Congress was
also t ,ohl that tue iwiinnry cause of this treII(l was soinethiiig
other than the iairmal Process of iiatiiral selection
“I j 1I Ian aii(h his teclitiology ha * I I coiitiiiuccl at au
ever—iu lcreasiiig rate to (hisriipt. tin’ uiatiiral ecosystem
Phi is has resuilte(l in a d rainatic rise iii the n timber and
severity of the threats faced by the orld’s wildlife. The
truth iii this is apparent h( ’n oin realizes that half of
the recorded extinctions of iiiauiiiiiuls over thir’ paSt 2,000
years have oceti rred iii the i in ist. recci it 50—year period.”
1973 Flouse Hearings 202 (stateineuit of Assistant Secre-
tary of the Interior).
is ap ro:i eli to I he 1)fl)I iii Iii 01 I . k hg, 01 )•4 I ii rM , ( Iii I.:i ii itrI till’ S81fl e
Il)i lcr( ’nt . Iiinitati uis :is the I. CC aiiti Black 13.i , , Aet2., discussed, ii 20,
SUP? (A
If cu ri iig on Fnth ilglre (l S erii ’s I ief ire I lie Si ii n otn mitt ce ol ti IL’
Ill ilI t C t Iii 11 11(1cc on Merelia lit I’ i.t nut :iiuil Fi’l ieru , 9.111 Caiig , I t Sess
24)2 ( I u7:t ) ( I .11 cuiu iii of A s i t .1111 See ret :t r ’ iii t lit lot ci air) ( hereiuizi fter
.i 197:3 1 foioe I Itariiigs)
153 0iiii iio ll of lii i ’ ( ‘oiirt
‘l’hat (_‘ongi ess did iiot Vic these iievelopuiielit lightly was
.stresSe(l by ota.’ commeiitator.
‘‘The doillil iaii t then e 1 •rva ii iig all ( ‘ungi essiuuial tlis—
ciissioi i of the 1 )i’O))OS( ’(l I Eii(la Ilgert’ ( I M ’(t( ’S Act. (If 1973 I
was the overriding need to (MVOt( ‘w/uiL(’uer effort Un(/
resonrec.s u’erc v ’e(ssar7J to avoal fiirt.lier ni iiiiiititiuii Of
national 8nd orhl ide wildlife resources M idi of tin
tcstii ilony at the heari ligs (Li 141 iii hell (Iel)ate as (Ievote(l
to the I )u)hogiCal pro l )lein of cx t ,itietu in Set i at.ors 1i III
Congresslileil tuiiiforitdy deplored the irrepiareal lie loss to
aesthetics. scn ’iiet’. ee i dogy. 1111(1 the Il8til e ial lien (age
shotih I uiiore 5Pt5 ’ie 411581 ca ‘‘ ( ‘i )f i ii *. ( ‘Oiiseh i hg
\Vii(llifr’ T esoiirees An Ovcrvie v of the EitI tngercd
Siecies Act of 1973. 51 N T) L. Bev. 315. 321 (1975).
(Emphasis added.)
The legislative proceedings iii 1973 are. in fact.. V4’ 1 )l(’t( ’ with
expressions of concern over the risk that, inigiit lie ii i the loss
of any endangered spoeiCS. * ‘ry )ifyiIig these slutinleilts is
the Report of the house Cuiiiinittee oil Merchaiit Marine and
:1 See, c q . 1973 1-loii’e I I c ir ing 2 () ( t.tt ( ‘hll(hlt. (If lOp Hoe) . 1(1
at 251 (1:11 rnwn I . of Heii \V hit t ’I ii I NI ) , 1(1 , at. 31)1 ( t .t ‘‘ilit iii of F’rirnd
of t he ].i rI Ii ) , st 306—3(17 (.i.ttcmriit of I )eftieli ’r ’ iii Wildlife) One
.t ti euneiit , (11: 1 1 k’ I)V I lie A.i ’I :t ilL Secret :i rv ol I lie Ihiterhu r, .t rI itt I In ri V
dn ..erves 1 )0 1. 1c c
‘ ‘I have watched iii niv Iifeliiii i ’ .i “:t I :irr:tv III inollii—k iii ‘,cnitlienii
st re:Lrns tot a liv (IIi lI pile.i r :t .L r i i It. of (1:1 II) 0111 ig. (11.1111 id (7.44 lOll . 10(1
1 )OIltitlOn It is oftui :i.ked of me, ‘what i. I he iniporl.tIel of I lie mollusks
for example iii Alabtimi ‘ 1 ilo not, know, i iid 1 (10 not know whet her toy
of us vulI ever have I he insight to know e tet Is wils I ln e mollusks
evolved over rniiiion of vet r or whit tin ’tr ilfl1 )nI .4111 I’ IS I II the total
ecosystem I lowocer, 1 h.Lve gr(at I roiibk’ living t’ ri s I I I I heir liNt riet loll
without ever h;tvitig gaine(I sio Ii k,iowledge “ Ill , at. 207
One mI’inia’r of the i ollii ’.k fimily c i ’t ing in thc ’ac otit hem rivers Is the
Snail, •c 12 En eyelopedu.i Hi it an hll ( ’8 (1St i ed 1974 ) which i run iC:t liv
enough l)ro ’itl ( the print iptI 100(1 for 511 111 dirt en— See . npr(i. at 162,
165—166, n 1(1 -
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178 OCTOBER I’ERM, 1977
TVA v HILL
Opniioii of t hi Court 4 7 U S
Fisheries on H. R. 37, a bill which contained the essential
features of the subsequently ( iIaetecl Act of 1973; in explaining
the ieed for the legislation, the Report, stated:
“As we homogeni’, the hal)ltats iii which these j)laiIt ,S
and animals evolved, and as we increase the Pressure ‘for
l)roducts that they are in a position to supply (usually
unwillingly) we threaten their—and our own—genótic
heritage.
“1”he value of this genetic heritage ze, quite l iterally,
incalculable.
“From the most narrow possible point, of view, it zs in
1/i.e best interests of mankind to minimize the losses of
genetic variations ‘l’he reason is simple: they are poteii-
tial resources. They are keys to l)Ilzzles which we can-
not solve, and may Provide answers to questions which
we have not yet. learned to ask.
“To take a homely, hut apt, example: one of the
Critical chemicals iii the regulation of ovulations in
huiiia,is was found iii a et)ininoij l)liuIt . Once discovered,
and analyzed, humans couhl diiplicat.e it synthetically,
but had it, never existed—or hail it l)een driven out of
existeijee berore we knew its •put4 ’iItialitIeS— v(. would
never have tried to sylitIu ’sizi it iii the first place.
“Who knows, or can say, what poteiitial cures for cancer
or other scourges, present or future, may lie locked UI) in
the structures of Ilaiits which may yet be undiscovered,
mu’ch 1e analyzed? . . . Sheer self-interest impel 5 us to
be cautious. - -
“The institutjoija1j z -jtio,, of 1/cat caution lies at the
heart of H. R. 37 . . . •“ ‘F l. R. Rep. No. 93-412, pp. 4—5
(1973). (Emphasis added.)
As the ex implcs cited here denioiistr:it,p, Congrvss was con-
eerned about the unknown List’s that, ciii I:iiigered sj scies ‘night
.153 Opinion of the Court
have and about the unforeseeablc place such creatures may
h&’vc ip the chain of.life on this planet.
In shaping legislation to deal with the problem thus pre-
sented, Congress started from the finding that “ft]he two
major causes of cxtiiictipn are hunting and destruction of
iaturaI habitat.”, flep. No. 93—307, i. 2 (1973). Of these
twin threats, Congress was informed that the greatest was
(leStruetiOn of natural habitats; see 1973 house 1-learings 236
(statement of As ociate 1)cput.y Chief for National Forest
System. Dept. of Agriculture); id., at 241 (statement of
Director of Mich. Dept. of Natural Resources); id, at 306
(statenient of Stephen R. Seater, Defenders of Wildlife) ;.
Lachenmeicr, The Endangered Species Act, of 1973: Preserva-
tion or Pandemonium?, 5 Environ. Law 29, 31 (1974). Wit-
a esses recommended, among other things, that Congress req ii ire
all land-managing agencies “to avoid damaging critical habitat
for endangered species and to take positive steps to improve
such habitat.” 1973 House Hearings 241 (statement of Di-
rector of Mich. Dept. of Natural Resources). Virtually every
bill int,roducecl in Congress during the 1973 session responded
to this concern by incorporating language similar, if not
identical, to that found in the present § 7 of the Act. 24 These
provisions were designed. in the words of an administration
witness, “for the first, time Itol prohibit ja I federal agency
from taking action which (hoes jeopardize the status of endan-
gere(l species,” Hearings on S. 1592 and S. 1983 before the
Subcommittee on Environment of the Senate Committee on
Commerce, 03d Cong.. 1st Sess, 68 (1973) (statement of
For provisions in the House bills, see § 5 (cl) of H R 37, 470, 471,
1511, 26 9, 3696, and 3795; §3 (ci) of H R 1461 and 4755; §5(d) of
H H 2735; § 3 (d) of H 11 4758 For provisions in the Senate hil6,
see § 3 (d) of S 1592; § 5 (d) of S 19S3 The House bills re col-
leet ed in 1973 lii ii i i ’ H c_i riii , S7— 1 S5 . t lie Sen:i t t- I oh l. a ri- foii io I iii I he
I l t ’d rings ciii S 15’)2 .iiul i9S3 ht’fore i Iii Stilieniirniiit,’e iiii i•: IrolIIn(’IIt
of the Senate Cuiniiiit tee on Coiiiiiieree, 93d Coiig , i t & , 3—19 (1973)
179
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180 OC’I’OBEl TEUI\1, 1977
TVA v HILL 181
1 i’’’’’”’’ ii I ( 0(11 1 437 tJ S
1)cI)IIt 3, .‘ Ssi5taii t, S eret:iiy if (I U’ Ii tcrur) (eni plia. ..is added)
flirtheritiort’, the )rOpOS d l)iII ‘oiiliI “dtrccl I all . . Federal
agencies to ii tilize their au t ,hiori ties for carrying out, )rograms
br 1/se prote( Iw o of enshuigere(I aiiiinals.’’ 1973 House Hear—
itigs 2O (stati ’iiu ’iit. of Assistant, Secretary of the Interior).
( l inpha.sjs a(lded_)
As it was fiuially iassed, the l ’ ialiuigei ssl Spe a ’s Act, of 1973
rcjwesei I tC(I the litust em ii sri’ht•i isive hgislat ,ioii fur ha’ I ireser—
‘aLiou of t’iiii ilgerell ii• , ‘ver iiarted by aiiy natioii. Its
Stat,e(l )U RO eS ‘(iI ’ t() lirtivide 0. iii ’iLiIS vhieiehy the ceo—
systeiiis 111)1)11 Vlll(’lI t ’iid;iiigeieil Slieries :unl tlireatt ’iieil sj i ’eit ..s
(kjs ’iUl uiiay l)e C(Ji)SI’I veil.’’ siul “ IA) l)rOVI(h( ’ I)r gram for the
coiiservatioii of SIIdI . s s ’eirS . .‘ 16 tr. S C. § 1531 (b)
(1976 ed.). [ a furtheraiice of tJiese goals, Congress expressly
stated iii §2 Cc) that ‘‘all F’i ’kral ck ’iiartments and agencies
.s/iall seek to cOii.w ue e’,,ilaji qeri’d species and th reateiies I
species . . .‘‘ 16 U (‘ § 1531 ( c ) (1976 ed ) (Emphasis
adth ’d ) Lest there he any anihiguit,y as to the Ineaiiing of
I.liis statutory ilireet lvi’. I hut’ Ait s 1 ii ’iifieally (lefihied ‘‘coiiServe’’
as moaiiiiig ‘‘to use itii(I tlii ’ iis( ’ (if till iiicllwd and praccdurcs
w/iirh are neeessar j to hriiig Iii!/ tiidasiqered species or threat—
cued si ecies to the sHut at. ‘ Ii ich thii’ ineasures Provi(l(’d
h)ursua t to this chiaiiter are liii lotiger necessary.” § 1532 (2).
(Em1 )hasis a(l(le(l. ) Ass I c from § 7. other i rovisioiis iiid icateul
the seriousness ith which Congress ‘iewe(I this issue Virt,u—
ally all dealings with em ha I igeretl S )eeies, i nd tiding taking,
J)oSSCSSiOii, trahislsirtatitihi. and sale, were prohiul)uted, 16 U. S. C.
§ 1538 (1976 ed.), except iii extremely narrow circuunst,ances,
Sec § 1539 (h) The Seeret ,ar.y was also giveti extensive power
to develop regulations and programs for the preserva.t ,ion of
endangered and threatened S pecies. 2 ’ § 1533 (c i). Citizen
A tori Iiir imlii.it iou of 1)0 ( ouimiiriliu ’ii i i• , mh 197:1
I lui—i.,u , .,1 uI,ii if u.ii , . ,I — n • i...” . i. . I. ,— . . Ii —i r iug 1i ,I, r.iI
1. 1• 1 • i . . I ,.,u.... I —i... , — . .1. liii, ‘I — u Ii..— , i liu , Ii ii. Iii ,. I m,
I .. .11 , 11.1 i,I • i. 1 ii I ,ui ii. I..,. .., .1.1. f,ii, ,r, IIir..ii 1 , I, ,.iit . iIi
153 Opinion of the Court
involvement was encouraged by the Act, with provisions
allowing interested persons to petition the Secretary to list a
S CiCS as endangered r threatened, § 1533 (c)(2), see a. 11,
supra, and bring civil suits in United States district courts to
force compliance with any provision of the Act, § 1540 (c)
and (g).
Section 7 of the Act, which of course is relied upon by
respondents iii this ease, provides a particularly good gauge of
congressional intent As we have seen, this provision had its
genesis in tlit ’ Emalamigered Species i rt of 1966, but that leg-
islation quahi etI the obligation of federal agencies by stating
that they shioiilul seek to preserve t ’iulaiigercd species only
‘ iiisnfar as is practicable and COflSi$t(’flt wills the I in pronary
7YU O8CS . . . .“ Likewise, every bill introduced in 1973 con-
tained a qualification similar to that found in the earlier
statuites.’ Exemplary of these was the administration bill,
I-I. II. 4758, huchi iii § 2 (b) would direct federal agencies to
usc their authorities to further the ends of the Act “insofar
as is practicable (ifl(1 cii,,sistt:nt wills. 1/wi ir] primanij p ar—
OSCS . . . .“ (Emphasis added.) Explaining the idea behind
this language, an administration spokesman told Congress that
it “would further signal to all . . . agencies of the Government
that this is the first priority, consistcnt with their primary
objectives.” 1973 House Hearings 213 (statement of Deputy
Assistant Secretary of the Interior). (Emphasis added.) This
type of language did not go unnoticed by those advocating
strong endangered species legislation. A representative of the
or a significant portion of [ their] r amige” 16 U. S C § 1532 (15) (1976
c cl)
2GFor provisions in the Hotise biIIs, see § 2 (c) and 5 (d) of H R
37, 470, 471, 1511, 2669, 33i0, 360’i, and 3795; § 3(d) of H II 1461
usi 1755, § 5 (ii) of II R 2735, § 2 (h) of II II 4758, one ol her house
lull, II fl It ,’), iiniu ,s.d no ruluIirelnemIls nit feul.•r.il :Ig (’uu ii For pro i —
‘,uuiu, iii i lie S(ii:li( hill, sd § 2 (Ii) of S 1592, § 2 (b) , and 5 (d) of
S i983.
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182 ( lOHEIt ‘i’i•ltM, 1977
‘liunlifli iii I he ( iitii i. 437 J S
Siel’ra Clult, fur t’xciuil)le. aLl.aekcil l ,lie uSe of the phrase
‘eOlI ,jslciit with the )riliiiI ry purpose’’ in proposed ii. 11. 4758,
caution itig that t.hie q uia l ficatiout ‘ ‘couhl ho coilstrlu ’(I tA) I e a
rieclaration of ( ‘OIign.. ioiial policy that ot,hcr agency purposes
arc ile(•essari ly more iIIiI)ort,ailt. than protection of endangered
.s I)eei( ’s and uiilii ah%ays J)revail if (‘OuifliCt Were to occur.”
I 973 U 5 I I i’i uig : 5 I sta I ei in ’, ii. of hue ellairiutut )f tin’
Sierra Club’s National Wildlife Coiiiinit te ) ; see id., at 251
(stateiiient, for tin’ National Auiduil)oil Society).
Vhat, is very sigi ii fican t iii ( Ii is s( ’(Juci)ce is that the fit tal
version of the I 97:3 Aci. carefully otititted all of the reservations
descriheri above Iii the hilt lncii the Senate initially ap-
proved (S 198:3) ho ever, t lie version of tile current § 7
i iiert’ly req ui re( I let tern I ag ‘ I ten ‘ to ‘‘cc rry on t suel i rogra ms
(1$ arc prae_licablc for the l)rutAetioii of Species listed - . . .“ ‘
S. 1983. § 7 (a). (Eutipliasis added ) By way of contrast,
the 1)111 that origi iiai ly niSset I the I louise, 11. It :37, contained a
provision which wa.s esseuitiallv a mirror image of the subse—
net i thy passed § 7— —m in Iced nil phrases wh icli might have
i Intl i li( ’( I a ii agency’S rest a a ism I aim ties laid heen 0111 i tte(I from
the bill In explaining the expected imilact of this provision
in 11. R. 37 on federal agemicies, the i-louse Committee’s Report
states:
‘Thms subsectiofl requlrr..i the Secretary and the heads of
alt other Federal dc ’partineiits amid agencies to use their
authorities mu order to carry tnit pi -ograms for the i ro
We Itoh’, however, I I nt l. Iii I l i i! 4istofl of S 1983 which W its *.üiit to
I lie fl’iur of the Swnu he liv I lie Sei I:, I e ( ‘men tilt (in out Corn ineree, the qirn hi
i Hg l I Iigti:ige ‘‘wln rcver )ra ci uv.iI iii ’ ’ ’ ht:nI been net utreml front one p.i rt of
the hill, I lint. being § ( h ) Sti’ I 19 ( ‘lung li,’c 256 3 (197:1) Seci ion
(h) w.i I b m ’ Iinrhju,ii of 1953 tli.ui i.ilt ’mI thi ’ hiIirhuo :iinl iiohiry’’ of
( ‘iiiigri -— Butt uh, - ( ‘utiulitil i 1 A INtuit t ,1 S I’l5.1— hunt reiuusrhi I
I. iii. lull s. 11111—— t. i iou, ‘ I i I i. luuuiii ii uuii ‘.0 ‘ I lint ,‘ ii ,t.. kr ,’ I I 9
•“i: Ii’ • I I m”; o
.1 ,i :iij •,; nil,.: —
TVA u HILL
15,3 Oiiifluni mu iii ,; ( .0 1 1 1 I
tection of eiidamigerc.d species, awl it further rcq iircs that
those agencies take 1/ic ?wrcssarI/ (whoa that will iiol
;eopardszc the con Liii ii ing existence of en laugered si ecies
or result in the destruictuoii of critical habitat of those
species.”’ H. B. Rep. No. 93—412. p. 14 (1973). (Eiui-
phasis added.)
Resolution of I -his d iflercitce iii statum tory language, as cl i
as other variations between the I louise aii(I Seiiate’hmlls. was
the task of a Conference Committee. See 119 Cong Bee.
30174—30175, 31183 (197:3). The Conference Report, H B.
C’onf. Rep. No. 93—740 (1973), basically adopted the Senate
bill, S. 1983; but the conferees rejected the Senate ersioi i of
§ 7 and adopted the stringent,, inainlatory language iii H. It.
37. While the Cou fer nce Report inadc ’ Ito specific reference
to this choice of provisions, the House rnamiager of the 1)111,
Representative Dingcil, provided an interpretation of what
the Conference bill would require, inakiiig it clear that the
mandatory provisions of § 7 were not casually or inadvertently
included:
“ [ Section 71 suI stamit.iaJly aunpiufie sI the obligation of
[ federal agencies] to take steps within their power to
carry omit the purposes of this act. A recent article
illustrates the problem which might occur ahsent. this new
language iii the bill. It appears that the whooping erane.s
of this country, Perhaps the best known of our endangered
species, are being threatemmed l)y Air Force bombing
activities along the gulf coast of Texas Under existing
law, the Secretary of l)efemlse has sonic discretion as to
whether or not lie will take the iieeessary action to see
that this threat (Ii al)pears - . I Olnee the bill is
enacted, I tile Secretary of i) f iisp luov!(l be required
ho take I/s c prep( r . ‘tlcps -
“Aiuot,lii’i- exnumijtli ’ - - - I has I to do with tIle eomit ,iiiciit ,aI
poPulation of gri ly bears which may or may tot he cii—
damigere I, hut which is surely t ,Imrcatmuimcd. Once this
-------
1S4
OCTOBER TI 1tM, i977
Oiiiiuoii ol tin’ ( ‘IHirl 437 tJ S
bill is enacted. tlit’ appropriat’ S ’cretary. whether of
Interior, Agriculture or vliat,cver, to il have to takc admit
to See that this situation is not perniitted to worsen, and
thai, thesi’ hears are not driven to ext,inctioii The pur—
hOSeS of t,hit• 1)111 iiwl iitlt ’i I (,lie eoiiservat .ion of t.he S CCiCS
aiitl of ilte systi ’iiis tipuii which they ile lx ’iid, and
tu’r,/ (L(/efl(1/ tif i/(flJt’rnn,( ’IIt iS’ commttted to SN that those
flhi )Os4 S are o ’arrit’o I on t. . . I ‘ I’ I I i ’ agi ’iicies of ( ‘.ov—
i’riinieiil. eaII no liniger pI ’ad l.hiat they (‘:1 1 1 IIO iiotliing
iLl I OU t, ii . ‘I’Iir j ruM, (111(1 !II( ’!/ ,,iiisf ‘ 1 /se lais, is clear.”
119 Cong. Rec. 42913 (1973). (Emphasis added.)
It, is against this legislative backgroun(l 2 ’ that we must
measure TVA’s claim that the Act was not intended to Stop
operation of a project which, like Tellico Datit, was near coin—
l)lCtiOfl when an endangered species was discovcred in its
path Vhile there is no discus.sion in the legislative history
of precisely this Problem, the totality of congressioiial action
makes it abumidamitly olear that tue result we reach today is
hiolly iii accor(l with both tito’ %or(Is of the st4Ltutc and the
intent of Congress. The plain iiit4 ’mit of ( oiigress iii enacting
this statute was to halt aii(l reversi’ the trend toward species
extinction, whatever the cost. This is reflected not only in
the stated policies of the Act, but iii literally every section
of the statute All i o ’rsomis , ineludmiig federal agencies, are
specifically instructed iiot to “take” (‘il(lai lgere.d sl)ecies, mean-
ing that no one is “to harass, harni,’ pursue, hunt, shoot,
‘ When comi fronted wi iii a st :LI iii e wI 11th i phi iii .1 iid uru ml nguoi Is Oil
ii s lace, we on I i na rilv do not. look In I l ’ghi:I I ivit ii ist ory as a gti itli’ IA) its
me.tnlng Ex sarte Collctt, 337 U S ‘55, 61 (1949), and ea.se cited
i herein hero it. i not, net e. sarI; Ia Iui k is ’ ’iiii il I he words of 1.1w seLtilte
W i’ have ii in krl.i ken si irk ill a ,i.i to I 1, iii’et. Mit .1 u ’ ’i ’tr I ‘ow i:
‘llggt’ Ii(iil thu tin’ “.ih ii,ul’ ru,uiit ic.u ’Iii ’,I us iIii ci ’ . ’, psat, .it i’)li, i
lull iii . 1 1 t’oril ii Ii congrv’ ioii:il 1111,1)1
‘i’ ilis 11111 ii,iii.’r—i.iui.i Iiii ‘I’V ‘t ,uii,tiii, iii li;i’r.ti. ‘l ’i’liis’o I ).iiui
t uuii..uii Ii iru, ,lI. I iii. “i i ii .1 .It. I ‘iiI ‘ . • I , •i’ , .1 lii . liiui ui ,i ii, ’.
•i’ Iiii ’’I ii ,, 111111 Ii 11111 II II .111 . l l ii • I IIll . ’I lI ‘.)lI. Ii .i ’ 111.111)
TVA v hILL 185
153 ui,i n iii of I lie Coim ri
wound, kill, trap, capture, or collect” such life forms. 16
U.S. C. § 1532 (14). 1538 (a)(1)(I3 ) (1976 ed ). Agencies iii
particular are directed by §i 2 (c) auth 3 (2) of the Act to
“use . . . all mat/sods and procedures which are miecessary’’ to
I)reservt’ euulniigem’e(l specIes 16 1 r. S. C. 1531 (e ). 1532 (2)
1976 eoh ) (eiiiphiasis iI(l(l (’(l ) lii ink hitiou ,. t.In ’ legishit i e
history iiiitho ’rgircl ,iig § 7 reveal’, an ( ‘x 1 )hicit cinigressiotial deci—
sioii to require ageiicies to afford first. lriorit ,v to the lt’clar ed
national i sdicy of Sax i ng o’ii(la ilg( ’re(l Si )(‘ei( ’S ‘l’lii’ 1)0111 t ’( I
oin issioi i of the ty pi’ (if quuili fyi uug hi ilgulago’ pre ’i iis1y i iicl in 1e I
iii endangered SIW.CIC.S legislation reveals a conscious ilecisioui
by Congress to give endangered Species priority over t ,hie
“I rin1ary nhiSSiOilS” of federal ageno’ies.
It is not for us to speculate. iiiuiehi less act, on whether
Congress would have altered its stance had t,hio ’ specific (‘veiut.s
of thus case bceui antio’il)ated. iii any event we discern no
hint in the deliberations of ( ‘omigress relating to t.hie 1973 Act,
that would compel a different result thami o’ reach here
IllJsIr (’s tu kills wildlife, ,ii.’lsi .liiig ails windi ,innov it I ., suirli ;iIi (‘\I4’IIt a’
10 sugiiufic.i iii ly disrupt e s Iit in I I n’ha ior.I I pail cr ’, w Ii id iii ritu Ic, 1)111
are not lImnItAXl ,id brt ’cdiiig, fo’diiig (IF iuIIcriog . Mq,,sfi asit en i’zrw.—
mental naothfiration 0,’ tl i’qrath,lwn whu Is Isa.s’ . ,u Is c/Jet Is is ine!nth’d
wit/un I/se ,neanisg of ‘hams ‘ “ SI) CI ”I{ § i7 3 (1 [ J7li) (impimsis :ithk l
see S lIeu No 03—307. , 7 (1973)
The only portion ol lilt’ It’gi la I o t’ IiNtorv hiu’ii I set ii ioner cites .i
being f:L%’orabie to II l)O iI mull (‘(lIlSISIs tif cerl a is sI ,i(ements made by
Sena I or Tuimsey (Ill I 110 floci F (If hit’ St’i I II (‘ tin rh ig (l(’i).I I (‘ Oil S I 9S3 , s i ’ I i ‘J
Cong He .’ 25(i91—25602 (1973) Se,i.ilor Tuiiiuic’v v . :i ked whet her li ii ’
proixscd bill would affect I lie A nis ’ Corps of Eiigiiio’r’.’ cleei’ ioui to busuhil
a road t hroiighi a pan meuli r a re.t of Kent u ,rk ’ l pi iiidiuig Its I Iii’ tpie’ ,—
ion, Senator Tuiinev opined that. § 7 of S 10S3 would r iuIIre eonsult:i—
ion a me, ig t lit’ : 1 geis. les in’. ol v(’l I, last I h.u I t iii ’ ( ‘su r i iii Euigi no’ N ‘‘ ‘ . usi lii
IIOI hW prohuiI iied froili lniildiiig uu Ii a ro.i,l ii 1 lu’. iI .cinol it ,ieo .:tr ’ .
In do ‘sfl ‘‘ I 19 Cong lIes 251. 5’S ( Pt7.4) Pit it blur hiiI .’rIIli’I ihiu .’
reni.irk’ 1(1 ,in’:tn thi.iI .111 :Ig.’,II , .ifh’r h.ihiiu lug I Ii ,’ ii ‘ .IH’i’tI ’ . .‘
,uiv..I i’iI, i .iiilil u .s i .l lii I •k.’ .,i’i,..hl si Iiiu ii tiiiii ,I .‘ ti, i.vIi’ .1,1 iiiil.ii ,g u’r .’il
Ii uli.ut I ” %hI it Si’ii,iii ,i ‘i’uiiiiii ‘. iili’.iiil , h ‘ .i . ‘, .... .,‘ ‘ in
-------
186 OCTOBER TERM, 1977
TVA v HILL 187
f ,I C Ft 437 U S
Tl1(l(e(l. tue rcl).eat.v(l xpr ssii HIS of eoiigrvs.sioiial concern over
what it, sow as the )ote,lt ,i:iIly ‘iioriiioiis danger jrcsenteri by
(lie eraAl ication of QIIiJ i ’iiilangei-rtl speeit• suggest how the
l):llflIIee V4ftIl(l lia ’e h) 19 ’li iLlII(k h;ul the i ttt ’ l)eeIi I)rVSt ’flt( ’(l
to ( ouigre s iii 197
Furtl ’rinore, it IS (•h91 1’ (‘ongress foresaw that 7 ouild,
on occa.sion, require ogeuue les to alter ongoing projects iii
order to fulfill the goals of the Aet,. ’ Congressman Dingell’s
(hiSeusSion of Air Force practice hininbing. for instance, Ob-
viously pinpoints a particular activity—intimately related to
cont r:ist. In ev ’n’ ni her l ’\pre Ion in thC kgi l;it lye history L to I lie mean—
iiig lii 7 l’or e :uinple, wlieii I Iii ’ 1 etil iiihv e\:uIiuphe WJ l)rohIghut. tip iii
liii ’ Stii.tle lii:triuig ’ , an ;itliiiii ii’.t i.ii lull 1 iiuku ” iii iii iiilerpui ’iuuI iii :iii.ilui—
gouls iii I 5’J2 .i.’ ‘‘ iioliilui I ii itz I 1.1 I toh’ral :ugeliry Iruuiui I a kitig
a it 11)11 vli ii Ii does jeo r l ize I he ct :ut us ol I nl:u ligul o I i wt a’s ‘‘ Supra, at
179 Mo rco ur, we lint e (hat. 1 1w Versiohl if S I 9 :3 l)(,Iflg (I Isri i 5l’( I I )V
Senator Tuiniicy roiit:ii,iol 11w ‘‘:15 llr.uet ie:ihlr’’ limil.ut ion in § 7 (a) which
%L’I ’ lii i ’ pre iiiti’ .Iv Iii. iii iouieil See ‘.ujl,u, it I Si ’ii.i loi ‘I’tiiiiut ’ ’’ ,
ruiii.irk InrIi.ui u• pl.uiii w Ii thi , ’ ( out. ut ’uu e (utiiuiiil tu ’l’ uill,euIllu ’iIt I v
uleltitul ill iie1i u iii.Iifvuuig u . jii . ——ion— Wi i uu,i—l rile I lie Spnuiuui ‘ reiui:trks
i . ‘iuuipl I III ’.ililIig thi.,i uiiiiler iii. ’ I ’i7:: .l the i ’ ii . v it. ’ . 1 i.ii .uld• br liii’
lroj(•l u would havc I hit• “1111.1 I Ipri’. 1(1 1 1. I i’i ( ‘u ji ig I u 256t)t) (I 97.1),
to vIiet her I lie alt ion .hiouulul ii, 11111 wit li ’,t .ui iiliiig eanI ra rv :ulviie
from I lie Sccrei :t rv of I lie Ii hum U ir ‘I’I ir Si ret .1 rv ‘ neon rse i till ul I a’ 10
iii lie r appeal to hi igher :1111 lion Iv iii I lie iii iii in i t r,i t ion, or v meted to
Ill ler.i I coil ri ii iider I lii: ruhu ’ .1 lii i’ mv i loi of I lie Act, cii i e.is i nay like—
w e seek ‘miforreiiicni. uiiakr I ii U S U § 1540 (g) (1976 elI ), as ii.ts been
iliine in this CaSe
‘ MR JuJsTlc : Powvu. u’hi.ir.a’Iuri u ” (he ir ’ tilt reiiclieul here :i.s giving
‘ retroact i e” 1Tcu’t, to 1 1w l iiuI;u iiguri’il Sperie , , ‘trt of 1973 We cannot
accept. t hat. Cotit iH ion On r lii .1. I tog 11 1191•1 v gi vu ‘ effect, Itt the pl.u n wi mrds
of I hu t itIit e, n.iniely, I hat. § 7 ii lice tp all iruiject s vl i ak renia iii to be au—
thoru zed, funded, or c:t roe, I out lid emil, ii iider the Act I here cot i Id be 11(1
“rel.roact i we” applical Ion sii e e, hy i h ’fi nit mu, any ,sr,or :teI ion of a federal
agency hiHi wov/d Iii we ciii tie ii ii , ler liii: ,o ,pe iii I lie Act. mi i I. hi :u ye
Lire uul res ’niluv( in lIlt’ uli’.i till tutu of .0 1 t ’iuil uigitol ‘.pei ie or u( rritie:mf
Ii.iliii ii lii ili.ut ,Ir , uiiui—I.iui ’ ’i• uhiu’ —I ”’’ ii’ — l% , ,uihll hi,i ,’ :ilII.luh%’ Iiii ’ii u’\tii—
1 ‘‘r Ii’ , Ii ,Iiii. .i •l , ’—ii,, ,.I il ,’ i’i i, ,uuhih 111,11 li.i t• ii i . ‘. 1i 1 9 ’u I mil.luuu’r
t ‘.hiii hi ii iuiigliu .uiii .I
153 Oienioi (If tIn’ (‘utort
tile na.t.ional (IefeIuse—wlulchi a Illa.jI)l’ fNk ’raI tlt ’juai ’t.inetut would
be oblige(l to al tA!’ ill dpfereuic’e tAt the si i’lelutr( ’s of § 7. A
sitiuilar exauuul)h ’ is I)n) ’i1ht’(l by tin’ I louse ( iliuluu ltt(’e Report:
‘ ‘Uuuuler 1,1w auit,huorit,y of I § 71, the I)ireetor of the Park
Service won Ii I hi’ i’equi ired lo ems for si I/sc ,srm:tircs (If II 1.4
(If/enCy to the lt( ’e(h for )rot. 11 ’t.I iug tin’ rapidly dWilu(hhullg
stock of griz . ,ly I)eara within Yehlo .louii ’ Park. ‘l’hiese
hears. which may he eiuuhauigered. ;iint are uiii(Ieuuial)ly
threatened, should at. least he protected by stipplyiiig
them with carcasses froi n excess elk wi thu iii the l)aI ’k,
by C2Lrt i’liiiIUJ 1/i c (/C 51TW ’t7O?1 of /1(iblIO! in, rii” rcntIwçj
,\r(tt on(,I / ‘or(’.41.$ . ‘cIIl ’I’(IUh l(IliI(/ I/u: I’s ’ii’A . and hiy )r( ’vehitilug
luuuiut.illg hut ii 1.1 1 191’ iiiituii ,e,s ilil ’( ’ t’i’i’ot’i ’t i ’iI SiIfhi( ’i( ’III.hy
to witlistauni tht ’s ’ iu ’ssuiu ’s ‘‘ hi. U I p NIl o: — 412,
p. 14 (1973). (Emphasis a(l(Ied.)
One might (hiSl)tit( ’ the al)h)licah)ility Of these examples to
tile Tellico Darn by saying that iii th is ‘ase the burden Oil
the public t.llrotighi the loss of uuuihlioiis (if umu lr( ’( ’overai)l( ’ dollars
wot ild great.iy outweigh tI u ’ loss of thit’ sui:i Ii darter.’’ But
item timer tile EiI( Iatlg(’r(’ I I ) ‘(i S i et. nor Art I I I of t. 1 i ’ (‘oii—
StitUtiOll l)rOVl(hCS federal ( ‘Otit ’tS with authority to Iilakt such
fine utilitarian ealeumlnt.iouus. On the contrai’y, the plain lan-
guage of the Act, hut ,t.resSe(I by its legislative history. siuo S
clearly that Congress viewp(I the value mf eiidamigered slx clc ’s
as “incalculal)]e.’’ Quite obviously, it 0111(1 he (lifficuilt or
MR .JUsTii:i -: 1’0.\%’i8 ,i.’ . iIi’ ,etut. IliliPt’S gre.ut relt.i iu tin ( hurrh of 1/ it
1101 1 1 ‘I’, ’ in,tq v (Jisited .St Ie. 113 II 5 -$57. 459 1592) jlrIst. :it 2 1 1 -I, tu
support hi view of the 1973 Art” legu lai we hm—tu,rv ThiN Cuiiurt , how—
evor, hat or e pl:i i ned FbI , , ‘friii,l II :N np dying only iii ‘ r., r,’ .tiiul & ‘se(’pt 11)1181
ci reuiun I a nec A tid I here mu—I I a’ 4 uiflu ‘I hi iuug to make i 11.1411 I lie
lnIc ”Iut of lingre. .’m I hat tltu’ lu’u ler 01 thi,’ taIuiti’ N not tO pru’v.iih ‘‘ Cr oo l ,s
v !Iorri’I.’ ou, 252 I I S 55, 1,0 (I 9: O) e i’ hi: , ,‘ —1411 fri .,ii u ii I ’
t iii uI tIn’ ,IIuu liii .iiiil liu—tu.iv iii tlii’ I’,i7. ,\ci , mliii,’ i— iiu ,ihiitig Ii, iil) —
hurt I ha’ .uerthqIli uhi:ii II , ,’ lii , r.il liiu’.tiIiIIg of § 7 ‘ .lu,uilil tHu. .IhIlll iii ihi.
-------
188 OC’I’OBI ’lt Tl1Th1, 1977
TVA i, HILL 189
liIiUI!i Hf t lie ( ; lPlIl i 4:37 U
L (()11iL Li) l)alauICe the Iic.s ot :1 Shut (Prt.flhih— eveii $100
iuiiiiioui——:igaiuist. L cOuiguPs’iuiui liy (h (i8t(’(I ‘‘uiieitleiilahle’’
value, (‘Veil asShitihihIg we hail tin’ power to (‘ulgagi’ iii
a weigh i iig ro(s ’ss. wit irhi wp euit haticahly (in not
To p:u sihig the 1’u1(la uigeretl Species Act, of 1973, Congress
‘as also aware of certain instances in which exceptions to the
statute’s broad sweep won 1(1 i)e necessary. Thus, § 10, 16
15. S. C § 1539 (1976 ed ) creates a utuinher of lirnitA’d ‘‘hard-
Ship cxci options,” tione of wii whi nuhl even remotely ap )hy to
ti te Tell ICO Project. T n fact, ti ii ‘re are i in ( ‘X( I l)L 10115 I II the
li1(Iang(’rC(l Species Act for federal agencies. mean lug that
under the fllaxiifl (‘TJ)r( si4iO fl7Hi4 (‘St (‘XelflSUJ alterius, We 10 uist,
h iresu me that th ese w ’ie Lii e (ii ly ‘‘I l a r ishi ill eases” Congress
iflteil(lCd LI) ( ‘Xeflhi)t. Cf !VUiiOIiO1 il (tlIroa(1 l ’asseii jcr Corp.
V. Nationat Assn. of Raitrowl / ‘(,ssc? .q(’r.s’ 414 IJ. S 453, 458
( 974) 14
\Iii .ht •“uii I 1’Ot% I LI.”-. li’.—( iii i lii’— ‘iii 4’i ” — lll ’rI(IC(l iiuiiler liii ’ N.i
Ii. iii:i I I ii ii iiiiiiii ’iIi :11 I ‘iilii , “ ,i I I i ito t ii ‘‘ —ii i ’m iii ii Iii l i7’ u
IiiiiiliI uiiil .iiiiil ’ Iii )rl—hIll I tm it mph ’. .uui .igt’uic I’v , t. it 2(P5— li (i
‘1 1 14’ N I 1’A ilpi’i’uomu ’ -, liotte m’r. .ime i nin 1 ili ’hm’i lu.ippo-.utr i ”ir ’ .t . the
t’ ,V( ) ‘ - .t.Lt hihC . ‘.i’rt C differi’iit i)mIrl) ” . N l ’,I’ ’\ i’’ .i—i’iiteully iini)o’e-’. .1 pro—
eeiliir:il r(ImulrCiIlei an :ig ’ni ir’, rilluhui lug I li I ’iii I I I iIg.igm ’ lii Lhi e\tl ’I) ’ .i% C’
mnqvirq ;e to 11w effect iii feiieral .imi huh oil the en ’iroiimeiut., liv w,i ’
of cont,ra t., the 1973 Act is stibstant ire In i’ffecl , designed to prevcnt the
io s of .imiy endangered specie ’, rcg;i rdleu’ of the eact. Thus, it, would make
sei c to 110141 Nl•:P \ imia u dir:uhilt at iiiiw plant in the life of :i IuroJc( ’t
1 ue(’ause I he ageuicy womili I 114 I k aigc ’r li.t :t I nC. I iii uiglui I ohiport liii it V to
uueiqh I he beiiefi t s if I he i irojc’et. vi ’r m h I ho ilet rimnt ’n tal effeel x (iii I lie
en vi ron ment Sect ion 7, on I lie at her lam nil, earn pel, : 1 geuicic not, only 10
co,u,ider the effect. of t lieu r urojr ’rt ‘. tili cia I.i l)g(’rvd SpCeu1 , hi it. to I a ke
I ci hal’. :i ’i are iwr( s:I ry In ins lt e t Iii t sp(’( ’I ( :i re not. ext i rp. it ( SI as .4
result, i ii ft’der:iI aetit’it Ic’. Sit uiiitl, m’t iii lIi t ’ N l’I’A rises have geuicr.illv
reqi ii ri’. I a gt ’uieics t a file cii vu ro. iinei it :il liiIleI l’t. stIll emenit s whieui I he re—
uiu.uinuilg guivt’riiflwiitail act mimi w(puil(l hit’ t•uit urimiimnt’iut ally ‘‘sigiiufii’iirit
See, C q R ,iv,miime ,uta! I)rfrieie Pit,.,! r I t II , -168 F’ 2d 1164, 1177
(( A6 I 97 ) I miter § 7, t lii. los ol fill I ciii Lii igerci I ‘ . em ’ie’ ha’. I weui
ilt’u,’riiiuui,’ul liv ( ‘angles’. to hi: m’uivurtmuiiuii:uut.uIlr “ ‘ .uguuifii’miuit ‘‘ See .‘.l lpra,
itt 177—179
153. iiiiIi4Hi of I he ( ‘aurt
Ni,t, vi thistaiii I hug ( ‘ utigress t( hl t. 1973. we
are thrge(I to fluid that t,he eoiituuiuiuig al)l)iol)rIiLtiOuIS for Telhiro
Dauui couistituite au iuiiphied repeal of the 1973 Act, at lea ,t
insofar as it applies to the l’eilico Project Iii su1I)h)ort of
this View, TVi poiults tA) the StateilleultS foiiuid in various
1-louse all(l Senate Appropriations Coiiiinittees’ Reports; as
described iii Part 1. swpra, those 1{eI)orts g(’Iwrahly reflected tue
attit.iiiic’ of the CO,)i,IIil1(’C.S (‘it.hI( ’t’ that, thit’ A( ’t did not a )ph
to Tehhie .o or that the (lain should h)(’ eouii 1 iit’tctl i ’egal(ileSs (If
tue l)r0 ’isi0iis (If t.hie Art. Siuucr V ii’ are uiui vuhhiuig to tSShIihI( ’
that these latter ( ‘oI lhinittA’e Stat ,(’ihiehits rol ist,ithit(’( I advice to
iguiOre the pro ’i jui Is (if a (hilly euiacted 1 I W, we hSsIiiii (’ that
these ( oiniuiut,ters believed that the Act, siuiii )Iy V ms not. alihihi—
cable ii) this sitna Lioi I BI I t ( ‘ ‘(‘hl ni i i cr I ii ib iii terpretatioii of
t.he Coii ln)ittees’ actiOiiS, ViC ai’e tIiIilh lIe to coiiclude that, the
Act hums het’ii iii ally resp(’Ct. 8.ineil(i(’(I or i’(’I)C 1he(l.
‘l’h iere is iiothiiiig iii the apl)ropriatiouls measures, as iia.ssed.
vhi 1(11 states that the Telhico Pi ’OI(’Ct Wa’. to he C0 1 11 1 )lCtc(l
irrespective of t.he requiireruiruits of the’ Eumdangereth Species
Act. These u ppropriatioiis. iii faet . rei )res(’t ted relatu ‘ehy
minor compouieuits of the luitup—suuin aiuouitits for the entire
TVA budget ; t1 To fluid a repeal of the Euudaiugereci Species
Act tinder these circiiuiistauices voiiT I surely (ho vioheiicc to
the “ ‘cardinal rule . . . that repeals by iuill)hieatloi i are utot
favored’” Mortoit v. Ma,irori, 417 IT. S. 535, 549 (1974),
quoting Posado.s V Natwnal City Bank, 296 1J. S 497, 503
(1936). In Posadas this Court held, in no uncertain terms.
that “the ifltcittiOll of the legislature to repeal must be clear
and manifest.” lbjd See Georgia V. I’cI.n.sytvaJlia It. Co.,
TI a’ A pp roi uru.i I bus Acts did I lot I heinscl es ii len ii Iv I Ia’ I iroji’i I’. Iii
wh ichu I hue ‘.11 1115 liii I 1 peril :111 1 Ir0 )l i,ut (Ii , 1(1(911 ihi’.i ill at of t lii ‘ t• pi imji’ct s
rtq liii rI’s reference to I lie l t’gi’.L l Ii t’c hi—t ur Scm’ ii 14, sf1 jiru ‘I’I iii’.,
.1 I ’1i’nuiIa’r ‘ .i run iuiiz’mI in d c l au 111(1 Coiuiuiuit I ‘ pror i’i’ iluiig’ . (‘mull m’rui—
ing the :i tpro mh i,thul ihl”. lit’ toiihI hive 110 kiititvli’.lge uI tIn’ Iutm — Ilmle
(‘flflfl let. het Wt’CiI lIlt: l’l iii liii in’. I liii iuli ng 1 111(1 I Ito Eiu l,i Ilgi’ ret I I lent”. Act
-------
190 OCTOBER. TIR I • i!)77
TVA v hILL 191
)iIIIIIoII ol Iit ( . ,tii I 437 tJ S
:324 u. S. 439. 456—457 1 194 i ‘o i a clear re )l gnalIcy
l)eL% v ’lI the old . . :uiil tin’ li(’W I la resuit iii the former
giviIlg way . .“) ; (InU d St.at v. I?ord( n Co., 308 U. S. 188,
108—19 !) (1939) (‘‘III ii tea Luni of the legislature to repeal
‘must I)e ejear aIIII IiIiIlfl 4t’. - - ‘J A] poSit .mve re )lmgl,aney
I i)etwe( .ii the tIlt I H uid (lie hew la ’s I’ “ ) ; hl’ood v_ (Jnitcd
16 I t 342. :36:3 1842) “I ‘1’ lr imist he a positive
re nlgIIalI(.y - ‘ ) Iii i)r;W(,iri_ I terumis, this ‘‘cardinal nih’’,
iiieamms i,init. ‘ ‘I i Iii I Iii’ ill hi ’ iii ‘ .uiiii’ 1I 111 ’liIfltiV( ’ ShIo vihig of
an iumteimtnmii to njn’al. I ha. only iu’rm,iissii,le iustifjcat,oii for a
repeal by ilnpiieatioi i is whieii hi ’ earlier and later statutes are
ii -recoiicilahle’’ Maiicari, .s’vpro• at. 550.
Time (loet,rhlie miisf Verlag r ’in’als 1)3’ linj)lleatIolI ‘‘applies
with full v4gor vhieim . . . i-lie shiiPseqhlelit legislation is aim
appropriagu)ns measure.” Coni nmi (cc fçor Nuclear ResponRi—
lflhul?J ‘v, &abor ,, 149 jr App I) (‘. 3$o, 382, 463 1”. 2d 78:3,
7S5 ( I 171) (( ‘mm mph a. ’ - .m . :m’ ii let I ) . En ?‘irm, n o - li /al /)ufiii.se /“un(I
/ “ri ’eI.ll , . 473 l•’ I : ss ( lU72 i lii. 1’ l)irhi:Lln..
:iui uhIuohtmi.t t4qmieuil, .liu -I ’ ii toil l ii I a’ memo’ :teehir ut4 . to -i i ’
I haLt i lie mu icy iulul mlii :. it hi o ’ •i I j/l oiIt( -r forci’ IICII t.hie
( ‘laIin(’(I reJR ’:il rests soli-ly on alt A p nopriatmoii.s Act,. We
recogimize that i.oth .‘ uhst .:imit,i e eliactiriemits and al)l}roprim ltiomis
measures’ are “Acts of ( ‘om mgi o’ss,” I nit the latter hav the
liimiit,ed ;Lii ’ l speeifw j)ulrjsose of iwo ’mmiing (tunis for authorized
jirogra lims. Whet m v I,Fi ig Oil a uproi oriatmomis measures, legis a—
tot’S are entitled to ()ia ’r ut(’ immider tin’ assunuI)t ,u)mi that, the
fumid will be dovotet I to puirpo.ses wh leli are la ’ful and not
for any i)ur tsc fori ,ulili ’,i Without, suidi all assuirahlee, every.
appropriatlois uli(’asiiro ’ ouiItI lie pregmiaiil. ‘itli prospects of
al Le.riiig Substamit rt’e ligisi:LLio )ui • I ei)( .ai ing l)y ii nj>lieatioii az y
i)rior statute which iii ighi t i roim ihi I . the expemiclituire. Not
only would this lead to tI ie al siird result of requiring Memo—
hers to review exhaustively tie- hackgrouuid of every auit,liori—
zatiomi I )e.fore vet i img Oil :1 1 1 :tpl)roi)riatiomt, 1)11 I, it, WOUI(l flout
thin very rules the ( ‘ummgre — .’. . (am cl i 1113’ aAIOI)tCd I A) avomd
153 ( )iimnuom of I lie ( oiirl
tills iiccd. house Rule XXI (2), for umist,aiice, specifically
i)ro ’i(lcs:
‘‘No approprmat ,ioii shah lie n’iuorted iii aiiv geuieral a )pro—
I uriatiomi In II. or 1i ’ iii or her as an afllu -n Ii mien t t.ileretA), for
any P l)(’li(lit uiI’( ’ I lOt i)re\’iOhlsIy auiI,iIorize(l l)y law, uuuilt’ss
ill eont ,inuial.ioi i of aI)i)l-(Ihon:Lt.io)i1 ’, fin suidi piuiilic v orks
as ar alrc;uly iii )N)gu’ess. !\‘er c-hell (UIl/ proarn. ’wun In
(Ifl?/ .‘niel,. bill 0? (lui( ’?ldWeIil /Jii”r(’lt, ( IOl?h1/OIy c i ’ts ’Iiiiq
lam ,, be iii (1 1(/I ’l ‘‘ ( l’ iiiphia?- .is I(i(iPl I
See also SI. unImiug Ruih-s of tiiu’ Seimmite, U mile 16.4. ‘l’hiois. Lu
siistaiii lX ’Litioin ’r’S position, we would he obliged to assumimie
that ( ‘oiigrc’ss imn’auii to i.’i a ’al pro (auto § 7 of tIme Act. by
ihi(’ LiIS of II )i (X’(’(liir(’ (‘Xi)l’( ’s .IY prohuihiteil uni’icr I ho’ rub’s of
Congress.
i’ei’hah)s 111111(1 ful of thic fact t.hiat. it is ‘‘swi in inn ig uih)St.l ’eaiii’’
against a strong cuirreiit of v. ell—estahl isl med l)I’e( (Ieml t, ‘I’VA
argi u”- for lul exception to the rim Ic agai imst I mullhled repealers
in a ciro’u i iist.ammco ’ Vilel’(’, 85 lien’, PP ’”l ui’i:it,ioi is ( omn l lt ,t4 ’es
hi; ve expre’- .shy st.iited t heir ‘‘uiuuiIei’i-,t umio I hug’ that, thit’ (‘SrliPr
li’gislatiomi woiihl not. iim’ohiil it , Lime Pt I)oseuh ex a’mn I itiii’e \Ve
( Li.hlilOt. accept s ichi a roissi 1-ion. Expressions of ( ‘Oillii litt( ’(’s
dealmn ’g with reciumcsts for a )proprIatmoii eamimiot he e( 1 uiat.Cd
with statutes enacted by Congress, partieuilai’ly not in the cmr—
C I I I iistamices t.c I I my Lii is ease. First, the A I)I)ropriatiom
Coniiii ittees had 110 jiirmsthmet ,ioui over tile suii ject of endangered
sI)ecieS, much less dmtl they comiduict tile type of extensive
heari migs vli I(’li preee(Ie(I passage of tin’ earlier Endangered
Species AcLs. especially thit’ 1973 Art. We venture to suggest
that the House Coiuiinitto’v on M’rchiaiit i\’Iarmne and Fisheries
and the Senate Cumin i t.tee on (‘oiimiuleree would ile sonit ’whitit
surprised to learn that tlwim’ (‘ar(’fuml work on time suhstaii (i ye
legislation had been uiiidomie by the siiiiple—aiid brief—
insertion of 50100 i llCOi lSiSt(’i it iLl ilgimage iii A I iiropriatiom us
Comiiinittees’ Reports.
-------
192 ocYco8 l.:k ‘I’Efl M, 1977
•TVA v HILL
Olunloil f ,1u Ciii t. •i 7 LI S
Second, there is no iiiciicatio ,i that ( ongress as a wiwle was
a are of ‘I’VA ‘s )osItio ,i. although the Aiipropriations Coin—
niittees apparel, t ly agreed with J)etitiolier’s view’s. Otily
reeeiitly. iii SEC v SIon,,, 436 (1. $. 103 (1078), we tleclii ,t ’tl LU
l)i’( 1iiiIP getieral ( ‘oiigiessinii l itcluiieseeiice I II a 3 4—year—old
practice of the Se•iiritips alit I Exchiaiige Coiniiiissioii, fleSI)ite
t,he fact. that. t.hio ‘iuite (‘oin,nit,tet. /Iomnq juri.’rlirt,o,, over
t/U’ (.,‘(I,Hflj ?.S. jOII . (U liiitlir.’t Ii it I long t ’xh)resSe(l ap iroval of the
practice. Mi t .Jiiwi’ici. II i .H NQI liST, SJ)eakii ig for the (kairt,,
ol)scrve(i that. ‘it’ ShOuil(l In’ ‘‘ext r( ’iiIc ’Iy hesit .aiit t .o presuiim
general coiigrcssioiial awareness of the Commission’s construe—
tioii hazed only upoiu a few isolated stateineiit.s iii the thou—
.sands of pages of legislative documents “ I d., at 121 :1
forI .iort, we shouh I i iot assii Inc that i u’titioiier’s ‘Ie VS—a tid the
A 1 )l)rOpriatioi ls Coini ii ittet’s’ neceI)tahIce of them—were any
better kiio ii, ( ‘Sl)Pr lahly lieu the TVi\ is hot. the agency ‘vithi
,)l•iIll:tr)’ rs )iIsil)ihity lot a’Iliiiiiistt ’riuig (lie l ’ ilaiugeivtl
Species Act
Q iii te at )art. frot ii LI ii ’ It ri •g( ti I ig Inc to)rs. we won 1(1 st.i II be
unable to flint that. iii th IM ea t ‘‘the earlier and later statutes
are irreconcilable,” Afaarar,., 417 IT. S.. at 550; hera it is cii tirely
possible “to regard each as effvct,ivc “ Id .., at, 551. The start-
ing l)oi it in this analysis iiiust be the legislative proceedings
leading to the 1077 appropriations since the earlier funding of
the darn occurred prior to the listing of the snail darter as alt
endangere(i species lii all suiceessi ’t’ years. TVA confidently
reported to the Appropriatioiis ( 2 onuiuittees that efforts to
transplant thw snail tiarter appearet I to he successful ; this
surely gave those (‘oinmiu,ccs some basis for the impression
that there was no direct coiifhiet hietwec,, the Tellico Project
and the Fntlangercd Species Act Indeed, the special appro—
l)rifttion for 107R of $2 rnillioii for LraiIs I)lantat.iohI of eiidan—
gcrt ’d species Mi p ,nri.s tia view that. the Coininjtt.ees saw such
reloeat.ioii as t.hio menus hic ’rt ’hy tolhistoit l)Ot wv(’it Tellico anti
the kn(Iai lger( ’(I S )eci(s Act coil 1(1 lw avon it’d It shun lii alSO
153 Opinion of the Court.
he noted that the Reports DA ilNl by (lie Senate and I-louse
I l)proPriations Comiuui Ltecs in 976 cauile within a month of
the District Court’s decision iii this case, which hardly could
have given the Members camise for concern over the pOSSih)le
;ipplical jil i Ly ,f LI ic Act.. This leaves oii ly the 1978 ai propria—
tiolus, the Reports for whi ichi issued after tue Court of Appeals’
decision now before us. At that point, very little reii laifle(l to
he accomplished oil the l)rojuct; (lie (‘omnituittees understand-
ably advised TVA to cool)erate with (lie Departm m t of the
interior “to relocate the endangered Sl)CC 1CS to aiiot ,hier suitable
habitat so as to permit the project I . )) proceed as rapidly as
possible.” 1-I. R. Rep. No. 05—:379, p. Il (1977). Et is true
that the Committees repeated their earlier expressed “view”
that thç Act (lit t not prevent cornj)letic )il of the Tellico Project
Considering these statenieiits iii context, however, it is evident
that they “ ‘reh)reseiit only the persoimal views of these legis-
lators,’ “ and “however explicit, I they I cannot serve to change
the legislative intent of Congress expressed before the Act’s
passage” Reç,ional Rail Reorganization Act Cases, 419 U. S.
102, 132 (1974).
(B)
I-h iving determined thtait there is an irreconcilable conflict
between operation of the Tellico 1)aiii aiid the explicit provi-
sions of § 7 of the Endangered Species Act, we must now
consider what remedy, if any, is appropriate Tt is correct, of
course, that a federal judge sittiilg as a chancellor is not.
mechanically obligated to grant an injuimictiomi for every viola-
tion of law. This Court, made idaimi in Hecht Co. v Bow1c. .
321 U. S. 321, 329 (1944), that “ [ al grant of jurisdiction to
issue coiiipliance orders hardly suggests an absolute duty to do
so under any and all circumstances.” As a general matter it
may he said that “ [ si iimce all or almost all equitable remedies
are discretionary, the balancing of equities and hardships is
appropriate iii almost a iuy case as a guide to the chancellor’s
discretion.” D. 1)ohbs, Remiiedies 52 (1973). Thus, in 11cc/it
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194 (X 1’OBKI TEICM, (977
TVA i ’ hILL 195
U lInIIoIi iii I II( Court 437 IL
Co. the ( ourt re1ii til I A) gr:iiil. :tII Ifl(UflCtl( )I) when it aJ) (WarC(I
froiii (lie I )ist.riet. 1 uii L fiiitliiigs that ‘‘the issuattee (if tui
iIijIiiict.ioii V0Lild hiL ’P ‘lot (tl( (t 11%’ ‘.‘. :Ly of iiisiirii ig lwt,ter
( )1flh)lI:Lfl(e iii the future’ 1 111(1 WOIll(I I have lW(i 1 I ‘uiii uist.’ L4)
I Lii i I I)tut ,ittii (r miii iitit ‘iii the tuitdie IiitA ’resL’ ‘‘ 32 1 r. S
at 326.
But these i)riilell)i( ’S take a eotirt only so far. Our syst iii
of goverziiiieiit is, after all, a LriI)art .ite oiie, with cant )rauich
l liLvii lg eertaiui (I( ’flhIe(I fuutetinuis (IelegatA’d to it l)y the Coiisti—
tu tion \Vhi ile ‘‘Ii It. is euit ihiat.iea I ly the irovitice iuid duty of
the judicial depart,innuit to say ‘hat the law is,” Mar&ur,j v.
Marh n, I Crautch 137, 177 ( 1S03) it, is equally—and eInl)hat—
ically—t ,he i ’xeluisivi’ I irovi lire of thin Congress not. oh ly to
foriiuiiatp le uslat.i ’e Inihicues aitul uita ui(lmite ()rogr;iins aint pru —
u ’ets, hut alsb to estal tush tlieii rnl;it.i ye Priority for t.Iiu Natuuut.
( )iiee ( oiigress, exvreis ,iiug its ulIhgatA ’d h ’’’ ’ ’” . huts (h( ’ei(h( ’(l thiu ’
tinier of priorities iii a gi vu ii a remi it, us for the F xipiif,i ye to
;UliuuliiiStA’r the laws muuid for liii’ rourt .s lu citfuree t.hpin whicit
eli forrernen t is sought I .
I ht ’ii’ we mire iii euh to viu•t (lie I’uiulmiuignr(’(l 4 iecii ’s Act
‘‘rea.suuinh)ly,’’ aiol iieuire sham’ ;t i( ’hii(sIy “tIitLt a((or(ls vithi
Some Iflodicuil) Of COifluhliJil S( ’iiM ’ :i.iitl the ptiblic ‘eal ‘‘
at, 19U. But is tliat,.ouir tunietuiu i Wi’ have ito expert k uiowl—
e(Ige on the .suhje.ct. (II ciii lautgcrt•il species, much less (ho We
have a maiicIat front tin’ opli ’ to strike a halaitce of equities
on the side of the Teilico Daiii. Congress has spoken iii the
)laiiiest , of words, making it :ihuimniatithy clear that the hialauice
hi as I s ’emt struck iii favor if affoni Iii ig vndaiigercd sj )ecies 1,1 te
hiighe.st of priorities, t.hii ’reh iy auloptiiig a policy which it de-
scribed as “imist ,ii ,tit,ioi u:uI izu ’ I rail twit.”
Our individual appraisal of liii’ vi loin oi unwisdoin of a
particular course coiiseiouisly sek ’cte I by the Congress is to be
i )lit. a.side in tIle (Jroeess of ii uter treti uug a stat.u te Once the
ifleituuiuig of an u’ui;rri iuiumul, is uhmsru’m iiu ’d ;iiitl its nutiistitiit,iuumnhut,v
ihi•Lei iiuiiied, thin juidieu;il l)ris:e ruuiiu ’s to an eiid. We tiu not
I ‘o 1.1.1., .J tIi siiit iiig
sit as a ecu ninit,ter of r( ’vii•%t uutir mire we vest et I tilt tin’ po er
of veto. The lines ascribed to Sir ‘l’hiiuimi;is More by Robert
Bolt mu—n hot wii.hiouit. rilev;uuiri ’ Ii i’ie.
, rfhit, law, Roper, the law I kiiow what’s legal. hot, diat’s
right. Auu I I’ll stink to vliai.’s legal. . 1 ‘iii not ( usi
‘h’hui, (9lrrnilt ’ aiul t’t It lies of u igli I m iii I romig. vhiirIi viol
fitid such I)lmiii’i—sailiilg. I rant, utavigmuti’. 1 •m nu vo yager
But in the thickets of the 1a . oh tIter.- I ‘ii i a forester
W’liat, would you do? Cut a great road t.iirouighi the law
to get after thin Devil? . . . Anti lieu the last la as
down, aiid the l)cvil turiucd rouiiid on youl—Whu(’re ouiltl
you hide, hoper. t,hte la s all Iu’uiig limit? ..Thiis rotiii—
try’s pia m it ( ‘( I lii ick with la s lout ii coast, to eoast ,—M ml uS
laws, not. ( iuh’s——:iuud if you rut. I unit tlowiu . . d’yuui
really t.Iuiuik %‘iiul ( ‘Oiil(h st;tuud ii u —igIit in thu.’ iiuIm. Llimi ,t.
woul(l blow thiu.in? - ‘Vt’s, I’d give I Ii ..’ I )t ’vil benefit, of
fom’ my ii safety’s sake “ II. Bolt. A Mait for All
Seasons. Act. 1. p. (47 (Three Plays. I Ieimieiumauiui ed. 1967.)
W. ’ agru’(’ wit Ii tin- ( ‘uiiu t. oh’ : Ph)emul I limit. Iii (Pill’ ( ‘Oiist.it ii—
tiouial systeuti the eouiiiuiil.iuiiiit. Lit time tmui ’:it,ioui ut h)0% ’(’rs is
tot) fiiiolamental fo,- us to prn—euiipt. cu)iigr(m siuiIah action by
(i(l iciahly decreeing what iueeords ‘. it Ii ‘‘co, iii noit sense a u ni die
public weal.’’ Our Coimstituitioum vests .Sii(’hi i t ’S 1)OitSil)ilIt,iPS iii
the Political branches
A /flrniecl.
Mu ,JuSTICI Po vELL. ‘iLhi whoiii Mu. .J u s’i’iC’E Hi.ACKM UN
joins, dissenting
The Court today holds that § 7 of the Eiidangered Species
Act requires a federal court, for the nir l)ose of 1)1 OtvCtii)g an
endangered species or its habitat, to emijolum l)eriI au1ci tly the
operation of any federal h)ri)j( ’c . lietJmer coinplet ,ed or sub—
staittiahly Counh)let((I Thus ulu cisioii casts a long siiado ovei•
(lie Oh)ermtt.iu)ui of (‘vemu t hit’ lutist. iii llnurl:iiit. ItmOJt ’((S. serving
-------
196 OCT( )I3Eli ‘1’I ’ li i\1. 1977
TVA v HILL 197
I i i:I .i., .1 Ii ’ ,i ’iii ing 437 U s
“itIll ii( C(iS of Sorlety .1 11(1 Iiat.i(IIIai (l( ’f(ii ( ’, ‘ ‘ItCIi ( ’ver it, is
iiCt( ’iIIIiiiPd that (OiitIlIIli ’d 4 11)el 1L 1.It)ii wOi1I(l Lu I ateii extinc—
tiuii of :iii (i(i:Iligeri ’ii sp cii’s or it i iiiittit, ‘i’i s it stiIt, is
581( 1 to h reqiiirrd liv the ‘‘plaiii ilitelit of ( ‘oligre’..s’’ :is • cli
as hy t,iie language of the statute.
In my view § 7 caillitit reasonably be lIlkrl)rotc ’(l :is appi—
iiig to a pr()lect, Unit. is comideted or suhstaiitially ( )iitl)l( •(I
wlit ’n ItS threat, to au ( ‘Ii(IaIiger(.(l species is discovered Nor
cali I helieve that (‘uiigress roiilt I have Int.eI1(h ’(l this Ael, to
Prodlwe the ‘‘al)s(ur(I result’’——uui the words of the l)ustrict,
( ‘ciiirt—of Lii is ease. If it %( ‘r(• elear from the lauigiuagi’ of the
• et ainl it ,s legishit.ivi’ hii Lory t.hiaI. ( ‘oiigress iiIt ,enlII (i Lu
tliorize this result, tli•is ( ‘ouri. titihil In’ eoiiiis ’IletI to u ’ii fu)re( ’
it,. It, is iiot our )rov I I ire to ireti fy )(il icy or iiol I heal .1 iii It, —
I iieii tS by the Legislat ,i ‘( ‘ Bra iiehi, however egregiously they
may (liS .SCr e the iflhl)IiC luiterest. But, where the statutory
Ito igilage and legisia ti ye ii IStA)i v. a iii di is case, iueecl i lot 1 a’
(1 )iIStIIIC(I to rca(l I such IL iesij It I V1(!W it, lS thiu ’ (1 tit.y of Li i is
( ‘ :11111, IA) ( lopt I ii it suI )lt ’ rOIlst ,ruictioii that. accords with
SOiii( ’ iflO(IiCIIifl of eoiiuiiioui seilse and the public weal.
Although the Court. has stated tue facts fully, and fairly
I )iCSeii ted the testiiuioi iy a iitl ttct,iOi i of thai A ij iropriations
Coin iii ittees relevant to Lii us ease, I HOW repeat. SOl ne of what
has h)eeui said. I do so I eeauist ’ 1 rea(l the total record as
coiiq ielliiug reject.ioi I (If t ha ’ ( oiirt’s conclusion that Congress
)flte,I(lCd the Eiitiauigcrcd Spt ’rics Act, t,o apply to ( ‘Oiii 1 )letcd
or SUI)Stalltiahly i’ompletech ‘- )r(Jjects such as the dam and
reservoir project. t hat today’s opuiiuoii bringS to an end—absent
relief by Congress itself.
I Al luril( ’v ( ‘iier.il itr .II •ulvi , ,.d %I ii i ,i.iI ;IrgIIiiiluit. thi,tb thu d.iuii had
eu IIIuiIlII.tl.ll, tli ii III i)i.iI ullll.uIli ’ . I. i i ‘ u hii— IhI( g.iIu,’’ ,iinl iii iuiui—
it I lii (lliu.tiuIrIl,,u l ttl .uu,uu• iuu iiI .uiul luuuilge . . ‘‘ ‘ihe ii liii isull ii
tiluI ..IiIti ‘iii ilu l.uiiiI .i hour ii i ’. Iii l ii uIiuii , I I t i ( hii iI hiII u ul
ii ‘i ()i.ti rg is
153 POWELL, .1 , thu seuit iuig
Iii 1066. (‘ouigress aiit lieri,.ed and ap ropi iated initial funds
for thai eoiust,ruietion I y tue ‘l’euiiies ’e Valley Authority
T\’A) of the Tellico Data and Reservoir Project, out Lh
Little TenIiO See II iver in eastern Tc’utiiesscc. The Projeet is
a eoinj)rehieiisive water resource and regional dc ’velopineiul.
proJect (lesigiled to control flooding. Pro ’irie ater 511 1) 1)13’,
proinot c i nu I ustritil and rcerea t n nial (h ’vp10 1 nneii t, generate
SOi1IC aihil itioiual electric i )( y(q ’ with iii flue TVA system and
geuierally liliprove ( ‘eOnoinic ( ‘oii(hltioiIs iii an economically
depressed area “characterized 1:13’ iuiiukruit.ilizatioii of human
resources amiti oui tin igrrt Lion of young ia ’o h .”
Couust,riuct.wuu hegami iii 1967. and ( ‘uligrr ’ ’.s hia voted fuiutuk
for the Pro iect ii i every year su ncr ’ lii A uiguist. 1073 v1ieii
the Telhico Proiect was half completed. a a’w sh)e i( ’s (if fish
known as the snail darter (1isco ’ere(I iii the portion of
the Little Tennessee River that would he iinpoiumucled behind
Tell ico Darn. The Endangered Species Act was Passed the
following r)e(pinh)er. 87 Stat. 884, 16 U. S C. § 1531 et seq.
(1976 ed.). More than a year later, in January 1975, respouicl—
ents joined others in petitioning t,he Seeretary of the Interior
to list tue snail darter as au endauigered sf)eei( s. On Novem—
h)er 10, 1975, when the Tellico Project was 75% completed, the
Secretary placed the snail darter on the endangered list amid
concluded that the “proposed irnpouuidment of water i)ehind
2 Hearings on Public \Vurks for ‘.tler and Pn %er Development and
Eiiei gy Research Appropri.ii ion Bill, 1977, before a Subcommittee of the
Ilotise Committee nit Appropriations, 04th Cong , 2c1 Sees , Pt 5, P 261
(1076).
A it hinuigl i I lie ii :t ii I hart er us a (I i t met perle , it i ii:u rdly :11 1 e\t r:i or—
(I lull ry oul ’ l’:vc II iuiI i ologi t fan iii Ia r w ithi t he ih.i ii h.u rt er ha i’ Ii 1fl
cuil t ’ d i ii iigiu ‘lii ng ii Ii iuii u ‘ra I related su we ies Al II) 1(17. 1 I More—
(iv(r, new sp. ’uuu ’ iii di rtuu, :i r ’ lu ei. em isi iii ‘I’( ’uiiie e( ILL I lie rate of
alnuil I .t Vl’:ur . S iii Iii hit huceul (hu c(,vtrI•ul iii tin’ li—i fit u ’ t.. ,r It!
131 UI 1,1111, u lure .irt MImI’ 131) pu•hl. ’. oh liner—, 55 to UI) iii tt huh
.iil foiiiid iii ‘itiiiiu, —ie — Ii) Iii —ha ill till hiiuie—’et Hi’. er —‘. —leni, .111( 1 Ii iii
tin 1 .iiule l liiulu: ,Me its ht I d, at 38 ii 7, 130—131
-------
198 OCT0BI:It TI•:Iu\1, 1977
‘l’VA v hILL 199
1 r.r., .J , d i— . ii ing 437 U S
the PrOPOSe(1 Tellico Da,ii ‘oii1i I lTSuilt in total (Iestruc.tioii of
the snail darter’s habitat.” 4(1 Fed. Iteg. 47506 (1075). lii
n9 1)oil( k’ii t.s’ view, the Seer(•tary’s aetioii nica ut that coniph ’—
turn of i he Tell ico 1 roject, wotu1(l violate § 7 of the Act. I 6
IJ. S. C. § 1536 (1076 ed.)
“i ll . . Fo( kral de pail men ts a, id agciwies’ sI ia II iii e a
sultat.ion Wi t,h and Wi (Ii the :ussista lice of the Secretary,
utiliye their aiuthmorif.u’s iii lii rtiwra,io ’ of the i uirposes
of Lu is ci ia t er by en rrviiig ( lii i progralmis for Liii ’ ci ,iisei—
Vatiuii 01 .(‘Iu( ilg(’r( ’(i N)( ’ i4 ’S . . iiste(l plirsirnlmi , to scetioli
i s3: (If Ui is title a 11(1 I w :ik i flg such action U( ’(P S:Iry
to insure that aetmoii alithoru,.e(i. funded, or carried (lilt
by themii do iiot jeopartliii• I Iii ’ coiitiii ,u•d (‘XiStA ’ll(P of
such (‘ilclangered iq n ’eies tu at t.li rca tene(l species om reslil I .
in t,lme ikstruiet,io,i or nuulifiention of habitat of such
Si)eeies ‘li job •is dr’Lerm i uie I I iy tIn’ SciTetary . . . to he
(q— Lien!.”
I1( (1St lie1i’ s ’ Ii(Iu ’rmii ii eu 10 (‘()iut.iiiiic ‘.‘ . itli the ‘Fc ’llico
1 iOIcCt. iii aceor tniici’ Vu il.li tin’ II I ili iiitiiiurizat.i0ii l) ’ Coii—
gre—’ i i iplirii:irv 1976. i’( Iu)lI(i ’iltS filcul the imist.:iiit, suit,
(A) ( ‘ II Oili its (‘uiiii)lu ’t i(uIi By I ii:iI , I ulii(’ t ,lu ’ Project. was S0%
enmnu ik’ted
[ ii March 1076. TVA imifor ,iu’il I In’ 1 louse and Senate Ap—
j)r(l )ri:itiUlis (‘oinmml t N’ S :iI iiit, l,hie P,iuect.’s threat to time
snail darter and about res )oiulciit ’(’ lawsuit Both Commit—
toes were :iul ’is( ’(i that ‘i’VA wa :ttt( ’Ini)t ing to i re ’r ’ ’ tin’
fish l)y ru ’loca(.ing I beta iii I lie iii ass(’e River. ieh closely
r( ’semi1l,l(’ tin’ Little Teiimui ’s ee. - It. state(l explicitly. hiowj ’ver,
that thur suicer s of those i ’ffu irt could not In’ guiarant( ’( ’II
I li-arucig- on Piul ulic- \Vc ,r k Icir W.. ti-r .11111 I’uiueer Thvcloiunic ’iit a rid
I-.uuc’rgv l ,’e•.uriIu PPr(uluri:It lore. Bill. P477. luilicre :1 lilu -innieiiulci oF t hi
lli,uu—,- (iiiuiutiilue inc ‘ llcriiIIrlIul nuc—, ‘Phi, ( ‘eiiug 2I 1 Sc—.’., pi 5, 261—
( i’i?f,l il Irulig— . (iii Puillu A’..i Is .. i ii V ii r ciii I ’ei ii 1)c ’ eIuuiuuiu-uut
ii I I ui•rg I c —‘c ri Ii . iclurlil li ii ituuu’. liii Ii,c .uI s.ur I’ 77. l e IuII .i uiI
153 l’ow, .:u , , .1 , di— euil uig
lii a thecisioti of May 25, 1976, the 1)istriet ( ‘ourt , for the
Eastern District (If ‘I’emi iiessce held that. ‘ ‘ I he Act shotilt I not
he construed as l) OVCii I iiig NI! flI)leI ion (if the iiro.Ier -t..’’ 41!)
F. Sn pp. 753, 755 ii. 2. Au Oj) 1 10.Site (-oulstruictloii . saul the
1)istrict Court. would he uuiircasoiiable
‘‘At, SOnIc’ point iii tune a fc ’(ieral protect 1 H’cOii Ii ’S So
near ( ‘OiIIl)l( ’t.iOii and so umueai)ai)lr of iunnhificatioii that, a
court. of e( 1 tIity shiouulil iiot. ah)l)ly a ‘-.tiit.uite (‘iiacte(I l(IIig
after Iiicru)i.iuhi of the proj( ’et. to I)ro(Iuic( ’ an uiuireasoiiaiulr
result ilrlsuqtmi C wiUtwn u,,, 7’rn,sxjeor/at ,w ,, v V ilpc,
45M F’. 2d l32: . l33l—: (4th (‘ir. . rur thu 409 P S.
I 00() . . (1972). Where there li:i I ut-c ’iu :iii ii ’re ’eri mI)ll ’
and irr( ’trirvai)le coiuiliiituiuemul. (if r( ’secuirc( ’s by ( ‘uiigre to
a prolect. over a S 8fl (If aliiiost. a (lee:icIe ’. time ( ‘olin. i Ii0iih(h
1 uroceed mi i i a great (INtl of ci rcIiiIi Iirct iou ‘‘ 1(1., at 761)
Oh serving tlia t resi omidem its’ argu wet it. earrue( I to its logical
extreme, would require a court to enjoin the umnpouiidmmmeiii. of
uomruiit tee of the St-nate- (kjmuiiiiit to— mi :\I)IPruIlJi 1.11 nile., ‘ 14 1 ii C(iuut 2u 1
i’ 4. 3096—3($) ’) (1976)
‘l’km- C’oierm of iiiuc ii ’. unterprc-teeI lice’ 1) ,st liii (eIuIIi e , ,iiuIon :e ’ hold—
ciug Ill_LI ‘l’ ’t’A ‘ . Ceijut i ,in:et nun ci i ihiu Ti-hue, Pruiuu-rt ,iuIcl nI.ttr the Act
1 ii tIeet tIle rceiiio.te-eI ilujuiliel Cecil i,hIeIIiIeI lie eleuuieeI on t’eiciul.elclc .p rr,uuiueb.
549 1” 2ui 1064, P169—1(17(1 (CAIi l977 ‘Flu-. ulili’ri ,uu-t,cl uucei ol liii’ I )e.—
true t. Court. oiuuuinuui .epI ,c:lr’. iiiutm-,emble iii light iii ui_it npiuuue u’ ricuu—
(IiiZ ’iOul I lint liii ltd 0111111 ‘limit IN un.s( turd is fl - (‘lit lug rout hint Cliii
(if tin- project ,‘‘ 4j9 I” Scu up 753, 755 ii 2 (I 976) (cull uli.oi— .uu Ided 1
Moron er, tin- 1)ist tin Cu ,iri i.iimcl the e.—luu- uee I icc- .e ’ .m :i liii her
‘‘ [ it i ’j rc-lthnnaI)I( ’ to (001 heule that, Cu)iigrr—’. inienulol iI - Au I tic
halt. the Tehiuco l’roject. at iIt prc-cuit. ntegt- cut e oin 1 uktiouu ‘‘ Id , t 761)
It, ( -rdu l(-hui(I( ’(I I hat the- ‘‘At t. should In— c Oil—I rue-ui iii ,e rc-,u . .ecnahlr uiLu 1111cr
tic (‘ffnctiuate t In- k-gu I:i live: pci ri IO’.c,,’’ 1 141( 1 , a nil - i liii m he Au m. tic n ii i ci
operate in such a m.euiuuer .u— iii li_eli lii ,- eounicie-t iou of thus pert —uii.ur
project,’’ ui, it. 763 i-’re,uui all the., udugu-t liii vut Ii the 1)i —i rn-i ( ‘ouirm
rchi;uuicc: on case un i-runt nig thin Nau ioiml I :uu crc cuimu ’uli .11 i’m,iie Au-I, $2
Ti S C § 4321 et seq . :us un:eiiiihuralcle to ‘iih,St;u,iuhuliv (eciuiiui i’Ie -ei lur icjc-l I’.,
419 F Sn PP , .ui 7611—76 I - ii —c-c-i n i-ic :uI I ii .et I )isl rot ii idge ‘I’.u br
‘orrc-ctlv uuiter ure-ue-uh § 7 u-. iuu.e cpIue.chIe Ici liii- ‘i ,’hIur ,i I’ruiju-eu
-------
IC ’I ( )ItI’.I ‘i’i :i l, 1977
TVA v HILL 201
.1 li—.iiit iug 437 II 4
‘. at (’r l)Pli 10(1 a fii1I ’ ( ‘() 11 1 1 )l ( ’t( ’Il (18111 if au (•uu(laulgvr( ’(l l)(’cI (
I( (liS(”() (‘r(iI iii till’ I i ( ’i oil ill’ (I \’ ))(‘fOre tIi(’ SC II(’(Iiil ( ’ (i
i liil)OIIiilliul(’Ot. t.il( ’ I)istrut ( ‘()lirt ( )iIliIliqi t.ii:it, ( ‘ilgres’ 4
(‘0111(1 hOt, Ilav I ’ uIit,phi li ((l .II( ’Ii a result, I CeOi ’(IiI1glV. it (Ieiil( ’l I
1.111’ pr:iver for :1 1 1 uulIiIhI(l.l lIIi aiiil lIiShItl ’S ( ’(l t,Iu ’ I( ’tU)il
Iii 1975. 1970. aiiil I’177. ( ‘oligi . , . . ,. I (ii lull kuiu ledge Ut
I lie ‘I’elluro I II4iNI. ’ effect. on t,lue sii:iui (1:1, t.er auiI the :thlt’g( ’(I
‘u)1ati(IIi of Ill’ 1 ’.II(lahigervlI Iu ’cil”4 Act... rt,iit.Iuiui( ’(I ((I :ip )r0—
, 1 181.1’ uIll)i8 ’ ’ fiii ’ the (MihhlI)ll ’I 11)11 of I I I I ’ I ‘fl)JccL iii (louhig
SO, 1.1 11’ Ai)I)I ’OI)I ’ntt.IOhIS ( ‘oiiiuiiitlue ” eXprt ’ %”ly sLatA ’d t,ii;tt , liii’
Act 1 11( 1 not i)rOilul)It. the Protect’s ( OIni)h ( ’tI0uI, a vic that
( ouigress iIv’esuih unIl)ly areei)te(i ill a ) )roving tiii’ npprprlit—
lions ‘ U II year. i?or (‘XaIiIi)l(’, ii i .Jiuiuc 1t17( , the Senate
( :OI l1llUttO (in AI)t)i ’Ol)riat 10115 r((’a. ( ’ (l a r l ’i)Ort uiot ,iiig tiic
1 )istriel, ( ‘otirt. (h ’cisiohl :uuui rceounhlu’u l(iuiig approval of TVA’s
full huudgrt rcqiiest for till’ ‘I’(’llie() Protect. ‘ [ ‘lie (‘omunit . .t..t ’e
hiserVNl further that. it, (lid ‘‘ iuol, VI(’ % the l’.ii(lauigcre(i Sl)ecIPS
( ‘I. :15 1 )rUiIillit.ihIg till’ roIIlIIll ’tiOhi (If the T( ’ihic() protect. at its
: 14k IiuI( ’l ’(I t.:lg(’.’ :11111 ii. ilii erie. I ‘‘I.ti:Lt. this ProJl ’ t. 1w etinu—
I ‘l.(l I 85 lii1 111%’ 115 ‘ 1 ‘ii ii i tiit’ I 111111 Ic uiltA ’rPSt Tin’
ILl I )I I 1 )i ’I Lti i s 1)11 I I ‘ ‘tingn ’ss 8 11(1 ItIwro ’e I I )
the i’resI(leflt.
‘ [ ‘he ( ourt of Appeals for tlll Sixth (‘iicuit uiCVertll(’iI ’sS
reversed the 1)istriet (‘ouut lit .Janiuary 1977. it. held that the
Act was iuiteiuded to create precisely the sort . . of dramatic coil—
filet 1 )i’( ’S( ’IltV(I iii this (‘aSP: ‘‘Wh1(I ’ ( ’ a l)t’0J( ’ t IS on—going and
suil Ista nt,ual resources ha ‘(‘ alrea 13’ 1 )cl. ’fl cxi ‘uukII. the mu ft ict.
between national I ilCehit .iVl’S tA couis( ’rve living t,hi iligs and
the pragmatic IflOIu l( ’uitulIu l to ( 5) 1 1 1 1 )1I’t(’ the l)roje (Iii SC 1IVII—
tile IS liii st I iieisivc ‘‘ 549 F. I I 064, 1071. .Jud 1(181 I’OSO—
TIir 1)i t net (. ,iirt 11)111111 I hut $! 3 iiiillion 0111 (If more ii .i n $75 mu—
1 1 101 I l ii I I 4 \ l’IllIl’4I i ,ii 1114’ I ’rojelL ‘.‘ , (41111 t Iii’ iiiir ’’ (’o I ’r:ti)le If InhulIllet 11)11
‘. 1 liii iliuti ‘ ,‘hi I ’IlJI1IIIl ’4l ti I I’ h 1 1 1 1 1 .it 7 (u) lhI0 4’ 111.111 $I1(I
1 ’I , I I I ’ I.. ii , Iit .44 I Iii I ‘ I I • I I I ‘ . 111.41 .I.I . I liii .iI.
i ii , . •l.ii, .1,1 ,iI ,ii . .i ’ 1.1 •‘I I ,s. .1. 11.,—
— I ;. . \.. . • i 1 ’U.)
153 Pow :I.L, .1 , tli t ’ii(iug
luituon of that conflict, the (‘ouifl of Appeals reasoiie i. wouihi
r(’i)resent USUrI)atiOII of legislative power. It, ( 1 UOtC(I the 1)i ’ -—
triet, Court’s statement that, reslIou1(Iei )t’ I ’ea(liflg (If tin’ .\(.t.
taken to its logical OXtIPIIIP. ouul’I (iIhiii)(’i a ( ‘OliFt . to halt
uu llphiluui(lInPIlt . of ater 1)011111(1 :t dauui if liii eiu(iauigerr(l 5l)(’( ’ul ’S
wci p IIISCOVI’i ’C(I iii t.iii’ I ’iVl ’I ’ oii the (hLV before till’ S( ’Il ( ’lIIuI(’lh
impotuuidment. l’hw Court. of A 1 Peals. lu % over, r( ’j(’ct(’(i till’
District (‘ouurt . .’s conclusion that suidi a reading as uiiirea—
Sl,Iial)le 811(1 coiit.rnry to (‘oilgres —ioulal liii (‘ III., huoi(Iuuig uiiste:id
that ‘‘Ic l lluusri( ’uIi uouis enforcel lwuit , of the Art, Il ’llIuil ’ ( ’ I Intl. it..
be taken to its logical extreme.’’ Ibid It.. I euhiaIl( led ithu
iuistructioiis to issue a Peri0000ilt iiij n net mu halting all ac-
tivities iuicmdeuit to the ‘r(’lhi(’o l’rO](’el. that, 0uul(I iiioiiifv
tile critical habitat of the snail darter.
I ii June 1977. and after being viuiformuied ( f tile (Ie(’i’ I(Iil (If
the Court of Al peals, the A pproPr1atioi1 ( ‘om in itt i’es iii hI ILl i
}rotises of Congress again ree.oiiimendeil approval of TVA’s
full budget request for the Tell ico Project Both ( ‘omllmnitt’e.s
again Stflte(l uuiie(Iuivoeally that the Eiidangered Specii’s :\ct
was nOt iilt(’ul(IelI LI) 1111.11. I)i ’ j (’( ’t utt , an II(lVaui(’(’l I stage (If
C 0 18 1 )lCtlOi l
[ ‘Phie Senate I Couninit.tec has not. viewed time Euulaii—
ge.rcd Species i ct as preventing the ( ‘Oulii)lCt.iOui 80(1 use
of these projects duich were vell under way at till’ tiiiio
the affected species were listed as eulliangereci. if the
act has sui(’hi all effect, which is comi trary to till’ (‘uuii—
inittee’s u uu iersta iid mug of the in tell t, (If ( ‘ohlgrl’ss II I ( ‘ii —
acting the Endangered Species AoL funds should 1)1’
approprlate(I to allow these projects to 1w C(IIfl PlCt(’lI auud
their benefits realized in the public interest,, the Emi—
clauigcred Species Act. notwith.staud I ng.”
“It, IS the II louise I (‘ominit.tce’s v1PW t ,I 18t the E,idauh—
gor(’(l Species . et. as not iii tended to halt 1 )roje(’ts Shell
200
Ilip N I ‘i — nti , ‘II (P177.1
-------
202 ( )C’!’l )I I• I ‘I ’l ’ fl ? I , I )77
TVA 7’ HILL 203
I ‘I % i.i L, .1 , •Iu • , i i,i •I. 7 U S
as these iii their a(ivaII( ’ i ’ti ,t Ig( ’ of eoIlIh)iet.Ion, fI I
(oiiiuiiit,tve I strongly I ( ‘( )riiini’Ii(ls that, t,iie.sc lwo.jvrts iiot ,
i ’ SIAI I)I)P(l i)t’( ’ailSc iif III1SI 1SI ’ 1)1 t,iii’ / p ’’
Once again, tire ;ip iiropriatiwis 1)111 was passed by 1)0th I louses
an(l signed iiito law.
11
Today the Court, like the ( ‘ourt of Appeals l)elO V, Hi lopts
a reading of § 7 of tim i ct that g ’es it a retroactive eflert, and
d isregar(ls 12 years of coIislst4’ ii tIy cx iressccl coiigressioiial in—
tent to roiuil )i( ’tC tlii’ ‘Fri I leo Pi ojert. With all (I L I I ’ re.spect, 1
V1CW 1,11 is result a all cx l rcuiio ’ ex;IInI)le of a. Iit.eralist, ‘“ con—.
st ,rurt,ioui. itot red u ired i I)’ t,iie Ia iiguage of the Act auid
a(i(ii)tA ’oi viI,hioiit regar(I Li i its iulaiIIfeStlMiri)0Se, Mon ’over, it,
ignores o’stai ii isiiei I ( ‘LLIIOi IS of tat.iitory coiistriictioii.
A
‘I’Iie St:Lrt .iIig )o)iIil. iii sl lt.litA)r’V ( uuiSt.rIletI()fl is, (if course,
tin’ laiiguago ’ of § 7 it.sel I Blue C dsip Slq.iisps V. il ’lwooir I)rug
Stores’, 421 (1• S. 723, 756 ( I 975) ( I’owi.i i,, .1 , eoui(:urrlulg)
I agree dULL it ( ‘iLiI h ’ vui ’ riI ;L :i t4 ’ (tlItSJk i ’xaiiiiil, ’ of f.ii y
laiigiiage, inch can i)e rea(I :iecoroliuig to thit “eye of the
I )clioi(lcr.’’ ‘‘ The eritteal wor(IS direct all federal ageilcies
to take “such action I as iula.y be I necessary to Insure that
actiouis aiitiIoiriz( l, fiiiit Ii’ol. iii ’ earri(’l I ‘on I . i)y tiieiii tb not
jeopardize the continued ( ‘XiSt4:iie( ’ of . . . eI1(laiig( ’l ’( Si
species . . . or result. in the dcstruct ,i iui or ino(hification of I a
rrit.iç al I iiahi tat of siidi ‘ I ) i s ‘‘ ltesl)oiideiits—as (liii
‘II ir liep Ni 95—379, i 104 (1977)
o I ”r.iu ,k, Voi,I’, .uiid Muu ii wiut lCiqiu:irk liii St:ut uulury iiileriir.I.i—
I ui, .17 ( ‘ ,Iuuuiu L Rev 1259, 12li.1 I I ’) 17), I I.iuul, IIu iii ’rIi iii .Itusiiri’,
2’J I I:irs I II ’S 1,17, 12() (P1 I()
‘‘ ‘I’Iti• IluirIii I iii I Iii’ . rt i’. :iiliiuui.ii,I , ’ I’IIIiPrt uinu iii iuiil.iiigiriiI
‘p. Its Inuu Ii Iii ’uu uitgI ,. ii I ‘liii ’ . uiuiluruu ,uu,iuu Iii gil iu ,n— s.u ’.Iu1uuI lu,i
I ,sj •i.. iui.I Iii .Is ui iIui liii I. ii. ’ uiu luili ’I J IiIlIeiu%u• iii liulut— iii
1.1— 1.1 11 1..._. uii. Ii , . . I.., ii uii uI, .1 I.s • ‘i I.—— ‘Ii ill —ui iii—Iiij. •.i
• I , ,. lII ..II ..ii— I. i.l i!i.ii
153 I’ot% ui., .1 , Iu..—iuit lug
tiii’ Sixth ( irrii i t,—rea I til( ’S ’ wor(ls as M ipi ugly a I o —
sible to iiicliiole all ‘‘aetiouis’’ t hat, aiiv federal agency ‘ er
may t.ake it Ii respect to aui ’ federal liii ,Ii ’(i , % iii’tliei’ (Ill I )—
i)leted or tuot.
Tue Court today i’iuil urares tIm is s eepuuig ci ,uistriiet loll
.4 (ate, at, 1S4— I SS iT, m Icr 1.1 mc ( •ouirt.’s ri ’asou iii ig tiii’ Act, (1 ivo’rs
every exist lug li ’ili ’ral unstallat,uumm, imieilahmllg great. Fiydrcsler—
tric ProJects aumol reservoirs. o ’verv river auui I harbor iro,eet. auni
every uiatioiial tiefeuise iuistal1atioii—iio e ’er P’. .SPuI Intl to t ,ii
Natioui’s ecoiniinic health ind .afcty i’m’ ‘‘net lOluS’ tinit. an
agency would iie prohibited frouii “carrying out’’ wouilol iiie1iul ’
the eontiui tie I o era t iou i of siidi projeet or an v ci lango’ iii’ccs—
sary to preserve their eotit.iuuiictl iisefiiliies Tin’ oiil ’ pr-c—
coiulit.ioii . ao ordiuig to respondents. to I hums destroying the
usefumluu ’ss of even the nio4 iIIIIR)rt.ailt federal proj(eL iii ohm’
country wotml(l i ’ a finding by the Seen ’ tat y of the I iitu’rmor
.4,ile, :it iS I—iS . , tl ,n.,I .iiguutuieuul, rt . .Iw uiIlt-uuI iIi rI tItu,
:u-. I Ii,’ir ui ’ v 1 1 § 7
‘ ‘(II IS’I’1()l ’4 s I liuiik—ut i’ — —i ill s .,,ir Iii ’- ’lt i ,ru, •i . 1 ittitler—
•st.,u I ii, tIi:uI. liii.. ii.i•t Sa tii,ri 7, :ippluc ’i ho iiiiiiili t. ’I ilgojeli.. ? I 1siiii v
omi thiii’t. i lmuiuk ii ,it ’putr, ‘. ir’. ufie,u I liii hIui:ri’lI Iii ’ .i tti ’. -iI lta .u tpI ’ . ii
Bait. iIoe it apply if 1 he iieed c ust P
‘‘it I R P1 A’I’ E H To I lic eon tiuui us fun—
“( lIF ’1’1ON . ‘ [ ii (hiinhPIC I(iI lirlujIst.. r ski t i • (;r,iuiI C’nilip il.iiui —
‘ ‘MIt 1 ’I AT’EIt Right Yiiiur lIc ,uinr, ii iluri: HI ’t( ’ a ii•i’ii-. ,
“—it. ‘.vou I d ii ‘t. I x’ Ci U I , ) iigcred l iv I he II:, m
‘‘QI1I S’I’I()N I know thu:it,’ . your vic ’ .%’ I’m .i..kiiug snu hot to I rtiJe 1 I
your mumgin.st ion—
—‘‘i ’ I H I ’1 A’I’ER I .ei’, your I loins,
‘‘( U I S’I ’IflN —111’’. oiiui :5 iie ni log iii :i— .I iiii pill iii
‘l ’t4fl iLA i’I-iI Itight
“QU I S’1’ [ ON iL itd tIi:iI. %va —. tli.it liii ciii I . ,, uge ii d ‘-I ii •it iii iglu L I turn
up at. (r:u,id ( ‘. ,tuli’. I ).w.. S ’ I n tIs 7 .1111.1 I I I it”
“ \II I ’I ,, ’I’I-:If I I,u’iit- s’ ii ‘ . ,uiiI,t, ‘t’ipuir I Inunir I Iiu . ‘ 4 ,-rrt ’I.uI v I II i In
11111 nc ir—
( II ’I ’io)\ ‘lli.il .iti—’.’.it. dllul—t ih su l
ilC I’I , t ’I’I It ‘V. —, ii t”uiIu1’’’I’r. ‘ii Ou.I i•t 7—5S
-------
:204 UCTOI3I•:li ‘rl ’:HM. 1977
TVA u HILL 205
1 i 1.1., .1 tII—t.I ’iII iiig ‘137 11 S
t.iiaI. a eoiutiiiimtiuii if t,Iic l)IoIIrf. oiild t,iiri;itcii Liii: sill vival
UI ’ critical iiaiiit:it, of a iii l ’ iIi ov’rid sp ’eIc of water f)Idcr
or
“I F’ Ifl ’(IU(’UtIY voril’ of general ineannig arc used iii a
sI4tt.;if. ‘ iiuls lirii:icl i’iioiigii Li) IIIC1II(I( ’ au act iii (Iuiestloil
aiiil ‘u1 , a. roui.iih ’rat,u ii of tiut’ vluoh’ b’gislat.ioii, or of l,li
cIrcuIln’J:i IUPS sun ouuiuliug its eiuactincuiI . or of tiic ;ihsuird
nisuulls Ii irlu follow from giving siidi broad uicahming to t ,lic
w ( )r(ls, iimak s it uiiroasoiiahh• I I) 1 s’lmevi’ that the Iigislator
iiiteuuh ’il to iiueluide time tart iruui:ii act ‘‘ (‘Isurel,. of (lie J!ol ,
‘I ’rsnihj ‘ (foiled Sh,h.q, 143 11 S 457, 4Sf) (1M92) ° Time
lJfl(IW I hr ( iiiiui “. uuu lurl ,IeI:it nil ihi , IHhl P’r 1 for uu , It thi .u icr :iu ,
l ,ui ’ .iiIit tkiuig iiutIi ’u ’d, ‘uiurr I I ’ri. .uru’ Iuuiu liiiI ’ iii ilioiu ’ ..i,utl ’. of r.iihitl:utr ”
br I lo’ u ’uuul:uuug•i r u Iu i
•‘l’hii’ .uii it , , ’i’.. i’ i’t .uiuuuiiil .11111 i.Iiuil ‘ iti (‘ I I’S, SIuI (S II ’I
I lion in I lit’ %%I)rhl tit ’r ihuuig puou ’ iit ,ui ‘Ihii’ri , .urt ’ .sitiirit iiit:sIt’Iv I 4
itiilliitii lull “ tt’i ’ii ”, tIl iiiiiii .ul’ .111(1 I IN)ji(I() 11111 ‘ Hl I( . of Iul.iiu I’. iii liii’
% I (IlII \.iioua .tuuIlioi i i ii ’’ , i .ultiul , ulr ,i . ifl,ult .1’, 109 , of tltciii— ’ouuit’
2IM 1 ( III—uui. , uiu’i I In hr Ii i I .u I iul.uulni ’ut l nu ‘I’hru ’ ticiuril \‘}icui ouuc
iuiiiiI iii SilhlSjU ’I it’s, ti.ti It) Iuii’uiI 11)11 uuutlit itlui.iI hiui l.uil.tI ‘iii’— , liii’ 1(11.11 I tiii l i l
un rr.I o in I Iuri’r Iii li i ’ I hut”, iii it nhhputhtil ‘ ‘‘ I i ’ui Ii Slirt’uuut ’u , A’ . tti iii
I )iii ’ br tint HuI ,uui ruoI S 1 ’i ii’— Pungu, ,uiu 1.uui.igi’r t ,1 tim IJ S l”u ’hi aunt
‘ihiIuli ’ “i’i ‘.iui’, tpinlt’tI iii :u hi bib bitnit ‘\ .1 ‘,uguurr, ( Iu:uiruii:tuu, TV ‘t , l i i
( uu.tuuiui.uii, I lnuis ( ‘ouiuuuhul In’ ii i \lu ’ii ii.uuui M:tru,u,’ .uuicl I”i’iit’iun ., ti:ui,’iI
‘SIr 25, P 177, 9 1I0t l i i i VtttI, I I I I I ’i ,ilt ’t lung .111 I ’uul:uiugtroI SI,tliitr
‘I’Imu’ h ,uiui:iui m’rt’d Spnmir, At’i ul I ’ 17 .L . 7 h’oltr,ui I .1 25, !7 (1975)
‘‘ Arriird, C •/ (Fn,tu ’d S1utu’ il mi in an Ti iu’l.gnq A. ssi , 310 ii s s: s,
s 1% (14111) At ;,ist, v Nu—I ’nawi’/ (‘at 305 11 S 315, :t:i:
( PEN) , No, ,rIl I/titled N1ut.’ , 2. 7 II S .135, 14(—445 (1932) (t’olIu’ t —
tug l ’.su•_) (‘mud Nla1r. v I qazi 2s ii 5 1 17, 175 (1931) The Court
uiggi’sbs, ulute, ii 157 ii 33, thu:ut, tl t’ llt ’i’iJuI b:utt’tI in (‘Iwo /t of I/u’ !Iols
Ii,,iilti %‘ ..i’. st,iuit ’hitt iuuutlt ’iuiuiuit ti iii ( ‘,.mi V Ilmrelsou, 2S2 U S 55,
10 ( l’i )) I )uulv . , ‘t’:ur .ulu,’r bin’ tint u uiuu ii, (‘,uti,I. s, iiowt’ ’t’r, ihuc (‘nun
thu l.ir,’ti uhi..t . ‘ Iuht’r,il .uiuiiln m l umtuu of .1 ‘b ubiult’ vIiui Ii %‘ ( ,uuIil ht’:i I In utl)Sbird
i ii , — u— it. In’ , ‘uii ,Ii ii u Iim u,. I ,i rm’:,,utuu.ui .lt’ •iiiilui ,ttui,ui 1:111 1)4’
L’i I ii hiui Ii u’ ‘‘uu—u ’ u ’ iii t Ulu bitt I ’’i.a—i 11%,• puuujii ”t’ ‘‘ II’ :ut. tijira ,uI
l ii ii ,’ tll tug , ii, iii, ( ,uiu u i ——Ii ii i i , it ii m iii, (‘It ( Ii I It ,f
II ,. /1,’!’, l, .n.l’, ,.u, liii — ‘ . i ...iI .i . .I t,II s,,,,,,j ,i I I’. ‘II , .’ it’.ii
ii. , I . I ii I ii . I ‘.111 I li’ 1 IIi —• ii t ,ii I It .—. u——it ’ ,u i - . I ru. ‘ill
i 53 1 \%’ m: 1.1., .1 , d i —st ‘tub i lug
result, that. will folIo iii timo (!aS ( ’ i) ’ ill Iii’ of tin’ ( ‘ourt ‘s
ui’:ulii g of 7 uimakes it luilr( ’aSOul:iI)I(’ to ilI’II( ’V(’ (lint ( ‘ouigu.i’
int ( ’IIdb ’(l that r( ’a(liiig. l\’ [ iui’i ’ovei’. 7 iiuiv I n’ roiistrli (’bi in a
way that, a ’onls aim ‘‘absurd result” mt ,Imoumt doing moh’in’e tu
its 1:mngiinge.
‘tin’ crit ir:ml on I iii 7 is ‘‘iu’tit Ills’’ a iuii its Iiu’:mu ii tig i f:mr
from ‘‘plain ‘‘ It, is part of time piiu’:mse : ‘‘act ions ahitlu I inmn ’ ( I,
fumnih ’d or carru’(I omit,’’ iii terms of )laIuiuimig ale1 vxeeiit ,iuig
various anti v it n’s, it Wems cv ide nt. tim t lie ‘‘at’t,it a us’’ referri ‘d
to arc not :111 actions Iii at aim agency en i i t’’ en I ake. lInt. rather
ar l,i (Iius t,liat t.iic •ageuu’y is (Iecidni 1 / ‘ mi m i//icr to auItlm(uniw. to
hi iid, or to carry out, Iii liort. I liesm’ uu’tk i i’asoumaltiv ‘may
1)1’ u’ea(l m is applying only to ‘pru.s’perlivi’ llrlu,n.s, i e_, act juliuS
Wi tli u’(’S,)(’ ’t to vim i(•i u time agency I i as i (‘:I’t a i:ui ilt (le(’ i iou u—
uiimmkiiug muitA’riuat uves still mLVailahlt’, art uuuu i ii.! ‘i,el carnut ’d mit
At the tuimme rcsl)oii(lem its ia’ouigiut. Lii i”, i:m ‘ .iimt, time ‘I’u’liiro
Project was 8O’,/ • eonlpl ( ’te at a cost of uumote Luau S7S ituiiliuiu
Thu’ Court coimnedes that as of this tumme a liti for time pImrp 4I u’ of
decelimug this case, time Tellieo T)aun Protect i ‘‘coimipieted’’ or
‘‘vii’tuiully romnplet.ed and the l;uni is u’ u’iutiiillv ready foi
o u ’u’atioum,’’ aim/c, at 15U, 157—158. Sec ii I , .c’ujtra. Tim u
tinder a prosl)ot’tiv(’ rea(liibg (if § 7, Lime act boil :iini’aulv hail l)(’(’iu
‘‘Cftt’i’ie(i out’’ iii (crams (if ammv i’elunuiuuiiug l’(’asoInul lIe (i(’(’i iUuI—
mnakiimg power Cf. Noiwimal WildIiJi’ /t’ederolinii V ( ‘olt’:,na,i,
529 F. 2d 359. 363, ;miiit ii 5 (C’AS). cert d’uuied s -ui, ,,n,i,
Rot eh’r v. Noliwiqi JJ T 7fdhife Pederislion, 4:29 11 S 979 (197(3)
Tim is is a reasoinible u:ouistruictioum of time lal ugliage a iud mil o
is sui pportecl hy the i mesh niption against (‘(Inst t’ilb iig stat mites
to give them :u retroactive effect,. As thus (‘otiu’t stated iii
i’cplutui ipf liii’ t•hmitu’.ut’It’r of ttttl:t ’”. rt ’ — .uuII ‘i’h, (‘ttuirt I)r fu’ St’ to f’unl
nnlhuuuug parIuruut:i,l ui’uum,trk,uhil ,’ :iIn,uib hut’ rr ’ tuli ir. iIuu . ’ it l. it’— tlm ’i i,utui,
in b }ui , r:m’ -,t’ I i t ,mui— i- 1 ut’ ii :m’, rm’u,u:mrk,uitk’ uuutlu’t”I, :uumtl h,tu’:imu’.,i’ I t’,iuu
tutu ito huiuui iii ml I ‘muuugru’s’. ii iuu:miI iiutt’uutlm’tl it, ‘—i’t’ ,nf ,n, ii 2 1 )7—2 Ii ) , I .ini
It’d to tom Iuitim’ bit ii bItt ttiugit”siitut,iI ‘t .rii ., i .uuiuu,i lit’ gmvi’iu bitt’ luuu’:muuulmg
,i’u’rihit’th ho bhut’iiu 11% iii .’ ( u ,iurt
-------
TVA v HILL 207
o(YI’oHI;l( ‘FI .I( .1 , P . 177
I ’ ia. , .1 , tli’, ’,tiil iii 437 Ii S
(hilled St o ics PidclLly & Guaru,,lsj Co. v. Uiuted Slates cx ret.
trul/,er. 1l’1h 1 , 209 Ii. . :U)u. 314 (1908). Ui “presump—
Iloil is VCI’y stroiig I hat a statute was uiot. iiieaiit to act
rel.rosI )eçt ,I vely, 11111 I it ought. I iever to receive such a cOnStrue—
Lion if it, is ,uis’ptih1e of aiiy other.’’ This is iiartieularly ti’iie
where a st 4 tt ,iitc cnacts.a new reguuule of reguilatioii. For
exaulilIll ’. the Icr esIlinhIti oli Ii is h(S ’Ii r( ’eogIiizc ’ (I iii C8SCS un(ler
t.hiu’ F JIl tiI)IlliI I llViI ()lIiiI(’iit.Iil I )Ii( ’ ! ( t. 42 11 S. (‘. 4321 i t
.‘1(’(j., iioI Iiuig I II L I hI( ’ rP(IuiuJ i ’itiOuit , )f filing 811 (iivirouiineiitai
IIiiI):LVt SL 1LIA ’ill( ’lLt ( ‘:Li (uIt)t r( ’Ii’ I)l(IlI 1y he ILI)i)IIl ’(l tAJ P1 t)J( t’t S
suihstaui t ,ially . 1 1 1 1 )1 1o ’d. ! .‘ q Piziiz, Ipu. v. Valpe, 4( 7 F. 2d
205 (C At 1972) ; I?.u ,iusid v MueIirr. 460 F’ 2d 1106 ((‘AS
11)72) ; (irrrnc (?ounl!J I’klIS11l !/ iluord v. I”I ’(’, 455 1” 2d 412.
424 (C’A2), cert denied, 401) U. S. 840 (1972) . The Court of
Appeals for the Fourth Circuit explaiuied these holdings’.
“Doubtless Congress (11(1 not intend that all projects
Oi IgoiI lg at the effective (late of tin ’ Act, he subject to the
r ’qLi ireluients of Sectioi i 102 At. SOl OP stage of progress.
tin’ costs of altering or aI)aui(IoIiIuig tim Project could So
(lefi iii t.ely ou t. eigli wI i;ul ever eii fits that. ii ugh t accrue
t,ln’refroin that it might, iio longer he ‘Possible’ to change
the proj( ’ct in accorda lice w utli Sectioui 102. At SOffiC
stage, federal actioli may ie so ‘eoIuipIet4’ that applying
ti i ’ A (‘t , (‘((111(1 Ill’ (‘( 1151111 ‘ri S I IL ‘I I ‘I.r( uuA’l.i VP’ ap )l I ca.t,i Oil
not IIitA ’IIde(l by the ( ‘oligress.’’ Aris,iqlo,i COalition (171
7’ra ispnrtattosi V. Volpe. 455 F. 2(1 1323. 1331, cert. rlciiied
sub ?u)11l FVçJU(e v .4 rI,nqlo,i (‘ooliiimi (in. Transporta—
two. 401) U S. 1(X)0 (1972).
Similarly under 7 of the 1’iit lauuget’o’il Species Act, at Some
stage of a federal l)ruj(’cl.. :tinl (s’rt.aiiuly Wii(’l’(’ a project has
I lI’Olu euiiiiulrti ’d. the ligetury 110 iOiig( ’i’ has :t reasoiiahlc choice
‘ .uiIlI)Iv Iii 8I 8iIlIOiI it Viui ’ui I hIll. lH)utut. I i’Pa(’hI4 ’(l. ILS it was
iii iii I . ’. e:u .v I iii ’ I)ru ’h uiIuli)I ( ( lii :iga ii i’.i I et rii’ j (i’(’i.i ’t’ Iiit.el’l)l’(’ta—
II ,(i l’ :it ii ’ . ‘.llliiu I’— i ‘I’hue ( ‘iiuii i i,iuI;i ’ gu’ ,i’’ .. nuu i’ighut Iii
uI ii Iii l••’lI I III 111(111
153 POWELL, J , di n ’nting
B
The Court, recognizes that the flr’ t l)liri) ( ’ of statIlt4il ’y con—
striietion is to ascertain the intent, of the IegisIat(ire E
Untied Slates v .1 ,ncrican 7’r’uekuuj A& ’ms., 310 U. S. 534, 542
(1040) .‘ The Court’s opiiiioii reviews at length the legisla-
tive history, with qtiotat uoiis froiii Comiu littMe Reports awl
stateinen t.s by Mcmi crs of (‘oi igre s. The (‘on rt ti ieui ( ‘n( Is
this (hiSciISSio)ti ithi cuirionisly ( ‘o l Ifhictu lIg ( ‘ OhI(’Ii ISIUI IS.
It. fun is that t.ht ’ ‘‘totality of Couigressioii:il a( ’tiOI l ii i Ilk(’.M it
81)1111(18 iitly cl ai’ I.Iia I, the resni It we reach t.oi Ia I i uisti fv i uig
the termination 01’ ahamuhouinwnt of any federal l)rojectl is
wholly iii accord it .hi 1)0th the words of the statute 811(1 I,hit’
iliteilt of Congress.’’ A nte, at 184 t ’t .. iii tin’ sa Inc p —
graph. the Court acknowledges that “there IS 110 ilisi’iission flu
the legislative history of l)rec ise1y this problem ‘‘ The O )imtioil
no vhere ‘imikes clear 1lo ’ the restilt it reae1ie can he “Ithilli—
dantly” self—evident, from the k gislative history when tile
result ‘as never discussed. Vhile the Court’s review of the
legislative Ii istory estal)l ishies th’at Congress i ntc ’n(le(I to req ii ire
goveruiiiwntal agciicies to take eudangered species into necotiult
in tile planning and execution ‘of their prograhmis,” there is not
15 T :iuiiIei, A Not(’ on “Sl.(l iutorv Tnt ( ‘rpret.il inn,” 1.1 1 Li rv I Rc SS6
(1930)
Tin’ iiioi :111, un Iron I In’ kgu ’.i .iii vu’ Ii i l I )fl ru’I IIM I (liii )fl b tb ’ C in rt
arc roasomi:ihl v Iewe( I :is d’u in ,ui t r:i lung ii Ill t Couigri”. W:(s I hi ii king a boti t
agency act ion in prn perl.ive Sil uat ions, rat her I hut aetinn requiring
nI)andonr lwnt. of (a ,rfli)l( ’tPLI prnju’el For example, the Court quotes
Reprcscui In Live 1)u ngel i’ s Slat ernent. as a hi ugh ily ln’rl i lien I mi erp reIn hull
of what. (he Coti fu’re,ui’e hIt in! ended In I lie si :Ll cmi’ ! it ru’I ued ii • ante,
at 183—184, Representative Dingell said Ih ut Air Force bombing act lvitu ”I
along the gull roast of ‘J’cxns, if found to end.umi u ’r wlioopiimg ‘r.ines.
would have to be (lI eOfltIfl(I( ’(I \iuIi respect to grm zIv I,c ’ar , lie noted
that tln’ ’ may or may not he c’,u(iaImg(’rc(l, buil uindi’r the Act it, will be
net’ss:tr “to like :uctio li to see lli.it these be.tr :irc not ttrivuai to
C’ I ul i u’t I . il l
1 1it. I ‘, , ,irt .iI— . 1 irt’die.iti’ ii’. lieliling .i’ , in Ii ci I:itt ’ i’ intent uipoim thu
pru i ioii in time Act that just rueLs federal gefleio not. o “t a.ke” vmidaumgered
-------
208 ()U’i’( )B Kit ‘I’l .l I, 1977
TVA v HILL 209
i . .1 . (Ii i .’ .(litIlig 437 II S
(‘%‘( I1 L lii,iI, iii t iii i gisIal uv lii’tot v that, ( ‘oligrt ss tiit’iulud to
)IlliH’ 1 I lit’ itiitIoiii (I I’ 8118111 hut ii ui ’uit. of 811%’ itI ’OIt ’Cl. or )rt)gr;itit
lat4r foiii l to tin ( tt ’ii a Ii( ’%% ly Ii fl’Pr((I Slft’CIP.S
If t,lip rt’1i ’vai t. ( ‘tiittt ,iiI.lt ” that. lIstiIl ’ 14(I tlit ’ Aet,. auth
t lit’ 1\’Ii ’tiiljei ’s of (‘uuigrt ’s ’ % hiti ‘ttt.t’ti (lii it. liati I)t ’i ’lI a%%’al ’t’
t ,liat , tIit Ait. etuithi lie uisti I to let uiiuiiiitt’ tii:i tir ll ’ 1 1t9 al i utiit ’( ’t ”
aIlt.Iiorlz( ’(l %‘CiI ” (‘ill Iit ’r 811(1 iit ’arIv (‘01 I)lt ’t( ’ll , ()l to i ’( ’(Iliut t ’
alaLII(h)IiIIIoIlt, t)f t’i ’st’iit uii alit I iluiig—PohIiplt’IA ’(I f( ’(iPI ’ I iiu t,a1—
— Hl ’ii , iI ( 1 .I IIIIILr thu liii Hill’ I— . ‘lu Ii.ui.i——, hi:uiuiu. uIli—lu ’. liutiut, ‘hiiut tti iiiuI,
kill. lr..lu, Iulituu.. iii i u u h hi’i I’ ‘—iuu Ii liii. I.uiiuu” ,tiuIu. ut l.sl—l ”F. ‘liii’
“hit uluuuulu• ’ ..v,u.(. .il I 5I—l ” F , ii 411 lhuu ’S u•u t ’i.u, iii liii’ Iuit,’ruuir”.. uhu’luuiiuituui
uuf I lit’ liuuui ‘1 1:1111 1’’ lii uu u ’.iiu—.uhuuuiIug tn Iun’r hniiig—..—.—.uiit ’ iii tt’hirhi “.iuuiiuut I
tt 11(1 liii’ I iii .tui Ii iii (‘\I( II( .1— Iii —iguuitiu u il ulu—ritiul “ . .. ‘iutu.iI luill in. uuur.ul
hu,Ilt l ii— ‘.t htiehi lhu(’hhI(ll’ hut . 11. tuuul iiuiuuli•ul lii , l)r(( ’uIuIhIZ. 1.u ’uluuug or shuu’ltpr—
1 11g. igiiiIi. ’,uiii hl% hll1IllIu Iui.ul iuuiuiluluu .iI 11 111 or iii gr,uul:ul 11)11 tn. liii It li.u
uii Ii .‘flu ’u•t is uuiuhiiuli•ul n.n.ilhuuiu liii’ huiu.ihuuuui. ol )i,uuiut ‘“ .‘ U Cl I1 § 174
1u 1’l,t ‘I n.n.uu uIi ’ .u’in. ilium— hum. iii l’ii—i iii, n.H Ii iii this im’guml
ti,,ii tn.lui. I , ii ,. ‘ u uulut i.. — uiuh,iu, ‘I I. iii, \u I—i — n.uului lln. litutut—
I. . — %ll ‘ii . n.uuiuil .l Ii in. in. luu mI I— liii Ii , u ——u l iii mlii, Ii It liii il 111111
ui i n. lit uiun. — iu• ii — u — hI Ii •uhuuu i! in ..luuui_’ lur —li luu ’riiit. un —iizuuulii.mmiIIn.
ii i—Il u .i.. I I ut I Ii . i i I 1111111 uu l iii u \I i uIui I’i uiI i
I u ,uiiiuu.i ln lmm’n.u’ iii ii ( uulmgum n.n.umuulil Ii 1.1’ L uuilI liii’. I.ui ifu uiiiiii’ril u’n.m ’I
Fr’uh ,’r.ul luluutm u I I luittu ‘.1’! iiImlu m nrl,uIul . .mii lH’)m,IlI iii .iti living spu ’I it•’, how—
in. u r uuimiiuijuuiituiil, w iiluuuiil ,u rli.,ir ,lu’ I.ir,iI ion iii lli:it uIhl ,1 1 1i 1 1 11 Tim,’ Immure
l,ui 11111.11 Iull ’r )r(’$.it 11111 is ( iuii’.i ”ti’iit ‘.t iiii I (’liru —’ .l’lIl.utI’ . ’ 1)iuig’hI’s oh iuuus
iluuiuk’iiig ‘hue i t el I’ , to Ilultiut’. tIV ( ’ ai’tituIi ‘.t Imerv ii’a—umiu.uhulu’
liptiolus e’n.u’ l nh thought n.n..u— gtvrim hi alu.uii ,h ,uiiini•iil Of l’(uiiuluIetrmI urouect’s
‘i’lum’ Si ii,mtm’ hmt u—or of liii’ hill, “ , ‘tm.ituur hiuumim,’ , ;i ip..rt’umI It lluiuiighit
lhi.i( hut• %i•l tV,i s 111(111% prim uluirn. .in ,l n.n.uuuuhl hut wit’lnlr.tw (null tli
.ig4 ’lu ’ I lii’ huii:ul (let I,ioui tutu ruuImIlilt’; uuim im ( I u l 1ruut 1 I
‘I i I I tiuiuh.’i i:iiiul it, :ultu ’r liii’ uuii—iuII.tl 11)1 1 Ilrlfli’ s look 1uLu I’. thit’
l4tiiu ’:iii u I i’mil,lie ito,uI ’, or liii’ ( ‘t rIs , oh I ’:,ugihIR ’r , n.n.mild 1101. IS’ i> °—
liulaleul Irtuiti huiuiluhiiig :u rut.i.l it i lmu’n. ul, ’i’iiiu ’tl ii uieri—,’..irv lii tb .ti
t1 , 1 ru’.uul liii’ I.uimgui.igi, liii’, ,’ Ii. ,’. iii huu• t uilut.iili.utloii llon.n.u.n. mr
lhic’ I iiim ’.iui of l’uililie l4ii,iul’ or .11,. itI liii :ugu’IIu’n.’ WuuiIh(l Ii, ,. the lund
uh.’ri’,utumu .u, to tt hlethe,’ “ .iiu ii .t i’mi:iul —Imu iluI Ii ,. luimilt ‘h’hi.ul is ,n IIlh’i lilt’—
t.iI nun iii tin’ li’gisl,ttiumui :11 .uuiv lilt’’’ I Itt ( ‘olig ltu ’e 2ti6Mi)—2511t1() (P17.4)
‘ . 1 ( 1 10 (‘l,th v ! 1ffi hU ,. . 5.4 I I” hi l ’t, l8 1t4—I.fttl (C s lht7i
153 I’owELL, ,J , dm setitmg
liti bus atni (‘(hifi(PS.’ W P (‘liii 1w (pt’taIuI that there w ’oultl have
be’eui heating’., testitiioiiv. auth k ’lm.te culurei’ulIiug eotiscqiienees
so wasteful, so inflnieal to hluirloc ileciuteul un—
P° t:iii t. ant I so 1 ikely to at’t uIIS(’ ptil)lic utti (rage The i t l )SOfl(’(t
of i iy stieh (‘(Insit hera tiui i by the C’oitii ii it tflt’s or in tin’ floor
II(’ii:I (PS iuiult(’:it ,(’S ( 1 itltt ’ eh’ ur1v (lint, itti quit’ Juii’tieI,l:Itllig iii thiP
l(’gisiat.u %‘e l)t’(ur(’SS coiisiu lt’rt’d th i sv eoiisequi ’uut s :15 I ( II iii the
iuiteiìtlnieuit oh tlic Act.
As it ud uea ten above, this view of 1(’gu’ l:tti ye in tent at the
tulle of e’l ia(’tin(’n t is’ al)un(laiitly COl Ihruii(’( I 1 iV (lie suuI)SeqUent,
rouigressioiial actions atiul expre suons. We ha ye hn’iul. properly,
that Post—enactment staterneuits by iiichu iduual Members of
Congress as to the meaning of a statuut are eiututlc’cl to httle or
no weight. See, c. g., Regional Rail R ’uirqanizt’zl ion Act Cases.
419 U. S 102. 132 (1974). rrhe Court also has rvcogiui’,ed
that stihseq uient A ppropruat ,iouls Acts thei uist ’l ve are not un’ces—
saruly entitle’d to significant ‘eight in dcteninutiuuig whether a
hirior statute has been superseded, See United Stoics v
(AIIU -/.stou, uS U, S 359, 393 (1SSG) Rut these precedents
are inapposite. There was no effort hmei c to “bootstrap” a
s — ‘na tt n ’ui t vue of liner lege4:t lit uu by isolated state—
tiit’iitS of uildiVi(Iuufll (‘oitgi essluien Ntir u iii is a case n. here
Congress, without explanation or conitnetit npoui the statute
in question, merely has voted apparently inconsistent finami—
I ‘I’hue lull em I m intl uos d rutht’tii:u k lIE 11111 her I lie A (1 111.11 Ic it tiLl ito clear
111:11 ‘LIt 11 .mui lIutu’rilret t loll W.l 5 hot mlii eiiuiu’uI
‘‘Nu’mth ier Ilium’ I’m—lu :uIilI \ ‘iliIlife S’r o t,’ iii t ho’ I )u’hm.urtlmteiiI of thiu I litu.ruuunl
uior I t hi’ i .i I ituuu.mi 1 1 t1.mruiic i”m—huenie— . ‘ern. i:’e of t hum’ I )t’ieu rt ui ’nt ot Joill—
int’rre I iiuieiuuh’. i h.ut seet iou 7 hurm,ug :ubouut the tt istu’ that ruli orehir if aim
ad a med projua’t is halted ‘l’lic a 0 cs’t cii a gem V tfl list un ui n.n.’h met her
the degree of u nmplt’t lOll :und c’.tent of public ituuithiiug of p.Lrt u uui:ur proj—
‘‘tb justify an act uuuu that net)’ be othiern.n. m e itwuflsistcnt n.n.’util sect ion 7
42 Fed Beg 4S69 (1977)
After the (b(’l’u imun of time Court of Ap x’.tb ill this c.m —i’. liotn.c’n. t’r, lb
(Iui ut(’ul IaIIgIm,lg i’ W,is n. it Imdr’mn.n. I I, ;ui lul liii ageto u’ :mduubIlnmI time itt ol the
court 43 i”i’ui Keg s7tl, S7 , 875 ( 1’)7S)
-------
210 ()CTOI KR ‘I’I•:kM, 1977
TVA v HILL 211
Powi i ,c., 1 , di tiit ing 437 U S
cial sul)port in SIIhSN]iiC!it Appropriations Acts. Testitnoify on
tli is irocise is_sue was preseii te’l liefore coiigressioiial coinini t—
tees, and the Coin in ttee l eporl s for three roi i eeiiti p y Lr
a’ lclressctl the prol)l( i ii flU 1(1 affirmed their ii nderstand ing of
the origiiia I coiigressioiial i iitcnt. Ve cannot assume—ti_s the
( iirt suggests—that Congress, ht’ii it. c!OiitIiiUe(l each year
L I I a ) )iJV( ’ LIII ’ r(POIiiii1(’Ii(Ii ’(l ah)h)ruhlriatiohs, was iiiiawaj ’ of
LIII’ ( ()iit( ’IItS (if the suip a)rl lug (OiuiiuIIttAP ReI)OrtS All this
at noui ut_s. to strong (orr IulsIratI ye eVi( hence that tin’ I iitcrprcta—
tioii of § 7 as not a )plyiuIg to cou lipl( ’te(l or substantally coin—
I)letA ’d projects reflects the initial legislative intent. See. e. g
P!c,nsvq v. i fiIwu/, Il’ru( I , iiqj t . ’ ’ liumber Cu., 331 U. S 111,
116 (1947) ; Brooks v. I)cuor, 313 U S. 3Fi4 (1941).
lIT
I lni’ e lit LIe iIoIIl)t. that, ( iigr(’ss ill :iineiid the Eiidaii—
g.i’d .\et. to iii ‘iil I hit guiiV. r ni qiivtirc iIIiuI4
t—il.I . I,v t ia s ghi ’ru,iiiii if aui ’ luuiuiurs oh hhi ui.
I iIPIIV ‘i’. ill i .Ii I A ’ l fi iuI au i uit ’i lii (‘tfll.i(IuI (If I In’ Aet t.Ii:iI.
i ’(jilIU ’S I I II’ V iSI( ’ Oh at hi ’ast, D.).3 uiuil Iuouu . S(’I ’ ii. U, .supru, aunt
ilcuiies the l)eol)k (if tue ‘l’( ’ilm • ’ 4P( \‘alIey area the benefits of
the reservoir that Congress intended to couifer.’ t ’ There viIl
lie little sentitucuit to l( lVe i.hi i_s (lahul stan(Iing before an
empty reservoir, serving no purpose other than a conversa-
tion I}ie .Cc for incredulous tourists.
But more far reaching than the adverse effect oui the people
of this economically depressed area is the continuing threat
I A) the operation of every federal project, ito matter how im—
liortault to the Nat.ioui. 11 ( ‘I greS ’ acts ( ‘Xpe(hitiously, as
may he ahlti( ’ipat ed, (In’ ( ,uirt’.s decision prohiably will have no
lasting asIverse eOhiSequieiusS. But. I hail not thought it to be
the province of this Court to force (‘oligress into otherwise
‘“ ‘flu’ (‘,iuirt :ieknu k’ li ., .i ii iiu ’i’ .i I lu.it t 1w prflfl:tliPnI. iflj(iflCt ,iOfl
ii gr.tIiI . tu,I. ii! tii —.i phi’ ul ilir phi ii uii.ii.il I qii’hiIs of ijie
IrIJ. ’ t .tiuil iii 111.111) riiilhiuin iii ilulI.ii ill IHibli l tuii’i ‘‘ tliite, at. 174
153 RERNQuIsv, J , di sent.ing -
unnecessary action by interpreting a statute to produce a
result no one intended.
MR. JusTICE REHNQUIST, dissenting.
In the light of my Brother PowF r..L’s dissenting opinion, I
am far less convinced than is the Court that the Endangered
Species Act of 1973, 16 U. S. C. § 1531 ci seq. (1976 ed.), was
intended to prohibit the completion of the Tellico Darn. But
the very difficulty and cloubt.fulness of the correct answer to
this legal question convinces me that the Act did ‘not prohibit
the District Court from refusing, in the exercise of its tradi-
tional equitable powers, to enjoin petitioner from completing
the Darn. Section 11 (g)(1) of the Act., 16 U. S. C. § 1540 (g)
(1) (1976 ed.), merely provides that. “any person may corn-
mence a civil suit on his own behalf . . . to enjoin any person,
iiicluding the United States and any other governmental
instrumentality or agency . . . , who is alleged to be in viola-
tion of any provision of this chapter.’ It also grants the
district courts “jurmsdictioui, without regard to the amount in
controversy or the citizenship of the parties, to enforce any
such provision.”
This Court had occasion in Hecht Co. v. Bow/es, 321 U. S.
321 (1944), to construe language in an Act of Congress that
lent far greater support to a conclusion that Congress intended
an injunction to issue as a matter of right than does the
language just quoted. There thg Emergency Price Control
Act of 1942 provided that
“ [ u]pon a showing by the Administrator that [ a] person
has engaged or is about to engage in any [ acts or practices
violative of this Act,] a permanent or temporary injuulc-
tion, restraining order, or other order s/sail be granted
without bond.” 56 Stat 33 (emphasis added).
But in Hecht this Court refused to find even in such lan-
guage an intent on the part of Congress to require that a
-------
212 OC’IOBIit ‘I’Kiti 1, l’i77
TVI.t u hILL 213
ItKII NQtJI. T .1 lli .lil ini 37 U.
district court issue an ilIjLiIirtion as a matter of course without
regard to established equitable eunsideratiomis, saying:
“Only the other day we stated that ‘Au appeal to tlw
equity jurisdiction conferred on federal (lmstrict ëourts is
all appeal to time sound (luscretioli which guides the
dctcrmniiiatioiis of courts of equity.’ . . The essence of
equity jun 54 Imetiomi has heemi I lie i iower (if the ( liaiicellor
to do equity and to inouhi each decree to the iiecessities
of the i iartieular case. Fiexi 1)111 ty raLlier thami rigil Ii ty
has (I msti ugu ished it. The (Itiahities of m nercy n i n i pract,i—
cality have mnatle equity t.lii’ ilistrulnelit for imice adjust—
inelit , amid recolicil iat.ioll hetweimi the public ill tt•rest and
l)nivat( miceds as well as l)ct vtpll colilistI ng Private elallilS.
We (10 miot, believe that such a niajor departure from
that long tradition as is here proposed should be lightly
imnplie.cl. . . . I f Coiigrvs (Irsired to make such aim
abrupt departure from tra(hitiolial equity practice as is
suggested, it would have iiiatle its desire plain.” 321
U. S, at 329—330.
Only by sharply retreating from time iirmiici 1 e of statutory
construction aminouiiced ii i lice/ it Co. could } agree with the
Court of Appeals’ holding iii tins case that the ju(Iicial enforce—
mncnt i)r()ViSlolIS COlltamne(I in § 11 (g) (I) of the Act require
automatic issuance of Ull illJnl lctmi)iI by the district courts oiice
a violation is found. I choose to adhere to llecht Co.’s
teaching:
“A grant of jurisdtrtirm to issue compliance orders hardly
suggests an absolute duty to do so under any and all
circumstances. We cannot hut think that if Congress
ima(I intended to make such a drastic departure from the
tr:u litmus of equity i iractice, an unequivocal statenwmi t , of
il l)IIri)(i ’ woumlii have liecim llliUk ‘‘ 321 U S , at 329.
‘ ii,es tin I i ti ni ( ‘umlil I 1 n , .si.,.d uIl rret Uull tui rrfu 4 ill piiie—
live iiiiu-I rV1 1 1 ilu.uuigi. ii 1i:mui tuuliiuui i vluI ltl4ull Ill lilt All. Liii
153 ItEIINQUIbi’, J , diS (iitiuig
only remaining question is whether this (liscretion was abused
in denying respondents’ prayer for au imlj iiimet.ion. L0e 07n at we
En i /u lcers V. ML souri, K. & ‘1’. 1? Co , 363 U. S. 528, 535
(1960). The District Court denied respondents illjIiflctmVe
relief because of the sigiiifieamm L Public iuiiti social harms that
would flow frthn such relief anti I iceause of the (lemnollst,rate(l
good’faitli of petitioner. As time Court recognizes, ante, at 193,
such factors traulm tiumma liv I mawr i ilayei i am. central role in time
decisions of equity courts whether to deny aiim immjunctiomi. See
also 7 .1. Moore. Fetlerad Practice ¶ (15. 1 I :11 (1972); Yokus v.
United Stales, 321 11. S. 414, 440—441 (1944). This Court has
sI)ecificahly held that a federal court cruim refuse to or(Ier a
federal oflicial to take specific a(tmoli, (v iii though tue action
might. be required by law, if such an I I I iler ‘‘ touhil %%ork a
i)Ul ilie iiij ury (ar emnbarrassmnen t’’ or othmtrwuse ‘‘be me umtlicial
to the public interest.” United Stoles cx rd. Great/iousc v.
l)ern, 289 U. S. 352. 360 (1933). lIne time District Court,
eomifroulle(i with conflicting evidence of eoiigressiouial purpose,
vas oh even stronger ground ill refusing the injUumctlofl.
Smuice equmity is “the iimstrimmcmit for imice adjustment and
reconciliatiomi between the public interest and private mmeeds.”
Hech.t Co., supra, at 329—330, a. decree in one case will seldom
he the exact counterpart of a decree in ammother. See, e. g.,
Eccles v. People’s flank, 333 U. S. 426 (1948); I’cnn Mutual
Life ins. Co. v. Austin, 168 U. S 085 (1898). Here the
District Court recognized that Congress. when it, enacted the
Endangered Species Act, macic the preservation of time iial)mtat
of the snail iIar er an imnportamit public concern. But it
concluded that this interest on one side of the balance was
more than on tweighecl by other equally significant fact mrs.
These factors. further elaborated iii the clmsst ’iit of my Brother
POWELL, satisfy me timat time DIstrict Court’s refusal to issue an
mlii Ii net ion wits not an ai ‘misc of its I i erit lOll I t I uereforc
tlms tiit froima the Cinmrt’s (ipmnioii imoldimig otherwise.
-------
ROOSEVELT CAMPOBELLO INTERN. PARK v. U. S. !A.
Cite as684 F.2d 1041 (1982)
tainty. Petitioners cannot suffer, for Pitt-
ston cannot build. Pittston cannot suffer,
for our refusal to review its “1975 rules”
PSD permit neither adds to nor subtracts
from its rights under that, permit and cur-
rent law Admittedl , the parties may suf-
fer from theoretical harm in that they are
den4ed early notice of hether the agency
decisions to date hare been legally correct,
but this harm is suffered whenever a court
denies interlocutory review. In sum, all the
issues raised in these challenges can be
raised later should EPA take final steps to
modif,v the “begin construction” prong.
We see no particular need to decide or
virtue in deciding these issues unless, and
until, it is necessary to do so.
In determining whether it is appropriate
to dismiss these cases, we note that the
court review provision of the Clean Air Act
§ 307(b), 42 U.S.C. § 7607(b), states that
“any petition for review .. shall be filed
within sixty days from the date notice of
such ... action appears in the Federal Reg-
ister . . “ Ordinarily, in reviewing “final”
agency action, a court can review the pre-
ceding interlocutory determinations as well.
See FTC v. Standard Oil Co., 449 U.S. 232,
245, 101 S.Ct. 488, 496, 66 L.Ed.2d 416
(1980) Hence, ordinarily delaying review
of the “1975 rules” permit until amendment
of the grandfather rule’s second prong
would raise no time-bar problem. In terms
of EPA’s venue statute, however, the “1975
rules” permit decision might be considered
a “local” or “regional” matter, making re-
view appropriate here, while the “second
prong” amendment might be considered a
matter of “nationwide scope,” making re-
view appropriate in the Court of. Appeals
for the District of Columbia. See 42 U.S.C.
§ 7607(b) (1976). In order to forestall any
consequent complications growing out of
the time-bar of the-court review provision
or its special jurisdictional provision, we
shall hold Nos. 78—1484, 78—1486, and 78—
1487 on our docket for six months, subject
to extension at the request of any party.
In the event that EPA enacts an amend-
ment we can then, following determination
of the threshold legal questions, consider
1 4I
the “1975 rules” permit objections, should it
be necessary to do so.
So ordered
Etv
ROOSEVELT CAMPOBELLO INTERNA-
TIONAL PARK COMMISSION, et
al., Petitioners,
V.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, Respondent,
The Pittston Company, et al.,
Inter e .nors.
CONSERVATION lAW FOUNDATION
OF NEW ENGLAND, INC., et
al., Petitioners,
V.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, Respondent,
The Pittston Company, et at,
Intervenors.
CONSERVATION LAW FOUNDATiON
OF NEW ENGLAND, INC., et
al., Petitioners,
v.
UNITED STATES ENVIROJMENTAL
PROTECTION AGENCY, Respondent,
The Pittston Company, et al.,
Intervenors.
Nos. 81—1548, 81—1560 and 81—1773.
United States Court of Appeals,
First Circuit.
Argued April 6, 1982.
Decided Aug. 10, 1982.
As Amended on Denial of Rehearing
and Rehearing En Banc
Oct. 7, 1982.
Environmental groups challenged final
decision of Environmental Protection Agen-
cy Administrator to issue national pollutant
-------
684 FEDERAL REPORTER, 2d SERIES
discharge elimination system permit to oil
refinery The Court of Appeals, Coffin,
Chief Judge, held that: (1) there was no
need to supplement environmental impact
statement in order to accommodate most
recent data and policy shift in energy con-
servation and use; (2) no purpose would be
served by requiring Agency to study ex-
haustively all environmental impacts at
each alternative site after Agency had con-
cluded alternative sites were not substan-
tially preferable to proposed site; (3) Agen-
cy did not fail to consider all alternatives
which were feasible and reasonably appar-
ent at time of drafting environmental im-
pact statement; (4) Agency’s consideration
of alternative sites was not inadequate, nor
was its conclusion to reject those sites arbi-
trary and capricious; and (5) administrative
law judge’s failure to require, that “real
time simulation” studies be done to assure
low risk of oil spill prior to granting of
permit was error.
Vacated and remanded.
1. Health and Environment 25iO(6)
Where at time that environmental im-
pact statement was drafted, there was fore-
casted need for type of refiners planned by
refiner, it was federal policy to encourage
construction of such refineries, and there
was demand for domestic r fineries capable
of processing high sulfur crude oil into low
sulfur products, there was no need to sup-
plement environmental impact statement in
order to accommodate most recent data and
federal policy shifts.
2. Health and Environment 25.5(9)
Environmental Protection Agency’s
role in reviewing privately sponsored
projects such as privately q ’ . ned oil refin-
ery îã to-determine whether proposed site is
environmentally acceptable and to search
for alternatives that would be “substantial-
ly preferable” from en’. ironmeiftal stand-
point. - -
3. Healihind Environment 25.5(9)
Where Environmental Protection
Agency had reasonably concluded that no
alternative would be substantiall3 prefera-
ble to proposed site for oil refinery, and
guidelines adopted by Agene to limited
study of alternatives were consistent ‘ . ith
rule of reason, no purpose ‘. ould be ser’.ed
by requiring Agency to study cxhausti’.ely
all environmental impacts at each alterna-
tive site considered.
4. Health and Environment c 25.lO(8)
Environmental Protection Agency’s
duty under National Environmental Policy
Act is to study all alternati’.es that appear
reasonable and appropriate for study at
time of drafting environmental impact
statement, as well as “significant alterna-
tives” suggested by other agencies or public
during comment period. National En’. iron-
mental Policy Act of 1969, § 2 et seq. 42
U.S.C.A. § 4321 et seq.
.5. Health and Environment 25.l5(6)
Under National Environmental Policy
Act, in order to preserve alternative issues
for review, it is not enough simply to make
facially plausible suggestion of alternative,
but rather, intervenor must offer tangible
evidence that alternative site of project
might offer substhntial measure of superi-
ority than proposed site. National En’. ron-
mental Policy Act of 1969, § 2 et seq. 42
U S.C.A. § 4321 et seq.
6. Health and Environment 25.1O(S)
Where environmental groups did not
suggest any reasonable alternati’.es to En-
vironmental Protection Agency during com-
ment period on proposed oil refinery, alter-
native of monobuoy off mid-Atlantic coast
was raised for first time at adjudicatory
hearing and too late for inclusion in en’.i-
ronmental impact statement, and Agency
had rejected offshore monobuoy in Ne’.i
England due to fierce public opposition to
similar proposals, Agency did not fail to
consider alternatives’ which were feasible
and reasonably appar nt at time of drafting
environmental impact statement for pro-
posed oil refinery
7. Health and Environment c 25JO(S)
Where environmental impact state-
ment for proposed oil refinery contained
comparative analysis of effects of proposed
1O4 2
-------
- -. - -
- . -
- .. • . • ,. . .‘ .• — - . : - .
t . \ .--:“ ‘ -- : -:: •- - ‘ : :-‘ ;. — -
— - ‘ t ’: ’ — -. -.-
• - . .. • •--- •.
, .-•.... • - ., • - -
project on air quality, water quality.
present land and sea uses, terrestrial and
aquatic flora and fauna, and aesthetics at
various sites, one area was eliminated be-
cause Its shallow channel was unable to
accommodate very large crude carriers,
second area was eliminated due to lack of
suitable land, and third area was eliminated
because heavy tourism as well as lobster,
clam and fishing industry in area made that
site undesirable, Envjronmental Protection
Agency’s consideration of sites was not in-
adequate nor was its conclusion to reject
alternative sites arbitrary and capricious.
8. Fish 12
Game 3½
Although 1979 Amendments to Endan-
‘gered Species Act softened ob.ligation of
agency from requiring agency to insure spe-
cies would not be jeopardized to requiring
agency to insure that jeopardy as not
likely, agencies still are under substantial
mandate to use all methods and procedures
which are necessary to prevent loss of any.
endangered species, regardless of cost En-
dangered Species Act of 1973, § 7(aX2), (g,
h) as amended 1 U S C.A. § 1536(aX2), (g,
h).
9. Fish 12
Game 3’h
Agency’s duty under Endangered Spe-
cies Act to consult with Secretary of Corn-
mthce or Interior, depending on particular
endangered species, does not divest agency
of discretion to make final decision that it
has taken all necessary action to insure that
actions will not jeopardize continued exist-
ence of endangered species. Endangered
Species Act of 1973, § 2 et seq. as amended
16 U.S.C.A. § 1531 et seq.
10. Fish 12
Game :: 3!,4
Initial determination of whether spe-
cies is endangered is within Secretar) of
Interior’s exclusive authority, and adminis-
trative law judge reviewing agency action
under Endangered Species Act has no au-
thority to review that finding. Endangered
Species Act of 1973, § 4(cXl) as amended
161’.SCA. § 1533(cXl)
11. Fish 12
U. S. E. P. .4. 1043
Game c 3’h
In light of En ironmental Protection
Agency’s duty to insure that con truc ’on of
oil refinery as unlikely to jeopardize en-
dangered whales or eagles, administrative
law judge’s failure to require, at minimum,
that real time simulation studies be done to
assure lo risk of oil spill prior to granting
refinery permit violated duty to use best
scientific data a ailable where Agency.
state of Maine, aud Coast Guard all iewed
real time simulation studies as necessary to
finding of determination of safety. Endan-
gered Species Act of 197?, § 7(a)(2) as
amended 16.L.SC.A § 1536(a)(2)
12. Health and En ironment 25.5(9)
Proper forum to re ie appropriate-
ness of state’s certification is state court,
and fedeI’al courts and agenc’ies are t ithout
authority to review validity of requirements
i t T posed under state lat or in state’s certifi-
catios, therefore, Ehvironmental Protection
Agency lacked authority to revie condi-
tions imposed by state of Maine on con-
struction of oil refinery Federal Water
Pollution Control Act Amendments of 1972,
§ . 301(b)(1XC) 401(a, d). .510, 511(cfl2) as
amend d 33 U.SCA. § 1311(bXlXC),
1341(a, d), 1370, 1371(c)(2)
13. Health and Environment 25.5(9)
Where state at no time waived its right
to certify proposed charge from oil refinery,
administrative Law judge lacked authority
to exclude previously imposed state condi-
tions from federal permit, but rather, those
coaditions were required to be included in
national pollutant discharge elimination
sy tem permit for oil refinery
Bruce J. Terris, Washington, D. C., and
Alan Wilson, Boston, Mass, with horn
Karen H Edgecombe. Washington, 0 C..
Kenneth 1. Hoffman, Douglas 1. Fo . and
Kathleen C. Farrell, Boston, Mass., ere on
brief, for petitionei’s.
Gregory W. Sample. Asst. Att) Gen,
with whom James E Tierne . Au Gen.,
and Ka R.H E ans, Asst Att Gen.. Au-
ROOSEVELT CAMPOBELLO INTERN. PARK v.
Cite as 684 F.2d 1041 (i982)
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684 FEDERAL REPORTER, 2d SERIES
gusta, Me., were on brief, for the State of
Maine, amicus cunae
Jonathan B Hill, with whom John P
Schnitker, Dow, Lohnes & Albertson, Wash-
ngton, D. C., Bruce W Chandler, and Mar-
den, Dubord, Bernier & Chandler, Water-
ville, Me., were on brief, for the Pittston
Co, intervenor.
Rosanne Mayer. Atty., Dept. of Justice,
with whom Carol E. Dinkins, Asst. Atty.
Gen, Land and Natural Resources Div.,
Donald W. Stever, Jr., Atty., Dept of Jus-
tice, Washington, D. C., and Susan Studlien,
Atty., E. P. A., Boston, Mass., were on brief,
for U. S. E. P. A., respondent.
Wayne S. Henderson, Boston, Mass., for
New England Lagal Foundation, et al, in-
tervenor.
Before COFFIN, Chief Judge, BOWNES
and BREYER, Circuit Ji dges.
COFFIN, Chief Judge.
In these three consolidated appeals peti-
tioners challenge the final decision of the
EPA Administrator to issue a National Pol-
lutant Discharge Elimination System
(NPDES) permit to the Pittston Company
pursuant to § 402 of the Clean Water Act,
‘33 .U.S C. § 1342. The permit authorizes
the Pittston Co. to construct and operate a
250,000 barrel per day oil refiners and asso-
ciated deep water Cerminal at Eastport.
Maine. in accordance vith specified effluent
Umitations, monitoring requirements, nd
other conditions. Petitioners contend that
EPA ’s actions ‘iolated the National En i-
ronmental Policy Act (NEPA). 42 U S C
§ 4321 et seq., the Endangered Species Act,
16 U S.C. § 1531 et seq., and the Clean
Water Act, 33 U.S.C. § 1251 et seq
Pittston proposes to Construct an oil re-
finery and marine terminal in Eastport,
Maine. a relatively pristine area of great
natural beauty near the Canadian border
The area is known for being the foggiest on
the East Coast, experiencing some 750—1000
hours of fog a year, daily tides approxi-
I. The Canadian &o ernment has consistently.
since i973. opposed the transit of large quanti.
ties of oil through Head Harbor Passage The
mate twenty feet. The plan contemplates
that crude oil shipments will arrive several
times a week in supertankers, or Very
Large Crude Carners (VLCCs), as long as
four football fields, or slightly less than a
quarter of a mile. The tankers will tra el
through Canadian waters around the
northern tip of Campobello Island, where
the Roosevelt Campobello International
Park is located, see 16 U.S.C. § 1101 et seq.,
down Head Harbor Passage to a refinery
near Eastport here they will be turned
and berthed. Numerous barges and small
tankers will carry the refined product from
Eastport to destination markets in the
Northeast.
The protracted procedural history of this
case begins in April 1973, when Pittston
applied to the Maine Board of Environmen-
tal Protection (BEP) for permission to lo-
cate the refiners in Eastport. After public
hearings, the BEP approved the proposal
under the Maine Site Location of Develop-
ment Law, 38 M R.S.A. § 481 et seq., sub-
ject to a number of pre-construction and
pre-operation conditions designed primarily
to reduce the risk of oil spills. Pittston
subsequently filed an application with EPA
to obtain an NPDES permit, and submitted
an Environmental Assessment Report to aid
EPA in its duty to prepare an Ennronmen-
tal Impact Statement (EIS) pursuant to
NEPA See 33 U SC. § 13 7 1(cXl), 42
U.S.C. § 4332(2)(C). EPA promulgated a
draft EIS recommending issuance of the
permit as conditioned by the Maine BEP,
held a joint public hearing with the Army
Corps of Engineers in Eastport, and re-
ceived approximately 600 responses during
a public comment period. In September
1977, the Maine Department of Environ-
mental Protection certified, under
§ 401(aXl) of the Clean Water Act. 33
U.S.C § 1341(aXl), that the proposed dis-
charge would satisfy the appropriate re-
quirements of state and federal la In
June 1978, the final EIS was issued, again
recommending that the permit be issued
pursuant to Lhe BEP conditions
resolution of this issue is obvio iiibevond the
realm of this court
1044
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_ - i i ‘- : :‘ ‘ I-
- , ;,;4 — ..
I r _ _, -
. “!‘ ..A -
-..
Several months later, the National Ma-
rine Fisheries Service (NMFS) of the De-
partment of Commerce and the Fish and
Wildlife Serb ice (FWS) of the Department
of Interior initiated consultations with EPA
concerning the proposed refinery’s impact
on endangered species—the right and
humpback whales, and the northern bald
eagle, respectively—under § 7 of the En-
dangered Species Act (ESA), 16 C S C.
§ 1536. In November, the NMFS issued a
threshold determination that there were in-
sufficient data to conclude that the project
was not likely to jeopardize the continued
existence of the endangered whales In
December, the FWS concluded that the
project was likely to jeopardize the bald
eagle. In light of these opinions and of the’
value of the natural resources in the East-
port area as noted in the EIS, EPA’s.Regrnn
I issued a notice of determination to deny
Pittston’s application for an NPDES pe )mit
in January 1979. Pittston thereafter
sought an adjudicatory hearing and admin-
istrative review of this decision. 2
Prior to the hearing, extensive consulta-.
tion between EPA, NMFS, FWS, and Pitt-
ston took place to consider mitigation meas-
ures proposed by Pittston. In May, NMFS
concluded on the basis of the best scientific
data available that EPA was unable to com-
ply with the statutory mandate that it “in-
sure that [ the project] is not likely to jeop-
ardize the continued existence or’ endan-
gered whales. 16 U.S.C. § 1536(aX2). In
June FWS reaffirmed its previous determi-
nation that the refinery was likely to jeop-
ardize the bald eagle. EPA Region I
amended its decision to include these new
findings.
The adjudicatory hearing took place over
five weeks in January and February of
1980. More than fifty witnesses testified
and were cross-examined; several hundred
exhibits were introduced. In January 1981,
the ALl rendered EPA’s Initial Decision,
overturning EPA Region I and ordering
that the NPDES permit issue. He conclud-
2. P uston also sought an exemption Irom the
requirements of the ESA pursuant to t6 U S C
§ 1536(g)(l). but this application was ruled not
npe for review until ginal action by EPA deny-
1045
ed that the ELS was adequate to comply
with NEPA, and that no supplemental EIS
was necessary, that the risk of oil spills
was “minute” and that the refiners wits
therefore not likely to jeopardize any en-
dangered species, and that the conditions
imposed by the Maine BEP, and assumed b
the ELS, were not required to be conditions
of the federal permit. Petitioners subse-
quently sought review before the EPA Ad-
ministrator, and also mo ed to reopen the
record to admit a recent study showing an
increased number of endangered whales in
•the Eastport region Both motions were
de’nied. and in September 1981 EPA Region
I issued the NPDES permit to ;he r;tt on
Company. Petitioners now seek re iew in
this court pursuant to § 509(bX1XF) of the
Clean Water Act, 33 1S C § 1369(bXLXF)
I. The National Environmenta!
Policy Act
A. The Standard of Rê jew
It is now well settled that there are two
aspects to a court’s review of agency action
subject to the requirement,s of NEPA
“First, the court makes a substanti e
re iew of the agency s action to. deter-
mine if such action is arbitrary and capri-.
- cious under the Administrative Procedure
Act., 5 U.S C. § 706. This substanti e
review, although conducted on the basis
of the entire administrative record, is
quite narrow in scope The court should
only assure itself that the agency has
given good faith consideration to the en-
vironment .al consequences of its actions
and should not pass judgment on the
balance struck by the agency among com-
peting concerns.
Second, a reviewing court must assess
the agency’s compliance with the duties
NEPA places upon it. These duties are
‘essentially procedural’. The primary
procedural mechanism embodied in
NEPA is the requirement that an agency
prepare ‘a detailed statement’ discussing,
ing a permit Pittston Co v Endangered Spe.
cies Comm. 14 En t Rep Ca5 (BNA) 1257
(D DC 1980)
ROOSEVELT CAMPOBELLO INTERN. PARK v. U. S. E. P. A.
Citeas6S4F.2di041 (1982)
-------
1046
684 FEDERAL REPORTER, Zd SERIES
inter alia. ‘alternati es to the proposed
action’, 42 U S.C. § 4332(2)(C) Requir-
ing an agency to discuss alternatites
within the EIS serves numerous goals.
The detailed statement aids a re Ie Ing
court to ascertain hether the agenc has
gwen the good faith consideration to en-
ironmental concerns discussed abo e,
provides en ironmental information to
the public and to interested departments
of government, and prevents stubborn
problems or significant criticism from be-
ing shielded from internal and external
scrutiny.” Grazing Fields Farm v
Goldschm,dt, 626 F 2d 1068, 1072 (1st Cir.
1980) (citations & footnote omitted). See
also Silva v. L,i nn, 482 F 2d 1282, 1283—84
(1st Cir 1973)
B. The Need for the Project
In order to weigh the benefits of the
project against the potential environmental
costs, the EIS contained an analysis of the
justification for the project and the antici-
.pated economic benefits The project was
deemed consistent with a Iongsti nding fed-
eral policy of encouraging the construction
of domestic refining capacity in order to
promote national security. Ne England,
heavily dependent on imported oil, had no
regional refining capacity. The project was
designed to accommodate VLCCs. thus tak-
ing athantage of the cost sa ings offered
by economies of scale Constructing a re-
finery in the United States rather than
abroad had the additional advantage of re-
taming jobs and investments in this coun-
try. Finally, the project was particularly
attractive because it was designed to handle
high sulfur crude oil and refine it into low
sulfur fuels, thus facilitating compliance
ith new environmental standards Such a
refinery was “of an entirely different de-
sign” than most e’dsting domestic refiner-
ies, which were built to handle domestic and
steadily depleting sources of low sulfur
crude.
[ 1] Petitioners argue that the EIS was
faulty because it failed to consider the pos-
sibility of conservalion and the use of alter-
native fuels instead of the construction of
additional oil refining capacity. We note
first that petitioners failed to raise this
concern in a meaningful wa during the
comment period In any case, it is clear
that at the time the EIS as drafted, there
as a forecasted need for the t pe of refin-
ery planned b3 Pittston, and that it was
federal policy to encourage the construction
of such refineries. Nor are we persuaded
by petitioners’ argument that the discussion
in the EIS of the need for the project is
“totally outdated and of no present use.”
Even accepting their contention—based, we
might add, primarily on statements of ener-
gy policy under President Carter, which
might themselves be considered outdated—
that there is no longer a strong need for
additional refining capacity, it remains un-
contested that there is still a demand for
domestic refineries capable of processing
high sulfur crude into low sulfu! products
Given this continuing national and regional
need, we see no need to supplement the EIS
in order to accommodate the most recent
data and federal policy shifts. Cf. New
England Coalition on Nuclear Pollution v.
NRc, 582 F.2d 87, 96—98 (1st Cir. 1978).
C. Adequacy of Consideration of Alierna-
ti es
Petitioners contend that the EIS failed to
discuss adequatel) a number of alternatives
to the proposed refinery at Eastport First,
they argue that EPA erred by conducting a
less searching analysis of alternatites to
this privately sponsored project than it
would have had the project been publicly
funded Second, they urge that EPA un-
reasoi ably limited its consideration of alter-
native sites to three lo ations in Maine.
Finally, they allege that EPA’s comparison
of the .arious sites ‘has inadequate
[ 2] EPA’s etaluation of alLernati es
bias e’cpl icitll based on the premise that its
role in re ie ing pri atel spon ored
projects “is to determ 1 ne hether the pro-
posed site is ent ironmentally acceptable”,
and not, as in the case of a publicl funded
project, “to undertake to locate ‘that EPA
ould consider to be the optimum site for a
new facility” Therefore, EPA considered
-------
ROOSEVELT CA3IPOBELLO INTERN. PARK v. U. S. E. P. A.
Cuteas6S4F2d 1041 i982)
its purpose in this case to be to search for
alternati’.es “that would be suhstanttall
preferable from an en ironniental stand-
point.” EPA concluded that “ [ t]his differ-
ent purpose affects the extent of the infor-
mation on alternati’.es necessary to make a
decision.”
[ 3] We are unable to fault EPA’s rea-
soning Petitioners concede that the sub-
stantive standard—”substantiall prefera-’
ble”—was correctly stated. Cf Xe Eng-
land C’oalitzon on Nuclear Pollution i NRc.
582 F.2d at 95—96 (“obvious superioritC)
No purpose would be served by requiring
EPA to studs exhaustively all en ironmen-
tal impacts at each alternati e site con-
sidered once it has reasonabl concluded
that none of the alternatives ill be sub-
stantially preferable to the proposed site
Moreo er, the guideline adopted b EPA to
limit its study of alterpatives appears. in
this case, to be consistent wiTh the “rule of
reason” by which a court measures federal
agency compliance with NEPA’s procedural
requirements. See, eg, Grazing Fields
Farm, 626 F.2d at 1074, Massachusetts r
Andrus, 594 F.2d 872, 884 (1st Cir. 1979).
EPA’s choice of alternative sites wa fo-
cused by the primary objectives of theper-
mit applicant, the Pittston Co. Pittston
stated’ that its basic consideration was to
find a. port with deep water near shore in
order to accommodate VLCCs Onl) b)
using such supertankers could Pittston take
advantage of economies of scale, thereby
making the project economically feasible
Therefore, after Pittston had reviewed and
rejected a number of sites lacking such deep
water, EPA limited its consideration to the
only ports providing deep water access.
Three alternative areas in Maine were con-
sidered: Portland, Machias, and Pe-
nobscot/Blue Hill. 3
(4, 51 ‘EPA’s duty under NEPA is to
study all alternatives that “appear reasona-
ble and appropriate for study at the tinle”
of drafting the EIS, as well as “significant
3. The EIS also considered Iwo alternaci.e mod-
ifications of the project at Easiport tile use of
an offshore monobuoy. and the use of smaller
tankers Both alternatives were rejected as
1047
alternati%es” sugge ted b other agencies
or the public during the comment peril
In order to preser%e an ulternati e . i5 Ue
for re ie ’, it us not enough simply to
a faciall) plausible suggestion. rather. an
inter enor must offer tang,ble e idepee
that an alternative site might offer ‘a sub-
stantial measure of superiorit ” as a site
See Seacoast .4nli-Po!luz,on League i
NRC, 598. F.2d 1221, 1228—33 (1st Cir. 1979).
[ 6] In light of this standard, petitioners’
argument that EPA erred b restricting its
consideration to alternati e sites in Maine
niust fail, becaus they (lid not.suggest an
reasonable alternatutes to EPA during the
comment period One alternative—a mono-
buoy off the rnid .-Atlantic coast—was raised
for the first time at the adjudicator hear-
ing, too late for inclusion in the EIS. Al-
though petitioners no contend that EPA
should reasonabl have been a’ are of such
an alternaLi e earlier, their citation to a
1976 study by the Office of Technology falls
far short of persuading us; nor ha e they
explained their failure to bring the report
to EPA’s attention in a timely manner
Another possibility, an offshore monobuoy
in New England, as rejected b EPA in
spite of its potential en ironmej tal benefits
because of fierce public opposition to simi-
lar proposals off the coast of Massachusetts
and New Hampshire. Ve cannot say that
EPA acted unreasonably in concluding that
such an option i as not feasible In short.
we are not convinced that EPA failed to
consider all alternatites thich were feasible
and reasonably apparent at the time of
drafting the EIS.
[ 7] Petitioners next urge that EPA’s
consideration of these alternative sites was
inadequate. The EIS conta ned ,compara-
tive analysis of the effects of the proposed
project on air quality, water quali y.
preseni land and sea uses, terrestrial and
aquatic flora and fauna, and aesthetics at
the various sites. The Portland area was
being not substantially preferable to the cur-
rent proposal, and petitioners do nOt challenge
the adequacy of these comparisons
. - ‘. ..,. ‘ .- ,,. - I
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- r-’ , ‘ . ‘ .; - - ..‘ -. - . . . ‘ . -.
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1048
eliminated by Pittst because its shallow
channel is unable to accommodate VLCCs
and suitable land for a refinery site and
marine terminal was not a ailable EPA
considered an offshore monomooring sys-
tern near Portland, but rejected it due to
the ulnerability ol the proposed location to
the elements and the chronic spills associat-
ed with monomooring which would inter-
fere with the nearby fishing and recreation
industries. 4 The Machias site was con-
sidered substantially similar to Eastport
from an environmental perspective, but was
eliminated by Pittston because suitable land
was unavailable. EPA also noted that the
harbor at Macbias was more exposed to
wind and weather than that at Eastport,
thus making a tanker approach more haz-
ar ous. Heavy tourism at Penobscot/Blue
Hill made a refinery undesirable; the area
is also a center for Maine’s lobster, clam
and fishing industry. Finally, the tanker
approach at the area is quite long with
numerous islands, iticreasing the risk of
mishap close to shore and inhabited areas.
Consequently, EPA concluded that none of
the alternative sites would provide a signifi-
cantl greater degree of environmental pro-
tection than the Eastport site. Having
carefully reviewed the record, we cannot
say that EPA’s consideration of these sites
was inadequate, or that its conclusion to
reject them was arbitrary and capricious.
%re defer our consideration of additional
NEPA issues raised by petitioners—the
adequacy of the risk spill analysis in the
EIS, and the need for a supplemental EIS—
until after our discussion of the risk of oil
spills in the context of the Endangered
Species ‘Act.
11. The Endangered Species Act
A. The Procedural llistor,
As notéd.earlier, EPA Region I originally
issued a notice of determination not to issue
the permit based on the opinion of the
4. Petitioners rely on two pianning studies done
for the Slate of Maine to argue that Portland is
preferable to Easiport as an oil port This
information was considered in the EIS. hich
recognized that an advantage of Portland was
that it is alreacfy a busy marine ternunal.
where s Easiport is relatively pristine But
684 FEDERAL REPORTER, 2d SERIES
NMFS and the FWS that EPA could not
insure that the project was not likel to
jeopardize the right and humpback whales.
and the bald eagle, rcspecti%ely The AU,
in his Initial Decision, rejected these biolog-
ical opinions and held that the project was
not likely to jeopardize the continued exist-
ence of these species. While administrative
review was being sought, the National
Oceanic and Atmospheric Administration
(NOAA) moved to reopen the record, prof.
fenng a 1980 study indicating the presence
in the Eastport region during the summer
of a significant portion of the north Atlan-
tic right whale population. The acting Ad-
ministrator of EPA, assuming arguendo the
validity of the study, concluded that the
new information was not significant be-
cause of the AU’s supportable finding that
any risk of a major oil spill was minute. At
the same time, he summarily affirmed the
initial decision, and EPA Region I subse-
quently issued the NPDES Permit to Pitt-
ston.
B. Legal Standards
The obligation imposed on EPA by sec-
tion 7(aX2) of the ESA, 16 C S.C.
§ 153 aX2) is to “insure that any action
authorized, funded, or carried out is not
likely to jeopardize the continued existence
of an endangered species” An action
would “jeopardize” the species if it. “reason-
ably would be expected to reduce the repro-
duction, numbers, or distribution of a listed
species to such an extent as to appreciably
reduce the likelihood of the survival and
reco erv of that species in the wild” 50
CFR. 40402(1980)
[ 8] Although the 1979 Amendn ents to
ESA softened the obligation on an agency
fr om requiring the agency to “insure’ the
species would not be jeopardized to requir-
ing the agency to “insure” that jeopardy is
EPA could reasonabiy 1 rei in part on the facts
that Maine had appro ed the Easiport site for
the project, and had not suggested any aiterna.
tive sites during the comment period, to con•
dude that the state did not consider any alter.
native site to be substanuaiiy preferable
-------
not “likeh”, Pub.L No 96—159. § 4(1)(C), 93
Stat. 1225, 1226 (1979), the legisIati e intent
was that the Act “continues to gi e the
benefit of the doubt to the species.”
H Conf Rep.No 96—697, 96th Cong, 1st Sess.
12, reprinted in [ 1979) U.s Code Cong. &
Ad News, 2557, 2572, 2576 Agencies con-
tinue to be under a substantive mandate to
use “all methods and procedures hich are
necessary”, TVA v, Hill, 437 U.S. 153, 185,
98 S.Ct. 2279, 2297, 57 L.Ed.2d 117 (1978)
(quoting 16 U.S.C. § 15 1(c), 1532(2), em-
phasis added by the court), “to prey em the
loss of any endangered species, regardless
of the cost” Id. at 188 n 34, 98 S Ct at
2299 n.34 (emphasis in original) The Act
does, howe er, create a special “exemption”
procedure (not at issue here, see note 2,
supra) designed to allow necessary actions
even if they threaten the loss of an endan-
gered species. See 16 U S C. § 1536(g),
(h).
[ 9] An agency’s duty to consult ith the
Secretary of Commerce or Interior, depend-
ing on. the particular endangered species,
does not divest it of discretion to make a
final decision that “it has taken all neces-
sary action to insure that its actions will not
jeopardize the continued existence of an
endangered species” . National Wildlife
Federation v. Coleman, 529 F.Zd 359, 371
(5th Cir. 1916). The consultation process,
however, is not merely a procedural re-
quirement. Not only is a biological opinion
required of the Secretary of Commerce or
Interior, “detailing how the agency action
affects the species or its critical habitat”, 16
U.S.C. § 1536(b), but the 1979 Amendments
to ESA require that in fulfilling its consul-
tation duty and in insuring the absence of
likelihood of jeopardy “each agency shall
use the best scientific and commercial data
available.” 16 U.S.C. § 1536(aX2). More-
over, the legislative history emphasizes that
“ [ c]ourts have given substantial weight to
these biological opinions as evidence of an
agency’s compliance” with the Act, that
“ [ t]he Amendment’ would not alter this
state of the law or lessen In any way an
agency’s obligation” under § 7, and that a
federal agency which “proceeds with [ an)
action in the face of inadequate kno ledge
1049
or information does so with the risk
that it has not satisfied the standard of’S
§ 7(aX2). H Conf Rep. at 12. reprinted in
[ 1979] U S Code Cong & Ad Ne %s at 2576
See also HR Rep No 95—1625, 9.5th Cong.
2d Sess 12, reprinted in [ 1978] L’ S Code
Cong & Ad Ne s 9453, 9462
In resie ing an agency’s decision after
consultation our task is ‘to ascertain
ihether ‘the decision was based on a con-
sideration of the rele ant factors and
whether there has been a clear error of
,judgment.’’ .Vational Wddlife Federation
i. C’o!eman, 529 F 2d at 372 (quoting Citi-
zens to Preser e Oi erton Park, Inc
l’olpe. 401 U S 402. 416, 91 S Ct 814, 823—
824, L.Ed 2d 136 (1971)) We must also
inquire into hether the AU “followed the
necessary procedural requirements” Over-
ton Park, 401 U.S at 417. 91 S Ct. at S24
C. The .4dministratit e Lai; Judge’s Initial
Decision
1. The Bald Eagle
The FWS biological opinion concerning
the risk of jeopardy to the bald eagle began
with its identification of Cobscook Bay (ad
jacent tG the proposed Eastport refinery) as
the most productive of three areas essential
to conser ation of the species in Maine and
the northeastern United States. The spe-
cific threats included air pollution contain-
ing mercury emissions and increased acidifi-
cation of lakes dangerousl) adding to the
already high concentrations of heavy metals
in eagle eggs and the food chain; the intru-
sion of economic development and human
population; and a number’ of problems
caused by oil spills, including the mortality
of embryos and young eagles, reduction in
the fish and bird food supply of eagles.
fouling of wings, and ingestion problems.
The ALT found that the FWS claim as to
mercury emissions rested on an assumed
daily emission of 200 grams. After a re-
view of the evidence, he determined that,
on a “worst case” basis, there might be a
daily emission of 17.6 grams He concluded
that this amount, as ell as negligible
amounts of lead and anadium, would not
; _
•.,• •
— ‘— ft.’ , —
ROOSEVELT CAMPOBELLO INTERN. PARK . U. S. E. P. A.
Cite as684 F.2d iO4i (1982)
-------
684 FEDERAL REPORTER. 2d SERIES
affect t} e eagle’s food chain. The AU also
found that refinery emissions would have
no important impact on the acidity of lakes,
one year’s exposure to such emissions being
equivalent to that in six hours of rainfall
The threats based on human activity were
found to be inconsequential in view of the
diffic ilty of access to nesting areas, the
demonstrated tolerance of human presence
by eagles, the recreation-inhibiting incle-
ment spring weather during the time of
greatest eagle sensitivity, and proposed mit-
igation measures.
[ 10] We cannot say that these findings
were not adequately supported, that the
relevant factors were not considered, or
that the AU made a clear error of judg-
ment. 5 But there was one additional find-
ing: that although a significant oil spill
would hav e an adverse impact on eagles
and their reproductt n, the risk of such a
spill was “very small or minute”, so that the
species was not jeopardized. The validity
of this finding will be considered below
2. Right and Humpback Whales
The NMFS biological opinion singled out
right and humpback whales as being sub-
ject to -adverse impact, their population be-
ing limited and their migratory pattern
placing them in the Eastport rea during
spring and summer. The antlcipated’harm
from oil spills included illn ss from in-
5. There is controversy as to whether the AU’s
determination that the bald eagle.population to
be considered included not only the northeast.
em UnIted States populatioa—as. referred to by
FWS in its biological opinion but also that of
New Brunswick, Nova Scotia, and Cape Breton
Island, played any part in his decision Al-
though at one point he stated that the question
of the population segment to be considered was
“controlling”, his ultimate conclusion of ab-
sence of risk of a ignthcant oii spill would
seem to render the definition determination su-
perfluous.
- In the event definition becomes relevant in
any further proceedings. weobserve that EPA
has not attempted to defend the AU’s defini-
tion on the merits It seems clear to us that
under 16 U S C § 1533(c)(i) the Secretary of
the Interior is given the exclusive duty and
power to publish a list specifying “with respect
to each species over what portion of its
range It is endangered” Certainly the initial
gestion. skin irritation, fouling’ of baleen
plates, and contamination of food
The AU accepted an estimate of a total
north Atlantic right whale population of
bet een 70 and 100. and a humpback shaTe
population of 2000 or more. He concluded,
based on the combination of the brief peri-
ods when the whales were in Eastport
waters and, given the navigational safe-
guards and restrictions to be imposed on
Pittston by both the State of Maine and the
Coast Guard, the low probability of a mas-
sive oil spill, that there was no reasonable
likelihood that the continued existence of
the two whale populations would be jeopar-
dized.
The low risk of spills tas also central to
EPA’s determination not to reopen the rec-
ord to receive a 1980 New England Aquari-
um study estimating that a minimum of 48
right whales, or approximately one half the
total population, had been in or near the
proposed tanker approaches to Eastport in
that year. Repeating the analysis relied
upon by the AU, the EPA acting Adminis-
trator concluded that the new study was
not sufficiently probative to open the rec-
ord In his words, the “ [ a]bsence of risk.
rather than the absence of whales” under-
lay the AU’s decision, and his o s n decision
to affirm the granting of the permit.
We now proceed to outline the AU’s
reasoning leading to his finding, crucial to
determination of hether the species is endan
gered is within the Secretary’s exclusive au•
thority, TVA t’ Hall, 437 US at 17l-.72. 98
S Ct at 2290—2291, and the AU has no authon’
ty to review this finding We see no reason
why the Secretary should not have similar au•
thority to ascertain the appropnate range in
which the species is endangered or why the
AU should not lack authority to alter this
determination In any case, the legislati%e his
tory appears to authonze the Secretar io
deem a species endangered in the Lnited
States, or a portion thereof, even if it is abun-
dant elsewhere See H.R Rep No 93 -412. 93rd
Cong. 1st Sess 10 (1973), S Rep ‘.o 96. i5i
96th Cong, 1st Seas (1979) Even if testimo-
ny that Canadian eagles migrated to the Lruted
States or interbred with eagles nesting in the
United States could make consideration of the
Canadian eagle population relevant, the AU
refused to base his conclusion of no jeopad
on any such factual basis
1050
-I- .-— •
- .- . ., ,-,. ‘ - , ‘ “ —;
,.
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ROOSEVELT CAMPOBELLO INTERN. PARK . U. S. E. P. A.
Citeas6SlF2d 1041 (1982)
both ESA issues, of the unlikelihood of a
significant oil spill.
3 The Finding as to Risk of O’l Spill
The AU’s conclusion that the risk of a
major oil spill v .as minute ‘as ha ed pri-
marily on three items of evidence First,
the AU relied hea% ily on as urances from
the Coast Guard which, after re iewing the
testimony of Pittston’s witnesses before the
B P and other data, wrote EPA on March
28, 1977, that the chanziel in Head Harbor
Passage was “adequate for safe na’. igation
by 250,000 DWT tankers” if four conditi9ns
were met. These conditions v.ere
“(1) tbat the channel passage area
depths, configurations and current data
shown on nautical charts and sur e s be
confirmed by h)drographic sur’e., (2)
pon for a na 1gation system wherein
the existence and movement of all traffic
in the area could be monitored, communi-
cated with and scheduled, (3) pro ision
for means to control mo ement of tank-
ers in the event of steering and/or pro-
pulsion failure during transit and (4) de-
velopment and strict adherence to an op-
erating ‘procedure for tanker passage”
In response to a request by the Council on
Environmental Quality that the Coast
Guard assist’Pittston in carrying oat “real
time simulation” studies’ in order to as-
certain the precise conditions for safe na
gation prior to granting the permit. Rear
Admiral Fugaro of the Coast Guard re-
sponded in August 1977 that it could not
6 Real time simulation studies are tests run
with actual tanker pilots on a device capable of
simulating the responses of a ship to certain
conditions of wind, tide, fog. curyent. etc
What it adds to completely computerized tests
is the human reaction factor The Council on
Environmental Quality had included in Its com-
ments on the draft EIS the recommendations
that ‘EPA complete its analysis of real time
tanker simulation studies, and the twel’. e trial
tanker voyages through Head Harbor passage
(required by Maine’s Board of Environmental
Protection as one of the conditions for granting
a reflnery permit) before making its permit
decision.”
1051
divert scarce resource until “final ckur-
ance had been granted for construc .un of a
refiners [ so that] no possibilit e\I 5t’
that these efforts ma be t asted” After
explaining the Coast Guard’s •‘fun tion in
port de’.elopment”, 7 he concluded
“The Coast Guard feels it can he
premised that tank tessels can
na’.igate the channel approaches to East-
port under certain conditions—and the
Coast Guard fulI intends to determine
those conditions and see to their imple-
mentation, Although “e will continue to
‘ . ork closel with the Pittston Company,
the En ironmental Protection Agenc .
a d the State of Maine and other affect-
ed and concerned groups as required and
‘ . ithin atailable resources, ‘ . e fed that
further delay of the project for the pur-
pose of studying the issue of channel ade-
quacy appears unjustified at this time
fn that an major Federal action taken to
implement operational restrictions and
control procedures would neccssar,lt be
the subject of an additional EIS, I belies e
that both the spirit and letter of NEPA
are well served” (emphasis added)
Subsequently, on December 31, 199, the
Coast Guard clarified its position as to item
2 in its March 28, 1977, letter (pro’. ision for
a na ’ .igation system) b saying that not-
withstanding the capabilit) of an na’. ika-
tion s)stem, there would be some meteoro-
logical conditions, e g.. fog producing poor
visibility, which would preclude safe transit
‘It is the Coast Guard’s function in port de-
velopment to reviev. the adequacy of ‘ . acer-
ways for the safe na’. igation of shipping To
this end we consider all the factors in’.ol’. ed
to insure that only a minimum nsk is in-
vol’.’ed Coast Guard efforts are directed to-
wards minimizing these risks b the imposi-
tion of additional requirements where found
necessary for the safety of na ’ .igation With
the vagaries of the environment in ‘ . hich
essels are operated and the possibility of
personnel error, there is no way that a fail-
safe guarantee could be pro’. ided for an’ port
in the United States There is alwa s an
element of risk in an transportation system
Other modes of transportation where highly
sophisticated safeguards are in place still
haie an occasional accident”
¶- - ‘j 3 . ’ -:.
•), -
—
-
- - ‘ - ‘ “I
- .. t. -—
- ‘-‘ ,‘ .: - - -. - - - -. -.- ‘-.-- ,-.“. . - ‘-‘.
A ‘
— 5
• :,-.- —,r. ,r1.. •‘ -
‘: .- ‘ •.- • - - ‘-• -•. - - - - . —
a
‘1 *
. -e- -
— ,r -
‘. -
7, For the sake of completeness, we reproduce
the explanation.
-------
684 FEDERAL REPORTER. 2d SERIES
Second, the AU found confirmation of
the Coast Guard’s assurance in the comput-
er simulation studies of Dr Eda, who con-
cluded that a loaded 250,000 DWT tanker
could maintain a trajectory close to a de-
sired track in Head Harbor Passage without
tug assistance in a 60 knot wind. Although
these studies could not account for the hu-
man factor, i.e., could not test any difficulty
on the part of the human pilot in perceiving
the location, heading and rate of change of
heading of the ship, the AU understood
there was “an encouraging correlation” be-
tween computer simulation and actual sea
trial. The AU accepted Dr. Eda’s state-
ment that “for obtaining an o erall per-
spective of the suitability of a particular
channel for ship traffic of specific sizes
under particular conditions, off-line com-
puter studies are adequate.”
• Also cited with approval by the AL! was
a second study by Frederick R. Harris, Inc.
premised on provision for a more adequate
turning basin for the VLCCs than an earlier
study which had approved the project sub-
-. ject to severe restrictions and “a high order
of seamanship and prudence.” This study,
the AU found, deemed the proposed ap-
proach “satisfactory for the type and size of
vessels specified providing navigational
aides are installed, and providing recom-
mended operational procedures were fol-
lowed” These included tug assistance from
entr into channel, lighted buoys and radar
reflectors, an electronic guidance system in-
8, The AU also cited to the discussion in the
EIS of (he British port of Milford Haven, which
has experienced no major spills in nine years of
operation Pittston’s witnesses testified that
Eastport was less hazardous than Milford
Haven because of better channel configuration.
an improved navigation system, and planned
operating restrictions The AU defended the
use of this comparison in the LIS. noung that
the dense fog at Eastport and its rockier bot-
tom than Milford Haven would be compensated
for by the ‘specific operating procedures
[ v hich] will be established by the Coast Guard
after real time simulation and whaLe er other
studies are considered necessary
The extensive comparison of Eastport and
Milford Haven in the EIS for the purpose of
estimating oil spills during routine transfer
Operations’, as opposed to the nsk of a major
spill, has not been challenged by petitioners
‘ol ing land based radar ind electronic
range finders, confining berthing afl(l do-
berthing to slack tide, limiting Head Har-
bor transit to ila light or dearI moonlit
hours, proscril.iing entrance to the Passage
if ‘ isibilitv is less than a mile, and barring
tankers awaiting a berth from anchoring in
Eastport waters.
Finally, the AU made rather minute re-
view of testimony concerning pre ailing
currents and cross-currents, fog, wind, and
duration of oil spill effects, concluding in
general that currents were not excessive for
shipping, that the expected presence of fog
was not so great as to bar shipping during
most of the time, that winds were in gener-
al within tolerable limits, and that the ef-
fects of large known oil spills had not. been
long lasting over a period of ears 8
D Analysis of the Assessment ‘of Risks
[ 11] We have set forth in some detail
and full strength all of the strands of the
decision of the AU because we conclude
that, in light of EPA’s duty to insure that
the project is unlikely to jeopardize endan-
gered whales or eagles, the AU’s failure to
requIre, at a minimum, that “real time sim-
ulation” studies be done to assure the low
risk of an oil spill prior to granting the
permit violated his duty to “use the best
scientific data available.’ G en the
Supreme Court’s statement that the ES.A is
designed to prevent the loss of an endan-
9. We read the requirement that the agenc
here EPA. use such quality of data in the con
sul’tation process, as applying not onl ’ to such
matters as the presence. ulnera iluty. and crit-
icality of the endangered species, but also to
the likelihood of an occurrence that might jeop-
ardize it We see no basis for requiring a first
class effort on the former and not on the latter
Where a more limited use of such “best scien-
tific and commercial data” is intended, the statS
ute speaks clearly. eg. 16 USC § 1536(cI(l)
(“If the Secretary advises, based on the best
scientific and commercial data a ailable. that
such species may be present ‘ (emphasis
added)] Cf 16 USC § l536(h)(2)(B) ( n
exemption shall be permanent unless (i)
the Secretary finds, based on the best scientific
and commercial data a aalable. that such e’c
emption would result in the e ’ctlnction of a
species “]
V
1052
-------
gered species, “regardless of the cost”. T 4
v. Hill. 437 U S at 188 n.34, 98 S.Ct at 2299
n 34. we cannot see io i the permit can
issue when real time simulation studies,
hich EPA. the State of Maine. and the
Coast Guard all. ie as being necessar to
a final determination of safety, are to be
delayed until the Coast Guard has adequate
funds to u ’ idertake them.
We begin ‘with .be linchpin—the Coast
Guard o inion. From what we hate report-
ed above, we think it quite clear that the
Coast Guard was not purporting to do a
analysis It. was, in effect, signifying its
willingness to accept the problem of de is-
ing procedures to minimize na’ igation risks
for ‘.essels of certain characteristics transit-
ing via Head Harbor Passage to Eastport
That this is a cor’rect reading is confirmed
b the testimony .of Rear Admiral Fugaro,
who candidly stated of the Coast Guard
opinion that “(i]t’s not designed to provide a
risk analysis.” His letter to EPA, v. hich we
hate quoted, makes lear (hat he expected
any set of Coast Guard orders and proce-
dures to go through the EIS process ‘°
This was also the understanding of Wal-
lace Stickney, the EPA Region One Di-
rector responsible for drafting the EIS. who
viewed the Coast Guard evaluation not as
describing “what’ the actual risks were in-
trinsically”, but as purely a comparison to
other supert .anker ports. We see the Coast
Guard “assurances” as falling short of what
Coast Guard Admiral Barrow, relied on by
the AL.J when he rejected the use of world-
wide statistics relating to oil spills (see note
12, infra), prescribed: “ [ A]ny comprehen-
sivé and meaningful oil spill study for the
development of spill probability and expect-
ed spill size must be concerned with site
lO. His testimony at the adjudicatory heanng
proceeded as follows’
“Q And do you(r) records indjcate .whether
there is a plan to require that quantification
i hen %our role does become involved’
A The records do not indicate that, but that
ould be a responsibility of my division, and
there is absolutely no doubt in my mind that.
e would undertake a regulatory project if the
permit were to issue
In that case, we’d go through the full
processes including the environmental assess
1053
specific faetors such as tanker fleet compo-
sition. density. na igation systems. route
characteristics, operational conditions. regu-
lator regimes etc.”
\Ve cannot presume to hno hat issues
ma be posed as the result of real time
simulation studies, or, for that matter, real
sea trials by VLCCs under ballast. Risks of
collisipns or grounding ma be identified
whose assured pre ention ma entail c 2 sts
unacceptable to Pittston or measures in-
vol ing other en ironmental intrusions or,
simpb, unacceptable risks hieh may.per-
sist despite the most stringent and expen-
site procedures and equipment. That. those
further studies are con’ceded to be itaL is
demonstrated b the following testimony of
E1 drafter Sticknev:
So. basically, then \ ou decided tF at
that (results of real time simulation stu-
dies] asn’t information that was needed
to determine hether this refinery should
be built or not
A We felt the information was needed
and that if the. facility failed the real
time simulation studs it ould ne er be
built
S S S S S S
Q It ti ill be too late, tt ill it not, if that
studs, for ‘example, shott s some problems
that .ou haven’t anticipated in the final
EIS, it will be too late for EPA to say at
that point, no the weighing of risk ‘.er-
sus benefit is different than ‘ e originally
thought? Will it not be too late for that?
A. No, sit:.”
We see absolutely no justification for issu-
ing an NPDES permit before a closer and
feasible risk assessment is made.
ROOSEVELT CAMPOBELLO INTERN. PARK v. U. S. E. P. A.
Ciieas684F2d 104i (i982)
ment. the full regulatory processes, under the
Admlrristratl% e Procedures (sic] Act”
II. We can sympathize ith the always penun.
ous Coast Guard in not eagerly volunteering to
run costly tests, but e hate seen no reason
why Pittston has not financed both the hydro.
graphic survey and real time simuacjon studies
and perhaps the real tanker trial runs it will
need to comply with the Maine BEP permit
EP has reported in its responses to comments
on the EIS that Pittston has contracted with
the \ational Marine Research Facility of the
Department of Commerce for the studies This
-------
1054
684 FEDERAL REPORTER.. 2d SERIES
Additionally, t e note the Coast Guard’s
requirements of a h dn)graphIc sur%e to
make sure that the depth figures on the
navigation chart fairly represent the entire
length, width, and depth of the channel.
face of ptnnacle and outcrnpping . o that
VLCCs with draft beginning at 65 feet may
pass without danger of grounding during
the lowest of tides. Should the h dro-
graphic data reveal embarrassing obstruc-
tions, this fact and ways of dealing with it
must receive the most careful scrutiny
The other grounds relied on b 3 the AU
leading to his conclusion of small or minute
risk are even less persuasive than the Coast
Guard undertaking Dr. Eda’s computer
simulations were avowedhr aluable for ob-
taining “an overall perspectne of suita-
bility”; they could not approach e eji a
rdugh approximation of risk, nor could they
account’ for human error in confronting di-
terse weather conditions The second Har:
seems to us well within the concept of best
scientific data available’ Particularly
does this seem true when the whole structure
of reasoning about the haaard to t o endan-
gered species depends on the force of the con-
clusion that there is an almost complete ab-
sence of risk of a catastrophic oil spill
12. In addition to the evidence referred to
above, upon which the AU primanh relied, a
number of witnesses testified fa’.orabl ’. both at
the adjudicatory hearing and at the hearing
before the Maine BEP These witnesses includ-
ed a number of Captains. Coast Guard dmi-
rals, and weather obser ers
There was substantial negati .e evidence
which the AU refused to credit He rejected
efforts to consider world-wide Statistics as to
oil spills, an approach which has been used in
studying other ports, see, e g. Sierra Club i’
Sagier. 532 F Supp 1222 (S D Te’c 1982). con-
cluding that such statistics were unreliable or
meaningless and that a site-specific focus was
more appropriate A stud . b Engineenng
Computer Opteconomics. using such data, had
calculated a 48% probability of a major oil spill
(loss of 365.000 barrels or more) over an as-
sumed 25 year life of the refiner% He did not
accept a 1976 report of the Canadian Coast
Guard, highly negative as to the 1easibilit of
safe supertanker traffic in Head Harbor Pas-
sage. observing that three years earlier the Ca-
nadian government had opposed the project
He rejected an adverse rating of the Atlantic
Pilotage Authonty for “extreme inconsisten-
cy” Two VLCC captains. Huntle and Crook.
were discredited for the inaccurac of their
ris study merel pronounced a route “ac-
ceptable” if fairly rigorous conditiona t ore
complied ti ith. but none of these con(litlons
v.erc incorporated in the federal permit.
Finalk, the AU’s anal ses of current,
ttind. fog, and duration of spills gate only
general assurance that prudence, proce-
dures, and equipment can, most of the time
and absent human error, compensate for
difficult conditions of tide: current, fog,
wind and weather.
We stress that our disagreement with the
AU does not involve challenging his credi-
bility judgments, although v.e do not share
his iew that the “oterwhelming weight” of
evidence pointed to the feasibIlity of safe
transiliS Were the issue whether, by a
preponderance of the evidence, it had been
established that VLCCs could make the
transit through Head Harbor Passage to
Eastport with reasonable safety, the AU’s
observations and for being too conservative A
contrary witness. Captain Peacock, was credit-
ed in his testimony that piloting a VLCC
through the Passage as not “insurmounta-
ble”, but his later testimony that he would
want trial runs in ballasted tankers before con-
struction was deemed “inexplicable” A 1972
studs by Frederick R -iarris. Inc. a company
commissioned by Pittston, which had condi-
tioned its approval on severe restnctions and a
“high order of seamanship and prudence”, was
discounted as a limited budget studs based on
a premise, since abandoned, of a confined turn-
ing area
Additional negati e evidence or critical wit-
nesses included the statement of the Maine
board of Environmeinal Protection, in issuing
ts permit, that “the combination of currents,
tides, fog. e’ctremes of t eather and rocky
shores make Eastpori one of the’ wore difficult
ports of the world, VLCCs are e’ctremely
hazardous vessels which ought not to be oper-
ated in these difficult acers”. a scuds by the
Corps of Engineers, a studs b) Arthur 0 Little,
(“severely wanting”), an evaluation b Nation-
al Bulk Carriers (“more difficult than any other
location”), Captain Musse of Texaco (“not fea-
sible”), National Sal age Association (“hairy
navigation problem”) Captain Mills (“I can’t
think of anything to c mpare with this”), Cap-
tain Kennedy (“calI [ sJ for a degree of accurac%
heretofore unheard of)
FinalI . we note that the EIS itself concluded
that the proposed refiners “ultimately will e-
penence its share of severe spills, as ha e other
comparable refineries”
-------
decision might be accepted. But the issue
is a harder one: whether, after using the
best data available, it is establi hed that the
risk of significant oil spills from the pro-
posed tanker traffic is so small as to insure
that there is no likelihood of jeopardizing
the two endangered species. All witnesses
have agreed that real time simulation stu-
dies would contribute a more precise appre-
ciation of risks of collision and grounding.
We think the same could be said of a hydro-
graphic survey of the depth of the channel,
and perhaps of trial runs by VLCCs in
ballast. If so, such methodologies obviously
represent as-yet untapped sources of “best
sci ntific and commercial data”.
It may very well be that, after conduct-
ing real time simulation studies and any
other tests and studies which are suggested
by the best available science and technolo-
gy, the most informed judgment of risk of a
major oil spill will still hate a large compo-
nent of estimate, its quantitative element
being incapable of precise verification. But
at least the EPA will have done all that was
practicable prior to appro ing a project
with such potentially grave en ironmental
costs.
We also conclude, for many of the same
reasons, that the real time simulation stu-
dies and other new data must be the subject
of a supplemental EIS, both to assess the
magnitude of risk and, if acceptable, to
establish appropriate conditions of• naviga-
tion. The testimony quoted above demon-
strates that EPA and the Coast Guard have
acknowledged the need for such a supple-
mental EIS on this issue. See also Alaska
v. Andrus, 580 F.2d 465, 477—80 (D C Cir.),
other portiofl of holding vacated on other
grounds sub nom. Western Oil & Gas Ass’n
v. Alaska, 439 U.S. 922, 99 S.Ct. 303, 58
L.Ed.2d 315 (1918). The EIS itself recog-
nizes that “real time simulation studies
will help to settle the navigation [ safety]
issue.” Given the importance of the studies
to the crucial issue of the risk of oil spills,
NEPA provides an additional ground for
overturning the issuance of a permit until
the studies have been conducted, circulated,
1055
and discussed See .\RDC C ’alla iat. 24
F.2d 79, 92 (2d Cir 1975). S,lta i Ltiin.
482 F.2d at 1287—88
Ill The Clean Water Ac
Petitioners’ final argument is that the
AU erred b ruling that conditions im-
posed on the project b the Maine BEP
under state law are not incorpor.ited into
the federal NPDES permit They allege
that the certification issued by the State of
Maine pursuant to § 401(aXl) of the Clean
Water Act, 33 U SC § 1341(aXl). though
making no explicit mention of the condi-
tions previousl imposed h the Maine BEP,
incorporated these terms by implication
Therefore, these requirements must also be
“a condition on an Federal license or per-
mit.” § 401(d), 33 U.SC § 1341 di The
State of Maine. as amicus curiae, makes a
somewhat different argument It argues
that the prior certification is irrele ant, be-
cause the proposal as appro ed b the suite
had been substantially modified by -the
AU. But the state contends that it has
been denied its right to’ certify the new
proposed discharge, and iherefore the
NPDES permit is in alid. Respondents ar-
gue that the state has ‘ ai ed its right to
certify the proposed modified discharge be-
cause it failed to intervene in the hearing
before the AU or to certify the discharge
within 30 days of recei ing notice that the
prior proposal had been amended 40
C.F.R. § 125.32(e)(8)(’.) & (vi) (1978). They
also urge that the AU’s finding that the
prior state certification did not incorporate
the SEP conditions was not clearl errone-
ous, and must be upheld.
The ALT considered testimony and evi-
dence to determine whether the state certi-
fication implicitly incorporated the condi-
tions previously imposed b the Maine BEP
Contrary to respondents contention, he
found as a factual matter that “the condi-
tions of the Maine BEP Order are condi-
- tions precedent to the effectiveness of ‘ the
state’s certification He further ruled,
howe er, as a matter of la . that § 401(d)
‘ ., . .-‘ . - ,.
ROOSEVELT CAMPOBELLO INTERN. PARK v. 1’. S. E. P. A.
CileasG&lF2diO4i (1982)
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684 FEDERAL REPORTER. 2d SERIES
of the Act precludes the state from includ-
ing in its certification requirements of state
la hich do not relate to “ ater quality
standards, effluent limitations or schedules
of compliance’ See § 301(h)(IXC), 33
usc § 1311(bXIXC) Finally, he conclud-
ed that ‘conditions of the Maine BEP relat-
ing to test runs with tankers prior to deliv-
ering oil, limiting the size of tankers
requiring real time simulation studies, stat-
ing times and conditions of navigation of
Head Harbor Passage, and other matters
unrelated to water quality may not legally
be regarded as part of the State of Maine’s
Sec. 401 certification, irrespecti’ e of the
intention of the issuer of the certification.”
[ 12) Petitioners argue, with some force,
that the conditions listed above are related
to ater quality, since they are designed to
minimize the risk of an oil spill which ould
severely impair ater quality. We believe
that the AU made a more fundamental
error by seeking to determine which re-
quirernents of state law were appropriately
affixed to the state’s certification. Section
401(a) of the Clean Water Act empowers
the state to certify that a proposed dis-
charge will comply ‘ ith the Act and “ ith
any other appropriate requirement of State
law.” Any such requirement “shall become
a condition on any Federal license or per-
mit.” § 401(d) EPA has interpreted this
pros ision broadly to preclude federal agen-
cv review of state certification. “Limita-
tions contained in a State certification must
be included in a NPDES permit. EPA has
no authority to ignore State certification or
to determine whether limitations certified
by the State are more stringent than re-
quired to meet the requirements of State
(jew.” EPA, Decision of the General Coun-
sel No. 58 (March 29, 1977), see also Deci-
sion of the General Counsel No 44 (June 22,
1976). The NPDES regulations state that
“ [ r]eview and appeals of limitations and
conditions attributable to State certification
shall be made through the applicable proce-
dures of the State and may not be made”
through the procedures established in the
federal regulations 40 C F R § 124.55(e)
(1981). The court have consistentl agreed
with this interpretation, ruling that the
proper forum to’review the approprIateness
of a state’s certification is the st ate court,
and that federal courts and agencies are
ithout authorit to re ie’ the alidit of
requirements imposed under state Ia or in
a state’s certification. See L’nned S atcs
Steel corp v Train, 5.56 F 2d 822. 837—39 &
a 22 (7th Cir 1977). Lake Erie .41 1,ance i
U.S. Army Corps of Engineers. 526 F Supp.
1063, 1074 (W.D.Pa.1981); Mobil Oil Corp.
i. Kellev, 426 F Supp. 230, 234—35 (S D Ala.
1976).
Our conclusion that EPA lacked authority
to review the conditions imposed b the
State of Maine is also supported b the
statutory scheme of the Clean Water Act.
Section 511(c)(2) of the Act, 33 U.S.C.
§ 1371(cX2), makes clear that “ [ n]othing in
the National Environmental Polic Act
shall be deemed to authorize an Federal
agency to’review ny effluent limita-
tion or other requirement estàblished’pursu-
ant to this Act or the adequacy of any
t ertification under section 401 of this Act.”
(emphasis added). Section 510 of the Act,
33 U.S C. § 1370, specifically preserves the
right of a state to “adopt or enforce
any requirement respecting control or
abatement of pollution”, e en if it is more
stringent than ‘those adopted b 3 the federal
go ernment. Finally, it is clear that e en
in the absence of state certification, EPA
would be bound to include in the federal
permit “any more stringent limitations
established pursuant to an State la or
regulations (under authority preser ed b
section 510).” § 30 ’l(b)(l)(C). 33 L’ SC
§ 1311(bXIXC), see United States. SLed
C’oi-p., 556 F 2d at 837—39, Decision of the
General Counsel No. 44, at 5
[ 13]’ The regulations citet 1 b respon-
dents do not compel a different result The
1978 regulation cited by EPA— hich pro-
sided that failure to certify a proposed per-
mit, within thirt dq s after. the state is
notified that the permit has been modified,
“shall be deemed a aiver of such certifica-
tion righls”—was no longer’in force in 19S0
when t’he’ decision to modify the proposal
was made by the ALl The ne regulation.
1056
-------
p
40 C FR § 124 55(d) (1981), states that “ [ a]
condition in a draft permit ma be changed
during agency review in an manner con-
sistent with” state certification without re-
quiring recertification. This regulation
clearl does not authorize EPA to amend a
permit in a manner inconsistent v ith state
certification by deleting conditions imposed
by the State during the certification process
Although the new regulations also require
the state to cite to state law when imposing
more stringent conditions on a draft permit,
40 C.F R. § 124.53(e)(1) (1981), and to indi-
cate the extent to which the condition can
be rela’ced without violating state law. 40
C.F.R § 124 53(eX2) (1981), it iould be in-
equitable to hold that the state has waived
its rights here by failing to compl) with
these requirements’when no similar rdquire-
ments were in force in 1977 v hen state
certification took place. Since the state at
no time waited its rights to certif) the
propo d discharge, and the ALl lacked au-
thority to dxclude the previously imposed
state conditions from the federal permit,
these conditions must be included in any
NPDES permit for the Pittston project to
be issued in the future, unless the condi-
tions are modified according to law. See 40
C.F.R. § 124.55(b) ‘(1981).
IV. Conclusion
Accordingly, we vacate EPA’s decision to
issue the NPDES permit to Pittston, and
remand the case t EPA to conduct further
proceedings consistent with this opinion.
EPA’s jeopardy determination under the
Endangered Species Act must be reconsid-
ered in light of the results of real time
simulation studies of Head Harbor Passage,
and any other studies, such as a hydrographic
survey and the 1980 whale study by the
New England Aquarium, hich EPA deter-
13. In light of our holding, ills unnecessary to
address in detail petitioners’ argument that a
supplemental EIS is necessary to consider sig-
aificarit changes in the project and new infor-
mation With respect to Pittston’s decision to
dispose of the refinery’s sludge by bunal rattier
than ulcinera l4on, we direct petitioners to re
- quest EPA. rather than this court, to reqwre a
supplemental EIS once a specific proposal is
made See. e g., EDF v Marsh. 65j F 2d 983,
1057
mines to be necessar to meet its statutor
obligation to use the best scientific data
a aiIahle If, in light of the studies. EPA
decides to recommend appro al of the
project. thts propo al shall be the subject of
a supplemental EIS relating to the condi-
tions of na igation necessary to minimize
the risk of oil spills Finally. the conditions
imposed b the State of Maine in its certifi-
cation of the proposed discharge must be
included in an federal permit unless the
conditions are subsequentl modified ac-
cording to la 3
So ordered
UNITED STATES of America, Appellee,
Carmine ROMANO and Peter Roman,,
Defendants-Appellants.
Nos. 1175, 1185, Dockets
82—1052, 82—1054.
United States Court of Appea6,
Second Circuit.
Argued May 26, 1982.
Decided June 24, 1D82.
Certiorari Denied Nov 15, 1982
See 103 S_Ct. 375, 376.
Defendants ere convicted before the
United States District Court for the South-
e rn District of New York, Lee P. Gagliardi,
J., of conspiracy to violate the Racketeer
Influenced and Corrupt Organizations Act
and of aiding and abetting violations of the
Taft-Hartley Act and other offenses, and
992 (5th Cir 1981), Warm Springs Dam Task
Fotce i Gabble. 62i F 2d 1017. 1024 (9th Cir
1980) With respect to new data about the
economic alue of t’ie commercial fishing in-
dusLr . we do not view this information as
being sufficiently significant to reopen the rec
ord We assume that an new significant in-
formation relating to endangered species and
the nsk of Spills will be considered b EPA on
remand
UNITED STATES v. ROMANO
Cite as684 F.2d lOS? (1982)
A
a
-------
pension benefits. Whitworth II, 982
t. 1017. The Sixth Circuit similarly
approved an assessment of prejudgment in-
terest to thwart a retirement fund’s attempt
to retain the benefit it acquired by wrongful-
ly denying payments to a beneficiary. Sweet
v. Consolidated Aluminum Carp, 913 F.2d
268, 270 (6th Cir.l990). But the Sixth Cir-
cuit has refused to giant an equitable reme-
dy where an insured has done nothing
wrong. Thus the court declined to Interfere
in the decision by an ERISA pension plan to
distribute over a million dollars hi residual
assets to a few management employees
where the plan sdmnistzators “were not
guilty of unlawful conduct in pursuing the
course they did”, even though the court se-
luiowledged that the administrators’ conduct
“may appear to constitute unjust enrich-
ment. . .. “ Teagardener n Republic-Frank-
un hic , 909 F.2d 947,948,954(6th Cir.1990)
The Teaga ,dener court carefully distin-
guished cases In which equihible remedies
were necessary to prevent actual or potential
illegal conduct, such as greenmailing or false
representations. M at 952-5&
Defendant Wardlow engaged In no unjust
conduct She did not obtain her medical
benefits by deceit.. She simply requested
payment from HCC and received it Quite
onlike the beneficiary in Wailer, Defendant
Wardlow had no knowledge of HCC’s assert-
ed right to reimbursement when she received
her medical benefits. When 1 1CC finally
mounted its belated attempt to recover its
payments, Defendant Wardlow acted legally
and reasonably by refusing to make such
reimbursement in the absence of a contractu-
al requirement that she do so. And though
th record does not describe in detail Defen-
dant Wardlow’a injuries, it is quite probable
that the medical treatment for her broken
neck far outstrips the combined value of her
insurance payments and her tort award; only
in the moat abstract and unrealistic sense is
it likely that Defendant Wardlow has enjoyed
the “windfall” of a “double recovery.”
(12 ) Nor is an equitable remedy neces-
sary to assure the financial atabilit of
ERISA plans. True financial stability of
those plans depends more upon the enforce-
ment of appropriate contract tqrma than
upon the availabilIty of equitable cause
action designed to produce the same res d
(131 It seems equally clear that an equi-
table remedy in this lawsuit would not jnea-
surably advance the policy of encouraging
employers to fund ER1S plans. Denial of
restitution to 11CC, for example, would not
place the risk of unjustified loss on the em-
ployer of Defendant WardloWs husband, and
would not deter that employer from funding
its ERISA benefit plan in the future Ssi
Whit worth II, 982 F.2d at 1014, citing Ja-
mail Inc. v. Carpenters District Counctl 954
F.2d 269, 304 (6th- Cir.1992). This Court
cannot conclude that a restitution remedy for
11CC is necessary to encourage steady con-
fributions by employers to their ERISA
plans..
HCC in essence asks this Court to do, in
equity, what 11CC failed to do under its own
contract. Yet this Court is hesitant to re-
vive, in the name of fairness, lapsed or unen-
forceable contract terms. Provisions appear.
Ing in a contract, and tJe conduct occurnng
under that contract, are entitled to respect,
and should not be pushed aside in a rush to
accomplish an assertedly equitable result.
The Sixth Circuit has noted in this context
that the availability of an equitable remedy
may be restricted by a clear contractual luni-
tation, though such limitation is not invari-
ably fatal to a restitution claim. WhthwitI a
II, 982 F.2d at 1013, 1017. The Fowth
Circuit in Woilri- likewise noted that an un-
just enrichment doctrine is inappropriate
where it would override a contractual provi-
sion In an ERISA plan. WaUe, 906 F2d at
992-93. Requiring restitution here would
produce a dual inequity: overriding Defen-
dant’s reliance upon contract terms and at
the same tame undoing HCC’s waiter of oth-
er terms. Surely reasonable people would
object if this Court refused to enforce a
viable reimbursement agreement. in the name
of equity: the same should be true when the
Court is asked to create an agreement where
none exists.
HCC’s claim to reimbursement cannot. be
maintained under the circumstances, and its
liens securing that reimbursement must also
fail. The Court will dismiss HCC’a suit by
This matter is before the Court for consid-
eration of cross-motions for Summary Judg-
ment filed by Defendants Wardlow and Hix-
sin and by Plaintiff. The Court having thor-
oughly reviewed this matter, having act forth
its findings in a Memorandum Opinion, and
being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defen-
dants’ Motion for Summary Judgment shall
be GRANTED, and that Plaintiffs cause of
action ahall accordingly be DISMISSED.
This Is a final and appealable Order, and
there Is no just cause for delay.
Lola PROFFITI, Plaintiff,
V.
DEPARTMENT OF INTERIOR
cx rd. Manuel LIlIAN, Jr.
et at., Defendants. -
Clv. A. No. C92-0695-L
United States District Court,
W.D. Kentucky,
- at Louisville.
July 1, 1992. -
Opponent of county plan to construct
regional sewage system brought action
against Environmental Protection Agency
(EPA), Department of Interior, Department
of Justice, county sewer district, and Ken-
tacky Natural Resources and Environmental
Protection Cabinet, alleging violations of Na-
tonal Environmental Policy Act (NEPA) and
Endangered Species Act On defendants’
motions to dismiss and to stay discovery
pending ruling on such motions, the Dist,,ct
Court, Heyburn, J., held that (1) county
plan was not “major federal action” sufficient
1. Health and Environment 2&l0(l)
Nonfederal defendants are amenable to
strictures of NEPA if they enter into part-
nership or joint venture with federal govern-
ment National Environmental Policy Act of
1969, * 2, 42 U.2.CA * 4332.
2. Health and Environment 2&10(1)
Intent to seek federal funds In future
does not establish requisite federal nexus for
applicability of N EPA. National Environ-
mental Policy Act of 1969, 2, 42 U.S.C.A.
*4332.
3. Health and Environment 2510(3)
Federal funding of one part of large and
- ‘ general project does not render entire pro-
ject “major federal action” subject to NEPA.
National Environmental Policy Act of 1969,
* 2, 42 IJ.S.C.A. * 4232.
See publication Words and Phrases
for other judicial construciions and del-
Inil ions.
4. Health and Environment 2&10(3)
County plan to construct regional sew-
age system did not involve “major federal
action” so as to subject plan to NEPA, even
though wastewater would be transferred to
treatment plant allegedly eligible for federal
funding , decision to channel waste to plant
was not made because of plant’s federal hand-
ing eligibility, no part of plan was direct
connective link to plant and plan thus had
independent utility and logical termini, and
plant served local, not federal, needs. Na-
tional Environmental Policy Act of 1969, * 2,
42 U.S.C-A. * 4332.
825 FEDERAL SUPPLEMENT - ‘!
PROFFFITv, DEPARTMENT OF INTERIOR LX EEL LUJAN 159
Ci1e 513 V.5u p. uS 1W Day i 5 53)
mu Order consistent with thj Memorandum to invoke jurisdiction of N EPA tral
Opinion. ‘ government provided no funds d , at
this point, Indirectly, and federaj agencies
ORDER had only voluntarily assisted in preparation
of environmental impact statement; (2) there
was no ‘federal agency action” to support
jurisdiction over federal defendants as to
daim under Endangered Species Act; and
(3) Cabinet was not. amenable to strictures of
Endangered Species Act in connection with
county plan.
Motions sustained In part and denied In
- - - : TTrI
-------
160
5. Health and Envh’onment 25.lO(3)
Involvement of Environmental Protec-
tion Agency (EPA) in county sewer district’s
environmental assessment strategy regard-
ing plan to construct regional sewage system
did not render plan “major federal action”
subject to NEPA; EPA’s voluntary involve-
ment did not establish federal presence In
plan,, particularly as environmental assess-
ment was small partof project, and EPA was
not involved in planning or implementation of
plan. National Environmental Policy Ad of
1969, 2, 42 U.S.C.A. S 4332.
t Fish 12
Game
There was no “federal agency action” to
support jurisdiction over Department of Inte-
nor and Environmental Protection Agency
(EPA) as to claim under Endangered Species
Act in connection with county plan to con-
struct regional sewage system; neither Inte-
nor nor EPA had authorized, funded or ear-
ned out project and, while EPA voluntarily
assisted county sewer district in its environ-
mental studies, it did not assume responsibil-
ity for plan. Endangered Species Act of
1973, * 7(aX2), Cc), 16 U.S.C.A. S 1536(a)(2),
(c).
See publication Words and Phrases
For other judicial constructions and del-
Ituuton s
‘tFI.h l2
Game 3k
Kentucky Natural Resources and Envi-
ronrnent.al Protection Cabinet was not ame-
nable to atricLures of Endangered Species
Act in connection with county plan to con-
struct regional sewage system, despite claim
that It would act as “conduit” for transfer of
federal funds to county sewer district mere
act of receiving federal funds for which Cabi-
net might act as conduit would not create
requisIte “cooperative agreement” with fed-
eral agency and, in any event, Cabinet had
not yet received any such funds. Endan-
gered Species Act of 1973, 5 6(c), 16
U.S.C.A. § 1535(c).
See publication Words and Phrases
(or other judicial constructions and deF-
initions
1
Gregory L. Smith, Arthur L. Williams,
Woodward, Hobson & Fulton, Louisville, KY,
(or plaintiff.
Richard A. Dennis, U.S. AUorney’a Ornee,
Louisville, KY, for Dept. of Interior and
Dept. of Justice.
Brenda Gail Lowe, Dept of Law, Fruit-
fort, KY, for E.P.A. and Ket4ucky Natural
Resources & EnvironmentaJ Protection Cabi-
net.
Frank G. Simpson, III, Pedley, Ross,
Zielke, Gordinier & Porter, Louisville, KY,
for defendants.
MEMORANDUM OPINION
HEYBURN, District Judge.
This case is before the Court on Defen-
dants’ motions to dismiss pursuant to Rule
12(b)(6) based upon the absence of federal
subject matter jurisdiction and on Defen-
dants’ motions to stay discovery pending a
ruling on such motions. Plaintiff, Lois Pro1
fiLl., challenges generally the North County
Action Plan (“NCAP ”), a local effort to im-
prove wastewater treatment in northern Jef-
ferson County by constructing a regional
sewage system and thereby eliminating pal-
lution conconutant with small area wastewa-
ter treatment plants and septic tanks.
Plaintiff alleges violations of the National
Environmental Policy Act of 1969 (“NEPA”),
42 U.S.C. 5 4321 at seq., against the Environ-
mental Protection Agency (“EPA”), the De-
partment of Intenor (“Interior”), and the
Department of Justice (“Justice”) (“Federal
Defendants”), and against the Louisville and
Jefferson County Metropolitan Sewer I)is-
tnct (“MSD”) and the Kentucky Natural Re-
sources and Environmental Protection Cabi-
net (“Natural Resources”).
Plaintiff also alleges violations of the En-
dangered Species Act of 1973 (“ESA”), 16
U.SC. 5 1531 at seq., against Interior, MSD,
and Natural Resources. Plaintiff seeks to
enjoin MSD from further work on the NCAP
until MSD and EPA complete another Envi-
ronmentai Impact Statement (“EIS”). Plain-
tiff asserts that this additional EIS is re-
quired to protect three endangered speci
For the reasons set forth herein, the Court,,
will dismiss the NEPA claims against all
Defendants, and will dismiss the ESA claims
against all Defendants, except MSD. The
exereiae of subiect matter jurisdiction In this
mac, therefore, is limited to the ESA claim
against MSD.
In a Memorandum Opinion dated Novem-
ber 13, 1992, ‘this Court denied Plaintiffs
motion for a temporary restraining order and
reseived further disposition of this case until
later rolings . Specifacally, ‘the Court cau-
tioned Plai ’ntiff that she had not established
the requisite federal nexus for this Court to
exercise jurisdtction under NEPA. The
Court has now thoroughly reviewed Plain-
tiffs pleadings and memoranda which ad-
dress the issue of jurisdictios. -To support
her position, Plaintiff ultimately asserts that
the basis of this Court’s exercise of subject
matter jurisdiction under NEPA and ESA is
the “federal character” of NCAP. (Pl.’s
Mem.Opp’n U.S. Mot to Dismiss at 6.)
Plaintiff emphasizes two elements of
NCAPs “federal character”: MSD’s antici-
pation of federal funding and EPA’s prepara-
tion of an EIS. (Pl.’s Mem.Opp’n U.S. Mot.
to Dismiss at 6-7.) Plaintiff contends that
the correspondence between MSD and EPA
sill prove that NCAP will necessitate the
expansion of the Morris Foreman Treatment
Plant (“Morris Foreman”), which is eligible
For federal funding. (Pl.’s Repp. to MSD’s
Mot.. to Stay Disc. at 2-6.) Plaintiff claims
that EPA accordingly was substantially In-
volved in MSD’s environmental assessment
strategy. Plaintiff concludes that prospec-
bYe federal funding of Morris Foreman
would constitute indirect federal funding of
NCAP. (PL’s Mem.Opp’n U.S. Mot.. to Dis-
missalS.) -
For purposes of these motions ‘to dismiss,
the Court will assume that Plaintiffs asser-.
lions are true. See Scheiger s. Rhodrs 416.
U.S. 232,236,94 S.Ct. 1683, 1686,40 L.Ed.2d
90 (1974). The issue remains, however,
whether Plaintiff’s allegations, even U pruv-
LI. NATIONAL ENVIRONMENTAL
POLICY ACT
(11 NEPA applies only to “major federal
actions significantly affecting the quality of
the human environment,” 42 u.S.C.
S 4332(2)(C), to ensure that federal agencies
are aware of the environmental Impact of
their actions. Mschtgan v. Untied Staies
994 F.2d 119’l, 1199 (6th Cir.1993) “Con-
gress did not intend NEPA to apply to slate,
local, or private actions—hence, the statute
speaks only to ‘federal agencies’ and requires
impact statements only as to ‘major federal
actions.’” Atlanta Coalition n Atlanta Re-
gional Cosnm’n, 599 F2d 1333, 1344 (5th
Cir.1979). Nonfederal defendants are ame-
nable to the strictures of NEPA, however, if
they enter into a partnership or a joint ven-
ture with the federal government Historic
Presentation Guild of Bay View v. Burnleij,
896 F.2d 985, 990 (6th Cir.1989); Fund Jbr
Animals, 1nc n Ltrjan, 962 F.2d 1391 (9th
Cir.1991). In cases of seemingly local con-
cern, “federal action is typically present only
when a project is wholly or partly federally
funded.” Bue-aley, 896 F.2d at 990. There-
fore, this Court must determine as a thresh-
old whether NCAP involves federal action,
and if so, whether the agency action is major
or significant See Crounse Corp v. Inter-
stole Commerce Comm’n, 781 F.2d 1176,
1194 (6th Cir.1986); NAAC.P. s. Medical
Cir., mc, 584 F.2d 619, 629 (3d Cir.1978).
A. Intent to Seek Federal Funding
L21 Plaintiff argues that because MSD in-
tends to seek federal funds for either NCAP
or the expansion of Morris Foreman, NCAP
constitutes a major federal action. Even if
Plaintiff proves this assertion, however, the
intent to seek federal funds in the future
does not establish the requisite federal nexus
for NEPA. ffistoric Presentation Guild of
8 ay View ii Burnley, 896 F .2d 985, 990-1
(6th Cir.1989); Los Ranchos de Albuquerque
v. Barnhari, 906 F.2d 1471, 1480 (10th Cir.
1990); Highland Park it. Tnzrn, 519 F.2d
681, 685(7th Cir.1975); Boston it. Volps, 464
F.2d 254, 258 (1st Cir.1972). NEPA does not
‘‘. 825 FEDERAL SUPPLEMENT- ‘
PROFFITI’ v. DEPARTMENT OF INTERIOR EX EEL. LIliAN 161
0i1U F.Sapp 55 (WOK 7 . I S I S)
the Indiana bat, the gray bat, and the Run- en, are sufficient to sustain the jurisdiction of
wag Buffalo dover. this Court under either NEPA or ESA.
-------
162
“requlil mey to consider the poesible
environ........ mpacts of less imminent ac-
tions.” Crounse Co a Interstate Cons-
merce Coinm 781 F.2d 1176, 1194 (6th
Cr1986).
B. Involvement With Federal Projecfk
Plaintiff erroneously argues that proof of
the direct or- indirect receipt of federal funds
will establish federal action. (Pl.’s Resp. to
MSD’s Mot to Stay Disc. at 5.) She asserts
that NCAP will necessitate the expansion of
Morris Foreman, which is eligible for federal
funding. To support her position, Plaintiff
relies heavily upon two district court opin-
ions, La Raza Unida v. Vo1p 337 F.Supp
1 (N.D.CaLl97l), and Highland Co-on u
Lansing 492 F.Supp. 1$72 (W.D.Mich.S.D.
1980), neither of which is binding on or per-
suasive to this Court)
(33 Federal flinding of one part of a large
and general project does not render the en-
tire project a major federal action. Ilistonc
Presenaition Guild of Bay View v. Buinley,
896 F.2d 985, 990-1 (6th Cir.l989). Courts
have consistentiy declined to extend N EPA,
to state or local projects that are not federal-
ly funded, even if those projects are related
to or necessitated by federal projects. See
Buvnley; Piedmont Heights Cnnc Cluh In
v. Moreland 637 F.2d 430 (5th Car.l98l);
NAA.C.P a Medical CIt., Inc., 584 F.2d
619 (3d Cir.1978).
(41 In Rurnley. the Sixth Circuit adopted
the standard articulated in Hawthorn ?JnvtL
Preservation Aas’n v. Coleman. 417 F.Supp.
1091, 1100 (N.D.Ga.1976), affii 551 F.2d 1055
(5th Cir.l977), to detennine whether NEPA
applies to a state-funded portion of a large
project 2 Although the Biinrieij court was
evaluating a highway project, this Court will
consider these factors as persuasive in ha
analysis of NCAP rather than adopt Plain.
tiff’s vague “federal character” standard,
which cannot be applied uniformly.
NCAP includes the Ohio River Force Main
Project, the Falls Creek InterceptorlGlen.
view Woods Pumping Station Project, and
the Glenview Area Collector Sewer Project.
(Garner AlL I ) The specific plans for
NCAP do not indude the expansion of Mor-
ris Foreman. Wastewater will be trans-
ferred from the Ohio River Force Main to
Morris Foreman through the existing Ohio
River Interceptor. (MSD’s Mem.Opp’n Mot.
T.R.O. at 3.) MSD chose to channel this
waste to Mon-is Foreman for treatment be-
cause of Ilow reduction because of popula-
tion loss, industry relocation, water conserva-
tion measures, and diversion of wastewater
to a newly constructed west county b-eat-
ment plant.” (MSD a Mem.Opp’o T.R.O. at
3.) In other words, MSD did not make its
decision because Morris Foreman is eligible
for federal funding.
Since no part of NCAP Is a direct connec-
tive link to Morris Foreman, this Court must
conclude that NCAP has both independent
utility and logical termini. Even if there
were a direct link, MSD has not yet received
federal funds to expand Morris Foreman.
NCAP serves local, not federal needs, the
citizens of Jefferson County have a strong
Interest in the proper treatment of public
waste. Under the standard used in Bundep,
ject which was approved for and grsnied federal
Funding before the city withdrew its request for
Further federal aid The court held that NEPA
applied because the project was ‘so imbued
with a federal character.” Id at 1315 In d i ’s
case, however. NCAP has neither received air
been approved for federal funding (Garner Sill
113-4) NCAP does not involve the ongoing
“federal-local partnership.” id. which the cant
found in Highland Coop.
3. The court considered whether die state-Funded
segment (I) is a connective link to the Iede,al
segment. (2) has independent utility. (3) ha,
logical tennini. and (4) serves local needs
Burnley. 596 F 2d at 991
, NCAP does not Involve major fed-
5 tion.
C. EIS Assistance
(51 Plaintiff finally argues that because
EPA is involved in MSD’a environmental as-
sesarnent strategy, NCAP Is further imbued
with federal character. Yet, in Los Ranchos
tie 4lbuqwqtte v. Bari rha4 906 F.2d 1477
(10th Cir.1990), 3 both federal funding and
EIS assistance were present, and the court
beld that the project was not a major federal
action. The Banthafl court concluded that
since an EIS is not required until after a
project is deemed to involve major federal
action, the voluntary preparation and funding
of an EIS by a federal agency does not
establish the requisite federal nexus. hL at
1482. The court found that voluntary prepa-
ration of an EIS and federal advice concern-
tag where to locate a project were neither
major nor significant in view of the enormity
of the entire project hi In this case,
EPA’s voluntary involvement with MSD’a en-
vironm%ntal assessment strategy doe. not es-
tablish a federal presence in NCAP. Envi-
ronmental assessment is merely a small part.
of tire project, and EPA was not involved In
the planning or the implementation of
F4CAP.
Plaintiff claims that with discovery, she
will uncover facts which will establish that
NCAP involves major federal action. On
December 12, 1992, Plaintiff served MSD
with Requests for Admissions, Requests for
Production of Documents, and Interrogate-
nra Most of these elements of discovery
relate to compliance with NEPA and ESA
rather than to the threshold issue of jurisdic-
tion. 4 Many of the requests that do relate to
jurisdiction involve MSD’s future or antici-
pated use of federal funds, both for NCAP
and for other projects. A great deal of Infor-
mation about NCAP is available in the Rec-
ord Plaintiff herself admits that through
discovery, she “can only obtain evidence that
MSD will receive federal funds or state re-
volving loan funds to expand Morris Porman
3 The Sixth Circuit has no t ruled on diii epecific
factual scenano, so this Court accepis Banihan
as persuasive authority
4 See. eg. interrogalonea 9—13
Plaintiff, therefore, fails to establish that a
federal agency is involved In NCAP. Even If
Plaintiff had proved that NCAP involves fed-
eral agency action, that action is not suM-
ciently “major” to support jurisdiction. The
Council on Environmental Quality ( “CEQ”)
defined “major federal action” as “new and
continuing activities, including projects and
programs entirely or partly financed, assist.-
ed, conducted, regulated, or approved by fed-
eral agencies.” 40 C.F.R. § 150&18(a)
(1984). Many courts, Including the Sixth
Circuit, follow these guidelines in determin-
ing whether a project is a major federal
action, because ‘CEQ’a interpretation of
NEPA is entitled to substantial deference.”
Andnol V. Sierra Cluti 442 U.S. 347,358,99
S.Ct . 9835,3341,60 L.Ed.2d 943 (1919). Se .
Bunch is Hodel, 793 F.2d 129, 135 (6th Cit.
1986).
EPA has voluntarily offered assistance and
guidance for environmental surveys, (Garner
Aff. 11 2-4), but it has neither responsibility
for nor discretionary power over NCAP.
(U.S. Resp.Opp’n MoLT.R.O. at 10-I I.)
Since Defendants have already disclosed a
great deal of information in the Record, this
Court cannot imagine anything that Plaintiff
could find through discovery which would
establish the requisite federal nexus. The
Court concludes that because the federal
825 FEDERAL SUPPLEMENT
PROPPIT I,. DEPARTMENT OF INTERIOR EX REL. LWAN
Cii . a a$35 F.5 ,gp is, (W.D. y roesi
(sic).” (P1.’a Resp.Mot to Stay Disc. at
(emphasis added). Such a discovery would
not alter the Court’s view of this case.
D. Conclusion
The fact remains that MSD has neither
received nor is eligible for federal funding for
NCAP. (Garner Aff. 113-4; see also Letter
from Mueller to MSD of 71l2d91, at 2.) Even
if the expansion of Morris Foreman is ults-
mgtely funded entirely by federal agencies,
NCAP is a separate, independent project,
and “federal action is typically present only
when a project is wholly or partly federally
funded.” Bu,’nley, 896 F.2d 985, 990 (6th
Cir.1989).’
16 __
I
I ‘t 4
II.
: .
it. ,1 .
I, ‘ 4a
:
: ,i?;
-ffi
i)
—
: • ; •.- ... ‘i1 ;..!
I. In La Rain Linda, the court held that PIEPA
applies to highway projects that anticipate fcder.
al funding and to which a federal agency has
given location approval In that case, however.
the state required the FHWA to give location
approval to highway projects No federal agency
has approved or need approve the location of
NCAP Other courts have criticised La Rais
Un,da’s holding See Los Ranchos tie Albuque,-
que v Bamhan’. 906 F2d 1477. 1451 (10th Cir
1990), Citizens fo, a Balanced Emui,onment is.
Volpe, 376 FSupp 506. 812-3 (DConnl9l4)
(cited with approval in Hiswnc Ptuen,atwn
Guild of Bay Viewv Bumley. 596 F2d 985. 991
(6th Ci, 1989))
Highland Coop v tensing 492 F Supp 1372
1W 1) Mich SD 1980). involved a highway pro.
S. See also Los Ranchos tie Albuquerque v Barn.
hart. 906 F 2d 1477. 1483 (10th Cir 1990) (‘Even
if a local project ternunaica at a point of juncture
with s federally Funded project, that would not
preclude aegmentation”)
.1
- , r
u,.0 ’SJ
-------
164
.government provides no funds directly or at
this point even Indirectly to NCAP and be-
cause federal agencies have only voluntarily
assisted in the preparation of an EIS, NCAP
Is not a “major federal action” sufficient to
Invoke jurisdiction under NEPA.
III. ENDANGERED SPECIES ACT
Plaintiff also asserts that NCAP consti-
tutes a “taking” under ESA and that she Is
therefore entitled to injunctive relief under
16 U.S.C. 1540(c). Any “person subject to
the jurisdiction of the United States” may be
sued under ESA. 16 U.S.C. 1538(a)(l). A
violation of EM Includes the “taking” of an
endangered specIes, 16 U.S.C.
§ 1538(a)(1XB), for which there is a private
right of action, 16 U.S.C. 0 1540(g). “Tak-
ing” Is defined as an intentional or negligent
act that creates a likehhood of injury to
wildlife “by annoying it to such an extent as
to significantly disrupt normal behavior pat.
terns which include breeding, feeding, or
sheltering.” 50 C.F.R. 17.3(c).
A. Federal Defendants
To be amenable to the strictures of EM, a
federal agency must authorize, fund, or carry
out the action which threatens the continued
existence or habitat of an endangered spe-
cies. 16 U.S.C. 1536(aX2). When there is
such “federal agency action” In an area in
which an endangered species is present, the
agency must conduct a biological assessment
of that area. 16 U.S.C. § 1526(c). If the
agency finds that the proposed project has a
potentially adverse effect on the species, It
must seek a formal consultation. 50 C.F.R.
402.14(a).
(6) In this case, neither Interior nor EPA
haa authorized, funded, or carried out MSD’s
project (U.S. Reply to Pl.’s Opp’n to Mot to
Dismiss at 8.) EPA voluntarily assisted
MSD in ita environmental suiveys; it did
not, however, assume responsibility for
NCAP. As the Court stated in regard to the
NEPA claim, the Court cannot imagine what
facts Plaintiff could obtain through discovery
which would establish the requisite federal
nexus. Since there Is no federal agency ac-
tion, this Court does not have jurisdiction
over the Federal Defendants in the EM
claim.
B. Kentucky Natural Resources and
Environmental Protection
Cabinet
(71 Plaintiff asserts that Natural Re-
sources has violated EM because of its duty
to enforce the statute. Plaintiff further ar-
gues that Natural Resources is a “conduit” or
an “intermediary” for the transfer of federal
funds—for either NCAP or the Morris Fore.
man Treatment Plant,—to MSD. (P1’s Reap.
to Natural Resources’ Mat . to Dismiss at 6.)
Ultimately, Plaintiff asserts that Natural Re.
sources is amendable to salt because it will
have to Issue MSD a new permit. for the
discharge of water into the Ohio River.
(Fl’s Reap. to Natural Resources’ Mot to
Dismiss at 3-4.)
A state agency, however, Is only amenable
to the ati,cturea of EM if it directly violates
the statute or if it engages in a “cooperative
agreement,” 16 U.S.C. 0 1535(c), with a fed.
eral agency. The mere act of receiving fed.
eral funds for which Natural Resources
might act as a conduit would not create such
a “cooperative agreement.” In any event,
Natural Resources has not received any such
funds. There can be no cooperation when
federal assistance is merely anticipated.
Plaintiff’s ESA claim, therefore, should be
dismissed as to Natural Resources.
C. Metropolitan Sewer District
Plaintiff also contends that MSD has di-
rectly violated EM because NCAP consti-
tutes a “taking.” (P1’s Mem.Supp.T.R.O. at
9-11.) This assertion remains as Plaintiffs
sole viable claim- Plaintiff asks this Court to
enjoin MSD from further construction of
NCAP until MSD completes a supplemental
EIS which assesses NCAP’s impact upon
three endangered species.
Plaintiff contends that: (1) MSD failed tO
perform a required “area wide survey”; (2)
MSD’a biolog cal assessments were inade-
quate and inaccurate; and (3) NCAP will
irreparably harm the environment and three
endangered species.
MSD, on the other hand, asserts that its
biologi ’ al assessments of the three endan-
As this Court stated in its Memorandum’
Opinion of November 13, 1992, Plaintiff has
snide many assertions but has failed to prea-
cot evidence to support them. Plaintiff will
now have an opportunity to prove the validity
of her claims.
IV. DISCOVERY
Since NCAP has been partially completed,
Plaintiff must use her opportunity for discov-
ery to demonstrate that NCAP’s impact on
endangered species is so severe and so Irrep-
arable as to outweigh the strong public inter-
est in dean water and in the proper treat-
nient of public waste. MSD, however, will
not be required to respond to discovery re-
quests which aim to establish a significant
Indeed presence in NCAP. Plaintiffs dis-
avery, therefore, should be limited to those
requests which rblate to NCAPs impact
upon the three endangered species. Specifi- -
ally, Plaintiff’s proposed discovery should be
hmited to: (1) lnterrogatories 7-13; (2) Re-
quest for Production of Documents 3; and (3)
Requests for Minlsaions 15—28.
The Court will enter an Order consistent
with this Memorandum Opinion.
This case coiqes before the Court on De-
(endanta’ Motion to Dismiss.
The Court having fully considered the is-
sues, having issued a Memorandum Opinion
and being otherwise sufficiently advised,
IT IS HEREBY ORDERED that all De-
(indents’ Motions to Dusmi s the National
Environmental Policy Act claims are SIJS-
TAINED.
165
IT IS FURTHER ORDERED that the
Motions to Dismiss of Interior, EP& Justice,.
and Natural Resources as to the Endangered
Species Act claims are SUSTAINED
IT IS THEREFORE ORDERED that the
Environmental Protection Agency, the De-
partment of Interior, the Department of Jus-
tice and the Kentucky Natural Resources
and Environmental Protection Cabinet are
dismissed as defendants in this case.
IT IS FURTHER ORDERED that MSD’s
Motion to Dismiss the Endangered Species
Act claim is DENIED.
IT IS FURTHER ORDERED that Plain-
tiff’s Discovery shall be limited as set forth in
this Memorandum Opinion.
TRUSTEES Of The MICHIGAN LABOR-
ERS’ DISTRICT COUNCIL PENSION
FUND, Michigan Laborers’ Health Care
Fund, Michigan Laborers’ Vacation
Fund, and Michigan Laborers’ Training
Fund, Fiduciaries Multi-Employer
Fringe Benefit Funds Established and
Maintained Pursuant to Federal Law,
Plaintiffs,
V.
VAN SULLEN CONSTRUCTION,
INC., Defendant.
No 91—74719.
‘I
United States District Court,
E.D. Michigan, S.D.
Trustees of Employee Retirement In-
come Security Act (ERISA) funds brought
action against employer, claiming that em-
ployer was attempting to defraud union and
funds by paying nonunion employees non-
union wages “off-the-books,” to perform
work covered by collective bargaining agree-
ment and that employer was not contributing
825 FEDERAL SUPPLEMENT’
•1
TRUSTEES OF MICHIGAj4 v. VAN SULLEN CONS?., INC.
- . Cli.a.sii F.Supp 65 (5 D.MIth 993)
gered species were more than sufficient, and
t has introduced a great deal of documenta-
tion of this compliance with ESA into the
Record. MSD contends that it merely need-
ed to Survey the area in wbich NCAP would
have an impact, not the entirety of northern
Jefferson County. After his surveys, an ec-
ologist hired by MSD found that NCAP
would not have a significant impact on the
three endangered species. (Bryan All. 116,
12, 13.) MSD concludes that this assessment
is both accurate and adequate.
- ORDER
June 12, 1993.
-------
NATIONAL WILDLIFE FEDERATION
et al, Plaintiffs-Appellants,
V.
William T. COLEMAN, Secretary of
Transportation, et al.,
Defendants-Appellees.
No. 75—3256.
United States Court of Appeals,
Fifth Circuit.
March 25, 1976.
Rehearing and Rehearing En Bane
Denied May 19, 1976.
Rehearing Denied June 11, 1976.
Conservation groups sought to en-
join the construction of a section of in-
terstate highway which would traverse
the habitat of the Mississippi Sandhill
Crane, an endangered subspecies. The
United States District Court for the
Southern District of Mississippi, Walter
L. Nixon, Jr., J, 400 F.Supp. 705, dis-
missed and conservation groups appeal-
ed. The Court of Appeals, Simpson, Cir-
cuit Judge, held that where the Depart-
ment of Transportation considered the
direct impact on the crane’s habitat due
to the taking of the highway right-of-
way, but failed to consider whether the
crane could survive the additional loss of
habitat caused by the private develop-
ment which would accompany the con-
struction of the highway and the excava-
tion of and drainage caused by borrow
pits, the Department had failed to com-
ply with provisions of the Endangered
Species Act of 1973 which required it to
insure that its action did not jeopardize
the continued existence of any endan-
gered species or result in the destruction
or modification of habitat of such spe-
cies.
Reversed and remanded with di-
rections.
I. Highways 99’/i
Under statutes limiting highway use
of public land, Secretary of Transporta-
tion was not bound by determination of
state Attorney General that lands in
question were not publicly owned lands
from public park, recreation area, or
wildlife and water fowl refuge; but once
state and local officials had made thresh.
old determination of significance of use
of state and local lands, that decision
was reviewable and reversible by Secre-
tary. Department of Transportation
Act, § 4(f), 49 U.s C.A. § 1653(f).
2. Highways 99 / 4
Statute limiting highway use of
public land was applicable only if land to
be used by project was publicly owned,
except for land from histonc site, and if
land was from public park, recreation
area, or wildlife and water fowl refuge.
Department of Transportation Act,
§ 4(f), 49 U.S.C.A. § 1653(f).
3. Highway-
Where land to be traversed by inter-
state highway was either not publicly
owned or, if publicly owned, had never
been designated or administered, formal-
ly or informally, as public park, recrea-
tional area, or wildlife and water fowl
refuge, statute limiting use of public
lands for highway purposes did not ap-
ply. Department of Transportation Act,
§ 4(f), 49 U.S.C.A. § 1653(f).
4. Game ‘6
Under statute requiring federal
agencies to insure that their actions do
not jeopardize continued existence of
any endangered species or result in de-
struction or modification of habitat of
such species, once agency has had mean-
ingful consultation with Secretary of In-
terior concerning actions which may ef-
fect endangered species, final decision of
whether or not to proceed with action
lies with agency itself. Endangered
Species Act of 1973, § 7, 16 U.S.C.A.
§ 1536.
5. Game 6
Under statute requiring that federal
agencies insure that their actions do not
jeopardize continued existence of any en-
dangered species or result in destruction
or modification of habitat of such spe-
cies, after consulting with Secretary of
Interior, federal agency involved must
determine whether it has taken all nec-
I-’• . .
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-
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.—. ‘ :. L -. ‘.‘ • ..-... -,.---
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- ...—-. ..‘
— -.
NATIONAL WILDLIFE FEDERATION v. COLEMAN 359
Cite a 529 F2d 359 U9 6)
- —-.
-------
360
.,29 FEDERAL REPORTER. 2d SEIIIES
essary action to comply with statute.
Endangered Species Act of 1973. § 7. 16
U S CA. § 1536.
6. Injunction 126
Plaintiffs seeking to enjoin Construc-
tion of interstate highway on ground
that Secretary of Transportation had
failed to comply with statute requiring
that he insure that his actions not jeop-
ardize continued existence of any endan-
gered species or result in destruction or
modification of habitat of such species
had burden of showing noncompliance.
Endangered Species Act of 1973, § 7, 16
U S.C.A. § 1536.
7. Highways 99’/4
Where Secretary of Transportation
considered direct impact of interstate
highway construction on habitat of en-
dangered species due to taking of high-
way right-of-way, but failed to consider
whether species could survive additional
loss of habitat caused by private devel-
opment which would accompany con-
struction and excavation of and drainage
caused by borrow pits, Secretary had
failed to comply with statute requiring
him to insure that his actions did not
jeopardize continued existence of any en-
dangered species or result in destruction
or modification of habitat of such spe-
cies. Endangered Species Act of 1973,
§ 7, 16 U S.C.A. § 1536.
8. Highways 99V
Under statute requiring that federal
agencies insure that their actions do not
jeopardize continued existence of any en-
dangered species or result in destruction
or modification of habitat of such spe-
cies, fact that private development sur-
rounding proposed federal highway
project did not result from direct federal
action did not lessen Department of
Transportation’s duty to consider effect
of prwate development. Endangered
Species Act of 1973, § 7, 16 U S CA.
§ 1536.
9. Game 6
Under statute requiring federal
agencies to insure that their actions do
not jeopardize continued existence of
any endangered species or result in de-
struction or modification of habitat of
such species, agency could not rely on
another agency’s proposal to provide sub-
stitute habitat for endangered species to
satisfy it,s burden of insuring that its
actions would not jeopardize continued
existence of the species. Endangered
Species Act of 1973, § 7, 16 U.S C A
§ 1536.
10. Game 6
Under statute requiring federal
agencies to insure that their actions do
not jeopardize continued existence of
any endangered species or result in de-
struction or modification of habitat of
such species, agency’s duty was to insure
that its actions would no( destroy or
modify species’ habitat, not just area
within that habitat which was to be set
aside as wildlife refuge. Endangered
Species Act of 1973, § 7, 16 U.S.C.A.
§ 1536.
11. Highways 99V4
Under statute requiring that federal
agencies insure that their actions do not
jeopardize continued existence of any en-
dangered species or result in destruction
or modification of habitat of such spe-
cies, Department of Transportation had
duty to insure that proposed interstate
highway and development generated by
it did not further threaten species of
habitat, irrespective of past destructive
actions of others. Endangered Species
Act of 1973, § 7. 16 U.S.C.A. § 1536
12. Game 6
Highways 99’/a
After determining that Department
of Transportation had failed to fulfill its
duty to insure that proposed highway
project did not jeopardize habitat of en-
dangered species, Court of Appeals
would defer to Department of Interior to
determine hat modifications were nec-
essary to bring highway project into
compliance with Endangered Species
Act, since Department had primary jur-
isdiction for administering that Act and
subject matter was within specialized
field of Department. Endangered Spe-
-------
des Act of 1973, § 7, 16 U.S C A.
§ 1536.
13. Highways 99’/
State which voluntarily sought fed-
eral funding for highway project was
subject to Endangered Species Act provi-
sion requiring that agency action not
jeopardize continued existence of any en-
dangered species or result in destruction
or modification of habitat of such spe-
cies. Endangered Species Act of 1973,
§ 7, 16 U.s C A. § 1536.
A. Spencer Gilbert, II!, Jackson, Miss..
Robert J Golten, NatI. Wildlife Fed,
Washington, D C., for plaintiffs-appel-
lants.
Robert E. Hauberg, U. S. Atty., Jo-
seph E. Brown. Jr., Asst. U. S Atty.. A.
F. Summer, Atty. Gen. of Miss., Jackson,
Miss., Walter Kiechel, Jr, Asst. Atty.
Gen., Washington, D. C., Frank E. Shan-
ahan, Jr., Asst. Atty. Gen. of Miss., Ed
Davis Noble, Jr., Jackson, Miss., Brent
Ward, General Litigation Sec.. Land &
Natural Resources Div., Dept. jf , ustke,
Wallace H. Johnson, Larry A. Boggs,
George R. Hyde, Attys., Dept. of Justice,
Washington, D. C., for defendants-appel-
lees.
Appeal from the United States Dis-
trict Court for the Southern District of
Mississippi.
Before THORNBERRY, SIMPSON
and MORGAN, Circuit Judges.
SIMPSON, Circuit Judge:
Appellants, National Wildlife Federa-
tion (NWF) and Mississippi Wildlife Fed-
eration (MWF), brought this action in
the court below seeking declaratory re-
lief and to enjoin the construction of a
5.7 mile section of Interstate Highway
Route 10 (1—10) through Jackson Coun-
ty, Mississippi, which would traverse the
habitat of the Mississippi Sandhill Crane
(Grus canadensis pulla) an endangered
sub-species. Count I of the complaint
alleged that construction of this segment
of 1—10 and of an interchange at the
361
Earl Bond Road (also known as the Gau-
tier-Vanclea%e Road) would threaten the
continued existence of the crane and
ould result in the destruction and mod-
ification of its critical habitat in viola-
Lion of Section 7 of the Endangered Spe-
cies Act of 1973, Title 16, U.S.C., Section
1536 (hereinafter § 7). Count II alleged
a .iolation by appellee Coleman, Secre-
tary of Transportation, of Section 4(f) of
the Department of Transportation Act,
Title 49, U.S.C., Section 1653(f) (herein-
after § 4 (f)), in that he had not deter-
mined that there is no feasible and pru-
dent alternative to the construction of
the highway as located and designed,
and that all appropriate measures to
minimize the harm to the habitat of the
crane have been planned The appel-
lants requested that construction of the
5.7 mile section of 1—10 be enjoined until
(i) modifications are made to insure that
the proposed segment will not jeopardize
the continued existence of the Mississippi
Sandhill Crane, or destroy or modify
habitat critical to the crane, and (ii) ap-
pollee Coleman makes the findings re-
— quired under § 4(f). Appendix A hereto
is a map of the area.
After a hearing on the merits com-
bined with a hearing on appellants’ Re-
quest for a Preliminary Injunction, F.R.
Civ.P., Rule 65(aX2), the district court
entered an order dismissing the com-
plaint. National Wildlife Federation v.
Coleman. S.D.Miss.1975, 400 F.Supp. 705.
The district court held that the determi-
nation by the Office of the Attorney
General of the State of Mississippi on
the nonapplicability of § 4(f) was bind-
ing on the Secretary of Transportation,
and, therefore, that § 4(f) provided no
jurisdictional basis for the suit. Id. at
709. The court further held that al-
though it had jurisdiction under § 7, the
appellants had failed to meet their bur-
den of proving a violation of that section
since the project in controversy would
not jeopardize the continued existence of
the Mississippi Sandhill Crane or result
in the destruction or modification of its
habitat.
— . . --. . . — —- . , . .._. :.. .. _ , .
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NATIONAL WILDLIFE FEDERATION v. COLEMAN
Cite a- —‘9 F 2d 3 O il96t
I. Federal Project No 1-10—1(25)57. State Project No 51—0010-01-025-10
52 F 2d—23i ,
-------
362
29 FEDER L REPORTER. 2d SERIES
The NWF and MWF filed a notice of
appeal on August 24. 1915, and on Au-
gust 20 filed a motion for an Injunction
pending appeal. On September 10. 1975.
we ordered the appeal expedited and di-
rected that the motion for injunction be
carried with the case. Follo ing oral
argument on December 9, 1975, we en-
joined appellees until further order from
(a) initiating or carrying out any further
work or incurring any further contractu-
al obligations with respect to the inter-
change at the Earl Bond Road; and (b)
excavating any borrow pits in Sections 2,
3, 4, 5, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17,
20, 21, 22, 23, and 37 of Township 7
South, Range ‘7 West, of the lands in-
volved in this appeal. This order was to
remain in effect pending this decision on
the merits and the disposition of any
petitions for rehearing hereafter filed.
After examination of the record, we
hold that the requirements of Section 7
of the Endangered Species Act of 1913
were not complied with by the. a e ec j.
We reverse the trial court and remand
the cause for further proceedings.
BACKGROUND
1—10, part of the National System of
Interstate and Defense Highways, Title
23, U S C, Section 101(b), is a limited
access highway across the southern Unit-
ed States which when completed will ex-
tend from Los Angeles, California, to
Jacksonville, Florida. In Mississippi 1—10
will be approximately 71 1 miles long
traversing Hancock, Harrison, and Jack-
son Counties, and is being constructed
with 90% federal financing pursuant to
the Federal-Aid Highway Act, Title 23,
U.S.C., Section 101 et seq. The construc-
2. This 5 7 mile section of 1—10 transects Sec-
tions 18, 17. 16. 15. 14. 13. and 37 of To nshi
7 South. Range 7 West
3. The Mississippi Sandhili Crane is a sub-spe-
cies of sandhill cranes It is the same size as
the Flonda Sandhill Crane (Grus ranadensis
pratensis) and pnor to 1972 the Mississippi
Sandhili Cranes and the Florida Cranes were
thought to be of the same sub-species Aid-
nch. A New Sub-species of Sandh:IJ Crane in
MISSISSIpPI. 85 Proceedings of the Biological
Society of Washington 63 (1972) Mississippi
tion of the segment of 1—10 in Mississip-
pi has been under consideration since
1963, and is being built by the Mississip-
pi State Highway Department (MSHD)
in conjunction with and pursuant to au-
thorization b the Federal Hight ay Ad-
ministration (FHWA). The right-of-way
for the Mississippi segment of 1—10 was
acquired prior to the filing of this action,
most of it prior to 1910. Approximately
58 2 miles of 1—10 in Mississippi from the
Louisiana border to Mississippi State
Highway 57 (Highway 57) is near com-
pletion. The remaining 18.9 mile seg-
ment of 1—10 in Mississippi extends from
Highway 51 eastward to the Alabama
line and contains the 5.7 mile segment in
controversy. This 5.7 mile section runs
from an interchange at the intersection
of 1—10 and Highway 51 on the west to
the west bank of the Pascagoula River
on the east. 2 Within this 5.? mile seg-
ment the plans call for the construction
of an interchange at the junction of the
E rl Bond Road and 1—10. Both the in-
terchange and the 57 section of 1—10
will transect the habitat of the Mississip-
pi Sandhill Crane, bisecting the eastern
unit of a proposed refuge for the crane,
and traversing Section 16 land held by
the State of Mississippi in trust for the
Jackson County School District.
An estimated number of 40 Mississippi
Sandhill Cranes still exist, their range
being confined to a total area of approx-
imately 40,000 acres in Jackson County,
Mississippi. The Department of Interior
designated the Mississippi Sandhill Crane
an endangered sub-species on June 4.
1913, listing it on the Department’s En-
dangered Species Register per designa-
tion at 38 Fed. Reg. 14678. pursuant to
Cranes are distinguishable From other sub-spe-
cies of sandhili cranes because of darker plum-
age and the presence of a red tuft on the top
of the head
Beginning in 1965 eggs were taken from the
nests of the Mississippi Sandhiil Crane popula-
tion in Jackson County for the purpose of
propagation in capti ’ic in 197 i eight of the
Cranes had been reared to aduli plumage at
the Patuxent Wildlife Research Center. Laurel.
Mar) land
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NATION.. L WILDLIFE FEDERATION v. COLEMAN
Cite a- 29 F 2d 3 5P
Section 3 of the Endangered Species Act
of 1969, Pub. L. 91—135, Dec. 5, 1969,
repealed and replaced by the Endan-
gered Species Act of 1973, Title 16,
U.S.C., Section 1531 et seq. The sole
natural habitat of the Crane is marked
by the Jackson-Harrison County line on
the west, the Pascagoula River on the
east, United States Highway 90 on the
south, and Bluff Creek on the north.
For breeding grounds the cranes use
only wet, semi-open, and savanna-like
lands with marsh areas, with more trees
than is typical of the nesting habitat of
other sub-species of sandhill cranes. The
nests are built in small openings in shal-
low water from vegetation surrounding
the nest. Although the cranes are non-
migratory, during the winter months
they flock together in a roosting site in
the eastern portion of the Pascagoula
Marsh.
In 1974, after the right-of-way for the
segment of 1—10 had been acquired, the
U. S. Fish and Wildlife Service (Fish and
Wildlife Service) proposed the creation
of a Mississippi Sandhill Crane Refuge
consisting of two separate units totaling
11,300 acres in Jackson County. The
western unit, Ocean Springs, 4 of the pro-
posed refuge lies east of Highway 57 and
is bounded and transversed in part on
the South by 1—10. As noted earlier this
portion of 1—10 is substantially complete
and is not involved in this controversy. 5
The eastern unit, Fountainbleau,’ of the
proposed refuge, which comprises ap-
proximately one-half of the total refuge,
is traversed at its narrowest point by
1—10. This portion of the proposed ref-
uge includes Section 16 land held by the
State of Mis&ssippi in trust for the sup-
port of the Jackson County School Sys-
tem. By letter dated August 12, 1974,
the Fish and Wildlife Service requested
4. The western unit of the refuge when comrn
plete will encompass lands in Sections 28. 29.
30. 31. 32. 33, and 34 of Township 6 South.
Range 8 West, and Sections 2. 3, 4, 5. 6, 7. 8.
9. tO. I I, 14. and 15 of Township 7 South.
Range 8 West
& Construction of this portion of 1—10 was ini
uated in advance of the passage of the Endan-
gered Species Act of 1973
363
that the Nature Conservancy, a private
organization, acquire approximately 2480
acres in the Fountainbleau unit, consist-
ing of four privately owned tracts. In
this letter the Director of the Fish and
Wildlife Service proposed that the Con-
servancy acquire the land and hold it
until the Service obtained sufficient
funding from Congress to purchase it
If, however, the Sen ice as unable to
purchase the land within a reasonable
time the Conservancy could ‘take such
action as necessary to reco er its invest-
ment.” As a result of this proposal the
Conservancy in late 1974 acquired ap-
proximately 2000 acres. 1 After the oral
argument before us counsel for appellant
NWF filed in these proceedings an affi-
davit of the Director of Land Acquisition
of the Nature Conservancy which avers
that on November 25, 1975. the Nature
Conservancy transferred title to approxi-
mately 1,708 acres to the Fish and Wild-
life Service.
The Fish and Wildlife Service in 1960
assigned Jacob M. Valentine, Jr., a wild-
life management biologist, to study the
effects of then proposed 1—10 in Louisi-
ana, Mississippi and Alabama. In a 1963
report titled “The Status of the Florida
Sandhill Crane in Jackson County, Mis-
sissippi” Valentine stated that the pro-
posed route of 1—10 would “cross through
the area used by the cranes as nesting,
loafing, roosting, and feeding grounds”.
Valentine wrote in the report that at
that time the greatest threats to the
continued existence of the crane flock
were timber management, housing devel-
opments, and the proposed 1—10, and of
the three the first was cause for the
most immediate concern. The report
concluded by recommending that the
“most obvious solution” to avoid detri-
mental impacts to the Crane would be to
6. The eastern unit of the refuge when com-
plete will encompass lands in sections 4. 5, 8,
9, 10. 15. 16. 20. 21. and 22 of Township 7
South, Range 7 West
7. The land acquired by the Nature Conservan.
cy is located in Sections 4, 9. 10. 15, 20, 21.
and 22 of Township 7 South. Range 7 West.
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29 FEDERAL REPORTER. 2d SERIES
create a sanctuary comprising 5.000 to
10.000 acres in the area north of U S.
Highaa 90, bei . een Highway 57 and
the Junction of the Earl Bond and Mar-
tin Bluff Roads. Valentine also recom-
mended that the route of 1—10 be placed
two or three miles north of the 1963
survey line, thereby placing the highway
on the northern edge of the breeding
territory, and that if the route could not
be changed then entry-exits should be
limited to one at Highway 57 and one at
the Earl Bond Road.
On November 23, 1973, the Fish and
Wildlife Service notified the MSHD that
the Service proposed to acquire 11,360
acres of savanna grassland in Jackson
County in order to protect the Mississip-
pi Sandhill Crane, and that the Service
was “extremely interested in close coor-
dination involving all roads, interstate
interchanges, etc., in this area (more spe-
cificall T 6&7 S. and R 7&8 W).” Simi-
lar concern was expressed by the Chief
of the Game and Fisheries Division of
the Mississippi Game and Fish Commis-
sion in a letter on September 4, 1974, in
which he wrote that “ [ c]hanging and
conflicting land use practices, the effect
of highway construction and subsequent
residential and commercial developments
accelerated by construction, timber man-
agement practices, surface drainage and
absence of controlled burnings, have con-
tributed to deterioration of the cranes’
habitat” The Fish and Wildlife Service
wrote td’ ?e Ass?sta rt Chief Engineer
for Planning and Design of the MSHD
on September 19, 1974, expressing the
opinion that on the basis of available
information none of the MSHD’s pro-
posed projects would have any adverse
impacts on Fish and Wildlife Installa-
tions, except for the proposed 11,360 acre
refuge in Jackson County Echoing the
concern expressed in its letter of Novem-
ber 23. 1973, the Ser ice again told the
MSHD that it was “extremely interested
in close coordination involving all roads,
interstate interchanges, etc. in
the area” of the proposed refuge
The FHWA on October 29, 1974, ap.
pro ed and adopted a draft environmer
tal impact statement (DEIS) for the con-
struction of 1—10 from Highway 57 to
the Mississippi-Alabama state line. See
National Environmental Policy Act of
1969. Title 42, U.S.C., Section 4332(2Xc);
Title 23, U S C., Section 128. The
Department of Interior requested three
additional extensions of tune in which to
comment on the DEIS, because “the
project’s involvement with the proposed
Sandhill Crane National Wildlife Ref-
uge necessitated consultations
with [ the Department’s] Office
of the Solicitor.” The Director of Con-
servation of the State of Mississippi
Game and Fish Commission, however, in
a letter to MSHD conimenting on the
DEIS recommended that the plans and
specifications for the proposed segment
of 1—10 should exclude borrow pits 5
from any portion of Sections 15 and 16,
of Township 7 South, Range 7 West, in
addition to land under option by the Na-
ture Conservancy since “ [ e]xcavations
would lower the water table in immedi-
ate areas and take out much more good
crane habitat.”
The Final Environment Impact State-
ment. issued on March 10, 1975, incorpo-
rated the recommended changes of the
Mississippi Game and Fish Commission
as to the prohibition of borrow pits in
certain areas Final Environmental Im-
pact Statement Interstate Route No. 10,
Jackson County, Mississippi, at 31(1975)
(hereinafter FEIS). The FHWA,
MSHD, and the Department of Trans-
portation in the FEIS set forth the im-
pact of 1—10 on the Mississippi Sandhill
Crane and its habitat as follows in part:
“Environmental impacts will be both
negative and positive in nature. One
negative impact will be the crossing of
the nesting and feeding habitat of the
Mississippi Sandhill Crane, a threat-
ened [ sic] species. Impacts will result
from the taking of crane habitat and
from private de elopment which ac-
8. ; borro pit is the excavated area remaining
road construction
after earth has been removed for use as fill for
-------
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, . _ ‘I4 : , — .
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-
companies a new highway facility”
FEIS at Summary Sheet.
“B. DETRIMENTAL IMPACTS
To properly serve the Gulf Coast
area, construction of Interstate Route
No. 10 will necessarily have some de-
trimental effects. The most signifi.
cant impacts are encroachment on the
habitat of the Mississippi Sandhill
Crane and the crossing of the Pasca-
goula River Marsh.
The Threatened Wildlife of the
United States , a 1973 U.S. Fish and
Wildlife Services publication, states
that populations of the crane are de-
clining ‘chiefly because of reduction of
suitable habitat which is semi-open
and wet savannah by changing land
use including drainage, planting of
trees, suburban development, and
highway building.’ This section of In-
terstate Route No. 10 would commit
approximately 40 acres of the crane’s
best nesting and feeding range to
highway right of way. Other than
this loss of habitat, the direct effects
of a high way facility on the existence
of the crane are relatively unknown.
This is due to the fact that a major
highway has not been constructed
through their habitat area since the
species has fallen under such close
scrutiny.
The indirect effects of high way de-
velopment, specifically the effects of
residential and commercial develop-
ment, are known, howe ’ .. The crane
cannot survive in built-up areas, and a
certain amount of private development
will always accompany construction of
a major high way facility. This new
development within the crane’s habitat
is the most significant effect that is to
be feared. Unfortunately, the Missis-
sippi State Highway Department has
no control over private development
outside the highway right of way.
Another possible effect could be
caused by the highway drainage
ditches and structures.
365
There are, however, certain meas-
ures underway to lessen the impact of
the highway First of all, Interstate
Route No. 10 will be a full control of
access facility, thus restricting private
development to interchange and front-
age road areas only. Secondly, the
Nature Conservancy, in conjunction
with the U.S Fish and Wildlife Serv-
ice, is attempting to acquire several
thousand acres in Jackson County in
order to fori-n a Federal Refuge for
the Mississippi Sandhill Crane. Also,
the Gulf Regional Planning Commis-
sion has recognized certain areas for
resource conservation which include
the nesting areas for the crane.”
FELS at 23—24 (Emphasis added)
“The relative isolation of the crane
colony and the general poverty of the
soil in the area initially provided the
security required for the crane’s exist-
ence. This security has been threat-
ened by the forces of civilization, thus
bringing about a decrease in their
numbers. The most destructive force
on the crane, to date, has been timber
management . Although tim-
ber management is no longer practiced
in the habitat area, it did not cease
before thousands of acres of sa vannahs
and swamps were destroyed.
At the present time, the greatest
threats to the existence of the Missis-
sippi Sandhill Crane are private devel-
opment and the construction of Inter-
state Route No. 10. Unfortunately,
the Mississippi State Highway Depart-
ment has no control over private de-
velopment of privately owned land.
As for the construction of Interstate
Route No. 10, it is exceedingly diffi-
cult to assess the exact impact of the
highway on the crane. One direct ef-
fect will be the removal of approxi-
mately 180 acres from the crane’s
range; this includes approximately 40
acres of nesting and feeding range and
approximately 140 acres of roosting,
loafing, and feeding range. This loss,
NATIONAL WILDLIFE FEDERATION v. COLEMAN
Cue a _ _ 339 I96
-------
:p29 FEDER U. REI’ORTER. 2d SERIES
of a small amount of habitat and its
associated disturbance can be tolerat-
ed, according to a report prepared in
1963 by Jacob M Valentine, Jr. Wild-
life Management Biologist, Bureau of
Sport Fisheries and Wildlife Also,
drainage ditches associated ‘ith the
facility could affect the water table to
a slight degree. The soil on the savan-
nahs is predominately the poorly
drained Rains soil with the seasonally
high water table at the soil surface.
A lowering of the water table could
cause brushy vegetation to establish in
areas drained by these ditches. This
effect could possibly extend as far as
70 feet beyond the highway right of
way. It is felt that the primary ef-
fects of the highway will not come
from the physical existence of the fa-
cility but from the inherent develop-
ment which accompanies a new high-
way.
As for measures to minimize harm
caused by construction of the proposed
project, most of these are initiated due
to the design of the facility. Inter-
state Route No. 10 will be a full con-
trol of access facility, and the right of
way limits will be fenced. This will
preclude animal and pedestrian access
to the highway at the same time pre-
‘tenting general trespass into the
crane’s habitat. Because access to the
highway will be limited to interchang-
es and frontage roads, the facility
should effectively block the construc-
tion of other roads in this remote area.
This same fact will restrict develop-
ment to interchange and frontage road
areas, thus prohibiting development all
along the facility. This should help to
maintain the crane’s security” FEIS
at 26—31 (Emphasis added).
Subsequent to approval of the FEIS
by the Council on Environmental Quali-
ty, the NWF on March 21, 1975, rote to
appellee Tieman to express opposition to
the construction of 1—10 through the
habitat of the Mississippi Sandhill Crane
because of alleged violations of § 4(f)
and § 7. In this letter the NWF recom-
mended that the FHWA take no further
action on the construction of 1—10 in the
area of the crane’s habitat until the Sec-
retary of the Department of Interior and
the FHWA had discharged their respec-
ti e obligations under § 7, and until the
Secretary of Transportation had e aluat-
ed the applicability of § 4(f) to the
project. On April 3, 1975, the Deputy
Assistant Secretary of the Interior, Stan-
ley Doremus, wrote to appellee Shaw
commenting upon the FEIS and express-
ing the Interior Department’s opposition
to the project because of the potential
for adverse effects on the habitat of the
Mississippi Sandhill Crane. Further,
Deputy Assistant Secretary Doremus
stated the Interior Depai-tment’s concern
under § ‘7 for “interagency consideration
of possible project changes which may
avoid some of the adverse environmental
effects.” In relating the detrimental im-
pacts of the proposed route of 1—10 on
the crane, Doremus noted that every
acre of actual or potential habitat is vi-
tal to the survival of the crane and that
there would be a direct loss of at least
406 acres of habitat, rather than the 180
acre estimate in the FEIS, plus addition-
al direct loss of habitat resulting from
the excavation of borrow pits. Although
acknowledging that the MSHD has no
direct control over private development
outside of the highway right-of-way, Do-
remus stated that “the location of pri-
vate development is controlled by high-
way routing and placement of inter-
changes”, and, therefore, pointed out
that the exclusion of an interchange at
the Earl Bond Road “would retard com-
mercial and residential development
along this segment of the project”. Fi-
nally. in summary, three key items were
found by the Department of Interior to
warrant major consideration
“1. All possible route alignments and
designs ‘ hich avoid or minimize
adverse impacts on endangered
species habitat.
2 Elimination of the 1—10 inter-
change at Earl Bond Road (Gau-
tier-Vanclea e Road). and
366
.._+ , . ‘...
-------
3 Deletion from the proposed con.
struction plans of all borrow
pit/spoil areas along the right-of-
ay between (Highway] 57 and
Martin Bluff Road.”
The Department of Interior on April 25,
1975, again expressed it opposition to
the segment of 1—10 through Jackson
County on the ground that the FEIS
inadequately addressed the potential ad-
verse effects on the Mississippi Sandhill
Crane habitat.
The FHWA through appellee Shaw on
April 30, 1975. gave final appro al under
Title 23, U.S C.. Section 106(a) of the
plans, specifications, and estimates
(P.S.&E appro al) for the 5.7 mile sec-
tion of 1—10 in controversy On May 6,
1975, Curtis Bohlen, the Acting Assistant
Secretary of the Interior Department
wrote to appellee Tieman’
“To date, we are not aware that the
Federal Highway Administration has
instituted the necessary consultation
requirements under [ 7] of the En-
dangered Species Act. This letter is
to request that you initiate such con-
sultation. In addition, the Secretary
of Interior must make a determination
as to whether or not the habitat to be
affected by this project is critical to
the Mississippi sandhill crane. This
•. On Apr Il 22, 1975. the Department of interior
and the Department of Commerce published at
40 Fed Reg 17764—17765 the following inter-
pretation of “critical habitat” as it relates to
7 of the Endangered Species Act
“me term habitat’ could be considered to
consist of a spatial environment in which a
species lives and all elements of that envi-
ronment including land and water
area, physical structure and topography, flo-
ra, fauna. climate, human activity, and the
quality and chemical content of soil, water
and air
‘Critical habitat’ for any Endangered or
Threatened species could be the entire habi-
tat of any pornon thereof, if. and only if, any
constituent element is necessary to the nor-
mal needs or survival of that species”
•‘Actions by a Federal agency which result
in the destruction or modification of habitat
Considered ‘cntical habitat’ for a given En’
dangered species would not conS
form with section ?, t e Endangered Spe-
367
determination must be made before
the Federal High a Administration
will be able to fulfill the requirements
of [ 7] that is, to ensure that the
action authorized b you will not re-
sult in destruction or modification of
such habitat”
On May 23, 1975, the appellants filed
this suit in the district court. Although
the MSHD let a contract for the 5.7 mile
section in controversy on May 27, 1975,
submission of that contract to the
FHWA for approval was stayed pending
the trial of this action FHWA appro al
was gi’.en on August 5, 1975, and actual
construction t as begun on September 1,
1975, with a target completion date of
May 29, 1978
The day before the trial of this action,
June 25, 1975, the Director of the Fish
and Wildlife Sen ice issued pursuant to
Section 4(f) of the Endangered Species
Act of 1973, Title 16, U.s.c , Section
1533(fX2XB), an emergency determina-
tion of “critical habitat” for the Missis-
sippi Sandhill Crane.’ The “critical habi-
tat” as delineated in this determination
consists of approximately 100,000 ac ’es
in Jackson County and includes land
transected by the high a3’ project. The
designation of “critical habitat” for the
cranes became effective on publication
des Act , if such an action might be
expected to result in a reduction in the num
bers or distribution of that species of suffi.
cient magnitude to place the species in fur.
Iher jeopardy, or restrict the potential and
reasonable expansion or recovery of that
species. (Alpplication of the term ‘critical
habitat’ may not be restncted to the habitat
necessary for a minimum viable population
It is emphasized further that certain ac
tions may not be detrimental to ‘critical hab-
itat’ There may be many kinds of actions
which can be camed Out within the ‘critical
habitat’ of a species that would not be ex-
pected to result in such reduction in the
numbers or distribution or other ise ad-
versely affect such species”
The Fish and Wildlife Service published a
notice at 40 Fed Reg 21499—21501. \lay 16,
1975, to announce its intent to determine “crit-
ical habitat” for 108 endangered species, and
that the Service was interested in recei%,ng
data quickly on ten species, including the Mis-
sissippi Sandhill Crane
:- - ‘ :: ‘- “ “ ‘‘ ,-‘ , , .
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NATlON.. L V1LDL1 FE FEDERATION i.COLEMAN
Cue a 3 , 1) I- 2d ?,3 4 i19d
-------
368
29 FEDERAl. REI’ORTER, 2d SERIES
at 40 Fed.Reg. 27501—21502. June 30.
1975. The Fish and Wildlife Service
stated that the reasons for the emergen-
cy determination ere that “ [ t]he main-
tenance of significant portions of habitat
and the well-being of the crane are
threatened by construction of a new seg-
ment of Interstate Highway 1—10 be-
tween Mississippi State Highway 57 and
the Pascagoula River”, and that “ [ t]he
construction activities, destruction of
habitat, incidental intrusions, and subse-
quent related commercial and residential
development of the area all constitute a
significant risk to the well-being of the
crane”. 10 40 Fed.Reg. at 21502.
SECTION 4(f) OF THE DEPARTMENT
OF TRANSPORTATION ACT
Section 4(f) requires in part that the
Secretary of Transportation not approve
any project which requires the use of
publicly owned land from a park, recrea
tion area, or wildlife and waterfowl ref
uge of national, state, or local signifi-
cance or any land from an historic site of
national, state, or local significance un-
less the Secretary finds there is no feasi-
ble and prudent alternative to the use of
such land, and that all possible planning
10. The emergency determination of critical
habitat for the Mississippi Sandhill Crane re-
mained in effect for only 120 days following its
publication in the Federal Register Therefore,
the Fish and Wildlife Service on September 3,
1975, announced at 40 Fed Reg 40521—40522.
a proposal to amend 50 C.F R. Part 17 by add-
ing a new Subpart F thereto for “critical habi-
tats” and a new § 1780 thereunder which
would designate “critical habitat” for the Mis-
sissIppi Sandhlll Crane The Service requested
that all comiiienis on this proposed amend-
ment be received by the Service no later than
October 6. l975. This period was later extend-
ed to October 31, 1975 40 Fed Reg. 49348.
11. SectIon 4(f) of the Department of Transpor-
tation Act, Title 49. U S C. Section 1653(f)
provides in full
“It is hereby declared to be the national
.olicy that special effort should be made to
preserve the natural beauty of the country-
side and public park and recreation lands,
wildlife and waterfowl refuges, and historic
sites The Secretary of Transportation shall
cooperate and consult with the Secretaries
of the Interior, Housing and Urban Develop-
has been done to minimize harm to that
protected area. The appellants conten
that the district court erred in holding
that § 4(f) is inapplicable to certain
lands affected by the high ay project.
This holding b the district court was
based on two grounds. (i) that there are
no § 4(f) lands used by the 5 7 miles
segment of 1—10, and (ii) that an opinion
rendered by the Office of the Attorney
General of Mississippi that the lands in
question are not “publicly owned lands
from a public park, recreation area, or
wildlife and water fowl refuge” within
the meaning of § 4(f) was binding on the
Secretary of Transportation.
[ 1] Prior to our discussion of the ap-
plicability of § 4(f) to the project, we
address the issue of whether the district
court erred in holding that the opinion of
the Office of the Attorney General of
Mississippi was determinative of the ap-
plicability of § 4(f) and binding on
the Secretary of Transportation. ’ 2 This
court in Named Individual Members of
the San Antonio Conservation Society v.
The Texas Highway Department, 5 Cir.
1971, 446 F 2d 1013, cert. denied 1972
406 U S. 933, 92 S.Ct. 1775, 32 L.Ed.2.
136, stated that Congress in enacting
ment. and Agriculture, and with the States
in developing transportation plans and pro-
grams that include measures to maintain or
enhance the natural beauty of the lands tra-
versed After August 23, 1968, the Secre-
tary shall not approve any program or
project which requires the use of any public-
l owned land from a public park, recreation
area, or wildlife and waterfowl refuge of na-
tional, State. or local significance as deter-
mined by the Federal, State. or local officials
having jurisdiction thereof, or any land from
an historic site of national. State, or local
significance as so determined by such offi-
cials unless (I) there is no feasible and pru-
dent alternative to the use of such land, and
(2) such program includes all possible plan.
ning to minimize harm to such park, recrea-
tion area, wildlife and waterfowl refuge, or
historic site resulting from such use.”
Section 138 of the Federal-Aid Highway Act
of 1968. Title 23. U SC, Section 138. is virtu-
ally identical in language to § 4(f). and the
variances are inconsequential See Conf Rep.
No 1799, 90th Cong.. 2d Sess, U S.Code Cong.
& Admin News, pp 3531. 3538 (1968)
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§ 4(f) clearly “did not intend to leave the
decision whether federal funds would be
used to build highways through parks of
local significance up to the city councils
across the nation”. Id. at 1026. Similar-
ly, we find that the national policy “to
preserve wildlife and water-
fowl refuges” would be frustrated by
vesting in state or local officials having
jurisdiction over publicly owned lands to
be used for a federally funded highway
the authority to make a final and bind-
ing determination of local significance
A more reasonable and enlightened in-
terpretation of § 4(f) is that Congress
intended that the threshold determna-
tion of the significance and use of state
and local lands be made by those offi-
cials who are most likely to be aware of
its importance to the local community
and society Once the appropriate juris-
dictional officials, however, have made
the initial determination of whether po-
tentially protected § 4(f) lands are used
for one of the purposes enumerated and
are of national, state or local significance
that decision is reviewable and reversible
by the Secretary of Transportation. See
Environmental Defense Fund v. Brine-
gar, E.D.Pa.1974, 6 ERC 1577, 1593—94;
Harrisburg Coalition Against Ruining
the Environment v. Volpe, M.D.Pa.1971.
330 F.Supp. 918, 929.
The district court mistakenly relied
upon dicta in Pennsylvania Environmen-
tal Council, Inc. v. Bartlett, 3 Cir. 1971,
454 F.2d 613. 623. Section 4(f) on its
face gives the appropriate jurisdictional
official the power only to assess “signifi-
cance”, and the Supreme Court has stat-
ed that the legislative history of that
section indicates that the Secretary must
go beyond the information supplied by
state and local officials to reach “his
12. The appellants concede in this court that
the State of Mississippi holds title in trust for
the Jackson County School District to the Sec-
(ion 16 lands in controversy, see Miss Const
Art 8. Section 211. Jefferson Davis County v
Sinrall Lumber Co. Miss 1909. 94 Miss 530.
49 So 611. and that this confers on the State
Jurisdiction under § 4(f) 10 make the threshold
determination of whether this land is a wildlife
refuge of state or local significance
369
c ttn independent judgment” Citizens to
Preserve O’.’erton Park, Inc. t. Volpe,
1971, 401 L’ S 402, 412, n 28, 91 S.Ct.
814, 821. 28 L Ed 2d 136, 15l.’
The FEIS indicates that the Secretary
of Transportation and the Department
of Transportation fulfilled their duties
under § 4(f) by reviewing the opinion
rendered by the Office of the Attorney
General of Mississippi and concluding
that “ [ t]he project will not affect any
4(f) lands of any type”. FEIS at 47—48.
The appellants, however, assert that
§ 4(f) is applicable’ (i) to the Section 16
land since it is publicly owned land used
in fa..i ‘‘ uary by the Mississippi
Sandhill Crane, and (ii) to the land for-
merly held by the Nature Conservancy
at the request of the Fish and Wildlife
Serb ice for the creation of a refuge
which because of its actual use and bene-
ficial ownership should be considered
public land from a wildlife and water-
fowl refuge.
(2] Not all publicly owned land or
land used as a wildlife refuge is protect-
ed by § 4(f) Section 4(f) of the Depart-
ment of Transportation Act of 1966 orig-
inally provided’
“The Secretary shall cooperate and
consult with the Secretaries of the In-
terior, Housing and Urban Develop-
ment, and Agriculture, and with the
States in developing transportation
plans and programs that include meas-
ures to maintain or enhance the natu-
ral beauty of the lands traversed.
After the effective date of this Act,
the Secretary shall not approve any
program or project which requires the
use of any land from a public park.
recreation area, wildlife and waterfowl
refuge or historic site unless (1) there
13. The Third Circwt in Pennsylvania Environ.
mental Council, Inc v Bartlett. 454 F 2d at
622, n 10. quoted with approval a passage
from this court’s opinion in Named Individual
%lembers of the San Antonio Conservation So.
clet,v v The Texas Highway Commission. su.
pra. wherein we staled that the decision of
local officials “as not determinative of heth’
er federal funds would be used to build high.
a s through parks of local significance
NATIONAL WILDLIFE FEDERATION v. COLEMAN
Cup a. I’ 2d - ‘l ItI 6
529 F z —24
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: 29 FEDER ;L REI’ORTER, 2d SERIES
is no feasible and prudent alternative
to the use of such land, and (2) such
program includes all possible planning
to minimize harm to such park, recrea-
tional area, wildlife and v.aterfowl
refuge, or historic site resulting from
such use.” Pub.L 89—670, § 4, Oct. 15,
1966, 80 Stat. 933 (Emphasis added).
The Federal-Aid Highway Act of 1968,
§ 18(a), (b) amended § 4(f) ” by narrow-
ing the applicability of that section to
“publicly owned” land from a public
park, recreation area, or wildlife and
waterfowl refuge of national, State, or
local significance. The statute, however,
was not narrowed with respect to the
ownership of land from historic sites,
and the use of “any land” from an his-
toric site for a highway project irrespec-
tive of ownership continues to fall within
the ambit of § 4 (f). See note 11, supra.
Hence, after the 1968 amendment the
duty of the Secretary was restricted
with respect to parks, recreation areas,
and wildlife and waterfowl refuges.
Wildlife Preserves, Inc. v. Volpe, 3 Cir.
1971, 443 F2d 1273, 1214—75 Section
4(f) as amended is applicable only if two
conditions are satisfied by the land in
question: first, except for land from an
historic site, the land to be used by a
project must be publicly owned, and
second, the land must be from one of the
enumerated types of publicly owned
land, 1. e., a public park, recreational
area, or wildlife and waterfowl refuge.
See Id. at 1214—75: Citizens Environ-
ments) Council v. Volpe, D.Kan 1972, 364
14. The Federal.Aid Highway Act of 1968.
Pub L 90—495, § 18. Aug 23. 1968. 82 Stat
824. also amended § 4(f) by adding a declara.
tion of policy, and by narrowing the statute to
encompass only certain types of lands which
are determined to be of “national. State. or
local signthcance” Title 49, 1.1 S C. Section
1653(f). See note II supra and accompanying
text
13. The August 2, 1974. letter did not contrac-
tually bind the Fish and Wildlife Service to
purchase the land from the Conser- ancy
That letter specifically stated that acquisition
by the Service was contingent upon Congres.
sional funding, and that if such fundmg was
not forthcoming within a reasonable ume the
Conservancy could ‘take such action as is
F.Supp 286, 295, aff’d 10 Cir 1973, 48
F 2d 870, cert. denied 1974, 416 C S. 9 3t.
94 S.Ct. 1935, 40 L Ed,2d 286; Daly v.
Voipe, D.Wash 1972, 350 F Supp 252,
256, aff’d 9 Cir. 1974, 514 F 2d 1106.
None of the land in question satisfied
both of these conditions at the time of
trial.
[ 3] The Section 16 land held in trust
by the State of Mississippi although pub..
licly owned has never been designated or
administered, formally or informally, as
a wildlife refuge, or for any of the other
purposes enumerated in § 4(f). The land
acquired by the Nature Conservancy in
1974, although held for future use as a
wildlife refuge, was not publicly owned,
at the time the right-of-way for the
project was acquired, nor at the time
approval of plans, specifications and esti-
mates was given, the Construction con-
tracts were awarded, and construction on
the highway was begun. The letter of
August 2, 1974, from the Director of the
Fish and Wildlife Service to the Conserv-
ancy only proposed that the latter pur-
chase and hold lands in Jackson County
for possible future transfer to the serv
ice, if Congressional funding was obtain-
ed. Only if and when this future trans-
fer occurred, and only after the Fish and
Wildlife Service declared the land to be
a wildlife refuge through publication in
the Federal Register would the land
have satisfied both conditions to the ap-
plicability of § ..(f) IS The subsequent
transfer on November 25, 1975, of title
necessary to recover its investment, including
placing the property for sale on the open mar-
ket it no conservation purchaser could be
found” Further, the Department of Interior.
contrary to assertions of the appellants,
viewed that letter as no more than a request
that the Conservancy acquire the land and
that it did not vest in the Department an en
forceable property right in the lands so ac
quired Curtis Bohlen, the Deputy Assistant
Secretary for Fish, Wildlife and Parks of the
Department of Intenor stated in a deposition
filed in the district court that the Department
was only “morally obligated” and not ‘legally
obligated” to purchase the land from the Con.
servancy
370
“1’
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. .: •. .
-‘ , , .. ..
-— . c:’.’ -__ : ._ •- :“ •‘• .
. -J-k 4
to 1,708 acres of this land to the Service
hy the Conservancy occurred after con-
struction on the highway had begun, and
could not of course make § 4(f) applica-
ble after the fact.
In summary, we hold that the district
court did not err in finding that the 5.7
mile section of 1—10 will not use any
“publicly owned land from a public park,
recreation area, or wildlife and water-
fowl refuge” in Jackson County. Missis-
sippi. Therefore, the Secretary of
Transportation was not required, prior to
approving the project, to find that there
was no feasible and prudent alternative
to the use of the land in question and
that th program included all possible
planning to minimize harm to the sanc-
tuary of the Mississippi Sandhill Crane.
Further, since no § 4(f) lands were used
by the project the Secretary was not re-
quired to reach his own judgment with
respect to the “national, State, or local
significance” of the lands traversed by
the highway.
SECTION 7 OF THE 1A GERED
SPECIES ACT OF 1973
(4, 51 Section 7 of the Endangered
Species Act of 1973 imposes on Federal
agencies the duty to “insure that actions
authorized, funded, or carried out” by
them do not jeopardize the continued ex-
16. Section 7 of the Endangered Species Act or
1973. Title 16. U S C. Section 1536 provides in
full.
“The Secretary shall review other pro.
grams administered by him and utilize such
programs in furtherance of the purposes of
this chapter AU other Federal departments
and agencies shall, in consultation with and
with the assictance of the Secretary, utilize
their authorities in furtherance of the pur-
poses of this chapter by carrying out pro-
grams for the conser ation of endangered
species and threatened species listed pursu.
ant to section 1533 oF this title and by taking
such action necessary to insure that actions
authorized, funded, or carned out by them
do not jeopardize the continued existence of
such endangered species and threatened spa.
cies or result in the destruction or modifica-
tiOn of habitat of such species which is de-
termined by the Secretary, after consultation
371
istence of any endangered species or re-
sult in the destruction or modification of
habitat of such species which the Secre-
tary of Interior determines to be
critical)’ Hence, § 7 imposes on federal
agencies the mandatory duty to insure
that their actions will not either (i) jeop-
ardize the existence of an endangered
species, or (ii) destroy or modify critical
habitat of an endangered species. 1 ’ The
primary responsibility for implementing
§ 7 is on the Secretary of Interior. Fed-
eral agencies are required to consult and
obtain the assistance of the Secretary
before taking any actions which may af-
fect endangered species or critical habi-
tat. However, once an agency has had
meaningful consultation with the Secre-
tary of Interior concerning actions which
may affect an endangered species the
final decision of whether or not to pro-
ceed with the action lies with the agency
itself. Section 7 does not give the
Department of Interior a veto over the
actions of other federal agencies, provid-
ed that the required consultation has oc-
curred. It follows that after consulting
with the Secretary the federal agency
involved must determine whether it has
taken all necessary action to insure that
its actions will not jeopardize the contin-
ued existence of an endangered species
or destroy or modify habitat critical to
the existence of the species.” Once that
as appropriate with the affected States, to
be cntical.”
17. The House Report on the Act emphasizes
the mandatory nature of the duty imposed on
federal agencies
“This subsection requires that
agencies take the necessary action that wiU
not jeopardize the continued existence of en-
dangered species or result in the destruction
of critical habitat of those species” H.Rep.
No 93—412. 94rd Cong., 1st Sess.
18. See remarks of Senator Tunney, floor man-
ager of the bill in the U S Senate
‘So, as I read the language (of § 7), there
has to be consultation However, the Bu-
reau of Public Roads or any other agency
would have the final decision as to whether
such a road should be built That is my
interpretation of the legislation at any rate,”
119 Cong Rec, S 14536 (July 24. 1973)
NATIONAL WILDLIFE FEDERATION v- COLEMAN
Cij, _ ’9F2d3 lii’J (ji
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529 FEDERAl. REPORTEH. 2d SERIES
decision is made it is then subject to
judicial review to ascertain whether “the
decision was based on a consideration of
the rele ant factors and whether there
has been a clear error of judgment”
Citizens to Presor%e O ’erton Park, Inc.
v Volpe, supra, 401 U.S. at 416, 91 S.Ct.
at 824, 28 L Ed.2d at 153. See Title 16,
U S.C., Section 1540(g).
[ 6] In the present case the appellants
have the burden of proving that the ap-
pellees have failed to take the “action
necessary to insure” that the 5.7 mile
segment of 1—10 does not jeopardize the
continued existence of the Mississippi
Sandhill Crane or will not destroy or
modify habitat determined by the
Department of Interior to be cntical to
the cranes’ existence. The court below
held that the appellants had failed to
meet this burden because the evidence
showed that “the defendants have ade-
quately considered the effects of this
project on the Crane”. National WJ!dl fq
Federation v. olernan, supra, 41)0
F.Supp. at 712. Further, the district
court found that the FEIS and other
documents from the administrative
records of the appellees which tended to
show that 1—10 may be a threat to the
continued existence of the cranes “mere-
ly reflect opinions of the effect of the
highway on the Crane without specifying
facts upon which they are based”. Id. at
711. With respect to the appellants’ al-
legation that private development BC.
companying the construction of 1—10 will
jeopardize the existence of the cranes
and result in the destruction of critical
habitat, the district court found that
“the record . is totally devoid
of any statement or opinion rising above
mere speculation to indicate that such
development will occur or is even likely
to occur”. Id. at 712.
The evidence to which the district
court attached particular significance
was the testimony of appellants’ witness
Jacob Valentine, the author of the 1963
report on the crane, supra, and the coun-
try’s foremost expert on the crane. On
direct examination, Valentine testified
that every a’re of habitat is vital to the
cranes’ existence, and that the construc-
tion of 1—10 as planned will put the ex-
istence of the cranes in jeopardy. The
construction of the highway will in Val-
entine’s opinion result in the direct loss
of approximately 300 acres of habitat
taken as right-of-way. The direct loss of
this 300 acres according to Valentine
would not deny the cranes space for nor-
mal growth, movements, or territorial
behavior. But Valentine continued that
additional loss of habitat would result
from the physical presence of borrow
pits, and by the resultant drainage of
wetlands caused by the excavation of
borrow pits. He expressed concern also
about the loss of habitat i esulting from
noise, vibratory disturbance, and pollu-
tion from highway construction and traf-
fic, although no tests had been conduct-
ed to determine their effect on the
cranes. Valentine testified that his
views had changed since 1963, and that
‘ he main effect of the highway so far as
the crane is concerned is the stimulation
of private development which will be in-
duced by the construction of this seg-
ment of 1—10. Valentine testified in this
regard that the single most destructive
aspect of the highway to the Crane and
its habitat was the proposed interchange
at the Earl Bond Road, which would
generate development in the cranes’ hab-
itat. Concerning his conclusion in the
1963 report that timber management
was the most imminent threat to the
Crane, Valentine testified that headway
has been made in reaching an agreement
on a habitat management plan with pa-
per companies operating in the area. In
addition, Valentine stated that he now
believes that the crane could withstand
the dangers of timber management if
1—10 were not constructed. Most impor-
tant to the survival of the crane in Val-
entine’s opinion would be the creation of
a refuge in Jackson County. He testi-
fied also that the FHWA should be re-
quired to purchase land to replace habi-
tat taken by the highway. Finally, Val.
entine stated that in addition to the cre-
372
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• S.. - • . - ‘‘ : . --
• - ‘ -. - . 5 S
- S •. .. -.
r’ . . . a’ fl ‘
& 5- •‘:
ation of a refuge the most important
things to be done to save the crane from
extinction are the elimination of the in-
terchange at the Earl Bond Road and of
borrow pits from sensitive crane habitat.
Valentine’s concern for the effects of
the highway on the crane and its habitat
substantially echoed the views of the
Department of Interior and the Fish and
Wildlife Service as expressed in their
correspondence with the FHWA and
MSHD. Those agencies have since 1973
expressed opposition to the project be-
cause of the potential for adverse effects
on the habitat of the crane. Further,
the modifications in the project recom-
mended by Valentine are identical to
those items which the Interior Depart-
ment found to warrant “major consider-
ation”. The extent of the Department
of Interior’s concern for the effects of
the project on the crane is evidenced by
its “Emergency Determination of Crit-
ical Habitat for the Mississippi Sandhill
Crane”, note 9, supra, and accompanying
text. The express justification for this
emergency was the construction of this
segment of 1—10 which threatened “the
well-being of the crane”. 40 Fed.Reg. at
27502.
[ 7] In holding that the appeltees have
“adequately considered” the effects of
the highway on the crane, the district
court misconstrued the directive of § 7.
As we have pointed out, § 7 imposes on
all federal agencies the mandatory obli-
gation to insure that any action autho-
rized, funded, or carried out by them
does not jeopardize the existence of an
endangered species or destroy critical
habitat of such species. See text accom-
panying note 16 supra. Although the
FEIS and the administrative record indi-
cates that the appellees have recognized
and considered the danger the highway
poses to the crane, they have failed to
take the necessary steps “to insure” that
the highway will not jeopardize the
crane or modify its habitat.
The district court placed undue em-
phasis on Valentine’s estimate of the di-
373
rect loss of only 300 acres of habitat
taken b highway right-of-way All of
the e idence indicates that the 5 7 mile
segment of 1—10 will undoubtably affect
the crane and its habitat in addition to
the mere taking of 300 acres of right-of-
way. The relevant consideration is the
total impact of the highway on the
crane. As the D.C. Circuit has noted, “a
far more subtle calculation than merely
totaling the number of acres to be as-
phalted” is required where the environ-
mental impact of a project is at issue.
D C Federation of Civic Associations v.
Vo!pe, 1912, 148 U.S.App.D.C 207, 459
F 2d 1231, 1239. Cf. Brooks v. Volpe, 9
Cir. 1972, 460 F.2d 1193, 1194. Although
it is clear that the crane can survive the
direct loss of 300 acres of habitat, the
evidence, including the FEIS, shows that
it is questionable whether the crane can
survive the additional loss of habitat
caused by the indirect effects of the
highway, coupled with the excavation of
and drainage caused by borrow pits.
[ 8] Principal among the indirect ef-
fects of the highway on the crane is the
residential and commercial development
that can be expected to result from the
construction of the highway. The dis-
trict court found that the record con-
tained no statement or opinion rising
above “mere speculation” to indicate
that such development is likely to occur.
We disagree. In addition to the testimo-
ny of Valentine and the letters from the
Department of Interior and the Fish and
Wildlife Service, the FEIS acknowledges
in three places that private development
always accompanies the construction of a
major highway and that this develop-
ment is the primary effect of 1—10 on
the crane. FEIS, supra. Further, the
Department of Housing and Urban De-
‘elopment in a letter to the MSHD com-
menting on the FEIS stated that con-
struction of this segment of 1—10 “will
bring with it a concentration of urban
growth around interchanges and other
selected areas”. FEIS at 93. These pre-
dictions by the FHWA, the MSHD, and
HLD, agencies experienced in highway
NATIONAL WILDLIFE FEDERATION v. COLEMAN
(SITe 1. 32 ’ F 2d 3 ’9 u ;;
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‘ _ FEDER .‘ l. REPORTER, 2d SERIES
and urban development, recognize that
private de elopment. ill accompany the
construction of 1—10 in Jackson County.
The fact that the private development
surrounding the high ay and the Earl
Bond Road interchange does not result
from direct federal action does not lessen
the appellee’s duty under § 7. Cf. City
of Davis v Coleman, 9 Cir 1975, 521
F 2d 661, 677, National Forest Preserva-
t.ion Group v. Butz, 9 Cir. 1973, 485 F.2d
408, 411—12. The appellees do control
this development to the extent that they
control the placement of the highway
and interchanges.
[ 9, 10] The federal appellees contend
that the decision to build the highway
was made on the assumption that the
Fish and Wildlife Service would acquire
a refuge for the crane, and that the Gulf
Regional Planning Commission had rec-
ognized certain areas for conservation in
Jackson County. The FHWA believed
that these measures would lessen the im-
pact of the highway on the crane. This
reliance on the proposed actions of other
agencies does not satisfy the FHWA’s
burden of insuring that its actions will
not jeopardize the continued existence of
the crane Further, even if these actions
were taken, the Department of Interior
has determined that approximately 100,-
000 acres of habitat in Jackson County is
critical within the meaning of § 7,
whereas the refuge proposed by the Fish
dnc W ii Sf v ice. contains only 11,300
acres, note 4, supra, and accompanying
text. The appellees argue that their
concern for the crane is also demonstrat-
ed by the fact that the highway will
19. We note in this regard that the district
court erred in its finding that the route of the
highway has clearly been chosen to pass
through the smallest part of the Crane’s hat,s .
tal and nesting area’ National Wildlife Fed-
eration v Coleman. supra, 400 F Supp at 712
(emphasis added) The h1gh ta% will pass
through the narrot est point of the proposed
refuge
20. The statement by the distnct court. 405
F Supp at 711. which e deem a cnt ical find.
ing. that Valentine “repeated1 stated that the
main threats to the contmued existence of the
Crane are poor umber management.
housing and industnal development
cross the proposed refuge at its narrow-
est point 19 Under § 7, ho e er. the
etant consideration is the area det4..
mined h) the Secretary of Interior as
“critical habitat’ for the crane, note 9,
supra, and accompanying te ct The Sec-
retary has delineated an area of 100,000
acres in Jackson County as “critical habi-
tat” under § I for the Mississippi Sand-
hill Crane, and the prop. sed segment of
1—10 traverses an extensive portion of
this 100,000 acres. 40 Fed Reg 21501—
27502. The duty of the appellees is to
insure that their actions will not destroy
or modify this “critical habitat”, and not
just the area within the habitat of the
crane to be set aside as a refuge.
[ 11] Similarly, the fact that timber
management practices have in the past
destroyed habitat of the crane does not
lessen the duty of the appellees to insure
that the highway and the accompanying
private development do not jeopardize
the existence of the crane or destroy
critical habitat. We note that the ap-
pellees’ FEIS states that at “the present
time the greatest threats to the exist-
ence of the Mississippi ‘Sandhill Crane
are private development and the
struction of Interstate Route No. L
FEIS at 26. Hence, irrespectite of the
past actions of others the appellees have
a duty to insure that the highway and
the development generated by it do not
further threaten the crane and its habi-
tat.
Finally, it is beyond question from the
record that the excavation of borrow pits
within the area determined by the Secre-
tary of Interior to be “critical habitat”
and 1—10, in that order” is not borne out by
the record Valentine testified that timber
management has been a major danger to the
crane, and that in 1963 he considered It the
most important potential danger to the crane
Record at 44—45 Further, while at :he time of
trial Valentine was of the opinion that timber.
lands within the habitat of the crane were not
being properly managed, he further testified
that certain actions had been taken by the
paper companies to safeguard the habitat of
the crane, and that consultations between the
Fish and Wildlife Service and the paper com-
panies were continuing Record at 87—89
374
. I.
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p•. -
L •: . ‘-
-. . -
i L , ‘ , . -
.! • . . -.
- - a ’
for the crane will destroy and modify
that habitat, in violation of § 7 The
appellees assert that the FEIS recog-
nized the potential danger of borrow pits
to the habitat of the crane, and that the
contract plans and specifications for the
highway prohibit the forming of borrow
pits from any land under option by the
Nature Conservancy and in Sections 15
and 16, Township 7 South. Range 7
West. FEIS at 31. The prohibition of
borrow pits in these areas, however, does
not satisfy the directive of § 7, since it
does not prohibit the excavation of bor-
row pits in the entire 100,000 acres of
habitat determined to be “critical” by
the Secretary.
RELIEF
The appellants do not seek a perma-
nent injunction against the construction
of the highway. Rather they seek only
that an injunction issue until such
changes are made in the project as will
enable the Secretary of the Department
of Interior to conclude that the project
will not jeopardize the continued exist-
ence of the Mississippi Sandhill Crane, or
destroy or modify critical habitat of the
crane. The modifications in the project
which the appellants contend will bring
the highway into compliance with § 7
are: (i) the elimination of the Earl Bond
Road interchange, (ii) the elimination of
borrow pits in the area determined to be
critical habitat, and (iii) the acquisition
of land by the FHWA to mitigate the
loss of critical habitat taken by the high-
way.
[ 12, 13] Because t . Department of
Interior has primary jurisdiction for ad-
ministering the Endangered Species Act,
and the subject matter of this lawsuit is
within the specialized field of the
Department we defer to its determina-
tion of what modifications are necessary
to bring the highway project into compli-
21. The complaint filed by the appellants in the
district court did not allege that the State ap-
pellee had violated § 7 Hence, the State ap.
pellee contends that the ruling of the distnct
court cannot be overturned insofar as it con-
cerns the State appeiiee The State of Missis’
sippi. however, voluntanly sought federal
375
ance with § 7. Therefore, ‘. e direct the
district court on remand to enter its in-
junctive order restraining and enjoining
the appellees as follows’
(a) From initiating or carrying out
any further work or incurring any fur-
ther contractual obligations with re-
spect to the interchange at the Earl
Bond Road,
(b) From excavating any borrow pits
in the area determined to be critical
habitat for the Mississippi Sandhill
Crane under the notice published on
June 30, 1975, at 40 Fed.Reg. 27501—
27502.
This injunction is to remain in force un-
til the Secretary of the Department of
Interior determines that the necessary
modifications are made in the highway
project to insure that it will no longer
jeopardize the continued existence of the
Mississippi Sandhill Crane or destroy or
modify critical habitat of the Mississippi
Sandhill Crane. 21 We do not reach a
decision as to hether the FH VA can be
ordered to acquire land to replace that
taken by the Highway project, since e
are confident that the Secretary of
Transportation and the Secretary of In-
terior will take all actions necessary on
remand to protect the continued exist-
ence of the Mississippi Sandhill Crane
and its habitat.
Reversed and remanded with di-
rections.
See Appendix A on next page.
ON PETITION FOR REHEARING
PER CURIAM
IT IS ORDERED that the petition for
rehearing of William T. Coleman joined
by the remaining federal deferidants-ap-
pellees filed in the abo e entitled and
numbered cause be and the same is here-
b DENIED.
funding for this project, and thereby submitted
itself to federal law, including 7 of the En.
dangered Species Act See ‘.‘amed indiv idual
?embers of the San Antonio Conseri’at,on So-
c,etv v Texas Highway Dept. supra. at 1027—
28
NATIONAL WILDLIFE FEDERATION .COLEMAN
Cue a 3 F 2d I 196 1
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102
tions to. 4 deration nlust address new
evidenc n a of law or fact and cannot
merely reargue previous factual and legal
assertions.” Mississippi Aas’n of Coops. t ’.
Fanners Home Athnin., 139 F.R.D. 542. 546
(D.DC.1991). In this case, as the Defendant
notes in its Opposition, the Plaintiff is merely
attempting to reargue the same position re-
jected by this Court in its Opinion of April
29, 1993. Sec Defendant’s Opp’n at 4. At
that time, the Court considered the JFK Act
in its entirety and made a determination that
the Act does not supersede FOIA or provide
an Independent means of obtaining records
directly from government agencies. See
Opinion at 10—13.
[ 41 The Plaintiffs reliance on Section
5(c)(2XG) is unfounded. Section 5 of the
JFK Act requires government agencies to
review, ldentil r, and transmit to the National
Archives those records that relate to the
JFK assassination. In addition, section 5
requires agencies to “give pnonty to ... the
identification, review, and transmission” of
those records cunnntly the subject of FOZA
litigation. * 5(c)(2)(GXii). However, noth-
ing in the new statute requires or even sug-
gests that the standards the Archivist wlU
use in releasing JFK materIal should replace
the preexisting FOIA exemptions.
151 The Plaintiff argues that the Court
should look to the legislative history of the
JFK Act However, the Court need hot
consider the legislative history of a statute
unless the plain meaning of the language is
ambiguous. See &g., Burlington N. RR a
Oklahoma Tax Comm’; 481 U.S. 454, 461,
107 S.Ct. 1855, 1859, 95 L.Ed.2d 404 (1987).
In this case, the language of the JFK Act is
unambiguous and a resort to the legislative
history is unnecessary. Furthermore, the
Court’s conclusions would not change even in
light of the relevant legislative history.
There is simply no indication that Congress
intended (or the JFK Act to supersede
FOIL See S.Rep. No.328, 102d Cong., 2d
Seas. 29 (1992), U.S.Code Cong. & M-
mln.News pp. 2966, 2978. Rather, the legis-
lative history merely provides that., of the
records to be reviewed for possible disclosure
and transmission to the National Archives,
those records which are the subject of pend-
ing FOIA litigation are to be reviewed first.
See id. The legislative history thus suppor t s
the Court’s prior determination that the JFK
Act does not affect the existing law applica-
ble to FOLA requests, nor does it provide a
new cause of action for the direct release of
agency records to the public. See Opinion at
10-13.
Finally, the Court notes that the First
Circuit recently relied upon this Court’s
Opinion in reaching a similar result in S,illi-
van v. CIA, 992 F.2d 1249 (1st Cir.1993). In
Sullivan, the Court of Appeals for the First
Circuit held that the JFK Act did not affect
the Plaintiffs pending FOIA litigation. Id.
at 14—16. Thus, in light of the above, the
Court must deny the Plaintiffs Motion for
Reconsideration.
Accordingly, it is, by the Court, this 10th
day of August, 1993,
ORDERED that Plaintiff’s Motion for Re-
consideration shall be, and hereby is, DE-
NIED.
The BAYS’ LEGAL FUND,
et aL, Plaintiff., -
V.
Carol BROWNER, Administrator of the
U.S. Environmental Protection
Agency, et al., Defendants.
GREENWORLD, INC. and Richard
Strahan, Plaintiff.,
V.
Ronald BROWN, Secretary of the U .S.
Department of Commerce, et al,
Defendants.
C lv. A. No.. 93-10883-MA, 93-10623-MA.
United States District Court,
D. Massachusetts.
July 23, 1993.
Citizens groups sought to enjoin con-
strucdon of effluent discharge tunnel. The
L Federal Civil Procedure 8.1
Court would consolidate motion for pre-
linilnary injunction with formal review of
merits of claims, where record was complete
and ripe for review, evidence reasonably ad-
mitted of only one possible outcome, and
decision on merits would not necessarily fore-
close further debate. Fed.Rules Civ.Proe.
Rule 65(aX2), 28 U.S.C.A.
2. AdmInistrative Law and Procedure
788, 790
Fish 12 .i,.
Came €‘3
Reviewing court must uphold adininis-
trative action of agency under Endangered
Species Act If agency considered relevant
factors and articulated rational connection
between facts found and choice made. En-
dangered Species Act of 1973, II 2 et seq.,
7(aX2), 16 U.S.C.A. *51531 et seq.,
1536(a)(2); 5 U.S.C.A. S 706(2)(A).
3. AdministratIve Law and Procedure
755
Fish 12
Game ‘S
In reviewing agency action under En-
dangered Spades Act, if there is factual dis-
pute, involving issues of science, which impli-
cates agency expertise, deference i owed to
informed decision making of agency. Endan-
gered Species Act of 1973, 5* 2 et seq.,
7(aX2), 16 U.S.C.A. II 1531 et seq.,
1536(aX2); 5 US.C.A. S 706(2XA).
4. AdministratIve Law and Procedure
676
Fish 12
Game ‘3b
Scope of review of agency decision under
Endangered Species Act Is confined to ad-
ministrative record already in existence and
may not extend to some new record prepared
in anticipation of litigation. Endangered
Species Act of 1973, ** 2 et seq., 7(a)(2), 16
&S ’ish 12
I.aches did not bar citizen suit in which
it was alleged that federal authorization of
tunnel project violated Endangered Species.
Act. Endangered Species Act of 1973, 5* 2
et seq., 7(a)(2), 16 U.S.C.A. ft 1531 at seq.,
1636(aX2). ‘I.
7. Fish 12
Federal authorization.for tunnel project
did not violate Endangered Species Act; de-
spIte concerns about effects of potentially
Increased levels of nutrients and toxic sub-
stances in bays, extensive environmental im-
pact statements established no likelihood of
harm to endangered species from construc-
tion or operation of municipal sewerage out.-
fall tunnel to carry treated effluent through
ocean floor for discharge into bays. Endan-
gered Species Act of 1973, *5 2 et seq.,
7(a)(2), 16 U.S.C.A. ft 1531 et seq.,
1536(aX2).
&Fiah 12
Environmental Protection’ Agency
(EPA) completed biological assessment re-
quired under Endangered Species Act before
construction began on tunnel project; taken
together, draft supplemental environmental
impact statement and final supplemental en-
vironmental impact statement satisfied bio-.
logical assessment requirement Endan-
gered Species Act of 1973, * 7(c), 16
U.S.C.A. * 1536(c).
9. Fish ‘12
Even If construction of tunnel project
began - before Environmental Protection
Agency (EPA) completed biological assess-
ment required under Endangered Species
Act, court would not order tenninatlon of
tunnel project, absent evidence of threat to
endangered spedes to halt project simply
828 FEDERAL SUPPLEMENT
Judgment for defendants.
BAYS’ LEGAL FUND v. BROWNER
C li , — $25 F.Supp. 102 (D.M.. 1593)
t Court, Mazzone, J., held that federal U.S.C.A. 5* 1531 et seq., 1538(aX2]
eit rlzation of construction of effluent dls- US.C.A. S 706(2XA).
charge tunnel did not violate federal environ-
mental laws. 5. Health and Environment 25i5(5)
Ladies is disfavored defense In environ-
mental litigation since plaintiff is generally
‘not sole victim of environmental damage and
since citizens have right to assume that offi-
dais will comply with environmental laws.
4,’.
.: -.
-------
104
for alleged violation of procedure would exalt
form over substance under the circum-
stances. Endangered Species Act of 1973,
4 7(c), 16 U.S.C_A. § 1536(c).
10. Fish 12
Construction of tunnel project did not
violate Endangered Species Act, even though
formal biological opinion had not yet been
Issued: Endangered Species Act required
completion of biological assessment before
construction could begin, but not completion
of biological opinion. Endangered Species
Act of 1973, * 7(e), 16 U.S.C_A. 5 1536 (c).
1L Fish ‘12
Decision of Environmental Protection
Agency (EPA) and Army Corps of Engineers
(ACOE), that continued construction of ef-
fluent discharge tunnel project would not
preclude development of ecologically safer
discharge alternative in violation of Endan-
gered Species Act, was not arbitrary or ca-
pricious in light of evidence that tunnel could
be incorporated into several alternative dis-
charge approaches If the tunnel were ulti-
mately deemed to be a threat to endangered
species. Endangered Species Act of 1973,
* 7(d), 16 U.S.C_A. * 1536(d).
12. Health and Environment 25 .10(5)
National Environmental Policy Act
(NEPA) does not require agency to supply
convincing statement of reasons that pro-
posed action will not have significant impact
on endangered species unless agency does
not prepare formal environmental impact
statement National Environmental Policy
Act of 1969, 4 2 et seq., 42 U.S.C_A. * 4321
et seq.
13. Fish 12
Construction of effluent discharge tunnel
did not violate Marine Mammal Protection
I. A full list of the plaintiffs also Includes Richard
Strahan. Joining Greenworid. Inc. and Stop the
Outfall Pipe. Dolphin Fleet of Provincetown, In-
ternational Wildlife Coalition, The Fund for Ani-
mals. Inc. and Nancy Church. joIning Bays’ Le-
al Fund.
2. The Full list of defendants also includes Paul
Keough, RegIonal Director (Region One) of the
U S. Environmental Protection Agency. William
Fox, Acting Assistant Administrator of the Na-
tional Marine Fishenes Service, Richard Roe,
Act; although there had not been any ex-
press finding that tunnel would have zero
Impact on marine mammals, there was no
evidence of any likelihood that construction
and use of tunnel would disturb marine mam-
mals. Marine Mammal Protection Act of
1972, § 1O1(a)(3)(B), 16 U.S.C.A.
4 1371(aX3)(B).
14. Fish 12
There is no “negligible Impact” excep-
tion to Marine Mammal Protections Act In
cases in which taking of marine mammals Is
certain to occur. Marine Mammal Protection
Act of 1972, 4 1O1(a)(3)(B), 16 U.S.C-A.
4 1371(a)(3)(B).
Eric B, Glitaenstein, Katherine A. Meyer,
Meyer & Glitzenstein, Washington, DC,
Richard G. Barry, Hyannis, MA, for plain-
tiffs.
George B. Henderson, II , George B.
Henderson, U.S. Att s Office, Boston. MA,
Elinor Colburn, Dept. of Justice, Washing-
ton, DC, Douglas Wilkins, Office of Atty.
Gen., Crini, Bureau, Mary C. Connaughton,
Atty. General’s Office, Boston, MA, for de-
fendanta.
Theodore Smayda, amicus, pro as.
Charles A. Mayo, III, Sr., amicus, pro se.
OPINION
MAZZONE, District Judge.
(11 The plaintiffs, Bays’ Legal Fund and
Greenworld, Inc., t requested that this Court
issue a preliminary injunction ordering the
defendants. Carol Browner, Secretary of the
U.S. Environmental Protection Agency, and
Ronald Brown. Secretary of the U.S. Depart’-
ment of Commerce, 5 to take the necessary
actions to discontinue construction of a mu
Regional Director of the National Marine Fisher-
ies Service, Daniel Greenbaum. Commissioner of
the Massachusetts Department of Environmenlal
Protection. Lieutenant General Arthur E
Williams. Director of the U S. Army Corps of
Engineers, Colonel Bnnk P Miller. Regional Di-
rector (New England) of the U S. Anny Corps c i
Engineers, and Douglas MacDonald, ExecUUVC
Director of the Massachusetts Water Resources
Authority. -
The importance of this litigation and our
nation’s laws to protect endangered species
cannot be overstated. As Congress has stat-
ed on the significance of endangered species
legislation:
From the most narrow possible point of
view, it is In the best Interests of mankind
to minimize the losseg of genetic varia-
tions. The reason Ia simple: they are
potential resources. They are keys topuz-
ales which we cannot solve, and may pro-
vide answers to questions which we have
not yet learned to ask.
Report of the House Committee on Merchant
Marine and Fisheries, H.R .Rep. No.93-413,
pp.4—5(1973). Ibeginbysetungfortj th 5 .
(actual background of this case.
I. Factual Summary
In 1985, the United States and the Conser-
ration Law Foundation sued the Meb’opoli-
tan District Comn’ission. See Unitaf States
a. Metropolitan Dj grj g Commission, et aL,
(Civil Action No. 85-0489_MA) and Consei ’.
biological opinion raises some question or differs
with the environmental position taken by the
defendants, the issues can be reactivated and
readdressed in light of whatever contribution is
made by the NMFS opinion.
4. These species have been “listed” as endangered
pursuant to the Endangered Species Act, and are
sometimes referred to in this Order as ‘the listed
specie,.” Of these species, the EPA has focused
Its research attention on the right, humpback
and fin whales and the Kemp’s sidle 7 , leather-
back and loggerhead turtles, because they ate
frequently observed in inshore waters, Including
the area of the proposed outfall. 1993 BA, at
ES-4. In addition to the listed species, there are
two threatened species in the bays—the logger-
head and green turtles. Id.
828 FEDERAL SUPPLEMENT
BAYS’ LEGAL FUND v. BROWNER 105
Cite as 525 PSupp . 502 (DMw 1993)
nidpal sewerage dischdrge tunnel. The valion Law Fotsndation a. Metropolitan Dig-
plaintiffs’ request was based on allegations filet Commission, et aL, (Civil Action No.
that the defendants had violated federal env- 83—1614—MA), As a result of this, litigation,
ronmentaj laws and regulations designed to this Court ordered the Metropolitan District
protect endangered species in the Massachu- Commission to limit the dumping of raw
setts and Cape Cod bays and throughout the sewerage Into Boston Harbor and to bring It,
nation. Because the record in this case Is as well as the Mseaacbusett and Cape Cod
essentially complete, thIs Court, pursuant to bays (“the bays”), Into compliance with the
Fed.R.Civ.P. 65(a)(2), hereby consoljdate standard of the Clean Water Act, 93 U.S.C.
the plaintiffs’ motions for preliminary Injunc- * 1251, at seq. (1988).
tion with a formal review of the merits of the Since then, the defendants have been en-
plaintiffs’ darnia. 5 gaged In the cleanup of these waters, To
that end, they have been permitting, design-
ing, 1 inding, constructing and operating the
necessary treatment facilities. A central
component of the cleanup strategy Is the
construction of an outfall tunnel, which, when,
operational, will carry treated effluent nine
At
Its mouth, diffusers will discharge the treated
effluent into the bays,
‘Inhabiting these bay waters are a number
of endangered species, Including the right,
whale, humpback whale, fin whale, aol whale
and blue whale, and the Kemp’s ridley turtle,
leatherback turtle and hawkabifl turtle, En-,
vironmentaj Protection Agency, Assessnieng
of Potential Impact of the MWRA Outjbll on
Endangered Specie& Executive Summan,,
at ES—4 (April 23, 1993) (hereinafter 1993
BA ). 4 Section 7(aX2) of the Endangered
Species Act, 16 U.S.C. §51531 at seq. (1988)
(“ESA’9, requires that each federal agency
enter Into eonsultatlon with the Department.
of Commerce to “insure that any action au-i
thorized, fUnded, or carried out by such
3. The issue of advancing trial and consolidating
ii with the prelintinacy injunction hearing was
first raised by The Bays’ Legal Fund In its pa-
pers Motion to File Reply Memorandum at 2.
After consulting with the defendants at the July
2, 1993 hearing and seelung their written views
on the plsimiffs’ request, I now allow consolida-
tion for the following reasons. First, the record
ii complete and ripe for review. Second, this
Court sees no reason for delay, since the cvi.
dence reasonably admits of only one outcome.
Third, a decision on the merits now does not
necessanly abut off the debate. As the Common.
wealth of Massathus tts (“the Commonwealth”)
and the Massachusena Water Resources Autliorl-
ty (MWRX) point out, the National Marine
Fishe e, Seroce (‘NMFS”) is scheduled to issue
Its biologicai opinion in two months, addressing
the ecological impact of the tunnelprojec . See
to Court of July 5, 1993. If the NMPS
-------
p
106
agency ... Is lie to jeopardize the
continued existenti .. .y endangered ape-
eisa ... or result in the destruction or ad-
verse modification of habitat of such ape-
‘ 16 U.S.C. § 1536(a)(Z). In May,
1986, the Environmental Protection Agency
(“EPA”) Initiated this consultation with the
NMFS, requesting information concerning
the presence of endangered species in the
proposed project area. Discussions with the
NMFS also addressed the possible impact on
endangered species that the sewerage treat-
ment project, including the outfall tunnel,
might have. In a one-page letter, dated
February 16, 1988. the NMFS responded to
the EPA that endangered species were with-
in the project area, but gave its “tentative
conclusion” that the sewerage treatment pro-
ject “will not significantly affect” endangered
species in the bays.’ NMFS Letter to EPA
(Greenwm ’ld, Inc. Complaint, EL F).
SectIon 7(c) of the ESA requires that each
federal agency Involved in the agency action
“conduct a biological assessment for the pur-
pose of identifying any endangered species
which Is likely to be affected by Ethati ac-
t.ion.” 16 U.S.C. 5 1536(c). Accordingly, In
1988, pursuant to the requirements of the
ESA, the EPA completed a biological assess-
ment of the Boston Harbor cleanup project,
known as the Supplemental Environmental
Impact Statement (“SE IS”).’ The aim of the
study was to determine, In part, what effect
the project would have on marine species In
the bays, including endangered species.
United States Mem. at 4. See als Draft
5. The NMFS Is the division of the Department of
Commerce which enters into consultation with
federal agencies on action affecting marine life
If the action affected Iand.based animals, then
consultation would be required with the Depart.
inent of Intenor. and within thai Department.
the United States Department of Fish & Wildlife
See 16 USC § l536(s)(2) (requiring consulta-
tion with Department of Interior)
6. The NMFSa conclusion was based on the lack
of opportunistic aightings of endangered species
In the vicinity of the proposed outfall tunnel and
on the fact that “the potential effects from sec-
ondary treated wastewater will be less then (sic)
primary treatment wastewater” NMFS Letter
to EPA (Greenworld. Inc Complaint. Es F).
7. SectIon 7(a)(2) of the ESA requires that “the
best scientific and commercial data available” be
used by agencies studying whether proposed ac-
tion Ia likely to have a significant, adverse impact
Supplemental Environmental Impact State-
ment (“DSEIS”) (completed April 1, 1988);
Final Draft Supplemental Environmental Im-
pact Statement ( “FSEIS”) (completed July
31, 1988). Because the areas affected by the
outfall were determined to be so distant from
the areas inhabited by the listed species, the
- EPA concluded that the listed species would
not suffer any adverse Impact from the
wastewater treatment proposal.’ United
States Mem. at 4.
In July, 1990, the MWRA, the state agency
responsible for overseeing the implementa-
tion of the new sewerage treatment system,
awarded contracts for the construction of the
outfall tunnel. United States v. Metropoli-
tan District Commission, MWRA Monthly
Compliance Report For July 1990 and Prog-
ress Report as of August 16, 1990 (Fed.
Def.Ez. 4), at 4. At that time, the MWRA
gave notice to proceed with the construction
of the drop shaft, but withheld a general
notice to proceed with all phases of construc-
tion of the outfall tunnel until the necessary
permits were obtained. 1L. at 4 a. 2. After
reviewing the permit application submitted
by the MWRA. the Army Corps of Engi-
neers (“ACOE”) approved the requested Na-
tional Pollution Discharge Elimination Sys-
tem (“NPDES”) permit, allowing the MWRA
to proceed with the construction of the out-
fall tunnel and diffusers. Id. In the Record
of Decision accompanying the permit, the
ACOB stated that the EPA had already ade-
quately addressed the significant environ-
on endangered species. 16 u_s.c. § I 536(a)(2)
The plaintiffs complain that the EPA’s analysis
failed to meet that standard Yet the plaintiffs
never produce any evidence that the data on
which the EPA relied to prepare its biological
studies was inferior in any way They only make
the conclusory allegation that another govern’
mental research body, the U.S Marine Mammal
Commtssion, could have performed the study
with rester expertise See Greenworld Mem at
10 & n 5. I find that there is no basis for
concluding at this time that the EPA violated
S 7(aX2) In terms of the quality of data it em-
ployed
S. According to the United States, the critical
habitat of the right whale is over 17 miles south-
east from the outfall site. United States Mem at
Sn. 2.
mental lirrounding the construction
and use d butfall tunnel and that, there-
fore, it was adopting the EPA’s SEIS rather
than conduct its own envii-onmentaj review of
the proposed outfall system. Id., at 7. In
approximately March, 1991, the MWRA is-
sued a notice to proceed with construction of
the outfall tunnel. Id.
On September 13, 1991, the MWRA filed
with the EPA an application to renew its
NPDES permit to discharge wastewater Into
the Boston Harbor. At that time, the EPA
concluded that another biological assessment
and consultation with the NMFS was war-
ranted, given the growing public concern
over the potential impact of the tunnel pro-
ject on endangered species, the significance
of the project, and the availability of new
information accumulated since completion of
the 1988 SEIS. On April 28, 1993, the EPA.
completed its second biological assessment of
the outfall system and Its potential impact on
endangered species—the 1993 BA—and Initi-
ated formal consultation with the NMFS pur-
uuantto § 7(a)(2) of the ESA. In the 1993
BA. the EPA again conduded that the dis-
charge from the outfall tunnel is not likely to
muse an adverse Impact to endangered ape-
des. PursuanttoS7(b),theNMFsispres-
eiitiy preparing its own biological opinion on
the environmental impact of the outfall sys-
tem to endangered species in the bays. Ac-
cording to the United States, the NMFS
expects to Issue its opinion by September 8
19W
IL Jndiciaj Review
12-6) Before proceeding to the substan-
tive Issues of law, the appropriate standard
Olreviewehouldbeaddresaed. Wherethe
action to be reviewed Is Informal adjudica-
9. This summary draws on undisputed factual as-
seniosu by the United Siatm. See United Slates
Meni. it 4—9
IS. In reviewing the beefs and attached exhibits,
I have also kept in mind that the scope of my
leview must be confined to the adsnimsu-stsve
record already in existence, in this case the SEIS
and the 1993 BA, and not extend to some new
record prepared in anticipation of liugauon,
Camp v Pius. 411 US. at 142, 93 S Ct. at 1244,
Cffiz ,u to P 5rww ()eerfon Pa,*. Inc v. Volpe.
401 US. 402,419.91 S C i. 814. 825.28 LEd 2d
136 (1971) (“litigation affidavits - -. were merely
828 FEDERAL SUPPLEMENT
BAYS’ LEGAL FUNDv. BROWNER
Cit. ee 521 P.Supp 01 (n.M.... 1153)
ton, as it was here, the proper standard of
review Is whether the administrative decision
was “arbitrary, capricious, an abuse of die-
cretion, or otherwise not in accordance with
law,” 5 US.C. § 706(2)(A) (1988); Camp it
PiUs, 411 U.S. 138, 142,93 S.Ct, 1241, 1244,
36 L.Ed.2d 106 (1973). See Friends of En-
dangered Species Inc. ii, Janlzen, 760 F.2d’
976, 981-982 (9th Cir 1985) (standard of re-
view for administrative actions involving the
ESA Is arbitrary and capricious standard).
Under this standard, the reviewing eourt
must uphold the administrative action If the
agency “considered the relevant factors and
articulated a rational connection between the
facts found and the choice mada.” Friends
of Endangered Species 760 F2d at 988 (cit-
ing Ball imore Gas & Electric Co. at Natural
Resources Defense Counci’ Inc.,, 462 U.S. 87,
106, 103 S,Ct. 2248, 2256, 76 L .Ed.2d 437
(1983)), Mao, where there is a factual die-
puts Involving issues of science, which impli-
cates substantial agency expertise, deference
Ia owed to the informed dedsionmaldng of
the responsible agency, t ’ Marsh I,. Oregon
NatureS Resources Counci4 490 U.S. 360,
376-77, 109 S.Ct. 1851, 1860-61, 104 L .Ed.2d
377 (1989). Sea Bollzmore Gas & Electric
Co., 462 U.S. at 103, 103 S .Ct. at 2255
(“When examining this hind of scientific de-
termination, as opposed to simple findings of
fact, • reviewing court must generally be at
its most deferential.”). Therefore, to suc-
ceed, the plaintiffs must establish that the
defendants’ decisions, especially the scientific
detenninationa by the EPA and the ACOE
regarding the effect of the outfall tunnel on
endangered species, were arbitrary and ca-
pricioua. With this standard of review in’
mind, I tin-n to the substantive legal issues at
stake here.ti
107,
I ’
:d!,
I4
. içti
i.
...
-7
n c
‘post hoc’ ratIonalizatIons, which have tradition-
ally been found to be an Inadequate basis for
review”) (citations omitted); Rndwssy v United
Stasts Dcpamnent of Agriculture, 514 F.2d 509,
816 (D.C Cir 1975) (“litigation affidavits are an
unacceptable basis for appellate review of agency
decislonmaking”).
II, I am unpcrauaded by the defendants’ efforts
to bar the plaintiffs’ claims based on laches,
Ladies Is a disfavored defense In environmental
litigation, Part Caunsy Resource Council. mc, it.
United States Dep’: of Agriculture. 817 F.2d 609.
617 (10th ør.1987) (laches mini be Invoke4
.A., , -*.s.. . ,s. .
-------
f 108
Ill. Legal Analysis
(7) The plaintiffs seek to atop additional
construction of the outfall tunnel, alleging
that the defendants have violated the Endan-
gered Spedes Act, the National Environmen-
tal Policy Act, 42 U.S.C. § 4321 et seq.
(1988), and the Marine Mammal Protection
Act, 16 U.S.C. U 1361 at seq ( 1988 ) I2
A. The Endangered Species Act
The plaintiffs allege that the defendants
have violated three distinct provisions of the
‘ ESA.—4 7(a) 2), (C) and (d).
1. Section 7(a)(2)
Section 7(aX2) of the ESA requires each
federal agency to insure that any action It
authorizes Is ‘not likely to jeopardize the
continued existence of any endangered ape-
des ... or result in the destruction or ad-
verse modifIcation of habitat of such ape-
ciea....” 16 U.S.C. § 1536(a)(2). The
plaintiffs argue that the defendants violated
this provision of the ESA, contending on
several grounds that the construction and
use of the outfall tunnel are, in fact, likely to
have an adverse Impact on endangered ape.
cies In the bays.’ 3 The plaintiffa allege that
the outfall system will result In increased
sparingly In environmental cases). Ptvsewatw,,
Coalition. I,,.c v. PWvce. 667 F2d 851. 854 (9th
Cir 1982) (same); Concerned Ci:izeru on 1—190 V.
Secret arj of Transponatron. 641 F 2d I. 7-8 (1st,
Cir l9aI) (lachea is disfavored defense In envi-
ronmental cases) As the Ninth Circuit es
plained in Presava:w,, Co litlon. laches should
be avoided In environmental cases because the
plaintiff typically is not the only victim of the
purported environmental damage 667 F.2d at
854 Also, a more welcoming attitude would
undermine Congress’s environmental objectives.’
Id And citizens have a nght to assume that
officials will comply with environmental laws
and to rest on that assumption. Id Further-
more. the Endangered Species Act places an
overnding premium on protecting listed species.
Sea TVAv. Hill. 437 u.s 153. 174,98 SQ. 2279.
2292, 57 LEd.2d Ill (“the language, history.
and structure of the (Endangered Species ActI
indicates beyond doubt that Congress intended
endangered species to be afforded the highest c i
pnonties”). Believing that the Ninth Circuit’s
reasoning Is applicable here, I find that the lath-
es defense fails.
levels of nutrients and toxics In the bays,
which will have an adverse Impact on endan-
gered species there. They also allege that
the tunnel construction itself might have a
serious impact on these endangered species
and that the defendants have not studied the
potential impact of construction on them.
First, as for the plaintiffa’ concern about
Increased levels of nutrients, the EPA found
in its 1993 BA that the discharge of nutrients
from the new outfall system is not likely to
cause any signrncant changes to the food
chain of the endangered species in the bays.
See 1993 BA (EL BB of Bays’ Legal Fund
Mem.), cli. 4, at 29, 35. See generally, 1993
BA, cli. 4, I 2 (nutrient impact on endan-
gered species). The level of nutrients is
expected to remain relatively stable in the
bays in the immediate ftitzire.’ 4 See 1993
BA, cli. 4, at 20. Any Increased levels of
nutrients are likely to be concentrated within
a ‘very limited area” around the outfall. Id,
at 35. As a result, any impact on phyto-
plankton and other nutrient sources of the
endangered species should be similarly limit-
ed. hi
Even those experts with concerns about
Increased nutrient levels in the bays—Pro-
alleged violations c i all three statutes, the ESA.
NEPA and MMPA. the Bays’ Legal Fund has
focused exclusively on alleged violaisons of the
ESA. Forihealiecfease.lreferhereinto”ilte
plaintiffs.” without drawing distinctions between
them
13. The plaintiffs did not frame thcir argument in
terms of § 7(aXZ). but rather in terms of a me.
tion for preliminary injunction Whereas
§ 7(sX2) requires proof that approval or the out-
fall tunnel project by the defendants is likely to
have an adverse impact on endangered species in
the bays, the preliminary injunction standard is’
quires proof that such agency action will cause
these animals irreparable harm. For present
purposes. I believe that the two standards are
sufficiently analogous to treat them equivalently
Therefore, because this case has been consolidst.
ed, I treat the plaintiffs’ irreparable harm argw
menu as support ror a substituted § 7(a)(2)
claim.
r
828 FEDERAL SUPPLEMENT
.1
S
BAYS’ LEGAL FUNDv. BROWNER 109
Ctlees SSS r.supp . isa (0 es . tees)
fesaor Smayda, Dr. Mayo and Hans Neuhau- some may have. Such a grave response Is
ser—acknowledge that they can only specu- only required by statute when there Is a
late as to the impact additional nutrients ‘likelihood” of an adverse Impact to endan-
might have on endangered species,uI In gered apecies. See 16 U.S.C. I 1536(a), (c).
their affidavits, Smayda and Mayo express Nothing in the experts’ affidavits comes near
their worry that an increase of nitrogen to meeting that standard. Therefore, I con-
could fertilize harmful phytoplankton apecies, elude that, at present, there is insufficient
which are now present in the bays in ‘seed evidence to show that the discharge of nu-
stock” concentrations. Smayda Aft., St 2. trienta from the outfall tunnel will harm en-
See Mayo ML, at 7. However, because the dangered species in the bays.
phytoplankton demographics around the out-
fall tunnel are in a state of constant flux, as As for the plaintiffs’ concern about toxies,
currents shift, both experts admit that the It appears from the EPA’. recent biological
effect of increased levels of nitrogen around assesament that the listed species are “not
the outfall tunnel is unknown. Smayda AlL, likely to be adversely affected” by toxic
at 6 See Mayo AlL, at 5. As Smayda chemicals eliminated into the bays through
states, the outfall tunnel could be “an attrae- the outfall tunnel. 1993 BA, cli. 4, at 85.
tive nuisance,” spurring the growth of unfa- See generally 1993 BA, cli. 4, 0 3 (discussing
vorable phytoplankton flora, or ‘an attractive impact of toxic discharges on endangered
oasis,” nourishing very favorable phytoplank- species). It Is predicted that most of the
ton species. Smayda Aft., at 5. Though toxic contaminants In the wastewater effluent
these experts urge further research, all three will be diluted to concentrations below appli-
conclude that there is not enough information cable water quality standards within 60 me-
at this time to know with any degree of temofthengtfiom(theomaof”ini.
certainty what effect the tunnel will have on ution1. 1993 BA, cli. 4, at 65. There
phytoplankton in the bays. Mayo AlL, at 13 , how ,er, a handful of toxic chemicals
rlw)e can’t be certain of the effects (of the that may exceed water quality standards be-
proposed outfall discharges] ... because we yond initial dilution. hi Yet the anticipated
understand the system so little that it’s ox- exceaaea are small. Id., at 67. Moreover,
ceedingly difficult to make a positive p - the background presence of these chemicals
ton.”); Neuhauser Aft., 5 (“The Increase in Massachusetts Bay already exceeds ox-
pollution of these bays by the ... outfall ts ’ mely conservative water quality criteria.
represents a potential threat to the Right Id ., at 67. Therefore, the EPA has condud-
Whale. Due to limited information ..., the ad that “the small predicted Incremental ox-
magnitude of the threat can only be estimat.- ceedences (aid from the discharge probably
ad, and then, only with a great deal of uncer- will not cause or contribute to injury of the
talnty.”). See Smayda AlL, at 5. biological resources, including endangered
These experts put everyone on notice of des and their foods.” Id. See a1s 1993
potential threats to the food source of endan- BA, ch. 4, at 85 (finding that endangered
gered speciea in the bays. If and when there species in Massachusetts Bay not likely to be
Is concrete, scientific evidence that substanti- adversely affected by chemicals discharged
ates the likelihood of a threat, it will be ft’om outiall tunnel).”
appropriate to reconsider the wisdom, not to
mention the legality, of the outfall tunnel as a The plaintiffs allege that the ongoing tun-
means of effluent discharge. Until then, nel construction may also threaten the sur-
however, the ESA does not require the em- vival of the listed species in the bays. Bays
aation of activities because of ‘concerns” that Legal Fund Mem. at 25-26; Greenworld
I!. Professor Smayda and Dr. Mayo submit their
affidavits on behalf of amwi cur iae, Hans Neu.
hauser subimis his affidavit on behalf of Green-
world, Inc.
12. To be specific, the plaIntiffs’ suits do not en-
drely overlap. Wbilr Greenworld, Inc. and
Richard Strahsn have dragged the legal ret and
14. Discharges ci nitrogen ano other nutnerni
from the new outfall system are expected to
result in only a “small incremental increase to
the baywide system” relative to the amounts that
are alr dy introduced in Boston Harbor and
exported to the bays. 1993 BA, cli. 4, at 20.
16. Though the findings of the EPA Indicate that
the effect of the outfall tunnel on levels of nu- -
tnents and toxica is not likely to jeopardize the
weII.being of endangered species in the bays, it is
important to note that the NMFS has not yet
completed Its formal biological opinion. There-
fore, it is not known whether the NMFS will join
the other defendants in their findings.
-------
110
Meet. at 7. Imsaera. however, have
already beer ueted and are In place.
and there will be no flurther construction on
the ocean floor. United States’ Meet. at 16.
Furthermore, though the outfall tunnel ber-
ing machine will continue to operate, Its op-
eration and the noise It generates Is not
likely to affect the listed species adversely.
1993 BA, cl i. 4. at 3-4; Dedaration of
Charles I. Malme (“Malme Dccl.”) (United
States Es. 8) 15. Remaining construction
activities on the outfall tunnel will take place
about 400 feet below the ocean floor. 1993
BA. di. 4, at 4. Noise from the tunnel
boring machine In the water above has been
found to be less powerfUl than the noise
produced by diesel tugboats that regularly
operate in Boston Harbor. 1993 BA, cIt. 4, at
4; Malme DecI. 16 Furthermore, the im-
pact of noise from the boring machine on
Steliwagen Bank. the nearest preferred habi-
tat for whales, is expected to be comparable
to, or less than, historical noise levels report-
ed for similar shallow, coastal water areas,
and less than that which has been observed
to cause behavioral responses in whales.
Malme Deck 16.”
Based on the extensive environmental im-
pact studies conducted by’the EPA in 1988
and 1993, the findings of which have not been
scientifically controverted. I find no evidence
that the construction or operation of the out..
fall tunnel is likely to jeopardize the contin-
ued existence of endangered species In the
17. Though Ills inappropriate for a cowl, when
reviewing agency decislonmaking. to consider af-
fidavits made as “post hoc” rationalization. of
agency action. sm supm. at 9 n. 10. I take the
Malme Declaration into account here because
Malme’s findings are not “post hoc’ ratIonaliza-
tIons, bitt were Incorporated Into the 1993 BA
(cIt. 4. at 4) and, therefore, were pail of the
EPA’s original decialonmahing record.
19. The purpose of the biological assessment Is to
determine what Impact the project will have on
endangered species. 50 C.F.R. § 402 12(a).
19. Note that there are no strict requirements los’
what the biological assessment should Include;
Its contents are discretionary with the agency
preparing It. Sea 50 C.F.R. § 402 12(0. The
implementing regulations do list certain cntena
that the agency may consider
• I) The results of an on-ilte inspection of the
area affected by the, action to determine if
bays. Though I am ready to revisit the
question upoi the first, eubstanUal adenWie
findings to the S,ntrpry, I conclude that the
plaintiffs have not shown any -likeliliacd of
harni to endangered species.
2. Section 7(i)
(81 In addition to their § 7(aX2) claim,
the plaintiffs also assert that the defendants
violated 6 7(c) of the ESL Section 7(c)
states that a biological assessment, when re-
quired. “shall be completed ... before any
contract for construction is entered into and
before construction is begun with respect to
such action.” 16 U.&C. 6 1536(c). See 50
C.F.R. 6 402.12(bX2) (stating same). The
plaintiffs contend that the defendants did, in
fact, contract for and begin construction of
the outfall tunnel prior to completing the
necessary biological assessment.”
I find, however, that the EPA completed
the required biological assessment by July,
1988, before any contracts were entered for
the construction of the tunnel and before
construction had begun. Specifically, the
EPA’s Draft Supplemental Environmental
Impact Statement (“DSEIS”) was completed
on April 1, 1988. and its Final Supplemental
Environmental Impact Statement (“FSEIS”)
was completed on July 31, 1988. I find that,
taken together, these two environmental Im-
pact statementa’satisfled the ESA’s require-
ments for a biological assessment.” Signifi-
cantly, the MWRA did not award the con-
tract for construction of the outfall tunnel
listed or proposed speclen ass present or oc
seasonally
2) The views of recognized experts on the spe-
cies at issue.
3) A review of the literature and other Infor-
matins,.
4) An analysis of the effects of the action on
the species and habitat, including consider-
ation of cumulative effects, and the results of
any related studies.
5) An analysis of alternate actions considered
by the Federal agency for the proposed action
Id. A ,cvlew of die SEIS indicates that the EPA
took at least four of these five suggested criteria
Into consideration. Though the EPA did not
conduct an on-site inspection to determine
whether endangered species are present, they
relied on previous reports to state their donclu-
slon that various endangered species are present
in the bsys See DSEIS, cIt. 4. at 45 For
simplicity’s asks. I shall refer to these atudits
together as the “SEIS.”
(91 Furthermore, even were I to find that
the SEIS did not constitute a proper biologi-
cal assessment, the EPA completed a second
biological assessment of the tunnel project on
April 26, 1993. The 1993 BA confirmed the
EPA’s original conclusion that the outfall
tunnel project Ia not likely to impact endan-
gered species adversely. Though contracts
for construction of the outfall tunnel had
been entered by that time and construction
had begun, the 1993 BA satisfied the spirit, if
not the letter, of 6 7(c), To recommend that
this Court terminate the outfall tunnel pro-
ject simply for an alleged violation of proce-
dure, despite no evidence of a likely threat to
endangered species, strikes this Court as an
exaltation of form over substance. It also
appears to be at odds with caselaw. See
Wetnbetper tt Romero-Barcefri 456 U.& 305,
314-15, 102 &Ct, 1798, 1804, 12 L.Ed.2d 91
(1982) (court not required to issue injunction
to atop technical violations of Federal Water
Pollution Control Act where discharge of mu-
itary ordnance not polluting waters and,
therefore, not in tension with purpose of
atatute). Cf Amoco Production Co. v. Gain-
beLl. 480 u.S. 531, 544, 11)7 S.Ct. 1396, 1403,
94 LEd.2d 542 (1987) (criticising court for
giving too much weight to procedural viola-
tion of Alaska National Interest Lands Con-
servation Act and not enough to purpose of
statute which had not been violated). But
see WA v. HÜ4 437 U.S. at 173-74,98 S.Ct.
20. The plaintiffs assert that the SEIS cannot be
construed by this Court as satisfying the requite.
menu of a biological assessment for purposes of
§ 7(c) c i the ESA They base that contention, in
part, on the fact thst the defendants allegedly did
not intend for the SEIS to arnie as a biological
assessment, I find, however, that the EPA’s in-
tent ia irrelevant, What matters Ia that, in the
SEtS, the EPA explicitly examined the potential
impact of the outfall tunnel on endangered spe-
cies in the bays, the examination was reasonably
thorough, end the conclusion that the outfall
tunnel does not pose a likely threat to endan-
gered species was adequately considered.
(10] Still, the plaintiffs contend that the
ongoing construction of the tunnel violates
* 7(c) because the NMFS has not yet issued
its formal biological opinion on the effect the
outfall project will have on endangered spe-
cies. Section 7(c), however, requires only
that the biological assessment, not the biolog-
ical opinion, be completed before contracts
are formed or construction is begun on the
proposed action. See 16 U.S.C. 6 1536(c),
See also 50 C,F.R. § 402.22(bX2) (stating
that “biological assessment shall be complet-
ed before any contract for construction is
entered Into and before construction Is be-
gun”) and 60 C.F.R. § 402.02 (distinguIshing
between “biological assessment,” which Is
prepared by federal agency proposing action,
and “biological opinion,” which is prepared
by NMFS). Therefore, continuing construc-
tion on the outfall project, despite the fact
that the NMFS has not completed its biologi-
cal opinIon, does not violate 6 7(c).
Finally, the plaintiffs point out that the
environmental impact of at least one aspect
of the proposed construction plan has not yet
been studied. As the plaintiffs correctly as-
sect, the MWRA Is considering using explo-
sives to blast the last two ldlometera of the
outfall tunnel, but has yet to evaluate the
impact of such an approach on marine ani-
mals. Nonetheless, the MWRA atill has not
made the decision to use explosives, and
there are alternative approaches to complet-
ing the tunnel should blasting prove to be
828 FEDERAL SUPPLEMENT
BAYS’ LEGAL FUND v. BROWNER ill
Ctie $33 F.Supp. 102 (D.M. i C C ))
18 1990, almost two years after at 8291 (èourt required to issue injunction to’
compreuun of this first biological assess- prevent start-up of claim where claim would
menLts United States Meet. at 28. There- cause extinction of endangered species and
lore, I find that the defendants prepared a violate letter and purpose of ESA).
proper biological assessment in a timely fash-
ion, in accordance with the requirements of
6 7(c) of the ESA.”
2$. The plaintiffs charge that the Army Corps of
Engineers failed to meet the requirement that it
prepare a biological assessment in connection
with its role in the outfall tunnel project The
ESA’s Implementing regulations, however, allow
an agency to fulfill the biological assessment
requirement by adopting a previous biological
assessment, which was prepared in connection
with the same or a similar proposed action, 50
CFR. § 402.12(g) Thus, by incorporating the
EPA’s biological assessment in its Record of De-
cision, die ACOE effectively met the require.
menu of § 7(c) of the ESA. United States Mom
at 28 (acknowledgIng ACOB’s adoption of SEIS
by reference).
— ,, , -—4t” A • t•i. ..
-------
8 FEDERAL SUPPLEMENT
envwonmentally unsound. United States’
Mem. at 26 n. 12. 39. Therefore, it would be
premature to atop construction at this point
simply to require further analysis of the ef-
fect blasting would hays. With respect to
alleged violations of § 7(c), then, I repeat my
finding that the plaintiffs have not demon-
frated a likelihood of success on the mer-
Its.as
& Sectwn7(d)
(11] ‘LasUy, the plaintiffs allege that the
MWRA’a continued construction of the out-
fall tunnel violates § 7(d) of the ESA.as The
critical question under § 7(d) is whether con-
tinued construction of the outfall tunnel will
prgclude the development of ecologically saf-
er discharge alternatives, should the tunne)
ultimately be deemed a threat to the survival
of endangered species In the bays. ‘The
plaintiffs claim that the slightest, additional
Investment In the tunnel has the “effect of
foreclosing” lteynative discharge possibili-
ties and, titus, violates § 7(d).as
Further construction of the outfall tunnel,
however, will not preclude the development
of reasonable and prudent alternatives. The
defendants offer several plausible scenarios
for incorporating the outfall tunnel into alter.
native discharge approaches. See United
States Mem. at. 37-36. For example, if nec-
essary, the MWRA could employ the existing
outfalls at Deer Island to reduce the flow of
sewerage from the outfall tunnel, or cease
the discharge entirely during specific periods
when the alleged risks to listed species was
greatest. Id., at 37. The MWRA could also
delay use of the outfall tunnel until the sec-
ondary treatment facilities come on line in
1998 and 1999. Id In addition, the MWRA
could, admittedly at significant coat, Install
additional treatment facilities to supplement
the primary and secondary treatment facili-
ties.
24. The plaintiffs seem to believe that § 7(d) pro.
hibita absolutely .11 constructIon activities dunng
the period of formal consultation with the
NMFS See Bays’ Legal Fund Mem. at 35. Bays
Legal Fund Response to “Antici” Affidavits, at $
ii, 4 The plaintiffs argue that.
The practical effect of any commitment ci
money is to build momentum. The more inon
cy spent on any single option . the less likely
It Is that alternatives will be chosen. No single
dollar ... commits completely, but complete
foreclosure Is not the statutory teaL • ii an ac-
- . don ‘has the effect of foreclosing’ it meets lix
test.
Bays’ Legal Fund Mem. at 35 (quoting Houch,
The “Ins tutionali iiti ,f of Caution” Under 57
of tire Endangered Species Act: Whet Do You lii
When You Don’t Know’, 12 Hnvt’l L Rep (Envtl
L Inst.) 15001. 15010 (1982)). Such a ngid con-
Sizuction of else statute, however. a not jusufied.
The statute does not prnhibit each and eves)
permanent commitment of resources, only those
- which have “the effect of foreclosing” the forms’
lotion of alternauvea, See 16 U S.C § 1536(d)
Thus, the statute calls for acme judicial diare’
iron to determine whether an agency’s decision
to proceed with action. pnor to the completion Cf
formal consultation with the NMFS. could base
“the effect of loreclosing” alternatives and could.
,therrlore, be considered arbitrary and cap ’s’
ciot i s’
The plaintiffs have nut met their burden of il
ing that the EPA’a and the ACOE’s decision is
allow construction on the tunnel to proceed was
arbitrary or capricious given the remaining di i’
charge alternatives.
(121 The plaintiffa further allege that the
effect of the outfall tunnel on the aquatic
environment has been inadequately studied
and reported on and that the defendants
have, therefore, violated NEPA.is In partic-
ular, the plaintiffs allege that the defendasga
did not evaluate the cumulative effect on
endangered species of all sources of water
pollution in the bays. Greenworid Mean, at
I?. A quick look at the 1993 BA belies that
allegation, however, The 1993 BA does, In-
deed, discuss the cumulative impact on en-
dangered apecies of numerous pollution
Sources, with particular focus on the contin-
ued use of the Masabuse Bay Disposal
Site for dredged material, See 1993 BA, cli,
4,54, See aLso 1988 DSEIS 56.3,1.
The plaintiffs also claim that the defen-
dants violated NEPA by allegedly inade-
quately explaining the basis for their conclu-
lion that the outfall tunnel project will not
haves aignificant impact on endangered ape-
elm, Cree, rld Mean, at L& According to
the plaintiffs, NEPA requires an sgene s
tflvironmental impact statement (“EIS”) to
supply a “convincing statement of reasons”
e l i 7 potential effects from the sgene s
21. NEP requires that any federal agency plan.
fl g an action with significant environmental
tmsequencea must evaluate and report on the
C. The Marine Mammal Pvvjte gjon Act
(13] Finally, the plaintiffs claim that the
construction and use of the outfall tunnel will
result in a “taking” of the Northern Right
whale, In violation of the MMPA. Green-
world Meni, at 20, The MMPA prohibits the
“taking” of any endangered marine maminaja
for nonscientific purposes, 16 u.s_c,
§ 1371(a)(3X5) (1988). The term, “take,” Is
defined as including the killing or harassing
of a marine mammal, or “the doing of any
other negligent or intentional act whieh re-
sults in disturbing or molesting a maz1n
mammal,” 50 C,F.R. * 216 ,&
These Is, however, Insufficient evidence to
find that construction and use of the pro-
posed sewerage treatment facilities, Including
the outfall tunnel, will result ma “taking” of
the right whale, or a disturbance of the ani-
mal of any kind. ‘l’wo biological studies by
the EPA have demonstratesi that the outfall
tunnel project is unlikely to have a significant
effect on any of the endangered species in
the bays. Furthermore, though the NMFS
is -presently engaged in a thorough evaluation
of its own on this question, it already has
concluded preliminarily that the tunnel Is
envIronmental Impact of he planned action. 42
U.S.C. § 4332(2XCXI) (1988).
BAYS’ LEGAL FUND v. BROWNER 113
C5i as 525 F.5u 90 . 102 (D.Misa. 1553)
Though there Is no present indication that planned action will be ecologically lnsignlll-
any of these measures will be required, they cant. Greenworld Mem. at 18 (citIng Save
demonstrate that continued construct ion of the Yeses /c Committee t& Block 840 F.2d 714,
the outfall tunnel, at least until the NMFS 717 (9th Cir.l988)). The plaintiffs, however,
issues its biological opinion and formal con- are stretching the meaning of caselaw to fit
aujtation Is completed, will not foreclose the their argument In Save the Yeses/c on which
possible development of alternative avenues the plaintiffs rely, the court only stated that
of wastewater removal, Halting constmction pursuant to NEPA, an agency must provide
altogether, with an eye toward abandoning such a statement if the agency did not pie-
the outfall tunnel project, would not be a pare a formal EIS, Id, 840 F.2d at 717.
reasonable or prudent approach, given the Here, however, the EPA did prepare an EIS
adverse impact that such non-action has al- ‘with respect to the outfall tunnel project.
ready had on coastal water quality. Based See SEIS. So the plaintiffs’ complaint Is
on the record before me, I cannot find that misplaced. Furthermore, the EPA’s SEIS
the defendants’ decision to allow tunnel con- was thorough and voluminous and provided
stmction to proceed was arbitrary and capri- ample aupport for its t.onelusion that the
thus. For the foregoing reasons, I conclude tunnel project will not have a significant Ian-
that the plaintiffs have failed to prove a pact on the listed species In the bay. See
violation of §5 7(aX2), (c) or Cd) of the ESA. United States Meni, at 4-6 (summarIzing
results of EIS). Thua, I fInd that the plain-
B. The National Envrnnim se j Fblieij tiffs’ claims under NEPA are without merit.
Ad
22, OrdInarily, the competing interests of the pub.’
- tIc may not be weighed against the interest of
preserving endangered species. See 7VA v Hilt,
- 437 U.S. at 173—74, 98 S Ca. at 2291. See also,
supm, at 107. However, where the appropriate
biological assessment has been conducted and
- there Is no evidence that the agency action poses
a threat to endangered species, as Is the case
here, there Is no harm in noting the public’a keen
- and legitimate Interest In seeing this sewerage
project advance. Construction of the outfall eun.
nd is now well under way, The vertical ihsft
‘:hu becn constructed, the tunnel boring machine
has been purchased and installed: the diffusers
pie In place; and approasmately one and a half
.,msles of the tunnel have been dnlled. As of May
31, 1993. approxImately $148,621,000 had al-
ready been invested in the design and constnsc.
non of the tunnel. Annstrong All (State Del Es.
- I) I II - Termination of the construction con-
tract would cost an additional $48 million. See
‘ Id 120 It would also prolong the adverse Im
pact on coastal waters caused by the present
substandard treatment system. Thus, given tile
• evidence that the outfall tunnel is unlikely to
impact endangered species adversely, the addi’
- donal cost of a shutdown Is Just more reason not
to halt the tunnel project.
13. SectIon 7(d) states that, after formal consulta-
lion Is Initiated, a Federal agency “shall not make
any Irreversible or irretnevable Commitment of
resources with respect to - agency action
which has the effect of foreclosing the formula’
don or Implementation of any reasonable and
prudent alternative measures” iliac could be pur’
‘sued without a likelihood of risk to endangered
speclea 16 US.C. § 1536(d).
-------
114 828 FEDERAL SUPPLEMENT
unlikely to tat to any listed species.
United Stat& ‘at 4 (referrIng to Febru-
ary, 1988 NMFS letter sent to the EPA).
(14) The plaintiffs point out, however,
that there has been no finding that the out.-
fall tunnel will have zero effect on the right..
whale and contend that the MMPA does not
allow for a “negligible impact’ exception to
Its “taking” prohibition. Greenworid Mem.
at 20 (citing Kokechiic Fshe,w&en’s Ais’va s.
Secretw,j of Commerce, 839 F.2d 795, 802
(D.C.Cir. 1988), ceTf . den., Veriiy s. Center for
Environmental Edna., 488 U.3. 1004, 109
S.CL 783, 102 L.Ed.2d 775 (1989)). The
plaintiffs, however, overstate the “negligible
impact” rule established in KOkedIIk. The
cowl. in KOkSCFHIC held that there was no
“negligible Impact” exception to the rule
where the takings were a certainty, as op-
posed to a mere remote possibility. IS. 839
F.2d at 802. Yet, here, the plaintiffs have
not shown any likelihood that a “taking” will
occur. Therefore, even applying the “negli-
gible Impact” rule, I find that In the present
circumstances the MMPA does not prohibit’
the construction or use ‘of the outfall tunneL
In the end, I ounclude that the plaintiffs
caitnot prevail on the merits of any of their
claims. Most significantly, they have not
established that the outfall tunnel Is likely to
have an adverse Impact on endangered ape.
coos In the bays. Furthermore, they have.
not shown that the defendants’ findings to
that effect, or their related actions, were
arbitrary and caprIcious. Consequently, af-
ter considering the merits of the plaintiffs’
claims, this Court will enter judgment for the
defendants. .
‘SO ORDERED.
Charles W. SULLIVAN, Plaintiff
V.
Paul TAGLIABIJE. et al, Defendants.
Civ. A. No. 92-10915-EL
No. 92-CV-10592.
United States District Court,”
D. Massachusetts.
July 29, 1993.
Owner of football stadium where profes-
sional football team played its home gaines
brought antitrust action challenging decision
of National Foothall League (NFL) denying
team owner permission to sell team stock.
On defendants’ motion for summary judg-
ment, the District Court, Harrington, J., held
that plaintiff lacked standing to bring private
cause of action challenging defendants’ ac-
tions as illegal restraint of trade.
Motion granted; claims dismissed.
I Federal Civil
Question of antitrust standing is one of
law, which is properly decided on motion for
summary judgment Clayton Act, § 4, 15
U.&C.L § 15.
2. MonopolIes 28(L4. 1.6)
Factors that court may consider in as-
sessing plaintiff’s standing to bring private
cause of action enforcing public antitrust
laws Include: causal connection between al-
leged antitrust violation and harm to plain-
tiff; whether defendants acted with improper
motive; nature of plaintiff’s alleged injury
and whether injury is of type that Congress
sought to redress with antitrust laws; direct-
ness with which alleged market restraint
caused asserted injury speculative nature of
plaintiffs damages; and risk of duplicate re-
covery or complex apportionment of dam-
ages. Clayton Act, * 4, 15 U.S.C.A. 6 15.
3. Monopolies “28(1.2, 1.6)
That defendants acted with Intent to re-
strain and monopolize relevant market is not
determinative of plaintiffs standing to bring
private muse of action to enforce public anti-
4. Monopolies 28(1.6)
Fact that plaintiff is not participant In
relevant market is not itself dispositive of hia
etanding to bring private cause of action
enforcing public antitrust laws, but such a
fact must be weighed heavily against grant of
standing. Clayton Act, § 4, 15 U.S.C.A.
I 15.
5. Monopolies ‘ 28(l.4, 1.6)
Owner of football stadium did not have
antitrust standing, either individually or on
behalf of stadium, to bring action challenging
football league’s decision to refuse to allow
caner of professional football team that
played in stadium to sell shares in team to
public in order to generate revenues to reno-
vate stadium; plaintiff was not participant In
market allegedly restrained as result of foot-
ball league’s actions, and plaintiff’s alleged
ii jury was not type that antitrust laws were
designed to prevent Clayton Act, 0 4, 15
U.S.C.A. 6 15.
Alan R. Hoffman, Lynch, Brewer, Homnaa
& Sands, Boston, MA, Joseph V. Cavanagh,
Jr., Blish & Cavanagh, Providence, RI, Jo-
seph I Mioto, Alioto & Alioto, Bruce J.
Wecker, Purth, Fahrner and Mason, San
Francisco, CA, for plaintifl
Robert M. Buchanan, Jr., Sarah C. Colum-
bia, Jeremiah T. O’Sullivan, Choate, Hall &
Stewart, Boston, MA, Matthew F. Medeiros,
Flanders & Medeiros, Providence, RI, John
-.,‘ r•t. LL.
Vanderstar, Etlian M. Posnes’, Sonya D. Win-
ner. Covington & Boning, Washington, DC,
Joseph W. Cotchett, Frank M. Pitre, Susan
lllston, John I. Fitzgerald, Cotehett, Illaton
& Pita’s, Burlingaine, CA, for defendants.
MEMORANDUM
HARRINGTON, District Judge.
(II In conjunction with an action brought
by his father, William J. Sullivan, Jr., the
Plaintiff Charles W. Sullivan has brought this
action for damages against the Defendants,’’
alleging that their enforcement of a National
Football League (NFL) rule constituted a
violation of Sections 1 and 2 of the Sherman
Act, 15 U.S.C. §5 1 and 2. The Plaintiff
presses this suit both Individually and as the
assignee of the antitrust claim belonging to.
Stadium Management Corporation (SMC).
In sddition, the Plaintiff has alleged state law
claims of breach of fiduciary obligations, In-
terference with a prospective advantageous
contract, unfair trade practices, and Inten-
tional infliction of emotional distress. The
Defendants have moved for Summary Judg-
inent on the Plaintiffs antitrust action, argu-
ing that he lacks standing to bring such an
action. 1
William Sullivan was the founder and sole
or managing owner of the New England
Patriots Football franchise (“Patriots”) from’
1960 to 1988. In 1987, his son, the Plaintiff,
was the sole stockholder of SMC. which
owned the stadium at Foxboro, Massachu-
setts, then called Sullivan Stadium, where.
the Patriots played and continue to play their
SULLIVAN,. TAGLIABUE
Cite. 52 5 F.Supp 114 (D.Mess. 1se3)
- lefendants’ Improper motive is
men factor to consider in assessing
plaintiffs standing.
115 ‘I.
I. The Defendants named in this action are the
NFL. current NFL Commissioner Paul Tagiia-
hue, his predecessor Pete Rozelle. and the follow-
ing 21 or 5anizauona owning NFL franchises:
The Five Smiths. Inc. Indianapolis Colts. Inc.;
Buffalo Bills. Inc. Chicagp Bears Football Club.
Inc. Cincinnati Bengsla. Inc. Cleveland
Browns, Inc.. Dallas Cowboys Football Club.
Ltd. FDB Sports, Ltd.; The Detroit Lions. Inc..
Green Bay Packers. Inc. Houston Oilers. Inc.;
Los Angeles Rams Football Co.; Minnesota Vi-
kings Football Club. Inc. New Orleans Saints,
Ltd. Chargers Football Co • New York Jets
Football Club. Inc., B & B Holdings. mc: Pitts-
burgh Stealers Sports. Inc. Tampa Bay Area
NFL Football. Inc.; Pro-Football, Inc., and Se-
attle Professional Football Club, Inc.
2. The question of antitrust standing Is one of law.
Midwest Cammunicaiions v. Minnesota Twnu.
Inc • 779 F 2d 444, 449 (8th CIr 1985). otvt. de-
‘s’e4 476 U.S. 1163. 106 S.Ct. 22s9. 90 LEd.2d
730 (1986) In previously denying the Defen-
dants’ Motion to Dismiss In the instant case, this
Court indicated that the Plaintiff’s Complaint suf-
ficiently alleged antitrust standing 795 F Supp.
56. 58 (D.Maas 1992). On this Motion fur Sum-
mary Judgment, this Court shall now examine
the evidence presented by the Plaintiff so auppoit
this allegation. Celotes C c . ’ 1 ,. a’ Ccirgtt. 477 U.S.
317, 322—23, 106 S.Ct. 2548, 2552—53. 91
L.Ed.2d 265 (1986).
ill,
j
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PALl LA (Loxioides bailleul, formerly
Psittirostra bailleui), an endangered
species; Sierra Club; National Audu-
bon Society, a non-profit association;
Hawaii Audubon Society, a non-profit
association; Alan C. Ziegler, Plaintiffs—
Appellees,
V.
HAWAII DEPARTMENT OF LAND AND
NATURAL RESOURCES; Susumo Ono
in his capacity as chairman of the Ha-
waii Board of Land and Natural Re-
sources, Defendants—Appellants.
PALILA (Loxioides bailleui, formerly
Psittirostra bailleui). an endangered
species; Sierra Club; National Audu-
bon Society, a non-profit association;
Ha’ aii Audubon Society, a non-profit
association; Alan C. Ziegler, Plaintiffs—
Appellees,
V.
HAWAII DEPARTMENT OF LAND AND
NATURAL RESOURCES; Susumo Ono
in his capacity as chairman of the Ha-
aii Board of Land and Natural Re-
sources, Defendants.
and
Ha aii Rifle Association: Gerald Kang,
Defendants—Inten enors—Appellants
Nos. 87—2188. 87—2189.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted May 12. 1988.
Decided July 22, 1988
Action ‘ as brought under Endangered
Species Act seeking to require State to
removal all sheep from habitat of endan-
gered species of bird The United States
District Court for the District of Hawaii,
Samuel P King, J., 649 F Supp. 1070, or-
dered removal of sheep, and appeal was
taken. The Court of Appeals, O’Scannlain,
Circuit Judge, held that permitting of hab.
itat-destroying sheep in area constituted
“taking” of birds’ habitat.
Affirmed.
I. Game 3’/z
Habitat destruction which could drive
endangered species to extinction consti-
tutes “harm,” and thus a “takrng,” within
meaning of Endangered Species Act. En.
dangered Species Act of 1973, § 3(19),
9(a)(1), as amended, 16 U.s C.A.
§ 1532(19), 1538(a)(1).
See publication Words and Phrases
for other judicial constructions and
definitions.
2. Game 3’/z
Finding that sheep and endangered
species of bird could not coexist, and thus
that sheep would have to be removed from
area, was sufficiently supported by evi-
dence that grazing habits of sheep de-
stroyed habitat upon which birds depended
entirely for their existence.
3. Game 3’/i
Finding that sheep were harmful to
habitat of endangered species of bird was
sufficiently supported by evidence, though
government argued that harm was caused
only by feral animals, where there was
evidence that noticeable regeneration of
woodland habitat had occurred only where
feral animals had been removed and no
sheep had appeared.
Edwin P. Watson, Deputy Atty. Gen.,
Honolulu, Hawaii, for defendants.appel-
lant.s.
Michael R. Sherwood. Sierra Club I gal
Defense Fund, San Francisco, Cal., for
plaintiffs-appellees
John S Carroll, Honolulu, Hawaii, for
defendant.intervenor-appellant, Hawaii Ri-
fle Ass’n.
Katsuya Yamada, Hilo, Hawaii, for de-
fendant-intervenor-appellant, Gerald Kang
John A Brvson, amicus curiae.
Appeal from the United States District
Court for the District of Hawaii.
Before SCHROEDER, NOONAN, and
O’SCANNLAIN, Circuit Judges.
‘- ,_ , - ‘. . , ., ‘
:.t -.
1106 852 FEDERAL REPORTER, 2d SERIES
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- ,.: , -‘
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-•‘ .*
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— : • — ‘
PALILA v. HAWAII DEPT. OF
Cite as 832 F.Zd
O’SCANNLAIN, Circuit Judge:
This is the fourth round of judicial activi-
ty in olving a six-inch long finch-billed bird
called paula, found only on the slopes of
Mauna Kea on the Island of Hawaii.
As an endangered species under the En-
dangered Species Act (“Act”), 16 U.S.C.
§ 1331—43 (1982), the bird (Lo.rioides bail-
leui). a member of the Hawaiian honey-
creeper family, also has legal status and
wings its way into federal court as a plain-
tiff in Its own right. The Paula (which has
earned the right to be capitalized since it is
a party to this proceeding) is represented
by attorneys for the Sierra Club, Audubon
Society, and other environmental parties
who obtained an order directing the Hawaii
Department of Land and Natural Re-
sources (“Department”) to remove mouflon
sheep from its critical habitat. Sports
hunters, represented by the Hawaii Rifle
Association, among others, had intervened
to dispute the contention that the Palila
was “harmed” by the presence of mouflon
sheep Hence, these appeals. But, first,
some history.
FACTS AND PROCEEDINGS
In 1978 the Sierra Club and others
brought an action under the Act on behalf
of the Palila, claiming that the Depart-
ment’s practice of maintaining feral goats
and sheep (animals that originally were
domesticated but were allowed to run wild)
in the Palila’s critical habitat’ constituted
an unlawful “taking” under the Act. The
distnct court agreed and ordered the De-
partment to remove the animals because it
found that the goats and sheep destroyed
the mamane-naio woodlands upon which
the Palila depend. 2 Paula v. Hawaii Dept.
of Land & Natural Resources (“Paula !‘ ,
471 F.Supp.985 (D.Haw.1979). This court
affirmed. Paula v. Hawaii Dept. Land &
I. The Paula’s critical habitat is within land
o ned by the State of Hawaii.
2. The Paula is totally dependent on ihe ma-
mane-nab woodlands. Its preferred food is the
pods of the mamane tree, but the bird will also
eat mamanc flo ers, buds, and leaves, and the
berries of the nab tree The Palila also relies
on the marnane for shelter and nesting sites
LAND & NATURAL RESOURCES 1107
1106 (9th CIr. i988)
Natural Resources (“Paula II ”), 639 F.2d
495 (9th Cir.19S1).
In 1984 the Sierra Club reopened the
1978 proceeding by moving to amend its
original complaint to add mouflon sheep as
destructive animals to be removed from the
Palila’s habitat The mouflon sheep had
been introduced by the Department be-
tween 1962 and 1966 for the enjoyment of
sport hunters. Apparently, they had not
been the target of the original complaint
because research into their effect upon the
Palila’s habitat had not been completed
The mouflon sheep, like the feral sheep and
goats before them, feed on the mamane
trees.
In November 1986 the district court
ruled in favor of the Sierra Club. Palila t’.
Hau’an Dept. of Land & Natural Re-
sources (“Palzla II!”), 649 F.Supp.1070
(D.Haw 1986) It found that presence of
mouflon sheep “harmed” the Palila within
the meaning of 50 C.F.R. § 17.3’s definition
of “harm” in two ways: (1) the eating
habits of the sheep destroyed the mamane
woodland and thus caused habitat degrada-
tion that could result in extinction; (2) were
the mouflon to continue eating the ma-
mane, the woodland would not regenerate
and the Palila population would not recover
to a point where it could be removed from
the Endangered Species list.
The Department and intervenors filed
timely appeals. We granted the United
States amicus curiae status to represent
the view of the Secretary that Judge
King’s order should be affirmed, but for
reasons different than those stated in his
opinion.
DISCUSSION
The Department argues that the district
court construed the definition of “harm” in
“Harm” in the definition of “take” in the Act
means an act which actually kills or injures
wildlife. Such act ma include significant
habitat modification or degradation here It
actually kills or injures wildlife by significant-
ly impairing essential behavioral patterns. in-
cluding breeding, feeding or sheltering
SO.CF.R § 17.3 (1987).
3. The Secretary’s definition of harm reads’
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1108
852 FEDERAL REPORTER. 2d SERIES
50 C.F.R. § 17.3 tc broadly.’ The scope
of the definition of tarm is important be-
cause it in part sets the limit on what acts
or omissions violate the Act’s prohibition
against “taking” an endangered species. 5
El] In making this argument, the De-
partment suggests dichotomy bet een “ac-
tual” and “potential” harm. The Depart.
ment believes that actual harm only in-
eludes those acts which result in the imme-
diate destruction of the Paula’s food
sources; all other acts are “potential”
harm no matter how clear the causal link
and beyond the reach of the Act. Thus,
the Department challenges the district
court’s finding that habitat destruction
which could drive the Palila to extinction
constitutes “harm”
We inquire whether the district court’s
interpretation is consistent with the Secre-
tary’s constrtiction of the statute since he
is charged with enforcing the Act, and enti-
tled to deference if his regulation is reason-
able and not in conflict with the intent of
Congress. See United States z Rii’erside
Bayview Homes, Inc. 474 U.S. 121, 131,
106 SCt. 455, 461, 88 LEd2d 419 (1985).
While promulgating a revised definition
of harm, the Secretary noted that harm
includes not only direct physical injury, but
also injury caused by impairment of essen-
tial behavior patterns via habitat modifica-
tion that can have significant and perma-
nent effects on a listed species. 46 Fed.
Reg 54748, 54750 (1981) (codified at 50
C F R. § 17.3) Moreover, in that same
promulgation notice, the Secretary let
stand the district court’s construction of
harm in Paula I. Id at 54749—50. In Pali-
to I, the district court construed harm to
include habitat destruction that could re-
sult in the extinction of the Paula—exactly
the same type of injury at issue here. See
generally Pablo 1, 371 F Supp at 985 We
4. The Department also joins the United States’
argument that ihe district court erred when it
defined harm as including habitat modtficatton
ihat ouId pretent or dela the reco er of the
Paula We address this issue in section 111
5. The Act’s section on taking reads in reIe ant
pan “(lIt is unlawful for an person subject to
the jurisdiction of the Untted States to— (B)
take any such species ithin the United States
conc ude that the district court’s inclusion
within the definition of “harm” of habitat
destruction that could drive the Palila to
extinction falls within the Secretary’s inter-
pretation.
The Secretary’s inclusion of habitat de-
struction that could result in extinction fol-
lows the plain language of the statute be.
cause it serves the overall purpose of the
Act, which is “to provide a means whereby
the ecosystems upon which endangered
species and threatened species depend may
be conserved, . . “ 16 U.S.C. § 1531(b).
The definition serves the overall purpose of
the Act since it conserves the Palila’s
threatened ecosystem (the mamane-naio
oodland).
The Secretary’s construction of harm is
also consistent with the policy of Congress
evidenced by the legislative history. For
example, in the Senate Report on the Act:
“‘Take’ is defined in . the broadest pos-
sible manner to include every conceivable
way in which a person can ‘take’ or attempt
to ‘take’ any fish or wildlife.” S.Rep. No.
307, 93d Cong., 1st Sess (1973), reprinted
in 1973 U.S. Code Cong. & Admin News
2989. 2995. The House Report said that
the “harassment” form of taking would
“allo , for example, the Secretary to regu-
late or prohibit the activtties of bird atch-
ers where the effect of those activities
might disturb the birds and make it diffi-
cult for them to hatch or raise their
young” H R Rep. No. 412, 93d Cong, 1st
Sess (1973), 1973 U.S.Code Cong & Ad-
mm News 2989, reprinted in 4 House Mis-
cellaneous Reports on Public Bills, 93d
Cong - 1st Sess. 11(1973). If the “harass-
ment” form of taking includes activities so
remote from actual injury to the bird as
bird atching, then the “harm” form of tak-
ing should include more direct activities,
or the territorial sea of the United States ‘ 16
L’ SC § i538(a)(i) (l982)(emphasis added) In
the definition section of the Act, “ [ tlhe term
‘take’ means to harass, harm, pursue, hunt,
shoot. ound. kill, trap, capture, or collect, or to
attempt to engage in an such conduct” i6
I, SC § 1532(19) (l9B2)(emphasis added).
50 CF R § i7 3 defines harm, as well as
other terms in the Act
- . .
t .. . — . I • r
-------
such as the mouflon sheep preventing any
mamane from growing to maturity. 6
II
The Department contends that the dis-
trict court erred when it found an unlawful
‘taking” within the meaning of section 9 of
the Act. (Section 9—codified as 16 U.S.C.
§ 1538—lists the conduct prohibited by the
Act) The Department argues that no tak-
ing exists because the evidence shows that
(1) a huntable number of sheep (a flock
large enough to sustain sports hunting)
could co-exist with the Palila; and (2) the
Paula are doing poorly because of the re-
cently removed feral sheep and goats, not
the mouflon sheep. Our review is for clear
error. Oregon Envtl. Council r. Kunz-
man, 817 F.2d 484, 493 (9th Cir.1987).
A. Co-eristence
The Department’s witnesses conceded
that a large number of mouflon sheep in
one area could significantly damage the
mamane-naio woodlands and thereby drive
the Paula to extinction. However, these
witnesses maintained that a huntable num-
ber of mouflon sheep could co-exist with
the Paula. In support of its co-existence
thesis, the Department makes four argu-
ments. First, since the removal of the
feral sheep and goats, the mamane-naio
woodland has regenerated. This regenera-
tion will support both the mouflon sheep
and the Palila. Second, the Department
has begun a number of regeneration
projects (replanting, fertilizing, etc.).
Third, the mouflon sheep would not cause
significant degradation if the Department
controlled their density. Fourth, the popu-
1109
lation of the Palila has increased since Jan-
uary 1985.
The Sierra Club’s witnesses controverted
the Department’s thesis of co-existence.
First, although regeneration (new mamane
seedlings and sprouts) has occurred in
many areas, it takes twenty-five years for
the mamane seedlings and sprouts to be-
come mature trees capable of providing
food and shelter for the Palila. However,
for the first ten to fifteen years of this
growth period, the mouflon sheep can kill
the mamane trees and no significant regen-
eration would occur, at least not sufficient
to sustain the Palila unless the trees sur-
vive to twenty-five years of age. Second,
the Sierra Club’s witnesses showed that
the Department’s additional programs as
an alternative to removal of the mouflon
sheep would not work. Third, they disa-
greed with the premise that the mouflon
sheep population could co-exist with the
Paula if the Department controlled their
density. Fourth, the Sierra Club witnesses
stated that the Palila’s population, despite
short-term fluctuations, has been static
over the long term.
[ 21 The Sierra Club witnesses put forth
their own thesis: Because the grazing and
browsing habits of the mouflon sheep de-
stroy the mamane woodland upon which
the Palila depend entirely for their exist-
ence, the sheep must be removed. This
thesis received the support of one of the
state’s witnesses. This witness conceded
that he believes that the mouflon sheep
must be removed to ensure the survival of
the Palila.
The Sierra Club’s witnesses are not con-
tradicted by the documentary evidence (i.e.,
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PALILA v. HAWAII DEPT. OF LAND & NATURAL RESOURCES
Cite u$52 F.2d iiO6 (9thCIr. 1988)
6. In addition, the Secretary’s interpretation is
consistent with the presumption that Congress
is “aware of an administrative or judicial inter-
pretation of a statute and [ adopts] that interpre-
tation when it reenacts a statute without
change.” Lindahi v. Office of Personnel
Management, 470 U.S. 768, 782 n. 15, 105 S.Ct.
1620, 1628 n.i5, 84 L.Ed2d 674 (1985).
In June 1981, in reaction to Paula 1, the Secre-
tary promulgated a definition of harm which
apparently left no room for any form of habitat
destruction. Ho e er, the Secretary withdrew
this ne definition as the result of a large num-
ber of negati%e comments. Instead, in No em-
ber 198l, the Secretary introduced the present
definition. In 1982, after the Paula I decision
and the Secretary’s redefinition of harm, Con-
gress amended the Endangered Species Act
Endangered Species Act Amendments of 1982,
Pub.L No 97—304 (codified as amended at 16
USC § 1531—1543 (1982)) So, Congress pre-
sumably was aware of the current interpreta.
lion of harm when it amended the Act in 1982.
But Congress did not modify the taking prohibi-
lion in any matter. Thus, Congress’ failure to
act indicates satisfaciion uth the current defini.
lion of harm and its interpretation by the Secre-
tary and the judiciary.
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1110
852 FEDERAL REPORTER. 2d SERIES
studies of the Paula. mouflon sheep. etc.),
and the Sierra Club witnesses advanced a
coherent and plausible thesis On the issue
of co-existence, then, the district court’s
decision to accept the Sierra Club’s witness-
es’ testimony as more credible cannot be
clearly erroneous.
B. Feral Sheep and Goat.s Versus ifouf-
Ion Sheep
The Department’s witnesses asserted
that there had been significant regenera-
tion wherever the feral animals had been
removed. The Sierra Club’s witnesses
agreed, but they went on to argue that
where mouflon sheep have appeared, no
significant regeneration has occurred.
13) On the question of which animals—
the feral sheep and goats or the mouflon—
damage the mamane. the district court
again gave more credibility to the Sierra
Club’s witnesses; this preference cannot be
clearl erroneous where the Sierra Club’s
itnesses were not contradicted by docu-
mentarv evidence. Indeed, the testimony
given by the Sierra Club witnesses—notice-
able regeneration has occurred only where
the feral animals have been removed and
no mouflon sheep have appeared—is both
plausible and consistent
We affirm the district court’s finding
that the Department’s permitting mouflon
sheep in the area constitutes a “taking” of
the Paula’s habitat The district court
7. The Department also contends that the district
court acted t tih a bias in 1a or of the Sierra
Club but. curiously, does not request that the
matter be reassigned to another judge for re
trial
.% federal judge can be removed from a case
for personal bias under (1) 28 U.S.C § 144. (2)
28 L.S.C § 455, or (3) the common law of
reassignment—see, eg, Brown v Bade,i, 815
F.2d 575, 576 (9th Cir.), ten, denied, — L S
—. i08 SCt 450. 98 LEd2d 390 (1987)
Here, none of these three mechanisms entitles
the Department to relief
1. nder 28 US C § 144. either a timelt motion
must be filed, Hunnan t ’ Rogers, 83i F 2d 937,
938 (10th Cir 1987), or good cause sho n to
excuse a late motion Untied States t Branco,
798 F2d 1302, 1304 (9th Cir 1986) Here, the
Department t aited its Section 144 claim be.
cause it failed (1) to raise the issue belo and
(2) to show good cause for this failure
made its findings based on the testimony of
the Sierra Club witnesses, which as not
contradicted by extrinsic evidence. There-
fore, the district court’s findings should not
be held clearly erroneous. See Anderson
r City of Bessemer City, .V C., 470 U.S.
564, 575, 105 S.Ct. 1504, 1512, 84 L Ed.2d
518 (1985)(’When a trial judge’s finding is
based on his decision to credit the testimo-
fly of one of two or more witnesses, each of
whom has told a coherent and facially plau-
sible story that is not contradicted by ex-
trinsic evidence, that finding, if not inter-
nally inconsistent, can virtually never be
clear error”).
Ill
Under this resolution of the appeal, we
do not reach the issue of whether harm
includes habitat degradation that merely
retards recovery. The district court’s (and
the Secretary’s) interpretation of harm as
including habitat destruction that could re-
sult in extinction, and findings to that ef-
fect are enough to sustain an order for the
removal of the mouflon sheep. 7
CONCLUSION
The district court’s finding of habitat
degradation that could result in extinction
constitutes “harm.” The district court’s
finding of a “taking” was not clearl) erro-
neous We do not reach the issue of
whether the district court properly found
Under 28 U S C § 455. it is unsettled in this
circuit whether a claim must be tin’eI’ See
L,uted States v Sibla. 624 F 2d 864. 869 n 2(9th
Cir 1980), United Stales v. Con/one. 624 F 2d
869, 879, (9th Cir), cent denied, 449 1. S 1012,
101 SCt 568. 66 LEd2d 470 (1980). In re
Atonoa Fin Co, 781 F2d 1370, 1373 (9th Cir
1986), ten denied, 479 1 S 1064. 107 S Ct 948,
93 L Ed 2d 997 (1987). 1Iasbrouck i’ Texaco
Inc. 842 F 2d 1034, 1045—46 n 9 (9th Cir i9S8)
Ne ertheless. assuming. arguendo. that the Dc-
parirneni’s bias claim is timely. tse conclude
that no Section 453 claim e usis because the
questioned acts do not demonsirate personal
bias, instead, the fall within the district court’s
auihorit to facilitate b direct participation the
orderly progress of a trial Hansen t’ Cornmrs-
stoner, 820 F2d 1464, 1467 (9th Cir 1987)
Therefore. t e find that our standard for reas-
signmcnt has not been met See Cunron i’
Ln,on Pat RR Co. 813 F2d 917, 921 (9th
Cir 1987)
V
—4
-------
that harm included habitat degradation
that prevents recovery of an endangered
species.
AFFIRMED.
FEDERAL ELECTION COMMISSION.
Plaintiff—Appellant.
V.
TED HALEY CONGRESSIONAL COM-
MIrFEE; Theodore R. Haley; Joanne
Alger: Salle Baine: Dona Carlson;
George W. Edman; Frederick 1. Haley:
Richard C. Haley, Defendants—Appel-
lees.
Sos. 87—3867, 87—4248.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted June 9, 1988.
Decided July 22, 1988.
Federal Election Commissioner alleged
violation of Federal Election Campaign Act
by congressional election committee and
sought imposition of civil penalties. The
United States District Court for the West-
ern District of Washington, 654 F.Supp.
1120, Robert J. Bryan, J, found a lack of
violation and in the alternative found that
such a violation would not require imposi-
tion of civil penalties. On appeal, the
Court of Appeals, Brunetti, Circuit Judge,
held that: (I) postelection loan guarantees
were contributions within meaning of
FECA, and (2) trial court’s failure to im-
pose civil penalties was not abuse of discre-
tion.
Reversed and remanded.
I, Elections 317.l
Under applicable regulations, $5000
and $10,000 postelection guarantees of per-
sonal loan to unsuccessful candidate, pro-
1111
ceeds of which were used to retire Con-
gressional election campaign debts, were
contributions made “for the purpose of in-
fluencing an election for federal office”
and in violation of Federal Election Cam-
paign Act, even though guarantors claimed
they had not been approached nor promised
to make guarantees prior to election. Fed-
eral Election Campaign Act of 1971, § 301
et seq. 315(a)(1)(A), (f), 2 U.S.C.A. § 431
et seq. 441a(a)(1)(A), (f).
See publication Words and Phrases
for other judicial constructions and
definitions.
2. Statutes 219(4)
Judiciary is final authority on issues of
statutory construction and must reject ad-
ministrative constructions which are con-
trary to clear congressional intent.
3. Statutes 2l9(6)
Interpretation of provisions of Federal
Election Campaign Act limiting campaign
contributions by the Federal Election Com-
mission through its regulations and adviso-
ry opinions is entitled to due difference and
is to be accepted by the court unless de-
monstrably rational or clearly contrary to
the plain meaning of the statute. Federal
Election Campaign Act of 1971,
§ 309(a)(6)(B), 2 U.S.C.A. § 437g(a)(6)(B).
4. Elections 323
Trial court did not abuse its discretion
in failing to impose civil penalties on con-
tributors or campaign officials who made
or accepted postelection guarantees for
personal bank loan to former candidate to
raise money to settle debt of congressional
campaign; candid report of loan, rapid re-
payment of loan from former candidate’s
personal funds and innocence motive ren-
dered penalties inappropriate. Federal
Election Campaign Act of 1971,
§ 309(a)(6)(B), 2 U.S.C.A. § 437g(a)(6)(B).
5. Elections 323
Assessment of civil penalties for viola-
tion of contribution limits in Federal Elec-
tion Campaign Act is discretionary with
trial court. Federal Election Campaign Act
of 1971, § 309(aX6)(B), 2 U.S.C.A.
§ 437g(a)(6)(B).
.?. - . :
FEDERAL ELECTION COM’N v. TED HALEY CONG. COM.
CIIeaiSS2 F.2d liii (SthClr. i98 5)
-------
_ C ._ _i . -_ . _ _ . .- ._es _ —
1294
rated that A Ian’s pain episodes were recur’.
rent and severs. There is no evidtnce that
Dr. Clopton had access to this testimony
when rendering his medical opinion Fur.
thermore. medical notes from the Arkansas
Children’. Hospital, dated April 8, 1987,
indicate that Alan had suffered from two
episodes of abdominal pain within the
week, each lasting 20 to 30 minutes These
note. corroborate the testimony of Nash
and Brown that Aim has been experienc-
ing severe pain crises. No medical opinion.
however, has been obtained to explain the
presence of these crises and to determine
whether they meet the listing requirement.
(33 The AIJ indicated at the hearing
that the regulation pertaining to sickle cell
anemia is difficult for the lsyperson to
decipher. We agree For that reason, we
believe that a remand is required to allow
the ALl to submit further interrogatones
to Dr. Clopton and Dr. Berry for the pun-
pose of determining whether the pain cris-
es presently esperienced by Alan are se-
vere enough to render him disabled under
section 10705
We therefore hold that, in the present
case, 20 C.F R. 5 416.924 does not violate
the statutory scheme set out in 42 U S C.
I l882c(a) (3) (A) We find, however, that
Insufficient evidence exuits in the record to
support the AL.J’s conclusion that Alan’s
sickle thalasaeinis disease does not meet or
equal the listed impairment of 20 C F ft.
Part 404, Subpart P, Appendix 1, Section
107.05. We remand to the district court
for further proceeding, consistent with this
opinion.
DEFENDERS OF WILDLIFE: the 91cr.
‘. Club; and Friends of Animals and
Their EnvIronment, Appellees,
V.
ADMINISTL4TOIL, ENVIRONMENTAL
PROTECTION AGENCY; and Seers.
iai ., Department of the Interior, Appel.
lants,
and
American Farm Bure*u Federation, a
nonprofit corporation,
Intervenor—Defendajit Below.
DEFENDERS OF WILDLIFE; the Sier-
ra Club; and FrIends of Animals and
Their Environment, Appellees.
V.
ADMINlSR ’Op, ENVIRONMEN
PROTECTION AGENCY; end Secre-
tary, Department of the Interior,
and
American Farm Bureau Federation, a
nonprofit corporation, Appellant,
No.. 88-6242, 884243.
United States Court of Appeals,
Eighth Circuit
Submittpd Oct. 17, 1988.
Decided Aug 16, 1989.
Wildlife and environmental organiza-
tions brought suit against the Administra-
tor of the Environmental Protection Agen-
cy and the Secretary of the Int nor, chal-
lenging the continued registration of
strychnine pesticides and rodenticides for
above-ground uses Farmers’ and ranch-
er,’ federation intervened as a defendant.
The United States District Court for the
District of Minnesota, Diana S. Murphy. J,
688 F Supp 1334, granted partial summary
judgment in favor of the environmental
groups Appeal was taken. The Court of
Appeals, Fagg, Circuit Judge, held that. (1)
the organizations could maintain a suit un-
der the citizen suit provision of the Endan-
gered Species Act, even if an incidental
result of a successful suit would be cancel-
1. Agriculture es’g.ll(I)
Federal Insecticide, Fungicide, and Ro-
dsntictds Act was exclusive means of can-
celling iegistration of pesticides, but it did
not bar suit claiming that Environmental
Protection Agency violated Endangered
Species Act by continued registration of
strychnine pesticides, even if finding of
ESA violation could incidentally cause can-
cellation. Federal Insecticide, Fungicide,
and Rodenticide Act, 55 2-31, 3(a),
12(aX1XM. as amended, 7 U.S.C-A. 55 186—
186y, 186a(a), 196j(aXLXA); Endangered
Species Act of 1973, 55 2-11, 16 U.S.C-A.
55 1581—1643.
2, Game 3ih
Endangered Species Act imposes sub’
atantial and continuing obligations on fed-
eral sgencies to conserve endangered and
threatened species, and to use agency an-
thority to further purposes of Act Endan-
gered Species Act of 1978, 55 2—il, 2(cXl),
3(3), 16 U.S.C.A. U 1531—1543, 1531(eXl) ,
1532(3).
3. Genie 3’h
Federal agency must still comply with
Endangered Species Act, even though it
may be acting under different statute such
as Federal Insecticide, Fungicide, and Re-
denticide Act. Endangered Species Act of
1978, 55 2-17, 2(cXl), 9(3), 16 U.S.C-A.
55 1631—1543, 1531(cXl), 15S2(3 Federal
Inaeeudde Fungicide, and Rcdenticide Act,
55 2—31, 9(a), 12(aX1XA), as amended, 7
U.S.C-A. ft 186—136y, 186s(a). 136j(aX1XA).
4. Game 3’h
Citizen suit provision of Endangered
Species Act permitted environmental orga-
nizations to sue Environmental Protection
Agency In effort to enjoin asserted viola
1295
tions of Endangered Species Act by contin-
ued registration of strychnine pesticide and
rodenticide, even if incidental effect of sue-
eeaaful suit could include cancellation of
registration. Endangered Species Act of
1978. U 7(a 2), (bX8XA), 11(gX IXA), 16
U.S.C.A. *5 1586(aX2), (bX8XA),
1540(gX1XA) Federal Insetticide, Fungi-
cide, and Rodenticide Act. 5* 2-81, 8(a),
12(aX1XA). as amended, 7 U.S.C.A. 5* 186—
186y, 186a(a), 186j(aX1XA).
6. Game in’3’jt
Federal agency must have written au-
thorization from Secretary of Interior be-
fore agency proceeds with action that re-
sults in incidental taking of endangered
species. Endangered Species Act of 1973,
ft 7(a)(2), (bX4), (o )(2), 9(.X1XB, C), 16 U.S.
C-A. *5 1536(aX2), (bX4), (o 3(2),
1588(a3( IXB, C).
8. Gains 3 / 1
Environmental Protection Agency ef-
fected “taking” of endangered species by
continued registration of strychnine pesti-
cides sad rodenucides for above ground
uses; endangered spsciçs had been poi-
soned by strychnine bait and EPA’. decision
to continue registration was critical to resul-
tant poisonings. Endangered Species Act of
1978, 53(19), 16 U.S.C-A. 5 1532(19).
Sec publication Words sad Phrases
for other judici al constructions sad
definitions.
7. Game ev’3 1 *
Incidental taking statement issued by
Fish and Wildlife Service did not retroac-
tively excuse incidentai takings of endan-
gered species by continued registration of
strychnine pesticides and rodenticides;
EPA was required to obtain incidental tsk-
log statement before it took action that
resulted in taking. Endangered Species
Act of 1973, 5 7(bX4), (o )(2), 16 U.S.C-A-
5 1586(bX4) (o )(2)
8. Game en.3%
Bald and Golden Eagle Protection Act
and Migratory Bird Treaty Act, in combina-
tion with Administrative Procedure Act, did
not give district court jurisdiction to seek
‘I
‘‘ I
.1,
ii
882 FEDERAL REPORTER, 2d SERIES
DEFENDERS OF WILDLIFE.. ADMINISTRATOR. E.P.A.
a...sm pad is is lath ci ,. 1555)
lation of a pesticide registration; (2) contin-
ued registration of the atrychnine pesti-
cides effected a “taking” of endangered
species, and (8) the organizations could not
maintain their claims under the Bald and
Golden Eagle Protection Act and the Mi-
gratory Bird Treaty Act, In combination the
the Administrative Procedure Act.
Affirmed in pert and reversed In part
-------
1 .a. *
DEFENDERS OF WILDLIFE v. ADMINISTRATOR, KP.A. 1297
Cii. ..U2 P24 isSi tusaca ills)
also 40 C.F R. Pt. 154 (1987) (The RPAR tice became final regarding other atrych-
process is now called the Special Review nine registrations.
process). While the EPA gathered more Defenders of Wildlife. Sierra Club. Faint
information and developed Its analysis the Bureau. FWS. and the United States Do-
EPA issued several Position DocUments. partment of Agriculture intervened in the
The documents detailed the risks and bone-
FIFRA proceeding. After some prelimi.
fits of strychnine and stated proposed EPA
action. The EPA also consulted the Fish nary stages of the proceeding had occurred
but before the hearing had commenced, the
and Wildlife Service (FWS). an agency rep- parties entered settlement discussions.
resenting the Secretary, about the impact Tl diecussions lasted from 1984 to 1986.
of strychnine on protected species. See
Endangered Specie. Act (FZA). 16 U S.C. During this period, the EPA reinitisted for’
* 1536(a) (2) (1982) (agency, in consultation mM consultation with the FWS regarding
with Secretary, must insure its action is the strychnine threat to black-footed fey-
likely to jeopardize protected species). retS. In November 1984, the FWS issued a
second biological opinion. The FWS con-
The FWS issued a biological opinion iii cluded that jeopardy could be avoided
1979 that indicated several protected wild- through a precontrol survey for ferrets
life species were likely to be jeopardized by living near the target prairie dog colony.
strychnine use. hL 1636(bX3XA) (1982).
As required by the ESA. the PWS also All partie. reached an oral agreement on
recommended “reseonable end prudent al settlement. The agreement generally per-
ternatives” to avoid jeopardy to the extent mitted the continued above-ground use of
these alternatives existed. Sec Id.; see strychnine as a pesticide, but restricted the
also id. 1536(aX2). The black-footed fey- use to a greater extent than under the old
ret was among the animals and birds listed, registrations. When the agreement was
Because these ferrets often live near prsi- reduced to writing, Defenders of Wildlife
ne dogs, the FWS indicated that strychnine and Sierra Club h.d misgivings and re-
use against prairie dogs should be prohibit . fused to sign the written agreement.
ed if ferrets were present. The FWS later These environmental groups notified the
indicated that it could not verify to an administrative law judge of their objections
acceptable level of probability the absence and requested that a hearing tslce place.
of ferrets in a prairie dog colony. All other parties signed the agreement.
The EPA continued its study of strych’ Although the EPA indicated it would ha.
nine and ui 1983 issued a Notice of Intent . t the environmentalists’ concerns, the
to Cancel under FIFRA. See 48 Fed Reg. EPA believed it hid no obligation to hold
48.522 (1983). The notice indicated the an administrative hearing at the urging of
EPA intended to cancel several strychnine these groups. Sc. Eviv,runmental Do.
registrations, including registrations for , , 4 r ‘ jn & inc. v. CosUe 631 I’2d 922,
use againat meadow mice and prairie dogs. (D.C.Cir.1980) (if EPA refuses to
The notice sian indicated an intent to cancel
take action as restrictive as requested by
the registration for use against ground environmentalists, the agency need not pro-
squirrels unless the registrants implement- ride an administrative hearing to environ-
ed further restrictions. Wyoming and
South Dakota requested an administrative mentalists; judicial review of EPA’s refus-
al to act is available). cart denied. 449 U.s.
hearing on cancellation of registrations for 1112, 101 S.Ct. 923, 66 LEd.Zd 841 (1981).
meadow mice, prairie dogs, and ground Thus, an administrative hearing never cc-
squirrels. S.c 7 USC § 136d(b) (1982). curred.
These three registrations remained in force
during the administrative process. See Id. In August 1986, when it appeared the
9 l86d(c) (1982 & Supp. IV 1986) (a chal- EPA intended to go forward with the set.
lenged registration remains In effect dur- tiement agreement. Defenders of Wildlife.
lag pending cancellation proceedings unless Sierra Club, and Frienda of Animals sad
EPA suspends registration). The 1983 no- Their Environment (collectively Defew’
se
1296 91 12 FEDERAL REPOIt1’Ejt, 2.1 SERIES
review of Environmental Protection
the
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.
rye continued registration of strychnine
pesticides under Federal Insecticide, Fungi.
cide, and Rodenticide Act, FIFRA provided
framework for obtaining judicial review
and, thus, APA review was precluded 28
U.S CA. 91331, Bald Eagle Protection
Act. 991—5, 16 IJ.S.C.A. 99 668—668d; Mi-
gratory Bird Treaty Act, §9 2—12, 16 US.
CA. §9 703-711; 5 U.S CA 9 706(2XA),
Federal Insecticide, Fungicide, and linden,
ticide Act, 9 16(a), as amended, 7 US.CA.
I 136n(a).
9. AgrIculture 1
Federal Insecticide, Fungicide, and Ro-
denticide Act provides its own mechanism
for obtaining judicial review and, thus, Ad-
ministrative Procedure Act does not pro-
ride independent source of jurisdiction, but
rather, merely states scope of review. 5
u. C.A ft 704, , 706(EgA), Federal In-
secticide, Fungicide, and Rodenticide Act,
I 16. as amended, 7 U S.C.A I 186n.
Geoffrey Jarpe. St. Paul, Mmii., for
American Farm Bureau .
Kathleen Dewey, Washington, D.C., for
the Government.
Brian O’Neill, Minneapolis, Minn., for sp-
pellee.
Before HEANEY, FAGG, and
WOLLMAN, Circuit Judges
PAGG, Circuit Judge
Several environmental interest groups
sued the Administrator of the Environrnen.
tal Protection Agency (EPA) and the Seers-
tery of Interior (Secretary) to prohibit the
above-ground use of pesticides containing
strychnine American Farm Bureau Feds’.
alien (Psi-ni Bureau), representing farmers
and ranchers who use these pesticides, in-
lervered us a defendant. The district court
entered partial summary judgment against
the defendants, see Defenders of Wildlife
‘ P. Administrator, EPA, 688 FSupp 1334,
1855 (DMinn. 1988), and the defendants
now appeal After carefully considering
The HONORABLE GERALD W HEAtIEY ii.
complex issues raised in this case, we
affirm in part and reverse in part.
I Background
Congress enacted the Feder.l Insecticide.
Fungicide, and Rodenticide Act (PIFRA) to
regulate the use of pesticides in this coun-
try See 7 USC ft l 36 -I86y (1982 &
Supp IV 1986) Under FIFRA, pesticides
must be registered with the EPA before
they may be sold or distributed Id.
ft l36a a), 136J(aX1XA) (1982). The EPA
may approve an application for registration
only after determining that when used in
compliance with “commonly recognized
practice,” the pesticide will “perform its
intended function without unreasonable ad-
verse effects on the environment.” hf
* 196a(cX5XC) -(D) (1982) If, at any time,
the EPA believes a registered pesticide
fails to meet this standard, the EPA may
initiate an administrative process to cancel
the registration The EPA does so by pub-
listing a Notice of Intent to Cancel Se.
id. * 136d(b)(l) (1982). Registrants and
users of the pesticides may request an ad.
ministrative hearing and later obtain judi-
cial review of the EPA’s final decision on
cancellation, See id. ** 136d(b), 138n (1982
& Supp. IV 1986).
With that statutory background, we turn
to the present cue. Strychnine is an ac
tive ingredient in several pesticides reg.
istered with the EPA. This poison is high.
ly toxic and kills both target and nontaiget
species of wildlife In midwestern and
western state., farmers and ranchers use
strychnine to control rodents that may
harm their land or crops. These users
often place strychnine in grain bait, and the
bait attracts the target species Nontarget
species die when they eu either the bait or
the poisoned rodent. Thus, environmental
groups have become concerned about the
threat strychnine poses to protected specie.
of wildlife.
In the 1970s. the EPA began to reconsid-
Cr the above-ground use of strychnine sad
issued a Rebuttable Presumption Against
Registration (RPAR), 40 C.FR. * 162.11
(1976) See 41 Fed.Reg. 52,810 (1976k ice
nuned uisiler icalus Jsnussy I , 1949.
-------
1298
filed suit in federal district court Defend-
ers asserted that the EPA and the Seer..
tary had violated several federal wildlife
statutes through their actions regarding
stJyclinme (1) the Endangered Species Act
(86A), 16 U.S.C. • 1531—1543 (1982 &
Supp. V 1987). (2) the Bald and Golden
Eagle Protection Act (BGEPA), 16 U.S.C.
33 668—6634 (1932), and (3) the Migratory
Bird Treaty Act (MB ? . ’ .), 16 U.S.C 33 703-
712(1982 & Supp. V 198?).
The 3 A establishes a private right of
action. See IS USC. l540(g 1) (1982)
(citizen suit provision) Defenders relied
on this provision as a basis for jurisdiction
on the 1 A claim. Neither the BGEPA nor
the MBTA provides a private right of ac.
t on. Thus. Defenders relied on a combina-
tion of these two environmental statutes,
the Administrative Procedure Act (APA), 5
U.S.C. § 561—559, 701—706 (1982 & Supp.
IV 1986), and the federal question statute,
28 11.5 C. 1331 (1982), to form an inde.
pendant basis of jurisdiction Finally, Do.
fenders asserted the federal defendants
had violated the APA by acting arbitrarily,
capriciously, and not in accordance with the
law, 8 USC • 706(2XA) (1982).
Some months after filing suit, Defenders
submitted the infonns on they had com-
piled on poisonings of protected species
(the Kill Book) to the EPA. The EPA
began to review the Kill Book, but never.
theless published the eettlenient agreement
as its final decision in March 298?. See 62
Fed keg 6762 (1987) In September 1987,
over one year after the filing of this suit,
the EPA reinitiated conaulta on with the
FY 15. The EPA did so based on the Kill
Book. The FWS issued two additional blo.
logical opinions just after the district court
ruled in this case.
All parties filed summary judgment mo.
tions, and the district court held a hearing
on those motions The court rejected sev
eral of the defendants’ assertions, includ.
ing that FIFRA provided the exclusive rem-
edy for Defenders and that Defenders had
failed to exhaust their remedies under Pt.
PRA. Defender, of Wifd4ye v. Adminj..
frafo,., EPA, 688 P Supp 1834, 1342-43
(D.Minn.1998). For purposes of its review,
the court also found the EPA took final
agency action in deciding to restrict but not
cancel the three strychnine registrations.
Id. at 1343-44.
The court reached the merits of Defend-
ers’ claim and found the following. (I) the
EPA’. continued registration of strychnine
resulted in poisonings of protected species
under the FSA, BGEPA, and MBTA and.
thus, constituted an illegal “taking” under
those statutes, id at 1951, 1354, (2) by
continuing its registration of strychnine
while knowing that strychnine use may i’s-
suit in taking endangered species, the EPA
acted not in accordance with th law. IiL at
1349; and (9) the EPA’s revocation of ha
1983 Notice of Intent to Cancel, which was
replaced with the settlement agreement,
was arbitrary and Capricious under the
APA, sd at 1348. The district court then
entered an order granting injunctive relief.
Id. at 1355-67. The order basically en.
joined the EPA from continuing its regis.
tration of strychnine until the EPA could
do so without illegally taking protected up..
o le. of wildlife. Id. at 1856-57.
II. Analysis
Although they assert other arguments,
the defendants focus on one main contest-
den’ Defenders are seeking a cancellation
of three strychnine registrations, and thus,
Defenders must proceed under FIFR&
The defendants contend that Defenders’
remedy lies in petitioning the EPA to can.
cal the three challenged registrations. S..,
e.g., 40 C FR 3164 10 (1987) (petitioning
to initiate Special Review). If the EPA
refuses to cancel, Defenders may seek judi’
cial review In the district court under an
arbitrary and capricious standard See 7
U.S C. 3 136n(a) (1982k see also £‘nvir n.
menial Defense Ftind, Inc. u Cc tIe, 631
F.Zd 922, 935 (DC Cir.l980), ce,t. denied,
449 U.S. 1112. 101 S CL 923,66 LEd.2d 841
(1981).
Through FIFRA, Congress implemented
a comprehensive framework that balance,
agricultural and envIronmental concerns
See, e.g, I U.S.C 3 186a(cX5XC)..(D) (1982)
(pesticide may be registered only if it does
not cause “unreasonable advet e effect, en
111 When Congress has established a
special statutory review procedure for ad.
ministrative actions, we generally treat
that procedure as the exclusive means of
review See Sebben it. BrocFc, 815 F.2d
476, 478 (8th Cir,l987). vvv’d on otiie,’
girounds sub non,. Pittston Coal Group n
Sebben, — U.S. —, 109 S.Ct. 414, 102
LEd2d 408 (1988k C14t of Rochester u
Bond, 603 F.2d 987,931 (D.C.Cir.1979)r, cf
Nagel ii. Thomas, 666 F Supp. 1002, 1010
(W D Mich.1987) (Because FIFRA has a
comprehensive scheme for judicial review,
the general federal question statute cannot
be relied on as jurisdictional bsse for a
ll ’IFRA challenge.). We behave Congress
intended that FIFRA provide the exclusive
means of cancelling a registration. If De’
fenders were suing only to cancel pesticide
registrations, we would require them to
proceed under the FIFRA framework. See
MCTTeU v. Thomas, 80’? F.2d 776, 782 n. 8
(9th Cir 1986), cert. denied, 484 U S. 848,
108 S.Ct. 145, 98 LEd.2d 101 (1987) (In a
suit to force the EPA to comply with the
National Environmental Policy Act before
registering pesticides, the Ninth Circuit
stated that if Merrell had sued to cancel a
pesticide registration, Merrell would have
failed to exhaust sdminiali’ative remedies.).
Defenders, however, claim they are Cu-
ing to enforce various wildlife statutes.
According to Defenders, any cancellations
that occur will result only as an indirect
effect of forcing the EPA to comply with
the wildlife statutes. We turn to examine
the parties’ arguments.
882 FEDERAL REPORTER, 24 SERIES
., c i
S
: .
DEFENDERS OF WILDLIFEv. ADMINISTRATOR. E.P.A. 1299
ca. ee 5.24 iiw (sihci . isa .)
the environment”), id 3 1S6(bb) (1982) (do’ A. The Endangered Species Act
fines “unreasonable adverse effects on th 123 The Supreme Court has character-
environment” as “unreasonable risk to man ized the Endangered Species Act (ESA), 16
or the environment, taking into account the U.S.C. 33 1631—1543 (1982 & Supp. V 1987),
economic, social, and environmental costs as “the most comprehensive legislation for
and benefits of the use of any pesticide”), the preservation of endangered species
The EPA. in reviewing registrations and ever enacted by any nation.” Tennessee
applications for registrations, strikes this Volley Auth. it. 11*24 487 U.S. 153. 180,98
balance in each case. FIFRA contains the S.Ct. 2279, 2294, 67 LEd 24 117 (1978). In
procedure the EPA must follow in grant. the ESA, Congress declared that “all tf)ed’
mg. denying, or cancelling registrations, eral’ • agencies shall seek to conserve
and FIPRA provides for administrative endangered species and threatened species
Judicial review of these agency decisions, and shall utilize their authorities (to fur-
ther) the purposes of this (Act].” 16
U.S C.3 1531(eXl) (1982k see sd. 3 1532(8)
(1932) (defining conserve). The ESA thus
imposes substantial and continuing obli.
gations on federal agencies. Sea Sierra
ChILI, c. Lyisg, 694 F.Supp 1260, 1270 (E.D.
Tex. 1988).
(31 Even though a federal agency may
be acting under a different statute, that
agency must still comply with the ESA.
See Coitaervatson Law Found Andrus,
623 F2d 712, 715 (1st Cir.19’19) (ESA ap’
plied “of its own force” to actions of Sea.-
tary taken under Outer Continental Shelf
Lands Act). Congress has made “a con-
scious decision “ to give endangered
species priority over the ‘primary missIons’
of federal agencies.” Tennessee Volley
Auth., 437 US at 185, 98 S.Ct. at 2297.
F1FRA does not exempt the EPA from
complying with ESA requirements when
the EPA regiatera pesticides. Indeed, a
pesticide registration that runs against the
clear mandates of the ESA will moat likely
cause en unreasonable adverse effect on
the environment under FIFRA. See, e.g.,
40 C.F.P..3 154.7(aX8)-(5) (1937k EPA 3 .
hibit 265 at ii (Position Document 4) (so’
knowledging that ‘ltJlie protection of en-
dangered species is critical to (EPAI dod’
sions”). ,Finally, through its conduct In
dealing with the .t,ychnhne question, the
EPA has recognized that the ESA applies
to actions taken by it under FIFRA.
141 Unlike some statutes, the ESA pro’
vides a private right of action to enjoin
violations of the Act “any person may
commence a civil suit • to e, oin (an-
other]. including the United States and any
I.
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id. 1688(sX1XS) -( ) (1982) The Act,
however, provides an exception for takings
that occur incidentally to the agency’s ac-
tioiis and are authorized by the Secretary.
See it 9 1536(bX4), (oX2) (Supp V 1987);
see aIjo SO C F ft. 402.02 (1987) (defining
incidental taking) After consultation, the
Secretary will issue an incidental taking
statement if the Secretasy concludes: (1)
the agency’. action, with any reasonable
and prudent alternatives, Is not likely to
jeopardize the continued existence of pro.
tected specie, under the ESA, and (2) any
incidental taking of these species is not
likely to jeopardize their existence 16
U S.C 1636(b)(4), see id. 9 1536(aX2)
The incidental taking statement will ides.
tify the expected impact of the incidental
takings, the reasonable and prudent mea’
sures necessary to minimize the impact.,
and the terms and conditions that the agen-
cy most comply with to implement these
measures, 16 U S.C. 9 1536(b)(4); 60
C.F ft. 9 4 O 2 .l4(gX7), .14(i) (1987). An
agency must have this written authoriza.
hon before proceeding with action that re.
suIt, in an incidental taking.
The EPA failed to obtain an incidentaj
taking statement from the FWS until 1988
The record, however, shows etrychmns
deaths of endangered species occurred be.
fore that time, flue, the issue here I
whether the continued registration of a
pesticide, as distinguished from the distri.
button or use of that pesticide, can coned-
lute In illegal taking under the ESA.
161 Congress afforded endangered spe’
cies “the highest of priorities” Tenrgesse.
Valley Auth., 437 U.S. at 174, 98 S.Ct. at
2292. Thus, the ESA broadly derines
“take” to mean “harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in any such
conduct,” 16 U SC. 9 1532(l9) (1982) see
S Rep No. 307, 93d Cong. 1st Seas, 7,
reprinted in 1973 U,S,Code Cong. & Ad.
min.Newa 2989, 2995 (“ ‘Take’ is defined
in the broadest possible manner to
include every conceivable way in which a
person (including federal agencies) can
‘take’ or attempt to ‘take’ any fish or wild-
life.”) A taking occur. when the dial.
lenged activity has “some prohibited im.
pact on an endangered species” Paula ii.
Hawaii Dep’t of Land & Natural Re.
sourCes, 639 F.2d 495, 49’? (9th Cir.l981)
(state’s maintenance of sheep and goats in
critical habitat of an endangered species,
causing destructive impact on that species,
constituted a taking by state under the
ESA). Sierra Club, 694 F.Supp. at 1268-72
(United States Forest Service ti’ee.cutting
practices harmed habitat of an endangered
species and thus constituted a taking). The
prohibited impact can arise from acts that
“significantly impair! essential behsviorial
patterns (like) feeding” 50 C.F.R.
917.3 (1987) see Pizlila v. Hawaii Dep’t
of Land & Natural Resources, 852 F.2d
1106, 1108 (9th Cir 1988) (taking includes
actions other than direct physical injury).
The EPA’s strychnine registrations had a
prohibited impact on endangered species.
See National Wildlife Fed i v. Hode4 23
Env’t Rep.Ca . (BNA) 1089, 1092-93 (ED.
Cal.1985) (The FWS authorized the use of
lead shot ammunition, which resulted in sec-
ondary poisoning of held eagles; the court
held the FWS’s authorization constituted a
taking under the ESA). First, the record
shows endangered specie, have eaten the
strychnine bait, either directly or indirectly,
and as a result, they have died, The district
court noted that defendants did notaenously
dispute these poisoning. had occurred, See
Defenders of Wildlife, 688 F.Supp. at 1354
n. 86 Second, strychnine can be distribut-
ed only if it is registered. ConaequenUy,
the EPA’s decision to register pesticides
containing strychnine or to continue these
registrations was critical to the resulting
poisonings of endangered species. The re-
Istionship between the registration decision
and the deaths of endangered species is
clear. We thus conclude the EPA’s regis-
tratlons constituted takings of endangered
species.
171 Although we believe takings have
occurred, we must continue our inquiry.
The ESA permits takings under limited cir
cumatances. See 16 U.S.C. 9 1536(bX4),
(oX2), As we noted earlier, see ante at
1800, takings that are incidental to tire
agency action and authorized by the Seers.
1301
tary will not violate section 1538 (prohibit-
ed takings) if the takings comply with the
‘incidental taking statement issued by the
Secretary. See 16 U S.C. 9 1536(bX4),
(oX2), SOC P.R. 402.14(g)(7), .14(i) (1987)
In this case, the EPA had no authorization
from the Secretary for the incidental tak-
ings. The FWS first issued an incidental
taking statement to the EPA in 1988, just
after the district court rendered its deci-
sion Because the EPA acted without an
incidental taking statement, the takings vi-
olated the ESA.
The EPA now contends the 1988 inciden-
tal taking statement excuses the Incidental
takings that have already occurred. The
statement by FWS indicates that the antici-
pated level of incidental takings will be
minimal provided the reasonable and pru-
dent alternatives are followed, Under the
ESA. however, an agency must obtain an
incidental taking statement before it takes
the protected species. The 1988 FWS
statement does not retroactively excuse the
takings that occurred before the Secretary
issued the statement. We thus agree with
the district court that the EPA’s actions
resulted in takings that violated the ESA.
See Defenders of Wildlife, 688 F.Supp. at
1354. The court properly enjoined the EPA
from continuing strychnine registrations
under these circumstances. See id. at
1354, 1357.
Nevertheless, our decision does not fore-
close the EPA from asking the district
court to rescind the ESA injunction in light
of the 1988 FWS taking st.atmnent If the
EPA can show that it has now obtained
authorization for the incidental takings and
has acted in compliance with the require-
ments of the taking statement, the court
should lift the ESA injunction.
B. The Bald and Golden Eagle Protec-
tion Act and the Migratory Bird
Treaty Act (the “Bird Acta”)
IS) Unlike the ESA. neither the Bald
and Golden Eagle Protection Act (BGEPA),
16 U.S.C. ft 668-668d (1982), nor tire Mi-
gratory Bird Treaty Act (MB’I’A), 16 U.&C.
99703-712(1982 & Supp. V 1987), contain
provisions for private rights of act
882 FEDERAL REPORTER, 2d SERIES
——4.
DEFENDERS OF WILDIIFEv. ADMINISTRATOR, E.P.A.
cii...ui F.zd iSsi (5iI.C iqsS)
I 4 I
V ‘
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1300
other governmental sgency (,)
(claimed) to be in violation of any provision
of this (Act) or regulation issued under the
authority (of this Act)”’” 16 U.S C.
9 1540(g)(1)(A) (1982). Congress thus en
couraged citizens to “bring civil suits
to force compliance with any provision of
the Act” Tennessee Valley Auth., 487
U.S. at 181, 98 S Ct. at 2295. We believe
the citizen suit provision permits Defenders
to sue the EPA in an effort to enjoin any
asserted violations of the ESA See Mid.
dlesex County Sewerage Auth. v Nation.
olSen ClaminersAu’n, 453 US 1,15,101
S.Ct. 2615, 2623, 69 LEd 3d 435 (1981) (“In
the sbsence of strong indicia of a contrary
congressional intent, we are compelled to
conclude that Congress provided precisely
the remedies it considered appropriate,”),
The district court properly permitted De.
fenders to proceed under the citizen suit
provision Consequently, we turn to the
merits of the ESA claim.
The district court held the EPA had yin-
Iated the ESA because its continued regis.
trations of strychnine resulted in unautho.
rized takings of endangered species. De.
fenders do not appeal the court’s rejection
of their other assertions of ESA violations,
Thus, we consider only the takings issue.
The ESA commands that a federal ages.
cy, in consultation with the Secretary, must
“insure that any action (the agency) autho-
rize(s) ‘ ‘ is not likely to jeopardize the
continued existence of any endangered spe-
cies or threatened species,” 16 U S.C.
9 1536(a)(2) (1982). Thus, in fulfilling this
obligation to insure against jeopardy, the
“acting agency” (here, the EPA) consults
with the Secretary who then issues a bio-
logical opinion. The opinion indicates the
effect of the agency action on protected
species. It 9 1586(bXSXA) (1982). The
Secretary also identifies any “reasonable
and prudent alternatives” that exist to
avoid Jeopardizing these species. Id. The
ultimate burden remains on the acting
agency to insure any action it pursues “is
not likely to Jeopardize” protected species.
It 9 1536(a)(2)
(5) The ESA also generally prohibits
- “taking” of a protected species. See
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1302
Further, Defenders concede that they could
not assert a private right of action, express
or implied, under the Bird Act... See Dc.
fendey, of Wildlife, 688 F.Supp at 1819.
Defender, therefore rely on a eomb,na n
of the Admm, , ve Procedure Act
(APA), the BGEPA, the MBTA, and 28
U .S .C. 5 1831 (1982) (federal question june-
dictIon) to form an lndependen source of
jurisdict ion.
The district court found this jurfsd.c n.
al argument per .uuiye. The court relied on
Alaska F ,h & W,ldlyb Pedevae 10 & Out-
door Council, I nc. v. D nk1; 829 F.Zd 983
(9th CIr.198?), cert. den,rij —U.S , 208
S.Ct. 1290, 99 LEd,2d 501 (1983), and D c-
fend,,., of Wildlife p. Aiidreie, 428 F.Supp.
167 (D DC 1977). See Defenders of Wildlife,
688 F Supp at 1349—60 Those cue ,, howev-
er. deal with challenges to agency action
taken under the particular wildlife utatut, in
queaUo . See Alaska * & Wild4/b
Fed ’,, & Outdoor Coanicg Inc., 829 P.2d
at 934-36. 938, Defend,, 7 of Wild l 1 fe , 428
F.Supp. .t 168. Thus, they reflect the tia.
ditional manner in which the APA lies been
used, See Glacier Park Found, v Watt
663 F.2d 882, 885 (9th Cir 1982) (“Regard.
less whether a statute implie, a priva
right of action, admunisti., ,e actions [ Un-
der the statute] may be challenged under
the APA” .‘) Our situation is differ-
ent. The EPA acted under PIFJLt. Yet.
Defenders seek review under the Bird Act,
by using the APA and section 1331.
We are reluctant Ia permit this type of
collateral challenge, If Defender, believe
the EPA is acting “not in accordance with
law,” 5 U.S C. ?06(2XA) (1982), by violat-
ing the Bird Act.., Defender, could notify
the EPA. Specifically, Defender, could pe-
tition the EPA to cancel regmt,atio or
request other action If the EPA refused,
Defender. could obtain Judicial review in
the district court as provided by FIFRA.
See 7 U S.C. I36n(a) (1982). Although
the APAIa atandar,J of review is available,
5 U.S.C. 706(2)(A) (e.g. arbitrary, capn.
cious, and not in accordama with law), any
administrative and judicial review would be
obtained under the FIPRA fr,mewori ,
The APA standard of review would thus
operate as a part of FIFR& See S.Rep
No 838, 983 Cong., 3d Seas. 28, repring j
in 1972 U.S Code Cong. & AdminNeve
8993, 4019 (“(Under FIFRAJ (jiudicial re-
view in district courts will be in secordance
with the law generally applicable to adinin.
istrative procedure.”) Here, relying on
the APA and section 1381, Defenders have
attempted to challenge the EPA’a action
under FIFU through a totally aeparat,
suit.
We acknowledge that .ome support es
lit.. for permitting this collateral review.
See, eg, Citize,,, Against Toa,c Sp,aye,
Inc. t Bergla, ,tj 428 F Supp 908, 938-39
& n. 99 (D Or 1977) (euggesting citizens
group could use APA, section 1331, and
BGEPA to challenge action, of Forest Ser-
vice taken under forest management stat.
utes); ef Chrysler Core,, p Brown, 441
U_s 281, 817—18, 99 S Ct. 1705, 1725—26, 60
LEd 24 208 (1979) (federal agency acting
under executive orders and regulatio di,.
closed information about Chrysler in re
sponae to Freedom of Information Act re-
quest, Chrysler could challenge this final
agency action as “not in accordance with
law” under APA because Chrysler claimed
disclosure violated Trade Secret, Act) Or-
egon BnvtL Council ii. ‘unzma,s , 714
P24 901, 903(9th Cir 1983) (through APA
and FIF’RA, citizens group could sue Unit-
ed States Depazt, ,ient of Agncelw to
challenge the agency’s deciajon to spray
area even though FIFRA has no private
right of action),
Neverthelese we believe that review un-
der the APA Is precluded. Section 704 of
the APA provides: “(a]geney action made
revlewable by statute and final agency ac-
tion for which there is no other adequate
remedy in a court are subject to judicial
review.” 5 U.S.C. * 704 (1982). Because
FIFRA provides a framework for obtaining
judicial review, the district court had no
Jurisdiction to consider these claims.
“When Congress enacted the APA to pro-
vide a general authonza n for review of
agency action in the district courts, it did
not intend that general grant of jurisdiction
to duplicate the • eatabljshed special
C. Administrative Procedure Act
191 Defender, generally claim the
EPA’. revocation of (lie 1983 Notice of
Intent to Cancel violated the APA. Ac-
cording to Defender,, the EPA’. action was
arbitrary, capricious, and not in accordance
with the law. See 5 U.S.C. 5 706(2XA).
The EPA intensively studied strychnine be’
fore issuing the 1983 Notice to Cancel.
The EPA. however, failed to obtain an add..
(tonal biological study, other than the 1984
FWS opinion on black-footed ferret,, be-
fore settling the cancellation issue. The
district court found the EPA’. change in
position was without adequate considera-
tion and thu. arbitrary and capricious. D c-
fender, of Wildlife, 688 FSnpp. at 1347-
48.
Additionally, until the EPA reinitiated
consultation with FWS in 1987, the EPA
had failed to obtain incidental taking .tstc-
ments regarding the impact of strychnine
registrations. See 16 U.S.C. 5 l536(bX4),
(o)(2) (EPA obtained the FWS opiniona In
1979 and 1984, Congresa amended the ESA
in 1982 to provide for Incidental taking
atatements). The district court found the
EPA had taken action not in accordance
with law when it knew continued registra-
tion might result in incidental takings and
yet finalized the revised registrations be’
fore receiving FWS approval for the tak’
ings. Defender, of Wildlife, 688 FSupp
at 1349.
The APA generally provides a frame-
work for judicial review of final agency
action when an adequate remedy is other’
wise lacking 5 U.&C.5 704 It does not
provide an independent souree of jurisdic-
tion or create a cause of action when none
previously existed See Biilop, u. Depart-
ment of the Air Force, 725 P.831160,1163
(8th Cir 1984). As this court has noted, see
anti at 1301-1802, FIFRA contains its own
judicial review framework for agency ac-
III. Conclusion
First, Defenders could properly proceed
under the citizen uuit proviaion of the ESA
to enjoin claimed violationa of that Act.
Under the eircumstances preaented. the
EPA’. strychnine registrations constituted
taking. under the ESA. The Secretary did
not authorize these takings, and thus, they
were not excused through the Incidental
taking provisions of the ESA We affirm
the district court to this extent. On its
own initiative, however, the EPA may seek
to have the injunction lifted by showing it
has now complied with th. incidental tak-
ing provision, of the ESA.
Second, the district court had no Juripdlc-
lion to consIder Defender,’ claims under
the BGEPA and MBTA. We thus reverse
the court’s decision to this extent end va-
cate that portion of the injunction granting
relief on thea. two claims. Third, the dis-
trict court was without jurisdiction to con ’
side, Defenders’ claim that the EPA acted
arbitrarily, capriciously, and not In accord.
882 FEDERAL REPORTER, 24 8ERlE
DEFENDERS OF WILDLIFE v. ADMINISTRATOR, E.P.A. 1303
auwen ru iws csaa,. iesej
atatutary procedures relating to ,pecifie tion taken under that statute, see 7 U.S.C.
agencies.” Bowen it Masaachuaetta. — 5 136n (1982 & SUPP. IV 1986). Although
U.S.—, 108 S.Ct. 9722.2737,101 LEd 24 the APA may stat, the scope of review, 6
749 (1988). We thus reverse the district USC. 5 706, FIPRA still provides the
court on the BGEPA and META elaima. mechanism for obtaining judicial review.
Thus, the APA does not operate separately
froio PIFRA, but instead as a part of Fl.
FM. See S.Rep. No. 838. 92d Cong., 3d
Seas. 28, reprinted in 1972 US.Code Cong.
& Admin,News 8993, 4019.
Defenderi’ challenge here relatea solely
to the EPA’s action under FIFRA. Be.
cause FIPRA provides for judicial review
even without an administrative hearing, we
must require Defender, to follow thst spe
cial framework in generally challenging
EPA action as “arbitrary, capricious,”
or • not in secordance with law.” 5
U.S.C. S 706(21(A). See Sebben v. Broclç
815 F.2d 475, 478 (8th Cir.1981), rev’d on
other grounds sub nom. Pittston Coal
Groupv.Sebben,—US.—, 109 S.Ct.
414, 102 LEd.2d 408 (1988). The district
court had no jurisdiction to consider the
APA clsim, and thus, we reve,se the
eourt’s decision regarding this claim.
4
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1304
snos with law. We reverie the court’s
decision on this claim
Affirmed in part and reversed in pait
UNITED STATES of America, Appeilee,
V.
Nick ARCOBASSO, Appellant.
No. 85-2708.
United States Court of Appeal.,
Eighth Circuit.
Submitted June 15, 1989
Decided Aug 16. 1989.
Defendant wan convicted in the United
States District Court. Eastern District of
Missouri, Edward L Filippina, J, of two
counts of being felon in possession of fire.
arm. Defendant appealed The Court of
Appeals. Ross, Senior Circuit Judge, held
that. (1) probable cause existed for deferi.
dant’s arrest (2) exigent circumstances
justified warrantless search of defendant’.
home, (3) seIzure of firearms in plain view
dunng search of defendant’s home was ap.
propriste; and (4) trial court did not abuse
its discretion in excluding evidence of po
lice corporal’s prior threats against and
dealings with defendant and his family.
Affirmed.
1. Arrest ee63.4(15, 16)
Known felon’s volunteering that he
owned gun and was firing it, and search of
felon’s house resulting in seizure of guns
and ammunition provided probable cause to
support felon’a arrest U.S.C A. Const
Amend. 4, 18 U.SC.A. ft 9fl(gXI),
924(eX l).
2, Asypat ee4L4(7, IS)
Report of gunshots fired in house, cou-
Lwith officer’s observation of defendant
“dry.finng” gun, was probable cause to
believe defendant was committing felony of
knowingly shooting into dwelling, support-
ing arrest. U S CJi. ConatAmend. 4, V.A.
M.S 571 030, suhd. 1(8).
3. Searches and Seizure. 42
Because officer suspected there may
have been shooting victim or other armed
person inside house of defendant arrested
in connection with illegal possession and
use of firearm, exigent circumstances ex.
isted to justify warranties. search. U.&
CA. Const.Arnend. 4
4, Searches and Seizure. 69
Officer possessed sufficient knowledge
at time weapons in plain view were seized
to believe they were evidence of illegal
activity, warranting seizure; officer tesb
find he was aware that individual with
name given by defendant was convicted
felon and therefore not to be around gun..
US C.A. Const.Amend. 4; 18 U.S.C.L
ft 922(g )(1), 924(eXl)
& Searches and Seizures 69
Weapons in plain view of police offi.
cern conducting lawful search of defen.
dant’s house were properly unloaded and
seized an precaution to assure their aafety
and that of any other individual who might
have been present. U S.C.A. Const,Amend,
4.
6. Criminal Law 338(t)
Trial court did not abuse its discretion
in excluding from evidence prior threats
against defendant allegedly made by police
corporal whose only involvement in case
was to review police report, despite conten.
lion that evidence was not offered for truth
of matters asserted therein; at trial, defen.
dant’s offers of proof on corporal’s alleged
extortion and proposition to defendant’s
wife were presented as factual.
U. Richard Fox, St. Louis, Mo., for appal.
lant.
Richard L Poehllng. St. Louis, Mo., for
appellee.
ROSS. Senior Circuit Judge.
Nick Arcobasso appeals from his convic’
tion of two counts of being a felon in
possession of a firearm In violation of 18
U.S.C. 55 922(gXl) and 924(eXl). On ap.
peal, Arcobssso challenges the district
court’s adoption of the magi.trate’u’ rec’
ominendation that Ins motion to auppresa
evidence and .tatements be denied, certain
evidentiary ruling., and the constitutionali-
ty of the Federal Sentencing Guidelines.
We affirm.
The evidence adduced at the auppress’ion
hearing eatablished the following. On May
8, 1988, at 1.61 a.m, Officers Willis and
Hopkins of the Breckenridge Hills Police
Department responded to a call for “shots
fired within [ a] residence.” Upon arrival.
they heard the clicking sound of a weapon
being “dry.fired” (trigger being pulled on
an unloaded gun). While on the stairs
leading to the front porch. Willis looked
through an open window and saw Arcobaa-
so sitting on a chair dry.firing a gun. Offi-
cers tapped on the window and asked Arco’
basso to come out, whereupon Arcobauo
climbed out the window.
Officers patted him down for weapons
but none were found, and then saked if
anyone else was in the house to which
ArcobassO replied “Rick.” Believing there
may have been a shooting victim inside, the
officers informed Arcobssao of his Mi.
rondo rights.’ Upon entering the house to
do a protective sweep. Willis saw and
seized a shotgun in plain view leaning
against a doorjamb in the hallway. He
unloaded a round of ammunition from the
gun’s chamber. He also found an individu-
al named Rick Caine’ who did not know if
there were others in the house. Willis
asked Gaines the other subject’s name be-
882 FEDERAL REPORTER. Zd SERIES
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U.S. v. ARCOBASSO 1305
at...se Pid i (sia . hey
Befor ARNOLD, Circuit Judge, and cause Willis did not “know who he was for
ROSS, Senior Circuit Judge, and sure. He had no (identification).” Gaines
CAMBRIDGE,’ District Judge. replied “Nick.” Accompanied by Gaines,
Willis completed a search of the house.
Willis moved the chair where Arcobasso
had been seated and retrieved a revolver.
He also observed empty and live rounds of
ammunition in an open dresser drawer.
Back outside Artobsaso acknowledged
ownership of the .hotgun and admitted fir’
big the pistol. Willis advised Arcobasso
that it was illegal for him to be around
guns (because he was a convicted felon),
At this point. Willis reentered the house to
retrieve the ammunition he had observed.
Arcobasso was then handcuffed and taken
Into custody.
Arcobasso filed a pretrial motion to sup’
press the seized firearms, ammunition, and
his statements to the officers. After a
hearing, the magistrate denied the motion.
finding that the officers’ observations gave
them probable cause to believe a felony had
been committed, citing Beck v, Ohio, 379
U.S. 89, 91, 85 S.Ct. 223. 225, 13 LEd.Zd
142 (1964). The magistrate also found that
exigent circumstances justified the war-
rantless entry and search of the house,
citing Misery v Arizona. 487 U.S. 885.
392-93.98 S.Ct.. 2408, 2413, 57 LEd.2d 290
(1978), and Warden v. Hayden. 387 U.S.
294, 294. 37 S.d. 1642, 1645, 18 LEd.2d
782 (1967). and further that the firearms
and ammunition were seized in plain view
incident to a protective search, citing Unit-
ed Statea v. Jones, 635 F.Zd 1357 (8th dir.
1980). Finally, the magistrste ruled that
Areobaaso’s statements were made know-
ingly and voluntarily after being informed
of his Miranda rights. The district court
adopted the magistrate’s findings and do’
nied the motion.
It was stipulated that Arcobsaso had six
prior felony convictions. At trial. Arcobas-
so attempted to elicit information from Wil-
•The flOPlORABi E WILLIAM C CAMBPJDG3. 2. The Honorable Csrol 2, Jack.on. Untied
Untied Stairs fluirtci Court Judge for the Div Stairs Magistrate for the Eastern District of Mi ..
trio at Nebraska. sItting by designation. .ou ri.
I. The Honcrsbtc Edwsid L. FilIppine. Untied I. At trial, Hopkins ienilfled thai at ibis time.
Stairs District Court Judgi far dir Eastern Die Willis asked the subject his name to which he
trtct of Mussowi. replied idick Aroobasso’
-------
1334 169 FEDERAL SUPPLEMENT
DEFENDERS OF WILDLIFE, the 81ev.
in Club, and Friends of Animal, and
their Environment, Plaintiff.,
V.
ADMINISTRAThR. ENVIRONMENTAL
PROTECTION ACENCY. and Secre-
tar ,, Department of the Interior, Di.
fmidanta,
American Farni Bureau Federation,.
non-proflt corporation.
Iniervenop -Defendant.
Clv. No 4-86-487 .
Unlt.d State. District Court,
D. Minne.ota,
Fourth Division,
Aped 11, 1966 .
Wildlife and environmental organize.
lion, brought suit against Administrator of
Environmental Protection Agency and Sec-
retary of Interior challenging registration
of strychrnne pe.tic.de and rodenucid. for
certain above-ground u.ea. Federation
,epree.ntlng farmer, and rancher. who
used strychnine to control rodent. inter-
vened a. defendant On partie.’ cm.. me
tion. for dismissal and for summary judg-
ment, the District Court, Diana E. Murphy.
J., held that: (1) alleged failure to exhau.t
administrative rrm diea under Federal In-
secticide, Fungicide, and Rodenticide Act
did not preclude judicial review under Ad-
mtnistrative Procedure Act (2) plaintiffs
had eonsutubonal standing and sufficiently
alleged interest within none of interest. to
be protected by applicable statute., to seek
relief under APA. (3) EPA violated APA
by adopting “notice of intent” which per-
mitted cuntinued use of strychnine rodenti-
ride without adequate explanation and sup-
porting evidence; (4) EPA’s continued rag-
i.tntion of strychnine for above-ground
use in ereditation of certain rodent. re.ult.
ad in br .mnualble taking of birds protect.
ed by t gvs’cry Bird Treaty Act and Bald
and Golden Eagle Protection Act end (5)
injunctive relief we. appropriate under En-
dangered Specie. Act.
So ordered.
I. Federal Clvii Procedure l7I3
Count alleging violation of National
Environmental Policy Act by Administrator
of Environmental Protection Agency and
Secretary of Interior would be di.miued
with prejudice, notwithstanding plaintiff.
request for dismissal without prejudice,
wher. plaintiff, had not responded to do.
fendant’s motion for summary judgment
National Environmental Policy Act of 1969.
102,42 US C.A. 0 4332; FetRulas Civ.
Proc.Rule 41(aX2), 28 U.S.C A.
L Administrative Law and Proecdar,
222
Agriculture 4.lI(l)
Plaintiffs were not required to exhaust
administrative remedie . under Federal In-
secticide, Fungicide, and Rodenticide Act
before bringing action seeking to fore,
EPA to comply with several environmental
statute. regarding threatened or endan-
gered species in determining whether to
register pesticide strychnine where action
did not direcUy seek to cancel registration
of strychnine and plaintiffs had indepen.
dent jurisdictional baits for suit. Federal
insecticide, Fungicide, and Rodenticide Act,
6(b),., amended. 7 U.S.C.A. 136d(b), 6
U.S.C.A. 651 ci seq.; Endangered Spa.
me. Act of 1973, 4 2-17, 16 U.S CA
44 1531-1643; Migratory Bird Treaty Act,
* 2 it seq., 16 US.C.A. 703 et seq.; Bald
Eagle Protection ACt,4 let seq., 16 U.S.C
A. 4 668 St seq.
3. Admlniat,ativ. Law niid Proeedi,e
In determinIng whether finality is-
qufrement of Adminiatrative Procedure Act
has been met, court must determine wheth-
er agency action is threshold inquiry or has
statu, of law and imposes definite and Un-
mediate Impact on plaintiff, whether legal
lesues are fit for judicial re.olution and
legal or practical affect on party seeking
judicial review. 5 U.S C.A. I 551 et e.g.
.1
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DEFENDERS OF WILDLIFE .. ADMlNI9TL )R, E.P.A. 1335
IN P iSle (DMb. us$1
4 Admlnlsirstlve Law and Procedure 7. Admlniatrad,. Law awl Froe.d.,e
ea704 668
Agilcultu,. 9.lI(I) Agriculture 9)l(l)
Action, of Environmental Protection EnvUunmcntaj and wildlife organize-
Agenty and Secretary of Interior in permit. tion. came within zone of interest sought
ting continued above-ground use of r denti. to be protected or regulated by statute, so
cide strychnine to control field nifce, preme as to have standing to challenge neg t .stm.
dog. arid ground squirrel, satisfied finality tam of strychnine rodenticide for limited
requirement of Administrative Procedure above-ground use under environmental
Act, aO as to permit judicial review, where statutes concerned with preserving protect.
there was no indication that further admin- ad species from wide variety of harm, In-
utrative proceedings were necessary, judi- duding unauthorized “taking” through
rid resolution would not cause piecemeal consumption of rudanticide. Endangered
litigation, term, of settlement of proceed. Specie. Act of 1978, 44 2-17, 16 US.C.A.
ungs on continued registration of rodenti- 1681-1543, Migratory Bird Treaty Act,
ride tied been finalized by published 2 et seq., 16 US.C.A.I 703 ot seq.; Bald
and record before court presented issues of Eagle Protection Act , 1 St seq. 16 U.S.C.
law fit for judicial resolution. Federal in- A. * 668 St seq.
secticide, Fungicide and Rodenticid. Act. & AdmInistrative Law end Procedure
I 2 et seq., as sniended, 7 U.S.C.A.* 186
.tseq; 5 U&C.A. 4704. AgrIculture s-4.ll(1)
Environmental Protection Agency’s
registration of atrychnine rodenlicide under
Federal Insecticide, Fungicide, and Rodeo
ticide Act constituted informal rulemaking,
so as to render its decision appealable un
der Administrative Procedure Act, where
EPA solicited public comment, sought ex-
pert consultation, and published resulting
policies in Federal Register thu., APA
review was not precluded because FIFRA
provided for judicial review. 6 U.S.C.L
4* 551, 706; Federal Insecticide, Fungicide,
and Rodenticide Act, 44 2 ci seq., 3(c). as
amended, 7 U.S.C.A. 44186 et seq., 188a(c)
•. AdmInistrative Law and Preradriru
When agency clisnguig course by in-
versing policy, it must aupply reasoned
analysis for chsnge; when reviewing
change of policy under APA. court must
determine whether explanation was made
and whether siplanation is sufficient under
arbitrary and capricious standard. 6 U.S.
C.A. 4 561 ci seq.
IS. Agriculture S.1I(I)
Environmental Protection Agency act.
ad arbitrarily and capriciously in revereing
decision to ban most above-ground use of
strychnine rodenticide for eradication of
ground squirrels, field mice arid prairie
5 Federal Clvii Procedure l03.2
Noneconomic injury to aesthetic and
environmental well-being ia sufficient inju-
ry to confer standing if plaintiff is adverse-
lyslfected. US.C .A.COnut.A,t8,I let
seq.
5 AdmInistrative Law arid Procedur,
Agriculture eaI.il(i)
Wildlife and envivonniental organize-
dens met constitutional prerequisites to
standing in suit seeking review of EPA’s
reversal of earlier decision to ban most
shove-ground uaes of strychnine rodenti-
ode on basis that continued registration of
lodenticide would cause mortality to pro-
tected species, which plaintiffs alleged
would directiy Impair their organizational
purpose, of study, enjoyment and advance-
ment of protected apeme.. US.C.A. Const,
Art. 8,4 1 Ct seq.; Bald Eagle Protection
Act, I I ci seq., 16 U.S.C.A. 0 668 St seq.;
Migratory BirdTreaty Act,I 2et seq., IS
U.S.C.A. 0 703 ci seq.; Endangered Spa-
rico Act of 1973, 00 2-17, 16 U.&C.A.
40 1581-1543: 5 US.C.L 4 551 et seq.;
National Environmental Policy Act of 1969,
4102, 42 U.S.C.A. * 4832.
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1336
dogs, based upon revised assessment of
likely Jeopardy to blaek.footed ferret.
where record was devoid of any biological
opinion or other scientific evidence revere-
•ng earlier EPA finding of likely jeopardy
to several other endangered species caused
by ingestion of rudentleide 5 U S.C.A.
3 706, Federal Insecticide, Fungicide and
Rodenticide Act, 3 2 at seq • as amended, 7
U.S.C A. *136 et seq
II. Administrative Law .nd Procedure
763
Agriculture 9.ll(l)
By acknowledging that continued ieg-
istration of strychnine rodenticide might
result in incidental ‘taking” of endangered
species, yet finalizing registration before
receiving approval from Fish and Wildlife
Service, as required by provision of Endan-
gered Species Act, which permitted “inci-
dental take” of endangered species only
upon prior authorization of Secretary of
Interior. Environmental Protection Agency
engaged in agency action “not in accord-
ance with law” in violation of Administj’a.
tree Procedure Act. 5 USC A.3 ?06(2Xa);
Federal Insecticide, Fungicide and Rodenti.
dde Act. * 2 ci seq., as amended, 7 U.S.C.
A. * 136 ci seq., Endangered Species Act
of 1973, 00 7, 7(bX4), IS US.C.A. ft 1536,
1536(bX4).
12. AdministratIve Law and Procedure
65l
Game 3’A
Fact that neither Migratory Bird Ttea.
ty Act nor Bald and Golden Eagle Protee.
tion Act expressly or impliedly provide for
private actions does not preclude review of
agency actions alleged to violate Acts un-
der Administrative Procedure Act. Bald
Eagle Protection Act, * 1 et seq., 16 U.S.C.
A. 3 668 at seq.; Migratory Bird eaty
Act, 0 2 at seq, 16 US CA. 3 703 et seq.;
5 U.S C.A. * 551 at seq.
18. AdminlsfraUve Law and Procedure
an7 0 1
Game on3!h
Alleged violation, of Migratory Bird
Treaty Act and Bald and Golden Eagle
Protection Act by Environmental Protee-
don Agency were reviewable under Admm.
istrativa Procedure Act where neither Act
expressly precluded judicial review and al.
leged prohibited ‘taking” of protected ape.
cies through federal agency action in ap.
proving continued registration of atrych.
nine rodentjcide was not type of enforce.
ment action for which agency should retain
absolute discretion. S USC A. 3 551 Ct
seq
14. Came *“3 h
Environmental Protection Agency’s
continued registration of strychnine roden.
ticide for above-ground use resulted in liii-
permissible “taking” of birds protected by
Migratory Bird Treaty Act and Bald and
Golden Eagle Protection Act where inciden-
tal poisoning of protected birds caused by
their ingestion of rodenticide had not been
authorized by prior approval of Secretary
of Interior. Bald Eagle Protection Act,
* 2, 16 IJ.S.C.A. 0 668(a); Migratory Bird
Treaty Act, * 8. 16 U.S.C.A. * 704; Fader.
al Insecticide, Fungicide, and Rodenticide
Act, *2 ci seq as amended, I US.CA.
* 136 at seq
IS Game ‘3’h
Actions taken by Environmental Pro.
taction Agency as whole, in not opposing
change. to notice of intent to cancel regis-
tration of strychnine rodenticide for above
ground eradication of certain target ro
dent, did not constitute arbitrary and capri.
cious failure to conserve and promote
threatened and endangered species poi.
soned by ingestion of rodenticide in viola.
don of Endangered Species Act; court
would not substitute its judgment for agen-
cy’s by deciding s general matter that
totality of agency’s actions taken to protect
endangered or threatened species was in.
sufficient Endangered Species Act of
1978, ft 2 (cXI). I(aXI), 16 U.S.C.A.
ft 15$1(c)(1), 1636(aXl).
II. Game e- ’3’/s
Delay by Environmental Protection
Agency of several months in reinitiating
consultations with Fish and Wildlife Ser.
vice following presentation of new evidence
that registration of strychnine rodenticide
was re.ulting in takings of endangered spa-
des did not rise to level of arbitrary and
I?. Game 3’/I
Violation of section of Endangered
Species Act,, which prohibits “taking” of
endangered specie., can be attributed to
federal agency action, even when agency
does not directly cause harm. Endangered
Species Act of 1978, 0 9. 16 US.C.A.
* 1688(aX1XB).
IS Game e-”3’b
Unrebutted evidence of strychnine kills
among endangered species protected by
Endangered Species Act, coupled with lack
of scientific evidence that strychnine use as
currently permitted by EPA registration
would prevent kills of same nature, sup-
ported determination that strychnine regis-
tration as rodentlcide was deficient in per-
mitting unauthorized “incidental takings”
in violation of Act. Endangered Species
Act of 1973, 3 9, 16 U.S.C.A..
• 158&aX1XB), Federal Insecticide, Fungi’
‘dde, and Rodenticide Act, 3 2 at seq.. as
amended, 7 U.S.C-A. * 186 at seq.
19. Game *3’h
Injunctive relief, specifically tailored to
remedy prone. procedural violations of
APA by EPA, was appropriate to enjoin
continuing violations of Migratory Bird
Treaty Act and Bald sad Golden Eagle
Protection Act arising from EPA’s regis-
fration of sbychn!ne for above-ground use
without adequate explanation and support’
lug evidence which resulted impermissible
taking of birds who ingested rodenticide.
Bald Eagle Protection Act, * 1 at seq., 16
U.S.C.A * 668 ci seq., MIgratory Bird
20. InJunction 75
Injunctive and declaratory relief under
endangered species act wsa justified In suit
in which EPA approved continued registi’s-
don of strychnine for above-ground use as
rodenticide without adequate explanation
and supporting evidence, resulting In im’
permissible “taking” of endangered species
who ‘ingested rodenticide hi violation of
Act, Endangered Species Act of 1978,
ft 7, 9(a)(1XB) 16 U.S.C.A. ft 1638,
1588(aX IXB).
Brian B. O’Neill, Fasgve & Benson, Min-
neapolis, Mum., for plaintiffs.
Charles ft. Shockey, U.S. Dept, of Jim-
tice, Washington, D.C., for defendants
Adm’r of E.P.A., and Sonetary, Dept. of
the Interior.
Richard L Krause, American Fans Bu-
reau Federation, Park Ridge, Ill., for inter-
venor’defendant, American Farm Bureau
Federation.
MEMORANDUM OPINION
AND ORDER
DIANA E. MURPHY, District Judge.
Plaintiffs Defenders of Wildlife, the Sier-
ra Club, and Friends of Animsia and Their
Environment. bring this action challenging
the registration of strychnine pesticide and
rodenticide (strychnine) for certain shove-
ground uses. Defendants are the Adininis’
train? of the Environmental Protection
Agency (EPA), who baa responaibility for
registering product, containing strychnine,
and the Secretary of the Interior, who is
required to consult with the EPA and rec-
ommend safeguards when strychnine use
might jeopardize any endangered or threat’
cued species. Inteiwenor’defendant Areexi-
can Farm Bureau Federation
farmer. and renchess who use strychnine
to control indents,’
688 FEDERAL SUPPLEMENt
DEFENDERS OF WILDLIFE.. ADMINISTRATOR. E.P.A. 1337
Ciiam 555 r.5,pp. 5334 (D.M . less)
capricious conduct In violation of Endan- Treaty Act, * 2 it seq., 16 U.S.CA. 3 708
gered Species Act; where formal consults- at seq.
tiona being conducted, which addressed
concerns of sffected use of pesticide on
endangered species, review of such claim
would have been premature. Endangered
Species Act of 1978, *3 7, 7(a)(2), 16 U S.C.
A. ft 1536, 1536(aX2), Federal Insecticide,
Fungicide, and Rodenticide Act, *0 2 at
seq., 3 (c), as amended,? U.S.C-A. *3 186 at
seq., 136a(c).
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Thi, action ii brought under several fed.
era! statutes, the Endangered Species Act
(ESA), 16 U S.C. 1631—1543 (1982), the
Migratory Bird Treaty Act (META), 16
U.S.C. § 703 ci seq. (1974). the Bald and
Golden Eagle Protection Act (BGEPA), 16
U S.C. 668 ci seq (1986); the National
Environmental Policy Act (NEPA), 42
U S.C. 4332 (1975), and the Administra.
tive Procedure Act (APA), 5 USC. 551st
seq. (1966) The complaint alleges that do.
fendants have, by their continuing approval
of strychnine for certain above-ground
uses, illegally “taken” threatened and en
dangered species in violation of several
Acts. It further alleges that defendants
failed to sssist the recovery of species,
failed to prepare an environmental impact
statement regarding the effects of contin.
ued registration of strychnine, and have
acted arbitrarily and capriciously through.
out the etrychnine registration process, in
violation of the APA. Jurisdiction is al
leged under 28 U.S.C. 1331 and 16 U S.C.
O 1540(gXl).
Plaintiffs want injunctive and declarato.
ry relief and attorney’s fees Plaintiffs
seek to rescind a March, 1987 “Notice of
Intent” by the EPA which permits contin.
ued use of strychnine; an injunction requir.
ing the EPA to adopt instead a more ye.
etrictive 1983 “Notice of Intent to Cancel”
strychnine, and a court order requiring
defendants to engage in further study on
the effect of continued above-ground
strychnine use on threatened and endan.
gered species.
III Before the court are cress motions
for dismissal and for summary judgment
by plaintiff., defendants, and intervenor
defendant. t Plaintiffs seek summary judg.
ment on all claims except count 6—the
NEPA challenge, for which they seek dis-
missal without prejudice. Defendants
move for dismissal for fsilure to state a
claim and for lack of standing, and they
seek summary judgment on sll counts.
All parties sgi-ee that there are no disputed
material facts and that the entire matter
should be resolved on thes, motions. They
disagree somewhat on the proper record.
Defendants urge that the APA claims
should be bssed solely on the sdministrs-
live record which was before the EPA at
the time of the pre-1987 administrative ac-
tions. Plaintiffs argue that more than the
administrative record is involved since their
challenge Is broader than an appeal of ad.
ministrative action.
Strychnine, or strychnine sulfate (strych.
nine) is the active ingredient in numerous
pesticides and rodenticidee. Until recently
many of these were registered by the EPA
for numerous above-ground uses to control
rodents, lagomorphs (rabbits, hares, and
pikas), and birds EPA Strychnine Position
Paper 4, at 1 (September 30, 1983), EPA
Es No. 265 (hereafter P.D 4). Strych-
nine is most commonly used ss a gram bait,
and is primarily used against ground equir.
rels and prairie dogs P.1). 4, at 1. Up to
one-half million pounds annually of stzych.
nine bait is used, primarily in western
states for rodent control in rangelsnd, pss’
tore and cropland. P.O. 4, at 1
4, Pislmiff, now seek to dlsmi,s count 4, the
NEPA cl s im. wftho , iI prejudice. Ddendente Or.
for dliniiuel with prejudice slum the let .-
now of the requont. Defcnd.nis bce. esion.lv.-
I, burled ihoir motion for .unimse7 Judgment
on count 6. end pl.Intiffe hsve tint rropondod.
On the basis of thu record end Fed R .CI.P.
41(.)(2), mom 6 shicuid be diiniiwed wtth proj.
udice.
5. Citations to EPA EshibIts tree in the .umrd
of the EPA admlnhtreiive prooeed lnp. All rd-
stoner. in the edminuotjsii.e record will oncr.
slIp be referred to by thst number. £ EPA
Es. No I.
Dusky Seaside Sp.tiW
Cape Sable Spereote
Miuslicippi Sendhill Crane
Puerto Rican Plain Pigeon
Aitwatecs Greater Prstrtr Chicken
Yellow_Shouldered Blackbird
Layton Finch
Nihos Finch
Cal.Fornts Condor
Black-Footed Fermi
San Joaquin Kit Fol
Gray Wolf
Grimly Bear
588 FEDERAL SUPPLEMENT
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DEFENDERS OF WILDLIFE v. ADMINISTRATOR, E.P.A. 1339
Ot ...M5 FJups- 1331 InMon. ills)
EPA regulations require that baits be The challenge against above-ground
placed In a manner in which the targeted strychnine use at Issue here formally be’
species atone is likely to ingsst the poison. gan in 1976 when the EPA began the we’
Strychnine is non.selective, however, view of potentially adverse effects of
kills anything which ingests a lethal dose strychnine. The review resulted in EPA
Mortality can occur to both “target” and Position Document 1. (October 27, 1976),
•‘non’target” species—non-target being noy EPA Es. No. 28, (P.O. 1). Later that iear
species which the strychnine is not intend’ the EPA published a Rebuttable Presunip’
ed to kill, but which nonetheless ingests t, lion Against RegistratiOn. 41 Fed.Reg.
Primary poisoning occurs when a lethal 52810 (December 1, 1976). EPA Es. No. 281
which required registrants to come forward
dose or strychnine is directly ingested by with evidence rebutting the presumption
consuming the grain bait. Mortality an tiiat continued registration exceeded a per-
also occur through “secondary poisoning” missible level of risk. The registrants
when a carnivore ingeats a lethal dose by were required to address whether all con.
consuming an animal or bird which tinued outdoor above-ground use of strych’
ingested strychnine or a carcass with lie- nine would cause acute toxicity to non’tar
metabohised strychnine. See EPA Strych’ get species and fatality to endangered ape’
nine Position Paper P.O. 2/3. at 25 (Sep- des. The EPA received numerous we-
tember 1980); EPA Es. No. 78. (P.D. V3). .pens. from federal and state agencies,
Strychnine is registered by the EPA on. agricultural groups, and individuals.
der the procedures establiahed by the Fed’ As part of the RPAR process, the United
er l Insecticide, Fungicide and Rodenticlde StaLes Fish and Wildlife Service (FWS), a
Act (PIFRA). 7 U S C. 0136 ci (1979). division administered by defendant Semis’
Both registration and cancellation of a con- 1517 of the Department of the Interior,
bulled pesticide involves a process forTner- began a “jeopardy investigation” pursuant
ly known as a Rebuttable Presumption to ESA Section 7. 16 U.S.C. * 3536 (c) (a
Against Registration (RPAR) and now “Section 7” investigation). The FWS is
called Special Reriew. The burden is on chanted with determining at Ut. earliest
possible time if agency action may affect
proponents of a challenged use of a con’ endangered or threatsn ,d epecies. The
trolled pesticide to prove that it does not FWS reports its rmdings tiy Isnumg a bio.
have any unreasonably adverse effect on logical opinion. In 1979, the FWS issued a
the environment. 7 U S C. 0 136a(c) - The biological opinion to the EPA, summarizing
EPA may cancel or modify a stratton the findings of the Section 7 investigation.
when evidence arises that the pesticide may EPA Es. No. 65. Tb- opinion noted 18
be causing unreasonable adverse effects. endangered apecies editch were “likely to
The RPAR is concluded by a “Notice of be jeopardized if the above-ground usage
Determination” where the agency explains of atrychniBe as presently registered
whether the presumption of risk is rebut- should occur In the areas where these ape’
ted, and explains any changes in the regis’ cies are found.” EPA Lx. No. 65. at 16-
tration. 98,’ No likely jeopardy was found to bald
.4
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a, The term take or one of itt dedv.tivts Is
used In several statute, to connote the vatted
ways In which a member of a protected ipecks
can be injured, captured, killed or oihrvwiae
banned In ibis instsnce it generally means
killed by sti ,chnine poison Plaintiffs allege
that illegal ‘takings’ occur to numrrcos .pecte.,
Including golden eagle, bald eagle, other miges.
to, 7 bird., and other endangered bird, and
insotmalo. LIste of the affected species are not-
ed below.
1. DrfendsntV and lnte rvener4eleuidant. pod.
lions are similar Pseept where otherwise not-
ed, references to “detendantf include both d..
fendsnts and intervenor-defendsnt.
6. Most of the defendants’ actions challenged
here occurred before the name change and will
be referred to at the RPAR proceta. The RPAR
(now “Special Review”) process Is art tooth si 40
C.F.R. Fart i54 (i957)
7. The potentially jeopardized species etprestly
noted in the biological opinion are the follow-
log:
Utah Prairie Do
Menu Bay Kangaroo Rat
Salt Msmhi tiarecat Mouse
Red Wolf
Masked Bobwhite
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1340
888 FEDERAL SUPPLEMENT
eagles and to peregrine falcons, in part
because there was no evidence of mc,tality
to these species attributable to ingestion of
sti7chnizie The biological opinion recom-
mended that above-ground use of strych-
nine should be prohibited in geographical
areas where it might jeopardize the contin-
ued existence of the noted specie. or ad.
vsruely modify their critical habitat. EPA
Es. No. 65, at 33.
Continuing with the RPAR process, the
EPA, In 1980, produced P D. 2/3 It was
based on the EPA’s own expertise, on the
FWS biological opinion, and on information
received during the public comments peri-
od. P D. 2/3 was a preliminary examina-
tion of evidence supporting and rebutting
the original presumptions which permitted
strychnine to be registered See 45 Fed,
Reg. 73602 (November, 1980) EPA Ex. No.
335 It contained over 100 pages of data
and analysis, and suggested cancellation or
modifications in the registration of staych.
nine for dozens of species commonly con.
trolled by above-ground placement of laced
baits. See P.D. 2/3, at lOO-02, The EPA
found likely jeopardy to I I of the endan-
gered species cited in the biological opinion
if stryclinin, were used in their environ-
ment. It also noted special concern for the
peregrine falcon and Aleutian Canada
goose’ P.D 2/3, at 81. In 1982 Congress
amended the ESA to require the FWS to
include in the biological opinion a statement
permitting an “incidental taking’ if an
agency action I likely to harm members of
an endangered species without jeopardizing
the entire specie., This amendment did not
affect the 1979 biologieaj opinion,
The EPA’s next step in the RPAR pro-
0555 was PD. 4, issued on September 80,
S. The EPA siaiia the purpow of 11w document
in the Introductory section ci P.D. 2/3 EPA
ezanuned both the risks associated with sic ci
the pcelc.de (dangerous wolcity or other um
sonabir adwrae effects) and the benefit cinin-
hosed use. The prlimp.l focus is on economic
The Anal Agency dedilon ii based upon
cble.lng the goal of • psaicide perfonnii
I l inten4e function without causing won..
sonabie adverse ecta on the enstrunowaL
RD. 2/3, ii I.
1983 P.D. 4 adopted In great part the
findings and analysis of P.D. 2/3. It rca-
seined that the likely jeopardy to endan-
gered species outweighed economic ben ,.
fits to most continued strychnine uses,
The document noted that effective alterna-
tives to strychnine were available which
posed less threat to non-target species and
which were only marginally more expen-
sive. P.!) 4, at 19-25 The EPA noted
with particular detail strychnine’s impact
on six endangered species It also noted
special concern for the Aleutian Canada
goose and peregrine falcon, saseasmg
greater risk to these species from above.
ground strychnine than did the FWS. PD.
4, at 12.
In PD. 4 the EPA restated its intent to
cancel registration of strychnine for above-
ground use against moat target species,
including prairie dog. and meadow mice;
and it announced modifications in the terms
and conditions of registration for use
against other species, including ground
squirrel., P.D. 4 noted that continued reg.
‘istzstion for ground squirrel control was
contingent upon the agency receiving more
data on th. “lowest efficacious bait conceit.
tistion for ground squirrels,” However,
the EPA nonetheless proposed allowing
continued but restricted use while that data
was compiled P.D. 4, at 42 After PD 4
was published, severaJ parties alleged that
the sole impetus for the proposed cancelle.
dons or modifications was concern for the
endangered blaclt.footed ferr,t, The text
of PD. 4 does not limit Its concern to solely
that species, however.
After P.D. I was compiled, a Notice of
Intent to Cancel was then published in the
Federal Register, 48 Fed.Reg. 48523 (Octo-
5, The PWS biological nlon Fowid no likely
Jeopardy lou. the per Ine falcon or AleutIan
Canada goose. Thai cacluilon was based in
part on the lack of evidence of falcon monaliry
aitsibuisha to uiychninr. EPA Ezhibli Ne. 61
si 7 The EPA Donethelen candied ii prerags.
live of romictjog atryctinine ton ow of concern
for likely deulmeiti to those specica, P.D. 2fl
at 31.
IS Mewaier’s geeatei’ prsli’ts chicken, red mill,
Aleutian Canada goose, Sen Joequin kit los.
blaek4ooecd ferret, end Csllfesnja enndor, P. O.
4, at 7—12.
1341
DEFENDERS OF WILDLIFE v. ADMINISTRATOR. E .P.A.
ist.lU P. pe. 1331 (iaM , is)
ber 19, 1983), EPA Es. No. 266 (hereafter
1983 Notice of Intent to Cancel), which
formally announced the proposed change..
Under FIFRA, the published notice would
constitute the final agency action unless a
hearing was requested within 80 day. by
someone adversely affected. 7 US.C
4 186d(b). If a requset is made, the ,tciue
quo for registrations is maintained while a
hearing I. pending. In this case, EPA re-
ceived requests for a hearing from the
atatea of Wyoming and South Dakota and
other interested partbe.
A hearing was scheduled before a hear-
ing officer and a number of parties even-
tually joined the action. ’ t The EPA sub-
mitted a brief to the bearing officer stating
its position In support of the proposed can-
cellations. See EPA Es. No. 297. The
brier did not point to black-footed ferrets
as the focus of concern for the cancella’
don., but rather expressed a mote general
concern for numerous apscie..
Before the hearing date settlement nego-
tiations began, and the hearing was sue.
pended. The discussions apparently lasted
nearly two years, from 1984 through 1986.
During that time the FWS issued a second
biological opinion assessing jeopardy to the
black-footed ferret. EPA Es. No, 280 (No-
vember 1984 biological opinion). The FWS
concluded that pie-control surveys of prai.
ri, dog colonies would effectively preclude
jeopardy to any remaining wild ferrets.
The November 1984 bIological opinion Su-
perseded the March 1979 opinion as to fez-
rate.
In the summer of 1986 the dispute was
settled with all but two parjee.is See EPA
Ii, No roquon for hearing was filed as to the
EPA’s Notice to Cancel regisestlon ci etsych-
nine for coutirul of deer mice, chipinunka,
mountain boavert, oppossum., jack,sbblti, ban-
germ rats and onion rats. Strychnine registis-
lions for thow uses were therefore cancelled.
FIFRA, 7 US.C. 4 i36d(b). The only pending
challenge before ilu heating cfflot ,- was the
proposed ban on regtsr.tions for use egalnat
prairie dog. and meadow mt and the renric.
tiuna on use agalan gectind squirrels. Sea EPA
En. No, 297, st 1, it, 3. Those three tens era
therefore the any aublects of this anion,
53. The adininiansilue appeal was sell,
is Sent. of lI&eunhj , ot mL FIFRA Dodd No.
Es. No. 862. No administrative hearing
was therefore ever held. Plaintiffs De-
fenders of Wildlife and Sierra Club were
patties to the hearing, and did not enter the
written settlement agreement. The agree-
ment was formalized by publishing a No-
tice of Intent to Cancel. 52 Fed.Reg. 6762
(March 4, 1987), EPA Es. No. 289 (hereaf.
tsr March 1987 Notice). The Notice be’
essne final after thirty day.. The March
1987 Notice permitted the continued regis.
trations for above-ground use of strychin.
for control of ground squirrels, prairie
dogs, and meadow mice. It required label
reatrictions on all atryclin’me baits, and pie-
control surveys of prairie dog colonlea by
the FWS and state authorities to assure
that there Ia no evidence of black’footed
ferrets living in the ares. Sea EPA Es.
No. 289.
Plaintiff. now challenge defendants’ an-
dons leading up to the settlement and the
March 1987 Notice, They claim that the
EPA did an “about’face” by reversing the
well-founded and deliberately conceived
1988 Notice of Intent to Cancel, without an
adequate .cientific basis. They argue that
the last formal .tudy was P.D. 4 which
recommended a ban on most uses. Thus,
they argue, the settlement was reached to
accommodate western state agricullual in’
tereata, but had no scientific justification.
Defendants assert that the settlement was
an appropriate ,eaolution of the 1983 No-
tion of Intent to Cancel. They claim that
the motivation behind each FWS biological
opinion and the EPA Position Documents
which recommended against continued reg-
istration was concern for the black-footed
Sit. It involved the EPA, the Slates ci Wyo.
uning and South Dakota. the Aincaicen Farm
Bureau Fcderatlun, the Department of the Inte-
rior, the United Suns Department of Ageicul-
en,,. Defender. of Wildlife, and the Store Club,
S Notice, 32 Fed.Reg. 6762 (March 4, 19$?) at
6762, EPA Es. No, 259.
13. The EPA explained at the hearing before this
cmiii that the Adminleusie, retains authority to
settle disputes ooiwtthatandirg the eblection of
some pani The .dmintstrdcr determised
that the o ecttutg pasties—Defenders of Wildlife
and Sierra Club—.mild not be edeweety affect-
ed by the
Ii
:1
‘It
-------
1342
ferret, flat concern wee allayed by the
1984 FWS jeopardy study which suggested
that pre’control surveys were an adequate
precaution.
Plaintiffs commenced this action in Au.
gust 26, 1986 They have accumulated flu.
merous documents from discovery and
Freedom of Information Act (FOIA) re-
quests, indicating mortality to protected
species from strychnine pozsonlng.is p ja-
tiffs submitted the non-target lull book to
the EPA in January 1987 to counter EPA
claims that there was no evidence of eagle
and peregrine falcon deaths caused by
strychnine. Plaintiff, also submitted an
affidavit by Keith Cline (attachment A to
O’Neill Affidavit) which alleges that lees
than 36 percent of bald eagle deaths are
discovered and reported Plaintiffs use
this to allege that the number of actual
atrychnine.cauaed deaths is a large multi.
pie of those documented,
In September, 1987, approximately one
year after this action ices commenced, the
EPA again reinitiated Section 7 conaulta.
tions with the FWS. See Defendant.’ Ex.
Pubis No. 859, “Supplement to Administra.
two Record.” The consultation was ap.
parently initiated in response to plaintiff.’
nOn-target kill book data. In the request
for consultation the EPA also seeks an
“incidental take” statement from FWS to
authorize in advance any incidental harm to
threatened or endangered species caused
by agency action,
I I’
(21 Defendants argue that this action
must be dismissed because plaintiff. have
failed to exhaust the administrative reme-
dies provided under FIFRA. They argue
that cancellation of the registration of a
pesticide can only be accomplished under
the procedures set forth in FIFRA, 7 U.S.
C. 135d(b). Defendants claim that plain-
54. This evidence has bee .. compiled irno an
hibi, WIIICII will hcrrafice be referred to as the
.on ’I.rei kill book’ Ptalnitff( Apçemdls. cii.
ume II. Ii documeni, nwnauui strychnine
kill. several dec es, Ii cite,, for example,
37 bald esslr, I? golden le, and 3 pcrcrlne
falcon dciii.. since 5979 from primary or s .c.
ondamy strychnine pcilonin&
tiffs in effect seek to cancel the regisba.
tion of strychnine, but dress their FIFRA
claim in the clothing of the APA and feder
al envirOnmental statutes. Two of the
plaintiffs, Sierra Club and Defenders of
Wildlife, were parties to FIFRA adminis-
trative proceedings but choee to forgo ap’
peal under FIFR.A by failing to object for.
mally to the March 1987 Notice of Intent to
Cancel Defendant. therefore argue that
plaintiffs’ solo remedy Is to petition the
EPA to cancel the current registration and
thereby obtain a judkially.reviewabio dad.
mon. FIFRA, 7 USC 5 186n. Mere-eli,,
Thomaa 608 F.Supp 644, 647 ID Ore.1985),
affd 807 F2d 776 (9th Cir 1986), cert. S..
n ,ed — U.& —‘ 108 S.Ct. l45,98 LEd.
2d 101 (1987) (FIPRA provides exclusive
mechanism for canceling or suspending
herbicide registration).
The intervenoi’.defem ,d t in addition ar
gues that the entire action should be dis.
missed for lack of jurisdiction or failure to
state a claim sine. PIFRA provides plain-
tiffs’ sole remedy. vvnmentgj De-
fense #Iin4 I,ic v. En n’p ,entel Pro.
lection Agency, 485 F.2d 780 (DCCir,1973)
(district court had no jurisdict ion over Fl.
FRA action pending in court of appeals);
edIer,. Clark 714 F.2d 77(9th Cir.1983)
(no private right of action under FIFRA).
Plaintiffs respond that Congress has nel.
ther expressly nor impliodly precluded judi-
cial review under the APA of administia.
tire action which touch on the registration
of pesticides. See, ag., Sierra ciuô t ’.
Peterson, 705 F.2d 1475, 1478 (9th Cir.
1983) (FIFRA should not be read to pro’
elude judicial review under APA). Plain.
tiffs argue that their choice to forgo a new
PIFRA proceeding does not preclude this
challenge based on the APA and other envi-
ronmental statutes. They argue that the
APA review provisions should be liberally
construed to permit this challenge absent
IS. Plaintiffs challenge defendant,’ chsrsstee.
Iciulon of ihila evidence as a ‘ .pp1emcni to the
.dmlnieasij,e reenrd. They siu , thai ills..
docuinenia e on before ths ngency w*nii lbs
challenged adn ilnlara ijv, sWore was wids.
take,,
We do not hold that McneIl’s conduct
amounted to a failure to exhaust admin.
istrative remedies. If Mcneil had sued
to cancel or suspend pesticide registra-
tions, such a holding might be appropri-
ate on these facts. (citation omitted.)
But McneIl sued instead to compel the
EPA to comply with NEPA when ieg-
istering pesticides under FIFRA Faced
with a similar suit against a different
agency, we concluded that a plaintiff was
not obliged to exhaust his statutory rem-
edies, because 98 U.S C. 4 1831, NEPA,
and section 10(a) of the Administrative
Procedures Act, 5 U S.C. 4 702. com-
bined to crests an independent ground of
jurisdiction. Jones V Gordon, 792 F.2d
821, 824 (9th Cu ’,1986) (suit to set aside
permit granted under the Marine Main-
mnal Protection Act of 1972 because no
EIS had been prepared). On that basis,
we reach the merits in this case,
Mervell, 807 F.2d at 782 n. 8
The situation presented here is similar,
Plaintiffs do not spelt directly to cancel
regtatratfons under FIFRA. Rather, they
want to require defendants to comply with
the APA. as wall as the 4 A, MBTA, and
BGEPA. Here, as in Merreli, there Is an
independent ground for jurisdiction, so
As part of their exhaustion challenge.
defendants also assert that the agency ac-
tions challenged here are not final and not
amenable to review. Defendants argue
that there is no final EPA action because
plaintiffs have not sought reversal of the
March 1997 Notice. Plaintiffs, in contrast,
urge that either the 1986 settlement or the
March 1987 Notice was a sufficiently final
action to permit this challenge.
(SI In order for plaintiffs’ APA chaj’
lenge to proceed, the challenged action
must be final within the definition of the
APA. Courts have interpreted the finality
element in a pragmatic way. See F.T.C v
Standard Oil Co. of CaI (j , 449 US. 232,
289-40, 101 S.CI- 488, 493, 66 LEd .2d 416
(1980). Factors to consider include whet)..
er the agency action ‘is a threshold inquiry
or lisa atatus of law and Imposes definite
and immediate impact on petitioner and
whether the legal issues are fit for judicial
resolution. Id, at 239-43, 101 SCt. at 493-
95. A major consideration In determining
finality is the legal or practical effect on
the pasty seeking judicial review. Sec IS.
at 243, 101 S.Ct. at 494—95.
688 FEDERAL SUPPLEMENT
‘ I
‘I’m,
““0’
Ii.
I.
P:’ 4 I
‘I.
r t_ .iNI
I I ,
4J, llt
m..• .;‘ I
h (.
.4’
; Ji4
—i i
DEFENDERS OF WILDLIFE .. ADMINISTRATOR. E.P.A. 1343
at. 5a5 PJe, Ill (D.Mi 5555)
congressional limitations, and none are plaintiffs need not exhaust adininiatratlve
present here. Japan Whahng Asso. v. remedies.
American Cetacean Soc, 478 US. 221,106 Nor does the language of FIFRA ox.
S Ct. 2860, 2866, n. 4,92 LEd.2d 166(1986) pressly or impliedly preclude independent
(review of agency action under APA avail, review, Sierra Club,, Peterson, 705 P.2 i1
able absent convincing legislative intent to at 1478 (silence in FIFRA should not be
preclude review). Judicial review of age !, reed to preclude judicial review under the
cy action is favored, they argue, and this APA). “(T]he rule is that the cause of
action is consistent with that goaL action for review of (agency action under
Defendants’ exhauation claim relies the APAJ is available absent some clear
strongly on the district court opinion in and convincing evidence of legislative in.
Merrcll Thomas, 108 F.Supp. at 641, tent to preclude review.” Japan Whaling
A,so., 106 S.Ct. at 2866, n. 4, (citing Block
which held that a private action brought
under NEPA was an improper vehicle to COinIJtUPUIjt Nutrition Inatitute, 467
U.S. 840, 846, 104 S.Ct. 2150, 2453-54, 81
effect the cancellation of herbicides. tier
LEd.2d 270(1984)); Citizens to Preserve
refl did not hold, however, that failure to
Overton Park Inc. a. Volpe. 401 U.S. 402,
exhaust FIFRA proceedings precludes chal- 410, 91 S.Ct. 814. 820, 98 L .Ed.2d
lenges based on statutes which provide in (1971). A careful review of the statute and
independent source of jurisdiction. The ap’ opinions whIch have examined it reveals no
pellate opinion addressed that issue square’ indication that Congress intended FIFRA
ly to preclude separate review of agency ac-
tion under the APA or other statute. Ac-
cent Sierra Club n Peterson, 705 F.Zd at
1478.
Ii
I.
I,
.ll
: 1 l
-------
a. a a -
1344
141 Many of the reasons ofteii cited for
delaying judicial review are abaent here.
There is no Indication that further adminis-
tIaUVe proceeding, are neeesuy for the
EPA to “correct its mistake,” or “apply it.s
expertise”” Wel erge,. v. Sa(fi, 422
U.S. 749, 765, 95 S C i. 2457, 2466-57, 45
LEd 2d 522 (1975) Nor will judicial reso .
lution of this dispute cause piecemeal litiga.
tion or promote other inefficiencies See
? 1(J. v Standard Oi4 449 U.s at 242-43,
101 S.Ct, at 494-95 Th EPA finalized the
terms of the 1986 settlement by publishing
the March 1987 Notice. Other than the
recent request for a biological opinion from
the FWS, there are no pending agency pro.
eeeding ,. The consultation began well af-
ter this litigation started, perhaps in re-
sponse to it. The APA challeng 98 before
the court, therefore present issues of law
fit for judicial resolution. Considering all
the eircumstenma defendants’ actions are
final within the meaning of APA, 5 U.S.C.
0 704, and therefore subject to review.
Defendant,,’ motion to dismwe for faihji ’e
to exhaust administratjvis remedies should
therefore be denied.
111.
Defenda,ita argue that plaintiffs lack
standing to bring this action. They assert
that plaintiffs suffer no particularized inju-
ry which is traceable to the EPA actions
challenged here. Alie,,,. Wright, 168 U.S.
737, 761, 104 S.Ct. 8815, 3324-25, 82
LEd.Zd 566 (1984). ‘They also claim that
although plaintiffs are lntems ,j in study-
big and conserving endangered species, the
intensity of plaintiffs’ interest alone is not
enough to confer standing. Valley Forge
Ch r is : , 0 ,, College a American., United
For Sepanzt of Churtli and Stat
/ti , 464 U.S. 464, 474-75, 102 S Ct. 752,
760,70 LEd.2d 700 (1982k Sterno Club a
Morton, 405 US. 727, 92 S.Ct. 1361, 81
LEd 3d 636 (1972). They argue that no
ii. PWniiffs prtldpsied vlgorouily in the
RPAR pvoon snd eoniiueniiy made ib ,1, i.
lion, bnown. Ddcnd . , 1 . rejected pioleriffs’ .,-
guvictu, and .etiied the challenge to ilie 1983
Nn(i ,e o.ev pi.lanff.’ atijecilini,. Ddendu,a
aegu. thai plainitfi, should hens peililoned In
begin anew i ii . RPAR pr whidi had jun
been completed sftes a ten yes, period. Vlcw.
688 FEOER.&J,, 8UPPLEMg pgp
injury resulted from the March 1987 Notice
since it imposed greater restilctjons
against strychnine us. than existed in the
past. Further, the alleged sti’ychnjne l 1 t.
ed deaths are not traceable to the EPA
action contested here.
Plaintiffs respond that they are proper
parties to teise claims under environmenal
statutes and to challenge the defendants’
administ, 5 ti 98 actions leading up to the
1986 settlement and the March 193? No.
tree Plaintiffs claim they meet the preteq.
uisites to standing under Article 111 of the
Constitution: they have suffered an injury
in fact which is traceable to the defendants’
actions and redreasable by the relief
sought. See Valley Forge 454 U.S. at
471-72, 102 S.Ct. at 767-59, Simon
£usier,s Kentucky We((are Rights Ovpa.
,tlzation, 426 U.S 26, 88, 96 SC,. 1917,
1924, 48 LEd 3d 450 (1976). They argue
that then. injury is their impaired ability to
study, observe, and enjoy Wildlife, caused
by non-target strychnine poisoning. Plain-
tiffs argue further that their claims alleg-
ing ill ,gaj adminis ave actions fall within
the eons of mterests protected by cacb
statute under which they proceed. Assoct.
ation of Data Pvoees , , , , ,g Service Orpa.
nuat ,o,,e, I ,nc a Camp, 397 US. 150.156,
90 SCt. 827, 831, 25 LEd.2 ,i 184 (1970k
Clarke a Securities Industry Au,,., 479
U.S. 385, 107 S.Ct, 750,754-55,93 L.Ed.2d
767 (1987). (standing to make APA dial.
leage is construed broadly and accrue, to
persons aggrieved by agency action).
181 When standing Is challenged based
on allegations In the pleadings, the court
“aeeepqs] as true all material allegations
of the complaw and construe(s) the com-
plaint in favor of the eomplaimutg party.”
Pennells, Ctty of Sap, lose, — US.
108 S Ct. 849, 855, 99 LEd.3d 1 (1988),
(quoting Worth v. Seldi,,, 422 U.S. 490,95
&Ct , 2197,45 LEcLZd 843(1975)). Apply.
Ing plaintiffs’ sinistion prsgmailcslly, further
adml ,tlstr,tj,, challcngc would It . ., been futile.
CsrTytt 5 ddend.stts’ srsume , ,i to Ii , eztxetne,
plaintiffs would never be snililed to JudIcioJ
review tines plaintiff. could repestcd y cli ii.
lea.. say ia.i*rsiior., 1,w the RPAR pie.
cam
DEFENDERS OF WILDLIFE.. ADMINISTRATOR. E.P.A. 1345
cii. .. 555 i’.a. us. (D.MI.a. u N)
ing the constitutional standing require- Inent of protected specles.is This injury
inents is not a mechanical exercise. Allen will be avoided if the restriction suggested
o Wright, 468 US at 751-62. 104 S.CL at In P.D. 213 and PD. 4 are Imposed. Plain’
8324-26 Rather, the court’s function is to tiffs therefore meet the constitutional prs’
assure that the issues before it are re- requisites to standing.
solved “not in the ranfied atmosphere of a
debating society, but in a concrete factual
context conducive to a realistic appreciation
of the consequences of judicial action.”
Valley Forge, 454 U.S. at 472, 102 S.CL at
75& Here, the specific injuries complained
of are the improper registration of strych-
nine and the continued taking of protected
•peciea.iT Defendants argue that plaintiffs
suffer no injury because the current regis-
trations of strychnine are more strict than
had previously been in place. Plaintiffs
respond that the procedures used to adopt
these regulations were improper and that
the regulations continue to permit illegal
taking of protected species.
16) There are two central allegations in
the complaint, They first claim that the
EPA reversed, without adequate explana-
tion or scientific support, the decision to
ban most above-ground uses of strychnine
rodenticide. They also argue that any con-
tinued registration will inevitably cause
mortality to protected apecies. resulting in
predictable and avoidable deaths, possibly
even contributing to extinction.is Plain-
tiffs therefore allege that defendants’ con-
duct directly impairs their organizational
purposes of study, enjoyment, and advance’
. 1
!iIi
ill
ii
II
I ,
(71 An additional standing requirement
is generally imposed upon plaintiffs seek-
ing relief under the APA. The APA
“grants standing to a pereon ‘aggrieved by
agency action within the meaning of a rile’
vant statute,’” Camp, 897 Us, at 168. 90
S.Ct, at 830 (quoting APA, 5 U.S C.0 702).
This requires inquiry into whether the “in’
terest sought to be protected. . (Is] argu-
ably within the zone of interests to be
protected or regulated by the statute
Data Processing, 897 U.S. at 153,90 S.Ct,
at 830. The “zone of interests” test uhoald
be broadly construed, Clarke, 107 S.Ct. at
756-67. To determine the zone of Interest
protected by a statute, the court looks at
the overall context of the statute to derive
congressional intent as to its scope. Id 107
S.CL at 758. “l’he essential inquiry Is
whether Congress ‘intended for a particu-
lar class of plaintiffs to be relied on to
challenge the agency disregard of the
law.” id., 107 S.Ct. at 751, quoting Block
v. Community Nutrition Institute, 467
U.S. 840,847,104 8.Ct. 2460,2454,81 LEd.
26 270 (1984).
Th. plaintiffs here raise an APA dial.
lange in conjunction with three substantive
the 197(1. to attempt captive breeding. Neither
.lde disputes thai strychnine vied I, rodent
control poses a threat to any nearby ferrets, If
any exist In the wild.
19. An siroclatlon has standing on behalf of its
member. if - ‘(s) (Its) members would olbem’
wlie have standing to me in their own rtgtttt (b)
the Interest. it seeks to protect arc germane to
11w organIzation. purpose: and (C) netiher the
claim assetled no, the relict requested requires
the participation ad the individual member. In
the fawsutL’ hstm,sik,eel Lh,wc. Acre. Awe’
ipam & Agdcs.lisn-e Implement Werkers e.
Bract, 477 U.S. 274. 106 SQ. 2523. 2529. 91
L ,Ed.2d 228(1956) (quoting Hsu,t . ‘. War&ingvesi
Stats Apple Adveefithtg ContmW, 432 U.S. 333,
343, 97 S.Q. 2434, 2441, 33 L.Ed.24 353 (i977))
Sen .41ar&. ,w , a will:,!. Fadsewvioc OtutkI e .
129 F 3d 933, 9)7 —3S (9th Clr.i9 57), Dadend’
ants do not contest plaintiffs’ orasnisatlouai
standing, and plaintiffs mass th, thee. prersqtil-
ill , ..
17. The Injury giving the to standing may reflect
‘aesthciic, conierestional. and recreational (vii-
veal as well as economic vslcea.’ Cemp 397
US. st 154. 90 SQ. at 830 Nost.economlc
injury to aesthetic sad environmental weil.bclng
Is a tufflelern Injury to confer standing if the
plaintiff I. adversely affected, Stairs Club a
Maple., 405 U.S. 727,92 SCt. 1361,31 LEd.2d
636 (1972).
is. At the hearing the parties sg,esd that the
California condo, no longcr exists in the wIld,
The last wild condom were taken captive In
hopes that . captive breedtng prog,sm might
Increase the population. The non-target kill
bool attributes five condo, death, to strychnine
potuoning, In 1950 and 1966, although it does
not state that the .tsychnioe involved was
piscad as part at a redetti eestt,o$ piogram.
The parties alto agree thai the only known
btsck ’Iooesd ferret colony, numberIng 19 anI-
mals, see. taken iteo captivity In Wpo ,nlng In
-------
1346
environmental statutes—the 8 A, the
MBTA and the BGEPA. Each of the envi-
ronnrenlal statutes is concerned with con-
serving protected species from a wide vari-
ety of harm Each protects against the
unauthorized taking alleged here. In addi-
tion, the ESA provides for private cause of
action, which I. further evidence of Con-
gressional intent to permit this APA chal-
lenge. See Clark., 107 S.Ct. at 757. Plain-
tiffs therefore come within the intended
scope of these statutes and have standing
to bring each of their claims for which they
seek summary judgment. The motion to
dismiss for lack of standing should be de-
nied.
Iv.
Plaintiffs alleged that defendants violat-
ed the Administrative Procedures Act, 5
U.S C. 5 651 et seq (1966). in several ways.
The principal claim, however, is that the
EPA ’s revocation of the 1983 Notice of
Intent to Cancel was arbitrary and capri-
cious and not in accordsnce with law, in
violation of APA 9 706
Plaintiffs recount the elaborate history
of their administrative challenge. They ar
gee that over the course of several years
the EPA published three formal position
statements—PD. 1. P.D 2/3, and PD. 4.
Each considered the potential detriment to
endangered species from continued above-
ground strychnine use. These position doe.
uments suggested an outright ban on rag-
i 5tzataons of strychnIne for control of pra,-
me dogs and meadow mice, and suggested
label restrictions for ground squirrel con-
trol, along with further study on the effica-
cy of continued use See PD. 4, at I-Il.
Plaintiffs argue that the concern for endan-
gered species demonstrated by the EPA
was not limited to the severely endangered
black-footed ferret. However, in plaintiffs’
view, the 1986 settlement reversed the
EPA’s well-founded recommendation for
svere limitations on strychnine use. This
reversal was baaed solely on one FWS
study limited only to black-footed ferrets.
Plaintiffs describe thIs ma caving in to agri-
cultural interests, and an “end-run” around
plaintiffs’ refusal to agree to the settle-
ment. They allege that the EPA avoided
holding an administrative hearing where
plaintiffs’ challenges could be sired Plain-
tiffs claim, therefore, that the EPA violat.
ed the APA when it failed adequately to
justify with scientific data the lenient i’s-
strtints agreed to by the settlement, and
formalized by the 1987 Notice.
Defendants respond that plaintiffs’ i’s-
liance on the APA is unfounded They
assert that APA review is precluded be-
cause flFRJ 1 provides for judicial review
See Ca4fano v Sander., 430 U S 99, 105-
07, 97 S.Ct, 980, 984—uS, 51 LEd 2d 192
(1977) (Social Security Act provides exclu-
sive method of judicial review)” Defend-
ants also assert that adoption of the March
1987 Notice was not rulemaking under
APA, 5 U.S C. 831. Defendants’ princi-
pal argument Is that even if the APA ap-
plies, the EPA’s actions withstand review
because they were rationally undertaken
and accompanied by well-reasoned analysis.
They urge the court to adopt the position
stated In National Audubon Society s.
ReaM,’, 801 F.2d 405 (D.C Cir.1986) (re-
versed district court Injunction against
bringing remaining wild California condors
Into captivity), where the court noted:
The question for reviewing courts is not
whether an agency decision is “correct,”
but rather whether the decision reflects
sufficient attention to environmental con-
cerns and Is adequately reasoned and
explained.
hL at 407 (citations omitted) Defendants
argus that their duty under FIFRA, as well
as ESA, MBTA, and BGEPA, is to consider
the agency’, impact on protected specie.,
as well as the overall environment, when
undertaking pesticide registration. They
claim that the major concern with strych-
nine registration has always been potential
jeopardy to the black-footed ferret. How-
ever, after P.D. 4 wa. published, they ar-
(8) Defendants’ assertions that the
strychnine registration process I . not rule-
making governed by APA, 5 U.S C.9 551,
must be rejected. Defendants’ admimstza-
bye actions have been conducted ‘in a man-
ner consistent with informal rulemaking.
They have solicited public comment, sought
expert consultation, and then published the
resulting policies in the Federal Register.
The strychnine registration process has aS.
fected a wide variety of people, not only
particular registrants. Review under APA.
5 U.S.C. 9 706 is therefore available absent
legislative intention to preclude revlew.is
Japan W%aliny, 106 S.Ct. at 9966 n. 4.
The record for review consists of the
record before the agency at the time the
challenged actions were taken Camp a
PSU., 411 U.S. 138,142,93 S.Ct. 1241, 1244,
86 LEd.2d 106 (1913).
The agency action prlndpally challenged
here is what plaintiffs characterize as an
“about face” by the EPA from a proposed
near’absolute ban on strychnine, to a regu-
lation permitting continued use. The sin-
phasis of each of the EPA position doc-
uments was concern for the effects of
strychnine on non-target species. The sta-
tus of “likely jeopardized” by continued
use was assigned to numerous endangered
species In its position documents the EPA
stated that its Intended course was to ban
most registrations. In contrast, the 1986
settlement agreement and March 1987 No-
tice noted concern almost exclusively for
the black-footed ferret. This narrow focus
was a departure from the EPA’s prior poli-
cy.
191 When an agency change. course by
reversing a policy, It must supply a rea-
soned analysis for the change. Motor V.’
hid. Wg Ass. . a Slat. Farm Mutual
86. The rnvtswts cc i tt iI,511.. (2) bold unlsw-
65 and set said. cy settee, findlnp, and
cenchaloes fm,nd is be-(A) estlusmy, capel.
688 FEDERAL SUPPLEMENT
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DEFENDERS OP WILDLIFE v. ADMINISTRATOR. E .P.A. 1347
cits .isa P 5a lie. (D.si flu)
gee, the FWS determined that potential Automobile Insurance Ca., 468 U.S. 29,
jeopardy to ferrets could be avoided by 42, 108 SCt, 2866, 2866, ‘77 LEd.2d 443
precontrol surveys and label restrictions. (1983). When reviewing such a change of
Thus, the March 1987 Nodes permItting policy under the APA, a court first must
continued strychnine use was rationally determIne whether an explanation was
based arid well-founded on scientific evj- made, and then “address the sufficiency of
dence. (the explanation] under the ‘arbitrary and
capricious’ standard Swvvn Club a
Cler/c 755 F.2d 608, 619 (8th Clr.1985).
(10) In this instance the change In poli-
cy embodied by the 1986 settlement and
March 1987 Notice is based upon a revised
assessment of likely jeopardy to the black’
footed ferret, The EPA’. explanation is
stated In the March 1987 NoIlese
A, Risk DetermInation
In the Strychnine cancellation notice,
EPA referred to Position Documents 2/8
and 4 (PD * 2/8, PD 14), in which the
Agency set forth hi detail its assessment
of the risks and benefits associated with
the outdoor, above-ground use of atrych.
nine. Generally, the Agency determined
that, In light of modest benefits, certain
of these uaea of strychnine caused un,ea-
.onable advetse effects on the environ-
ment because of the risks they poee to
nontarget specIes. Specifically, the
Agency determined that strychnine used
to control prairie dogs arid ground squir-
rels would jeopardize the continued exist.
enoe of the black.foot.d ferret, an endan-
gered species,
The Agency Identified strychnine as
highly toxic to all carnivores upon whIch
It had been tested and determined that it
was prudent to assum, that strychnIne
would be highly toxic to black-footed fey’
reta a. well. The agency also deter
mined that black.footed ferrets were like-
ly to feed on prairie dog and ground
aquirrel carcasses that had been poisoned
with strychnine and that under certain
field conditions they would die from see’
ondai’y poisoning. Furthermore, the
Agency was informed by the U.& Office
of Endangered Species (ORS) In a “pop’
azdy opinion” that conducting a pie-eon-
trol black-footed ferret survey to deter-
mine the preselun of black-footed ferrets
, 1
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liii
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86. Ptaintilf 5’ Other APA claims besedon s11 21. As d 1 prsv4ecely plsietlifa msj main.
Ilbesl lsklngs In slaisilon ci envlronn ionial lain this acitee without ralcing claims under
etarues are diseu,sed eI ,ewbci PIFRA.
an abuss ci diesulon, er esli.wlse nut
In accerdanon with lsw...
5 U_s_c. 9 06.
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1348
was not sufficient sxfeguaid to pernift
strychnine treatment in its habitat. Dur.
big the course of the lettiement negotia-
tion., however, OES reconsidered lta
original “jeopardy opinion,” Based upon
further experience with black.foo fer.
ret survey technique. and their reliability
in locating ferrets in the Meeteetse. WY.
oming black-footed ferret population,
OI 5 determined that if no ferrets were
found in a pre -cOntrci black.fc,ot ferret
aurvey conducted according to OES sur.
vey guidelines and the requiremen of
the Notice. Itlychnine could be used to
control prairie dogs and ground squiriels
without Jeopardizing the continued exIst
crc. of the bla lc-foote.j ferret.
March. 1987 Notice, 62 Fed.Reg, at 6763.
The EPA stated that it considered three
options in response to the new ferret infor
mation a) continued n.gtstration of strych-
nine for above.ground use with no further
restrictions; 2) continued registration with
modification.. and 8) cancellation of all
regist,atio , The EPA summarized its de.
Cislo n:
EPA has, therefore, decided to adopt op.
lion 2. Despite relatively low benefits.
associated with the use of strychnine
containing pesticides for prairie dog.
ground squirrel, and meadow mouse con.
iced, they outweigh the even lOwer risk to
the black.foo geJ ferret from secondary
poisoning if the terms and condition. of
registration are modified in accordance
with this Notice.
March 1987 Notice; 62 Fed Rag, at 6764.
Nowhere In the exPlanation does the
EPA note that all previous position doe.
23. Sec e e p. 1339 which nona the upcdea
eanhidinad likely jeopsiduisa by ewutimied
siiychnlai ‘i ii1ritlo,i.
uments 1usd found likely jeopardy to nu.
merous endangered species, 11 Rather, the
EPA instead portrays it. previous position
as inspired solely out of concern for the
black-footed ferret That explanation Is
coiltradleted by the extensive record of pre.
settlement statements by the EPA. Ex-
cept for the 1984 ferret study, the record Is
devoid of any biological opinion or other
scientific evidence reversing the finding of
likely Jeopardy to all of the other endan.
gered species cited in P.D. 2/8 and P.D. 4.
The reversal of agency policy was appal..
ently undertaken, therefore, without an ad-
equate scientific basis and without consid-
ering the entire problem 11 “Normally an
agency rule [ is ] arbitrary and capricious if
the agency has. entirely failed to consid-
er an important aspect of the problem, [ or]
offered an explanation for its decision that
runs counter to the evidenc. before the
agency Motor Vehiciç 463 U.S. at
43, 103 S.Ct. at 2867. By this standard, the
1986 settlement and March 1987 Notice
were arbitrary and capricious agency a
tiOii..
[ I I I An agency siso violates APA, $
U.S.C. 9 ? 06 (2Xa) if it its action is “not in
accordance with law.” Defendants con-
tinuing registration of strychnine violates
9 A, 16 U.S C.9 1536(bX4), which permits
an “incidental take” only upon prior sutho.
Fixation of the Secretary of the lntenor,is
The EPA apparently hai never obtained
“incidental take” statements from the
FWS, and Implicitly acknowledges this hi
23, Befere an agency may take any action which
remli. In the thin 5 of an nndsnge.sa or threat.
med specie. Incidental to the agency action, the
agency mice receive from the approprie wild.
life sasacy a wvlttcn stataneni thai:
(I ) specifles the Impact at each Inddentaj i .
en the specIe
(II) ipecifles those reasonable and isudeni
incasue . thai the Secretary eantidan nsma
5517 to minimize inch lwipac (and)
(Iv) let, beth the tunis and conditions (In-
chsdim i 5 , but net limIted In, reperuag mequlie.
merit) that must be complied with by the
Federal agency
16 lS36(1 X4), (‘986)
DEFENDERS OF WILDLIFE v. ADMINISTRATOR. E.P.A. 1349
c.a a. sa P5 p. WI (D.Mna. I )
its recent request to reinitiate formal (See- state a claim. They argue that both of
lion 7) consultations. EPA letter to FWS, these statutes are primarily law enforce’
Sept. 16. 1987. EPA Exhibit 859, (attach’ mnent and wildlife management statutes.
nient to defendants’ memoranda, entitled The statutes are enforced by government
“Supplement to Administrative Record.”); actions seeking criminal or civil penalties.
(EPA] expects that the Fish and Wildlife but neither grants express or implied pri-
Service will include an “incidental take” vats right of action to these plaintiffs.
statement as provided for iii recent ad- Cstw ena Against Taste Sprays, Inc. v.
mendment.s to the Endangered Species Bevglar4 428 F.Supp. 908, 938 (D.Ore.
Act. We realize that reinitiation of COn. 1977) (no private action under BGEPA ) ;
aultation Is required to determine See Cal(fornia w Sierra C1u 461 U.S.
allowable level for incidental take. 287, 101 S.Ct. ins, 68 LEd.2d 101 (1981)
By acknowledging that continued regisica- (no private cause of action in Rivers and
bon may result in incidental tilting of en- Harbors Act). Defendants argue that en-
dangered species, yet finalizing the regis. loreement of these statutes Is committed
tration before receiving FWS approval, the solely to agency discretion and judicial rn-
defendants have engaged In agency action view is unavailable. Sea Hecklerv. Cite-
“not In sccoidsnce with law” in violation of , , 470 Us. 821,838,105 s.ct. 1649,1669,
APA 9706. Injunctive relief i. appropri’ 64 LEd2d 114 (1985) (age j decision not
ate to remedy these violations. - to institut, enforcement action not reviews-
v ble under APA).
Plaintiffs agree that they are not entitled
to assert a private cause of action under
either statute. They srgue, however, that
each statute, In conjunction with the APA,
provides an Independent source of jurisdle’
tion for review of sgency actions which
conflict with either statute. See Alaska
This and WeldlVe Federation and Out-
door Council, Inc. e. Dmsnkfe. 828 FEd
933. 988 (9th Cir.198’l) (agency action In
violation of MBTA reviewable under APA.
S U.S.C. 9 706); Defenders of W,ldlijb w
Andre. ., 428 F.Supp. 167 (D.D.C.1977)
(FY/5 regulations permitting twilight hunt-
ing violated A and so wer. arbitrary and
capricious In violation of APA, 5 U.S.C.
• 706). Cf MerreU Thomas, 807 F.2d
776, 782, n. 8 (9th Cir.1986), cart denied
— U.S.—, 108 S.Ct. 146,98 LEd.2d 101
(1987) (NEPA and APA combine to form
Independent bases for jurisdiction).
1221 While neither the BGEPA nor the
MBTA provide for private actions, agency
any manner. to pwww. hunt, sake, ospeuru.
kill, attempt to take. ospiwe ci kill. poises,
eSter for sale, sell, offer to homier, (etc.) -
any ealgestery bird (p,ctseted by trusty) and
birds In danew of
*6 u.s.c 3.
The BGEPA, 16 U.S.C. 9 668, protects
bald eagles and golden eagles from a wide
variety of harms. 11 The MBTA 16 U.S.C
9 703 .t seq., similarly prohibits the taking,
except by permit, of any migratory bird
protected by several international lees’
ties. 5 ’ Plaintiffs’ contention is that the
continued registration of strychnine for
above.ground use over the ranges of ml’
gratory birds and eagles constitutes a tak-
ing ‘in violation of these statutes. They
argue that the prohibition Is broad-reaching
and applies no less to government agencies
than to private parties. They claim the
taking by strychnine is documented in the
strychnine non-target kill book. Therefore,
defendants’ actions which result in Illegal
takings are arbitrary and capricious, and
otherwise not in accordance with the law,
In violation of APA, S U.S.C. 9706(2).
Defendants respond that counts 4 and 5
of the complaint alleging violations of
BGEPA and META should be diamniued
under Fed.R.Ctv.P. 12(bX6) for failure to
36. (Whoever shall] sake, poses., sell, purchase,
hence, offer to sell, purchase or hailer. ttsns’
pail, evpo.t ci Impost -. any bald es,gle
or say olden eagle. alive ci dead .. (shall
be subject to atminsi and d,I1 peoalttwi.
I S U_S.C- I 66 1(a) and (b)
27, (Ezeepe as pasmittid by regulations. h ] shell
be unlawful 11 any time, by any means or In
II
i.
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1
26 Defetudansa argue that the March 1957 NotIce
ewuiaJned safeguard, directed as protecting
mere endam g red specie. shut juis she black.
footed ferret, Defendant. epparemly refer to
label gatcmeflla which caution uteri to i old
susIm, bait. In area, potentially Inhahiud by
enumerated endangned speclei. S e . March
1957 Noatce, 32 Fed.Rrg am 6765 There I. sic
evidinee In the record, however Indleasleg sisal
awls label net sr sufficient to avoid likely
Jeoperdy to these spades. Ncr does the EPA
— any such ezplsnstJe ,
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- ‘ - ‘ “.
1350
acbo which violate, either statute is sub-
ject to challenge under the APA. Relief
is limited to declaratory and Injunctive rem.
ethes.
(13) In Heckler Choitiey, the Re.
prams Court summarized the type, of
agency action reviewable under the APA.
and the narrow exceptions to such review:
The APA’s comprehensive provisions
for judicial review of “agency actions,”
are contained in 5 U.S.C. ft 701-06.
Any person “adversely affecte j or 5g.
grieved” by agency action; aee 3 702,
including a “failure to act,” is entitled to
“judicial review thereof,” as long as the
action Is a “final agency action for which
there is no other adequate remedy in a
court,” see 3 704. The standards to be
applied on review are governed by the
provision, of 3 706 Ret before any re-
view at all may be had, a party must first
clear the hurdle of I l01(a). That sec-
tion provide. that the chapter on judicial
review “applies, according to the provi-
sions thereof, except to the extent that.—
(I) statutes preclude judicial review: or
(2) agency action is committed to agency
discretion by law.”
liL, 470 U.S. at 828, 105 9.Ct. at 1654 The
defendante’ alleged violations of the M8Th
28 The distInction between a private right of
action and Judicial review under the APA (of
agency action taken In vlolaiion of a statute) Is
discussed In limbers and Wirib, fret. Right,
o Ardot, end iad,gial Rew ,v ., I ,, Federel E.M
rusmg,tgeI Law, 70 Cornell LRev. 403 (1955).
25. The BOEPA protect, bald eagles and golden
eagles. The MBTA protect. numerous mi ato.
ry and endangered birds Plaintiffs allege that
illegal taking of bird. protected by the MBTA
has Ormirved to the following species, as dee.
uniented is the nan-target kIU bock
bald Eagle
golden eagle
peregrine falcon
California condor
blackbird
blackbird, ge.ck
blackbird, redwing
blackbird, rutty
blackbird, brewer
bluebirds
blueJs y
bluejay. stallWa
otrdlnal
coot
cowbird
doe; moerning
and BGEPA are therefore reviewable un-
der the APA unless review is statutorily
precluded or the action is committed to
agency discretion by law. Neither of these
exceptions is present here Neither statute
expressly precludes review, Furthermore.
the alleged prohibited taking of protected
species through federal agency action is
not the type of enforcement action for
which the agency should retain absolute
discretion, Compare Meryrli p. lliomae,
807 F 2d 776 (9th Cir 1986), cert, dented.
— US — , 108 S.Ct. 145, 98 LEd.2d 101
(1987) (plaIntiffs not precluded from chal.
lenging EPA’a failure to comply with
NEPA when registering pesticides) with
Heckler,, Chone ç 470 US. at 838, 105
S.Ct, at 1659 (exception to reviewability of
agency action remain, narrow, but includes
agency refusal to institute Investigation or
enforcement proceedings against indwidu.
als) Investigation and enforcement deci.
sions by the defendanta are not at issue
here. Therefore plaintiffs are entitled to
proceed to the tnertts of their claims.
(141 Plaintiffs contend that the contin-
ued registration of strychnine constitutes a
taking of protected species In violation of
these Acts.” The unrebutted non-target
flnch
flncb, gold
finch, house
finch, purple
5011. bIacli.back
gull, glaucous
sull, herring
gull. rinabilled
Junco
blidee,
l.,k, horned
meadow lark
magpie
mallard duck
ituthaich
plseo’i
lick aparrow
guen towhee
wood duck
falcon, prairie
atyfaleon
h awk3
hawk. Swainsosts
hawk, marsh
hawk, redtslled
hawk, rotjahieed
owl, barn
owl. yeas beaned
owl. snowy
gallinule
Canada
* UndertheMBTA. 16U.SC.3 706,theSecie.
tar, may authonzc the taking 0 f protected birds
alter .dopting .ppropelaic regulations.
The BGEPA permits the Secretary to .utho.
rtis s taking under versl circuinutames. in’
dudlng to promo sgmiculiursl Interests. 16 U
C. 8 565..
SI. It may be Insposeible to make a cendualve
showing of the .ourot of strychnine causing
each kill due to the nsiwv of strychnine we in
mo nte
28. List ci spades protected by the UA is pub’
lidsed at 50 C.P&I 17.11.
33, ‘The prohibition against taking Is broadly
constiued to prohIbit neatly any activity which
mIght adversely affect protected spectra Sea
Sieve Cab,. MarsI 516 F,2d 1376, 1353 (9th
C lr.l9 57) ,
* I 1 53 1(cXl) statue
lila the policy of Conyesa that .11 Federal
departments and agencies shall seek to ones’
cove endangered species and threatened ape-
des and shall utilise their authorItIes in the
furtherance of the purpose of this chapter.
• 1 536(aXl) statue
The Secretary shall review other pregeana
administered by him and utilias such pro.
gains. In furtherance c i the purp ci this
chapter. All other Fades-sI shell. in
• I
I !
688 FEDERAL SUPPLEMENT
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DEFENDERS OF WILDLIFE.. ADMINISTRATOR, E.P.A. 1351
cii. as 6$ PJ.pe tue (D Has)
kill book data reveals that numerous form of “taking” of any endangered ape-
st ,ychnine.caused deaths have occurred to cies,s. Federal agencies must also sssure
protected species. Under both Acts, taking that their actions are “not likely to jeepard-
of protected species is permitted only pus” tee the continued existence of any endan’
suant to prior approval by the Secretary of gered species or threatened species or to-
the Department of the Interior.’ Defcnd. suit in the destruction or modification of
ants acknowledge that they were aware of habitat (critical to the species)” 16 U,S.C.
much of the non -target kill book data long S 1536(aX2).
before it was compiled and submitted to in order to prevent auth lisrtn, the 1 A
theni by plaintiffs. No prior authoriratlon requires agency consultation with designat’
for this taking ‘is presented by defendants. ed wildlife agencies. 16 U.S.C .3 1686(a)(2)
The record does not conclusively show that (SectIon 7 consultation). In this case, the
the extensive poisonings documented by EPA was required to consult with the FWS
plaintiffs are all attributable to above- to determine If the proposed registrations
ground grain baits placed for rodent con . of strychnine would likely affect any en-
trel” The threat to protected birds is dangered or threatened species. The FY 15
readily apparent, however, and unrebutted determined that 18 species were likely to be
by defendants. No one denie, that strych- jeopardized by continued above-ground
nine is intended to serve as a poison or that strychnine use. EPA En. No. 66. The
it can cause mortality to non.target species FWS also proposed alternatives to avoid
which ingest it, Several of the oecropay potential jeopardy, which the EPA used to
reports in the record note that strychnine- formulate its Position Documents. S ..
laced grain was found In the digeatlve tract P.D. 4, at iL
of poisoned birds. There is no evidence in May 1984 the EPA conducted a re-
that the methods of application recoin’ newed Section 7 consultation which aupel”
mended by the EPA will eliminate these aeded the March 1, 1919 biological opinion
son.target kills, Defendants’ continued as to the black-footed ferret. Then on Sep.
registration of stzychn’me, resulting in tember 16, 1987, the EPA again ieinltiated
death to protected birds, therefore violates Section 7 consultations in response to the
both Acts and should be enjoined, non-target kill book. It appears that that
consultation ‘is ongoing and that no biologi’
VI. cal opinion has been issued.
(IS) The Endangered Species Act of Plaintiffs’ 8ZA claims challeng. three
1973. (ESA) 16 U.S.C. 3 1581-3 1548, Is distinct violations by the defendants.
designed to conserve and promote endan’ First, plaintiffs allege that defendants have
gored and threatened species.” The pro- failed to “conserve and promote” protected
tections take many forms, one is EM 16 species as required by 16 U.S.C.
U.S.C. 31588, which broadly prohibits any S 1631(cXI) and 3 1536(aXI) ” (Count 2).
I ’
. 1
II ,
‘I
I
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A.
1352
Second, they assert that the EPA failed
timely to renew formal Section 7 consulta-
tion, with the FWS after the non-target kill
book was presented (Count 3). Third,
plaintiff, allege that the continued regis-
tration, re,ult in illegal taking of protected
species in violation of the ESA (Count 1).
Agency actions are reviewed under the
standard, set forth in APA, 5 U.S.C. 706
They may be Set aside if arbit y and
capricious, an abuse of discretion, or other-
wise not in accordance with the law. Stir
re Club v. Mars? ., 816 F.2d at 1884.
Plaintiff, allege that defendants hav, en-
gaged in brinkstnansh,p and violated theu
duty to conserve and promote endang ,r, j
species by not Opposing changes to the
1983 Notice of Intent to Cancel They ar
gee that Congress intended to halt and
reverse the trend towards species extinc-
tion, whatever the cost See Tennessee
Valley AulFio ty I’, Hill, 43? US 153,
I 8 4 98 S C i . 2 279 97 57 LEd2d
(1978)3’ (ESA pruhibit,ed completion of dam
which would eradicate the endangered snail
darter fish). Plaintiffs claim that the duty
to conserve is enforceable against federal
agencies Ca-?y 4 Wafer Co’i-
arrvancy DuL v. Clark, 741 F.2d 257, 261
(9th Cir.198e), cert. de ue4 470 US 1083,
lOSS Ct. 1842, 85 LEd 2d 141 (1985) (duty
to conserve endangere i species is imposed
on Secretary of Interior)
Defendants respond that the agency has
broad discretion in deciding what conserva-
tion method, are appropriate The duty to
conserve and promote is directed at pro-
tecting each species as a whole, not individ-
ual meniber,. Defendants assert that they
have gone to extraordjns, , lengths to
avoid harm to endangered and threatened
species. Each of the Position Document,
and published Notices has discussed at
length the defend t,’ concern for conser.
esniulteibon with and with the sian of
the S e c r e t e , y utilize their cuihartila in fur.
tlieranra of the purposes of hi. chapter by
Wi 7 1,j 5 OSTIflil LOT die nsugrs of
endanZ ,.4 specie, end threst aped,,
lined parwissi to sedan i333 of Iii, title.
(emphasis added).
688 FEDERAL SUPPLEMEM’
vation. Each statement has also made ape.
cific plOpoaals to eliminate jeopardy. De.
fendanta emphasi that the March 1987
Notice increased protection for endangered
species to a level greater than existed pre.
vioualy. Moreover, defendant, slain that
they are working cooperatively with state
agencies to Increase the population of
black-foo , , ferrets, and have recently
reinitiated consultation with the FWS, re-
garding possible jeopardy to other species.
Plaintiff. have brought this “failur, to
conserve and promote” claim as a general
procedural challenge against defendants’
action,. In reviewing the actions of a fed-
eral agency it is not the court’. role to
substitute Its judgment fo the agcncy’a,
particularly in areas which require the ap.
plication of agency expertise See e.g
Heckler v. Chciney, 470 US. at 831, 105
S CL at 1655-66 Court, generally should
“defer to an agency’s construction of a
Statute it Is charged with implementing sod
to the Proceduma IL adopts for implemenfr
ing that Statute.” I d . at 832, 105 S.Ct. at
1666 (citIng Vermont }‘anke. Nuclear
Power Coy 7 , ii. Naturizl Resources De-
fense Council, Inc., 485 US 519, 98 S.Ct.
1197, 55 LEd.2d 460 (1978)).
Reasonable people could disagree as to
the proper level of activism requiretl by an
agency under the ESA. The court will not
aube(gijt, its judgment for the agency’s in
deciding as a general matter that the total,.
ty of defendant’s action, taken to protect
threatenetl and endangered species were
insufficlent This does not preclude the
court from addressing claims alleging spe-
cific violations of the ESA by discrete acts
or failurea to act. The defendant,’ actions
as a whole, however, do not constitute an
arbitrary and capricious failure to conserve
and promote threatened and endangered
s—es.
33, trdaj by Sistine, Escrg, sad Water 0,.
wlopuieni Appraprlai les. Act of i979 . Pub.!.
9369 93 S W. 437. suthoztsi ,,, Impaundiosni of
the Yelilco reservoir ncawfthabsndh, any other
law.
DEFENDERS OF WILDLIFE v. ADMINISTRATOR. E.P.A. 1353
ciisUs P.5a ,. 334 (OJita. iIss)
9. capricious. Formal consultations are now
underway, and the concerns raised by
plaintiffs, particularly to bald eagles and
peregrine falcons, will be addressed. Re.
view would be premature and the outcome
of the ongoing conaultatlons is uncertain.
Accordingly, defendants’ motion for aum-
mary Judgment on count 3 should be grant.
ed. Plaintiffs’ claims under SectIon 7 of
the ESA. count 8 of the complaint, should
be dismissed.
1163 Plaintiffs allege that defendant,
did not timely reinitiato Section 7 consulta-
tions with the FWS in response to the data
received in the non-target kill book. They
argue that sssessmenta of “no jeopsrdy”
were assigned to bald eagles and peregrine
falcons in the FWS’s 1979 biological opin-
ion because there was no evidence of
strychnine-induced mortality. EPA Es.
No. 65, at 6-7. Evidence of such deaths
front strychnine was provided in January
1987 in the non-target kill book. Plaintiffs
claim therefore that defendant,’ failure to
relnltiate Section 1 consultations before
publishing the March 1987 Notice violated
EPA Section?, 16 U.S.C. 9 1586(aX2).
Defendants respond that the “no jeopar-
dy” determination in the 1979 biological
opinion was an informed judgment based
upon autopsy evidence from numerous en-
gles. Strychnine was not implicated as the
cause of death in any instance. Nor was
there evidence of strychnine-induced mor-
tality to peregrine falcons. Jeopardy was
assessed for other species, and appropriate
precaution, were imposed. Defendants
further argue that they have now reinitiat.
ad Section 7 consultations with the FWS in
response to the non-target kill book data
and plaintiffs’ failure to consult claim
should be dismissed. They also argue that
any challenge directed against the ongoing
consultation is not ripe for review since the
FWS has not yet Issued a biological opui-
ion.
Plaintiffs reply that the reinitiation of
formal consultation occurred in September,
1987, nine months after the non-target kill
book data was received, and after defend-
ants filed their administrative record in this
action. They characterize the new consul-
tation as defendants’ attempt to “back and
fill” the administrative record.
The IZA does not specify the time Within
which an agency must reinitiate consulta-
tion and the agency Is entitled to deference
In decisions such as this. While the SEA
dose heighten the agency’s duty to respond
when jeopardy is possible to an endangered
species. the delay of .eversl months In
these circumstances was not arbitrary or
C.
1171 Plaintiffs allege that the continued
registration of strychnine for above-ground
use in areas Inhabited by endangered and
threatened species results in the taking of
these species in violation of 55* Section 9,
16 U.S.C.9 1583(aXIXB). They claim that
the restrictions imposed by the SEA are
extremely strict, and cannot be violated by
any person or entity, including a federal
agency, even to obtain a desirable result.
WA u Hill, 437 U.S. 163,98 S.CL 2279,67
LEd.2d Ii ?; Sierra Club,. Marsh, 816
F.2d at 1385. Plaintiffs assert that courts
have little discretion in enjoining violations
of the SEA because of the strong prmump-
hon in favor of preserving species. They
also argue that defendants violate the Act
by not obtaining “incidental take” state-
ments from the FWS before taking protect.
ed species.
Defendant, respond that as a matter of
law no taking occurs when an agency rag-
isters a rodenticide for lawful use by pri-
vate persons. They argue further that con-
thiued use of strychnine as currently reg-
istered will avoid harm rather than cause
harm to endangered species. Any iinper-
missibls use which results in death to a
protected species will be prosecuted, and a
warning to that effect is given on all
strychnine products.
The protections afforded threatened or
endangered specie. by section 9 of the EPA
are substantial. The prohibition against
“taking” I. broadly defined in the statute,
16 U.S.C9 1532(19), and expansively con-
strued. S .. Paula,. Hawaii Department
of Law4 aw4 Nab. rot Resotjreas, 689 F.Sd
49L 491(9th Clr.1981). A violation of see-
I.
I,
I ,,
‘ill
I:
Ii
-------
888 FEDERAL 8UpPLEMEI fr
determine the lowest bait concentration
needed to provide control. See P 1) 4 at
42. With the exception of one PWS study
limited exclusively to ferret jeopardy, the
lest scientific study was conducted in 1979
The biological opinions, incorporated in
P.1). 2/8 and P.D. 4, do not approv, the
current registration program, but in fact
note likely jeopardy to numerous species
and recommend severe restrictions on
strychnine use On these ground,, the
1986 settlement and March 1987 Notice
cause an illegal and ongoing taking of en-
dangered species.
Moreover, the EPA also lisa implicitly
acknowledged the taking of endangered
species in ta September 16, 1987 request
for Section 7 consultations As noted pre-
viously, the EPA has a pending request for
an “incidental take” statement to deter
mine the lawful level of incidental taking
which may result from strychnine registra-
tion Such “incidental taking” may only
occur after FWS authorization 16 USC.
* 1536(bX4) (1982) The strychnine regis-
trations currently in place are deficient
since they may cause imperniissible “inci-
dental takings” in violation of the Act;
they should therefore be enjoined
V I I.
1191 PlaIntiffs seek a variety of declare.
tory and injunctiv, relief, snd attorney’s
fees Their clsims under the APA, MBI’A,
and BGEPA all sllege agency procedural
violations under 5 U.S C. 706 Declarato-
ry end injunctive relief is available for such
violations, but any injunction should be tai-
Ioredto remedy the precise violation by the
agency.
Plaintiffs are entitled to a declaration
that defendants violated the APA by adopt-
ing the March 1987 Notice without ade-
quate explanation and supporting evidence
The appropriate injunctive relief in thi, in-
stance should address the specific short-
comings in defendants’ actions while retain-
big those portions of the current registra.
2545, 91 LEd.2’J 265 (1986) (upon motion Fe,
onmmary judsmcm responding petty muis
preseni sfflnnsiive rebuttal evldeitce to create
aenidne (sue of dIsputed fact).
at. — let PJa
tions which enhance protection of endait-
gered speciea. Plaintiffs are also entitled
to a declaration that defendants’ currvnt
registrations of strychnine for above-
ground use result in inipertniasible taking
of birds protected by the MBTA and the
BGEPA, In violation of 5 U.S.C. 106. In-
junctive relief i , appropriate to enjoin the
continuing violations.
1201 Plaintiffs’ RSA claims see distinct
from the other claims in that the 1 A
provides for citizen suits, and the court’s
jurisdiction Is independent of the APA. 16
USC. 6 1540(g). A variety of relief ii
availabl, to private parties who sue to vin-
dicate the Act, including the declaratory
and injunctive relief and attorney’s fees
sought here. When en injunction 1, sought
under the 8 A, the traditional balancing of
equities is abandoned in favor of an almost
absolute presumption in favor of the endan-
gered species. See ?VA Hill, 437 U.S.
at 118, 98 SQ. at 2291. Sierra Club v.
Marsh, 816 F.2d at 1383. The declaratory
and injunctive relief provided here under
the ESA is aimed at redressing defendants’
violations of Section 9 of the 1 A.
ORDER
Accordingly, based on the above and all
the files, records and proceedings here, IT
IS HEREBY ORDERED that
1. Defendants’ and intervenordefend-
ant’s motion to dismiss or for summary
judgment on counts one, four, five and
seven of plaintiffs’ complaint is denied.
2. Defendants’ and ‘mtervenoy ’defend-
ant’s motion to dismiss count six of the
complaint is granted, and count six in di ,-
missed with prejudice.
8. Plaintiffs’ motion to d’ iainlss count
six without prejudice is denied,
4. Defendants’ and intervenoi’defend’
ant’s motion for summary judgment on
counts two and three is granted, and these
counts are dismissed.
6. Plaintiffs’ motion for summary judg-
mint on counts one, four, five and seven Is
granted, and judgment should be entered In
their favor cc these counts.
Ill,
1
. 1
I.
t
‘III .
I , .
‘ ‘ .l
i.t_ i.-” -
—
. ii
‘ 7f
I :
I.
I. •..t I
4’:’!,
I ’.! .; . i .
. I ij. f ‘
t -; , I
I
1354
lion 9 can be attributed to federal agency
action (Or inaction) even when the agency
does not directly cause the harm See, ag.,
Sierra Club ii. Af r ,h, 816 F2d at 1885
(Army Corps of Engineers’ reliance on
state to implement protective measure, did
not relieve Corps’ burden to avoid jeopardy
to endangered species under ESA).
1181 In both the EPA administrative
record and the more smple record now
before court there is unrebutted evidence
of strychnine kills among endangered spe-
cie, protected by the ESA Defendants
acknowledge this evidence, but discount it
‘lOJnly a small, probably insignificant,
number of endangered species have died
from secondary strychnine poisoning
There is no evidence that there faic) unfor-
tunate deaths resulted from the agency
action at issue in this case” Defendants’
Memorandum In Opposition to Plaintiffs’
Motion, at 88 Defendant, also argue
that plaintiffs cannot show “either that
[ bald eaglej death, are likely under the
carefully controlled above-ground strych-
nine use now in effect, or that additsonaj
incidents are likely to occur in the future.”
Defendants’ Memorandum in Support, at
59, n. 58.
The strong statutory presumption in the
is preeervation of endangered species,
however, even when the practical cost is
extraordinary See, g, TVA v Hill, 487
U.S. 163. 98 SCt. 2279, 57 LEd.2d 117,
There is no level of threat to endangered
specie, that can be deemed “Insignificant”
absent an incidental take statement See
16 U.S.C. 1636(bX4).
Defendante cite no scientific evidence
that strychnine use as currently permitted
will prevent kills auch as have occurred in
the past. Nothing in the record Indicates
the safety or efficacy of the currently reg-
istered bait system as to any species except
the blsek-footed ferret There is no evi-
dence that the ground squirrel study re-
quired by P D. 4 was ever undertaken to
3 5 Ddendani, do not dispute the urecy aI
the non target kill book dais Pt a, hew itt , 7
mibmilied any rebuttal evidence an thai point te
crest, a genuine dispute a ’ to that data Set
C.Ieig, Cetp .. Canvis, 477 U.S 317, 106 S.Ci.
DEFENDERS OP WILDLIFE v. ADMINISTRATOR. E.P.A. 1355
taM iNs)
6. Plaintiffs are entitled to declaratory
relief, and it i, therefore hereby declared
and adjudged that
The failure of the Administrator of the
EPA to Implement the 1983 Notice of
Intent to Cancel, 48 Fed.Reg. 48522
(1983) and Implementation instead of the
March 1987 Notice, 52 Fed Reg. 6162
(1987) without adequate scientific cvi’
dance and public explanation, was arbi-
trary and capricious in violation of 5 U.S.
C. 0 706.
It I ,, further declared and adjudged th”.
The Administrator’s rontjnued regis’
b’ation of strychnine for above-grt$iIn Ii
u withIn the ranges of bird” pr t.evted
by the Migratory Bird Iristy Act
(META) and the Bald and Golden Eagi.
Protection Act (BGEPA) results i tt Illiper.
missible taking of birds p7 ,nteet 4l hy
these Acts, In violation of 5 ii SC
It is further declared and 8 4 11 ide”4 that
Th. Administrator is in toqttPi ilt lg t4.o
lation of ESA, Section 9, )fi88(aX!l) by
registering for above.gfr.UMd use for
ground squirrel, prairie d88 and meadow
mouse control, atrychninc which titight
be used within an area also l hebitsd by
any threatened or endangered sprciea de-
tertnined to be likely JeOpardized or
which has suffered a strychnine kill doc-
umented in the non-target hill book,
The Administrator alan is In continuing
violation of ESA by peptititting strych-
nine use in a mann hkh may cause
the incidental taking Of Vt endangered or
threatened species without prior authoti-
zation of the SecietuY of the Depart-
,nent of the Interior u povided In 16
US.C. 1536(bX4)
7. Plaintiffs are endtlid to Injunctive
relief as follows:
A. To remedy violations of.the APA,
the Adminiatm%tor of the EPA and his
agents shall ri -tSin the March 1987 Notice
insofar as it prohibits md restricts strych-
nine registratiOnS. They shall also tempo-
rai’ily Impose the change, in registrations
proposed by the 1988 Notice of Intent to
Cancel for all registrations for ground
squirrel, prairie dog md meadow mouse
control to the extent that they reatrict
-------
a-
688 FEDERAL SUPPLEMENT
strychnine use or enhance the protection to
endangered and threatened species This
shall include the cancellation of regiatrs.
tions for prairie dogs and meadow mouse
control The Administjator shall reezam-
me the registrations for prairie dog.
ground squirrel and meadow mouse con-
trol If continued strychnine use is pro-
posed, the Administrator or his agents
must make findings regarding the ade-
quat.e geographic area needed as a buffer
between endangered or threatened species
habitat and areas where strychnine use will
be permitted Any final notice, if it should
permit continued above-ground strychnine
use, shall explain how jeopardy will be
avoided to each potentially jeopardized spe-
cies noted in any Position Document, If
label restrictions are relied on to decrease
potential jeopardy, the Administrator and
his agents must provide an explanation
based on reasonable study of the practical
value of label restrictions to prevent
strychnine use in areas or by methods not
permitted
The temporary restrictions on registra-
tions shall expire when the review is com-
pleted and a notice of determination is pub.
halted.
B. To remedy violations of the MBTA
and BCEPA, the Administrator and his
agents are enjoined from continuing the
registrations of strychnine for above-
ground use as a pesticide or rodenticide
within the ranges of the bald eagle and
golden eagle unless the Administrator cer-
tifies that methods by which strychnine
might be applied will not cause injury or
death to any bald or golden eagle This
injunction shall not apply to any taking of
eagles incidental to strychnine use, autho-
nzed by the Secretary of the Interior pui
suant to 16 U_sc * 668a
The Administrator of the EPA and his
agents are enjoined from continuing the
registrations of strychnine for above.
ground use as a pesticide or rodenticide in
a manner which may result in a non-target
taking of the following migratory birds
bald eagle
golden eagle
peregrine falcon
California condor
blackbird
blackbird, grack
blackbird, redwing
blackbird, rusty
blackbird, brewer
bluebirds
bluejay
bluejay, steller’s
cardinal
coot
cowbird
dove, mourning
finch
finch, gold
finch, house
finch, purple
gull, black-back
gull, glaucoua
gull, herring
gull, ringbilled
meadow lark
magpie
mallard duck
nuthatch
pigeon
lark sparrow
green towhee
wood duck
falcon, prairie
gyrfalcon
hawks
hawk, Swainsona
hawk, marsh
hawk, redtailed
hawk, roughlegged
owl, barn
owl, great horned
owl, snowy
gallinule
goose, Canada
junco
kildeer
lark, horned
The Administrator may register strych-
nine for above-ground use in a manner that
may result in the taking of a bird protected
by the MBTA only pursuant to a permit
CIIILDERS v. NORTHWEST AIRLINES. INC. 1357
at. — sea pe- 1337 (D.M ills)
issued according to 16 U.S .C 703, and 50 shall advise all registruita to comply by
C.F.P. , Part 21. ceasing the strychnine uses proscribed
herein.
C To remedy violations of the ESA, the
Administrator of the EPA and his agents
are enjoined from continuing the registra-
tions of strychnine for above-ground use
within the range of the following endan-
gered species:
Utah prairie dog
salt marsh harvest mouse
masked bobwhite
Cape Sable sparrow
Puerto Rican plain pigeon
California condor
San Joaquin kitfox
grizzly bear
Morro Bay kangaroo rat
red wolf
dusky seaside sparrow
Misaissippi aandhill crane
Attwat.?s prairie chicken
black-footed ferret
gray wolf
The Administrator of the EPA and his
agents are enjoined from continuing the
registrations of strychnine within th
range of the bald eagle and peregrine fal-
con until the ongoing formal consultation
with the Fish and Wildlife Service is com-
pleted and a final notice of determination is
issued in response. Thereafter, registre.-
tions for use in these ranges is permitted
only if no taking by strychnine used under
these registrations will occur, snd the Ad’
min lst,ator explains how this will be pie’
vented.
The Adminiatiator of the EPA and his
agents are enjoined from continuing the
registration of any strychnine product for
above-ground use until the Secretary as-
sesses the resulting likelihood of an Inci-
dental taking of any endangered or threat’
ened species, arid Issues an “incidental
take” statement permitting any such take
that might occur.
Th. Administrator shall publish nodes of
this oi’der and shall notify by lsU r all
registrants of strychnine for above-ground
use of the order. Th. nodes and letters
shall advise registrants of the injunctions
against registrations stated herein, and
8. Plaintiffs are entitled to recover
from defendants their reasonable costs and
attorney’s fees. They shall comply with
Local Rule 6 and submit their petition for
costs and attorney’s fees and a inelnoran-
duni regarding their entitlement to aLtos’
nay’. fees pursuant to the ESA, 16 USC.
0 1540(gX4); and Iii. Equal Access to Ju.-
ties Act, 28 U.S.C. * 2412(4
LRF JUDGMENT BE ENTERED AC-
GORDINGL.Y.
(j u innn
Robert CHILDERS. Geiwid Zeta., Robed
Eisenhower, Daniel Fahlln, Dominic Ji-
ak, Edward King, Seguisdo Ve’ qe. .
Robert Muehow, James Rollins, An.
Lawrence. Ban Nita, Sharon Willisme,
Stephans Ruppert. Julie Clark. ad
Kenneth Przeallca. PIInWII,
V.
NORTHWEST AIRLINES. INC.,. Minne-
sota corporation. Joseph W. Ettel, Mi-
chael D. Meyer City K. Cook, George T
Wood, MarvIn Sandrin. John I.. Godlin,
and BlII I. Pointer, Defendant..
Clv. No. 4—87—193.
Unitad State. District Court.
D. Mlnne.ota.
Fourth Division.
Jun. 28, 1988.
Employee. who participated in employ-
ee stock ownership plans brought action
against employer, management employere
and union officials after they wise denied
further participation in plan bera” - of pro-
motion. On defendants’ motion to
the District Court. Dot,, 3., held that (1)
defendants did sot breach Mudasy du
1356
. 1
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P ’;cy. ?:a---;.
And EvaIua on
(PM-220)
Sep;emoe ’ ‘ ;
Threats to Biological Diversity
In The United States
J ec S a:es
E vironmer.:aI Protection
Agency
-------
Threats to Biological Diversity in the United States
Based on a report by:
Elliott Norse, Ph.D.
Chief Scientist
Center for Marine Conservation
Prepared for:
Sally Valdes-Cogliano, Ph.D.
Science Policy Branch
Office of Policy, Planning and Evaluation
U.S. Environmental Protection Agency
Under EPA Contract #68-W8-0038
With Industrial Economics
Work Assignment #115
FNAL
September, 1990
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ACKNOWLEDGMENTS
Analyzing the threats to life on Earth is an ambitious task, one that no individual
should attempt without seeking the wisdom of others. This paper has benefited from the
critical insights and generous assistance of David Blockstein, Arnie Brautigam, Marydele
Donnelly, Michael Frankel, Kris Hansen, Roger McManus, Jennie Moehhnann, Barbara
Shapiro, Geraldine Tierney, Sally Valdes-Cogliano and five anonymous reviewers.
After leaving the author’s hands, this paper was edited by Sally Valdes-Cogliano
of the Science Policy Branch of the U.S. EPA and Geraldine Tierney of the Bruce
Company. A special focus on the threat of pollution was added by Dexter Hinckley, also
of EPA’s Science Policy Branch.
The cover artwork was submitted by Jon E. Miller to the Office of Pesticide
Program’s Endangered Species Design Contest.
I
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THREATS TO BIOLOGICAL DIVERSITY IN THE UNITED STATES
I. Summazy
II. Introductio .
A. Context 7
B. A public policy issue 8
C. Definition 9
D. Patterns before human impact 11
III. Threats 14
A. Responses to human impacts 14
B. Determinants of vulnerability .17
C. Ultimate causes 24
D. Proximate causes 25
1. Direct population reduction
2. Physical alteration
3. Chemical pollution and solid wastes
4. Global atmospheric change
5. Alien species
6. Interactions
E. The magnitude of the threat
1. Overview 37
2. Status of the best-known taxon: Birds 39
IV. Conclusion 44
\‘. ‘Iables 45
VI. Literature Cited SO
2
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I SUMMARY
As worldwide threats to biodiversity increase and extinction rates rise to 1000
times the natural background extinction rate, the conservation of biological diversity is
emerging as a major public policy issue. The ever-expanding human population, the
increasing per capita consumption of goods, and the greater impacts of pollution on
local, regional, and global scales have increasingly stressed the living systems which
provide humans with food, raw materials, medicines, breathable air, drinkable water,
current climatic patterns and aesthetic pleasure.
Building on realizations over the last two decades that technological
advancements are degrading a potentially fragile natural world and that whole
ecosystems are endangered, the biodiversity movement surfaced in 1979-80 with the
publication of several landmark documents, including The Sinking Ark by Norman
Myers, Thomas Lovejoy’s extinction section of The Global 2000 Report to the President .
and Conservation Biology--an Evolutionary-Ecological Perspective by Soule and Wilcox.
- Biological diversity refers to the variety of life on all levels of organization,
represented by the number and relative frequencies of items (genes, organisms and
ecosystems). Perhaps the most useful definition involves these three levels: 1) genetic
diversity within species; 2) species diversity, or the numbers and frequencies of species;
and 3) ecosystem diversity, the variety of communities of organisms in their physical
settings. Unlike wildlife management or endangered species protection, practices which
strive to protect only certain favored species, conservation of biological diversity
recognizes species, genotypes and functioning ecosystems as valuable resources and
recognizes communities of organisms as interactive complexes to be preserved.
In a policy sense, the concept of biological diversity represents a potential
measuring tool for the preservation of biological integrity. Measurement of biological
diversity could provide an effective and economical indicator of overall ecological health
and help ensure that adequate protection of ecosystems is achieved.
Before discussing anthropogenic threats to biodiversity, it is useful first to examine
how genotypes, species and ecosystems respond to anthropogenic stress in general, and
to examine what factors determine vulnerability to anthropogenic stress. Human
activities reduce genetic diversity by eliminating whole populations of organisms, by
reducing populations to the point where genetic drift overtakes natural selection as a
dominant evolutionaiy force, and by creating new selection pressures. Sp&ies exposed
to irresistible anthropogenic stress may become increasingly rare, locally extinct, and
eventually extinct throughout their range. Ecosystems tend to employ self-regulating
mechanisms that enable them to withstand some natural stresses with little or no effect,
and to recover from some stronger stresses which do have an effect, but anthropogenic
stresses are often drastic and quick enough to overwhelm this self-regulation.
• Many factors determine vulnerability of species. Some are inherent properties of
the organism or species and impart vulnerability whether the stressor be natural or
3
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anthropogenic; others result largely from the nature of anthropogenic stressors. Many of
these factors are correlated, but can exist independently (e.g. many species of large
organisms have small populations, but both factors, large organism size and small
population size, can independently cause vulnerability).
Species with small effective population size (referring to the number of breeding
males and females) are vulnerable for demographic (e.g. unbalanced sex ratios) and
genetic reasons (e.g. limited gene pool, subject to genetic drift). This may be the
primary risk factor, especially in recently reduced populations. Species with a narrow
geographic distribution, those with large area requirements, and those Namphibiousi
species requiring more than one type of habitat are at increased risk that some stressor
will infringe on at least one of their habitats.
Specialists, requiring a particular type of habitat or food, and species intolerant of
disturbance are at greater risk due to their inflexibility. Species of large organism size
are vulnerable despite the advantages of large size because many natural and
anthropogenic stressors (e.g. hunting) select against large organisms. Organisms with
slow reproductive rates are more vulnerable to increases in mortality. Evolutionarily
naive organisms that have evolved in the absence of competitors, predators and diseases
are more vulnerable to the accidental or intentional introduction of such organisms.
While factors imparting vulnerability to species are the most well-known, factors
increasing vulnerability to sub-specific populations and genotypes, and to ecosystems,
must also be addressed. Each factor listed above may also affect sub-specific
populations. Broad principles concerning genetic determinants of vulnerability are not
well defined, but genes conferring the ability to reproduce early would increase fitness in
populations heavily exploited by humans.
Six factors are primarily involved in imparting vulnerability among ecosystems.
Impermanent ecosystems, particularly those that are actually successional stages, are
vulnerable to human activities which intentionally or unintentionally prevent natural
disturbance or succession (e.g. fire suppression). Oligotrophic ecosystems (those in
which nutrient elements are scarce and limiting to many organisms) are vulnerable to
changes in nutrient availability (e.g. increases from fertilizer use, sewage discharge).
Undersaturated ecosystems, exhibiting fewer species than might be expected due to
current isolation or historical reasons, may contain vacant niches and naive biota which
are vulnerable to invasion. Isolated ecosystems, such as islands, are vulnerable because
extinction is not fully offset by outside colonization. Ecosystems of small size sustain
fewer species than a region of similar size within a larger ecosystem due tb penetration
of external influences. The most important risk factor is probably proximity to human -
populations. Ecosystems suffer as human populations appropriate land and resources
and produce harmful wastes.
Most current and pressing environmental problems, including the biodiversity
crisis, primarily result from two trends: the exponentially increasing human population
and the increasing per capita consumption of the Earth’s resources to provide for human
needs. These ultimate causes are manifested in six proximate causes representing the
major anthropogenic stressors to biological diversity.
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Direct population reduction occurs in the form of intentional taking (hunting,
trapping, fishing and collecting) and incidental taking (capturing or killing of non-target
organisms during hunting, trapping etc.). Most industrialized nations now limit direct
reduction in some maimer to prevent over-exploitation of resources, but over-
exploitation remains a major stressor to large mammals in many developing countries
(e.g. African elephants and rhinoceroses). Incidental taking is responsible for the death
of great numbers of marine organisms, including marine mammals, sea birds, sea turtles
and some species of fishes which are unintentionally trapped and killed in driftnets.
Once the most severe threat posed by 1-lomo sapiens , direct reduction has been
eclipsed by physical alteration of habitat. Physical alteration can be complete, as in the
conversion of wildiands to agricultural or urban land, or partial, involving creation of
barriers to organism dispersal (ecosystem fragmentation) or deletion of some ecosystem
component or components (ecosystem simplification). The clearcut logging of sections
within a forest (fragmentation), or the selective logging of standing dead trees within a
forest (simplification) will both have repercussions for the ecosystem beyond the simple
loss of trees. Most significantly at risk are some species of the following categories: large
terrestrial mammals, bats, hole-and ground-nest birds, amphibians, snails, conifers, herbs,
grasslands, freshwater stream organisms, river fishes and molluscs, and estuarine
vegetation.
A number of chemicals and waste products produced by human beings have
adverse effects on biological diversity. The biotic community structure in unbuffered
lakes and streams has been heavily impacted by acid deposition, and though currently
controversial, effects on coniferous and deciduous forest ecosystems may prove similarly
destructive. Tropospheric ozone is believed to have severe effects on coniferous and
deciduous forests. Excessive nutrients are a major hazard to unbuffered lakes and can
cause major problems in estuaries and coral reef ecosystems. Pesticides can have high
ecological impacts in freshwater and estuarine ecosystems, and have been implicated in
bird kills. Plastic pollution has proven a very serious threat to marine mammals, birds
and turtles. Organisms feeding at or near the top of the food chain are particularly at
risk to toxic substances which bioaccumulate (e.g. PCBs). Not even the National
Wildlife Refuges are safe from these threats, as evidenced by a recent survey of
contamination in these reserves following the discovery of chemical contamination in the
Kesterson Refuge.
The least understood and potentially most devastating threat to biodiversity is
global atmospheric change, in the form of climate change and enhanced ultraviolet-B
radiation. Predictions of warming and related climatic change patterns ar very
uncertain, but it is probable that shifting temperatures and climatic and hydrologic
factors will cause species to migrate, adapt or die out. Species migration will be
hindered by anthropogenic barriers such as static wildlife refuge borders, urban areas,
agricultural lands, and highways. The effects of increased UV-B are even less certain,
but could include disruption of marine planktonic communities, effects on tree seedlings,
and DNA and immune system damage, increased skin cancers and catatacts in mammals.
Additionally, higher atmospheric CO 2 levels may have direct effects on organisms.
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The introduction of an alien- species can upset ecosystem functioning due to new
forces of competition, predation and disease or due to more indirect factors. While alien
species usually do not survive upon introduction into a new habitat, those that do survive
have the opportunity to flourish in a new habitat devoid of their natural enemies. Alien
species have been most destructive to naive and undersaturated biota, such as in Hawaii.
In general, terrestrial and freshwater organisms are more likely to be affected than
marine species, as their populations are more localized.
As the magnitude and scope of these threats continue to increase, and as new
threats continually appear, interactions between stressors will become more important.
While currently not well studied or understood, interactions between two or more
stressors could produce cumulative effects which are far more destructive than the
individual threats; this interaction must be considered to ensure adequate protection.
An overview of the effects of 13 stressors on 59 categories of organisms in the
contiguous 48 states appears in Table 2. The effect of each stressor on each category of
organisms is rated as negligible/minor, substantial meriting study, or very serious
meriting immediate attention. Table 2 represents the best estimate of the author, Elliott
Nors , with consideration given to the opinion of avian ecologist David Bjockstein.
Table 2 could be improved at some future time by accounting for geographic differences,
showing change in stressors over time, incorporating effects of interactive stressors,
including the views of additional scientists, including bacteria and other unrepresented
categories of organisms, and producing similar charts for the biota of Hawaii, Alaska,
United States territories and other nations.
Some categories of organisms, such as birds, have been more intensively studied
than others, and may provide some indications of the status of biological diversity in the
United States. An in-depth review of United States bird populations indicates that
populations of seabirds (except terns), colonial wading birds (except endangered wood
storks), raptors (except harriers, some hawks, et al.), and shorebirds (except three
declining species) appear to be stable or increasing, while many populations of
waterfowl, songbirds and island birds are declining.
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II INTRODUCTION
A CONTEXT
Roughly 3.5 billion years of evolution have left the earth host to perhaps 5 to 30
million extant species (Wilson, 1986). In many ways, these organisms and their forebears
have shaped the..world of today. inheriting an atmosphere laden with carbon monoxide,
carbon dioxide, methane, ammonia and cyanide, living organisms converted it to one of
nitrogen and oxygen. Some of this oxygen reacted to form an atmospheric layer of.
ozone, which screened out ultraviolet radiation that had scourged the planetary surface.
Living things decomposed rocks into fine particles and added organic material,
‘creating the world’s soils. Vast amounts of atmospheric carbon dioxide were sequestered
in oil, coal and limestone, thereby turning down the temperature of the global
greenhouse. Much of the planetary surface was covered with trees, creating moderate
microclimates and a diversity of spaces in which living organisms could hide from harsh
conditions and one another. By creating breathable air, productive soils, a suitable
climate and useful substances such as foods, fuels, raw materials and medicines, the
Earth’s plants, animals and microorganisms fashioned an environment in which Homo
sapiens could originate and prosper. -
Likewise, Homo sapiens has further transformed the earth, being uniquely adept
at changing the world to suit its own needs. For most of human history, humans have
been essentially powerless against predators, storms, droughts, famines and diseases.
Currently, modern technology has provided many with relief from these stressors, as
witnessed by the exponentially increasing human population, but recognition is rapidly
increasing that modern lifestyles have great environmental costs.
The ever-expanding human population, the increasing per capita consumption of
goods, and the greater impacts of pollution on local, regional and global scales have
increasingly stressed living systems, eliminating many species and entire ecosystems. The
human population is currently doubling every 40 years, forcing continued expansion onto
more marginal lands and displacement of the natural inhabitants and perhaps causing a
mass extinction of life like none that has happened on Earth in at least 65 million years.
The average background rate of extinction before human intervention was
approximately 1 species per year; this figure was below the average rate of new
speciation, resulting in a net increase in species throughout most of history. The current
rate of extinction may be one thousand or several thousand species per year; this figure
is significantly higher than the rate of new speciation, thus resulting in species depletion.
Indeed, in the past the loss of a species has generally allowed for the emergence of one
or more new species, resulting in a net increase. This is no longer true, as species which
took tens of thousands of years to emerge are being extinguished and replaced by the
proliferation of a single species (Myers, 1989).
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Despite Homo sapiens apparent dominion over nature, humans remain reliant on
the diversity of life for food, raw materials, medicines, breathable air, drinkable water,
current climatic patterns, and aesthetic pleasure. Through over-exploitation, physical
alteration, pollution and other manner of disturbing the multitude of species found on
the earth, Homo sapiens is eliminating the source of its wealth and may be threatening
its own long-term survival and well-being.
Admittedly, the newly emerging science of conservation biology lacks accurate and
detailed data in most areas, including the functioning of ecosystems, the severity of
threats, the effects of disturbances impacting organisms and ecosystems, and the social
and economic costs of mitigating these threats. The speed with which species are being
lost, however, necessitates immediate action based upon what is known. A failure to act
now will result in major losses of biota. By protecting biological diversity, Homo sapiens
will preserve the ecological integrity that is likely to be of great value to this and future
generations.
B A PUBLIC POLICY ISSUE
The rapidly increasing threats to biological diversity have recently been paralleled
by increasing awareness, creating a political environment with a still small but growing
emphasis on conserving biological diversity. Like all political movements, this one has
evolved over time. Many traditional peoples had cultural (often religious) rules that
minimized harm to the living resources they exploited. From the beginning of
agriculture some 10,000 years ago, people have saved the seeds of their crops for the
next planting, thereby preserving favored genotypes. From medieval times until fairly
recently, there have been conservation efforts focusing on species of utilitarian
importance (mostly favored game, fish and timber species).
Thoughtful game managers have also realized that species of concern were
dependent on their habitats, and pushed for habitat conservation. Beginning in the last
century, the United States began protecting areas that had special scenic values in a
national park system. Together, the efforts to conserve the habitats of favored species
and lands of great beauty laid the foundation for ecosystem conservation.
Four realizations with origins more than a century old began taking hold about
two decades ago, setting tEe stage for the current biodiversity movement. First,
scientists, then conservationists, then a broader array of people, came to view the
extinction of species as undesirable regardless of their utilitarian value. This idea has
steadily gained acceptance since its incorporation into the Endangered Species Act of
1973.
The groundwork for the second realization began when Rachel Carson published
Silent Spring in 1962, eloquently demonstrating that many technological advancements
are unintentionally degrading nature. This point was driven home dramatically by the
well-televised Santa Barbara oil spill in 1969. More than anything else, it was this
realization that gave rise to the U.S. Environmental Protection Agency just a few years
later.
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The third realization dawned suddenly when U.S. Apollo astronauts sent back the
first pictures of the small, seemingly fragile Earth within the vastness of space. Many
people remarked that these pictures changed their consciousness about the finiteness and
vulnerability of the world in which we live. The fourth realization, held largely within
the scientific and government communities, was that whole ecosystems were rapidly
being destroyed, including the supremely diverse tropical forests.
The ensuing biological diversity movement seems to have had five rather
independent but almost simultaneous origins. In 1979, Norman Myers published Th
Sinking Ark , which examined the worldwide extinction of species of all taxa, not just the
extinction of mammals and birds which had concerned previous writers. Included were
the first estimates of global extinction rates. In 1980, the Council on Environmental
Quality and the State Department collaborated on The Global 2000 Report to the
President , which contained a groundbreaking section by Thomas Lovejoy on global
species extinctions as a consequence of tropical deforestation.
That same year, the Council on Environmental Quality’s Eleventh Annual Report
contained a section entitled “Ecology and Living Resources—Biological Diversity” by
Elliott Norse and Roger McManus (also published separately as Biological Diversity) . In
1981, Paul and Anne Ehr]ich published Extinction—the Causes and Consequences of the
Disappearance of Species , a clarion call for conservation that reached a wider general
audience. At the same time these assessments were being presented to the general
public and government decision-makers, Michael Soule and Bruce Wilcox (1980) were
editing and publishing a landmark volume, Conservation Biology—An Evolutionary-
Ecological Perspective , a volume of scientific studies directly relevant to the extinction
crisis, which gave the name to the newly coalesced science of conserving biological
diversity.
C DEFINITION
The meaning of biological diversity has caused much confusion since 1980. Part
of the reason stems from the newness of the concept, part from the circumstances of its
origin.
The foundation for the idea of biological diversity in a conservation context began
to form in the late 1950s, when ecologists such as George Evelyn Hutchinson and Robert
MacArthur began thinking seriously about the related concepts of species-richness and
species diversity within ecological communities. In the 1970s, The Nature Conservancy
used the term “natural diversity,” and others used “germ plasm”, “genetic resources” or
“genetic diversity” to refer to the wealth of species. In 1980, Thomas Lovejoy used
‘biological diversity” (without definition) in Global 2000 . The Council on Environmental
Quality’s 1980 Annual Report offered a two part definition of biological diversity,
including the concepts of genetic diversity (within a species) and species richness (the
number of species). -
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None of these adequately described biological diversity, yet the concept was useful
enough to take hold. Within a year it was the focus of the State Department/Agency for
International Development “Strategy Conference on Biological Diversity.” BiologicaJ
diversity became the explicit goal of legislation for the first time in 1983, when the U.S.
Congress passed the International Environmental Protection Act. This act required
United States federal agencies to help conserve biological diversity in developing
countries.
The definition of biological diversity was clarified by Norse et al. (1986) and the
Office of Technology Assessment (1987). Biological diversity is the variety of life on all
levels of organization, represented by the number and relative frequencies of items
(genes, organisms and ecosystems). Perhaps the most useful definition involves these
three levels: 1) genetic diversity within species, both among individuals within a
population and among different populations; 2) species diversity, or the numbers and
frequencies of species within a region, and 3) ecosystem diversity, the variety of
communities of organisms in their physical settings. This three-part definition now seems
to be widely accepted (e.g., Reid and Miller, 1989), and is being further improved by
knowledgeable scientists.
At first, this concept created confusion. Biological diversity was misconstrued as a
synonym for wildlife management or endangered species. Wildlife management, as
traditiQnally practiced, is concerned mainly with maximizing populations of beneficial
animals (typically those prized for hunting) and eliminating “pests” (usually competitors).
Whether by law, allocation of resources, or tradition, wildlife management was not
concerned with nongame animals, plants, microorganisms, communities of organisms,
gene frequencies, or evolutionaiy potential within species. Biological diversity is
concerned with these additional factors.
Similarly, biological diversity conservation is not synonymous with endangered
species protection. Recognizing that species are valuable as resources and that the biota
function in important ways (such as providing ecosystem services), it is not enough to
conserve only those species that are approaching the brink of extinction. Rather,
conserving biological diversity is conserving the integrity of all populations, species and
ecosystems, whether rare or abundant.
Loss of biological diversity is perhaps most often linked to deforestation, one of
the many human actions which can reduce populations of some species (often climax
species or specialists) while potentially increasing populations of others (usually lower
successional species or opportunistic species). For example, current logging practices in
many areas of the world, including the United States, often reduce populations of species
dependant on the ancient forest habitat being destroyed (e.g. the spotted owl), but may
increase populations of lower successional species or opportunistic species which take
advantage of disturbance.
This has sometimes been termed “ecosystem conversion” rather than
“degradation”, as one value or use (wildiands providing ecosystem services and wildlife
habitat) has been exchanged for another (the harvest of timber or use of land for
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agriculture), while degradation is reserved for the reduction in quality or productivity.
While this is a valid distinction, it niust be recognized that degradation is often a
component of conversion; the removal of natural vegetation during conversion degrades
the ability of the ecosystem to provide ecosystem services which can be vital to the
maintenance of any life.
Furthermore, the replacement of climax or specialist species by lower successional
or opportunist species should not be misconstrue.d (as it sometimes has) as an increase in
biodiversity. As David Wilcove (1989) notes, while disturbance of ancient Pacific
Northwest forest might attract enough lower successional and opportunistic species to
increase species richness on a particular tract, this is not an increase in biodiversity. The
amount of logging in this area has left no shortage of habitat for open-country species
such as dark-eyed juncos and brown-headed cowbirds, whereas the species associated
with old-growth coniferous forests are diminishing.
Clearly, biological diversity is not just a numbers game, and there is more to
preserving biological diversity than conserving only the areas richest in species. Rather,
maintaining biological diversity means maintaining the integrity of the genetic structure
within populations, the richness of species within ecosystems and the mix of ecosystems
that prevailed before human impact in all regions of the Earth’s surface. This goal is
implicit in any sound definition of biological diversity.
In a policy sense, the concept of biological diversity represents a potential
measuring tool for the preservation of biological integrity. Ecologists commonly assess
the severity of pollution stress on community structure by measuring either reductions in
overall species diversity (species-level biodiversity) or changes in the abundance of
indicator species. Indicator species fall into two categories: “decreasers” (those sensitive
to the pollution stress) and “increasers” (those tolerant of the stressful conditions which
expand into niches vacated by decreasers).
D PAIIERNS BEFORE HUMAN IMPACI
Since very few of the world’s ecosystems were studied before they underwent
substantial alteration by humans, the assembling of a global picture of the pre-impact
world’s biota is largely an exercise in combining information from paleoecology and early
written accounts with inferences based on what is currently known. For example,
historical records and current knowledge of community ecology and biogeography lead to
the conclusion that the cool temperate, moist, well-drained Central Euro ean lowlands
that now supportfarms and villages were dense, continuous deciduous forest at the time
of the Roman Empire.
Such an exercise requires considerable conjecture. For one thing, there are major
disagreements about what kinds of ecosystems were located in which regions before
human impact. Were the taligrass prairies once extending from the Gulf Coast to the
prairie provinces of Canada the natural ecosystem in that zone (a result of lightning-
caused fires and grazing by bison) or were they created by Native Americans who burned
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the vegetation (and eliminated trees) to improve forage for game animals? Much the
same question could be asked about lands that are now tropical savannas in northern
Australia.
Likewise, while humans were spreading from Africa to other parts of the world,
contemporaneous climatic changes were occurring which could also have caused biotic
changes. While the importance of climate change in determining ecological patterns
must be recognized, coincidence between North American large mammal disappearance
and the rapid advance of humans possessing potent new hunting tools suggests
anthropogenic factors played some part. There is evidence that similar mass extinctions
of mammals and birds occurred at quite different times shortly after humans colonized
South America, Australia, Madagascar, New Zealand and Polynesia.
Megafuana extinctions of this magnitude did not occur in Africa and Asia, where
early humans resided long before they invaded the lands listed above. Roughly 19% of
the large mammalian genera in Africa were extinguished compared with 74-86% in
North America, South America and Australia (Martin, 1986). Presumably, human
capabilities evolved slowly enough during the early Pleistocene to allow most of the giant
animals of-Africa and Asia to persist. By the time Homo sapiens arrived in the
Americas, Australia and various islands, they were far more effective at hunting large
prey. This would explain why some African and Asian elephants remain, but no North
American mammoths or mastodons.
Except for changes wrought by man-made fires, the major impact of pre-
agricultural people was probably on the species they hunted for food and those species
that competed with humans for prey. Most other major ecological changes between the
evolution of the genus Homo and the first agriculture probably resulted from changing
climate.
What did the world’s biota look like before human impact? Not surprisingly, it
was a lot richer. North America, for example, hosted glyptodonts (an ox-sized armadillo-
like mammal), giant ground sloths, several kinds of proboscideans (elephant-like
mammals), a giant deer ( Cervalces sp.), large camels, large musk-oxen, horses, a lion
( Panthera leo atrox) , a sabre-tooth tiger ( Smilodon fatalis) , a powerful, short-legged wolf
( Canus dirus) , a gigantic short-faced bear ( Arctodus simus) , and a bear-sized beaver
( Castoroides sp.) (Kurten, 1988). Steller’s sea cow grazed subtidal algal pastures from
California all the way to the Aleutians and across to coastal Siberia. In the first
centuries after humans arrived from Asia via unglaciated areas in Alaska, these
megamammals were swept away with lightning speed. By 10,000 years ago, all these
animals were extinct (Martin, 1986) except the sea cow, which held on in its last remote
island redoubt in the Bering Sea until 1768.
Until the coming of the Europeans, highly diverse eastern deciduous forests of
very large oak, chestnut, beech and maple reached from the Atlantic to beyond the
Mississippi, and were home to billions of passenger pigeons, along with-wolves, mountain
lions, elk, moose, a few bison and, in the South, ivory-billed woodpeckers and Carolina
parakeets. Eastern rivers ran thick with Atlantic salmon. The vast tract between the
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semi-arid shortgrass prairie and the eastern forest was lush, tallgrass prairie; California’s
Central Valley was a rich grassland, as were many of the semiarid western areas that are
now sagebrush or mesquite-covered desert. Bison, elk, wolves and grizzly bears ranged
throughout most of these western grasslands. The Pacific Northwest was solidly cloaked
in diverse coniferous forest whose largest trees reached nearly 400 feet tall and 20 feet in
diameter; California condors ranged from Mexico to British Columbia.
- South America, Europe, North Africa, temperate Asia and Australia were
markedly different as well. South America and Australia lost an even higher percentage
of their large mammal genera than North America (Martin, 1986). Europe had a glacial
fauna of megamammals nearly as spectacular as those of North America (Fenton et al.
1989); woolly mam.moths ( Mammuthus primigenius) , woolly rhinoceroses ( Coelodonta
sp.), bison ( Bison bonasus) , aurochs (wild oxen, Bos primigenius) , a giant deer
( Megaloceros) , reindeer ( Rangifer tarandus) , cave bears ( Ursus spelaeus ) and cave lions
( Panthera leo spelaea ) were among the large representatives, but extinctions were more
gradual and proceeded from south to north.
After the glaciers retreated, Western Europe was densely forested from the North
Sea to the Mediterranean; the Mediterranean stunted shrublands did not yet exist. Much
of the Ukraine and southwestern Russia was grassland. Much of North Africa and
Ethiopia was forest or tree savanna; the Sahara was much smaller. The foothills of the
Himalayas and the lowlands of eastern China and Japan were covered with broadleaf
forests that were even richer than their North American counterpart. From India and
Sri Lanka, across southern Asia to Indochina and the Philippines, Indonesia, New
Guinea and northeastern Australia, a great diversity of tropical forests prevailed. As in
the other continents that were settled by advanced human cultures, the megafauna of
Australia were seriously depleted; 19 out of 22 genera of large mammals vanished.
Island fauna have undergone even more drastic change. The Canary Islands had
an extremely rich endemic flora; Madagascar was largely covered with forest and tree
savanna and hosted a remarkable assemblage of endemic lemurs and the 1100 pound
flightless elephant bird ( Aepyornis maximus) . This, the largest bird that has ever lived
on Earth and laid eggs holding more than two gallons, survived until about 1700 (Day,
1981). Densely forested New Zealand, too, had an extraordinarily rich endemic avifauna
including 20 species of giant flightless birds (the moas), the largest of which reached 13
feet in height. The isolated, densely forested Hawaiian islands hosted the most endemic
biota found anywhere in the world.
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III THREATS
A RESPONSES TO HUMAN IMPACT ’S
Human actions threaten all levels of biological diversity. The most visible level
should be ecosystem diversity, but limitations on human spatial and temporal horizons
make it difficult to comprehend changes occurring on this level. The magnitude of
ecosystem destruction is made more visible by technological innovations such as satellite
imagery; the remarkable Landsat photographs between 1973 and 1988, for example, show
rampant deforestation in Brazil’s state of Rondonia (see National Geographic, 1988).
Less visible but better appreciated is destruction of species; it seems images of vanishing
condors and elephants elicit more human response. Least visible and least understood is
the loss of genetic diversity.
Human activities reduce genetic diversity in at least three ways. Anthropogenic
disturbances can 1) eliminate whole populations of organisms and their entire genetic
complement; 2) reduce population sizes to the point where genetic drift overtakes
na tural selection as the dominant evolutionary force; and 3) create new selection
- pressures.
Each species is comprised of one or more relatively distinct populations Of
interbreeding individuals. Genetic distinctions may arise between populations because
some kind of barrier diminishes or prevents genetic exchange between organisms of the
same species. As a result, individuals within one population may possess versions of
genes (alleles) that are absent in another population, or they may possess the same
alleles in different frequencies. The different alleles that code for varied expressions of
a particular trait provide the raw material for evolution. Some combinations of alleles,
called co.adapted gene complexes, are particularly important because, as a group, they
confer adaptation to local conditions.
Many people do not understand the importance of preserving populations. If
marbled murrelets (a species of small seabirds) still abound in Alaska, they wonder, why
should we worry about their elimination in California? They fail to recognize the genetic
diversity at stake. As Paul Ehrlich (J)ersonal communication) and others have pointed
out, humans are causing the extinction of populations at a rate far greater than the
extinction rate for whole s edes. As populations disappear, their distinctive alleles and
co-adapted gene complexes are lost, as are the products and ecological services that
populations provide. The Endangered Species Act of 1973 appropriately Tecognized that
populations merit conservation even if they are not morphologically distinct enough to be
called subspecies.
Populations which are not driven entirely to extinction, but which are stressed
enough to dramatically reduce population size, may be further affected by genetic drift.
Genetic drift is the change in the frequency of various alleles caused b random chance
rather than by selection pressure. In small populations, genetic drift can become more
important relative to the natural selection that tends to maximize the fitness of
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individuals, because certain individuals contribute disproportionately to the gene pool of
succeeding generations by pure chance. ‘Fhis can result in the loss of beneficial (or
detrimental or neutral) alleles, and in the fixation of detrimental (or beneficial or -
neutral) alleles. Thus, this non-Darwinian form of evolution can reduce genetic fitness
and diminish the potential ability of an organism to withstand change.
Additionally, human activities can reduce genetic diversity by altering selection
pressures. Living things evolve (i.e. their gene frequencies change) in response to
selective pressures and opportunities in their environments. Anthropogenic influences
have created new selection pressures.
Examples are abundant. Before the industrial revolution, virtually all peppered
moths ( Biston betularia ) in Europe were light ashy gray matching the lich ns and tree
trunks on which they rested. M Europe industrialized, sulfur oxides emissions from coal
killed off lichens, and the tree trunks turned black with soot. The peppered moths that
survived in heavily polluted areas were also sooty black. Light-colored individuals made
easy prey for birds, and were selected against.
The aurochs, the ancestor of domestic cattle, was a large, powerful, fierce creature
capable of living through the rigorous European winters. Domestication by humans
selected against many behaviors, and many strains of domestic cattle have lost their
ancestors’ abilities to find food covered with snow and to eat snow to obtain water. The
aurochs and the genes that produce such adaptive behaviors are now extinct
- When first introduced in the 1940s, the pesticide DDT was hailed as the savior of
the many millions of people who would otherwise die each year of insect-borne diseases
such as malaria. DDT, however, selected out the most susceptible individuals, leaving
less susceptible ones to pass on their genes. Now the mosquito vectors of malaria are
resistant to DDT and many other pesticides, and malaria affects hundreds of millions of
people worldwide.
The ancestors of modern-day corn were Middle-American perennial grasses which
scattered their small production of seed each year. Today’s highly selected annual corn
produces huge crops of seed and then dies each year, but is unable to reproduce without
human help. The seeds stay attached to the corncob, so any cobs that escape harvest
produce densely crowded seedlings that cannot avoid severe competition. This would
quickly lead to extinction if humans did not remove and disperse them. The ancestors of
corn were long thought to be extinct until a handful were discovered in the late 1970s.
Human contact has intentionally or unintentionally altered gene frequencies in all
these organisms, increasing some genes at the expense of others. Some organisms have
prospered; corn plants and cattle are undoubtedly more abundant than their ancestors
were. Many species, including some that we consider “wild” such as house sparrows,
head lice, dandelions or coconuts, undoubtedly would be much rarer if humans
disappeared. Far more have not prospered from the advance of humans, and very large
numbers of genetically distinct populations and their genes have disappeared entirely.
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As species are stressed, they either disappear in parts of their range, become less
numerous throughout the range, or both. Local extirpation and rarefaction are both
preludes to extinction. As people have an easier time recognizing species as distinct
entities (as opposed to genotypes or ecosystems), it is easier to estimate the rate at which
they are being lost even if, for reasons Edward 0. Wilson (1986) makes clear,
quantifying worldwide extinctions is very imprecise. Species’ extinction is not really a
process distinct from loss of populations, but rather, is its end point. When the last
population of a species disappears, the species is extinct.
Like the loss of genetic and species diversity, loss of ecosystem diversity is a
graded phenomenon. Its endpoint, however, is not as clear as with the loss of alleles or
species because the definitions of ecosystem boundaries can be arbitrary.
For example, the tropical forest ecosystem is readily separable into different
biogeographic regional types (such as Neotropical, Ethiopian, Oriental and Australasian),
each of which can be further subdivided. Within the Neotropics, the Central American
forests extending west of the Andes are fairly distinct from forests of the Amazon Basin
or of southeastern Brazil. Within the Central American/Pacific Coast forest region,
forests can further be divided into evergreen wet and moist lowland forests, (and into
mangroves, seasonally flooded, montane and cloud forests, seasonally dry deciduous
forest, and usually dry thorn forest). The classification continues within.these categories,
and all of these are distinct tropical forest ecosystems. There are no distinct boundaries
between them to facilitate the assessment of loss at the ecosystem level.
Despite these uncertainties, some observations are clear. The organisms that
compose communities in all ecosystems have mechanisms that allow them to resist some
mild stresses and to recover from some stronger stresses, unless conditions change
beyond a certain point. In the Klamath-Siskiyou region of southwest Oregon and
northwest California, a seasonally dry area that has been densely forested for at least
thousands of years, traditional, natural stressors tended to kill a mosaic of patches or
individual trees and other organisms but did not transform entire forests. Large tracts of
forest create a moderate microclimate that favors their perpetuation, enabling these
systems to resist stress. Trees recolonize the semi-open areas that offer better
opportunities than those in deep shade. These systems are resilient in the face of
natural stressors of usual magnitude.
Anthropogenic stresses, however, can create a different pattern. Clearcutting
eliminates the moderate microclimates which foster resilience; clearcuts can be hotter,
colder, drier and windier, and thus prevent establishment of seedlings of even drought-
tolerant trees. Despite repeated plantings, clearcut forests often do not begin recovery
for at least decades. Even with all the advantages foresters can provide, clearcutting
alters the physical conditions so much that it pushes the system beyond its ability to
recover except during unusually cool, wet years or multiyear periods.
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B DETERMINANTS OF VULNERABILITY
The eastern elk that once roamed the land east of the Mississippi are now extinct
(Thomas and Bryant, 1987), but white-tailed deer are more abundant than ever. Only a
few thousand spotted owls survive in the Pacific Northwest, but barred owls have invaded
and are spreading throughout their range (Norse, 1990). Amazonian upland terra firme
forests are disappearing even faster than nearby floodplain varzea forests (Low, 1984).
Although fewer than 20% of the world’s .birds occur on islands, more than 90% that have
become extinct in historic times are island species (Low, 1984). These situations raise
the question: What determines the vulnerability of particular genotypes, species and
ecosystems?
There has been remarkably little research into most aspects of vulnerability. As is
typical in discussions concerning biological diversity, most attention has been directed
towards losses at the middle level (species extinction), but differences in vulnerability
among genotypes within species and among ecosystems must also be considered.
Some differences in vulnerability are inherent; the organisms or ecosystems would
be more vulnerable whether their stressors were natural or anthropogenic. Others result
largely from the nature of anthropogenic influence.
Most important insights concerning vulnerability have been drawn from studies of
island species, from both oceanic islands (those always isolated from land) and from land
bridge islands (those cut off from mainlands, often as a result of post-glacial sea-level
rise or creation of reservoirs). Some factors that determine vulnerability in species are
correlated. For example, many species of large organisms have small populations, but
small population size is a major determinant of vulnerability regardless of organism size;
conversely, large size can make a species vulnerable independent of its initial rarity.
1. Determinants of vulnerability among species
a) Small effective population size. All else held equal, small populations are more
vulnerable than large ones for a variety of reasons (Frankel and Soule, 1981). Some are
demographic (e.g. unbalanced sex ratios) which are more likely in smaller populations;
short of resorting to hybridization, there was no hope of perpetuating the dusky seaside
sparrow when the population fell to five individuals, all of which happened to be male
(Cade, 1983).
Demographic vulnerability is not merely a question of the sex ratio; but of the
number of breeding males and females (connoted by effective population size). Grizzly
bears in the greater Yellowstone ecosystem number perhaps in the 200s, but many are
too young or too old to reproduce. The effective population size is much lower because
only 30 or so are reproductive females. Thus, age structure is a second key demographic
variable that can render small populations vulnerable.
-Furthermore, populations fluctuate in response to environmental variables that
might or might not be obvious. A large population can lose 90% of its individuals and
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still have a good chance of recoveiy if its habitat remains intact. Conversely, normal
fluctuations in a small population can lead to demographic imbalance and extinction.
Some groups, such as butterflies (Ehrlich, 1983) might be particularly vulnerable to
demographic fluctuations leading to extinction.
Additionally, there are genetic reasons why small populations are vulnerable
(Schonewald-Cox et al., 1983). Smaller populations are less likely to possess rare genes.
As conditions change, rare genes may confer improved fitness (the improved ability to
reproduce successfully). The presence of rare genes can be a vital form of evolutionary
insurance, thus their absence makes a species more vulnerable. Additionally, small -
populations are subject to genetic drift, as previously discussed. Genetic drift can
diminish fitness (Franklin, 1980).
Rarity exists for many reasons, including some which are simple consequences of
high species diversity (Cody, 1986); thus rarity per se is not always harmful for a species.
Some naturally rare species have special mechanisms allowing persistence at low
densities (Rabinowitz et al., 1984). However, formerly common species which have been
artificially reduced are much less likely to possess mechanisms such as these.
- Small population size, especially in a population whose numbers have been
recently reduced, is probably the most important risk factor for extinction (Terborgh and
Winter, 1980). Countless species have had their populations reduced by human
activities.
b) Narrow geographic distributions. Abundance is determined by a combination of
three factors: 1) size of geographic range, 2) number of utilized habitats; and 3)
individual population size (Rabinowitz et al., 1986). A species can be termed rare by
deficiency in any of these factors. Species such as western red cedars and mountain lions
have broad geographic distributions and occur in many kinds of habitats but typically
have low densities. Others, such as red mangroves and canyon wrens have broad
geographic ranges but occur only in rare, localized habitats. Still others, such as
Haleakala silverswords and Devil’s Hole pupfish are classic endemics (species found only
in a restricted area).
All other factors being equal, a narrower geographic range increases the
likelihood that some natural or anthropogenic stressor may cause extinction. Human
proliferation has significantly reduced the geographic range of a great number of species.
c) Large area requirements. Species of large organisms need more resou ces than small
ones, and tend to range widely to find them; other species depend on resources that are
widely scattered over a large area. Species such as these are vulnerable to any stressor
that decreases the size of their habitats. Grizzly bears, spotted owls, and Florida
panthers are currently endangered because ranching, logging, and housing development
have eliminated most of their habitat and isolated them in small, island-like refuges.
d) Specialization. - Specialists requiring a particular type of habitat or food are especially
vulnerable. One famous example is the Evergiade snail kite ( Rostrhamus sociabilis) , a
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species endangered due to its dependence on a single prey, the apple snail ( Pomacea
paludosa ) (Takekawa and Beissinger, 1989). As the hydrology of the Everglades has
been altered for agriculture and housing development, apple snail habitat has
disappeared and the monophagous raptor has diminished. Many specialists have
decreased as a result of human activities.
e) Intolerance of disturbance. Both the frequency and type of disturbance occurring in
natural ecosystems exert enormous influence on plants, fungi and animals. In general,
disturbances increase populations of species that are able to tolerate disturbance or take
advantage of the newly available resources in recently disturbed areas. Many of the
these are opportunistic, TM weedy” species, such as dandelions and the red imported fire
ant, which devote a relatively large percentage of their biomass to reproduction and
produce many young (r-selected species). In a climax community, these are often kept in
check by competition with species which devote more energy to the growth and
maintenance of the adult (K-selected). Disturbance shifts the scales, and “weedy
opportunists flourish while climax species such as the western red cedar, myotis bat, and
the northern spotted owl, disappear.
f) Large size. Species of large organisms often have small populations and large area
requirements, but they can be vulnerable for other reasons as well. This might seem
counterintuitive, as large size can confer resistance to forces that harm smaller
individuals. For example, giant sequoias have very thick bark that makes them virtually
immune to the frequent fires that kill many thinner-barked trees.
However, many forces select against large species, (e.g. wind which selects against
the tallest trees, and predators, which often take the largest prey they can readily
handle); (see Connell, 1975). Humans, too, tend to hunt large prey (such as deer) and
log tall, large-diameter trees (such as sugar pines); humans are especially likely to
discriminate against large species because modern technology can diminish any natural
advantages conferred by large size, while our economics demand that we maximize
return for unit effort by taking the largest individuals possible. That is why blue whales
were pushed towards extinction before the smaller fin whales, which were depleted
before the still smaller sei whales, which were hunted to low levels before killing
commenced on the smallest baleen whales, the minkes (Ehrlich et a!., 1977).
g) Slow reproductive rate. There is enormous variability in rates of reproduction. Two
species can have equal abundance if one reproduces faster but the other has lower
mortality. If conditions change so that their mortality rates become similar, the faster
reproducer will be better able to recover from disturbance. Faced with increased
mortality from off-road vehicles, desert tortoises are hindered by their inability to
reproduce until they reach 12-20 years old (Campbell, 1988). A look at the Endangered
Species List will show many species with unusually low reproductive rates.
h) Evolutionary naivete. Organisms which evolved in isolation from competitors,
predators, or diseases are more vulnerable. This is most obvious with island species such
as plants lacking physical or chemical defenses against grazers, or defenseless birds such
as the kakapo ( Strigops habroptilus) , a very large, flightless, ground-dwelling and
critically endangered parrot from New Zealand.
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Similarly, anthropogenic stresses can render even mainland species naive”.
Striped skunks and adult eastern box turtles have evolved natural defenses to protect
themselves from foxes, cougars, black bears and many other natural predators, but not
from speeding cars. Many species are defenseless against man-made chemicals in their
environments. Industrial wastes, insecticides and herbicides can jeopardize many species-
-perhaps most except herbivorous insects--that are not adept at breaking down novel
substances into non-toxic ones.
i) Amphibiou? habits. “Amphibious” organisms, whose life cycle or habits require more
than one type of habitat, run greater risk of losing one of these habitats to natural or
anthropogenic disturbance. The vertebrate class Amphibia is hardly alone in this; living
double (or multiple) lives” is very widespread. Nevertheless, this is one of the less-
discussed determinants of vulnerability among species. Reed Noss (1987) notes:
Field naturalists recognize that many animal species require distinctly
different habitats for different activities or separate stages of their life
cycles. Some organisms, such as holometabolous insects [ those. which
undergo complete metamorphosis] and many amphibians, undergo
ontogenetic niche shifts [ shifts related to development] that place them in
drastically different habitats after metamorphosis:.... Other organisms...
commute between different patches or community-types to meet life history
needs.
In the class Amphibia, the most familiar life history is exhibited by spotted
salamanders; adults live in moist places on land but lay eggs and undergo larval
development in water. This species is vulnerable to either elimination of the large fallen
logs under which they hide--which happens in intensively managed forests—or from
pollution of their breeding ponds from acid rain.
Migratory species are also amphibious, whether they move seasonally between
uplands and lowlands, as do mountain goats and some elk populations, or migrate long
distances, as do hundreds of bird species that breed in north temperate zones but winter
in tropical regions. Many populations of migratory songbirds seem to be decieasing, but
whether this decrease is due to loss of their tropical forest wintering grounds, to pesticide
poisoning in their North American summer grounds, or to some other factor or
combination of factors, ren ains to be determined..
Marine mammals require two media. Whalers did not have to search the nearly
opaque depths; they only needed to wait until their quarry surfaced to breathe. Many
materials such as spilled oil collect at the land-sea interface, providing obstacles for a
number of functional groupings, including neuston, pleuston, birds that rest on the sea
surface and any underwater species that must surface to breathe. Sea turtles further add
to their vulnerability by laying eggs on land, where they must contend with destruction of
nesting beaches (for example, by the building of seawalls), egg predation (especially by
humans) and light pollution (which disorients young that hatch at night, preventing them
from reaching the sea).
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Less obvious examples exist. Insects that metamorphose and plants that
reproduce sexually often have very different behaviors and habitat requirements in
different life histoiy stages. Adding these to the more obvious species with double lives
leads to the conclusion that most species are amphibious to at least some degree.
Certainly, not all are threatened, but the more different the phases, the greater the
likelihood that at least one of the phases will be affected by human activities and thus
affect the population dynamics of the species.
2. Determinants of vulnerability among sub-specific populations and genotypes
Each of the variables discussed above may also operate on different populations
of a species; e.g., tundra populations of marbled murrelets ( Brachyramphus marmoratus )
are far less vulnerable than the populations in California, Oregon and Washington, which
nest only on the mossy limbs of ancient conifers, a habitat that is fast disappearing
(Marshall, 1988). These murrelet populations are equally amphibious, but only the
resource needed by more southerly populations is severely limiting.
Beyond this, broad principles about genetic determinants of fitness among
individuals do not seem to be well defined. Genes that confer the ability to reproduce
early would greatly increase fitness in a species being heavily exploited by humans. As
Fower and Gregoire (1978) have noted, this type of selection affects lake trout
( Salvelinus namavcush ) in a lake in Quebec having landlocked harbor seals ( Phoca
vitulina) . Compared with similar nearby lakes lacking seals, trout in the lake having
seals reproduce much earlier and have far more eggs per gram of body weight,
apparently because seals are especially adept at preying on trout that are massed for
reproduction. This strongly selects for semelparous (big bang) reproduction.
Similarly, nonmigratoiy genotypes would be favored in populations which are
genetically polymorphic for migration if humans eliminate one of the habitats between
which migrators move. Genes coding for fear of humans, tolerance of toxic chemicals
and the ability to switch to abundant hosts (such as corn plants) would also be selected
for in human-dominated habitats, and genotypes lacking such traits would fare less well.
3. Determinants of vulnerability among ecosystems
a) Impermanence. All places on the Earth’s surface change in ways which alter the
conditions for their communities, but these changes occur on diverse timescales. Much
of the deep seabed might survive undisturbed for more than a hundred million years,
until seafloor spreading draws it into subduction zones. Many other ecos)Tstems change
orders of magnitude faster: Some ecosystems are inherently short-lived because the
physicochemical factors shaping them are ephemeral; deepsea hydrothermal vent
communities appear to last only decades, as long as the upwelling flow of mineral-rich
heated water. When the flow stops, the tubeworms, mussels and other vent fauna die.
Unlike this example, most ephemeral ecosystems are actually successional stages;
succession drives, or at least hastens,.the changes.. Ox-bow lakes in fertile floodplains
re also short-lived, filling in quickly as succession proceeds from river to lake to marsh
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to forest or prairie. In exceptionally short-lived ecosystems, many species are
opportunists that colonize and disperse readily under natural conditions to other new
ecosystems of the same kind. As long as something resembling the natural disturbance
regime is preserved, these successional stages will persist.
A number of human activities intentionally or incidentally diminish the frequency
of disturbance. Fire suppression in forests, for example, favors mid-successional and
sometimes late successional species at the expense of early successional species.
b) Oligotrophy. Ecosystems in which nutrient elements are scarce and limiting to many
organisms (termed oligotrophic ecosystems) are vulnerable to changes in nutrient
availability. Tropical wet forests on old, weathered soils are often nutrient-poor because
rain has long since leached key nutrients below the rooting zone. Many freshwater lakes
and streams (including streams in caves) are nutrient-poor, as are the non-upwelling
coastal waters off arid regions and the vast majority of the open ocean (non-upwelling
areas) from the surface to the seabed.
Countless nutrient-poor lakes have undergone eutrophication (nutrient addition
which disrupts the ecological balance) from nutrient-rich discharges and runoff. In Key
Largo, florida, an area which has undergone rapid development in recent years and•
which receives an ever-greater amount of nutrients from the Miami metropolitan area to
the north, reef corals have been suffering high rates of overgrowth from algae which
grow faster than corals under eutrophic conditions.
In a smaller number of cases, ecosystems are also vulnerable to anthropogenic
decreases in nutrient availability. The estuarine lakes at the mouth of the Nile once
supported rich fisheries because annual Nile flooding provided large, predictable inputs
of nutrients. The completion of the Aswan High Dam trapped the nutrients in Lake
Nasser, eliminated this flooding and quickly eliminated the fisheries in the estuarine
lakes (Shaheen and Yousef, 1979). On land, pH markedly changes the availability of
various nutrients by affecting both ion exchange capacity and the amount of nitrogen
fixation in soils. Acid precipitation can alter the species composition of an ecosystem by
altering nutrient availability.
Oligotrophic ecosystems might be more vulnerable than eutrophic ones, however,
because more human activities accelerate nutrient release than decrease it. A more
general principle is that anything that affects an ecosystem’s inputs, outputs and internal
cycling of nutrients can cause profound changes because nutrient availability is among
the most important factors shaping the evolutionaiy strategies of organisms, the outcome
of competitive interactions and the functioning of ecosystems.
c) Undersaturation. All ecosystems are to some degree vulnerable to invasion, but
oceanic islands and isolated lakes (such as desert springs and glacial lakes) are
particularly vulnerable. Their biota is typically undersaturated, exhibiting far fewer
species than might otherwise be present. This creates the previously mentioned
evolutionary naivete in isolated species, allowing them to be easily exploited by
introduced species. The addition of rats, cats and goats to islands, and of trout,
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blackbass and Nile perch to lakes where they were not native has had devastating
consequences for native species composition, structure and functioning in these
ecosystems. Among the many examples are the severe effects of introduced rabbits on
the vegetation of Laysan Island, and the elimination of six out of eight common, native
fishes of Panama’s Gatun Lake by an introduced predatoiy cichlid, the peacock bass
( Cichla ocellaris ) (Zaret and Paine, 1973).
Not all undersaturated biotas are islands or isolated lakes, however. The reason
for undersaturation in some cases is historic. Southern Florida has a quasi-tropical
climate, and would undoubtedly support far more tropical species had they not been
wiped out during glacial periods when the region was cooler. Species that found their
way from warmer areas since the last glacial retreat have prospered there, as have large
numbers of alien species recently introduced by humans (Courtenay, 1978).
d) Isolation. Isolated ecosystems of any kind are vulnerable because the extinction of
species within them is not fully offset by colonizations from outside. Hence, isolated•
ecosystems tend to have fewer species compared with extensive examples of the same
kind of ecosystem (MacArthur and Wilson, 1967); the more isolated the ecosystem, the
fewer species it will have.
Brown (1971) found that for non-flying mammals confined to isolated western
mountaintops, the number of species on a mountaintop is determined solely by extinction
rates. There is no recolonization across climatically unsuitable lowlands. While natural
processes have always left isolated ecosystem patches here and there, anthropogenic
habitat fragmentation, due to agricultural lands, roads, dams, .cities, clearcuts and tree
plantations, has dramatically increased the fragmentation, and hence the isolation, of
ecosystems worldwide.
e) Small size. Other things being equal, small ecosystems have fewer species than large
ones, partly for reasons described above in the discussion on species with large area
requirements. Additionally, many external influences penetrate only a finite distance
into ecosystems. In closed canopy forests, nest predators, brood parasites (Wilcove et al,
1986), and hot, dry winds penetrate within the border from one to hundreds of meters.
As a result, edges are unsuitable for forest interior species. In a very large patch, the
fraction that is edge will be negligible, but the fraction increases rapidly with decreasing
patch size until the entire patch is edge (Franklin and Forman, 1987). The
fragmentation that is isolating ecosystems from sources of recolonization is also
decreasing the size of remaining fragments, decreasing population sizes, increasing the
amount of edge and increasing extinction rates.
f) Pro dmity to human populations. This is by far the most important risk factor for
ecosystems, as witnessed on any intercontinental flight. Where water is not limiting,
essentially all level, fertile land is agricultural except for areas where towns and cities
have succeeded farmland. Only on steep slopes are there remnants of the original
forests or grasslands; in the most crowded lands, even these marginal lands are farmed.
Similarly, in dry lands, the same riparian strips which once supported disproportionately
large numbers of animals and plants, now support farms, livestock operations and towns.
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A few things that humans consume (most underground minerals, for example)
show little correlation with biological diversity. More often, however, the same physical
factors which favor vibrant communities of living things also favor humans, and Homo
sapiens has appropriated these habitats for its use. Since the best lands are already long
gone, almost all new colonization is now on lands that cannot support dense human
populations on a sustainable basis. This often does not stop desperate people from
moving there anyway. . .. ..
Humans actions may also threaten ecosystems located downwind and downstream
of human activities. The acidification of hundreds of lakes in eastern North America by
emissions of power plants far upwind and the contamination of estuaries with
polychiorinated biphenyls released far upstream are two examples.
C ThE ULTIMATE CAUSES
At first glance, current threats to biological diversity appear many and varied.
The toxins washed from a tobacco farm into a Kentucky stream and the expansion of
Masai cattle herders onto the last available Kenyan virgin grassland might seem to be
localized manifestations of different problems, but they are not. The use of potentially
hazardous chemicals to increase crop yield to feed an ever expanding human population,
and the continued conversion of wildlands for human use are different symptoms of the
same underlying condition and their effect is cumulative. Reduced to its simplest terms,
environmental impact is primarily the product of two trends: the exponential growth of
the human population and the increasing per capita consumption of the Earth’s resources
to provide for human needs. -
Unchecked population growth is a driving force which pushes developing nations
into a self-perpetuating cycle of economic disaster and environmental degradation.
Those same nations which are now teetering on the edge of environmental and economic
disaster--manifested in devegetation of the land, mass extinctions, crushing foreign debt,
skyrocketing inflation, decreasing per capita income, increasing infant mortality,
decreasing life expectancy and chronic insurgencies--will have twice as many mouths
demanding to be fed in 25-35 years. In Kenya, this figure is only 17 years.
Some nations have avoided the later symptoms of overpopulation because their
land is so inherently rich that species, soils and water supplies have not yet been
exhausted. Others have avoided excessive environmental degradation and natural
resource depletion by externalizing their environmental impacts; they disperse their
wastes to areas down-stream or down-wind and import food and raw materials. In these
nations, living standards and per capita consumption of natural resources are high and
even increasing, making per capita environmental effects much higher than in
impoverished countries; The United States, for example, has 320 times as many cars per
capita as India (Ehrlich and Ehrlich, 1988), and thus consumes far more fossil fuel, steel,
aluminum, coal, land, water and air. . .. .. . ..
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D THE PROXIMATE CAUSES
These ultimate causes of anthropogenically-driven biodiversity loss are manifested
in numerous proximate causes, which have been summarized here under six headings:
1. Direct population reduction (intentional and Incidental taking)
- Throughout most of its existence.as, a species, Homo sapiens has subsisted by
foraging for roots, fruits, insects and the occasional bonanza of a dead or dying mammal.
Technologies were too primitive to allow early humans to prey on healthy individuals of
the huge Pleistocene African mammalian species. Over time, an increasing
sophistication at tool-making, an ability to control fire, and an improved ability to
communicate have shifted the balance in 1-lomo sapiens ’ favor.
Before the 1600s, blue bucks could be killed only by people within the range of a
cast spear. After the Dutch and their firearms arrived in South Africa, these antelope
could be killed from much greater distances; the last blue buck was shot about 1799.
Two centuries ago, it took a team of Pacific Northwest Native Americans days to fell a
giant western red cedar, the only tree they could split for planking to make their houses.
Moving trees away from the rivers was beyond imagining. Today one lumberjack armed
with a chainsaw can down a forest giant in minutes, and powerful machines can move
and mill any tree species and ship the logs or lumber across the ocean to Japan. Our
ancestors could fish only in shallow waters, and could take few fish at once. Today,
powerful, fossil-fueled, air-conditioned ships electronically locate schools and harvest fish
in nets vastly larger than the mouths of the predators with which the fishes evolved.
There is great diversity in what humans seek from nature, how it is acquired, and
the degree to which humans restrain themselves from overexploitation. Some direct
exploitation of living things, such as the sport hunting of bighorn sheep in the western
United States, is carefully controlled and monitored. (However, see Irby et al., 1989 for
a contrary view). With notable exceptions, most industrialized countries have gained
considerable control over direct exploitation of native species. In many other nations,
however, uncontrolled taking of species is still common; populations of African elephants
are sharply decreasing throughout most of East Africa due to human desire for ivory.
Populations of black rhinoceros have been so decimated that poachers must be deterred
by round-the-clock armed guards. For many species, laws are non-existent or simply not
enforced.
Non-target organisms are similarly threatened. Trappers cannot ensure their traps
will snarc only the intended species; a sizeable share of the organisms killed are not the
furbearers that trappers seek, but other species such as skunks and golden eagles. Now
that poaching of mountain gorillas in Rwanda has ended, the greatest immediate threat
to these endangered apes is incidental take in antelope snares set by poachers.
Perhaps more widespread is incidental take in marine ecosystems. As much as
80-99% of a shrimp-trawlers catch can be nontarget species of fishes, starfish, crabs,
stomatopod crustaceans and jellyfish, many of which die before being thrown overboard.
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Shrimp trawling is a major threat to sea turtles, such as the endangered Kemp’s ridley
inhabiting the coastal waters of the southeast United States (Ross et al., 1989), and a
threat of uncertain magnitude to totoaba ( Cynoscion macdonaldi) , a large, endangered
endemic fish in Mexico’s Sea of Cortez (Ono et al., 1983).
Driftnets up to 30 miles long, set in the North Pacific by Japanese, South Korean
and Taiwanese salmon and squid fishermen, annually drown hundreds of thousands of
seabirds, especially short-tailed shearwaters and tufted puffins, in addition to thousands
of Dali porpoises and lesser numbers of other marine mammals (O’Hara et al., 1986).
In the view of JehI (1988), the numbers’of seabirds killed are indeed high and locally
significant, but the impact of drift nets on their populations is uncertain; better answers
could be obtained through population modeling.
Purse-seiners locate yeliowfin and skipjack tunas by spotting dolphins associated
with the tuna schools. They surround the schools and unintentionally drown dolphins in
their nets. In 1972, more than 423,000 small whales of 13 species were killed, mainly
spotted, common, striped and spinner dolphins. The passage of the Marine Mammal
Protection Act and subsequent laws have sharply curbed the killing, but it is still on the
order of 20,000 for the U.S. tuna fleet alone (Jehi, 1988).1
In the Philippines, fishing methods reach unprecedented levels of destructiveness
to non-target species. Fishing boats pulverize coral reefs with heavy weights to drive out
reef fishes or collect these fishes by poisoning entire reefs with cyanide.
In recent years, the attention of conservationists has focused on other causes of
declining biological diversity. In some cases, direct taking is a humane issue or an issue
of sound resource management rather than a question of diminishing biological diversity.
For a significant number of taxa around the world, however, intentional and incidental
taking probably rank with physical habitat destruction, pollution, climatic change and
alien species as major threats.
2. Physkal alteration
When Europeans first settled in North America, the first species they jeopardized
were those they killed for food, fiber or skins, and those they considered competitors.
Since then, the most jeopardized species have become those whose habitats humans
appropriate. Worldwide, in places as diverse as the tundra of Alaska’s North Slope and
the rainfQrests of Borneo, the greatest damage to biological diversity is caused by
physical alteration of ecosystems.
Human beings physically alter ecosystems in several related ways. The most
complete kind of alteration is conversion, the complete alteration of ecosystem structure,
composition and functioning. Ecosystem conversion includes the changing of virgin
a
Further decrease of incidental dolphin kill is expected following recent decisions by
the three largest U.S. tuna companies to produce udolphin safeN tuna.
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prairie into cornfields, of deciduous forest into coniferous tree plantations, and of
freshwater marsh into shopping malls.
The extent of conversion differs markedly from one ecosystem to the next.
Between 25 and 40% of the humid tropical forest biome is gone (Erwin, 1988).
Approximately 56% of former United States wetlands is gone (CEO, 1989). Some 87%
of the ancient forests in the Pacific Northwest is gone (Norse, 1990). Essentially no
functioning North American taligrass prairie remains; only a few scattered remnants exist
(Nature Conservancy, personal communication with Barbara Shapiro). Weedy species
have coped with these changes by moving to other ecosystems or adapting to the
markedly changed conditions in situ, but the specialists requiring specific habitats have
been reduced roughly in proportion to the percentage of habitat lost.
As serious as outright conversion are two kinds of partial alteration. One is
ecosystem fragmentation, in which barriers to organism dispersal separate more or less
intact pieces of ecosystems. The interruption of a river with a dam to create a lake, the
clearcut logging of parts of an ancient forest (even if replaced by a tree plantation); or
the building of a road through a salt marsh would all create barriers of this sort.
Fragmentation has been a topic of intense scrutiny since Terborgh (1974) and
Diamond (1975) began applying island biogeography theory to fragmented remnants of.
once-continuous ecosystems. Destruction reduces the area of the ecosystem, but the
remaining fragments further suffer from decreased populations and from the penetration
of external physical and biological influences. Wilcove et al. (1986) provide a
particularly illuminating example. Birds in isolated temperate forest fragments are
subject to a much higher rate of nest predation and brood parasitism from edge species
even hundreds of meters into the fragment. As a result, small fragments support fewer
species of birds than would the same land area within unbroken forest.
The second type of partial alteration is the deletion of some ecosystem component
or components, termed ecosystem simplification. Examples of this include the removal -
of standing dead trees in an ancient forest, elimination of a stream’s sensitive submerged
plants due to increased siltation from livestock grazing, and eagle abandonment of
nesting trees due to human intrusion.
Many human activities that fragment ecosystems also simplify them; the previously
discussed “edge effectu contributes to this. Intact forests are moister, less windy, and
cooler in hot weather than clearcuts. In the Southeast, Sea.stedt and Crossley (1981)
found that summer temperatures at the soil surface averaged 26°C (79°F) wfthin forests
but average 42°C (108°F) in adjacent clearcuts. When forests are fragmented, the
harsher external conditions penetrate the fragments, allowing hot, dry air to desiccate
forest plants, fungi, slugs and salamanders that require moist conditions.
Ecosystems with more three-dimensional structure sustain more species
(MacArthur and MacArthur, 1961). A flat expanse of rock will support. only species able
to withstand exposure to heat, cold, rain and wind, and able to deter enemies without the
issistance of shelter. The addition of boulders or trees creates diverse microclimates and
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refuges from stress and predators. Structural diversity provides opportunities for species
that need vertical surfaces, horizontal surfaces, tangles, cavities, mating sites and
observation posts. For example, a forest having a canopy but no shrub layer cannot
support a hypothetical bird that forages in the canopy but nests in shrubs. Complex.
habitats accommodate more species because they create more ways for species to
survive.
Similarly, species diversity begets.more diversity. In English tree plantations, Peck
(1989) showed that increased tree diversity provides increased feeding opportunities for
songbirds; monocultures have the lowest diversity. Predators, too, can affect species
diversity, as Paine showed in a classic study in Puget Sound. He found that removal of a
top predator, the ocher starfish, decreases species diversity in the intertidal zone because
it allows mussels ( Mytilus sp.), the dominant competitors and preferred prey of the
starfish, to monopolize the substrate (Paine, 1966). In these and many other cases,
simplification, including reduction of species diversity, leads to a further simplification.
The differences between fragmentation or simplification and destruction are a
matter of degree. All ecosystems have some degree of natural disturbance and occur as
mosaics of different succ ssiona1 stages. Most communities would persist for eons if the
nature, amount and timing of disturbances did not change dramatically. Anthropogenic
changes, however, are quick, drastic and capable of overwhelming the abilities of species
and ecosystems to recover.
3. Chemical pollution and solid wastes -
If one were to take a bottle of sterile nutrient broth and seed it from a pure
culture of protozoans such as Tetrahyniena , the population would begin to grow rapidly.
Some time later, growth would level off and finally reverse into decline, perhaps to a low
level or perhaps to extinction. The Tetrahvmena would unwittingly have exhausted their
food supply and poisoned themselves with their own toxic waste products.
Of course, this artificially simplified system lacks renewable resources and
supplementary species to convert waste products into harmless or useful substances. In
nature, Tetrahymena are normally part of a self-regulating system. If they overexploit
their resources, their population will decrease allowing their prey to recover. Increasing
wastes become a resource for other species capable of metabolizing them and thereby
rendering them safe for Tetrahymena . In short, Tetrahymena have survived because they
live in a system of indefinitely renewable food supplies and indefinitely recyclable waste
products. -
The Tetrahvmena example holds true for any population of organisms, including
Homo sapiens . In the past, human waste products were resources for animals, plants
and microorganisms, which converted them into usable resources, but the wastes of
modern society tend to be regarded as pollutants to be removed or dispersed. The
volume of wastes generated by a still growing and increasingly “disposable” society have
reached overwhelming proportions in many industrialized nations, and the problem of
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safe waste disposal remains in many developing nations. Many synthetically produced
products, chemicals and wastes are exceedingly durable and unfamiliar to organisms
which traditionally break down waste, rendering them non-biodegradable; many are also
toxic to living organisms. Not only are biologically important elements being wasted by
failure to recycle them, but the production of substances toxic to life is further
diminishing the already finite ability of living systems to break them down.
Pollution seldom destroys.entire ecosystems. However, the stress of pollution can
simplify the community structure within an ecosystem, thereby impairing the normal
functioning of that ecosystem. Ecologists commonly assess the severity of pollution stress
on community structure by measuring either reductions in overall species diversity
(species-level biodiversity) or changes in the abundance of indicator species. The
indicator species fall into two categories: “decreaserf (those sensitive to the pollution
stress) and “increasers” (those that can tolerate the stressful conditions and expand into
niches vacated by the decreasers). It is possible to generalize about observed and
predicted effects of pollution on biodiversity. This discussion considers acid deposition,
gaseous phytotoxicants (gases toxic to plants, specifically ozone), excessive nutrients
(from fertilizer or wastewater), pesticides, plastics in marine environments,
bioaccumulation of toxics, and National Wildlife Refuge contamination.
a) Acid deposition.
The biotic community structure in unbuffered lakes and streams has been heavily
impacted by acid deposition. In buffered lakes and streams, low ecological effects are
likely. For unbuffered wetlands, effects could be intermediate in severity. Effects on
coniferous and deciduous forest ecosystems are controversial, perhaps ranking as high as
those in unbuffered aquatic ecosystems though forest dieback has not yet been Linked
conclusively to acid deposition (EPA, 1987; NAPAP, 1988).
The effects of air pollutants do, however, ramify throughout susceptible forest
ecosystems. Amphibians that breed in northeastern meitwater pools, such as blue-
spotted salamanders and wood frogs, are especially vulnerable to the direct effects of
acidification. Populations of other species, such as common loons and black ducks, are
believed to suffer from diminished food supplies in acidified lakes. Reduction in
population of still other species, such as the northern parula warbiers, has been
correlated with the disappearance of tree-dwelling lichens that are extremely sensitive to
air pollutants (Schreiber and Newman, 1988).
b) Gaseous phyiotoxicants (e.g. ozone). -
Gases toxic to plants, such as ozone, are believed to have severe effects on
coniferous and deciduous forests, little effect on desert and grasslands, and unknown but
potentially severe effects on alpine/tundra ecosystems. In coniferous forests; the adverse
effects of ozone on the ecosystem and its biotic components have been well documented.
Pines grow more slowly under ozone stress and are also more susceptible to pest or
pathogen attacks such as bark beetle. Dieback of coniferous forests is the result of these
combined effects. Fungi and algae, in the form of lichens, are especially sensitive to air
pollution and their decline can serve as an early warning that a forest ecosystem is under
stress (EPA, 1987).
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c) Excessive nutrients.
Nutrients are considered a major hazard to unbuffered lakes, a lesser threat to
buffered lakes and unbuffered streams, and still less of a threat to buffered streams.
Nutrients have the potential to cause major problems in estuaries and moderate
problems in coastal waters (EPA, 1987).
In freshwater ecosystems, lakes, rivers, and streams, degradation most commonly
takes the form of nutrient overloading. Run-off from farmlands and discharges from
wastewater treatment facilities (or other point sources) can inject nitrogen and
phosphorus into waterways, stimulating excessive and sometimes noxious growth of algae.
When the algae die, after exhausting the nutrient supply or from simple overshading,
their products of decay remove oxygen from the water and cause suffocation of fish and
‘9ther aquatic animals. The technical term for such unwelcome enrichment is
“eutrophication” Fish, insects, and submerged aquatic vegetation (and other primary
producers) may be threatened by accelerated eutrophication in freshwater ecosystems.
Estuaries are especially vulnerable to eutrophication. At the interface between
- freshwater and marine systems estuaries trap nutrients that contribute to their high
productivity but can cause eutrophication. Receiving the outflow of entire watersheds
and nearby cities, the estuaries may be victims of toxic loading as well. In areas where
human waste and other organic material are dumped directly into waterways, the threat
to human health is obvious but there is also the danger that aquatic organisms will be
killed by the oxygen demand of the waste .(as is the case with the algal die-offs
mentioned above). Fish, shellfish, and many other groups in the estuarine community
may be seriously reduced by nutrients and related pollutants. Seagrass and coral reef
communities are very seriously threatened by excessive nutrient and organic loading. It
is also possible that a connection exists between nutrient discharges and blooms of
noxious red or brown algae. These “red tides” seem to be increasing in many coastal
areas and could also be benefitting from global warming (Brower, 1989).
The oligotrophic (nutrient-poor) characteristic of coral reefs is easily upset by
enrichment from sewage or runoff from fertilized agriculture. Discharge of sewage into
Kaneohe Bay, Hawaii has dramatically changed the rocky benthos from a coral reef
ecosystem to one dominated by green filamentous algae (Steven Smith, University of
Hawaii, personal communication). The addition of limiting nutrients favors both
phytoplankton blooms, which lower benthic light levels, and fast-growing soft algae,
which smother and shade out corals.
d) Pesticides.
Pesticides or herbicides applied in freshwater or estuarine ecosystems could have
high ecological impacts but effects in wetlands are uncertain. Also uncertain are the
effects of biocides (substances destructive to many organisms) applied in terrestrial
ecosystems on those ecosystems or nearby aquatic ecosystems. Pesticides can, however,
have major impacts on biological diversity in agroecosystems, reducing the abundance of
many beneficial insects and other non-target organisms (EPA, 1987). .The repeated
application of pesticides selects out unresistant strains of pests.
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Pesticides can vaiy widely in toxicity, specificity, persistence and bloaccumulation.
Pesticides which lack specificity can have harmful effects on a wide range of target and
non-target organisms, and can decimate populations of a pest su natural predators.
Though the use of some pesticides which are highly toxic to wildlife has been banned in
the U.S. (e.g. DDT), legal pesticides (e.g. diazinon, chlorpyrifos) continue to harm
wildlife through correct and incorrect usage (National Pesticide Telephone Network,
personal communication; Daniels, 1989), and dangerous pesticides which have been
banned in the U.S. are still produced in the U.S. for export. Wildlife can be endangered
through lawn care use of pesticides as well as agricultural use; homeowners are more
likely to overuse chemicals, using 10 times more per acre than is used on agricultural
land. Songbirds may be particularly at risk. (Levy, 1989).
e) Plastics in marine environments.
The United States produces some 50 billion pounds of plastics per year. Much of
what does not wind up in landfills is dumped or washed into the sea, in the form of lost
crab pots, torn gill nets, discarded strapping, garbage bags, bottles, tampon applicators
and six-pack rings. These strong, durable materials entangle or are ingested by marine
mammals, birds, turtles, fish and others, killing, for example, some 30,000 northern fur
seals per year (O’Hara et al., 1988). They pose a very serious threat to offshore and
nearshore marine mammals and birds, and nearshore reptiles (turtles). Although U.S.
law now prohibits ships from dumping plastic trash, and the plastics industry is making
significant moves toward limiting marine plastics pollution, this remains a serious
problem in marine environments due to land-based litter, and difficulty enforcing the
dumping ban.
f) Bioaccumulation of toxics in mammals.
While the effects of acutely toxic chemicals are often obvious, many substances do
not cause immediate lethal effects but can reach toxic levels in organisms (or adversely
affect their reproduction) through long-term accumulation. Organisms feeding at or near
the top of the food chain, such as large mammals and predatory birds, are often at
greatest risk. Beluga whales living in the Canada’s St. Lawrence River have developed
immune system suppression, bladder cancer, hepatitis, bronchial pneumonia and
perforated ulcers related to the more than 30 hazardous contaminants found in their
bodies (Shabecoff , 1988). Included are levels of polychiorinated biphenyls (PCBs) high
enough to classify the whales carcasses as toxic waste under Canadian law. PCB
contamination has been implicated in the unprecedented die-off of at least 740 dolphins
along the Atlantic coast in 1987/1988 (McKay, 1989).
g) National Wildlife Refuge Contamination.
A 1985 survey by the Fish and Wildlife Service (FWS) identified 85 of the
nation’s 430 National Wildlife Refuges as potentially contaminated by agricultural
drainwater or by municipal, industrial or military activities. Investigation of the Refuge
System, the only federal lands managed primarily for wildlife, was sparked by the
discovery of chemical contamination in the Kesterson Refuge, which caused the death of
approximately 1,000 ducks between 1983 and 1985. A 1987 GAO report indicated that
FWS had not adequately investigated the issue, and that contamination may be even
more widespread than FWS reported. (GAO, 1987).
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4. Global atmospheric change (climate, UV-B and C0 2 )
Most threats to biological diversity affect some areas intensely, but not others.
The alteration of the composition of the atmosphere by the addition of trace gases,
however, threatens the entire biosphere, although the intensity of effects will vary from
place to place.
The three problems stemming from global atmospheric change—global climate
change, increased ultraviolet-B radiation, and direct effects from increased carbon
dioxide—share overlapping causes, have interacting effects and pose painful choices to
decision-makers because they all involve significant uncertainties. A decade ago, the
magnitude of the threat they posed concerned only a few scientists. It has since become
clear that global atmospheric change ranks among the greatest threats to humankind,
and that atmospheric changes themselves threaten biological diversity to a degree
roughly comparable to physical habitat destruction.
To gain some idea of how these three trace-gas-induced kinds of atmospheric
change are likely to affect biological diversity, it. is useful to compare them in. tabular
form (Table 1).
Global climatic change will not be a simple warming of the planet. Even if it
were, there would be major changes in the position and extent of the Earth’s vegetation.
zones (Emanuel et al., 1985); for example, tundra would virtually disappear and the
boreal coniferous forest (taiga) would shrink dramatically. Current predictions, however,
indicate the warming will most likely not be simple and uniform. First, global circulation
models have long predicted that warming will be greater over mid-continents than over
windward coastal areas and at sea, and will be greater toward the poles than at lower
latitudes. A more recent study (Stouffer et al., 1989) has produced the startling
projection that warming in 2030 will be far greater in the Northern Hemisphere than in
the Southern Hemisphere, and that some Southern Hemisphere areas could experience
significant cooling.
Second, the actual patterns of warming will affect many other climatic
phenomena. The world’s climatic patterns, including rainfall, winds, hurricanes,
tornadoes and thunderstorms with accompanying lightning (the cause of virtually all
natural fires), are largely attributable to seasonal movements of airmasses in response to
the movements of high and low pressure areas. The high and low pressure areas, in
turn, are affected by the heat distribution on the Earth’s surface. Much of the world’s
climate depends on relatively stable patterns of oceanic circulation. It is likely that these
will not change gradually, but suddenly, as a reorganization of the planetary system of
heat distribution (Broecker, 1989). As the distribution of ecosystems depends largely on
the positions of airma.sses (Neilson, 1987), any change in airmasses would have enormous
impact on biological diversity. The ecological and social consequences of large, sudden
changes would far exceed any resulting from predicted gradual warming.
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Third, warming will have major consequences for the hydrological cycle.
Unquestionably, warming will cause earlier snowmelt and a smaller proportion of
precipitation falling as snow, which (unless there is higher rainfall) will mean lower
streainflow in summer and fall, when human and biological demand for water is highest
(Norse, 1990). Warming will increase evapotranspiration by plants, causing ecosystems
to become drier unless there are large offsetting increases in rainfall. Warming will
cause higher cloud cover over much of the planet and higher rainfall in some areas.
However, general circulation models tend to predict that much of the increased rain is
likely to fall over the sea, and some models predict that midcontinental areas will get
less precipitation. So, some land areas will become wetter and some will become drier.
The effects of increased dryness on the propagation of wildfires, a major determinant of
many natural community patterns, and on outbreaks of disease organisms, merits special
attention.
The threat of increased UV-B radiation caused by stratospheric ozone depletion is
less certain. Although the course of increase in UV-B is much easier to predict than the
course of climatic changes, the effects of such changes are much less certain. Studies of
the effects of climate on the biota date back more than a century, while studies of UV-B
are mostly very recent and incomplete. It is known that UV-B affects DNA synthesis,
damages immune systems, increases skin cancers and causes cataracts in mammals. It is
further known that UV-B disrupts marine planktonic communities (Worrest and Grant,.
1989) and affects some tree seedlings (Sullivan and Teramura, 1988). The magnitude of
these effects on populations, species and ecosystems is still hard to predict.
Unlike some other trace gases involved in global change, carbon dioxide has
direct physiological effects on plants. At first glance, these effects appear beneficial.
CO 2 is essential for photosynthesis and may limit plant growth; increasing its
concentration increases growth rates in many plants, an effect called “CO 2 fertilization.”
CO 2 also benefits plants’ water relations. Plants take in CO 2 through open stomata,
which also allows water loss (transpiration). At higher CO 2 concentrations plants can
keep more stomata closed, and therefore lose less water. Thus, increasing atmospheric
CO 2 diminishes drought stress.
Plants using the two different major pathways of carbon fixation differ in their
response to increased CO 2 levels. “C 3 ” plants benefit more from enhanced CO 2
conditions than “C 4 ” plants (which constitute a small fraction of temperate species but a
large fraction of tropical and desert species). Further, as Fajer (1989) notes, the
magnitude of CO 2 growth enhancement in C 3 plants is species-specific. Thus, increasing
CO 2 will alter competitive interactions between plant species. It is possible that many C 4
plants will become rarer or extinct and that there will be large changes in abundances of
C 3 plants in the next century, which could have important consequences for food webs,
community structure and ecosystem processes such as nitrogen fixation and soil
formation. Species that we consider “weeds” could dramatically increase in abundance,
stimulating increased efforts at control.
Additional complications could further affect biological diversity. CO 2 enrichment -
decreases the nitrogen content of plant tissues, prompting herbivorous insects to respond
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in several ways. Lincoln et al. (1984) found that tested larvae increased their feeding
rates, indicating that “...the increased levels of plant productivity at higher CO 2
concentrations may be offset by higher herbivory and could even be reduced below
current levels.” Lincoln’s more recent research on four other herbivorous insects and
their hosts has consistently found increased feeding rates. But Fajer et al. (1989) found
increased mortality in early larval instars of one species feeding on foliage grown under
enhanced CO 2 conditions (and thus having decreased nitrogen content). This indicates
that herbivorous insects could become less abundant, with effects including reduced
abundances of insect-feeders.
S. Alien species
How does the addition of alien species affect biological diversity? Each case is
different, but some generalizations can be made. It is clear that organisms evolve not
only in response to their physical environment and to members of their own species, but
in response to other species as well. This coevolution between hosts and parasites,
predators and prey, and between mutualists means that the biological fabric of a
community is distinctly interwoven; it is not just a random collection of threads. Species
interact in myriad ways that we are only beginning to discover.
- Alternatively, it is clear that communities generally have some “slack”; ecosystems
are not so tightly organized that they cannot accommodate some compositional changes.
Paleoecology shows that current assemblages of species did not exist in the recent
geological past; some species that coexisted in the late Pleistocene are now allopatric
(their ranges do not overlap) (Graham, 1986).
• When a species is introduced into a new area, the alien species generally
disappears. Sometimes, however, the alien species survives and proliferates in its new
niche. This is particularly common in areas with “naive biotas” such as islands (e.g.,
Hawaii) (Vitousek, 1986) or areas that are now “undersaturated” as a result of previous
climatic changes (e.g., southern Florida) (Courtenay, 1978). Not having evolved in these
ecosystems, and thus being much less vulnerable to indigenous predators, parasites and
competitors that have evolved no ways of dealing with them, alien species are sometimes
able to proliferate to the point that they disrupt existing communities.
Rabbits ( Oryctolagus cuniculus ) introduced from Europe overwhelmed Australia;
Australian Melaleuca thickets are overrunning Florida; white-tailed deer from the United
States are wreaking havoc in New Zealand, and so on. Every organismic biologist can
provide many examples of how introduced species have adversely affected- native biotas,
profoundly changing ecosystem dynamics and causing extinctions.
The problem is not limited to the land. As with many freshwater fish
communities, those of the Great Lakes have been irrevocably changed by the
introduction of alien species, in this case, predatory sea lampreys and planktivorous
alewives ( Alosa pseudoharengiis) . Although alien species in marine ecosystems have
attracted much less attention, there is now excellent research showing their importance
in undersaturated ecosystems such as Coos Bay, Oregon (for example see Carlton,, 1989).
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Introduction of aliens can be even more difficult to reverse than physical
alteration or chemical pollution. At least in some cases, lands and waters can be
restored to something resembling their original physicochemical conditions if dams are
removed or pesticides are allowed to degrade. Alien species, however, can reproduce
themselves; rats, cats and goats have thus far proved impossible to control, although
there are prospects that introduced parasites could help (Dobson, 1988).
Compared with progress against chemical pollution, there has been little progress
in dealing with the “biological pollution” of alien species. While it is too late to bring
back many species such as the Mariana fruit-dove, an endemic of Guam that was
swallowed up by the introduced brown tree snake, it is possible to set priorities for
controlling alien species (Wesiman, 1990) to slow the damage to native organisms.
6. Interactions
In 1894, a lighthouse keeper named Travers and his cat Tibbles moved onto
Stephen Island, between New Zealand’s North and South Islands (Fuller, 1987). Tibbles
killed a small, brown, nearly flightless bird that had never been described by scientists,
-- then another and another until the total was 16. Then there were no more. One cat
had driven the Stephen Island wren ( Xenicus lyalli ) to extinction (Day, 1981). Seldom
does the cause of extinction or ecosystem destruction appear so clear-cut. It is much
more common for living things to be caught between two or more forces, none of which
individually would be so destructive.
There is no lack of examples, but the situation in Hawaii is a classic. These
islands, the most isolated in the world, were “a land of Eden” (Scott and Sincock, 1985).
Polynesians, the first human colonists, arrived about 1500 years ago bringing rats, pigs,
dogs, a love for bright colors manifested in the royal capes they fashioned from native
songbird feathers, and agriculture, for which they cleared and burned the forests below
3300 feet. The naive island biota was devastated, with extinctions of at least 45 species
of endemic birds, including a petrel, 2 ibises, 7 geese, a hawk, an eagle, 7 rails, 3 owls, 2
crows, a honeyeater and at least 15 honeycreepers.
The arrival of Europeans starting in the 1700s introduced new farming techniques
and even more rapacious species of rats, as well as cats, mongooses, deer, sheep, cattle,
snakes, 160 species of birds (of which about 50 have become established). For the native
Hawaiian birds, perhaps most important of all was the introduction of bird malaria and
its mosquito vectors. Together, this combination of predators, diseases, competitors and
habitat destroyers shattered the Hawaiian flora and fauna, eliminating (again using the
birds as an example) 2 more rails, 3 thrushes, 4 more honeyeaters and 9 more
honeycreepers since the arrival of Europeans. The extinctions continue; 24 of the
remaining 37 land bird species are endangered (Jehi, 1988).
This situation is not confined to islands. Continental biotas have long been
subjected to similar combinations. They are inherently less vulnerable than long-
isolated island biotas and have held out better, but pressures are steadily mounting.
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Perhaps the greatest threat to biological diversity is the impending interaction
between the stresses of climate change and habitat fragmentation. Alone, each is a
major threat affecting a large percentage of species and ecosystems. Together, habitat
fragmentation will reduce the ability of species to migrate in response to climate change.
Man-made barriers to migration include roads, cities, agricultural land and static borders
demarcating wildlife refuges. As Wilcox (1980) notes:
The Pleistocene .Epoch was mariced by global temperature oscillations
during which fairly extensive latitudinal (and attitudinal) shifts in climatic
zones occurred. Normally, as climatic zones shift, so do the associated
biotas. Insular regions, however, typically do not span a sufficient latitude
to provide refugia for species ill-adapted to a novel climatic regime—and
extinction results.
Peters and Darling (1985) took the threat of changing climate on biological
diversity much farther, pointing out that even without human-imposed barriers to
dispersal, bands of warmer climate moving poleward will advance at rates greatly
exceeding the dispersal capabilities of many important species (e.g., trees). As a result,
all but the fastest dispersers (many of which we call weeds and pests) will lose far more
of their ranges. at the equator-ward ends than they will gain at the pole-ward ends. Many
species with small latitudinal ranges stand to lose their entire range.
Some species will find refuge at higher, cooler elevations, but here too there is
risk of being trapped between forces (Norse, 1990). Area generally decreases with
elevation, thus highlands will accommodate fewer species than lowlands currently do.
Further consider the consequence of stratospheric ozone depletion; higher elevations
already have higher UV-B levels, but depletion of the ozone layer will increase UV-B
beyond what previous refugees in the mountains experienced.
Rather than being the exception, interacting environmental stressors as threats to
biological diversity are the rule. Norman Myers (1987) summarized the importance of
such interactions by noting:
a one by one analysis of the discrete processes will surely underestimate
the scope and scale of the eventual extinction.
So the synergistic connection could well prove to be a major, if not
the predominant, phenomenon at work during the extinction spasm
impending.
Global amphibian populations may already be the victims of such unexplored
interactions between stressors. Though not yet well documented, enough reports of
unexplained amphibian population declines and local extinctions have circulated over the
last several years that the National Research Council has decided to sponsor a panel of
inquiry (Roy McDiarmid, personal communication).
*
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E THE MAGNITUDE OF THE THREAT
1. Overview
The knowledge base is currently insufficient to assess the risks to biological
diversity with quantitative rigor. Current estimates of the number of extant species on
the earth vaiy by a factor of 10, a universally recognized system of classifying ecosystems
has yet to.be developed, and scientists lack knowledge of the amount of genetic diversity
within the species of any region. Furthermore, scientists must investigate the factors that
determine rates of key ecological processes such as soil formation, nitrogen fixation, and
net primaiy production, and better understand threats to biodiversity, before any
quantitatively accurate assessment can be made.
Nonetheless, it is possible to make very general observations. Table 2 plots major
stressors versus major taxa, functional groups and ecosystems. This two-dimensional
matrix could be useful in guiding actions within a limited geographic area and a limited
timeperiod. This matrix could be improved at some future time by 1) accounting for
geographic differences; 2) showing how stressors are changing over time; and 3)
incorporating effects of interactive stressors on biota. For example, acid precipitation
depresses nitrogen fixation, and the extent to which carbon dioxide directly affects plant
growth depends on the availability of limiting substances, particularly soil nitrogen.
Similarly, it matters little whether UV-B radiation affects great whales directly if it
severely disrupts the composition and productivity of the zooplankton on which they
depend.
Table 2 represents the best estimate of the author, Elliott Norse, with
consideration given to the opinion of avian ecologist David Blockstein. In general, there
was high concordance between the two views. To verify and build upon these data, a
select group of ecologists could be surveyed at some future date.
Recognizing the limitations in scope and sources, Table 2 represents a prototype,
containing the obvious threats to diversity within major taxonomic or functional groups
and communities, within the next 50 years, in the contiguous United States. Specifically,
Table 2 answers ‘To what degree will diversity be decreased by each of these stressors?
It is recognizing that, while diversity might decline, virtually all stressors benefit some
species, communities and processes at the expense of others until the transcendence of
some threshold beyond which even the hardiest organisms are harmed.
It is also important to know what measures are the best indicators of biological
diversity and ecosystem integrity. Working on experimentally acidified lakes in Canada,
Schindler and coauthors (1985) have shown that an ecosystem’s species composition and
measures of population health are valuable indicators of stress because the functional
redundancy in ecosystems ensure that some raw ecosystem measures—such as primary
production--can continue unaffected even in severely stressed ecosystems with
dramatically changed species composition of primary producers and other organisms.
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Certain shortcomings must be considered. This matrix is weighted heavily towards
groups for which data are available or at least reasonable inferences are possible. For
example, there are categories for several different nesting guilds of birds; birds are the
best-studied organisms, and clear patterns have emerged about their vulnerability to
some stressors. On the other hand, there are no categories for different groups of
insects; undoubtedly flying insects and soil insects will differ in their response to many
stressors. Bacteria were not included due to lack of information, despite the high
importance of bacteria in any ecosystem (see Pimentel et al., 1980). The subdivision of
biota is admittedly subjective and may stand improvement. Additionally, separate
matrices for Alaska, Hawaii, American territories and other nations may prove similarly
useful.
In the matrix, “excessive taking” refers to deliberate killing and removal of
targeted organisms via hunting, trapping, animal damage control, fishing, and collecting,
but not logging. “Incidental taking” refers to the unintended killing of non-target
organisms because of the above activities. Thus, a Kemp’s ridley sea turtle drowned in a•
shrimp trawl is a victim of incidental taking. “Physical alteration” is the most inclusive
category, in that it includes simplification, fragmentation and destruction of ecosystems
for timber, agriculture, minerals, housing, commercial and industrial development. It
might be useful for this category to be broken down into several separate categories in
future efforts to refine this methodology.
“Pesticides” refers to substances administered specifically to kill living organisms.
“Industrial discharges” refers to discharge and dumping of any toxicants (including
pesticides) into streams, rivers, lakes and the sea. “Fertilizers/sewage” includes the
causes of eutrophication, mainly in aquatic systems. “Solid wastes” refers to nontoxic
garbage. “Conventional air pollutants” include emissions of sulfur and nitrogen oxides,
carbon monoxide, ozone and particulates. “CO 2 ’ refers to anthropogenic carbon dioxide
as a cause of direct physiological effects, not as a greenhouse gas. “Climatic change”
refers to the suite of human activities that cause increases in greenhouse gases. “Alien
species” refers to animals, plants and microorganisms introduced into natural ecosystems
(not agriculture or ranching). “Nuclear wastes” refers to deliberate disposal of nuclear
wastes. While this list of stressors is certainly not all inclusive, most major stressors are
represented. 2
Each interaction between taxonomic grouping and stressor is rated with one of
four symbols. An open cirële denotes a negligible or minor impact. A half-filled circle is
a sub tantial impact that merits study and quite possibly remedial action. A filled circle
is a very serious threat that deserves immediate priority for study and action. A question
2 Two exceptions should be noted. First, the unintentional killing of organisms due to
activities unrelated to intentional taking or the other listed categories is not considered, but
is significant in some cases (e.g. manatees hit by boats or turtles run over by cars). Updates
of this report should include such “accidental killing” under “incidental taking.” Second, it
is unclear whether accidental spills of hazardous substances (e.g. oil spills) are included in
the assessment of risk from “industrial discharges.” This should be clarified in any update.
38
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mark indicates that there is not enough information to make a reasonable judgment, or
that the available information leads to conflicting conclusions. A question mark in
addition to a symbol indicates the rating is less certain.
2. Status of the best-known taxon: Birds 3
Taxonomic groups of living organisms differ so greatly that none is truly
representative of all groups. Still, better data exists for some groups and can provide
limited indications for application to other taxa. Birds have been studied more
extensively than any other group, due in part to their colorful and conspicuous nature.
Virtually all bird species have now been scientifically described, and many thousands of
scientists and birdwatchers observe them in both developed and developing countries.
Despite their importance in ecosystem functioning, the same cannot be said of plants,
fungi, fishes or mites.
Data on bird populations in the United States are maintained by the Fish and
Wildlife Service (FWS). Certain species (such as waterfowl) have been systematically
monitored; songbird populations have been assessed since 1965 in the FWS-coordinated
breeding bird surveys; and wintering populations have been counted since 1900 in the
National Audubon Society Christmas bird census. Despite these efforts, there is no
central repository of population data, the quality of the data are highly variable, and the
taxonomic distribution of data collection is uneven. Documenting general trends is
extremely difficult and nothing better than educated guesses are available for many
groups of species (Jehi, 1986). JehI’s chapter in the Council on Environmental Quality’s
1986 Annual Report summarizes status and trends of the birdlife of the United States.
International data have been more generally summarized for rare birds by the
International Council for Bird Preservation.
The following summary presents information on major groups of birds, first in the
United States, and second, internationally. As Jehi noted, some 70% of the 1000-1350
bird species occurring in the United States spend at least part of their annual cycle
outside the United States (JehI, 1986). His paper is the basic reference for all data not
otherwise attributed.
a) Seabirds. The total seabird population in North America and adjacent oceans
approximates some 100 million birds of 106 breeding species. Tens of millions of
southern hemisphere breeders spend time north of the Equator. While population status
is unknown for at least 75% of these species, some trends are apparent. Scavenging
comniensals of humans (gulls and fulmars) are thriving. Terns are declining, due to
competition with gulls and with humans for nesting habitat. Some fish-eaters (pelicans
and cormorants) are showing recovery from pesticide-induced declines. In general,
North American seabirds appear to have been stable or increasing over the past few
decades. Greatest threats are to temperate and tropical nesters whose habitats are being
lost to disturbance by humans, including development on beaches where the birds nest.
This section was primarily written by avian ecologist David E. Blockstein.
39
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Other threats.include entanglement in drift nets and ingestion of plastic and other
debris. Entanglement rates are high, but may not reduce overall populations. Local
impacts are very significant, however, in areas with much driftnet fishing (such a s the
North Pacific) and in the North Atlantic, where entanglement occurs with conventional
nets. Ingestion of large amounts of plastic has been documented in many species of
seabirds. Present rates and amounts of ingested plastic are too small to have effects on
most species. Certain populations that have been well studied, such as albatrosses in
Hawaii, show chick mortality due to plastics.
b) Waterfowl. Data on waterfowl are as good as on any group. The FWS has
documented a continuing overall decline in duck populations in North America since
monitoring began in 1955. Populations are presently at their lowest level since that time.
Populations of mid-continental breeders, which include more than 50% of North
American waterfowl, are in critical declines. This is largely due to habitat destruction of
wetland breeding areas, such as marshes and potholes, to accommodate agriculture. The
recent drought has exacerbated this situation to the point where hunting has been
restricted. A 15-year multi-million dollar North American Waterfowl Management Plan
has been approved by Congress to purchase breeding and wintering habitat.
Populations of geese, which generally nest in the tundra, are mosfly stable. The
exception are geese who nest in western Alaska, where overhunting by sport and native
subsistence hunters is depleting populations. Loons have decreased throughout the
century, largely due to disturbance on their northern nesting grounds. Some range
expansion has occurred recently. However, acid rain and interactions with mercury
pollution may have significant effects that are just being investigated in these fish-eaters.
c) Colonial wading birds. The 16 U.S. species of wading birds are highly dependent on
wetlands. Recently, some good monitoring has been done by ornithologists from FWS
and other groups. By the 1970s, ranges had been recovered from feather trade
depletions of 1880-1900, which nearly eliminated many species (and led to the formation
of the National Audubon Society). Total numbers are still reduced. Overall most
populations have remained relatively stable, except wood storks, which are now
endangered, and cattle egrets, which are self-introduced from Africa and are increasing
exponentially. Local declines are most serious in California and southern Florida, where
there has been almost total collapse of a wading population that once numbered in the
hundreds of thousands (Ogden, 1987). Habitat loss due to wetland conversion is a key
stressor as are harmful water management practices. Pesticides and irrigation practices
have had significant local impacts.
Unless wetland conversion is reversed, significant declines are expected in this
group.
d) Raptors. Six of the 50 raptor species breeding in the United States are endangered.
Most populations have increased from historic lows caused by shooting,.human
disturbance and development, and DDT and other pesticides. Despite recovery, they
generally remain below historic levels. Bald eagles and peregrine falcons have recovered
40
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substantially due to heavy manipulative rescue efforts. Some species (e.g. harriers,
Swainson’s hawks, and red-shouldered hawks) are declining due to habitat loss.
Population data rarely exist for owls, but the northern spotted owl is an exception.
The habitat of the northern spotted owl has been systematically and rapidly reduced by
the unsustainable logging practices of the U.S. Forest Service to the point where it is
now proposed for listing as a federally threatened species. Logging plans for the
old-growth forests. of the Pacific Northwest mark the first time that a conscious decision
has been made to reduce a non-pest species to a critical population level (Dawson et al,
1987). The southern spotted owl may soon reach the same status.
Raptors are excellent indicators of environmental health due to their susceptibility
o disturbance and chemicals, and due to their low rate of recovery. Overall signs are
positive, but specific cases could be regarded as warnings.
e) Gamebirds. Few reliable data exist for the 28 species of non-migratory game birds.
Wild turkey and ruffed grouse have increased due to restoration programs.
Prairie-nesting grouse are generally in decline due to habitat conversion for agriculture.
Mourning doves are extremely abundant and well-monitored. They have
increased in the north central states and prairie provinces as a result of increased
agriculture (doves instead of ducks), but are declining in the West, perhaps due to a
.combination of land conversion (development) and overhunting. The overall population
is declining, according to FWS call count surveys.
f) Shorebirds. Some 49 species of shorebirds breed in North America. Extensive
hunting virtually eliminated populations of many species by 1927, when most hunting was
closed. Only the Eskimo curlew remains endangered. Data for 12 Atlantic coast
migrants show significant declines for 3 species and no detectable trends of the others,
but the data are of variable quality.
Populations of piping and snowy plovers, which nest on sandy beaches, are
severely declining; some populations of piping plovers have been listed as threatened.
Grassland nesters are ilso undergoing population decline.
Migratory shorebirds are extremely vulnerable because they concentrate on a
relatively small number of traditional stopover sites (some 50 in North America). These
are likely to be irreplaceable. Destruction of key sites due to development, oil spills -or
other environmental change could be disastrous to many shorebird species. The
National Audubon Society has organized a voluntary effort to establish a Western
Hemisphere Shorebird Reserve System.
Shorebirds are also vulnerable to habitat destruction, pesticide poisoning and
pollution of their wintering grounds on the beaches of the Americas. Only recently has a
major effort begun to color-band individuals in order to discover which.breeding
populations use which migration and wintering sites.
41
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Most shorebirds breed in the Arctic tundra. Thus, they and other tundra
groundnesters (geese and songbirds) are extremely vulnerable to global warming. If
projections that warming will be most severe at the polar regions are realized, shorebirds
will suffer critical declines because their nesting areas will be flooded.
g) Songbirds. Approximately 50% of the North American avian species are small
landbirds. Most nest in woodlands and a smaller percentage nest in fields and
grasslands. Population trends come from breeding bird surveys (BBS) since 1965 and a
few long-term or multi-site studies of forest-dwelling birds. Most of these birds are
migratory, many (especially forest-interior songbirds) wintering in the neotropics.
Grassland birds are generally declining. This is especially irue in the East where
farms and pastures revert to secondary forest. As much of the East was once forested,
these declines may represent a return towards pre-settlement conditions. Riparian
breeders are of special concern in the West, especially in California, due to habitat
destruction and loss of streamfiow to irrigation.
A major summary of population declines in migratory birds in eastern North
America has just been published (Askins et al., 1990). It summarizes data showing
severe and catastrophic declines in some species of forest birds in the United States
since monitoring began in the 1940’s and 1950’s. Most of these declines are of
neotropical migrants inhabiting forest interiors.
Long-term studies in small urban and suburban forest preserves show declines in
interior species, but not in more resident edge-dwelling species. These changes may be
due to local impacts related to forest fragmentation and the edge effect or to destruction
of wintering habitat.
Data are inconsistent in the few long-term studies of extensive (>1000 ha) forest
tracts. Declines in migrants, where they occurred, have not been as severe as in small
forests. Some changes may be related to habitat change as the forests mature.
Many neotropical migrants have lower densities in small forests than in large
forests and some species tend to be absent from small forests. Experimental and
observational evidence show that open-cup nesting species (most neotropical migrants)
have low reproduction in forest patches due to nest predation by edge-living species and
brood parasitism by brown-headed cowbirds (also an edge species).
In tropical wintering areas, many species of forest-dwelling migrants have much
higher densities in secondary and mature forests than in early successional stages. Most
migrants winter in the Caribbean basin, where deforestation trends foretell major
population declines.
Breeding Bird Survey data show that most neotropical migrants have declined
during the past 11 years following a period of stable or increasing populations during the
late 1960s and ‘lOs. Absolute declines and declines in rate of population increase are
almost restricted to species that are concentrated in forests during the winter, even those
42
-------
that nest in early successional habitats during the summer. This may constitute the first
unambiguous evidence of declines in populations of neotropical migrants due to the
destruction of winter habitats (data analysis by Russ Greenberg).
Thus, declines in populations of forest-dwelling songbirds are due to habitat
fragmentation on the breeding grounds and habitat destruction on the wintering grounds:
The old double whammy. These birds are in serious trouble unless present trends are
reversed.
There has been little quantitative study of forest birds in the West.
h) Island birds. An estimated 93% of all species and subspecies of birds that have
become extinct since 1600 were island natives (King, 1978).
Hawaii: The Hawaiian Islands boast the highest percentage of endemic flora and fauna
in the world. Before the Polynesians arrived, there were some 94 species of endemic
land birds. Half of these were subsequently exterminated due to destruction of lowland
forests, and predation and habitat destruction by dogs, rats and pigs. Thirteen additional
species have gone extinct since the arrival of Europeans in 1778. Today, only 37 species
of native land birds remain. Some 24 of these (65%) are endangered, all but 3 of which
are endemic; six species number fewer than 50 individuals.
The future for remaining native species of Hawaii appears bleak as the stresses to
biological diversity continue unabated. Deforestation for logging and development,
habitat disturbance by feral and alien mammals, introduction of alien birds and plants,
and spread of avian diseases (many of which are transmitted by introduced mosquitoes)
all continue. The problem of disease prevents many species from occupying otherwise
suitable lowland forests. Some species of seabirds and waterbirds are also at risk due to
habitat destruction and disturbance by introduced species.
Guam: Originally there were 18 species of birds on Guam, 12 of which were landbirds.
Since the inadvertent introduction of the Solomon Island brown tree snake in the 1940s
or ‘SOs, the spread of this bird- and lizard-eating snake has paralleled the decline of
forest-dwelling birds. As of 1987, 7 species or subspecies of landbirds were extinct and 4
more were on the verge of extinction, with populations numbering less than 100
individuals. Micronesian kingfishers and Guam rails have been removed and are thriving
in captive breeding programs. The rails will be reintroduced as an experiment on the
small nearby island of Rota.
The case of the extermination of an entire avifauna by a snake is unique. The
contribution of other factors such as deforestation have not been assessed. One of the
few remaining large tracts of forest is slated for destruction by the Navy in order to build
a satellite tracking station. This area would be a site for reintroduction if the snake can
be controlled. Plans are presently under review by the FWS. The brown tree snake and
other species have been discovered on other Pacific islands (including Hawaii) as a result
of inadvertent transport with cargo. Whether the history of Guam will be repeated
elsewhere may depend upon local conditions. -
43
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1) International. There are about 9000 species of birds in the world. According to the
International Council for Bird Preservation, 1029 species (11% of all species) are, to
varying degrees, at risk of global extinction. This only includes birds whose status is
known. Potentially threatened species might increase the number 3- or 4-fold. A truer
picture might be obtained by listing species that are safe. Such information, however, is
not available.
Basically, birds are threatened in every taxonomic group and in every geographic
area. Most critical are islands, but habitat islands caused by fragmentation of forest and
other continuous habitats are likely to also have high rates of extinction.
Some 1500-2000 species of birds depend on lowland tropical forests. The
destruction of these biologically diverse habitats will result in tremendous extinction of
birds as well as other species.
Habitat destruction is clearly the leading threat to bird species. A major, but
uncounted toll is probably taken by pesticides, which are still heavily used in much of the
developing world. Pollution of air and water may be an important factor in some areas.
Direct exploitation for food significantly affects some species, particularly large birds
such as guans and galliformes, and colonial nesting seabirds and waterbirds. Millions of
migrating songbirds and raptors are netted and shot as they cross the Mediterranean.
Competition from alien species is significant in some cases, particularly on islands.
Global warming would have its greatest impact on species that breed in Arctic and
coastal habitats. Shorebirds are especially vulnerable from both of these threats.
Despite the fact that birds can fly and are often envisioned as mobile enough to
escape unsuitable conditions, many species are running out of places to go to. The
future of the birds of the world looks no brighter than of other taxa.
IV Conclusion
The biological diversity crisis presents the human race with a painful dilemma. It
is clear to many people that something momentous is happening to the global
environment and that it cannot be let go too far lest indispensable resources and life
support systems be lost. It is equally clear that acting to remedy the situation will have
substantial costs, and that great uncertainty exists. Lack of information and short-term
economic costs, however, cannot be valid excuses for inaction. Rather, they place a
premium on gathering intelligent, insightful analysis of whatever information is at hand
and using the best possible theory and intuition, so that the best possible choices can be
made.
Homo sapiens must learn to coexist with wildlife, or learn to live in a world with
fewer options and much less variety. Decisions to preserve and restore-land for the
direct benefit of wildlife, and the indirect benefit of humans, must be made now or the
opportunity will be lost.
44
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V TABLES
45
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Table 1. Three kinds of global atmospheric change affecting
biological diversity.
Global climate Increased UV—B Increased CO 2
Causes Fossil fuels Fossil fuels
Land use Land use
- Manufacturing Manufacturing
Trace gases C02, CFC5, CFCs, Halons, CO 2
Methane, Light chlorinated
Nitrous oxide hydrocarbons
Understanding of Low Medium High
physical effects
Understanding of Medium Low Low
biological effects
Likely impact on High Medium Medium
biodiversity in
50 years
Likely impact on Very high Medium High
biodiversity in
100 years
46
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Table Overview of Threats to Biologica! ‘versity o Minor impact
in the Contiguous 48 States 0 Substantial impact
Very serious threat
Page 1 of 3 ? Lack of or conflicting information
Intentional
Taking
Incidental
Taking
Physical
Alteration
Pesticides
industrial
Discharges
Fertliizorsl
Sewage
Solid
Wastes
Air
Pollutants
CO 2
UV-B
Climatic
Chang.
Allen
Species
Nudest
Wastes
TERRESTRtALS
Mammals
Large
)
Q
.
Q
0
0
0
0
0
0
0
•
0
0
Arborfal
Q
0
0
C)
C)
0
0
0
(2)
•
0
0
Small
Q
0
(2)
0
C)
0
0
0
(
0
•
0
0
Bats
0
0
•
•
0
0
0
?
0
0
0
0
Birds
Hole-nest
Q
()
0
0
0
0
0
0
0
0
Canopy-nest
0
0
0
0
0
0
0?
0
0
0
Ground-nest
0
0
0
0
0
0
0
©?
0
(2)
•
0
0
ReptIles
0
Q
0
0?
Q
Q
Q
Q?
r2)
0
•
0
0
AmphIbIans
0
0.
0
©?
•
g
•
®
•
Arthropods
Q
Q
Q
0
0?
©
0
0
0
Snails
Q
Q
•
0?
0
0
0
0?
0?
Q?
•
Q
Conifers
0
()
•
0
0
0
0
•
0
0
•
•
0
Brdlf Tree
0
0
©
(2)
0
0
0
0?
©
0
0
Herbs
0
0
•
0
0
0
0
?
0
®
•
0?
0
Fungi
0
Q
Q?
0
0
0
0
0
?
0
Shrublands
0
0
0
0
0
0
0
0
0?
(2
0
0
Grasslands
Tundra
0
0
0
0
•
0
0
0
0
0
0
0
0
0
0
©
0
0?
r ?
0
•_
•
0
0
0
Deserts
0
0
(2)
0
.0
0
0
0
•
0
0
(2)
0
-------
Table 2: Overview of Threats to Biological Diversity 0 Minor impact
in the Contiguous 48 States Substantial impact
• Very serious threat
Page 2 of 3
? Lack of or conflicting information
Intentional
Taking
incidental
Taking
Physical
Alteration
Pesticides
industrial
Discharges
Fertilizersl
Sewage
Solid
Wastes
Air
Pollutants
CO 2
UV.B
Climatic
Change
Alien
Sped..
Nud . .r
Wa.les
FRESHWATER
Stream
AmphibIans
‘
Q
Q
•
0?
0
Q
•
Q
?
•
Q
Q
Fishes
Insects
0
0
0
C)
•
•
0
•
0
0
0
E’)
0
0
0
•
0
0
0
0
0
0
0
Producers
0
0
0
( ?
•
()
•
0
Q
)
()
()
River
Birds
0
0
0
0
0?
0
0
0
Reptiles
0
0
0
0
0
0
0
0
0
0
0
0
0
Amphlb ans
Fishes
0
0
0
0
0
0
0?
92
0
•
0
0
0
0
0
0
0
0
0
0
•_
0
0
0
0
Molluscs
0
0
•
0?
•
0
0
0
0
0
•
0
0
Insects
0
0
)?
?)?
0
•
0
0
0
0
0
0
0
EmergPtartts
0
0
©?
0
0
0
0
0
0?
•
0
0
Algae/SAy
0
0
0
0?
•
•
0
0
0
0
0
0
0
Lake/Wetland
Birds
0
0
0
0
0
0
0
0
0
0?
0
0
0
Amphibians
Fishes
0
0
0
0
0?
0
0 ?
0?
0
•
0
•
0
0
•
•
0
0
0
0
•_
0
0
0
Molluscs
0
0
0?
?
©
0
0
0
0
0
0
insects
0
0
0?
0?
•
0
0
0
0
0
0
0
0
EmergVeg
0
0
0
0?
0
0
0
Q?
•
0?
0
0
0
Algae/SAy
0
0
0?
0?
0
•
0
0?
0
0
0
0
0
Cave Dwellers
0
0
)
?
0
0
0
0?
0
0
0
0
0
-------
Table 2 “ verview of Threats to Biological D”ersity . 0 Minor impact
In The Contiguous 48 States Substantial impact
Very serious threat
Page 3 of 3 ‘7 Lack of or conflicting Information
Intentional
Taking
incidental
Taking
P ystc.l
Alteration
Pesticides
industrl.t
Discharges
Feflhllzer
Sewage
Solid
Wastes
Air
Pottutants
CO 3
UV-B
Climatic
Change
Alien
Sped..
Nude.,
Wast..
MARINE
Estu/lntr Tidal
Birds
()
‘
Q
0
)
0
()
)
( 3
0
(,
( )
C)
0
Fishes
0
0
C)
0
•
0
0
0
Q
(
0
0
inverts
Dune Veg
(
0
0
0
•
0
0
)
0
0
0
0
0
0
0?
0
0
Q
0
0
0
0
0
0
Mangroves
C)
0
•
0
0
0_
0
0
0
0
0
0
Seagrasses
0
C)
•
0
0
0
0
Q
0
0
0
Algae
0
0
0
0
0
•
0
0?
Q
-0.
.0
0
ilearshore
Mammals
Birds
0
0
0
0
()
0
( ?
0?
0
0
0
0
•
•
0
0?
0
0
0
0
0
0
0
0
0
0
Reptiles.
0
0
0
0 ’?
0
0
0
0
.. !
0
0
0
Fishes
0
0
0
0
0’
0’
0
0
0
0
0
Plankton
0
0
0
0
0
0
0
0
0
0
0’
0
0
Bnth inverts
0
0’?
0
0
0
0
0
0
0
0
0
0
0
Seagrasses
0
0
0’
0?
0’
0
0
0
0.
0
0
0
Coral Reefs
Onshore
0’
0
0
0
•
0
0
0
0
0
0
0
•
Mammals
Birds
0
0
0
0
0
0
0
0
0
0
0
0
•
•
0
0
0
0
0
0
0
0
0
0
0
0
Fishes
0’
0’
0
0
0
0
0
0
0
0
C)
0
0
Piankton
.0
0
0
0
0
0
0
0
0
•
0
0
0
Benthos
0
0
0
0
0
0
0
0
0
0
0
O
-------
VI LITERATURE CITED
Allen, J.M. 1963. The Nature of Biological Diversity . McGraw-Hill Book Company.
Askins, R.A., Lynch, J.F., and R. Greenberg. 1990. Population declines in migratory birds
in eastern North America. Current Ornithology 7:1-57.
Barton, K. 1987. Bureau of Land Management. Pages 3-59 in R.L DiSilvestro, ed.
Audubon Wildlife Report 1987 . Academic Press, Inc., Orlando, FL
Barton, K. and W. Fosburgh. 1986. The U.S. Forest Service. Pages 1-156 in RL
DiSilvestro, ed. Audubon Wildlife Report 1986 . National Audubon Society, New
York, NY.
Booth, W. 1989. Frogs, toads vanishing across much of the world. The Washington Post
12/13/89 p.A1.
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STATEMENT OF CAROL M. BROWNER
ADMINISTRATOR
U.S. ENVIRONMENTAL PROTECTION AGENCY
before the
COMMITTEE ON MERCHANT MARINE AND FISHERIES
U.S. HOUSE OF REPRESENTATIVES
APRIL 1, 1993
Mr. Chairman and Members of the Subcommittee: I am grateful
for the opportunity to appear here today with colleagues
Secretary Babbitt and Secretary Espy. The fact that leaders of
several Federal agencies are testifying together underscores boti
the complexity of the problem we face, and the importance of
Federal interagency cooperation in solving it. No single agency
is apable of protecting biological diversity and natural
habitat. No single law gives us the tools necessary to achieve
those ends. Rather, all the relevant Federal agencies, together
with state and local governments, tribes, businesses,
environmentalist r i the. public, will have to join hands and
apply the full range of tools at our disposal, if we are to
protect and nurture these invaluable resources.
The Environmental Protection Agency, in partnership with ow
fellow Federal agencies, has a vital role in protecting
biological diversity and ecosystems. When EPA was established ii
1970, it was premised on the perception that the environment is
“a single, interrelated system.” Many of the laws that we
administer, like the Clean Water Act and the Federal Insecticide,
Fungicide, and Rodenticide Act, clearly contribute to the
protection of species and ecosystems. Whenever EPA has acted to
control acid rain, clean up waste sites, construct sewage
-------
treatment plants, or prohibit the use of certain pesticides, we
have -- implicitly or explicitly —— helped preserve biological
diversity and natural habitat.
Yet, clearly, we have to do more. Despite our demonstrable
successes -—like reducing the sulfur emissions that lead to acid
rain, reducing flows of nitrogen and phosphates into surface
waters, and banning the use of DDT -- natural habitat in this
country is still seriously stressed. From the inudflats of the
Pacific Northwest, to the tall grass prairies of the Midwest, to
the Everglades of my own home state of Florida, natural
ecosystems are under siege. And thousands of species that depend
on them are stressed at best, and threatened with extinction at
worst.
What we are seeing in this country is happening around the
world at alarming rates. Prominent scientists now are predicting
that as much as 20 percent of total global biodiversity may be
extinct within the next 30 years, if current rates of habitat
destruction continue.
Because of the ongoing degradation of natural systems in
this country, EPA is placing more emphasis on the protection of
habitat —— both for its own sake, and because of its role in
protecting quality of human life. This is exactly the advice
given to EPA by the Science Advisory Board (SAB) in its 1990
report, Reducing Risk . The SAB’s recommendations are based on a
belief that ecosystems, and the biological diversity they
support. have an intrinsic value beyond their direct utility
2
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humans. At the same time, the health of humans and the health of
ecosystems are inextricably linked. As the SAB wrote in their
report: “...there is no doubt that over time the quality of
human life declines as the quality of natural ecosystems
declines.”
There are many opportunities in our programs to foster the
health of ecosystems. We have established Environmental
Monitoring and Assessment Program (EMAP) to measure trends in the
health of ecosystems and anticipate emerging threats. We have
undertaken several initiatives targeted at specific geographic
areas, focusing protection on the entire ecosystem, like the Gulf
of Mexico, the Chesapeake Bay and the Great Lakes. The watershed
approach is becoming a top priority in our water program. Under
the Clean Water Act EPA oversees the States in establishment of
and compliance with water quality standards, including standards
designed to protect aquatic life. The Act contains other
provisions that relate to aquatic life, including designation of
Outstanding Natural Resource Waters of exceptional ecological
significance, to which special protections apply. As a part of
the National Estuary Program, EPA coordinates development of
conservation and comprehensive management plans to restore and
protect the water quality and ecological resources of significant
estuaries.
These initiatives and others like them involve partnerships
among Federal agencies, state and local governments, and non-
governmental organizatio” s at the ecosystem level. They can
3
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benefit immensely from the coordinated support of strengthened
leadership of the Federal agencies here today. The Clinton
Administration is committed to that coordinated approach.
In addition, we are developing a process for assessing
ecological risks much like the process we use for assessing human
health risks. Ecological risk assessment will help us identify
problems, set priorities, and provide a scientific basis for
decisions. While not an exact science, ecological risk
assessment will help formalize ecosystem concerns throughout EPA.
We will review EPA programs for further opportunities to
develop strategic options for protecting species and habitat in
the course of carrying out our statutory responsibilities. We
will find ways for EPA offices, both here in Washington and out
in the regions, to incorporate ecological components into their
ongoing programs. Perhaps most important, we will identify
opportunities for cooperation with other Federal agencies, state
governments, and private organizations.
Interagency cooperation, Federal/state cooperation, and
public/private cooperation are all essential to our national
effort to preserve habitat and nurture biodiversity. All of us
have responsibilities that pertain to ecosystem protection; all
of us have tools that can be used for that end. To be
successful, we have to coordinate our actions, leverage our
resources, and combine our expertise in ways that are most
effective for specific ecosystems. While I am Administrator ol
4
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the Environmental Protection Agency, that is exactly what I
intend to do.
All Federal agencies need to join forces and form alliances
to protect our most important turf, the natural ecosystems that
sustain all forms of life on earth, including humanity.
This new approach should be the linchpiri of national policy
regarding biological resources. The Federal Government needs to
protect the biological systems within which species exist. We
need to rethink the economic activities that threaten habitat.
We need to find new ways of achieving our economic goals while at
the same time preserving and protecting the natural ecosystems
that make all life -- including human —- possible.
I believe we can be successful, especially if Federal
agencies like the ones we represent do a better job working
together for a common end. I am confident that in the Clinton
Administration we will.
Thank you.
5
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F
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403.08
lesires to returi gement of a ape-
ties of marine m nrnals to the Serv-
ice, it shall provide the Service notice
f Intent to return management. The
Service shall accept the return of man-
tgement, and such return shall
ecome effective, upon publication of
notice in the FEDERAL REGISTER to
his effect no sooner than 30 days
except in an emergency as deter-
nined by the Service) nor longer than
0 days after the state has provided
otice of its intent to return manage-
sent or unless otherwise agreed upon.
(2) If implementation of any aspect
if the state management program is
!njolned by court order, the state
hall advise the Service of such injunc-
.ion and Its effect on the state man-
gement program. If the state deter-
nines that the effect of the injunction
s to preclude effective conservation
nd management of the species under
he terms of the state management
irogram, it shall so notify the Service
md such notification shall be treated
is a notice of intent to return manage-
ment as provided in paragraph (b)(1)
f this section. If the state determines
.hat the injunction does not preclude
ffective conservation and manage-
nent of marine mammals under the
,erms of the state management pro:
tram, it shall so notify the Service to-
lether with the basis for the state’s
ietermination and such notice shall be
reated as a report submitted pursuant
.o the terms of § 403.06(c)(1) of this
part. In either case, the state shall
provide notice to the Service as soon
is practicable but not more than 30
lays after issuance of the injunction.
1anagement authority returned to
he Service pursuant to this pam-
rraph may be re-transferred to the
tate, notwithstanding the require-
nents of 403.03, when, in the judg-
rnent of the Service, the cause for
return of management authority to
the Service has been alleviated In such
i way as to allow effective conserva-
tion and management of the species
:onslstent with the requirements of
the Act and this part.
(C) When revocation of a manage-
rnent authority pursuant to paragraph
a) of this section becomes final, or
when a state returns management pur-
iuant to paragraph (b) of this section.
50 CFR Cl i. IV (10-1-92 EditIon)
the Service shall resume such manage-
ment authority and provide for the
conservation of the species within the
state in accordance with the provisions
of the Act.
§ 403.08 List of states to which manage-
ment has been transferred.
The following states have received
management authority pursuant to
this part for the species listed and,
where appropriate, cooperative alloca-
tion agreements pursuant to
§ 403.05(c) are in force: (Reserved).
PART 424—LISTING ENDANGERED
AND THREATENED SPECIES AND
DESIGNATING CRITICAL HABITAT
Subpart A— .Gsnsrol Provisions
424.01 Scope and purpose.
424.02 Definitions.
Subpart I—a.vi.lon of ii. U.ts
424.10 General.
424.11 Factors for listing. delisting, or re-
classifying species.
424.12 CrIteria for designating critical
habitat.
424.13 Sources of information and relevant
data.
424.14 PetItions.
424.15 Notices of review.
424.16 Proposed rules.
424.17 Time limits and required actions.
424.18 FInal rules—general.
424.19 FInal rules—impact analysis of criti-
cal habitat.
424.20 Emergency rules.
424.21 PerIodic review.
AUTHORITY: Pub. L 93-205, 87 Stat. 884;
Pub. L. 95-632, 92 Stat. 3751; Pub. I. 98-159.
93 Stat. 1225; Pub. 1.. 97-304, 96 Stat. 1411
(16 U.S.C. 1531 el seq.).
Soulics: 49 FR 38908, Oct. 1, 1984, unless
otherwise noted.
Subpart A—General Provisions
6424.01 Scope and purpose.
(a) Part 424 provides rules for revis-
ing the Lists of Endangered and
Threatened Wildlife and Plants and.
where appropriate, designating or re-
vising their critical habitats. Criteria
are provided for determining species
to be epdangered or threatened and
for designating critical habitats. Pro-
t1 Regulations on Endangered Sped..
res for receiving and considering
pei itions to revise the lists and for
conducting periodic reviews of listed
species also are established.
(b) The purpose of these rules is to
interpret and implement those por-
tions of the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et
seq.). that pertain to the listing of spe-
cies and the determination of critical
habitats.
6424.02 DefinitIons.
(a) The definitions of terms in 50
CFR 402.02 shall apply to this part
424, except as otherwise stated.
(b) Candidate means any species
being considered by the Secretary for
listing as an endangered or a threat-
ened species, but not yet the subJect of
a proposed rule.
(C) Conservation, conserve, and con-
serving mean to use and the use of all
methods and procedures that are nec-
essary to bring any endangered or
threatened species to the point at
which the measures provided pursuant
to the Act are rio longer necessary.
Such methods and procedures include,
but are not limited to, all activities as-
sociated with scientific resources man-
agement such as research, census, law
enforcement, habitat acquisition and
maintenance, propagation, live trap-
ping, and transplantation, and, in the
extraordinary case where population
pressures within a given ecosystem
cannot be otherwise relieved, may in-
clude regulated taking.
(d) Critical habitat means (1) the
specific areas within the geographical
area currently occupied by a species,
at the time it is listed in accordance
with the Act, on which are found
those physical or biological features (i)
essential to the conservation of the
species and (ii) that may require spe-
cial management considerations or
protection, and (2) specific areas out-
side the geographical area occupied by
a species at the time it is listed upon a
detei-n iinatjon by the Secretary that
such areas are essential for the conser-
vation of the species.
(e) Endangered species means a spe-
cies that is In danger of extinction
throughout all or a significant portion
of its range.
4.1 0
(f) List or lists means tL its of
Endangered and Threatened Wildlife
and Plants found at 50 CFR 17.11(h)
or 17.12(h).
(g) Plant means any member of the
plant kingdom, including, without lim-
itation, seeds, roots, and other parts
thereof.
(h) Public hearing means an Infor-
mal hearing to provide the public with
the opportunity to give comments and
to permit an exchange of information
and opinion on a proposed rule.
(i) Secretary means the Secretary of
the Interior or the Secretary of Com-
merce, as appropriate, or their author.
ized representatives.
(j) Special management consider-
ations or protection means any meth-
ods or procedures useful In protecting
physical and biological features of the
environment for the conservation of
listed species.
(k) Species includes any species or
subspecies of fish, wildlife, or plant,
and any distinct population segment
of any vertebrate species that inter-
breeds when mature. Excluded is any
species of the Class Insecta deter-
mined by the Secretary to constitute a
pest whose protection under the provi-
sions of the Act would present an over-
whelming and overriding risk to man.
(I) State agency means any State
agency, department, board, commis-
sion, or other governmental entity
that is responsible for the manage-
ment and conservation of fish, plant,
or wildlife resources within a State.
(m) Threatened species means any
species that is likely to become an en-
dangered species within the foreseea-
ble future throughout all or a signifi-
cant portion of its range.
(n) Wildltfe or fish and wildlife
means any member of the animal
kingdom, including without limitation,
any vertebrate, mollusk, crustacean,
arthropod, or other invertebrate, and
includes any part, product, egg, or off-
spring thereof, or the dead body or
parts thereof.
Subpart B—Revision of li. Usts
§ 424.10 General.
The Secretary may add a species to
the lists or designate critical habitat,
490
491
-------
§ 424.11
50 CM Cl i. IV (10-1-92 EditIon) Joint R.gulotlon, on Endang.r.d Sp.cI.s
§ 424.12
delete a species or critical habitat.
change the listed status of a species.
revise the boundary of an area desig.
nated as critical habitat, or adopt or
modify special rules (see 50 CFR
17.40-17.48 and parts 222 and 227) ap-
plied to a threatened species only in
accordance with the procedures of this
part.
§424.11 Factors for listing. delisting, or
reclassifying species.
(a) Any species or taxonomic group
of species (e.g., genus, subgenus) as de-
fined in * 424.02(k) is eligible for list-
ing under the Act. A taxon of higher
rank than species may be listed only if
all Included species arc individually
found to be endangered or threatened.
In determining whether a particular
t.axon or population Is a species for the
purposes of the Act, the Secretary
• shall rely on standard taxonomic dis-
• tinctions and the biological expertise
of the Department and the scientific
community concerning the relevant
taxonomic group.
(b) The Secretary shall make any de-
termination required by paragraphs
(C) and (d) of this section solely on the
basis of the best available scientific
and commercial Information regarding
a species’ status, without reference to
possible economic or other impacts of
such determination.
(C) A species shall be listed or reclas-
• sifted If the Secretary determines, on
the basis of the best scientific and
commercial data available after con-
• ducting a review of the species’ status,
that the species is endangered or
threatened because of any one or a
combination of the following factors:
(1) The present or threatened de-
struction, modification, or curtailment
of its habitat or range;
(2) Over utilization for commercial,
recreational, scientific, or educational
purposes;
(3) Disease or predation;
(4) The inadequacy of existing regu-
latory mechanisms; or
(5) Other natural or manmade fac-
tom affecting its continued existence.
(d) The factors considered In delist-
tog a species are those in paragraph
(C) of this section as they relate to the
definitions of endangered or threat-
ened species. Such removal must be
supported by the best scientific and
commercial data available to the Sec.
retary after conducting a review of the
status of the species. A species may be
delisted only If such data substantiate
that it Is neither endangered nor
threatened for one or more of the fol-
lowing reasons:
(1) Extinction. Unless all individuals
of the listed species had been previous-
ly identified and located, and were
later found to be extirpated from their
previous range, a sufficient period of
time must be allowed before delisting
to indicate clearly that the species Is
extinct.
(2) Recovery. The principal goal of
the U.S. Fish and Wildlife Service and
the National Marine Fisheries Service
is to return listed species to a point at
which protection under the Act is no
longer required. A species may be de-
listed on the basis of recovery only if
the best scientific and commercial
data available indicate that it is no
longer endangered or threatened.
(3) Original data for classification
in error. Subsequent investigations
may show that the best scientific or
commercial data available when the
species was listed, or the Interpreta-
tion of such data, were in error.
(e) The fact that a species of fish.
wildlife, or plant is protected by the
Convention on International Trade in
Endangered Species of Wild Fauna
and Flora (see part 23 of this title 50)
or a similar International agreement
on such species, or has been identified
as requiring protection from unre-
stricted commerce by any foreign
nation, or to be in danger of extinction
or likely to become so within the fore-
seeable future by any State agency or
by any agency of a foreign nation that
is responsible for the conservation of
fish, wildlife, or plants, may constitute
evidence that the species is endan-
gered or threatened. The weight given
such evidence will vary depending on
the international agreement in ques-
tion, the criteria pursuant to which
the species is eligible for protection
under such authorities, and the degree
of protection afforded the species. The
Secretary shall give consideration to
any species protected under such an
international agreement, or by anY
State or foreign nation, to determine
whether the species is endangered or
threatened.
(f) The Secretary shall take into ac-
count, in making determinations
under paragraph (C) or (ci) of this sec-
tion, those efforts, if any, being made
by any State or foreign nation, or any
political subdivision of a State or for-
eign nation, to protect such species,
whether by predator control, protec-
tion of habitat and food supply, or
other conservation practices, within
any area under its jurisdiction, or on
the high seas.
§424.12 Criteria for designating critical
habitat.
(a) Critical habitat shall be specified
to the maximum extent prudent and
determinable at the time a species is
proposed for listing. If designation of
critical habitat is not prudent or if
critical habitat Is not determinable,
the reasons for not designating critical
habitat will be stated In the publica-
tion of proposed and final rules listing
a species. A final designation of criti-
cal habitat shall be made on the basis
of the best scientific data available,
after taking into consideration the
probable economic and other Impacts
of making such a designation In an-
cordance with § 424.19.
(1) A designation of critical habitat
is not prudent when one or both of the
following situations exist:
(i) The species is threatened by
taking or other human activity, and
identification of critical habitat can be
expected to increase the degree of
such threat to the species, or
(ii) Such designation of critical habi-
tat would not be beneficial to the spe-
cies.
(2) Critical habitat is not determina-
ble when one or both of the following
situations exist:
Ci) Information sufficient to perform
required analyses of the impacts of
the designation is lacking, or
(ii) The biological needs of the Spe-
cies are not sufficiently well known to
permit identification of an area as crit-
ical habitat.
(b) In determining what areas are
critical habitat, the Secretary shall
consider those physical and biological
features that are essential to the con-
servation of a given species and that
may require special management con-
siderations or protection, Such re-
quirements include, but are not limit-
ed to the following:
(1) Space for Individual and popula-
tion growth, and for normal behavior
(2) Food, water, air, light, minerals,
or other nutritional or physiological
requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction,
rearing of offspring, germination, or
seed dispersal; and generally;
(5) Habitats that are protected from
disturbance or are representative of
the historic geographical and ecologi..
cal distributions of a species.
When considering the designation of
critical habitat, the Secretary shall
focus on the principal biological or
physical constituent elements within
the defined area that are essential to
the conservation of the species.
Known primary constituent .elements
shall be listed with the critical habitat
description. Primary constituent ele-
ments may Include, but are not limited
to, the following: roost sites, nesting
grounds, spawning sites, feeding sites,
seasonal wetland or dryland, water
quality or quantity, host species or
plant pollinator, geological formation,
vegetation type, tide, and specific soil
types.
Cc) Each critical habitat will be de-
fined by specific limits using reference
points and lines as found on standard
topographic maps of the area, Each
area will be referenced to the State(s),
county(ies, or other local governmen-
tal units within which all or part of
the critical habitat Is located. Unless
otherwise Indicated within the critical
habitat descriptions, the names of the
State(s) and county(Ies) are provided
for information only and do not con-
stitute the boundaries of the area.
Ephemeral reference points (e.g.,
trees, sand bars) shall not be used in
defining critical habitat.
Cd) When several habitats, each sat-
isfying the requirements for designa-
Lion as critical habitat, are located in
proximity to one another, an Inclusive
area may be designated as critical
habitat.
Exampic Several dozen or more small
ponds, lakes, and springs are found In a
492
493
-------
§ 424.13
50 CFR cii. IV (101-92 Edition) Joint Regulations on Endangered Sped..
424.15
small local ai ,. entire area could be
designated crlt. , .,iftbitat if it. were con-
cluded that the upland areas were essential
to the conservation of an aquatic species 10-
cated In the ponds and lakes.
(e) The Secretary shall designate as
critical habitat areas outside the geo-
graphical area presently occupied by a
species only when a designation limit-
ed to its present range would be mad-
equate to ensure the conservation of
the species.
(f) Critical habitat may be designat-
ed for those species listed as threat-
ened or endangered but for which no
critical habitat has been previously
designated.
(g) Existing critical habitat may be
revised according to procedures in this
section as new data become available
to the Secretary.
(h) Critical habitat shall not be des-
ignated within foreign countries or in
other areas outside of United States
jurisdiction.
§ 424.13 Sources of information and rele-
vant data.
When considering any revision of
the lists, the Secretary shall consult as
appropriate with affected States, in-
terested persons and organizations,
other affected Federal agencies, and,
in cooperation with the Secretary of
State. with the country or countries in
which the species concerned are nor-
mally found or whose citizens harvest
such species from the high seas. Data
reviewed by the Secretary may in-
clude, but are not limited to scientific
or commercial publications, adminis-
trative reports, maps or other graphic
materials, information received from
experts on the subject, and comments
from interested parties.
6424.14 Petition&
(a) GeneraL Any interested person
may submit a written petition to the
Secretary requesting that one of the
actions described in 424.10 be taken.
Such a document must clearly identify
Itself as a petition and be dated. It.
must contain the name, signature, ad-
dress, telephone number, if any. and
the association, institution, or business
affiliation, if any, of the petitioner,
The Secretary shall acknowledge In
writing receipt of such a petition
within 30 days.
(b) Petitions to list, d,elist, or reclas-
sify species. (1) To the maximum
extent practicable, within 90 days of
receiving a petition to list, delist, or re-
classify a species, the Secretary shall
make a finding as to whether the peti-
tion presents substantial scientific or
commercial information indicating
that the petitioned action may be war-
ranted. For the purposes of this sec-
tion, “substantial information” is that
amount of information that would
lead a reasonable person to believe
that the measure proposed in the peti-
tion may be warranted. The Secretary
shall promptly publish such finding in
the FEDERAL Rscisi-sst and so notify
the petitioner.
(2) In making a finding under para-
graph (b)( 1) of this section. the Secre-
tary shall consider whether such peti-
tion—
Ci) Clearly indicates the administra-
tive measure recommended and gives
the scientific and any common name
of the species involved;
(ii) Contains detailed narrative Justi-
fication for the recommended meas-
ure, describing, based on available in-
formation, past and present numbers
and distribution of the species in-
volved and any threats faced by the
species;
(iii) Provides information regarding
the status of the species over all or a
significant portion of its range; and
(iv) Is accompanied by appropriate
supporting documentation in the form
of bibliographic references, reprints of
pertinent publications, copies of re-
ports or letters from authorities, and
maps.
The petitioner may provide informa-
tion that describes any recommended
critical habitat as to boundaries and
physical features, and indicates any
benefits and/or adverse effects on the
species that would result from such
designation. Such Information, howev-
er, will not be a basis for the determi-
nation of the substantiality of a peti-
tion.
(3) Upon making a positive finding
under paragraph (b)(l) of this section,
the Secretary shall commence a review
of the status of the species concerned
494
d shall make, within 12 months of
eceipt of such petition, one of the fol-
lowing findings:
(I) The petitioned action Is not war-
ranted, in which case the Secretary
shall promptly publish such finding in
the FEDERAL Rscisvs and so notify
the petitioner.
(Ii) The petitioned action is warrant-
ed, in which case the Secretary shall
promptly publish in the FEDERAL EEc-
JSTER a proposed regulation to imple-
ment the action pursuap to § 424.16
of this part, or
(iii) The petitioned action is war-
ranted, but that—
(A) The immediate proposal and
timely promulgation of a regulation to
implement the petitioned action is
precluded because of other pending
proposals to list, delist, or reclassify
species, and
(B) Expeditious progress is being
made to list, delist, or reclassify quali-
fied species,
in which case, such finding shall be
promptly published in the FEDERAL
REGISTER together with a description
and evaluation of the reasons and data
on which the finding is based.
(4) If a finding is made under para-
graph (b)(3)(iii) of this section with
regard to any petition, the Secretary
shall, within 12 months of such find-
ing, again make one of the findings de-
scribed in paragraph (b)(3) with
regard to such petition, but no further
finding of substantial information will
i be required,
(c) Petitions to revise crttjcaj habi-
tat. (1) To the maximum extent prac-
ticable, within 90 days of receiving a
petition to revise a critical habitat des-
ignation, the Secretary shall make a
finding as to whether the petition pre-
sents substantial scienific information
indicating that the revision may be
warranted, The Secretary shall
Promptly publish such finding in the
FEDERAL Rnc is and so notify the
petitioner.
(2) In making the finding required
by paragraph (CX 1) of this section, the
Secretary shall consider whether a pe-
tition contains—
Ci) Information indicating that areas
petitioned to be added to critical habi-
tat contain physical and biological fea-
tures essential to, and that may re-
quire special managemi provide
for, the conservation of the species In-
volved; or
(ii) Information indicating that
areas designated as critical habitat do
not contain resources essential to, or
do not require special management to
provide for, the conservation of the
species involved.
(3) Within 12 months after receiving
a petition found under Paragraph
(c)(l) of this section to present Sub-
stantial information indicating that
revision of a critical habitat may be
warranted, the Secretary shall deter-
mine how he intends to proceed with
the requested revision, and shall
promptly publish notice of such inten-
tion in the FEDERAL REGISTER.
Cd) Petitions to dealpru tie cr1tjca
habitat or adopt spe dgl nde& Upon
receiving a petition to designate criti-
cal habitat or to adopt a Special rule to
provide for the conservfttion of a spe-
cies, the Secretary shall Promptly, con-
duct a review in accordance with the
Administrative Procedure Act (5
U.S.C. 553) and applicable Depaj-tjnen..
tal regulatio , and tak e appropriate
action.
§ 424.15 Noticci of review.
(a) If the Secretary finds that one of
the actions described in § 424.10 may
be warranted, but that the available
evidence is not Sufficiently definitive
to Justify proposing the action at that
time, a notice of review may be pub-
lished in the F-}I6ERAL REGISTER, The
notice will describe the measure under
consideration, briefly explain the rea-
sons for considering the action, and so-
licit comments and additional informa-
tion on the action under consideration.
(b) The Secretary from time to time
also may publish notices of review con-
taining the names of species that are
considered to be Candidates for listing
under the Act and Indicating whether
sufficient scientific or commercial in-
formation is then available to warrant
proposing to list such species, the
names of species no longer being con-
sidered for listing, or the names of
listed species being considered for de-
listing or reclassification However,
none of the substantive or procedural
provisions of the Act apply to a species
495
-------
§424.16
50 CFR Ch. IV (10.1-92 EditIon) 1 JoInt Regulation, on Endang.r.d Sped.,
§ 424.18
that is designated as a candidate for
listing.
(C) Such notices of review will invite
comment from all Interested parties
regarding the status of the species
named. At the time of publication of
• such a notice, notification in writing
will be sent to State agencies In any
affected States, known affected Feder-
al agencies, and, to the greatest extent
• practicable, through the Secretftry of
State, to the governments of any for-
eign countries in which the subject
species normally occur.
§ 424.16 Proposed rules.
(a) GeneraL Based on the Informa-
tion received through § 424.13, 424.14,
424.15, and 424.21, or through other
available avenues, the Secretary may
propose revising the lists as described
in 424.10.
(b) Contents. A notice of a proposed
rule to carry out one of the actions de-
scribed in § 424.10 shall contain the
complete text of the proposed rule, a
i summary of the data on which the
proposal is based (including, as appro-
priate, citation of pertinent informa-
tion sources), and shall show the rela-
tionship of such data to the rule pro-
posed. If such a rule designates or re-
vises critical habitat, such summary
shall, to the maximum extent practi-
cable, include a brief description and
evaluation of those activities (whether
public or private) that, in the opinion
of the Secretary. If undertaken, may
adversely modify such habitat, or may
be affected by such designation. Any
proposed rule to designate or revise
critical habitat shall contain a map of
such habitat. Any such notice propos-
ing the listing, delisting, or reclassifi-
cation of a species or the designation
or revision of critical habitat shall also
include a summary of factors affecting
the species and/or critical habitat.
(C) Procedures—(l) Notifi calf ons. In
the case of any proposed rule to list,
delist, or reclassify a species, or to des-
ignate or revise critical habitat, the
Secretary shall—
(i) Publish notice of the proposal In
the FEvza.*l. REGISTER;
(ii) Give actual notice of the pro-
posed regulation (Including the com-
plete text of the regulation) to the
State agej In each State In which
the species is believed to occur, and to
each county or equivalent jurisdiction
therein in which the species is believed
to occur, and invite the comment of
each such agency and jurisdiction;
(lii) Give notice of the proposed reg-
ulation to any Federal agencies, local
authorities, or private Individuals or
organizations known to be affected by
the rule;
(iv) Insofar as practical, and in coop-
eration with the Secretary of State,
give notice of the proposed regulation
to list, delist, or reclassify a species to
each foreign nation in which the spe-
cies is believed to occur or whose citi-
zens harvest the species on the high
seas, and Invite the comment of such
nation;
(v) Give notice of the proposed regu-
lation to such professional scientific
organizations as the Secretary deems
appropriate: and
(vi) Publish a summary of the pro-
posed regulation in a newspaper of
general circulation in each area of the
United States in which the species is
believed to occur.
(2) Period of public comments. At
least 60 days shall be allowed for
public comment following publication
in the FEDERAL REcIsIsE of a rule pro-
posing the listing, delisting, or reclassi-
fication of a species, or the designation
or revision of critical habitat. All other
proposed rules shall be subject to a
comment period of at least 30 days fol-
lowing publication in the FEDERAL Rsc-
EsTER. The Secretary may extend or
reopen the period for public comment
on a proposed rule upon a finding that
there is good cause to do so. A notice
of any such extension or reopening
shall be published in the FEDERAL Rs G-
zsvmt, and shall specify the basis for so
doing.
(3) Public hearings. The Secretary
shall promptly hold at least one public
hearing if any person so requests
within 45 days of publication of a pro-
posed regulation to list. delist, or re-
classify a species, or to designate Or
revise critical habitat. Notice of the lo-
cation and time of any such hearing
shall be published In the FEDERAL REG-
EsTER not less than 15 days before the
hearing is held.
§ 424.17 Time ilmits and required action..
(a) GeneraL (1) Within 1 year of the
publication of a rule proposing to de-
termine whether a species is an endan-
gered or threatened species, or to des-
ignate or revise critical habitat, the
Secretary shall publish one of the fol-
lowing in the FEDERAL RscIszsE :
(I) A final rule to implement such
determination or revision,
(ii) A finding that such revision
should not be made,
(iii) A notice withdrawing the pro-
posed rule upon a finding that avail-
able evidence does not justify the
action proposed by the rule, or
(iv) A notice extending such I-year
period by an additional period of not
more than 6 months because there is
substantial disagreement among scien-
tists knowledgeable about the species
concerned regarding the sufficiency or
accuracy of the available data relevant
to the determination or revision con-
cerned.
(2) If an extension is made under
paragraph (a)(1)(iv) of this section.
the Secretary shall, within the ex-
tended period, take one of the actions
described in paragraphs (a)(1) (i), (ii),
or (iii) of this section.
(3) If a proposed rule Is withdrawn
under paragraph (a)(1)(ifi) of this sec-
tion. the notice of withdrawal shall set
forth the basis upon which the pro-
posed rule has been found not to be
supported by available evidence. The
Secretary shall not again propose a
rule withdrawn under such provision
except on the basis of sufficient new
information that warrants a repropo-
sal.
(b) Critical habitat designagfo,i . A
final rule designating critical habitat
of an endangered or a threatened spe-
cies shall to the extent permissible
under 424.12 be published concur-
rently with the final rule listing such
species, unless the Secretary deems
that—
(1) It Is essential to the conservation
of such species that it be listed
Promptly; or
(2) Critical habitat of such species is
not then determinable.
in which case, the Secretary, with re-
spect to the proposed regulation to
designate such habitat, may extend
the 1-year period specified In para-
graph (a) of this section by not more
than one additional year. Not later
than the close of such additional year
the Secretary must publish a final reg-
ulation, based on such data as may be
available at that time, designating, to
the maximum extent prudent, such
habitat,
§ 424.18 FInal ruies—geaer I,
(a) Contents. A final rule promulgat...
ed to carry out the purposes of the Act
will be published in the FEDERAL RED-
ESTER. This publication will contain
the complete text of the rule, a sum-
mary of the comments and recommen-
dations received in response to the
proposal (including applicable public
hearings), summaries of the data on
which the rule is based and the rela-
tionship of such data to the final rule,
and a description of any conservation
measures available under the rule,
Publication of a final rule to list,
delist, or reclassify a species or desig-
nate - or revise critical habitat shall
also provide a summary of factors af-
fecting the species, A rule designating
or revising critical habitat will also
contain a description of the bound-
aries and a map of such habitat and
will, to the maximum extent practica-
ble, be accompanied by a brief descrip-
lion and evaluation of those activities
(whether public or private) that might
occur in the area and which, In the
opinion of the Secretary, may adversly
modify such habitat or be affected by
such designation.
(b) Effective date. A final rule shall
take effect—
(1) Not less than 30 days after It is
published in the FEDERAL REozszsJt,
except as otherwise provided for good
cause found and published with the
rule; and
(2) Not less than 90 days after (i)
publication in the FsssasL REGI8I-Elt of
the proposed rule, and (ii) actual noti-
fication of any affected State agencies
and counties or equivalent Jurisdic-
tions in accordance with
* 424,16(c)(1)(ji).
(C) Disagreen e g with State agency.
If a State agency, given notice of a
ProPosed rule In accordance with
* 424.16(c)(l)Ui). submits comments
disagreeing in whole on— part with S
496
497
-------
§ 424.19
50 CFR Ch. IV (10.1-92 Edition)
proposed hnd the Secretary
Issues a fin ule that is In conflict
with such comments, or If the Secre-
tary fails to adopt a regulation for
which a State agency has made a peti-
tion in accordance with § 424.14, the
Secretary shall provide such agency
with a written Jvstification for the
failure to adopt a rule consistent with
the agency’s comments or petition.
§424.19 Final rules—impact analyRia of
critical habitat.
The Secretary shall identify any sig-
nificant activities that would either
affect an area considered for designa-
tion as critical habitat or be likely to
be affected by the designation, and
shall, alter proposing designation of
such an area, consider the probable
economic and other impacts of the
designation upon proposed or ongoing
activities. The Secretary may exclude
any portion of such an area from the
critical habitat if the benefits of such
exclusion outweigh the benefits of
specifying the area as part of the criti-
cal habitat. The Secretary shall not
exclude any such area if, based on the
best scientific and commercial data
available, he determines that the fail-
ure to designate that area as critical
habitat will result in the extinction of
the species concerned.
§ 424.20 Emergency rules.
(a) Sections 424.16, 424.17, 424.18.
and 424.19 notwithstanding, the Secre-
tary may at any time Issue a regula-
tion implementing any action de-
scribed In 424.10 in regard to any
emergency posing a significant risk to
the well-being of a species of fish,
wildlife, or plant. Such rules shall, at
the discretion of the Secretary, take
effect immediately on publication in
the FEDERAL REGISTER. In the case of
any such action that applies to a resi-
dent species, the Secretary shall give
actual notice of such regulation to the
State agency In each State in which
such species Is believed to occur. Publi-
cation in the FEDERAL REGISTER of
such an emergency rule shall provide
detailed reasons why the rule is neces-
sary. An emergency rule shall cease to
have force and effect after 240 days
unless the procedures described In
§* 424.16, 424.17, 424.18, and 424.19 (as
appropriate) have been complied with
during that period.
(b) If at any time after issuing an
emergency rule, the Secretary deter-
mines, on the basis of the best scientif-
ic and commercial data available, that
substantial evidence does not then
exist to warrant such rule, it shall be
withdrawn.
§ 424.21 PerIodic review.
At least once every 5 years, the Sec-
retary shall conduct a review of each
listed species to determine whether it.
should be dellsted or reclassified. Each
such determination shall be made in
accordance with § 424.11, 424.16, and
424.17 of this part, as appropriate. A
notice announcing those species under
active review will be published In the
FEDERAL REGISTER. Notwithstanding
this section’s provisions, the Secretary
may review the status of any species at
any time based upon a petition (see
424.14) or upon other data available
to the Service.
498
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c3
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Tuesday
June 3, 1985
Part II
Department of the
Interior
Fish and Wildlife Service
Department of
Commerce
National Oceanic and Atsnospher$c
Administration
50 CFR Part 402
Interagency Cooperation—Endangered
Species Act of 1973, as Amended Final
Rule -
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19926
Federal Register / Vol. 51 . No. 106 I Tuesday. June 3. 1986 I Rules and Reeulations
DEPARTMENT OF ThE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 402
Interagency Cooperation—
Endangered Species Act of 1973, as
Amended; Final Rule
AGENCIES: Fish and Wildlife Service.
Interion NatIonal Marine Fisheries
Service. National Oceanic and
Atmospheric Administration,
Cmmerce,
ACTION: Final rule
3UMMARY: This final rulemaking
establishes the procedural regulations
governing interagency cooperation
under section 7 of the Endangered
Species Act of 1973, as amended (the
“Ace’). The Act reqwres Federal
agencies, in consultation with and with
the aSsistance of (be Secretaries of the
Intenor and Commerce. to insure that
their actions are not likely to jeopardize
the continued existence of endangered
or threatened species or result In the
destruction or adverse modification of
the critical habitat of such species. The
Endangered Species Act Amendments of
1978. 1979. and 1982 (the
“Amendments”) changed the
3nsuitation requirements of section 7.
.‘his final ruleir :ng amends the
existing rules g’. rrung section 7
consultation by implementing the
changes eqwred by the Ameni3ments
and by incorporating other procedural
cbanges designed to improve
Interagejicy cooperation,
EFFECTIVE DATL July 3, 1988.
FOR FURTHER INFORMATION CONTACT
Marvin E. Moriarty, Acting’Chief. Office
of Endangered Species, U.S. Fish and
Wildlife S rvice, Department of the
Interior, Washington, D.C. 20240(703—
235—2771); or Charles Karnella,
Protected Species Division, Office of
Protected Species and Habitat
Conservation, National Marine Fisheries
Service, National Oceanic and’
Atmospheric Administration,
Oepartnient of Commerce, Washington..
b.C. 20235 (202-634-7401),
SUPPUNErITARY INFORMATIO,a
Background
On January 4, 1978, the Department of
the Interior, through the United Statns
I’ish and Wildlife Service (FWS), and
The Department of Commerce. through
the National Marijie Fisheries Service
LNMFS). established procedures for the
Act’s consultation process by
implementing the interagency
cooperation requirements of section 7
(50 CFR Part 402, “1978 rule”). The.
consultation process is designed to
as: 3t Federal agencies in complying
wwi the requirements of section 7 and
provides such agencies with advice ann
guidance from the Secretary on whether
an action complies with the substantive
requirements of section 7.
The Secretaries of the Interior and
Commerce (the “Secretary”) share
responsibilities for conducting
consultations pursuant to section 7 of
the Act. Generally, marine species are
under the jurisdiction of the Secretary of
Commerce and all other species are
under the jurisdiction of the Secretary of
the Interior. Authority to conduct
consultation, has been delegated by the
Secretary of the Interior to the Director
of the FWS and by the Secretary of
Commerce to the Assistant
Administrator for Fisheries, NMFS.
National Oceanic and Atmospheric
Administration;
Section 7(aJ(l) of the Act authorizes
Federal agencies, in consultation with
d with the assistance of the Secretary
I d the Interior or Commerce, depending
on the spef’es invplved, to utilize their
resources in furtherance of the puroose,
of the Act by carrying out prograit’ for
the conservation of endanaered species
and threatened species ( ‘llsted species”)
listed pursuant to section 4 of the Act,’
Section 7(a)(Z) of the Act require,
Federal agencies, in consultation with
and with the assistance of the Secretary,
to insure that an.y action authorized.
funded, or carried out by such agency Is
not likely to jeopardize the continued
existence of any listed species or result
in the desti-iction or adverse
modlficatic;i of habitat of such species
which has been designated as critical
(“critical habitat”). Although Federal
agency authority and responsibility
under section 7 have remained virtually
Intact from the 1973 Act, the
Amendment, made significant
procedural changes in the section 7
consultation procedures.
The 1978 Amendments formalized the
process for the Ihuance of the
Secretary’s opinion (“biological
opinions”), and required that the opinion
include “reasonable and prudent.
alteroativea” in cases where the
proposed Federal action. in the opinion
of the Secretary, would jeopardize the
continued existence of a listed species
or result in the destruction or adverse
modification of its citlcal habitat. The
1978 Amendments also added section
7(c ), requiring the preparation of
biological assessments in appropriate
instances. section 7(d) of the Act, also
added by the 1978 Amendments.
prohibits a Federal agency or any
involved permit or license applicant,
after initiation of consultation, from
making an i,rreversible or irretrievable
commitment of resources which would
foreclose the adpption of any reasonable
end prudent alternatives.
Perhaps the most significant pr ‘of
the 1978 Amendments was ihe t: ation
of the Endangered Species Committee,
which Is authorized to grant exemptions
from the requirements of section 7(o)(2)
in appropriate cases. Regulations
governing the submission of exemption
applications and consideration of such
applications by the Endangered Species
Committee are presently codified at 50
CFR Parts 450-453. Although this final
rule on consultation procedures does not
deal directly with exemptions, good
faith adherence to the consultation
requirements of section 7 is a statutory
prerequisite for entry into the exemption
process.
The 1979 Amendments slightly altered
the Federal agency’s subelantive
obligation tinder section 7(a)(2) from
insuring that its action “does not
jeopardize” listed species or adversely
modify the critical habitat of luch
speciea to insuring that its action “Is not
likely to jeopardize” such species or
critical habitat. Congress expressly
provided that the consultation and
resultant biological opinion be based
upon the “best scientific and
commercial data available,” These
changes made the consultation process
more flexible and established a
reasonable infor iation standard to be
followed by the N?i.ffS and FWS (the
“Service”) and other Federal agencies.
The ag7g Amendments added a
requirement that all Federal agencies
confer with the Secretary on all actions
that are likely to jeopardize the
continued existenceof proposed species
or result in the destruction or adverse
modification of proposed critical
habitat,
The 1982 Amendments also
established several new processes
under section 7. First, a new subsection
7(b)(4) allows for ‘he issuance of an
“Incidental take statement” along with a
biological opinion. This “Incidental take
statement” operates to exempt the
Federal agency and any permit or
license applicant involved from the
section 9 “taking” prohibitions under the
Act if the subseçuent implementatioi of
the action is consistent with the terms
and conditions of the incidental take
statement.
\SeCOfld. the 1982 Amendments
pthv de an opportunity for permit or
licenitepplicant involvement in all
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• F.i u l Raiist’ I VoL’9t No. 188 / Tuesday. June 3.1988 I Rules and Reg ilations
phase. of the sultatlon prvcedmes. A
prospective permit or license applicant
may request Federal .gecmes to mibste
ctinsuitabon in advance of filing for any
needed license or permit, if they have
reason to believe that their proposed
actions may affect listed ipeme. or
critical habitat This new provision.
under section 7(a)(3}. for “early
consultation” allows a prospective
applicant the opportimfty to diiwvtr.
and attempt to resolve potential
endangered or threatened spemes
conflicts early in the pinnn ng stage of
the proposed action—a time at which
alterations in project plans could
involve much lees expense and delay.
Further involvement of the applicant
in the consultation procedures is
provided by the requiremetit that the
applicant be involved in time
extensions. Congress s.mendëd section
7(c) to require the Federal agency to give
written notice to the applicant
explaining why any extension of the
biological assessment deadline is
needed. If formal consultation under
section 7(a)(2) is extended by the
Service and the Iedersl agency for up to
60 days, the Service must provide the
applicant with a written expLanation of
the reasons for extension. Any
extension past 00 days must be
approved by the applicant. Clearly, the
permit or license applicant plays an
active role in the consultation process.
The final rule recognizes this increased
role of the applicant while retAini1 g the
requirement that formal communications
flow between the Federal agency and
the Service during the consultation
process.
In order to.imple ênt these
Amendn it. to section 7 and to
otherwise improve the interagency
cooperation process, the Service
published a proposed rule ofifune s . ”
1983 (48 FR 29990-30004). Although (he
1 ei nall pecthed a 00-day
comment period for these revised
section 7 regulations, the comment
perrod was extended until September 30.
1983. The SerOice received
approximately 70 comments from other
Federal agencies. State governmental
agencies, private organizations. and
other individuals end entities on the
proposed rule.
After careful consideration of these
comments.,the Service has modified the
regulations to clarify the coneulta±ion
process and to improve the overall
orgaruzatlon of the regulations. These
technical changes are more fully
explained in the section-by-section
analysis below and were made to
accommodate concerns raised in the
publiccomments.
General
The majority of the comm ts
received on the proposed rule focused
on particular regulatory provisions or
concepts. These specific n nr ents ire
discussed in the section-by-section
analysis. However, several cominsateis
expressed general concerns with the
proposed nile or addressed mattea that
went beyond the scope of th. proposal.
These general ‘ enta ranged from
praise for the comprehensivaneu of the
proposhi to criticism for the proposal’s
alleged failure to require the level of
analysis and protection ,aA.ted by
the Act. The Service believes that this
‘final rul properly and accurately
implements the Amindinents to the Act
and affords the protection mandated by
section 7.
The House of Representatives
Committee on Merchant Marine and
FisheriM (“House Committee’l, which
oversees the implementation of the Act,
submitted comments on the proposed
rule. The Committee commended the
Service in its effort, to tianslate
complex legislation into agency policy
and noted specific areas that it bebeved
did not conform to the legislative intent.
These matters have been clarified In the
final n
One commenter was concerned that
the proposed rule confused the informal
(nonmandatory) consultation
components with the formal (required)
components of the consultation proces.
To clarify this matter, the Service has
distinguished optional procedures from
required procedures in the final rule. For
example. the conference procedure.
(*402.10) are required for Fed?ral
Uons that are ,likély to jeopardize
proposed species or proposed critical
habitat and the form onsultation
procedures (L402.14) are required for
octioni tha may affect j ated specie . or
critical habitat Additionally, biological
assessments (*402.12) are required for
“major consti’uctioa activities.” Early
consultation (* 402.11) and informal
consultation (*402.13) are optional
procedures and are clearly designated
as such in the final rule.
Concerned about increased
paperwork burdens and potential time
commitments resulting from the
proposal. one commenter complained
that the proposed rule is burdensome,
unnecessary, and unacceptable. The
commenter noted that additional
protection for hsted species or their
habitat would not result from these
alleged increases in a, 4 wn uirtrative
burdens, and it urged that cwrently used
processes be maintauied. The Service
emphasizes that the proposal was not
intended to increase in any way the
1gg27
paperwork bnrden of Federal agencies
or any other participant in the
consultation process. Moreover, the
purpose of the proposal was to
implement the Amendments to the Act
in such a way as to streamline the
consultation process while maintaining
the protections afforded species under
section 7. The concern of the co” -nter
has been addressed to the extent
possible by the Service’s effort to clarify
- the consultation proces. in this final
rule. Because section 7 Imposes certain
requirements on Federal agencies. any
burdens recognized in this final rule are
a creature of statutory law as
implemented by these regulations.
Two commenters asserted that the
Act protects habitat only when it is
designated as the critical habitat of a
listed spedas and, therefore, the Service
must identify areas of critical habitat for
all listed species to assure adequate
protection. It Is tme that the Service has
not designated critical habitat for all
listed species. The Service has
consistently taken the position that it is
not prudent to designate critical habitat
for a species if to do so would increase
the risk that the species might be taken
or would otherwise not betiefit the
species. See 50 ‘R 424.1.2(a). However,
the commentere ignore the fact that
section 7 protections attach to both
designated critical habitat and to each
individual of a listed species wnhin the.
Jurisdiction of the United States or an
the high seas. An action could
j opa dize the continued eoatance of a
listed species through the destruction or
adverse modification of itz habitat
regardless of whether that habitat has
been designated as “critical habitat”
Thus, the failure of the Service to
designate critical habititfor a given
species does not automatically mean
that its habitat is without protection.
Two States commented that Federal
agencies charged with implementing the
Act should recognize and cooperate
with the States in res lving water
resource issues within the context of.
section 7. Consistent with the
Department’s “good neighbor” policy.
one comnienter encouraged the Service
to actively include affected States in any
consultation process. The Service
Intends to cooperate with alJ State and
local agencies to resolve water resource
issues consistent with the requirements
of the Act. The Service stands ready to
receive any and all comments. data, or
other input from any affected States that
are interested in a particular section 7
consultation. However, consultation
takes place between the Service, the
Federal agency and. where appli able. a,
Federal permit or license applicant.
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19 28
Federel Register I Vol.51 . No. O6 / Tuesday, June 3. 1986 / Rules and Regulations
Several commenters stated that the
proposal goes beyond the scope of the
Act, thereby plactng unjustifiable
burdens on applicants and Federal
agencies. They claimed that the rules
would usurp Federal agency authority.
One commenter questioned the ultimate
authority of the Service to issue binding
procedural regulations under section 7.
In no way does the Service intend to use
the consultation procedures of section 7
to establish subst ntive policy for
Federal agencies. The Service performs
strictly an advisory function under
section 7 by consulting with other
Federal agencies to identify and help
resolve conflicts between listed species
and their critical habitat and proposed
actions. As part of its role, the Service
issues biological opinions to assist the
Federal age nEies in conforming their
proposed actions to the requirements of
section 7. However, the Federal agency
makes the ultimate decision as to
whether its proposed action will satisfy
the requirements of section 7(a)(2). The
Service recognizes that the Federal
agency has the primary responsibility
for implementing section 7 ’s substantive
command, and the final rule does not
usurp that function. The Service is
satisfied that the final rule is within the
scope of the authority’provided in the
Act.
Moreover, the Service is responsible
for interpreting section ‘and for
establishing a consultation process that
is both uniform and consistent with
statutory requirements. This issue was
addressed in the preamble to the 1978
rule:
The FWS and N?. ffS are authorized under
the Mt o issue such regulations as they
deem appropriate for the conservation of.
listed species. The two Services believ, that
these procedural regulationi.promoie the
conservation of listed species bp ‘
implementing a uwform 8eneral framework
5, the starting point for consultation. Once
the mandatory consultation has taken place.
however, the ultimate responsibility for
determining agency action In light of section
7 etill rests with the particular Federal agency
that was engaged in conSultation, in this
fastuon.’ standardized consultation process
is established which preserve, ultimate
agency administrative control over as
activities or programs.
43 FR 870. 871 (Jan. 4, 1978). These
procedural regulations do not dictate
results but prescribe a process by which
the Service wW consult in keeping with
the Act.
Several commenters stated that
Congress did not Intend that the Service
interpret or implement section 7. and
,believed that the Service should recast
the regulations as “nonbinding
guidelines” that would govert only the
Service’s role in consultation. The
Service notes that Congress reviewed’
with approval the section 7 regulations
issued on January 4. 1978. when
deliberating over the 1978 Amendments
to the Act. See H.R. Con!. Rep. No. 1804,
95th Cong., 2d Sess. 18(1978). Also, the
Service was urged bythe House
Committee, through its comments on the
proposed rule, to press forward with the
issuance of this final rule. The Service Is
satisfied’that It has ample authority and
legislative.mandate to issue this rule.
and believes that uniform con uJtation
standards nd procedures are necessary
to meet Its obligations under section 7.
However, the Service is aware that
some Federal programs may require a
modified consult tlon process, and
therefore the Seivicg ha. provided for
the issuance of counterpart regulations
under *402.04.
Several general comments.were
received regarding programmatic
adjustments and coordinetio . One•
conunenter suggested that the Seevice
maintain cumulative summaries of
consultation activities in the
Washington Office. The Service
maintains copies of all biological
opinions arid monitors the issuance of
biological opinions in an effort to ensure
consistency and accuracy of findings.
.The Service submits that current review
mechanisms are adequate and that,
although the maintenance of cumulative
consultation summaries might be useful,’
the increased cost a are not Justified.
Another commenter urged Increased
public partlcfpetion in the consuleatioa
process. including: (1) Public notice of
each request for consultation: (2) public
notice of the agenda for each
consultation; (3) public notice of
consultation results; (4) public comment
periods: and. (5) prescribed rights to
appeal by the public. Nothing in section
7 authorizes or requires the Service,to
pro nde for public involvement (other
than that of the applicant) in the
“interagency” consultation pro cess.
Moreover, due to the statutory time
constraints imposed on the consultation
procedures. it would not be practicable
to implement such detailed public
participation measures. Public
participation may be provided within
the Federal agency’s decisionxnakrng
process. However, that is a function of
the agency’s regulations or substantive
legislation and not an issue to be raised
in the context of consultation.
Finally, several questions were raised
as to what rules will apply to pendir
consultations once the final nile
becomes effective. The Service does not
anticipate any dramatic change in
procedure or additional burdens on
Federal agencies because the statutory
changes to section 7 have been in effect
throughout the development of the final
rule. When this rule becomes effective.
all pending and future consultations
must comply with the requirements of
these regulations. The Service will
cooperate with the Federal agencies and
any applicants to ensure that there are
no undue delays in ongoing
consultations.
Section-by-Section Analysis
The following portion of the preamble
explains the final nile. covering the
substantive issues of each section,
noteworthy modifications from the
proposed rule. sigiuficant changes from
the 1978 rule, and responses to public
comments. To assist the reader, Table I
presents a citation to each subsection of
the proposed rule with appropriate
crete-references to the loon ]Ofl of that
provision in the final rule and In the
1978 rule.
Ta.at.g 1.— oaa-flEca ENce O SECTION 7 REGui.ITONv PPoves.o.is PqO OSAI.—FIN*L—1970 RuU
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Federal Register I Vol. 51. No. 106 I Tuesday. June 3. 1988 / Rules and Regulation!
19929
1 ’Am.E 1.— css•RuemE .ca cc Scciiow 7 REGULaTORY P ovis o. a: PROc —Fursc , i.—t978 Rui.a—Contmu.
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SubCpart A—General
Section 402.01 Scope.
This section describes the purpose
and scope of these regulations Section
402.01 of the proposed rule contained an
introductory paragraph and five
subsections that were largely repetitive
of other sections of the rule. These
repetitive passages have been deLeted
from the final rule. and minor editorial
corrections have been made.
Several comnientere noted that.
although 1402.01 acknowledges the
language of section 7(a)(l) of the Act. 00
guidance is provided to enable Federal
agencies to meet their conservation
responsibilities under the Act. Claitrung
that the rules are silent as to Federal
agency management programs required
for the recovery of listed species. one
commenter advised the Service to add a
statement in the rule that would insure
that Federal agencies address recovery
as well
consultation. Accordir
conimenter, this stateme
a request that Federal agencies issue
polities and procedures to unplenient
their authority under section 7(a)(1).
The Service notes that it is beyond the
scope of these regulations to address
how other Federal agencies should
implement and exercise their authority
to carry out conservation programs for
listed species under section 7(a)(1).
However, the Service stands ready to
assist any Federal agency in developing
and carrying out conservation programs.
The Service cautions that all Federal
actions including “conservation
programs” are subject to the
consultation requirements of section
71a 112) if they “may afTect” listed species
or their critical habitats. If the Service
agrees. through informal consultation.
thst the action is not likely to adversely
affect the species, then formal
a itJ
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.h applicable permit tequirements to
the extent that such actions involve the
taking of listed species. “Take.” as
defined in the Act, means to harass.
harm. pursue. hunt, shoot, wound, kill.
nap. capture. or collect, or to attempt to
engage in any such conduct.
The 1978 rule extended the scope of
section 7 beyond’the territorial limits of
the United States to the high seas .rid
foreign countries. The proposed rule cut
back the scope of section 7 to the United
States. its temtorial sea. and the outer
continental shelf, because of the
apparent domestic orientation of the
consultation and exemption processes
resulting from the Amendments. and
because of the potential for interference
with the sovereignty of foreign nations.
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19930
Federal Register I Vol. 51. No. 106 I Tuesday. tune 3.19881 Rules and ReguIation
Several cominenters asserted that the
rules should continue to have
exti’atemtorial effect The scope of these
regulations has been enlarged to cover
Federal actions on the high seas but has
not been expanded to include foreign
counu’ies. The Service finds that.
because it already has jurisdiction under
section 9(a)(1)(C) of the Act to regulate
the taking of a listed fish or wildlife
species on the high seas by all persons
subject to the jurisdiction of the United
States. concomitant jurisdiction wider
section 7 is implicit from Congressional
concern that compliance with a section
7 incidental take statement not result in
a taking violation under section
9(a)(1)(C) as provided in section 71o)(2).
Although consultations on Federal
actions in foreign countries will not be
conducted under this rule. the Service
maintains its strong commi ent to the
preservation of species and habitat
worldwide. The Service will continue to
Lst species which are found outside of
L’njted States jurisdiction when they are
determined to be endangered or
threatened.
Furthermore. Congr.esst in the
International Environment Protection
Act of 1983. 22 U.S.C. 2151q. made a
finding that “the extinction of animal
and plant specie, is art irreparable loss
with potentially senous environmental
and economic consequences for
developing and developed countries
alike.” Accordingly. it places the
preservation of species “through
1 ‘nitations on the pollution of natural
ccosystems, and through the protection
of wildlife habitats” as an ‘important
objective of the United SLatu
development assistance.” In furtherance
of this policy, an Interagency Task Force
was stabliahcj to develop a national
strategy for the protection and
cortsvrva tion of biological diversity In
developing countries. The task force did
not specifically recommend that
international assistance activities be.
subject to co.isultation requirements, but
did cite section 7(aUz) in recommending
that Federal agencies “should continue
to adopt policies withholding support for
certain types of projects that degrade or
destroy fragile or protected lands.” Until
enacted by Congress. however, the
recommendations of the task forns will
not be implemented in these regulations
for the reason, stated above.
One commenter urged the Service to
change the sandard for itutiating a
section 7(a)(4) conference from “likely to.
jeopardize” to “would adversely aftect.
The regulation tradks the statute, aM
the Service lacks the authority to make
the requested change. The same
commenter noted that the se on 7(d)
sentence referred to a “would avoid
jeopardizing” standard. (Emphasis
theirs.) Again, the Service adopts the
regulation as ir. keeping with the
statutory standard.
Another c mmenter stated that
biological o inions need only be
required after,formal consultation under
sect’on 7(a)() of the Act and that this
sho. ,i be clarified in the rule. The
Service cisagrees because the’statute
requires that a “written statement”
containing the Secretaty’s opinion be
issued after the conclusion of both early
and formal cor.suitation. The rule has
been amended slightly td clarify, this
requirement.
The cothmenter also requested that
the sente ce in proposed § 402.01(d)
dealing with section 7(d) be amended by
adding ‘measures” after the phrase
“reastinable and prudent alternative(s)”
to bring the regulation in Line with the
statute, The Servi’ce declines to make
this change because ii would tend to
confuse “reasonable and prudent
alternatives” that are included in
jeopardy biological opinions with
“reasonable and prudent measures” that
are included in an incidental take
statement under section 7(b)(4J,, f the
Act. The proposed language describing
the section 7(d) pirohibition accurately
implements the Act and is adopted in
this final rule,
Section 402.02 Defin, ions.
This section sets out definitlona of
terms that are used, throughout these
regulations. As noted in Table 1. many
definition,, have been added to those
included in the 1978 rule. Only
comments which specifically addressed
the definitions used in these regulations
are discussed in this section. These
terms are further discussed as they
‘pertain to the consultation procedures in
the appropriate, subsequent sections.
A definition of “Act” has been added
to the final rule. It refers to the
Endangered Species Act of 1873. as
amended (18 U.S.C. 1531 et seq.).
The definition of “action” parallel, the
former definition of activitles or
programs,” a term that predated the
Amendments, Several changes have
been made in the definition of “action”
to accommodate public cummenta: First.
the definition Is expanded to cover
activities occurring on the high seas.
(See I 402.01 segment of thr?rea E1e,)
Second. the phrase “actions that are
intended to conserve listed sJecles or
their habitat” was restored from the
1978 rule because of the decision to
require Service review of all Federa}
actions ihat may affect listed spe e , o
their critical habitat. (See f 4 ,14
segment of the Preamble.) The Servies
declines to define further or to delete the
reference to actions that “indirectly
cause modifications to the land, water,
or air’ in this definition. The concept of
indirect effects is adequately addressed
in the discussion of “cumulative effects’
and “effects of the action.’
The definition of “action area” is
adopted from the proposed rule. Several
coinmenters criticized the vagueness or
apparent expansiveness caused by the
reference to indirect effects in this
definition. The definitions of
“cumulative effects” arid “effects of the
action” further clarify the scope of
“indirect effects.”
The Service is not able to define
specific spatial and temporal limits fur
the concept of indirect effects that
would satisfy every conceivable
situation, and believes that sufficient
understanding of the term exists so that
confusion will not occur. “Action area”
is not limited to the immediate area
involved in a Federal action.
“Applicant.” an abbreviated term
including all permit or license
applicants, was defined in the proposed
rule because of the increased role of
permit or license applicants in the
consultation process. Aithqugh the Act
defines “pernut or license applicant” in
section 3(12), the Act’s detuution is of
limited use in the consultation context
because it focuses on the exemption
process under section 7, The definition
in the proposed rule broadly defines
“applicant” as “any person who requires
formal approval or authorization from a
Federal agency as a prerequisite to
conduct the action.” Thus. applicants
would include those seeking permits.
licenses, leases, letters of authorization.
and any other form of authorization or
approval issued by a Federal agency as
a prerequisite for carrying out the
action.
One commenter suggested that the
definition of applicant be amended to
aLlow prospective permit applicant, to
participate in section 7 consultations
involving the promulgation of
regulations governing permit issuance,
The applicant (or prospective applicant)
is involved in the consultation process
as a result of a specific permit or license
application. The applicant may provide
input regarding its concerns In the
Federal agency’s rulemaking process
through the Administrative Proceaure
Act. 5 U.S.C. 551 et seq. Further. a
prospective apphcant could request
early consultation through the Federal
agencyunder 1402.11 of this rule on its
prospective application dw’ ng the
,courae of agency nulem aking. if it desire,
early notice of potantini conflicts and if
it meets the xequuemencs of these
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Federal Re z,ter Vol. 51. No. 106 I Tuesday. June 3. 1988 I Rule, and Re ulatiorte
19931
relations. Th would Involve
interaction with the Service, but it
would be limited in scope to the
prospective application for the permit at
issue, not a general consultation on the
pending rulemaking. In response to
another comment the Service takes the
position that it will not expand
“applicant” to indude thost seeking
funding from Federal agencies, unless
the request for funding is coupled th a
requirement that the person obtain
Federal approval or authorization as a
prerequisite for carrying out the action
Icr which funding is sought. Finally. one
commenter asked that the scope of the
definition be expanded to include
corporations, Federal agencies, and all
other legal entities. The Service believes
— that the use of the word “person” in the
definition satisfies the commenter’&
concern because of the broad definition
of that term in sectwn 3113) of the Act.
To clarify this point, the Service added a
reference to the Act’s definition of
“person’ in the definition of “applicant’
the final rule.
The definition of “biofogical
assessment” in the final rule, derived
from § 4O2.0 and 402.12(b)(4)(ii) of the
proposed rule. clarifies that the
assessment must include an evaluation
of potential impacts. One commenter
criticized the “vagueness” of the
deflni’ion of “biological assessment” in
the proposed rule: stating that it Was
unclear as to how a Federal agency
would determine which species or
critical habitat may be in the action area
and how the agency would evaluate
potential effects. The Service believes
that this definition is adequate and that
the prccess.one”tted format in 4O2.12 of
the regulations adequately explains the
scope ond pro.edure of the brological
-assessment sequirement
The proposed definition of “biological
opinion” has been adopted in these final
rules. A biological opinion is the
docurnept that states the Service’s
opinion as to whether or not the Federal
action is likely te jeopardize the
continued existence of listed species or
result in the destruction or adverse
modification of criticil habitat One
commenter suggested a third possible
conclusion for biological opinions:
“insufficient information to issue an
opirno’n.” The comnmenter argued that
such a conclusion would eliminate the
risk that the Service takes when issuing
an opinion based on arguably
inadequate data. The Service declines to
add this third option. The legislative
history of the Act is clear in requiring
the Service to make a decision on the
issue of lakei ’ jeopardy at the
conclusion of formal consultation. The
Service will not sidestep this obligation.
but instead wiU conclude either
“jeopardy” or “no jeopardy” based on
the best available data.
The definition of “conference” has
been adopted as proposed. One
comnmenter suggested that the
conference not include
recommendation,s to minimize or avoid
adverse effects since they are not
required by section 7(a)(4) of the Act.
The comnmenter believed that such
recommendations might result in legal
action if not adopted. The Service,
however, believes it has the
responsibility not only to identify
impacts but also to identify measures
that would reduce those impacts.
The definition of “conservation”
contained in the proposed rule was
derived from the Act’s definition in
section 3(3). One commenter,
characterizing the Services
interpretation of “conservation” as
opposing the purposes of the Act and
potentially encouraging the “further
decline’ of listed species. urged the
Service to adopt the strict language of
the statutory definition. The Services
definition in the proposed rule in no way
discouraged recovery. In fact the
proposed definition tracked the statute
except for its interpretation of “the point
at which Ihe measures provided
purel ant to this Act are no longer
necessary” ai being equivalent to “the
point at which (the species) may be
removed from the Lists ..,.“The
basic goal of the Act is to recover listed
species through conservation measures.
Bringing a.specie, to the point at ‘hich
the Act s protective measure’s are no
longer necessary ii the same ar bringing
the species to the point at which
delisung is appropriate. However, to
avoid any misunderstanding, the Service
has deleted the definition from the final
rule and will rely solely on the definition
contained in section 3(3) of the Act The
Service declines specifically to include
habitat modification (improvement or
restoration). “off-site mitigation.”
captive propagation. and speciel
reiptrodjction in the list of conservatioti
methods and procedures. as suggested
by certain commenters. Such activities
are already adequately provided fosin
the Act’s definition.
The term “conservation
recommendations” was introduced in
the proposed rule and explains the
Service’s role in helping agencies meet
their section 7(a)(1) respons bilities.
Several commenters feared that the
Ser ice would employ conservation,
recommendations to require Federal
agencies to reformulate their actions
that had received “no jeopardy”
S
biological opinions. This is not the
purpose of conservation
recommendations. They are nonbinding
suggestion, that a Federal agency may
elect to implement In its proposed
action. These recommendations should
be consistent with’ the general scope.
magnitude. and duration of a Federal
action that Is not likely to jeoparthze a
listed species or destroy or adversely
modify its critical habitaL The Service.
In answering the concerns noted above,
is satisfied that it has clarified its
position and that the regulatory
defluiition should not be deleted. The
Service has chosen to retain this
definition with limited, technical
changes because it believes that the
opportunity to provide conservation
• recommendations, including minor
desigu modifications. may minimize
possible adverse effects and may avoid
future section 7 conflicts for subsequent
‘Federal actions in the same action area.
One conimenter confuse
“conservation recommendations” with
“reasonable and prudent alternatives”
and believed that recommendations to
reduce adverse impacts would violate
section 7(a)(2), absent the granting of an
exemption. The obligation of Federal
agencies under section 7(a)(2) is to
insure that the actions they authorize.
fund, or carry out are not likely to
/eoparthze listed species or destroy or
adversely modify their critical habitat A
showing of “adverse effect” does not
necessarily violate section 7(aJ(2).
because the jeopardy standard is the
ultimate kmer through which Federal
agencies may not pass in conducting
their actions. “Reasonable and prudent
alternatives’ represent avenues of
fulfilling the action without violating the
jeopardy standard. “Conservation
recommendations” involve voluntary
measures that the Federal agency has
the discretion to undertake to avoid or
reduce adverse effects of a proposed
action that otherwise complies wnh the
provisions of section 7(a)(2J.
The definition of “consultation
process” has been deleted from the final
rule because it tended to confuse the
‘statutory r quirements and optional
processes and because it added little to
the public’s understanding of the
process. The definition in the proposed
rule could have led persons to believe
that early consultation and informal
consultation are required. sequential
st!ps of the overall consultation process.
As 4iscussed above, the only required
components of the consultation process
are a “conference” for proposed species.
a “formal consultation” for listed
species. and a biological assessment for
“major construction activities.”
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19932
F.d. ’ I Register / VoL 51. No. 106 / Tuesday. June 3. 1986 / Rules arid Regulations
The “critical habitat” definition Transportation failed tn consider the
contained In the proposed rule only effects to the eruiengered sandhill ciane
referred to those sections of 50 C ’R from future private development that
Parts 17 and 225 that contain the lists of would result from donsn’uction ol the
those areas so designated. The highway. The Service will consider the
mechanics of the designation process effecti to listed species from such future
are more properly considered under the. acti ities that are reasonably certain to
section 4 regulations (50 CFR Part 424). occur under,the analysis of “indirect
For purposes of determining whether effects.” The Servites approach will be
any of their actions is likely to desboy cons istent with Notional Wildlife
or adversely modify critical habitat, Fedezotion v. Coleman. and the Service
Federal agencies involved in sectIon 7 declines to narrow the scope of its
consultations r.- ‘d only be aware of r view (as requested by one commenter)
those areas that nave been designated in light of existing case law.
by the Service as critical habitat. Two Effects of the action also indude
commenters requested that a definition ect and indirect effects of actions that
of critical habitat be included in the are interre1á1 dor interdependent with
final rule. The Service notes that the the proposal under consideration.
requested definition is contained In the Interrelated actions are those that are
Act and need not be repeated here. part ot.a larger action and depend on
“Cumulative effects and “effects ol. the larger action for their justification;
the action” are defined In *402.02 of the interdependent actions are those that
final i gtdatidns. Under *402.l4(g)( J have no significant independent utility
and (4) of the final rule, the Service wlU apart from the action that is under
consider both the “effects of the actloe. ” consideration. As_noted by one
subject to cOnsultation and cumulathsp commen!er. ji ie’1 it for ” test should be
effects” of othe ectividee In : ui 1ä assess whether an activity is
determining whether the action is like} it u elated with’ or inlirdependent to
to jeopardize the continued existence & iii. proposed action. - -—
.a kited specie. or tesuit lii the- “Dne commenter urged the Service to
destruction or adverse modiffce oe of exclude Federal actions that have
critical habitat. completed consultation from the
In determining the “effects of the • environmental baseline unless it can be
action, the Dixectpr first will evaluate shown that the actions are reasonably
the status of the specie. or critical certain to occur. The Service declines to
habitat at issue. l’his will involve adopt this suggestion. In issuing its
consideration df the pr sent biological opinion on an action, the
‘erivirorunent in which the specie. or Service’s finding tinder section 7(a)(2)
critical habitat exists, as well as the entail, an assessment of the degree of
ei vironment that will exist when the impact that action will have on a listed
a ioti is completed. in terms of the species. Once evaluated, that degree of
totality of factors affecting the specie. impact Is factored into all future section
or critical habitat The evaluation will 7 consultations ‘conducted in the area.
serve as the ‘baseline for determining the ‘Thse impacts will continue to be
effects of the’acbon on the species or considered as part of the environmental
critical habitat The specific factors that Laseline unless the Service receives
form the envuonnienta! baseline are notice from the Federal agency that the
given in the definition of “effects of the proposed action will not be
action.” as requested by some implemented or tinless the biological
cpmmeriters. r’pinion on the proposed action is no
“Effects of the action” indude the longer valid because reinidation of
dL”ect and indirect effects of the action consultation Is required.
that is sub jec t to consultation. ‘ In response to one comment. the
“Indirect effects” are those that are Service notes that Federal actions that
caused by the action and are later in - have proceeded through early
time but are still reasonably certain to consultation and that have received “no
occur. They include the effects on listed jeopardy” preliminary biologicaL
species or critical habitat of future opinions should be factored Into the
activities that am induced by the action environmental baseline. These actona,
subject to consultation amid that occur to be eligible for early consultation. had
after that action is completed. in to be nouspeculative, feasible actions.
National Wildlife Fede,otion v and, because the preliminary biological
Coleman, 529 F.2d 359 (5th Cl i. 1976), the opinion can later be confirmed as a final
Court-of Appeals fbr the Fifth Circuit biological opinion, this initial review
found that Indirect effects” which can and conclusion by the Service must be
be expected to result must be considered in other section 7
considered under section 7 of the Ad. In consultations.
that case, the court enjoined completion ‘ Th. i “‘ ‘ “ ftvi i aies 3
of a highway because the Department of . .puidc.i
other projects and acuvines unMated to
th action under cons ta floe that the.
Service will consider in formulating its-
biological opinion on the subject acuoft
One commenter opposed the proposed
definition of cumulative effects by
arguing that the Act does not require an
analysis of cumulative effects In a
section 7 consultation. Citing section
7(c), the commenter noted that,
biological assessments may be limited
to an examination of effects of “such
action” on listed species. The
comnienter urged the Service to strike
cwnulabve effects analysis from this
rule because few Federal agencies have
the capability to recognize or assess
cumulative effects of State or private
actions contemporaneously with
conducting section 7 consultation.
According to the conimenter, the
Service, as the expert on current status
of listed species, should keep watch on
these State and private activities that
come on line in a particular action ares.
The Service responds that a Federal
agency, when evaluating the
environmental impacts of a proposed
action. must comply with !‘ 1 ’EPA. Since
this comp’uance includes an analysis of
cumulative effects, the Service believes
that it is the Federal agency’s
responsibility t develop this
information. The cumulative effects
analysis conducted in compliance with
the broad definition under NEPA may be
submitted to the Service by the Federal
agency when initiating formal
consultation. The Service can use
analysis and apply its narrower
definition of cumulative effects when..
analyxing whether. proposed action,.
along with cumulative effects. violaise
section 7 a)(2) of the Act..
Other commenters. while not opposing
the applicability of cumulative effects
analysis to section 7 consultations,
believed that the proposed scope of
“cumulative effects” and “effects of the
action” were too narrow. These
commenters generally suggested that
cumulative effects should include the
effects of all reasonably foreseeable
future FederaL State. and private
actions. They stated that, (its scope
would be more in line with that
mandated under NEPA arid argued that
any lesser review could detrimentally
affect endangered species. The
commenters adamantly opposed any
limitation on the foresight employed by
the Service or Federal agencies that the)
believed would result from the
proposal’s consuocbon of cwrs ’I tive
effects.
Sec 7 katjon w anlyza . 5
whether t1 ’effed. of the ac on
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Federal Resister I Vol. 51. No. 106 I Tuesday. Ji.rne 3. 1986 R 1es and Regu!ations
19933
‘ imu1atIvs effects of State andprivete
-actions wh cha awublycertiin to
• . occur m thes on e.rea, are likely to
• jeopardize iha 4nnnd nce of
— that species. R’ l this analysis. ha
7ederal agency detar”m . whether it
c m proceed wfthout exceeding the
eopardy s’ 4 ’t If the jeopardy
iandard is exceeded, the proposed
rederal action cannot proceed without
an exemption. This is a substantive
prohibition that applies to the Federal
action involved in the consultation. In
contrast, NEPA is procedural in nature.
rather than substantive which would
warrant a more expanded review of
cumulative effects. Otherwise, ma.
4iaitcnlar situation. the soperdy -
prohibition could operate to block
non jeopardy” sctions because future.
speculative effects occurring alter the
Federal action is over might. on a
cumulative basis, jeopardize a listed
species. Congress did not intend that
Federal actions be precluded by such
• speculativeactions.
Future Federal actions proposed for
the same area would have to be
separately evaluated under section 7
end could not occur uniess they were
able. in their own right, to avoid
jeopardizing the continued existence of
the affected species or destroying or
adversely modifying critical habitat.
Suice all future Federal actions will at
some point be subject to the section 7
consultation process pursuant to these
reguletions. their effects on a particular
species will be considered at that time
and will not be included in the
cumulative effects analysis. However.
those future State or private actions (i.e..
no Federal agency.invotvem nt) that are
“reasonably certain to occur’ rnust be
factored Into section 7(a)(2) evaluations.
The Service agrees that cumulative
4ffects that are repsanably certain to
- occur will be considered In deter’ithiing
the likelihood of jeopardy. The final rule
Is amended accordingly. tocj ll7 !1h
dn1yi ç nsidercumuJative effects.
One comñ eflter thought thiflhe
“reasonably certain to occur” standard
was far too narrow and that it should be
amended to cover actions where
proposals have been made. and
implementation schedules have been
established. This suggestidri would open
the door for speculative actions to be
factored into the “cumulative effects”
,analysis, adding needless complexity
into the consultation process and
threatening potential Federal actions
which pose minimal adverse impacts of
their own with possible “jeopardy’
opinion, due to speculative. State or
private projects that may never be
implemented. For Stats aadçelvat.
‘1 a labs asldamd In the,
liledve df. ti analysis, there meet
*x j or, thanamere possibility that
the acbon may proceed’On the other
hand. “reasonably certain to ocersr ,
does not mean that there is a guarantee
that an action wiB occi . The Federal
agency and the Service will consider the
cumulative effects of those actions that
.ore likely to occur, bearing In mind the
economic, .d,, Inl,trat1ve. or legal
hurdle’ which remain tdbe cleared. The
Service declines to alter its “cumulative
effects” definition to indude State or
private actions that are not likely to
occur.
One issue was raised concerning the
application of cumulative effects
analysis to water projects. A commentet’
contended thai State anLd private
projects that possess senior water rights.
under State water law and that can
“reasonably be expected to occur”
concurrently with the Federal action
should be considered at cumulatIve’
effects. The Service notes that any State
or private project (i.e., no Federal
agency Involvement) that Is reasonably
certain to occur must be considered
dwing the analysis of cumulative
effects; Further, the Service believes that
Federal actions, whether authorized,.
funded. or named out by Federal
agencies, that poises, senior water
rights should be considered while
analyzing the effects of the action. In
order to determine the effects of the
action when a water project is the
subject of consultation in a State which
follows the prior appropriation doctrine,
the pro ject s operation plan should
indicate the priority of the project’s
water rights under State law and
account for the future effects ,of senior
conditional water rights.
On a related matter, the Associate
Solicitor’s opinion on the scope of
cumulative effects cited in the proposed
rule provided, in pars that only those
eff_cts of other projects that are
.rea,onabl ’ certain to occur pnor to the
completion of the Federal action subject
to consultation under section 7(a)(2)
should be considered during formal
consultation. This statement haa been
interpreted by some to exclude from
cumulative effects analysis those future
State and private actions that, while
“reasQnably certain to occur.” would not
be completed before the completion of
•the Federal action subject to
consultation. Such an interpretation
places undue emphasis on the use of the
word “prior” while ignoring the central
concept that the Associate Solicitor’s
opuuonantended to projeci that a
proposed State or private activity be
“reasonably certain to occur” in order to
be taken into account during cumulative
Impact analyses. If such a State or
private project satisfies the “reasonable
certainty” test, then It should be
considered In the cumulative impact
analysis. even if It would go on line
sometime after completion of the
federally authorized. funded, or car ed
out project whiãh was the subject of
consultation. To the extent that the
Associate Solicitor’s opinion a’eated the
opposite impression, the Service takes
this opportunity to clarify this point.
Moreover, as suggested by some
commenters, and for the reasons
outlined above, the Service has deleted
Its reference to the Interior Deparonent
position on “cumulative effects” in 88
4.D. 903 (1981) In the definition section.
The Service disagrees with the
commenter who stated that the citation
to the legal opinion in the proposed
‘definition denied the public meaningful
comment on th’ese regulations The
policy was widely Imown, and it was
explained In the preamble to the
proposed rule. The Associate Solicitor’s
opution on “cumulative effects” Is
poblished in Interior Decisions. a
publication available to the general
public. Finally, the opinion does not
represent a policy change subject to
Adminisirative Procedure Act (APA)
informal rulemaking proceedings. It
represented Inteno;’s legal
interpretation of the scope of
“cumulative effects” under section 7,
adopted and published in 1981 in
keeping with APA requirements. 5
USC. 552(a). Therefore. no reproposal
Is needed on this issue.
The definition of “designated noo
Federal representative” is adopted from
the proposal in part Firsi. in resi P0’
a comment the SeMc’—
non-Fed ral represe’nt_,
,informal consuitatfonsi
prepare biological ii- -
( 402.12). However, -
cannot delegate their role in initial ng
formal consultation, a conference. or
early consultation. The second sentence
of the proposed definition baa been
deleted, but a new 402.08 ha. been
added to further explain the role of the
designated non-Federal representative.
The proposed definitions of
“destructioi or adverse modification”
and “jeopardize the continued existence
of” received a lot of attention from
commenters. Both definitions contained.
as did the 1978 rule, the phrase “survival
and recovery.” The final rule retains the
language of the proposed definitions,
except for the changes noted below,
Also connected with these terms is the
definition of “recovery.’ The “recovery”
of a listed species means that the status
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19934
Federal Register / Vol. 51. No. 106 I Tuesday. lune 3. 1 I Rules and Regulations
of the species has improved to the point
at which it may be removed from the
Lint, of Endangered and Threatened
Wildlife and Plants.
The principal controversy involving
the ‘jeopardy” and “destruction or
adverse modification” definitions was
that, under the proposed rule, to find
that an action is likely to jeopardize a
listed species or result In the destruction
or adverse modification of critical
habitat, the Service must identify
detrimental impacts to “both the
survival and recovery” of the listed
species. The conjunction “and” was
used in the 1978 rule’s definitions of
these phrases, but the word “both” was
added by the proposed rule t
emphasize that. exce’pt in exceptional
circumstances, injury to recovery alone
would not warrant the issuance of a
‘leopardy” biological opinion. The
Service adopts these definitions
substantially without change from the
proposed rule this does not reprepent a
change in policy, as one cornmenter
charged. because the Service has
internally interpreted the “jeopardy”
standard as requiring detrimental
impacts to the continued existence of a
species under a joint survival and
recovery concept. Other Federal
agencies are assured that the same
“jeopardy” standard under which their
acl :ons have been evaluated in the past
will be continued under this final rule.
Several comiuenters urged the Service
to strike the “and and insert “or” In the
definitions of “jeopardy” arid
“destruction or adverse modification.”
They argued that injury to recovery for
an already depleted species would
require the issuance of a jeopardy
opinion. They also remarked that the
Services posmon disregarded the
conservation requirements of the Act.
failed to adequately protect critical
habitat, operated to weaken or nullify
recovery efforts. and otherwise violated
the purposes and policies of the Act.
These commenters misconstrued the
Service’, role in conducting
consultations under section 7(a)(2) of the
Act. The purpose of consultation is to
identify conflicts between proposed
Federal actions and the “leopardy”
Itandard of section 71a)(2). The
“continued existence” of the specie. is
the key to the jeopardy standard.
placing an emphasis on injury tos
‘species’ survival. However. significant
impairment of recovery effort . or other
adverse effect, which rise to the level of
‘jeopardizing” the continized
existence” of a listed species can also
be the bali, for issuing a “jeopardy”
opinion. The Service acknowledge. that.
in many cases the extreme threats
faced by some listed species will make
the difference between injury to
“survival” and to “recovery” virtually
zero.
One comnmenter d.isegreed that actions
adversely affecting survival of a species
will also always adversely affect its
recovery. The commenter did not cite
examples where an action that
jeopardized “survival” of a species
would not jeopardize iti “recovery.” The
Service is not aware of any examples
and believes that it would be very
difficult to recover a species whose
survival had been placed In jeopardy.
The very coácept of “jeopardy” is that a
Federal agency should not authorize?
fund, or carry out an action that would
injure a listed species’ chances for
survival to the point that recovery is not
attainable, If survival is jeopardized.
recovery is also jeopardized, As noted
above, though. these concepts ale
generally considered together in
analycing effects, and it is difficult to
draw clear-cut distinctions.
The concept of “survival” is discussed
above, but is not defined in the Act or in
these regulations. Two comunienters felt
that “survival” should be defined in the
regulations. and one urged the Service to
,adopt the following specific deflmtion
“Survival” for a species means retention of
a sufficient number of individuals and/or
population.s with necessary habitat to insure
that the specie. will keep it. integrity in the
face of genetic recombination and known
environmental fluctuations.
The Service agrees with the aiteria
set out in the above definition. but
decline. to adopt a regulatory definition
for “survival” because this concept
varies widely among listed species. The
Service will apply the statutory
standard of jeopardy to the continued
existence of a species on a case-by’case
basis. taking into account the particulaz
need. of and the seventy and
immediacy of threats posed to a listed
species. The Service Is not atten.ptulg to
predetermine the results of any future
consultattona by announcing these
interpretation . of the “jeopardy”
standard, but instead Is einphasimng
what “jeopardy” 1. and how it should be
applied in the section 7(a)(23 process.
One commenter urged the Service to
go further and forbid any Federal action
to proceed. regardless of a “no
jeopardy” finding, lI the proposed action
would adversely a1 ect the recozeiy of a
listed specie.. Numerous enters
cited sections 2 c)(1), 3(3), and 7(aXl) of
the Act as authority for the Service to
ban Federal agency actions that “violate
the requirement to conserve endangered
5—
The commenters misinterpret the
statutory changes which the
Amendments have made to sction 7,
and they misconstrue court decisior.,
which have noted the apparent
‘heightened” responsibility of the
Secretary. The Service will undertake
pro a.ms for the conservation of listed
species and will consult with other
Federal agencies attempting to do the
same. The Service will not. nor does it
have the authority to, mandate how or
when other Federal agencies are to
implement their responsibilities under
section 7(a)(l), nor is the Service
authorized to issue a biological opinion
under section 7 (a)(1) of the Act. Section
7(a)(1) bass Limited purpose under the’ 1(t*’)()
Act: to authorize Federal agencies to
factor endangered species conservation
into their planning processes. regardless
of other statutory directives.
In contrast. section 7(a)(Z) contains
the mandatory “jeopardy” standard. The
prohibitory features of section 7, and the
exemption process added by the 1978
Amendments, focus on the provisions of
section 7(a)(2). Although there is no
express legislative history directly
weighing and comparing the relative
strengths of section 7(a)(J with 7(a)(2),
there can be no doubt that Congress
considered the jeopardy standard of
section 7(a)(2) as being the substantive
cornerstone of section 7:
The term “ii likely to jeopardize’ is used
because the fundaaiezic& obligation of
- secuon 7(a) of the act Is that Federal agencies
insure theIr scuons do not jeopardize the
continued existence of an’endangei ’ed or
threatened species.
S. Rep. No. 151,96th Cong.. 1sf Sess. 4
(1979) (emphasis added). Congress
intended that the “jeopardy” standard
be the ultimate barrier past which
Federal actions may not proceed. absent
the issuance of an exemption. The
commenters’ argument would require
Federal actions to halt if they failed to
conserve listed species, a result clearly
not intended by Congress. Congress
intended that actions that do net violate
section 7(a)(2), or actions receiving an
exemption from the requirements of that
subsection, be allowed to proceed.
Commenters argued that it would be a
violation of section lta)(1) for the
Service to issue a “no jeopardy”
blol gica3 opinion for. a prop sed
Federal action that would have an.. .
adverse effect on the reeov ry of rUsted
species. A. previously stated. the
Service lacks authority to issue
biological opinions under that
subsedtion, and the Act does not
mandate particular actions to be taken
by Federal agencies to implement
7(s)(1). Furthermore. adverse effects not
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Faders! R. ,ster I Vol. 51, No. 106 I Tuesday lune 3. 1986.1 Rules and Regulations
19935
rising to the level of “jeopardizing the
cont,.nued existence” of a listed species
cannot be the basis for issuing a
jeopardy opinion.
The Service disputes two commenters’
assertions that tha Service now
propose. to allow the ‘continued
existence’ of a listed .peciu to reach a
state of likely jeopardy.” The Service
has followed and will continue to follow
the policy of strictly applying the
jeopardy standax of section 7(8)12) In
the consultation pioe u . The Service
ha. not and will not relax the statutory
standard.
One cc enter stated that limiting
the definition of “destruction or adverse
modification” to acal habitat Is
illogical. This limitation Is mandated by
the sthct language of section 7(a)(2) and
cannot be aiiered by the Service,
although habitat destruction can be the
basis for a jeopardy opinion In
appropriate cases.
Another commenter requested that
example. be given of actions that might
indirectly alter aitical habitat. The
Service responds with the following
example . of Iadireu alteration of
critical habitat (which is not intended as
an exclusive list): ground water pumping
that oecurs on land adjacent to the
critical habitat srea. but nevertheless
dIn inishes essential ground water levels
within the critical habltat a ir pollution
created by an action not occurring
directly on the critical habitat area that
causes a detorioraticu of essential air
quality levels in the critical habitat
contamination of water supply within
the autical habitat caused by release of
toxic substances outside of the attica!.
habitat arda; etc.
In the definition of leoVardize the
continued existence ot,” one commente’
suggested the word “could” be
substituted for “would” In the phrase
“would be expected, directly or
indirectly, to reduce appreciably the
likelihood of,. . the survival and
recovery of listed specie.. . . . Such a
change would be an unwarranted
deviation from the language of the 1978
rule In light of subsequent Amendments
to the Act. The Service retains the
substance of the proposed language, but
does delete the phrase “or otherwise
adversely affecting the .pemas”
because .’u several omnmentars
suggested. the phrase is confusing and
adds nothing to the definition.
In response to several comments, the
Service baa modified the definition of’
“recovery” to make it clear that
recovery is o,t attained until the threats
to the species as analyzed under secuon
4(a)(1) of the Act have been removed,
The protective measures provided for
listed species under the Act are no
longer needed if endangered or
threatened status i no longer applicable
to a species under section 4(a)(1).
The definition of “Director” has been
modified by the addition of the phrase
“or his authorized representative” alter
“the FWS regional director” and
“Assistant &ib thii .W, for Fisheries”
to acc” odate present and future
delegations of authority to carry out
certain consultation responsibilities.
Although the Minerals Management
Service requested that all Outer
Continental Shelf (OCS) s.ction’7
biological opinions issued by, the FWS
be signed by the W .hington O ce. the
authority o sign such opinions will
remain with the regional offices because
they have been staffed specifically to
conduct all interagency consultationi
and to sign the resulting blolpgical -
opinions.
The term “early consultatio&’was
included in the proposed ride pursuant
to the provisions of section 7(a)(3). This
section authorizel the Service to consult
with Federal agencies at the request of
prospective applicants, prWr to the
submission of the permit or license
application to that Federal agency. The
definition has been modified to
reference the appropriate section of the
Act.
One commenter requested that.
Instead of using the term “early
consultation,” the Service refer to this
proceu as “consultation on behalf of
prospective applicants.” The
was concerned that, by calling this pre-
application process “early
consultation,” the Service would fafl to
alert Federal agencies and applicants of
the need to determine Impacts to
endangered or threatened species early
in the p1 nnii g stages of all of then’
actions. regardless of whether the
consultation Is early, Informal, or
formal. The Service retains the label
“early consultation” due to its
convenience. Its frequent use in the
committee reports on the 1982
Amendments, aqd its common
acceptance within and outside the
Service. The Service believes that the
language provided In 1402.14(a),
advising Federal agencies to review
their actions at the earliest possible
time. provides aaequate safeguards to
address the commenters’ concerns.
The definition of “Federal agency”
has been deleted since fl Is defined In
sectIon 3(7) of the Act. The Service
declines to expand the statutory’
definition to accommodate one
comnienter’s concern. The statutory
àeflnition adequately provides notice
that all departments. agencies. and
Instrumentalities of the United State.
come within the scope of section?, The
Service will not laiterpret this term
further in the final rule.
The definition of “formal
consultation” has been modified to
specify that It I. the consultation
required under section 7(a)(2) of the Act.
Other minor, technical change. have
also been made. The phrase “after it has
been determined. throegh Informal
consultation with the Service, that Its
action may adversely affect listed
specie. or critical habitat” has been
deleted from the proposed definition
because, as recommended by same
commenters, Informal consultation Is
strictly an optional process. Although
the Federal agency may elect to enter
Into informal consultation to determine
if formal consultation is required. the
Federal agency can initiate formal
consultation any time that it determines
Its action may affect listed specie, or
autical habitat.
“Further diecussioti” was an optional
process included in the proposed rule. It
provided the Federal agency and any
applicant the opportunity to continue
consultation after the issuance of a
biological opinion in order to discuss
with the Service any reasonable and
prudent alternatives and any
conservation rewwwendations.
Recommendations and alternatives
could be refined or developed during
these discussions, and consultation
would terminate with the Federal
agency’s written notice of Its final
decision on the action. Because of
concerns expressed by commenters. this
provision contained In proposed 4O2.16’
has been deleted from the final rule.
Although several comxnenters
supported this provision. many opposed
further discussion contending that It is
unnecessary, that all reviews and
discussions should occur prior to the
issuance of the biological opinion. that it
extends consultation beyond the
statutory time limits, and that It lacks
statutory authority. Although the
process was optional, some conamenters
believed that there was an Implication
that the Federal agency or applicant
would have a duty to engage in further
discussion..
Although further discussion has been
deleted, the Service is available to
discuss the biological opinion. any
reasonable and prudent alternatives,
and any conservation recommendations
with the Federal agency and any
applicant on an informal basis. If
revisions to the opinion are necessary,
copsultation can be rainitiated and a
revised opinion issued, -
“Incidental take” has been darifled in
the final rule as those takes that result
from, but are not the purpose of.
0
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19938
Federal Register I Vol. 51. No. 106 I Tuesday. June 3. 1986 I Rules and Regulations
carrying out an otherwise lawful activity
conducted by the Federal agency or the
applicant As requested by one
cominenter, the Service explair that
otherwise lawful activities are those
actions that meet all State and Federal
legal requirement. except for the
prohibition against taking In section 9 of
the Act The Service believes that the
definition, as clarified in the final rule. Is
adequate.
The definition of “Informal
consultation” has been clarified In the
final rule to indicate that 1t4 an
optional process that includes all
discussions, correspondence. etc..
between the Service. Federal agency,
and designated non-Federal
representative prior to formal
cori.sultation. To address one
com ent r’s concerns. “if required” has
been included after “formal
consultation” to clarify that formal
consultation is not always required after
informal consultation. Through Informal
consultation. a Federal agency may
determine that formal consultation is not
requited.
The definition of “listed species” is
adopted as proposed. Contrary to the
concern of one commenter. aquatic
invertebrates are not excluded from this
definition, because all listed species in
50 CFR 17.11—17.12 are specifically
included.
The definition of “major r.or’struction
activity” was included In the definition
of biological assessment in the proposed
rule and is adopted substantially as -
proposed. As suggested by many
commenters. it ha. been made a
separate definition. Whether a Federal
action is a ma jot construction activity,
as defined in these-rejulations. Is the
standard used for determining whether a
Federal agency must prepare a
biological assessment A “mefor
construction activity” Is defined as a
construction project (or other
undertaking having similar phyiical
impacts) that Is a major Federal action
eagruflciintly affecting the quality of the
human environment for purposes of.
NU A. The term encompasses dams,
bwldu*gs. pipelines, roads, water
resource developments. cha tnel
improvements, and other such
undertakings which significantly modify
the physical environment.
A vast array of comments were
received concerning the scope of.
major construction activity that requires
the preparation of. biological
assessment, Several commenters noted
that only major Federal actions
requiring the preparation of an
°environmental Lmpact statement (ElS)
pursuant to NEPA shouldeequire the
preparation of a biological assessment
under section 7(c) of the Act. øther
commenters argued that assessments
can only be required for major Federal
actions Involving construction activities.
and suggested that the phrase ‘or other
undertakings having similar physical
Impacts” be eliminated from the
definition. Four commenters thought that
,the standard In the proposed rule was
too narrow, because the limitation to
major Federal actions. and/or the
limitation to construction project. and
other undertakings having similar
physical impacts, were arbitrary and
without legal basis. The Service has
adopted the definition of major -
construction activity as proposed for the
reasons set out below.
The legislative history of section 7(c)
of the Act plainly focused the
mandatory duty to prepare biological
assessment. on “major Federal actions
designed primarily to result In the
building or erection of dams. buildings,
pipelines and the like.” H.R. Con!. Rep.
No. 697. supra. The two-pronged
regulatory test adopted In this rule—
major Federal action and construction
project (or other undertaking having
similar physical impacts)—clearly
tracks the quoted language from the
Conference Report to the 1979
Amendments. The Service will not
require biological assessment. for
projects that are not mator Federal
actions for purposes oi NEPA. Furthen
the Service will not require biological
assessment. for actions that do not
Involve construction or activities having
pbyqical Impacts similar to construction.
such as dredging, blasting. etc. This
limitation derives support from the 1979
Conference Report reference to actions
designed primarily to result In the
building or erection of various projects.
These other “potentially destructive
activities,” HR. Rep. No. 1825. supra.
having physical Impacts similar to
construction project... will require the
preparation of an assessment, but only if
they are major Federal actions for -
purposes of NEPA.
The Service declines to limit the scope
of the definition of a major construction
activity to major Federal actions
I volvlng construction projects. because
other potentially destructive activities
that are major Federal actions may have
similar physical impacts and should bi
included. The Service Is confident that
the ce-nets will be able to apply this
standard consistent with the Act and the
legislative history.
Contrary to the belief of one’ , -
commenter, the Service has not
abrogated It. authority under section
7(c). That commenter urged the Service
to change this -rule by requiring’
biological assessments “for actions that,
taking into consideration cumulative
effects, may be potentI lly
destructive.’ “ Citing a February 1980
legal opinion issued by the Assistant
Solicitor for Fish and Wildlife,
Depe ent of the Interior, the
cornmeriter noted that cumulative effect.
may trigger the requirement that an
assessment be prepaze4 although the
Service must de.fer to the Federal
sgency’s decision on whether n major
Federal action exists. Contending that
Congress would have used the word
“shall” Instead of “may” In the last
sentence of section 7(dlll) If it had
intended that assessment. be required
only for major Federal actions for
purposes of NEPA. the comenter’
argued that the definition of ‘major
construction activity” should be
expendedi
“Major Construction actvity’ means any
planned. temporary, or permanent physical
modification to the. environment. Examples of
ruch projects include but are not Lim ited to.
dredging. drilling. Wling.’mlning. site
preparation, road construction, the erectiqe
of structures such as dam. and buildings. or
any other potentially destructiveactivities.
The commenter’s suggested language
goes well,beyond the above-cited
legislative history of the Act which
clearly limited the biological’aseesement
recturement to major Federal actions
within the,meaning of NEPA that are
construction projects or that jnvolve
similar physical impacts. Further, the
legal opinion of the Assistant Solicitor
cited by the comnientez dqes not support
the commenter s argument because that
opinion dealt with cumulative effects of
a proposed construction project and a
basic rule of NEPA case law that
cumulative Impahis of an action can
trigger the raquir ’medt that an EIS be
prepared. Thus, the basic elements of
ihis rule’s requirements—major Federal
action (e.g.. EIS, or the functional
equivalent. mquired) and construction
project (or activity involving similar
physical Impact .)—were assumed to be
appropriate standards by the Assiatant
Soli tor. The use of the word “may”
Insteed of “shall ’ In section 7(c) means
nothing more than Cqngzes.ional intent
that the duty to coordinata these rqview
prqcesses Is discretionary with the’
Federal agency.
As requested by one commentei’. the-
final definition clearly states that an
action must be both a major Federal
action for purposes of NEPA and.
construction pro ject (or other activity
Involving similar impacts). Therefore. it
plainly follows that, although dams.
pipelines. etc. are construction
activities. a biological assessment is not
)
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Fsdal Re istet / Vol. 51, No. 106.1 Tuesday, Inn. 3. 1986 I Rule. and Regulations
19937
required unless the action is also a
map Federal action.
Two commenters argued thu OCS
leasing. exploration, and development!
production actwiues should be exempt
from the section 7(c) requneinent
because such an analysis is presently
covered by N ’A cotnpliance ’aa
addressed in the Outer Continental
Shelf Lands ACL Other commenters
agreed with the Service that biological
assessments would be required for
development/production activities on
the OCS. and. generally, would not be
required for leasing and exploration
activities that do not involve a
significant modification of the physical
environment. The Service adopts its
position as proposed. because no
exemption exists under section 7(c) if a
biological assessment is required for an
action. In some instances, OCS
exploration activities may require the
preparation of a biological assesameilt:
e.g. major Federal action involving
exploration through construction of
artificial gravel islands. However, in
most cases major Federal exploration
activities on the OCS will involve the
drilling of test wells, actions that wiLl
not require the preparation of
assessments.
The definition of “preliminary
biological opinion” is adopted as
proposed.
The deflrution of “proposed critical
habitat” Is adopted as proposed with the
addition of the phrase “or revised” after
“designs led?’ The comnienter that
suggested this cOrrection accurately
noted that proposal. may be made to
designate or revise critical habitat under.,
section 4 of the Act.
The definition of “proposed specie.”
is adopted as proposed.
“Reasonable and prudent
aliern&bves” is defined in the final rule.
Section 7(b) of the Act requires the
Service to include reasonable and,
prudent alternatives. if any, in a
“jeopardy” biologicai opinion. An
alternative is considered reasonable and
prUdent only if It can be implemented by
the Fgderal agency and any a phcant in
a manner consistent with the intended
purpose of the action, and If the Diiictor’
believes it would avoid ih 1Ikj i}iood of
jeopardizing the continued existence of
listed species or resulting in the
destruction Or adverse modification of
critical habitat of such specie.. Further.
the ServIce should be mindful of the
limits of a Federal agencys jurisdiction
and authonty when prescribing a
reasonable and prudent alternative. An
lternauve. to be reasonable and
prudent, should be Loimula ted in such a
way that it can be implemented by a
Federal agency consistent with the
s pe of its legal suthanty and
jurisdiction. Howe,er. the Service notes
that a Federal agency’s responsibility
under section 7 a)(2) permeates the full
range of discretionary authority held by
that agency i.e.. the Service can specify
a reasonable and prudent alternative
that involves the maximum exercise of
Federal agency authority when to do so
is necessary, in the opinion of the
Service, to avoid jeopardy. The Service
recogn ei that economic and
- te hnologicalfeuiibilii i 1antors to
be used in developing reasonable and
prudent aliernatrves, as requested by
one commenter. The definition of
“reasonable and prudent alternatives”
has been amended to reflect these
considerations. If there areo
alternatiyc that meet the definition of
“reasonable and prudent alternatives.”
the Service will issue,. “jeopardy”
biological opinion without alternatives,
Two commernara. stated that
reasonable and prudent alternatives
‘should include-mitigation measures
designed to reduce adverse effects. i.e ,
conservation recommendations. One of
those cemmanters urged the Service to
limit the scope of recommended
alternatives to those “consistent with
the scope, magnitudeS and duration of
the propect as well as the extant of its
advers effects.” First, because there is
a distinction between “reasonable and
prudent alternatives’ (that satisfy
section.-7(a)(2)) arid “conservation
recommendations’ (that are authorized
by section 7(a)(lfl, the Service declines
to include conservation measures within
the scope of the definition. Second. ’the
Service agrees that reasonable and
prudent alternatives should be
consistent with the intended purpose of
the action and ahot4d therEfore be
economically and technologically
feasible, but the Service cannot Limit its ’
range of choices to the a’iter,a suggested
by the commenter. Reasonable and
prudent alternatives must cover the full
gamiWof design changes that are
economically and technologically
feasible for an action. independent of
who is sponsoring the action. -
Two commenters asked that
“reasonable and prudent measures” be
defined. and the Service has insehed a
definition in the final rule. This addition
darifles the distinction between
“reasonable and prudent alternatives”
included i i a “jeopardy” biolarcal
opinion and “reasonable and prudent
measures’ provided in an incidental
tak ’i tement The Service agrees with
several commenters that reasonable and
prudent measures are not the same as
reasonable and prudent alternatives.
Sobstantlal damp end routing
changes—appropriate only for
alternatives to avoid leopardv—ai’e
inappropnate in the context of
rncidental take statement, because the
action already complies with sectioi’
7(a)(2). The commenter that advocated
an “alternatives’ approach for
reasonable and prudent measures
misapplied the legislative history of the
1982 Amendments. Reasonable and
prudent neuwes wme intended to
minimize the level of bicndenial taking.
but Congress also intended that the
action go forward essentially as
planned. Therefore, the Service believes
that they should be minor changes that
do not alter the basic design. location,
duration. or timing of the action. The
section 7 obligations of Federal agencies
are not expanded by the application of
reasonable and prudent measures.
which strictly govern the scope of the
section 9 exemption for incidental
t—.
The definition of “Service” is adopted
as proposed.
Section 4 .O3 Appli bility.
This section. which explains the
applicability of section 7. implicitly
covers Federal activities within the
territorial jurisdiction of the United
States and upon the high seas as a result
of the definition of “action” in §402.02.
The explanation for the scope of the
term “action” is provided in the
discussion under §402.01 above:
Section 402.04 Counterpofl
Regulations.
The Service has retained the
counterpart regulations section of the
1978 ruie as the new §402.04 that
authorizes the drafting of joint
counterpart regulations by federal
agencies and the Se.-vice. “These
counterpart regulations would allow
individual Federal agencies to fine tune’
the genera’ consultation framework to
reflect their particular program
responsibilities and obligations.” 43 FR
870. 871 Uan. 4. 197B).
Counterpart regulations must be
published first as proposed rules with a
minimum 80 .day public comment period.
Such counterpart regulations must .retain
the overall degree of protection afforded
listed species required by the Act and
these regulations. Changes in the
general consultation process must be
designed to enhance its efficiency
without eliminating uitlmate Federal
agency responsibility for compliance
with section 7. As long as ‘the general
consultation process is used as a
starting point. Federal agencies can
anticipate little’dsfflculty in securing
approval of the Service for counterpart
regulations.
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19938
Federal Register I Vol. 51. No. 106 / Tuesday. June 3. 1988 I Rules and Regulations
One Federal agency commented that
the counterpart regulation process is a
time-consuming alternative. The Service
admits that informal rulemaking takes
t:rne and effort, but believes that the
fine tuning” that could occur through
the development of counterpart
regulations might. in the long run.
provide a solid reI rn in time and
r,esources saved LI’.. :ugh the use of a
more compatible consultation
procedure.
Section 402.05 Emergencies.
Section 402.05 provides a modified
consultation procedure for the Service to
respond to emergency situations. This
pro ision applies to situations involving
acts of God, casualties, disasters.
national defense or security emergencies
(added to the rule in.response to p’blic
cgmmertts). etc.
Upon request by the Federal agex cy.
the Service may carry Out consuitabon
through procedures other than those
provided under the regulations. as
long as such einer ;y procedures are
consistent with sec..ons 7(aHd) of the
Act. This allows, for example.
consultation through informal means
(eg. a telephone call) and. therefore.
rap:d responses to emergency situations.
Several commenters suggested that
specific procedures should be set out to
provide guidar ce to Federal agencies
facing emergency situations. One
commenter suggested that consultation
could be initiated informally, such as
throu2h a ‘ephone caU. and the Service
could then communicate its information
and recommendations over the
telephone. Because of the severe time
constraints inherent in an emergency.
this informal approach is the method the
Service anticipates will be used by a
Federal agen y to conduct a
consultation for a bone tide emergency.
One cornmenter felt that minimum
requirements should include
“documentation of the nature of the
emergency and lustification for an
expedited consultation.’ The Service
agrees and has required. in a new
paragraph (b) to this section. that the
nature of the emergency and the
justification for using an expedited
process be documented and forwarded
to the Service. However, the Service has
not required that this be done during the
emergency or expedited consultation. as
this may not alway. be possible. The
- new paragraph (b) requires that the
Federal Sgency conduct an “after the
fact” consultation. The Service will
‘evaluate the information submitted by
the Federal agency. ,e.. the nature of the
emergency actions, uatification for the
expedited consultation. and an
evaluation of the impacts to listed
species and critical habitat, and issue a
biological opinion including the
information and recommendations given,
during the emergency consultation. This
will serve not only to document fully the
consultation. but may assist the Federal
agency in responding to similar
emergencies.
One comnienter argued that. when
dealing with a fire. flood, earthquake. or
storm, there is not enough time or
opportunity for a Federal agency to
undertake consultation through an
alternate process determined by the
Director to be - naistent with section 7
The Service ‘s that the utmost.
flexibility is .. ded to handle the most
extreme emergencies and believes that
the informal process outlined in this
section would satisfy the corninenter’s
concern for the availability of prompt
consultation and decisionmaking in
emergency situations.
The Service further recognizes that it
is sometimes necessary to take
immediate steps to contain. limit, or
alleviate an emergency in order to
protect health. safety. and welfare prior
to initiaiin any form of consultation.
However, the Service would like to
stress thelact that its early involvement
is important in order to take advantage
of its expertise in minimizing the effects
of emergency response activities on
endan. ed and threatened species.
Federa. .lgencies must exercise
discretion when responding to an
emergency as to when to consult with
the Service. This will depend on the
nature of the emergency and the actions
that ate immediately required. The
Federal agency should contact the
Service as soon as practicable. keeping
in mind the informal nSture of
emergency consultation and Service
expertise in minimizing the impacts of
emergency response activibee on
endangered and threatened species.
Section 402.1$ Coordination with
Other Eiwzroninento! Reviews,.’
This section on coordination with
other environmental reviews contains
paragraphs (a) and (b) of 1402.10 and
paragraph (c) of §402.17 of the pr’ posed
nile. The substance of these paragraphs
has been adopted. but the format has
been altered.
“hese regulations. following the 1978
n.e. allo i Federal agencies to
coordinz their consultation.
confers. and biological assessment
responsiowties under the Act with the
agency’s responsibilities under other
statutes such as NEPA (42 U.S.C. 4321 et
seq.) or the Fish and Wildlife
Coordination Act (FWCA. 16 U.S.C 881
el seq.). The Servi encourages Federal
agencies to coordinate thesó
responsibilities, but believes it is
preferable to allow Federal agencies to
do so in a manner that best conforms to
their particular actions and which they
believe is most efficient. Therefore, the
sentences in the proposed §402.10(b)
stating that biological assessments
should be incorpbra ted into the
documents required by other statutes’
(such as NEPA) have been drnpped from
the final rule.
Several commertters applauded these -
paragraphs because the coordination of
environmental reviews would reduce
duplication of paperwork and save time.
One comn’ienter requested guidance on
how a NEPA review of endangere4
species issues should be conducted. The
Service is not in a pqsition tq prov de
criteria that will ensure adequate NEPA
compliance on endangered species
issues. The Service suggests that the
commenter contact the Council on
Environmental Quality, the agency in
charge of NEPA compliance, to obtain
such information.
A,nother’coinmenter expressed
concern that. in simplifying the
consultation process. safeguards should
be used to avoid potential abuse and
substantive problems. The cominenter
feared that, without .safeguasds. l’.’EPA
compliance might b construed as being
less necessary on endangered species
matters. The Service i’s also concerned
that it retain sufficient review capability
to identify potential conflicts between
proposed Federal actions and listed
species. Therefore. it has slightly altered
its consujtation procedures in this final
rule to ensure that all Federal actions
that “may affect” listed species receive
some degree of review under informal or
formal consultation.
The concluding sentences of
paragraph (a) etiiphasize that although.
for example. a biological assessment
can be incorporated into an EIS. the
procedures of these regulations also
post be satisfied to enawe adequate
and timely analyses di ring the section 7
consultation process. These sentences’
also express the intent of the Service to
avoid a fragmented analysis of
environmental con -ins through the
Service’s direct efk.’ts to provide a
coordinated review. The Service
declines to delete these sentences as
requested by several commentere.
Under paragraph (b), the Service
agrees with a comment that the
‘biological opinion shouhi beitated in
the final environmental impact
statemept or environmental assessment.
A statement of the opinion may be a
summary of Its findings and conclusidns.
contrary to the fear of one commenter
that the entire opinion must be rep a ted
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Federal Regisler / Vol. 1. No. 106 / Tuesday. June 3. 1986 / Rules and Regulations
in the text of the NEPA document. The
Service does feel that the ent te opinion
should be attached as an ex.hibit to the
NEPA document if completion tune
permits.
Section 402.07 Designation of Lead
ASency
This section. which govern. the
deat.gnauon of a lead agency, is adopted
front §402.10(d) of the proposed rule.
One commenter reque5ted that the
section be amended so that only the
lead agency is required to notify the
Director that it will be conducting
consultation on behalf of rtaelf and all
other cooperating agencies. The Service
has adopted this suggestion.
Section 40208 Desrgnotjen of Non-
Feo emI Represe.’ü.oIive
A new 402.O8 has been added to the
final rule to c’aiif%’ the role of the
desi na ed non-Federal representative
and as derivcd from § § 402.02 and -
402 2 (a) and (b)(5) of the proposed rule.
Because the designated non-Federal
rcprescntati e may or may riot’be the
applicant., there is a diffe’rence in the
role the representative can play in the
const ltation. If the representative is not -
the applicant, the inforfnanon-g’athering
functions, through informal consultation
( 4O2 3) andlor through the preparation
of a biological assessment (*402.12). is
the full extent of its participation.
However, if the representative is an
applicant, its role ifl consultation is two-
fold. As the representative. it may
conduct the inforrnatioru athenng -
functions identified above ’as the
applicant, it may continue its
participation into formal consultation.
If an applicant is involved and does
not desire to be the designated non-
Federa’ representative, the Federal
agency and the applicant must agree on
the party to be designated. The Director
shall be notified, in wr:ting. ifs non-
Fed rai entity has been designated to
represent the Federal agency for the
informs I consultation or biological
assessment procedures. -
One coinmenter stated that prior
notice to the Director of the designation
of a non-Federal representative is
unnecessary. The Service disagrees
bec5use there is a legitimate need for it
•to be certain of the Federal agency’s -
concurrence in the representation.
.However, the Service notes that there is
a degree of flexibility here: ,e..
• ‘4esignation in advance for a continuous
action or for a group of related actions is
acceptable. In response to one comment.
- the Service agrees that the designated
non-Federal representative may only
submit a species hat under the brological
assessment procedures ( 402.12) if the
Federal agency has. previously to or
simultaneously with this notice.
provided its written designation to the
Director.
Another commenter questioned the
Services authority to conduct informal
consultations with non-Federal
representatives in place of the Federal
agencies. The Service acknowledges
that the Federal agency must retain the
responsibility to initiate formal
consultation along with Its ultimate
responsibility to ensure that Its actions
are not likely to jeopardize hated
species, but the designation of a
representative by the Federal agezicy.to
conduct informal consultation does not
lessen these responsibilities or eliminate
the Feleral agency’s duty to review iLs
actions. Instead, the designation of a
representative allows the Federal
‘‘agency to coordinate all of its
environmental reviews, thereby saving
time and resou1r es 10 obtain a single.
comprehensive analysis of the action
and its potential impacts. The agency
Thust still review the work product and
Independently reach its own conclusions
and decisions. The representative does
the ground work (data compilation and
synthesis): the Frderal agency canpot
delegate its duty to review. analyze. and
Iorñially consult. . -
Concerned that a conflict of interest
could exist if ap plicants were allowed to
be designated as non-Fe ’deral
representatives. one comnienter cited 40
CFR 1506.5(c) (NEPA regulation) as
authority for eliminating applicants from
the field of polential representaüves.
The Service declines to make the
suggested change for the following
reason. Section 7(c)(23 itself recognize.
that exemption applicants (including
permit or license applicant.) may
prepare biological assessments in
cooperation with the Service and under
the supervision of the Federal agency.
This express statulory opportunity for
“interested partjes”.(as applicants
would always be) to prepare biological
assessments runs counter to the NEPA
rule and shows the clear Congressional
intent in fa or of full applicant
involvement in the section 7 process.-
Although applicants may fill the role of
non-Federal representatives, the
ultimate responsibility for compliance
with section 7 remains with the Federal
agency. In response to one commenter.
the regulations have’been changed to
eliminate the requirement that the
Federal agency “participate in the
preparation” of the biological
assessment. The Service believes that
the Federal agency may fulfill ,ts
responsibilities by providing guidance
and super.’ision. and by independently
reviewing and evaluating the work
19939
product of the applicant, Responsibility
for carrying out negotiations with the
Service may not be delegated to the
applicant/representative, as suggested
by this commerner. In addition, Federal
agencies cannot delegate their role in
initiating formal consultation.
conference. or early consultation.
Section 4 C Irreversible and
Irretrievable Commitment of Resources,
Section 7(d) of the Act provides that.
after initiation of consultation requ1red
under section 7(a)(2). the Federal agency
and any applicant shall make no
u-reversible or irretrievable commitment’
of resources with respect to the Federal
action which has the effect of
foredosing the formuletion or -
implementation of any reasonable and
prudent alternatives that would avoid
violation of section 7(a)(2). This
prohibition does not apply lq actions
affecting proposed species or proposed
critical.habitat. This m ndetory
restriction on commitment of re ources
is set out in §402.09 of the flits! rule
(formerly § 402.11 of the proposal) In
response to comments. the language of’
the proposed rule w s corrected to
conform moreclosely to section
Another comnuenter requested that the
sentence dealing with secuon 7(d) be
amended by adding “measures after
the phrase ‘reasonable and prudent
elternative(sl” to bring the regule ion in
line with the statute. The Service
declines to make this change because it
would tend to confuse ‘reasonable and
prudent alternatives” that are included
in jeopardy biological opinions with
“reasonable and prudent measures that
are included in an incidental take
statement under’section 7(b)(4).of the
Act. Theiproposed language describing
the section 7(d) prohibition accurately
implements the Act and us adopted in
this final rule.
The proposed rule addressed the
duration of the section 7(d) prohibition
as follows:
This requuement exists until a ‘no
Jeopard)’ biological opinion is issued b) the
Service.. . the Federal agency adopts
reasonsole and prudent alternatives, or an
exemption is granted under section 7l.i)
Proposed rule. 48 FR 29990. 30000 (June
29. 1983). proposed to be codified a: 50
CTR 40211. Several comnienters asked
for e clarification or expansion of these
crutena that terminate section 7(d)
restrictions Noting that the Act is silent
as to wh n the section 7(d) prohibition
ceases. one commenter contended that
the prohibition should end when
consultation is terminated. Another
commenter. concerned that the proposed
language.would depnv Federal -
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.19940
Federal R. isler / Vol. 51, No. 106 f Tuesday, June 3. 1966 I Ru!es and Rë ulations
agencies of the responsibihty and
authority to determine compliance with
section 7(a)(2), urged the .idd.ition of a
fourth criterion that would terminate the
section 7(d) prohibition if “the Federal
agency determines that its proposed
action will not jeopardize the continued
existence of endangered and threatened
species or adversely affect critical
habitat” Another commenter went
further and urged the Service to adopt
other criteria where Federal agency
compliance with section 7ja)(2) would
renlove the section 7(d) restricnon. Two
other commentet, felt that the second
criterion—.edoptiori of reasonable and
prudent alternatives—must be restricted
to those recommended by the Service.
‘They opposed allowing the Federal
agency to formulate its own “reasonable
and prudent alternatives” without
Service approval in order to avoid the
prohibition of section 7(d).
The commenters raise valid concern.,
that illustrate the need to reexamine the
duration of the pronibition against the
irreversible and irretrievable
coqimiunent of resources. First, the
Service recognizes that. although its
biological opinions issued by authority
of section 7(b) are entitled to great
deference, the ultimate decision of
whether to proceed with an action in
light of section 7 responsibilities rests
with the Federal agency. The proposed
language did preempt Federal agency
discretion by placing an agency that
disagreed with the conclusion of the
Service’s biological opinion in the
awkward position of facing section 7(d)
restrictions on its action, even though it
had determined through its own analysis.
that the section 7(a)(2J standards were
satisfied. Second. case law indicates
that section 71d)’s proscriptive force
continues while Federal agency efforts
to conform its action to the requirements
of section 71a)(21 are “ongoing:’ See
North Slope Borough v. Andru.,, 642 F.Zd
589. 6 11 n.143 (DC Cit. 198OJ
Conservation Law FoundatFon of New
England. Inc. v. Ax?dnjs. 623 F.Zd 712.
714 n.1 (1 51 Cit. 1979). The final rule has
been amended to provide that the
section 7(d) prohibition is In force during
consultation and continues until the
requirements of se uon 7(a)(2) are
satisfied.
Therefore, if a Federal agency
receives a “no jeopardy” biological
opinion from the Service or choose . any
reasonable and prudent alternative
recommended by the Service, the
requirements of section 7teXZ) ate met
and the section 71d) prohibition expire,.
if the Federal agency disagrees with a
jeopardy biological opinion or choose,
an alternative not provided by the
Service based on its own analysis, then
the validity of the Federal agency’s “no
jeopardy” finding will dectde whether
section 7(a)(2) has been satisfied and
whether section 7(d) rio longer a plies. lf
it is later determined that the finding is
not valid, the Federal agency would be
taking the risk of non mpliante with
the Act.
Finally, one commenter asked that
this section be amended to require
Federal agencies to give written notice
to the Service verifying that neither it’
nor any applicant involved has made
any irreversible or irretrievable
commite’ient of resources during
consultation. The Act does not’provide
such authority, except arguably In the
exemption process. A mandatory
section 7(d) notice h s not been adopted
in this final rule regarding consultation
procedures because section 7(d) is
strictly prohibitory th nature and not
consultative.
Subpart B—Consultation Prdcadurss
There are five primary components
within the section 7 consultation
procedures—conference. early
consultation, biological assessment.
informal consultation, and formal
consultation. Of these. only conference.
formal consultation, and biological
assessments maybe required. Although
a Federal agency may elect to use
several of these procedures, they do not
represent a mandatory. sequential
process. As requested by one
commenter. the following is a brief
ahstz’a of each component of the
consultation process.
If a Fideral agency determines that its
action is likely to jeopardize the
continued existence of any proposed
species or reselt In the destruction or
adverse modification of proposed
critical habitat. the Federal agency is
required to “confer” with the Service
under §402.10. The purpose of a
conference Is to identify a id resolve
potential conflict, between an action
and proposed specie. or critical habitat.
The Service will make advisory
recommendations on ways to minimize
or avoid adverse effects. If the proposed
species or proposed critical habitat is
subsequently listed or designated.
respectively, then the Federal agency
must consider whether formal
consultation under 1402.14 Is required,
“Early consultation” I s an optional
procesilliiT may be requested through
the Federal agency by a prosliective
applicant to determine whether its
proposed action is likely to jeopardize
the continued existence of a listed
specie, or result In the destruction or
adverse modification of critical habitat.
Early consultation occun’s prior to a
formal application for a Eederal permi;’
or license. Such early consultation is
conducted between the Service and the
Fed’eral agency \n cooperation with the
prospective applicant. At the request of
the prpspective ap’plicant. early
consultation is initiated by the Federal
agency responsible for issuing the
permit or license and is generally
conducted and concluded in tha.manner
prescribed for “formal consultation.’ If
the action is a “major construction
activity,” the biological assessment
requirement of §402.12 must be satisfied
before early consultation is initiated.
After concluding early consultation, the
Service will deli tr its preliminary
biological opinion to the Federal..agenc)
and the prospective applicant.
After formal application is made for
the permit or license but before its
issuance, the Federal agency should
submit to the Service a written request
that the preliminary b:ological opinion
be confirmed as a final biological
opinion under section 7(a)(2). If the
Service determines that no significant
changes have occurred in either the
proposed action or the information
a’vailable since early cor.sultatioo. no
new impacts are anticipated, and no
new species have been listed or critical
habitat designated since early
consultation, it will confirm that the
preliminary biological opinion remains
accurate and shall be treated as a final
biological opinion issued under section
7(b) of the Act Consultation will
terminate in accordance with §402.14(1).
However, if the Service is unable to
confirm the preliminary bialogical
opinion due to any of the reasons
outlined in §402.11. formal consultation
‘on that action must be initiated under
§402.14, . .
“BIological assessment” requirements
apply to all major construction activitier
as defined in these regulations. Even if
not required. Federal agencies may
voluntarily prepare a biological
assessment to assist them in fulfiHing
their section 7 ‘responsibilities. Also, any
person who wishes to apply for an
exemption may voluntarily prepare such
an assessment in cooperation with the
Service and under the supervision of the
appropriate Federal agency.
A biological assessment contains
information concerning listed or
proposed species or designated or
proposed critical habitat that may be-
present in the action area and an
evaluation of aliy potential effects of the
action on such species and habitat A
biological assessment should be used in
determining whether formal
consultation or a conference is required.
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19942
Federal Register / vol. 51. No. 1O / Tuesday. June 3,1988 I Rules and Regulations
conference. and that they receive a copy
of the conclusions documented by the
Service.
Mother conimenter asked that time
limits be established for the conference
process. The Service declines to
establish time limits for the conference
requirement. The timing of the section
7(afl4) process is. in part, dictated by the
progress of the proposed nileniaking to
list a species or to designate critical
habitat. Regardless of any time limit..
that the Service could establish, the
conference requirement expires and
consultation is required if the listing or
critical habitat designation becomes
final. The Service finds no reason to
impose rigid time frames for
conference..
Paragraph (c) defines the nature and
content of the conference. Basically, a
“conference” involves informal
discussions on the identification and
possible avoidance or muzumizatioe of
potential adverse effects to proposed
species or proposed critical habitat frwn
a Federal action. The reference to
“Informal discussions” should not be
confused with “informal conswtation,
which is a distinct, but optional,
component of consultation.
The Service declines to modify
paragraph (c) by changing “advisory”
recomniendationrto “conservation”
recommendations, as suggested. Such a
change may confuse conference with
formal consultation, the required
procedure in which discretionary
‘conservation recommendatiotis” may
be given. The Service also d clines to
adopt saggested provisions that would
(1) require ad isory recommendations to
be made in every conlerence. (2) force
th Service to notify the Federal agency
of the date on which a final decision will
be made on a listing proposal. or (3)
require the Service to initiate emergency
rulemaking proceedings to list a species
or designate critical habitat if the
Federal ection is likely to jeopardize the
species. Although reqwxed. conference
is an inkrmal process that has no
substantive force. To force every
conference into a regimented sti’uctuze
would be counterproductive and
contrary to the intent of the Act. When
appropriate, the Service will make
advisory recommendations on ways to
avoid or adverse effects to
proposed species or proposed critical
habitat. During the conference. the
Service will apprise the Federal agency
of the progress of the listing or criticaL
habitat proposal and vill attempt to
notify the Federal agency when the
listing or cntit i habitat proposal
becomes final. Emergency rula ’i .k4iig is
provided for under section 4(b)(7) of i
Act and will be used if apprupnate’
tinner Lb. circumstances.
One comm,nter su e.ted that the
conference involve all of th steps qf
formal consultation, but. on an informal
basis so that if the listing becomes final.
the conclusions and recommendation,
derived from the conference could be
adopted as a final biological opinion. In
some cases, a thorough. well’ repa.red
conference might eluadate sufficient
conclusions and recommendations to
serve as the biological opinion, upon the
final listing of a species. While section
7(a)(4) does not require Federal agencies
to follow the section 7(a)(2) proceasfor
proposed species or proposed critical
habitat, or specifically provide for the
conversion of conference “conclusions
and recommendations” into a final
biological opinion (In contrast to explicit
authority under section 7(b)(3)(B) for the
con.xa,sian of preliminary biological
opinions intofinal biological opinions),
such a procedth is available to the
Federal agency and the Se rca In
appropriate instances.
If the information neceesai’y to
conduct a formal consultation is
available at theconference stage. and if
a formal procedure is deemed
appropriate by both the Federal agency
and the Service, the confekence may be
conducted through a procedure
equivalent to formal consultatioru the
results, oropinron derived froma
“formal” conference may be adopted en
‘the biological opinion when the
proposed listing or designation is
completed, It should be noted that the
conference conclusions md -
recoinxnexfdatjons would only be
adopted as the biological opinion in
those instances where no new data are
developed, including thaideveloped
during the rulemaking p s on the
proposed bating or de signauon of
critical habitat. and no changes to the
Federal action are made which would
alter the content of that opinion. By
providing proceduzen which allow for a
‘ore extensive conference that may
later be’adopted as the biological
opinion, the Service doe . not intend
expand upon the requirements of aectiou
7(a)(4). Ra ier, this procedure san
option available to the Federal agency
and the Service to help avoid conflicts
and expedite consultation if the
proposed soecie. or aitical habitat is
listed or de geated. Therefore. a new
paragraph 1 .) is added to this final nile
to aowledge the availability of a
“formal” conference procedure,
Paraçaph (e) of I4OLID discusses the
documentation of the malts of th.
conference. If the acnoa involve. only
proposed specie. or proposed criticaL
habitat, a cepy,of the recommendations
will be forwarded by the Service to the
Federal agency and any applicant. 11 an
action also invoivee formal consultation
onlisted species or critical habitat. the
Service will provide the
rècpmnmendabons on proposed species
or proposed iucal bdbitat with the
biological opinion. As requested by
some commenters. the final rule has
been clarified to state that the
conclusions of a conferen’ ill be
provided with the biologic. opinion
rather than made art integral part of
(“consolidated in”) the opinion. The
Service does riot intend that the
informal nature of the conference be
changed or that any of the requirements
of formal consultation under section 7
be imposed on Federal agencies with
respect to proposed species or proposed
critical habitats unless the Federal
agency specifically requests a more
formal procedure. Early initiation of
thesq discussions increases the chances
of resolution of potential conflicts.
Secuon 402,7 1 Early Consultation,
The 1982 Amendments added a
provision to the consultation process
(section.7(a)(3)J designed to identify and
to minimize, early in the planning stage
of an action. potential conflicts between
the action and listed species. These
early consultation provisions authorize
tfie’Serv ice to consult with Federal
agencies at the reqi cs: of arid in
cooperation with prospective applicants
regarding the impact of proposed
actions on listed species or critical
habitat. These provisions are
incorporated into the ftnal regulations in
.* 402.11 (*402.14 of the proposed rifle).
The intent of this provision fs’to involve
the Service arid State and local planning
and conservation ent;ties in the planning
stages of actions. The Service believes
that early consultation will be helpful in
establishing a mechanism for early
resolution of potential conflicts,
Congress did not intend that this
pro r1sion be used to authorize
consultation for speculative or remote
actions but rather only on acuoris which
are likely to occur. The regulations
require prospective applicants to
provide eufficient information describing
th pro)ect. It. location. the scope of
activities associated with it. and the
anticipated impacts to listed species to
enable the Federal agency and the
Service to conduct meaningful early
consultations.
The opportunity for an early
consultation sliculd expedite the
permitting and other regulatory
processe. associated with acnoos
requiring Federal authorizations.
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Federal Register I Vol. 51. No. 106 I Tuesday. June 3. 1986 I Rule. and Regulations
19943
Contrary to the nterpretation of one
commenter. early consultation is not a
required process, but rather is an
optional step that a prospective
applicant can take to factor in section 7
considerations during the irutial
planning stage. Although early
consultation contains most of the
features of formal consultation, the
Service declines to adopt the suggestion
to place the’eariy consultation.
provisions within the fo,rmal
consultation section as a “special case.”
Early consuhation, unlike formel, is not
required and occurs before any
application for a permit or license is
filed, whereas formal consultation is a
post-application process when
applicants are involved. These
diffe ’ences are significant and merit the
separation of these distinct processes
into separate sections. However,
becausq cf the extensive similarities in
th ,e procedures for early and formal
consultat:ori, the final rule has been
substantially modified in format to
reference appropriate paragraphs in
§402.14 (formal consultation) to avoid
repetition of these commom features.
Although this has greatly shortened the
early consultation section. the
requirements and procedures have not
been altered substantively.
One nommenter was confused over
the parameters of early consultation and
informal consultation (§4O2.13 lnforuial
consultation is a post-application
process. as is formal consuJtation: early
consultation is a pre-applicauon
process. There is no overlap. Designated
non-Federal representatives can carry
out informal consultation, and they can
also carry out tlo biological assessment
process if an assessment is required
during the eary consultation. Although
only Federal agencies conduct early
consul atian directly with the Service.
non-Federal representatives may
continue to plry a role in the datd-
gathering function of consultation.
Several commenters believed that
proposed §402.14 took away the
prospective applicant’s right to request
early consultation and to make the
initial determination of poss;ble impacts
to listed species or critical habitat. The
proposed ruie preserved the prospective
applicant’s nght to request early
consultation but provided the Federal
agency with the responsibility For
determining impacts tG listed species or
critical habitat. In response to
comments, the final rule has been
rearranged to clarify the primary role of
the applicant in making the initial
determination and request to the
Federal agency. However, the
applicant’s rights under section 7(a)(3) of
the Act are not unqualified, and the
ultimate burden i on the applicant to
meet certain threshold criteria.
Paragraph (a) of §402,11 utlines the
purpose of early consultation and is
adopted substantially as proposed in
§402.14(b) and the first sentence of
§402.14(c). The legislative history is
clear that the prospective applicant must
be involved to the greatest extent
practicable in every aspect of the early
consultation process. Hit. Con!. Rep.
No.835.97th Cong., 2d Sess. 28(1982).
One commenter expressed concern that
it may not be possible to have the
applicant involved in every meeting and
telephone call between the Federal
agency and the Service. Therefore,
acknowledging the practical limitations
on involving the applicant in all
consultation contacts (but still
recognizing the need for continuous
comm inication with the applicant), the
second sentence of paragraph (a) now
reads that the prospective applicant
should be involved “throughout”
(instead of “in every aspect of’) the
consultation process.
Paragraph (b) of § 402.11 sets out the
threshold conditions that must be
satisfied before early consultation can
be irutiated and is derived from
proposed §402.14 1c). As suggested by
one commenter, the prospective
applicant. request for early
consultation should be made in writing
to the Federal agency.
The “may adversely affect” threshold
for initiating early consultation has been
expanded to “may affect.” This action
was taken because the more restrictive
standard unnecessarily limited access to
this early review procedure. especially
since at the early planning stage of an
action the exact nature of a possible
effect could be difficult to define,
Section 402.14(c) of the proposal
established that the Federal agency
ensure that the following conditions be
met prior to initiation of early
consultation:
(1) there must be a definitive proposal
outlining the action and its effect
(2) it must be shown that the action’ls
technologically. administratively, and
legally feasible:
(3) ft must be shown that the applicant
possesses adequate economic resources
to conduct the action and
(4) it must be shown that the applicant
possesses some property interest in the
proposed site on which th.e action will
occur.
Numerous cumnients were-received
on these criteria. Three commentere
urged the Service to strike all four
conditions because of their
unreasonableness and the Service’s lack
of authority to impose them on
applicants. Other commenters criticized
conditions (2) and (3) due to their
ambiguity. Contending that enforcement
of these conditions would preclude early
consultation in many cases, the
commenters noted that the information
needed to meet these conditions i cot
available at the time that early
consultation is most useful. The
commenters also attacked condition (4),
regarding the need to show an
ownership interest in land, because
early consultation would normally occur
prior to the selection pf an exact
location for the project. Two
commenters stated that conditions (1)
and (2) are adequate ‘for screhning
serious actions: One commenter
suggested that only two criteria be
addressed in determining eligibility for
early consultatio scope of the project.
and possible effects on listed species.
The Service was given explicit
authority in section 7(a)(3) of the Act to
issue guidelines that would prevent
speculative or undefined actions from
triggering early consultation.
The Committee expects that the Secretjr’
will exclude from such early consultation
those actions which are remote or speculative
in nature end to uiclude,only those actI rta
which the applicant can demonsti’ate are
Ldtely to occur . . . ,The Committee further
expects that the gwdeltnes viii require the
prospective applicant to provide sufficient
information describing the prolect, its
location. arid the scope of,activities
associated with it to enable the Secretary to
carry Out 5 meaningful consultation.
H.R. Rep. No. 567. 97th Cong. 2d Sesa.
25(1982).
The final rule retains proposed
condition (1) that requires the nature
and effect of a.prospective action to be
defined. Without adequate information,
early consultation would be
meaningless. Proposed condition (2) has
been modified in the final rule to require
that the prospective applicant certify
that it intends to implement its proposal,
if authorized. This will prevent highly
speculative actions from entering early
corisultation The Service believes that
these two conditions are reasonable and
will allow Federal agencies and the
S’ervice to focus their attention on
concrete, feasible actions through
mearuAgful. early consultations.
Proposed conditions (3) and (4)
described above have been deleted. The
Service agrees that these conditions
went beyond the normal pre.application
information.gatheruig practices of
Federal agencies and that they might
have discoutaged early consultations
unnecessarily.
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FedeialRegiM&/ VoL 51. No. 106 / Tuesday. June 3. 1988 I Rules and Regulations
Paragraph (c) of 1 102.11 ii adopted adopted. there 18 no need to require a
from proposed *402.14(a) and the written notice that consultation has
introductory paragraph of proposed been concluded. u requested by one
*402.14(d). This paragraph governs commenter.
initiation of early consultation by the Proposed *402.14(1) concerned
Federal agency if the prospective requests by the Service for additional
applicant complies with paragraph Fb I. data. and did not require the addition of
Paragraph (d} of *402.1; governs the a written notice procedure for obtaining
procedures for conducting early an extension. This is now required. as
consultation. To eliminate unnecessary requested by one commenter. by
regulatory language, this paragraph incorporating the formal consultation
cross.references the items in *402.14(c)- . .fequireinents.
(j), since the generaFcoitsultation Proposed * 402.14(f) recognized that
requirements are the same as for formal the Services responsibilities during
consultation. The proposed rule early consultation are the same as those
repeated these requiremsttts in *402.14 that exist dining formal consultation.
(d) through (I). The final rule retains ‘ his provision by
One comnienter argued that the reference. The Service is opposed to
Service exceeded iti authorit3lin limiting the scope of its analysis of
proposed paragraph (d)(3) by telling impacts during early consultation, and it
Federal agencies how to meet their is aLso .opposedto limiting the free flow
responsibilities by requiring Federal of communication among it. the Federal
agencies to involve the s plicant in the agency. and the applicant. Therefore.
data.gathering function. Jthough thi, is the comment suggesting that draft
not Included in the final rule. the Federal ‘p inary biological opinions not be
agency has an underlying responsibility released to the Federal agency or the
!o involve the appliCant in every aspect’ prospebtive applicant is rejected. This is
of the early consultation to the extent ‘ not an issue that can be dealt with on an
possible. Moreover, the applicant may ad hoc basis 1 depending on the program
be the primary source of data used in experience with particular agencies or
the consultation. regiphe..The policy behind early
If the action is a major coas uction consultation i3 clear: full involvement of
activity, then a biological assessment , all pérliers, including the prospective
must be pi epared in accordance with applicant. td identify and elinunate
*402.12 before the request for early conflicts at the earliest possible stage of
consultation is submitted. as as required a project. -
for formal consultation. This is a change Paragraph (e) of I 402.11 provides that
from proposed §40 .12(bfll0). which the co’ntents and conclusions of a
made the biological assessment optional preliminary biological opinion are the
during early consultation. The Service same as for a biological opinion issued
agrees with the comment that. for major after formal consultation n *402.14(i ).
construction activities, a meaningful One commentar stated that biological
early consultation must include the opuuons need only be issued after
preparation of a biological assessment formal consultation under section 7(a)(2)
because the preliminary biological of the Act and that this should be
opinion issued. after early consultalicn clarified in the rule. The Sesvtce
may be confirmed as the final biological disagrees because a “written statement
opinion. Therefore, if early onns iltation containing the Secretary’s opinion is
is requested for a major construction required to be given after the conclusion
activity, the Federal agenc must of both early and formaLconsultation.
complete e blological.assessmeni under However, there is an important
I 402.1.2 prior to submitting its request difference in these two type. of
for early consultation. . opinions. the former has no
The time limits and extension Independent, operative significance.
provisions for formal consultation are while the latter states the Service’s
incorporated by reference as the “final” judgment on the impact. of an
requirements for early consultation. action. The preliminary biological
Several commenters felt that the opinion. issued after the conchision of
“mutually agreed upon” language of the early consultation. has on operative
proposal (I 40L14(e)I was too loose and force until it Is later confirmed by the
that definitive time limit, were needed. ‘Service under section 7(b)(3)tB) of the
The Service agrees and baa adepted the Act, just before the icoon is to be t k ui
time limits for formal consultation to One commenter said that it is
apply to early consultation u’well. The Inappropriate to include an incidental
Service notes that. for major take statement with a preliminary
constructicu activities, the time period biological opinion. The Service believes.
will not begin to rim until the biological - that input on Incidental take is euenual
assessment wider *402.12 is conipleted., to adequately assist the applicant in
Because time deadlines have been - . pl*niu’rig tg II would be unfair to
force the applicant to wait until the time
for qonfirmanon of the preliminary
biological opinion to receive its first
notice on the terms and ccnUitions that
must be complied with and the amount
and extent of permissible incidental
take.,No harm results to the species by
providing this statement in the
preliminary biological opinion because.
as stated in the rule. it does not
constitute a permit to take. The “taking’
exemption under section 7(ofl2J does no’
occur until the preliminary biological
opinion is later confirmed as a final
opinion under *402.11(f).
Paragraph (I) of * 402.11 is adopted
from proposed *1 402.15(b) and
402.18(a). This paragrapta acknowledges
that. if certain findings are made by the
Service, a preliminary biologicaj opinion
may be confirmed as a final biological
opinion after formal application for a
FederaL license or permit is made. The
rule requires the Service to make its
decision on confirmation within 45 day.
after receipt of the Federal agency’s
requesL As requested by one
commenter. both the request and the
Services response must be in writing.
Section 402.12 Biologica! .4s.sessmept.
This section explains the biological
assessment requirements wider section
7(c) of the Act and the process that must
be followed in its preparation. The
requirement that biological assessments
be prepared in advance of certain
‘consultations under section 7(a)(2) was
added by the 1978 Amendments.
Although the Service has. as a matter of
a’gency practice, been requfring the
preparation of biological assessments i tt
appropriate cases under tI’e authonty of
section 7(c)thia final rule consolidates
all regulatory requirements pertaining to
biological assessments.
The proposed rule addressed the
biological assessment provisions in
* *402.01(c) and 402.12(b). fn response to
public comments, the Service has
merged these sections in the final rule
into 402.12. The new format clarifies
the requirements and procedures for
prepan biological assessments.
Although the organi a non of the ,.
provisions has been changed
substantially, the subs,tance of the
regulation is. except for minor
amendments. the same as that presented
in the proposed nil..
The informal consultation and
biological assessment processes werea
both presented in *402.1201 the
proposed ruin. This confused several
cominenters who believed that
biological auessmeai’ could only be.
performed In conjunction with informal
auisnliatioaa. To.eiim iaate this
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F.dereI Reqs.ter I Vol . 51. No 106 Tuesday. June 3. 1986 I Rules and Requlations ’
19945
confusion, the biological assessment
provisions ate placed ins separate
section. immediately before informal
corisultat m. Although a Federal agency
may prepares biological assessment
while involved In Informal consultation
with the Sernce. there is no requirement
that tt do so.
References to conference, early
consultation, and formal counitation in
proposed 140112 (bllfl (third through
fifth sentences) and (b)(10) have been
deleted because cross-teferenges to the
biological assessment requirement have
been inserted in 1*402.10.402.11. and
402.14 to explain the interrelationship of
these processes.
The purpose of a “biological
assessment.” as stated in *4 0 2. 12(a), as
to evaluate the potential effects of the
action on hated or proposed species or
designated or proposed critical habitat
and determine whether any such species
and habitat are likely to be adversely
affected by the action. Biological
assessments are designed to assist
Federal agencies in “determiiung
whether section 7(a)(2) consultation
should be initiated by identifying
endangered or threatened species that
may be present in the area affected by
their proposed project and by
identifying the impact.. of those projects
on such species.” H.R. Rep. No.697.96th
Cong. 1st Seas. 14 (1979) Such
assessments are designed to promote
the “early discovery of and elucidation”
of potential endangered and threatened
species conflict; with proposed agency
actions. These reridws should take
place Well b färe the agency exercises
its discretionlo authoriee. fund, or carry
out an action. H.R. Rep. No. 1625, 95th
Cong.. 2d Sass. 20 (1978).
One commenter asked that a
reference be inserted for preparation of
“preliminary bfblogical assessments.”
The Service does not require advance
renew of draft biological assessments,
the requested procedure would add to
statutory requirements. Therefore, the
addition has not been made.
Section 402.12(b)(1) of the final rule
acknowledges that the Act exempts
from the biological assessineni
requirement those actions for which
contracts were let or construction was
started on or before the effective date of
the 1978 Amendments. One comrnenter
argued that the assessment requirement
must not be retroactive, but should
apply only to current actions as of the
issuance of the final rule. The Service
must follow the Act on this point and
adopt the rule as proposed.. This will not
operate Ip the disadvantage of any
Federal agency involved In s sectIon?
consuitatlon, because the Service has
been requiring the preparation of
biological assessments since the
effective date of the 1W6 Amendments.
Section 402.1 bli1) also recognize.
that virtually any Federal agency. State
or local agency, private o1garuzatiou. or
Individual (potential exemption
applicants) may voluntarily prepare a
biological assessment consistent with
the procedures set forth In this section
to assist ft In fulfilling Its sectjan 7
responsibilities. One commenter urged
the Service to delete the sentence
referring to voluntary preparation of
assessments in proposed 1402.12(b) (1)
because consultation is terminated If a
biological assessment is not required.
-The corninenter’s statement Is only true
for an action if no listed species or
critical habitat are present in the
proposed action area. The placement pf
that sentence an the proposed rule was
confusing. and thus the final rule has
been darthed. The Service would like to
make it dear, however, that whether a
biological assessment is required or
voluntary bears no relation to wbether a
conference or formal consultation is
required under I * 402.10 or 402.14.
respectively. The assessment is a tool
used to identify impacts to species or
habitat so that a dec.ision can be made
as to whether a proposed action is likely
to adversely affect listed species or
critical habitat. The biplogical
assessment can be used to determine
whe%her a conference or formal
consultation is required.
The Act provides that any person who
may wish to apply for an elcemption
from the requirement., of section 7(a)(2)
may voluntarily conduct such an
.issessment. in cooperation with the
Service and under the supervision of the
appropriate Federal agency. These
potential exemption applicants must
follow the procedures described in
440212 Under section 7(h)(2), an
exemption is not permanent unless a
biological assessment has been
prepared. A permanent exemption
remains in force for a particular Federal
action regardless of the listing of
additional species in the action area.
whereas an ordinary exemption as
limited to the species mvolved in the
section 7 consultation. Paragraph (b)(t)
acknowledges these statutory
provisions.
Therefore, the Service retains the
flexibility inherent in paragraph (b)(1)
that allows for the preparationpf
biological assessments In those
instances where they are not
specificaijy required by this rule.
Although requested by another
conimenter. the Service declines to set
guidelines for the exercise of discretion
by other Fedèal pgenae or applicants
en the decision to voluntarily prepare
assessments.
Paragraph (bX2) baa been added In
response to public comments The
limitation in section 7(c)(1) of the Act on.
entering contrecl.s or starting
construction on an action while’t,he
preparation of a biological assessment is
pending has been included in these
regulations. This construction restriction
applies to all actions involviüg I ie
preparation of a biological assessment.
The fact that a biological assessment
I.e not required for all actions does not
mean that listed or proposed species or
designated or proposed critical habitat
receive less protection. Federal agencies
still have an oblagation to review aLl of
their actions to determine whether
formal consultation under *402.14 is
required. in addition. Federal agencies
must confer on actions that are likely to
jeopardize the continued existence of
proposed species or result in the
desu ,acuon or adverse modification of
proposed critical habitat
One commenter asked that Federal
• agencies be required to document any
findigg of “no effect” on listed species or
critical habitat for actions not involving
- the preparation of a biological
assessment. The Service ha. no
authorn y to impose such a requiremetat.
but does encourage Federal agencies to
-use their NEPA documentation to
illustrate their analysis of Endangered
Species Act issues.
The Service reserves the right to
request that an agency prepare s
biological assessment. One comnaenter
questioned the right of the Service to
request assessments when such are not
otherwise required by the Act. Another
commenter feared that the Service
would routinely request field studies
with many of the characteristics of
biological assessments. regardless of the
action’s potential effects, the
acceptability of a general field
reconnaissance. or the obligation of the
Service to provide guidance and data.
The Service’s request for a biological
assessment or for field studies is not of
‘mandat6ry effect a Federal agency may
reject any such request. The Service
recognizes that consultation involves a
two-way flow of information. It wall
0 always strive to provide d ta that are
available nd to assist in designing or in
conducting studies (within budgetary
constraints’and available staffing) or in
gathering data through consultation.
Paragraph (c) of 4402_12 covers the
request by a Federal agency for s
species Us from the Service This
paragraph wa. adopted from’
4402.12(b)(1) (first ientence) of the
proposed rule. Paragraph (d) of 4402.12
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19948
Federal ReØster/ Vol . 51. NO.106 / Tuesday. lune 3. 1988 I Rules and Regulations
involves the Directors issuance of a
species list. This paragraph was adopted
from 402.12(b)(2) of the proposed nile.
The biological assessment process
begins when a Federal agency decides
that its action is a major constiuction
activity, as discussed in these
egu1auons. or it decides that it will
voluntarily pre are a biological
assessment. The Fed?ral a ency or the
designated non.Federaf representative
requests information on whether listed
or proposed species or designated or
proposed critical habitat may be present
in the action area. Within 30 days of
receipt of that inquiry, the Director will
respond with a list of any such species
and critical habitat that may be present.
as well as the available data (or
references thereto). This may include
recommendations for studies ox’ surveys
that may assist in the preparation of the
biological assessment.
Con a.ry to the onIendons of several
commenters. the request for a species
list is mandatory under section 7(c) for
any major consh’uctlon activity, unless
the Federal agency forwards its own list
for the Director’s concurrence as
explained below. This is not a
burdensome requirement even Egr
apparent “no effect” actions. sincetha
entire process. induding the Directors
response that no listed species or
critical habitat occurs in the action area.
may be carried out without delay
through the NEPA process.
In response to comments, the final
regulations explicitly allow the Federal
agency or the designated non-Federal
representative to proceed with the
preparation of the biological assessment
prior to receiving a specres list from the
Service. In this situation. the Federal
3 ency or the designated non-Federal
répresejiative is required to notify the
Director in writing as to the species and.
critical habitat that are being included
in the assessment. As recommended by
three commenters. the Service will
respond to this notification in wr tlng
within 30 days as to whether it concurs
with the species and critical habitat to
be covered in the biological assessment
One commenter suggested that an
applicant should have an opportunity to
informally request a species list to assist
it during the planning stage of a project.
Then. if the applicant begins preparation
of a biological assessment withIn 90
days of receipt of this “informal” list.
the commenter thought that the Service
should not amend the list at a later time.
The commenter appears to be
advocating an opportunity for early’
consultation. which is provided for
under 402i1 of this final rule.
Nevertheless. the request that *
species List not be modified once issued
might backfire on the applicant. because
4402.14 requires consultation on all
listed species and critical habitat that
may be affected by a Federal action.
Even.if a species is inadvertently
omitted from the species list and
biological assessment the Act
nevertheless requires that it must be
considered in satisfying the
requirements of section 7(a)12). Thus. the
sooner the Service notifies the applicant
of additional species to be included in a
required biological assessment the
sooner the consultation will be
completed.
In addition to listed ox’ proposed
species or designated or proposed
critical habitat the Service will include
candidate species in the species list.
Candidate species are those species
being considered for listing but not yet
the subject of a proposed rule. This will
inform the Federal agency and any
applicant of potential proposals for
listing. Candidate species have no legal
status and are accorded no legal
protection undeit the Act. ai4 thus the
Federal agency need not include them in
a biological assessment. However.
should a candidate species become
proposed or listed prior to completion of
the action, a conference or formal
consultation may be required.
Several commenters asked that
species lists be “site-specific” and not
regional in scope. One of these
commenters urged the Service to include
only species actually known or believed
tp occur in the action area-The Service
agrees that the species list should be
tailored to the action area and that field
personnel should take care that the list
is not.overinclusi ’e. However, the Act
requires the Service to provide a-list of
all listed or proposed species that ‘may
be present” in the action area. Thus.
migratory species that.”mey be present”
at some point within th action area
must be included in the species list
Another commenter said that the
Service should include only speues in
the list that It believes may be affected
by the action. This approach is not
consistent with section 7(c), which
requires. disclosure of all species that
“may be present” In the action area. The
comment would also eliminate the
Federal agency’s right to make an Initial
evaluation of possible effects to each
species.
One commenter’s.condusion that s
determ pation of no adverse effect after
receipt of the species list, but before
preparatlob of the assessment.
eIteth etes the need to prepare the
assessment and concludes consultation
Is erroneous. The biological assessment
Ii used to determine whether an activity
“Is likely to adversely affect” listed
species or critical habitat. Consultation
does not conclude unless the Service
concurs in writing with the finding of the
biological assessment indicating that the
action is not likely to adversely affect
listed species or critical habitat
The Service has clarified paragraph
(d)(1) to accommodate the concern of
the House Committee that biological
assessments not be required on major
c nstiuction activities affecting
proposed species or proposed critical
habitat only. However, if a species list
includes both listed and proposed
species, each must be considered in the
biological assessment as required by
eection 7(c) of the Act
Concerned that the Federal agency
should receive all information during the
assessment process, one commenter
asked that the species list be delivered
to both the Federal agency and its
designated non-Federal representative
due to the agency’s responsibility to
supervise the preparation of the
assessment. The Service declines to
include this requirement in the rule, but
will forward a copy to the Federal -
agency, if requested. It is the Federal
agency’s responsibility to decide
whether it wants to designate a npn-
Federal representative, and if one is
designated, the species list will be sent
to the representative as requested by the
Federal agency.
Several commenters suggested that
the Service’s ability to recommend
“necessary” studies or surveys would
contravene the “best avai!able scientific
and commercial data” standard of
section 7(a)(2) The Servid agrees that
the proposed language may have
implied that additional studies or
surveys were required or necessary to
complete the assessment. Therefore, the
sentence is changed to state that the
Service may recommend studies or
surveys that it believes would assist in
the preparation of-the assessment A
new seotence is also added to clarify
that such a reconimend adon is not to be
construed as the Service’s opinion that
the Federal agency has failed to satisfy
the information standard of section
7(a)(2) of the Act This change prese ves
the Service’s prerogative to request
further studies if deemed ppropriate.
while recognizing the ultimate
responsibility of the Federa.j agency to
secure the best available datd. Two
commenters suggested that the request
for studies be limited to studies -
necessary to locate and assemble
already existing date- The Service
declines (0 so limit the scope ‘of studies
it may request
Paragraph fe) of 4402.1211 carried
over from 44 .i2(b)(3) of the proposal.
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F.deral Ragivtav I Vol. 51. No. 106 / Tuesday. tune 3. i O6 Rules arid Regulatioaa
19947
ii require. a patty preparing a biological
assessment to verify its specie. hat with
the Service if. alter 90 ilays from the
receipt of or voo rranne with the
speaea list, it has yet to commence the
preparation of the aue&wianL A written
verification, as suggested by one
commenter. is not required since that
would be tantamount to issuing.
second species bat. contrary to the
Informal nature of this verification step.
The Federal agency may, on ha own.
document the verification received
under this paragraph in its
administrative record. As requested by
one coamienter. the Service has
distinguished the initiation of the
biological assessment time period (time
of receipt of or concurrence with a
species list) from the point at which
actual preparation of the assessment is
begun.
Based on comments received, a new
paragraph (I) entitled “contents” has
been added. Some commenters argued
that Federal agencies should be required
to include oertain minimum research
methods or activitie, in the preparation
of a biological assessment. One
commenter sim gested that preparers of
biological assessments should:
(a) condect $ scientifically sound onsite
inspection of the area affected by the action.
which mual. unleu otherwise directed by the
Service, include a detailed survey of the area
to determine if haled or propo.ed species are
present or occur seasonally and whether
suitable habitat exisi.a within the area for
either expanding the existing population or
potnittel reintroduction of popuia lions;
(bi interview reccgrur.ed experts on the
epecies at issue. indu.ding those withm the
Fish and Wildlife Service, the National
Marine Fisheries Service. State con.ervaLion
aser.cies. universities sod other. who may
ha’e data not yet found in scientific
literature.
( Cl review ilteratwe and other scientific
data including recovery plans if available to
determine the species distribution, habitat
needs. and other biological requirements:
(dJ review and analyze the effects of the
action on the species, in terms of tnthviduala
and populations. unclading consideration of
the indirect and cumulative effects of the
action on the speciss and habitat
(eJ analyze alternate actions that may
provIde conservation meaiiizel and
(fl conduct any studies necessary to fulfill
the requirements of (a) through (a) above.
The Se vice agrees that assessments
should be as complete and thorough as
possible, but declines to impose strict
minimum standards that all bioldgical
assessments’must satisfy. The above-
listed activities, which may be
pedormed in preparing an assessment.
are endorsed by the Service as items
that a model assessment would include,
However, the nature of the Federal
action may not w’uTant carrying out all
of these research activities or studies,
and some of the steps way oo* be
technologically feasible in certain cases.
Therefore, the new paragraph (f) only
contains suggestions of whet a Federal
agency may include in a biological
assessment,
One commenler asked the Service to
explain the difference between the
degree of information needed in a
biological assessment and thç degree of
information needed to initiate formal
consultation when the action does Dot
require the preparation of an
assessment. In both cases the overall
information standard Ia the same: “best
scientific and commercial data
available.” The difference arises in the
process. lt biological assessment is
prepared. It must include not onLy the
data but also a sypib eels of the data
involving an analysis of the effects of
the action. Baaically. the ess swent.
serves as’ an analytical Instrument and
can be used by the Federaf agency “to
build its case” alto whether’s particular
action is likely to’ adversely, affect a
listed species oraLs critical habitat. i th
Service concurs with a determination of
“oot likely to adversely effect,” then
formal consultation ii not required. If an
assessment is ’ not required. the Federal
agency need only submit data to the
Service to initiate formal co anltation
pursuant to t 402.14(c).
Paragraph (g) of *402.12. which deals
with the authority to incorporate esther
biological’ assessments b ’ reference as
the assessment fore currept proposaLi.s
adopted from the last two sentences of
proposed *40L12.(b)(1). In those
instances wher ,a proposed Federal
action ;a identical, or very similar, to a
previous action for which a biological
assessment was prepared. the Federal
agency may not need to prepare et new
biological assessment.
One cominenter requested that
language be added to clarify that a
previous biological assessment being
incorporated by reference could have
been part of a pi’ioe EIS or area.wide
assessment. The Service dechQes a
make the change noting that the form of
the previous biological assessment
(whether in an EI or other document)
- has no bearing on whether it meets the
conditions for incorporation by
reference.
In response to comments, the
conditions that must be met for
incorporation by, reference are clerified.
The biological assessment requirement
may be fulfilled by incorporating by
reference the earlier biological
assessment and supporting data into a
written certification that: (1) the
proposed action involves aimilar
impacts (o the same species in the same
geographic area; (2) no new species
have been listed or proposed or critical
habitat designated or proposed for the.
action a’re& and (3) the biological
assessment has been supplemented with
any relevant thange. in information.
Condition (1) ha. been expanded to
allciw incorporation by reference if the
proposed action Involves similar
Impacts (rather than no new impacts).
The term cr administrative tmit” ha.s
been deleted as it Is substantially the
same as “geographic area.” The Service
adds “for the action area” at the end of
condition (2) to clarify the scope of the
certiflcetion. Finally, condition (3) ii
Atha.nged to allow Federal agencies to
$Ijicorporate a former biological
assessment by reference while.
supplementing it with any relevant
changes in information. This change
clarifies the intent behind this
paragraph.
Paragraph (h) of *402.12. which cross.
references permit requirements under
the Act that may apply to the
preparation of a biological assessment.
is adopted as proposed
*402.12(b)(4)(i). The Service believes
that the references In the rule are
adequate to alert Federal agencies and!
or designated non.Federal
representatives of the need to consider
applicable permit requirements. rather
than include the appropriate section 10
permit requirements In these
regulations. as suggested by one
commenter. Certain field work tght
involve the take (Je.. harassment, harm,
etc.) of listed species which, absent a
permit, would violate sections 9 or 4(d)
of the Act. To avoid possible viola tipns.
the Federal agency or non-Federal
representative should apply for and
obtain a section 10 permit for such field
work. Those individuals carrying out
field studies or other research without a
permit during the section 7 consultation
process are subject to the prohibitions of
the Act and other applicable wildlife
laws. The Service emphasizes that
permits shculd be obtained if takings of
any listed species are anticipated.
Parigraph (I) of 402.12 specifies the
time period for completing a biological
assessment ,and sets Out the
requirements for any needed extension.
This paragraph is taken substantially
from *402.12(b)(O) of the proposed rule.
Two cOmmenters asked that the rule
require written notices of all extensions.
regardless of whether an applicant is
involved. A written notice from the
Federal agency to the applicant is
required i.E an extension is agreed upon
between the Service and the Federal
agency. and such written notice must be
provided by the Federal agency prior to
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Federal Register I Vol. 51.’No. 106 I Tuesday. June 3. 1988 I Rules arid Regulations
the expiration of the 180-day time
period. 1-fowever, the Service declines to
require a written notice if an applicant Is
riot involved in the consultation,
because responsibility for the
preparation and completion of the
biological assessment rests with the
Federal agency. The Service will defer
to the needs and judgment of the
Federal agency which can document the
extension in its adniirusu’ative record.
Another commenter asked that the
Service explain that the 180-day time
period begins on the date of receipt of
the species Ii t’(or the dgte of receipt oT
the Directors concurrence with the
Federal agency species lilt). This change
has been made since it darifles when
the time period begins arid is consistent
with the intent of this paragraph.
As noted above, if an applicant is
involved, the 180-day period may not be
extended unless the agency provides the
appLicant, before me close of the 180-
day period, with a wntten statement
setting forth the estimated length of the
proposed extension and the reasons
why an extension is necessary. The
applicant has no remedy to expedite the
preparation of the biolog cal assessment
under section ?(c) of the Act. Thus. the
280 .day’time period is subject to an
indefinite extension at the Federal
agency’s preiogative. The Service lacks
statutory authority to impose an appeal’
process to. review extensions. as
requested by two commenters.
Paragraph (j) of 1402.12. which
requires the submission of completed,
biologitql assessments to the Director
for review, is adopted from proposed
1402.12(b)(41(iii). l.a response to two
comments, the Director wiU make a
written response within 30 days after
receiving the complete asSessment as to
wuiether or not the Service concurs with
the endings in the assessment. This
change provides Federal agencies with a
written record adcnowledging the
Service’s receipt of the biological
assessment and indicating the results of
the Service’s review.
A new sentence is added to this
paragraph to clarify that the Federal
- agency may initiate fwmal eoeeultatlon
concurrently with the submission of the
assessment to the Directqr.
En response to one comjn nt. the
Service declines to substitute “Service”
rot “Director” i ,this paragraph. Itt .
important that the Director or hi.
authorized representative directly
receive the biological assessment far
review s that a timely review can be
facilItated.
, Paiagraph (ii) of 1402.12. governing
,the use of a completed biological
assessment Is derived from
*402 .l2Lb)(7) of the proposed rule. Once
the biological assessment has been
completed. the Federal agency must
consider whether formal consultation
should be initiated or if a°conference is
necessary. Three commeriter. noted that
a written notice of concurrence should
be issued by the Director if the Service
agrees with the Federal agency’s finding
that its action is riot likely to adversely
affect listed species or critical habitat
(1e.. the Service concurs in writing that
formal consultation is not needed). This
comment has been accommodated by
appropriate changes to paragraphs (j)
and (k).
The proposed 1492.12(b)(5). -.
“Assistance from other sources,” has
not been included in the biological
assessment section of the final rules.
The substar -e of this paragraph has
been included in the fInal p402.08.
dealing with de .ignated non-Federal
representatives. The first two sentences
have been deleted since a Federal
agency may obtain assistance from any
source to aid In the preparation of a
biological assessment (or other aspect of
consultation), and it does not need to be
authorized in these regulations. One
cominenter suggested that the Service be
included as a source of information;
however, assistance from the Service is
already included in appropriate sections
of the regulations.
Secuon 402.13 Informal Consuitotiom
Informal consultation is an optional
procedure that includes all contacts,
between the Service and the Federal
agency or the designated non-Federal
representative prior to formal
consultation. if required. It Is designed
primarily to except froth’ the formal
consultation process those’ proposed
actions which, upon further. informal
review, are found, not likely to adversely
affect a listed’ species or critical habitat
11 the Service concurs with such a
determination, formal consultation is not
required. The final nile is adopted
largely by combining proposed
ft 402.12(a), 402.15(c) ’snd 402.15(1)(1),
Into one composite statement of the
purpose and scope of Informal
consultation. -
Several cemmenteri disagreed on the
scope of informal consultation. One
commenter felt that Informal
consultation .hould.tnclude all dialogue
between the Service. the Federal
agency, and any dçsignated non-Federal
representative in detert’ mmg whether
formal consultation is required, Another
commenter recommended that informal
consultation be available If listed
species are found In the action area. The
Service believes Chat informal
consultation encompasses all of thee,
communications between the Service. —
the Federal agency, and the designated
non-Federal representative, as well as
others. The Service is available for
informal consultation at any time: the
decision on whether to seek informal
consultation is that of the Federal
agency. The Service agrees that, If
requested as a part of informal
consultation . it should participate in
N’EPA scoping meetings.
The Service declines to specify
uniform levels of contact that must be
followed in conducting Litforrnal
consultations. Existing relationships
between the Service’s field or regional
offices and particular Federal agencies
mandate maximum flexibility. The
present system is working well and
efficiently addresses the needs of other
Federal agencies. and ft is therefore
retained.
Because informal consultation is an
optional process that is under the
control’of the Federal agency as to its
initiation and duration, the Service
declines to require notices of init iation
and or termination. Such a step would
merely place paperwork burdens on the
Federal agency in an otherwise
voluntary process.
As noted in 1402.12. biological
assessments are required for malor
consti’uction activities. To clarify a
procedural point, the Service notes that
the biological assessment process may
be conducted simultaneously with’
informal consultati’on if desired by the
Federal agency, or the Federal agency
may choos’e to undertake the biological
assessment without any Informal
con.sultaton. Wheih.r. r not s
bIological assessment is re uidd. the
Federal agency may choose tp eDter into
informal consultptlon;’
In response to üiafly cdmments. the
Service has made numerous adjustments
throughout these regulations to
eliminate references to Informal
consultation as a prerequisite to formal
consultation The Service agrees that
such a process would not be workable.
both aa a result of limited consultation
resources and the need to respect
Federal agency program discretion. As
previously noted, the proposed rule
required formal consultation if the
action “may adversely affect” listed
species or critical habitat “Beneficial”
actions were excused from formal
consultation if the Service concurred
during the mandatory informal
consultation, Since informal
consultation has been made strictly an
optional process in this final rule, the
Service retains, from the 1978 rule, the
“may affect” trigger for formal
consultation In 1402.14 of the final, rule.
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Fedesal Resister I Vol. 51. No. 106 I Tuesday. June 3. 1996 / Rules and Re ulatiorts
19949
Under this final rule. 1! a Federal
agency determines that its action “may
affect” listed species or critical habitat
then formal consultation Is required
unless an exception applies. One
exception ii that a Federal agency may.
through informal consultation, utilize the
expertise of the Service to evaluate the
agency’s assessment of potential effects
or to suggest modifications to the action
to avoid potential adverse effects. If. as
a result of informal consultation, the
Federal agency determines, and the
Service concurs. that the action (or
modified action) I. “not likely to’
adversely affect” listed species or
critical habitat then formal consultation
is not required. The consultation process
would terminate with the written
concurrence of the Service. Therefore.
through this informal consultation
process. those activities which are found
to have
uisigrii t effects upon listed species
or their cnti F ibitats could be
deemed to be in compliance with section
7(a)(2) without formal consultation. If a
“not likely to adversely effect”
determination cannot be made during
informal consultation, then formal
consultation is reqinred for those
Federal actions that “may affect” listed
species or their ciltical habitat.
In short, the final rule retains the
general requirement for formal
consultation if the Federal agency
determines that its action “may affect”
listed species or critical habitat. The
Federal agency may, however, through
volun:ary informal consultation with the
Service, forego formal consultation and..
promptly implement actlqns that the
agency and the Service agree are not
likely to adversely affect listed species’
pr critical habitat. The Service finds that
this reformulation of the consultation
process is not significantly different
from the current practice, except that, as.
a result of informal consultatithi.
biological opinions will no longer be
required for actions that “are not likely
to adversely affect” listed species or
critical habitat,
The Service could not accommodate
all concerns expressed on this issue,
Two commenters contended that thS
“may adversely affect” standard for
initiating formal consultation yielded
too thuch discretion to action agencies.
They stated that such a threshold would
shift the benefit of the doubt from one in
favor of the listed species to one in favor
of the Federal agency’s action. Noting
the Service’s expertise on wildlife
.ssues, the cornnienter urged the Service’
to reverse this shift. As noted above, the
Service did not Intend to reverse the
burden of proof with the focus on
“adverse effects.” The goal Is to, reduce
procedural barriers for actions which
the Service believes are not likely to
have an adverse effect, while retaining
full protection for listed species or
crrtical habitat The changes noted
above address these commentere’
concern. However, other commenters
who su eited shift In the borden of
proof cannot be áccotnrnodated The
conimenters that urged a “would
adversely affect” standard for th wg
formal consultation, a standard that’
might be interpreted as requiring a
showing of effects that destroy or
adversely modify critical habitat or are
likely to jeopardize the continued
existence of listed species, are
requesting a trigger for formal
consultation that th Servi e believe. is
too close to the ‘leopardy” standard.of
section 7(a) (2). The threshold for formal
cojjsultati,on must be set aufficiendy low
to allow Federal agencies to atiufy their
tO”tnsure”under section 7(a)(2). .,
Therefore, the burden is on the Pideral(
agency to show the absence of likely,
adverse effects to listed species or
critical habitat as a result of its
proposed action in order to be excepte
from the formal consultation obligatio
The Service believes that Informal
consult.ation is exti’eniely important and
may resolve potential conflicts (adverse_
effects) and eliminate the need for
formal consulLation. Through informal
consi4tation, the Service can work with
the Federal agency and any applicant
and suggest modifications to the action
to reduce or eliminate adverse effects. 11
a Federal agency modifies Its action so
that the action ii not likely to adversely
affect listed species or critical habitat.
then formal consultation is not required.
Section 402.14 Formal Consultation.
These regulations require Federal
agencies to review their actions to
determine whether they “may affect”
listed species or critical habitat. Formal
consultation procedures must be
Initiated If such a situation exists.
unlegs, with the written concurrence of
,the Service, the Federal agency
determines through informal
consultation andlor through the
biological assessment process that its
action is not likely to adversely affect
listed species or critical habitat. As
noted above in regard to 402.13, the
final rule adopts the “may affect”
standard of the 1978 rule, with a special
provision allowing actions “not likely to
adversely affect” to by’pass the formal
consultation process as a result of
informal consultation with the Service.
Paragraph (a) of I 40214 sets aut the
requirements fc”r formal consultation.
This paragraph Is a composite of
paragraphs (a) and (k) of proposed
I 402.15. Paragraph (b). which sets out
the exceptions to the initiation
requirement of (a), was taken primarily
from proposed 402.12(b)(7) and 402.15
(b) and (c).
The Service declines to substitute
“may” for “shall” in describing the
Federal agency’s re 5ponsibthtiei in
paragraph (a), a, reques ed by one
commenteT. Federal agencies have an
obligation under section 71afl2) of the
Act to determine whether their actions
may affect listed species and whether
formal consultation is required wider
these regulations. However, the Service
does not thtenfl to mandate the timing of
this review, which is solely at the
discretion of the Federal agency. Early
- review of its actions is to the advantage
of the Federal agency so that
compliance with section 7 can be
attained without undue delays to its
action.
Paragraph (a) also includes a
provision for the Director to request a
Federal agency to enter into
consultation. Two commenter, asked
that the tial rule empower the Director
to require a Federal agency to consult
Although the Service will, when
appropriate, request consultation on
particular Federal actions. it lacks the
authority to require the initiation of
consultation. The determination of
possible effectsTiihe Federal agency’s
rëi nsibility. The Federal agency has
• the ultimate duty to ensure that its
actions are not likely to jeopardize listed
species or adversely modify critical
habitat. The Federal agency makes the
final decision on whether consultation Is
required. and Ii likewise bears the risk
of an erroneous decision.
The last sentence of proposed
1402.15(a). dealing with Service
asslatanca to Federal agencies. has been
deleted as it Is more appropriately
addressed in the preamble The ’Federal
agency may obtain information and
advice from the Service, but this is a
supplement to, and not a substitute for,
formal cot sultatlon. The Service
believes that there should be a
ccrthriuous dialogue between the I
Service and the Federal agency
th olving the exchange of information
and assistance as part of the formal
consultation.
Unless a Federal agency chooses to
avail itself of the exceptions in
paragraph (b). It must initiate formal
consultation if its proposed action “may
affect” listed species or critical habitat
A y possible effect whether beneficial.
benrgiidverse. or of an undetermined
character. triggers the formal
cd IWtetion requirement as suggested
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19950’
Federal Register I Vol. 51. No. 106 I Tuesday. June 3. 1986 I Rules and Re u1ation.
by one comnienter. However: a,lthough
• .informal oonsultatiori is not required, a
Federal ‘acency may use that procera
dndlor the biological assessi ent
• process to remove an action that “Is not
likely to adversely affect” listed species
or critical habitat from the formal
cdnsul%ation requirement.
• Proposed paragraph (c), a “no adverse
effect” exception, was attacked as
weakening the Act. One commenter
remarked that’this procedure •‘
unreal (stically allows Federal agencies
• to determine the presence of a
“detrimental effect.” through informal
consultation. when the precise objective
of formal consultation is to reach that
same goal. The Service does not agree.
because formal con°’ltation is
conducted to deterc ie if an action is
likely to jeopardize ine continued.
existence of listed species or result in
the destruction or adverse modification
• of critical habitat. Adverse effects may
exist without constituting jeopardy.
However, the Service has changed the
:ngger for formal consultation to “may
affect” with certain exceptions
contained ui paragraph (b).
The exceptions in paragraph (b) are
derived from the”will not adversely
ailect’ exception in proposed 4O2.15(c)
arid from the confirmation of the
preliminary biological opinion in
proposed 402.15fll). The first exception
is modified to “not likely to adversely
affect” to make the biological
assessment provisions compatible with
the formal consultation provisions.
Under section 7(c) of the Act, a
biologicai assessment is completed to
‘ f’ãcilitate compliance with the
consultation provision. of sectio 7(a)(2)
by identifying whether any specres or
critical habitat is “likely to be affected.”
If the Federal agency determines, with
Service concurrence, that its action is
not likely to adversely affect any listed
pecies or critical habitat, there is no
need for formal consultation.
)m.posing the time delays and
inforrnà’tion responsibilities of.formal
c ’nsuliafion on such actions woula not
provide any additional protection to
listed species or critical habitat and may
discourage interagency cooperation.
Regulatory flexibility is appropriate here
to eliminate undue burden.. By requiring
the Service’s “written concurrence” with
a “not likely to adversely affect” F ling -
as a prerequisite to invoking the
exception to formal consultation, the
Service beli ves it has retained
adequaie review authority through
informal consultation. if the information
‘iiade available during informal
onsultation is not sufficient to make
his decensunation, formal consaltatlon
is required. The case of Romero-Borvelo
‘v. Brown, 643 P.2d 835 (let CIt. 1981),
rev ‘don other grounds sub noni,
Weinberger v. Romero-Borvelo. 458 U.S.
305 (1982). does not preclude hi..
change. That decision interpreted the
“8 rule but did not set a minimum
‘eshold for initiation of formal
nsu,ltation under the Act. Paragraph.
(a) and (b), as adopted. are totally
within the statutory authority of the
Service,
The other exception to the genera!
torma l consultation requirement is the
confirmation of a preliminary biological
opinion as the final biological opinion. If
early consultation takes place, the
Service will issue a preliminary
biological opinion. When the
prospective applicant applies for a
Federal permit or license. the Federal
agency may request that the Service
confirm the preliminary biological
opinion u the final biological opinion
that would have been issued after
formal consultation. If the Service
reviews the proposed action and finds
no significant changes in the action as
planned and no significant changes in
the information used during early
consulthtlon. such a confirmation will be
Issued. Consultation is required if the
preliminary biological opinion is not
confirmed.
Paragraph (c) of 0402.14 specifies the
required contents of a request for formal
con u1tation. This paragraph is adopted
substantially from proposed
fl402.12(b)(7) and 402.15(d).
According to one coramenter, the
informs tion requirements of paragraph
(c), which apply to all actions involved
in foripal,consultation. lack statutory
authority. The Service cites the
obligation to use the “best scientific and
commercial data available” and the
overall responsibility to consult In good
faith under section 7(a)(2) as ample
authority for the information
requirements. Proposed item (vi),
requiring a list of Federal agencies that
have jurisdiction in the action area and
how they may be affected, is too broad
since much of this Information would be
unrelated to the consultation. Other
Federal a ‘ons that are interrelated or
interdepe .ent would be d.iscusse4
along with the effects of the actiom
Therefore, this item is not Included In
the final rule. The remaining items are
essentia’ ‘in determining the parameters
of the aL on, the extent, duration. and
severity of its impacts, and the effects of
other actions in the action area. The
Service retains these essential
Information requirements. although it
ha. noted’under subparagraph (5) that
only.’relevant” reports. including
environmental impact statements. etc..
need be supplied, because consultations
will in most cases be completed prior to
the production of fipal NEPA
documentation for the subject action.
The concluding sentences of
paragraph (c) permit Federal agencies.
subject to the Director’s approvaL to
tailor their requests for consultation to a
particular segment of a coniprehetisive
plan. so long as the effects of the action
as a whole are considered. To clarify
this passage. as requested by one
commeriter, the Service uses the
example of the management. pursuant to
a comprehensive plan. eta National
Wildlife Refuge that is inhabited by a
listed species. Section 7 consultation
may be undertaken on a segment of that
management program, such as big-game
hunting. and a’ biological opinion will be
issued on that phase of the program
only, However, in formulating its
biological opinion, the Service must
consider the effects. inc,i.ding Indirect
effects. of the action as a whole, and
cumulative effects of unrelated
management programs in reaching the
conclusion of “jeopardy” or.”no
jeopardy.” The concluding passage of
paragraph (c) illustrates ‘tie flexibility
inherent in the formal co .sWtation
process andihe care with which the
protections of section? are prese ’ved.
Paragraph (d) of 0402.14 repe the
required information standard ot ecUon
7(a)(2): “best scientific and commercial
data available,” This paragraph is
adopted essentially without change from
proposed 0402.15(d)(2). except that.
pursuant to public comment, the S rvice
changed “biological. information” to
“scient ific and commercial data” to
bring the language of the regulation in
line with the Act. One comnieriter -
suggested that the phrase “or which can
be developed during the consultation
process’ be removed from this
paragraph. The Service has modified the
wording to ai ai’jht information
referred,loilhui ir gr p ) ijs
information that can be obtained during
t e consultation. We believe that
information could become available at
any time during the consultation, and
such information sltould be submitted to
the Service for its consideration, The
legislative history of the 1979
Amendments supports this provision.
HR. Conf. Rep. No. 697.96th Cong.. let
Sass. 12 (1979). The Service is satisfied
that this paragraph adequately
mandate. the use of the beat available
scientific and commercial data requires
Federal agencies toeuppl3 this data a
a y time duiinglormai onsultation, and
recognizes that this Information
requirement I , a Federal agency
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Federal Register’ ! Vol. 51. No 106 I Tueeday. June & 1986 I Rules and Regulations
1995
resppnsthility not an oWjgetton of the
Service.
Pãagraph (d) of 1402.14 also adopts a
portion of 402.15(d)(3) of the proposed
rule that requires the Federal agency to
provide any applicant with the
opportunity to participate In formal
consultations. Including submitting
information for consideration dunn8 the
consultation. The remainder of proposed
1402.15(d)(3) was deleted because it’
duplicated other parts of the final rule.
Paragraph (e) of 1402.14 establishes
the time period for conducting formal
consultations and explain.. the process
for extending the consultation period.
The paragraph ii adopted substathially
as proposed in *402.15(e). with certain
technical, clalifying amendments.
The Amendments changed the timing
requirement on the conclusion of formal
consultation from the 60 days originally
established by the 1978 rule to a
maximum of 90 days or to such time
penods as discussed below. If an
applicant is involved, the Service and
the Federal ageticy may mutually agree
to extend consultation for up to 60
additional days without the consent of
the applicant. ptovided that the Service
submits to the applicant, before the
dose of the ini al 90-day period a
written statement settiiigforth (1) We
reasons why a longer period is required.
(2) the information that is required to
complete the consultation, and (3) the
estimated dale on which the
consultation will be completed. A
consultation involving an applicant
cannot be extended for more than 60
days without the consent of the
applicant. The btological opinion must
be delivered to the Federal agency and
any applicant promptly after the
conclusion of formal consultation
(within 45 days).
One cornnienter suggested that a
provision be added that would require
the Service to issue a notice concluding
formal consultation with a finding that it
has sufficient information to prepare a’
biological opinion. The Service declines
to adopt this comment. At the end of,the’
60-day period (unless extended), the
parties to the consultation realize that
the Service has but 45 days to deliver Its
biological opinios to the Federal agency
and any applicant. A mandatory notice
of “sufficient Information” might be, In
some cases. misleading by creating the
impression that additional Information
or studies may not be advisable. The
Service must develop its biological
opinion based upon the best scientific
and commercial data available
regardles. of the “sufficiency” of that
data. Therefore. the suggested change
does not accurately refleqi the legal
framework within which the Servtce
must operate.
The Service has defined the statutory
directive to i.ssue’ biological opinions
“promptly after” the conclusion of
formal consultation as requiring the
delivery of a biological opinion to the
Federal agency and any applicant
Within 45 days. Severa ommenters
agreed with this stipulated deadline as
long as the applicant retains some
conti’ol over extensions. Other
cbmnienters felt that the 45-day period
was excessive, and they argued that the
opinion drafting period should either be
worked out with mutually-agreeable
extensIons or the opinion should be
issued by the end of the consultation
period. The SeMc retains the 45-day
drafting period as consiate,nt with the
statutory requn’ement and as a
necessary time period to further refine
biological opinion.. after the conclusion
of formal consultation.
• One sentence has been added to
paragraph (a) to acknowledge the ability
of the Service and the Federal agency.’
where no applicant is involved. to
extend consultation for a mutually-
• agreeable time pei’iod, .Thie clarification
‘satisfies the request.of one commenter.
Paragraph (I) of 1402.14. which
governs Service requests fo additional
Information, is adopted from
I 402.15(fl(1) of the proposed rule. The
Service declines to rename this
paragraph “extension of consultation”
because that topic is generally covered
in paragraph (e).
In some cases, the Service may
determine that additional information
would enhance the formulation of i, .ts
biological opinion. To cover this
situation, thE final rule adopts the
procedures discussed by Congress in the
legislative history of the 1979
Amendhients. S. Conf. Rep. No.697,96th
Cong.. 1st Sess. 12 (1979). When
additional data Is believed to be
advantageoup, the Service will request
an extension of formal consultation.
When the Service requds.ts such an,
extension. It will Identify The types of
additional data sought for assisting
consultation. The Service will, to the
extent practlcable.,and within e risting
budgetary and personnel restrictions,’
provide assistance in planning studies.
furnishing relevant data. and providing
recommendations that may be
• necessary to obtain the additional data.
The responsibility for conducting and
funding an i studies, however, belongs to
the Federal agencies or the applicant
and not to the Service.
The comments received on thir
paragraph covered a wide spectrum of
opinion as to the breadth of the
Service’s authority to request additiona
data. Some commenters questioned the
statutory authority of the Service under
this provision, and they erroneously
interpreted the Service’s ability to
request additional date as the authority
to require an extension of formal
‘consultation toobtain such data. Their
position was that additional data was
not a valid reason for seeking an
extension of formal consultation and
that additional data should only be
sought when obtainin it would not
delay the consultation and when the
Service is willing to fund the studies.
Another commenter went further,
suggesting that the request for
additional data be treated as an
extraordinary measure that should be
invoked “reluctantly and only on rare
occasions.” The commenler said that the
Service should affirmatively state that
existing data is presumed to be
adequale and that the Service bears the
burden of demonstrating inadequacy’
before seeking additional data.
On the other end of the spectrum.
several comnmentera faulted tl e Service
for not requiring an extension so that
additional data could be obtained under
this paragraph. Citing the Federal
agency’s statutory duty to use the ‘best.
scientific and commercial data
available” and the decision in Roosevelt
Campobeilo international Path
Commission v. EPA. 684 F.2d 1041 (1st
Cir. 1982) (“Pittston case”). these
commenters noted that Federal agencies
are required by secuçn 7(a)(2) to do “all
that (is) practicable” to develop
inform tion for the consultation Pittston
case, supro. According to the
commenlérs. the proposed rule gave too
much discretion to Federal agencres in
“èonti’olling the information used in the
consultation process.
The Service adopts the proposed rule
becbuse it recognizes the need for an
opportunity to request additional data
while deferring to the Congressional
intent that consultation have a definite
end point. Additional data may be
requested by the Service, but the Service
is not relieved of its dut to issue a
biological opinion unless appropriate
time extensions are obtained under
paragraph (e).
However, Federal agencies and
applicants are cautioned that they bear
the burden under section 7(a)(2) to show
that they have obtained the best
available scientific and commercial
data. This is not the Service’s burden or
obligation, but the Service does have the
responsibili y to alert the Federal
agency and any applicant of areas
where additional data would provide a
better information base from which to
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Federal Register I Vol. 51. No. IOO, Tuesday, Jun. 3 1988 I Rules and Regulations
19952
rormulate a bioIo cal opinion. This
‘advice from the Service Is mtended to
help the Federal agency to better satisfy
its duty to iasuxe that its action is rot
likely to jeopardize listed species or
adversely modify critical habitat.
A Service request for additional data
will not be used as a vehicle for
burdemngapplicants with unneceesary
studies and inordinate delays. as feared
by onecoinmenter. As in the Pittston
case. these requests will be limited to
read ily obtainable data that would
assist the Service in formulating its
biological opiriior.. In paragraph (fl. as in
Piliston, a ±stinc on must be made
between reques:s for .peaal researth
projects and requests for routine.
customary data collection activities.
Moreover. paragraph (I) does not take
the final decision regarding the
acquisition of aaditlonal data away
from the Federal agency. The agency
still has the discretion to reject the
Service’. request for additional data
provided it is not arbitrary or capricious
in doing so. The paragraph has been
clanfied to staie that the Federal.
aqency. when collecting additl’onal data.
snall do so to the extent practicable and
within the timefraine of the agreed upon
extension.
The Service, in re uesting additional
data, will not comment as to the overall
adequacy of the Federal agency’s data.
It is the agency’s burden to obtain
credible data. The Service’s request for
additional data. just as the Federal
agenc s inability to complete any
agreed upon collection of data. should
not be interpreted as evidence that thg
Federal agency baa failed to me t the
information standard of section 7(a)(2J
.t would merely repreaqht the , ervice’a
belief that the 4i4onaI data would
‘riprove the corisuTfiti n data base so
:hat it could’ issue the best biological
opinion possible. The Service, therefore,
?ias added language to the final rule to
clarify this provision.
As discussed above. if an extension Is
not agreed to in accordance with -.
paragraph (e). the Service shall Issue a
biological opinion based on the but
scientific and commercial data made
available during the consultation. Tb.
Conference Report to the ieiu
Amendments state, that in this
situation, the Federal agency ha. a
continuing responsibility to make a
reasonable’effort to develop additional
data. H.L Coaf. Rep. No. 607; BOth
Cong.. Zd Sees. 12(19791. By Initiating
informal consultation with the Serv(ca at
an early stage of the ilevelcpment of a
proposed action, the Federal agency
would, in most caSes, the need
to request an extension of formal alternatives. Fous commenters requested
consultation because of a lack of data, that the final rule clarify whether an
In formulating its biological opinion, applicant was entitled to receive a copy
the Service must provide the “b neflt of of the draft biological opinion. The
the doubt” to the specie. concerned, Service believes that the applicant
HR. Con!. Rep. No. 607. aupm. at tz. In should participate in the review and
addition, a biological opinion mnst be should receive a copy. of the draft
developed within the consultation opinion from the Federal agency. The
tmmefranie based upon the best scent&fic final rule includes this provision.
and commercial data avnilable , Though The release of draft opinions to
requested by several commenters, the Federal.agencies andany applicanti
Service is not authorized to condition its (through the Federal agenc ’) facilitates
“no jeopardy” opinions with a more meaningful exchange of
or to issue “map informatipe. Review of draft opinions
jeopardize” opinions in retaliation for an may result in the development and
agency refusal to extend consultation or submission of additional data, and the
to develop additional data. , preparation ol more thorough biological
The Service was requested to publish opinions. Two comnienters opposed the
availability notices for biological release of draft biological opinions.
opinions to facilitate public partimpatica Although they were supportive of open
in the conservation of listed species For communication and mediation between
the reasons noted previously in the Service and the Federal agency
response to a general comment, th. during the consultation time period, the
SeMce declines to Impose such a comme ters opposed Federal agency
requirement on itsdf as an amendment review of draft opinions because
to paragraph (I ). - agencies could bring pressure on the
Parsgraph (g) of f 402.14, which sets Service to modify a particular
out the Service’s responsibilities during reasonable and prudent alternative or to
f&rtnal cdosultation. is adopted from convert the opinion’s conclusion from
proposed 1402.15(f) with only “jeopardy ” to “no jeopardy.” ‘If there
thanges to clarify the Service’s were any discussions needed regarding
responsibilities. The public comments the reasonableand prudent alternatives.
concerning paragraph (g) focused on the noted the commentars. this could be
fifth item: the responsibility to diaci,iss done in “further discussion” after the
the availability of easonable and ‘ issuance of the biological opinion. The
prudent alternatives. The Service a Service disagrees that Foderal agency
committed to working closely with review of draft biological opinions will
Eederal agencies and any applicant.. in result in “rewritten” biological opinions,
the development of reasonable and unless valid biological reasons mandate
prudent alternatives. However, the a change. Federal agency review of draft
Service is unable to agree that a draft opinions helps ensure the technical,
reasona bid and firudent alternative ‘ aç pacy. of the opinion, and may save
should be excluded from the biological , d ih4 reeources by resolvingihese
opinion if the Federal agency disagrees Issues early. The Service believes that
as to its reeaonableneu. u suggested the availability of draft biological
by one commenter. The Servjce will, ih dp(nions is a ieaningfW process and
most cases, defer to the Federal “ has retained it in the final rule. As noted
agency!s expertise and judgment as to previously in the “Definitions” section,
the feasibthty of an alternative. .1 “further discussion” has been deleted
Nevertheless. in those instances whpj, from this nile.Thua. through the
the Service disagrees with a Federal discussions between the Service and the
agency’s assessment of the Federal agency and any applicant
reaaonableneu of its alternatives, th. during formal consultation end the
Service must reserve the right to Include provision to review draft biological
those alternatives in the biological , opinions. the exchange of informaticus
opinion If It determines that they are for the development of reasonable and
“reasonable and prudent” according to prudent alternatives is suffic ienL
the ftandards set out In the definition in Tb. proposed rule stated that the 48’
f 4O2.O the Service r i nt abdicate its ’ day deadline for delivery of thefinel
ultimate duty to formulate these biological opinion would be suspended
alternatives by giving Federal agencies while the Federal agency retained the
confroL over the content of a biological draft opinion. Several commentms
.op i n lo n. - - . complained that such a suspension
Paragreph (g) p*uvi4as for Federal, would violate thd statutory deadlines far
agency and applicant review of th. concluding formal consultation and that
basis for any ending contained In draft the applicant would be powerless to
biologiça ’l opinions. including the force an end to the consultation.
availability of reasonable and prudent Although the proposed rule provided
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Federal Register t Vol. 51. No. 108 I Tuesday. rune 3. 1988 I Rules and Regulations
1995
that. ‘lilt the draft biological opinion is jeopardize the continued existence of
not returned to the Service within a lii te,d species or result in the destruction
reasonable period of time, the Service or adverse modification of critical
will Issue a final biological opinion.” the habitat (a “no jeopardY’ biological
Service agrees that the meaning of “a opinion), or (2) the action is likely to
reasonable period of time” requires jeopardize the continued existence’of
clarification. Therefore, to accommodate listed species or result in the destruction
these comments. the Service now or adverse modification of a’itical
requires the Federal agency toeecwe habitat (a “jeopardy” biological
the applicant’s wriften consent to an opinion). —
extension for a specified time period if 11. “jeopardy” biological opinion is
the 45-day deadline is to be suspended issued, the Service mu..t Identify and
while the draft opipion is under review _jnclude reasonable and prudent
If no extension is agreed to. the alternatives, if any, that will evoid
biological opinion will be issued within Jeopardy and that the Federal agency or
45 days of the conclusion of formal applicant can implement. If the Service
consultation. ‘ . Is unable to develop reasonable and
Another comrfienter suggested that the prudent alternatives, it will indicate
Service be required to deliver ifs that, to the best of its knowledge, there
biological opinion within the Federal are no such alternatives that would
agency’s NEPA, timeframe so that the satisfy the standard of section 7(a)(2).
biological opinion can be included Paragragh (i) of *402.14, whIch
without delaying the release of the governs incidental taking under section
agency’s NEPA document. The Service 7(b)(4) of the Act, is adopted essentially
will attempt to coordinate all as proposed in *402.19. This paragraph
environmental reviews with the Is included in the formal consultation
consultation. However, special timing section of the final rule because of the
pj’oblezns under other Federal statijtes. direct relationship between final
or failure to epter into the consultation biological opinions and incidental take
process early In the planning stage of an ‘ statements.
action. is pot a justification for altering The 1982 Amendments changed
• the required tinieframe established section 7(b] to include provisions
• under the Act. U a particular Federal concerning incidental taking of species.
-‘agency needs special procedures to. The new provisions included in sections
I handle its consultation.responsibilities. 7(b)(4) and 7(o112) of the Act are
• the Service urges the development of designed to resolve the situation where
counterpart regulations under 402.O4.. a Federal agency o an applicant has
L Paragraph (g) has also been modified been advised, through a biological
to reflect that the Service. In Formulating opinion, that the proposed action or the
it biolôgical opinion, any reasonable . adoption of the reasonable and prudent
and prudent alternatives, and any alternative(s), will not violate section
reasonable and prudent measures. will 7(a)(2) of the Act but the proposed
use the best scientific and commercial action (or adopted alternative) will
data available and will give appropriate result in ta ing individuals of a listed
consideration to any beneficial actions species incidental to the action. The
taken by the Federal agency or ‘new provision states that 11 the action
applicant including any actions taken complies with specified terms and
• prior to the initiation of consultation. conditions, the resulting thcidental take
Paragraph (h) of 402.14. which deals will not be a violation of any “taking”
with the contents of a biological opinion, prohibitions established by section 4(d)
is adopted with minor, technical or ’e(a)(,l) of the Act.
correc ons from proposed 402,15 (g)- As noted in the public comments, the
(h) The final rule distingi iish’es that . availability of an “incidental” taking
information or material which will be • exemptionthrough the section 7
included in a biological opinion from consultation process is a welcome
that which will be provided with a clarification made by the 1982
biological opipion. . Amendments. However, many
The.biological opinion will include: (1) comnienters requested additional
a summary of the information on which guidance on this iibject, and,several felt
the opinion is based: (2) a detailed that the proposed rule was cuitibersome
discussion of the effects of the action on and burdensome. The Service believe.
listed species or critical habitat: and (3) that the following discussion will clarify
the Service’s opinion as to whether the the incidental take provision and
action is likely to jeopardize the - • explain the incentives for compliance
continued existence of a lieted species with sections 7(a)(2) and 7(b)(4) of the
or result in the destruction or adverse Act.
modification of critical habifat, The If an agency action receives a “no
.btological opinion will conclude that jeopardy” biological opinion. or if the
either (1) the action is not likely to Federal agency adopt. arty reasonable
and prudent alternative provided in a
“jeopardy” biological opinion. then the
action may proceed in compliance with
section 7. An incidental take statement
will be provided with the biological
opinion when the activity may
incidentaliy take individuals of a listed
species but not so many as to jeopardiz
their continued existence. If the action
proceeds in compliance with the terms
and conditions of the incidental take
statement. then any resulting incidental
takings ate exempt from the prohibitiom
of section 4(d) or 9 of the Act No permit
is required of the Federal agency or any
applicant iii cari’ying out the action, as
one commenter contended. The
biological opinion, plus the incidental
take statement operate as an exemption
under section 7(o)(2) of the Act,
However, this exemption is limited to
actions taken by the Federal agency or
applicant that comply with the terms
and conditions specified in the
incidental take statement. Compliance
with these terms and conditions is
mandatory to qualify for the exemption
from section 4(d) or9 of the Act,
“Actions that are not in compliance with
the specified measures . . .remain
subject to the prohibition against takings
that is contained in section 9.” S. Rep.
No. 418. 97th Cong.. 2d Se... 21 (1982).
Therefore. the Service cannot make
these terms discretionary, as urged by
one coxnmenter.
Paragraph (i)(l) states that. where
incidental takings may occur. the
Service will provide with the biolpgical
opinion to the Federal agency and
applicant a written statement that: (i)
specifies the impact, i.e.. amount or
extent. of such anticipated incidental
take of the species that does not violate
section 7(a)(2), (Ii) specifies tho5e’
reasonable and prpderit measures
necessary or appropriate to minimize
such impact: (iii) sets forth the terms
and conditions 1 including, but not
limited to. reporting requirements. that
must be complied with by the Federal
agency or any, applicant in order to
implement the reasonable and prudent
measures specified under,(ii) above, and
(iv) specifies the procedures to be used
to handle or dispose of any individuals
of a species sctuaUy taken. Several
comments were received on these
elements of the incid’entgl take
statement.
Because. in some cases, exact
numerical limits on the amount of
permissible incidental taking will be
difficult to determine, the Service may,
in accordance with (i)(1)(i). specify the
extent of anticipated take that w,ll,not
violate section 7(a)(2) of the Act. The
impact of a particular action may only
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19954
Federal Register I Vol. 51. No.106! Tuesday, June 3. 1986 I Rules and Regulation !
be predictable in terms of the extent of limited to ex reportmg
land or marine area that may be requirements.
affected. Precise numbers of individuals Under 50 CFR 13.45 (FWS) and
that may be taiien are preferable to 222.23(d) (NMFS). there are provisions
descriptions of the extent of disruption concerning reporung requirembuts foe
and will be provided when they can be any taking of threatened or endangered
computed. However, the Service species. These reporting requirement.s
reserves the flexibility in the ruie so that are not limited to annual reports, and
the most appropriate standard for an may vary in aceordance with the
individual consultation can be used. The particular needs of the species as set
Service declines to endorse thi use of forth in the inddental take statement.
numerical amounts in all cases over the Congress did not prohibit the imposition
use of descriptions of extent, because of new reporting requirements. con ary
rot some species lou of habitat resulthzg to the assertion of one comniente?.
in death or injury to individuals may be Another coiri s nte, said that Lbs
more deleterious than the direct toss of disposal procedure. in item (l)(1) lv)
a certain number of individuals, should refer to ipectmens” taken, not
Likewise, the Service declines to to species taken. The Service ha.
incorporate into the final rule the accommodated the conimenter’s concern
comment that would focus take levels by inserting “individuals of a speâe.” hi
on pop 4auon number, and recovery item (iv).
plan guidelines, if available. One Paragraph (Q(4) requires the Federal
commen let suggested that two figures or agency or the applicant to immedla!ely
levels be specifie± “the expected and request rebude don of formal
the acceptable amount or extent’ of consultation if the speâfied amaimt or,
take. This approach offers the beneflt of extent of inddental take I. exceeded.
giving a ‘caution” signal to Federal One commenter argued that the Service’
agencies or applicants an they approach is allowing the “Jeopardy” ceiling to be’
a possible problem with the incidental , exceeded in (i)(4).’fle Service
takings resulting from the actiop,. Steps disagrees: however, the Service agree.
could be taken to correct the course of that the amount or extent of tá]ce should
the action before the threshold of not be set at the threshold of likely
reinitiadon (level of maiumum jeopardy. lithe establishment of seth ë
anticipated take) is exceeded. The high taking level were necessary to
Service recognizes the merit of this cover all impacts of a proposed action, It
approach but does not require that it be Is questionable whether the tsquance of.
followed under the final rule because it a “no jeopardy” opinion s appropriate.
may not be appropriate for all Federal It Is not expected that the level of
actions. incidental take anticipated for moat “no
Paragraph (i)(1)(iij stale. that the , leop ardy ” actions would come close to
incidental take tatemenl shell .pcil ” tb e section 7(a)(2) barrier.
those reasonabte and prudent m9iew ’es COi ’igte si re bgnlsed thi, in the Mouse
necessary to minimise the level of .. r ePOrt tbthe 1982 Amen tr
incidental take. For the reasons lflhe spà’ciSed Impact en the spedea is -
discussed under the definitionof exceeded. the Committee expects that the
re tonablc and prudebt measures, the h pil agency or permittee or ticeasee wifl ;
Service has added a new paragraph isiastlate consultation since the
(i)(2j to the final rule to clarify that level of taking exceeds the Impact specified
in the alsection 7lbX4)’ItatensnLta th ’
reasonable and prudent measm’es may t n
only involve minor change, that do not coinpietlon of the new cousaIts tias. th.
alter the basic design, tocatiou,,duratloii. co nee would a erp ct be Fedmul
or tuning of the action. Should tbe agency or pseenties cr,L lcenaes to ceu. e l i
Service believe that iha way to minimiz operations unless ii waa clear this the onpact
the incidental Ia kings is through of the additional taking would cause as
research, an explanation of how such Irreversible and advarae Impeci oath.
research will accomplish this win be species.
included. Any research-related H.R. Rep. No.56?, 07th Cong. . 24 Seas.
reasonable and prudent mesanie shall V (1982). Exceeding the level of
be subject to the L itafiona Ia anticipated taking doe. not, by itselL
paragraph (i)(2). require the slopping clan ongoing
Paragraph (i)(1)(ui) provides that action during reinitiadots of
reportuig requirements must be Included consultation The Federal agnncy must
in the terms and conditions of an make this ultimat. 4ecisicn. taki g Into
incidental take statement. Aa explained consideration the prohibition. of
in paragraph 111(3). these reporting sections 7(aK2 ) and 1 d). Fw’ther, the
requirements will be tailor*d to the Service will enforce the taking
nature of the particular Federal acdom prohibitions of section 4 (d) 0 ,9 if tbe -
and will. to the e, ‘ent pouiblo. be continuation of an utica. alter the
anticipated level of inci”dental take ba.e
been reached. results in additional
takings of listed species.
This provision for Incidental take in
no way affects a Federal agency’.
responsibility under section 7ta)(2) to
ensure that its action is not likely to
jeopardize the continued existence of a
listed species or result In the destruction
or adverse modification of critical
habitat, The Service agrees with one
commenter that the bash for the
• conclusion that Incidental take will not
violate section 7(aliz) should be
included with the biological opinion.
Paragraph (J) specifies that the Service
may provide any conservation
recommendations with the biological
opinibn. Seyeral commenters objected to
the inclusion of con*rvation
recommendations In the biological
opinion, and questioned whpther these
recommendations were to have binding
force. The comment submitted by the
House Committee summarized these
coacerust
Whil, the proposed regulations conform to
be statute regarding th. recommending ci
“reasonable and prudent alternatives’ only
where jeopardy is found, they also Inject a
totaUy new concept referred to as
“conservation reconuuendatlons.” AlthOugh
we do not argue with the appropnateueu of
wildlife agencies recommending measures
that could be taken to lessen a projects
impact on endangered or threatened species.
It should be med. clear in the regulations that
failure to abide by these iecommaadations
does uct result in a violation of ctiaa 7Ia)(2
of the Act. In addition. whal, the language of
sectiOn 7 aJ(1) does direct all Federal.
agencies to “utlize their suthotWes to
furtherance of the purposes of Ithe ACtS by--
carry(ng out programs fur the conservation of
endangered species and threuten d .peclfe”
,we do not believe thatit was intended thai -
section ?(a)(1) reqmre developmental ag p-
- actions b. neared as conserve bins
programs foe endangered or three iensd
speci We also do not believe sl all of the’
conservation recommendations vi the
Seoretary hiv, to be followed for this
requirement to be met. Such an interpretation
would render the much debited provisions of
section ? eJ(2) r. dant and eesendal)y
mea les. an- .* sbovi .ndleer -
litigation.
Accordingly, n ‘egeet that any
conservation rico.’ ‘ndanons be
frazemittad to action - isoole. separate fram
biological o ””-a ‘bet the regulation.
state plainly that fai. in s pt or
Implement the recem 4adcns does not
constitute a violation action Tot the Act.
1 Service agrees with the
Commjttee’a c1 1nm.nt.s and his
*msnded th. proposed rule scoordingly.
Disciedonary cuiservation
recoin m.ii datlons will be provided with
the blelogical opinion sea separate
statement rather thas as am integral sit
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Federal Rbgistar I Vol . 51. No 106 I Tuesday. June 3.1988 I Rules and Regulations
19955
of the opinion. In ‘has rule. conservation
recommandabons ( 402.14(J)) are
discussed separately from biological
opinions (402.14 (h) ). A sentence has
been added at the conthasion of
paragraph ) to emphaaize the advisory.
non-binding nature of conservation
recommendations.
Paragraph (k) of 4O2.14, which deals
• with incremental steps. is adopted with
qunor. technical changes from proposed.
• §402.15(j)(2). Paragraph (k) applies. at’
the option of the Federal agency. in
sftuutionz where a statute authorizes the
Fedçral action to be taken in
incremental steps. Such circumstances
existed In North Slope Borough v.
Andi’vs, 642 F.2d 589 (D.C. Cit. 1980).
involving development of oil arid gas
resources on the OCS and possible
impacts to the bowhead whale. In view
of this decision. these regulations
provide that a Fe leral agency may
proceed with incremental steps toward
opmpletion,of the’ entire ac ’tion if: (1) the
biological opinion does not conclude
that the incremental Step would violate
section 7(a)(2); (2) the Federal agency
continues consultation with respect to
the entire action and obtains biological
opinions. as required. for each
Incremental step: (3) the Federal agency
fulfills its ’contlnuing obligation, to obtain
sufficient data upon which to base the
final biological opinion on the entire
acti ’bn: (4) the incremental step-does not
violate section 7(d) of the Act
concerning irreversible or irrethevable
comnutrnent of resources: and (5) there
is a reasonable likelihood that the entire,
action will not.viqjate section 7(a)(2) of
the Act.
In response to one comment, the
Service acknowledges that the
incremental step process can only be
invoked at the option of the Federal
agency..regardleae of the Service’s
preference. lithe Federal agency
hooses not to use the increznenta.l step
process. the Service must render its
biological opinion for the entire action.
Several commenters thought that this
provision should be deleted. Some
thought the subject should be handled
through counterpart regulations or
• li ited strictly to Outer Continental
Shelf Landi Act cases. Another
comnienter staled that the incremental
step approach as ill-advased’bedause it Is
difficuM o halt a project at its final stage
after substantial resources have been
invested. Finally. tWo commenters
criticized the approach as a vehicle
granting the Service veto power at any
stage of the Federal action.
Paragraph (k) is retained in the final
rule fpr several reasons. First. the
SeMce adopts paragraph (k) because It
provides a viable consultation approach
sanctioned by the court in North Slope
Borough v. Andrus. aupro. The Service
has clarified the final rule to show that it
will not deprive a Federal agency of the
opportunity to consult on incremental
steps if requested. Second. the risk of
section 7(a)(2) and 7(d) noncompliance
should not be rhminished beonuse the
incremental step approach is used.
Monetary inves ents or other actions
that do not foreclose the adoption of
reasonable and prudent alternatives do
not violate section 7(d). LI a “jeopardy”
opinion is issued at any step of the
overall action. a prompt remedy can be
sought through the exemption
procedure. Third,’consulting in
incremental steps can be a valuable tool
for developing information as an action
‘progresses.
Oil and gas development on the OCS
i a muitistaged. long term act,ion that
provides a good example of the utility of
an incremental step consultation. The
Federal action occurs in discrete stages:
the lease sale. exploration activities.
and development/production activities.
Any analysis of the impacts of
development/production,would be mere
speculation without knowing what
tracts wilibe leased and without the
information on the extent of the
petroleum reserves discovered during
the exploration phase. As thai si.ope and
location of the ultimate action is further
refined, the Federal agency will have the
opportunity to conduct studies designed
to determine the effects of that
particular acton in that particular area.
The Service is sympathetic to the
commenter’s concern that applicants
might face an arduous series of
consulte..tions under paragraph (k),
‘whereas a prompt consultation on the
entire action would avoid a series of
reviews by the Service. The Service
reminds applicants that they may. in
appropriate instances, avail theni ’selves
of the early consultation procedure to
obtain a preapplication review of the
remaining steps of the Federal action.
Under paragraph (k), biological
opinions concluding “no jeopardy,” or
Service concurrence Ietters.flnding that
a step “is not likely to adversely affect.”
must eventually cover each ‘step of the
Incremental process. This does not mean
that separate opinions must be issued
for each step—several steps may be
covered in one opinion (e.g.. OCS
Masing and exploration activities}—but
instead that each step must eventually
satisfy *ection 7(a)(2) of the Act. A
“jeopardy” opinion issued at any stage
not only applies to that step but to the
entire project as weU. Once a
- “jeopardy” opinion Is issued (unless the
Federal agency adopts a reasonable and
prudent alternative provided by the
Service), paragraph (k) is inapplicable
and the ordinary consultation process
applies.’ allowing access to the
exemption process. The commenter that
contended that this approach is
tantamount to a usurpation of Federal
agency statutory authority ignores the
fact that this process is at the option of
the Federal agency and that the net
effect of the Service’s action is to cause
the consultation to revert to a treatment
of the action as a whole. The Federal
agency may disagree with the Service’s
“jeopardy” finding. but it cannot
continue to consult on an incremental
basis on remaining steps in the ecuon.
One commenter insisted that an
action can be halted only if new
information that was not previously
known becomes available during a later
stage of the incremental step
consultation. However, the Service’s
responsibility to determine “jeopardy”
‘or “no jeopardy” places no weight on
when, where, or how data that is of
compelling force in its analysis were
devtloped. The Service cannot ignore
data and permit a listed species to
become jeopardized because someone
“missed” a piece of.information during
an earlier step of the. consultation. One
of the criteria for reinitiatiob of formal
consultation Is whether new information
reveals effects of the action that may
affect a listed species or critical habitat
ins manner or to an extent riot
previously considered. Therefore.
incremental step consultations are not
the only consultations subji ted to this
requir meflt.
Finally, one cotnmenter objected to
the requirement for obtaining sufficient
data’, noting an alleged absence of
statutory authority. Again, paragraph (Tc)
is not a creature of statute,.but i.nstead
was developed so that consultations
could be initiated and focused on a step-
by-step review of segmented Federal
actions—especially those where, in the
absetice of additioital Information, the
final determination of “likely jeopardy”
for the entire action would be highly
speculative if cohsultation were not
limited to the initial step or steps. The
development of sufficient inforqiation is
crucial to the.uitimate success of.the
incremental step process. and, therefore.
cannot be elinitna ted from the rule. The
F,ederal agency must have sufficient
information to show that its action is not
likely to jeopardize the continued
existence of listed species or result in
the deitruction or adverse modification
of critical habitat,
Section 402.14(1) covers the
termination of formal consultation.
Adopted from proposed 1402.15(i112)—(4),
paragraph (1) was retained in the. section
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19956
Federal Register I Vol. 51. No. 106 / Tuesday. lune 3. 1988 I Rules and Reculations
Dfl formal consultation because 4402.14
is the primary mandatory procedure of
Part4 OZ. -
The proposed rule provided that
consultation terminated with the
issuance of a “no ieopardy” opinion
unless further discussion took place.
and. if a “jeopardy” opinion was issued.
consultation terminated with the
Services receipt of the Federal agency’s
decision on the acnon. This notice
r quireme1t was criticized by several
cornmenters as unnecessary and as
extending consultation beyond the legal
timeframe. As discussed under the
“Definitions” section above, further
discussion has been deleted as a fotnial’
step in the consultation process. Further.
to accommodate the concerns.
consultation terminates with the
issuance of the biological opinion.
whether “jeopardy” or ‘no jeopardy.”
llowever. the Service believes that the
Federal agency notice of final action
with respect to “Iropardy” opinions
represents a minimal burden and ha.
retained it under 4402.15—
“Responsibilities of Federal agency
tolowing issuance of a biological
opinion. The Service agrees that a copy
of the NEPA record of decision would
meet the notice provisions of 4402.15(b):
the Service disagrees that this approach
causes problems with NEPA
compliance.
Finally. ne cornnienter suggested that
written notice be require4 to terminate
consultation’if a Federa agency or
applicant decides to cancel plans for the
action that is the subject of the
consultation. The Service agrees that a
wntte, notice of’tern,mation ii
preferred. and has adoptë’d the
cornmenter’s suggestion in paragraph
11 1(21. - :
Section 402.23 1 espons;bsiities of. -
Federvi Agency Foiow:njTssuance ora
Biological Opu,ron. -
Following the receipt of the Services
biological opinion, the Federal agency
will make Its final decision oi the
action. Section 402.15 describes the
steps that the Federal agency should
take after consultation is concluded.
Paragraphs (a) and (c) of this section are
adopted substantially without change
from proposed 4402.17. Paragraph (b) in
adopted from proposed 4402.15(1J(3)
(last sentence).
Several commenters asked that the
Federal agency be required to provide a
statement of its reasons if it has chosen
to disregard the Service’s biolo cal.
opinion. The Service declines to
implement thu request. because it
remains the responsibility of each
Federal agency to insure that it Is In
compliance with section 7(a)(2) and that
it has established an administrative
record for a given activity which
demonstrates such compliance.
Federal courts have accorded Service
biological opinions great deference. It.
therefore, is incumbent upon a Federal
agency to artieJate in its administrative
record its reasons for disagreeing with
the conclusions of a biological opinion.
But this is a matter which is primarily
controlled under the provisions and
judicial interpretations of the
Administrative Procedure Act, not these
regulations. Thus, the requested
modification would add nothing that Is
not already required as a matter of
administrative law.
Paragraph (c) points out the
availability of an’exemption process if
the Federal agency determines that its
proposed actiortcanziot comply with
section 7(a)(2). AlthougKnot covered in
4402.15. the applicant may also pursue
an exer tion if it receiv’es s final denial
of its appLicatwn as a result of a
“jeopardy” biological opinion. The
Service disagrees with one comnienter
that the applicant may seek an
exemption if the Federal agency issues
the permit or license with conditions
related to section 7 considerations. The
Act requires a final agency denial, and
the issuance of a “jeopardy” biological
opinion on the action. as predicates for
an applicant’s entry into the exemption
process. See ae tions 3(12) and 7(g)(1) of
theAct. -
• Sect,o 402.16 Rejn,tjodon of Formoi
Consuitouon.
Reinitiation of formal consultation is
required in ceilain’inatarices as
specified in 4402.18. The reinitiatlon
requirement applies only to action that
remain subject to some Federal
involvement or control. In the case
where a permit or license had been
granted. retnitiatlon would not be
appropriate unless the permitting or
licensing agency retained jurisd iction
over the matter under the terms of the
permit or license or as otherwise
authorized by law.
In response to one comment, the
Service notes its lack of authority to
require Federal agencies to reinitiate
consultation if they choose not to do so.
Nevertheless, the Service shall request
reinitlatlon when it believes that any
condition described in this section
applies.
Pursuant to several public tomments.
several minor changes hav,e been made
to 4402.18 (proposed 4402.18). Proposed
‘paragraph (a). dealing with
‘nonconflrmation of preliminary.
biological opinions, was deleted since It
is more properly covered in the
discussion of early consultation. The
standard for reinitiation on incidental
take statements is clarified in new
paragraph (a). Paragraph (C) is clarified
to show that changes to the action that
do not cause effects different from or
additional to those considered in the
biological opinion will not require
reinitiation of formal consultation.
Swamasy
The Amendments made significant
changes in the consultation
requirements of section 7. and the
Service believes that a consistent
response by the Federal agencies to
those Amendments. as implemented by
this final rule. will facilitate successful
compliance with section 7 of the Act
The Service believes that these
regulations will serve as an effective
tool for the early resolution of potential
conflicts involving listed species.
The primary authors of this final rule
are Michael Young and Nancy Sweeney,
Department of the Interiori Patricia
Carter, Patricia Montanjo, and Michael
Goaliner, Department of Commerce.
The Department of the Interior, as
lead agency in the development of these
regulations, has prepared an
environmental assessment in
con)unction with this rulemaking. On the
basis of the environmental assessment,
it has been determined that this is not a
major Federal action sigruficantly
affecting the quality of the human
environment within the meaning of
section 102(21(C) of the National
EnvironmentalPolicy Act of 1969
(implemented at 40 CFR Parts 1500-’
1508). Therefore, an environmental
impact statement need not be prepared.
These procedural regulations simply
provide a uniform approach fo,r
consultation required by se tion 7 of the
Act. Compliance with the procedures in
these regulations wiU Dot have any
significant. direct. or indirect adverse
environmental impact It also has been
determined that these regulations do not
constitute major rules as defined in
Executive Order 12291. The Department
of the Interior has certified, under the
terms of the Regulatory Flexibility Act (5
U.S.C. 601), that these regulations will
not have a significant economic impact
on a substantial number of small
entities. The regulations are directed at
Federal actions. The costs to small
entities are thoae involved with t ra’ng
and data gathering, if requested by the
Federal agency. Even if the costs were
passed on. the analysis under the
Regulatory flexibility Act ha.
concluded that they are not substantiaL
The Department has determined that ‘ - ‘
these nile. do not contain “collection of
Information” or recordkeeping
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Federal Register I Vol. 51. No. 106 / Tuesday. June 3. 1966 I Rules and Reg’ulations
19
requirements is defined by the
Paperwork Reduction Act The analyses
under Executive Order 12 1. the
Regulatory Flexibility Act, and N A
are available to the public at the Office
of Endangered Species. U.S Fish and
Wildlife Service, at the address listed
above.
LIM of Subjects fit 50 a’i Pail 4
Endangered and threatened wildlife,
Fish. Intergovernmental relations. Plants
(agriculture).
Regulation Promulgation
Accordingly. the Service revises 50
CFR Part 402 to read as follows:
PART 402—INTERAGENCY
COOPERATION—ENDANGERED
SPECIES ACT OF 1973, AS AMENDED
Suepert A—General
Subpart A—Gán.ral
4oaii Seeps .
(a) This Part Interpret, and
implements sections 7(a)-(d) (16 U.S.C.
1536(a)—(d)] of the Endangered Species
Act of 1973, as amended (“Act”). Section
7(a) grants authority to and Imposes
requirements upon Federal agencies
regarding endangered or threatened
species of fish, wildlife, or plants
(“listed specie,”) and habitat of such
pecies that has been designated as
critical (“critical habitat”). Section
7(a)(1) of the Act directs Federal
agencies. In consultation with and with
the assistance of the Secretary of the
Interior or of Commerce. as appropriate. —
to utilize their authorities to further the
purposes of the Act by carrying out
conservation programs for listed
species. Such affirmative conservation
2 . Piitl gered or threatened specier
under the jurisdiction of the NMFS an
located in 50 R “-‘- “(a) and 227.4..
the subject specie. is cited in 50 CFR
i( ) or 227.4. the Federal agency
shall contact the NMFS For all other
listed species the Federal Agency shal
contict the FWS.
the adverse effects.
‘‘Conservation recomxnei’tdations” are
suggestions of the Service regarding.
discretionary measures to muurmze or
avoid adverse effects of a proposed
action on listed species or critical
habitat or regarding the development of
information.
programs must comply with applicable
permil requirements (50 ‘R Parts 17.
220. 222. and ) for listed speaes end _____
should be coordinated with the
appropriate Secretary. Section 7(a)(2) of _____
the Act requires every Federal agency,
in consultation with and with the
assistance of the Secretary, to (name
that any action it authorizes, funds, or -
carries out. In the United States or upon I 402 2 O.tL 1 II08I .
the high seas is not likely to jeopardize “Act” means the Endangered Specie
the continued existence of any listed Act of 1973. as amended. 16 U.S.C. 153
species or results in the destruction or e:seq.
adverse modification of ci’itical habitat. “Actjon” means all activities or
Section 7(a)(3) of theAct authorizes a programs of any kind authorized.
prospective permit or License applicant funded, or carried out, in whole or in
to request the Issuing Federal agency to part. by,Federal’ agencies in the United
enter into early consultation with the States or upon the high seas. Examples
Service on a proposed action tO Include, but are not limited to! (a)
determine whether such action ii likely actions intended to conserve Listed -
to jeopard ize the continued existence of species or their habitat: (b) the
_____ listed species or result In the destruction promulgation of regulations; (c) the
or adverse modification of thcal granting of licenses. contacts. leases.
habitat. Section 7(a)(4) of the Act easements. rights.of.way. permits, or
402.01 Sco e requires Federal agencies to confer with Vants-in-aidi d l (d) actions directly pr
402.02 Definitions, the Secretary on any action that is Likely modifications to the
402.01 ApplJcabilaty.
402.04 Counterpart regulations to jeopardize the continued existence ° land. water..or air.
402.05 Emergencies, proposed species or result in the
402.06 Coordination with other - destruction ør adverse modi paUon of “Action area” means all areas to be
environmental reviews, proposed critical ‘habitat. Section 7(b) of affected directly or indirectly by the
402.07 De,igoauoc of lead agency the Act requires the Secretary, after th Federal action and noi merely the
402.08 Demgnauon of non-Federal condusion of early or formal Immediate area involved in the action.
representative. consultation, to issue a written “Applicant” refqrs to any person. a.
402.05 Irreversible or irretrievable statement setting forth the Secretary’s defined in section 3(13) of the Act. who
commimient of resources. opinion detailing how the agency action requires formal approyal or
‘ m l from a F’ederrl kgency as
S part 6”CoflsUtte Ofl PrOcsdis’S$ affects listed species or.critfcal ha
402.10 Conference on proposed species or Biological assessments aie req
proposed a’itical habitat. under section 7(c) of the Act
toco ii
402.11 Early mnsultation. species or critical habitat may b!
- Biologtc l sese .i. - present Zn the area affected by any
era bey
oonaultat lo n ,. - —. . -. pr ns (s-defined in dbncel’ning listed and proposed species
-
1404.OZ Secilon 7(d)-orihe Act prohibits and desjgnated and proposed a tioal
‘ ‘ Is sny irreversible l ed Ievable .rea and the evalu’ation potential effects
‘ ogi , ,Federanciesep , .pp1lcäz I from’ babl at that may be present in the action
c0toii en% ofPeeOurocs whfch has the oLthe ctioo on such species and
g ‘ u rlty i u C ’ff31 j ,-” ‘ ‘effect otferè losirig the formulation or’ habitat. -
Implementation of reasonable and “Biological opinion” is the document
prudent alternatives which would avoid that states the opinion of the Service as
_____ jeopardizing the continued existence of to whether or not the Federal action is
listed specie. or resulting In the likely to jeopardize the continued
destruction or adverse modification of existence of listed species or result in
critical habitat. Section 7(e}—(o)(1) of the the destruction or adverse modification
Act provide procedures for granting -- of cratical habitat.
exemptions from the requirements of “Conference” is a process which
section 7(e)(2). Regulations governing Involves informal discussions between a
the submission of exemption Federal agency and the Service under
applications are found at 50 CFR Part ti 7(a)(4) of the Act regarding the
451, and regulations governing the lmpact,of an action on proposed species
exemption process,are found at 50 CFR or proposed critical habitat and,
Parts 450. 452. and 453.
(b)Tha U.S, Fish and Wildlife Service re oznmendations to in m17e or avoid
(FWS) and-the National Marine
Fisheries Service (NMFS) share -
responsibilities for administering the
Act. The Lists of Endangered and
Threatened WIldlife and Plants are
found in so CFR 17.11 and 17,12 and the
designated miucal habItats are found in
50 CFR 17,95 and 17.96 and 50 CFR Pail
-------
§ 401.12
so c ch. IV (10.1-92 EditIon) joint R.gulatlons on Endang.r.d Sp.d.s
§ 401.12 Ownership of property.
When real property is acquired pur-
suant. to the provisions of the Act, title
to such property, or interests therein.
shall be vested in the United States.
and the conveying instrument shall
recite the United States of America as
the grantee. However, if the Secretary
determines that under the terms of
the application for Federal assistance
and grant-in-aid award or project
agreement, the intent and purpose of
the Act may be better served by other
ownership of such property, an appro-
priate transfer may be made. When
real or personal property is utilized as
matching funds, title to such property
shall be in the Cooperator unless oth-
erwise specified in the grant-in-aid
award or project agreement.
§401.13 Personnel.
The Cooperator shall maintain an
adequate and competent force of em-
ployees to initiate and carry approved
work to satisfactory completion.
5401.14 Inspection.
Cooperator supervision of each
project shall include adequate and
continuous inspection. The project
will be subject at all times to Federal
inspection.
O 401.15 Record retention.
All records of accounts and reports
with supporting documentation there-
to, as set forth in Attachment C of
Federal Management Circular 74-7.
will be retained by the Cooperator for
a period of 3 years alter submission of
the final expenditure report on the
project. Record retention for a period
longer than 3 years is required if audit
findings have not been resolved.
5401.16 Records and reporting.
Performance reports and other re-
ports shall be furnished as requested
by the Secretary. Cost records shall be
maintained separately for each proj-
ect. The accounts and recor& main-
taitied by the Cooperator, tngether
with all supporting document.., shall
be open at all times to the inspection
of authorized representatives of the
United States, and copies thereof shall
be furnished when requested.
(Approved by the Office of Management
and Budget under control number 0648-
0102)
(40 FR 26678, June 25. 1975, as amended at,
48FR 57302. Dec. 29. 1983]
5401.17 Safety and accident prevention.
in the performance of each project,
the Cooperator shall comply with all
applicable Federal. State, and local
laws governing safety, health and sani-
tation.
§401.18 Contracts.
A Cooperator may use its own regu-
lations or guidelines in obtaining serv-
ices by contract or otherwise, provided
that they adhere to applicable Federal
laws, regulations, policies, guidelines,
and requirements, as set forth in At-
tachment 0 of Federal Management
Circular 74-7. However, the Coopera-
tor is the responsible authority, with-
out recourse to the Federal agency, re-
garding the settlement of such con-
tractual issues.
5401.19 Statements and payrolls.
The regulations of the Secretary of
Labor applicable to contractors and
subcontractOrs (29 CFR part 3), made
pursuant to the Copeland “Anti-Kick-
back” Act (18 U.S.C. 874), as amended.
are made a part of the regulations in
this part by reference. The Cooperator
will comply with the regulations In
this part and any amendments or
modifications thereof, and the CoOP-
erator’s prime contractor will be re-
sponsible for the submission of state-
ments required of subcontractors
thereunder. The foregoing shall apply
except as the Secretary of Labor may
specifically provide for reasonable lim-
itation, variations, tolerances, and ex-
emptions.
§401.20 Officials not to benefit.
No Member of, or Delegate to, Con-
gress. or resident Commissioner, shall
be admitted to any share or any part
of any project agreement made under
the Act, or to any benefit that may
arise therefrom. This provision shall
not be construed to extend to this
agreement if made with a corporation
for its general benefit.
470
O40 1.2l Patents and Inventions.
Determination of the patent rights
in any inventions or discoveries result-
ing from work under project agree-
ments entered into pursuant to the
Act shall be consistent with the “Gov-
ernment Patent Policy” (President’s
memorandum for Heads of Executive
Departments and Agencies, August 23,
1971, and statement of Government
Patent Policy as printed in 36 FR
16889).
I 401.32 Civil rights.
Each application for Federal assist-
ance, grant-in-aid award, or project
agreement shall be supported by a
statement of assurances executed by
the Cooperator providing that the
project will be carried out in accord-
ance with title VI, Nondiscrimination
in federally Assisted Programs of the
Civil Rights Act of 1964 and with the
Secretary’s regulations promulgated
thereunder.
5401.23 Audit.,
The State is required to Conduct an
audit at least every two years in ac-
cordance with the provisions of At-
tachment P ( MB Circular A-102. Fail-
ure to conduct audits as required may
result in w . hholding of grant pay-
ments or su ‘i other sanctions as the
Secretary may deem appropriate.
(49 FR 300 ’14. July 26, 1984]
PART 402—INTERAGENCY COOP-
ERATION—ENDANGERED SPECIES
ACT OF 1973, AS AMENDED
Subpa,t A—Q.n.r.i
Sec.
40201 Scope.
402.02 Definitions.
402.03 ApplicabIlity.
402.04 Counterpart regulatIons.
402 05 Emergencies.
402.06 Coordination with other environ-
mental reviews.
402.07 Designation of lead agency.
40208 Designation of non-Federal repre-
sentative.
402.09 Irreversible or irretrievable commit-
ment of resources.
Sec.
Subpart B-Conaid*stIse Proc.duv..
402.10 Conference on proposed species or
proposed critical habitat.
402.11 Early consultation.
402.12 Biological assessments,
402.13 Informal consultation,
402.14 Formal consultation,
402.15 ResponsibIlities of Federal agency
foilowing issuance of a biological opin-
ion.
402.16 Reinltiatlon of formal consultation,
Avmoazi’v: i6 U.S.C. 1631 ci seq.
Souitcs 51 FR 19957. June 3, 1986, unless
otherwise noted.
Subpart A—G.n.ral
§402.01 Scope.
(a) ThIS part interprets and Imple-
ments sections 7(a)-(d) £16 U.S.C.
1536(a)-(d)I of the Endangered Spe-
cies Act of 1973, as amended (“Act”).
Section 7(a) grants authority to and
imposes requirements upon Federal
agencies regarding endangered or
threatened species of fish, wildlife, or
plants (“listed species”) and habitat, of
such species that has been designated
as critical (“critical habitat”). Section
7(a)( I) of the Act directs Federal agen-
cies, in consultation with and with the
assistance of the Secretary of the Inte-
rior or of Commerce, as appropriate,
to utilize their authorities to further
the purposes of the Act by carrying
out conservation programs for listed
species. Such affirmative conservation
programs must comply with applicable
permit requirements (50 CFR parts 17.
220, 222, and 227) for listed species and
should be coordinated with the appro-
priate Secretary. Section 7(a)(2) of the
Act requires every Federal agency, In
consultation with and with the assist-
ance of the Secretary, to insure that
any action it authorizes, funds, or car-
ries out, in the United States or upon
the high seas, is not likely to jeopard-
ize the continued existence of any
listed species or results in the destruc-
tion or adverse modification of critical
habitat. Section 7(a)(3) of the Act au-
thorizes a prospective permit or li-
cense applicant to request the issuing
Federal agency to enter into early con-
sultation with the Service on a pro-
posed action to determine whether
471
hi-b 0—fl—is
-------
§ 402.02
50 CFR Ch. IV (10-1-92 EditIon) I Joint Regulations on Endang.r.d Sp.cl.s
§ 402.02
such action is likely to jeopardize the
continued existence of listed species or
result in the destruction or adverse
modification of critical habitat. Sec-
tion 7(a)(4) of the Act. requires Federal
agencies to confer with the Secretary
on any action that is likely to jeopard-
ize the continued existence of pro.
posed species or result in the destruc-
tion or adverse modification of pro-
posed critical habitat. Section 7(b) of
the Act requires the Secretary, after
the conclusion of early or formal con-
sultation, to issue a written statement
setting forth the Secretary’s opinion
detailing how the agency action af-
fects listed species or critical habitat
Biological assessments are required
under section 7(c) of the Act if listed
species or critical habitat may be
present in the area affected by any
major construction activity as defined
in 404.02. Section 7(d) of the Act pro-
hibits Federal agencies and applicants
from making any irreversible or irre-
trievable commitment of resources
which has the effect of foreclosing the
formulation or implementation of rea-
sonable and prudent alternatives
which would avoid jeopardizing the
continued existence of listed species or
resulting in the destruction or adverse
modification of critical habitat. Sec-
tion 7(e)-(o)(1) of the Act provide pro-
cedures for granting exemptions from
the requirements of section 7(a)(2).
Regulations governing the submission
of exemption applications are found at
50 CFR part 451. and regulations gov-
ei-ning the exemption process are
found at 50 CFR parts 450. 452, and
453.
(b) The U.S. Fish and Wildlife Serv-
ice (FWS) and the National Marine
Fisheries Service (NMFS) share re-
sponsibilities for administering the
Act. The Lists of Endangered and
Threatened Wildlife and Plants are
found in 50 CFR 17.11 and 17.12 and
the designated critical habitats are
found in 50 CFR 17.95 and 17.96 and
50 CPR part 226. Endangered or
threatened species under the Jurisdic-
tion or the NMFS are located in 50
CFR 222.23(a) and 227.4. If the subject
species is cited in 50 CFR 222.23(a) or
227.4. the Federal agency shall contact
the NMFS. For all other listed species
the Federal Agency shall contact the
FWs.
§ 402.02 Delinitions.
Act means the Endangered Species
Act of 1973, as amended. 16 U.S.C.
1531 et seq.
Action means all activities or pro-
grams of any kind authorized, funded,
or carried out, in whole or in part, by
Federal agencies in the United States
or upon the high seas. Examples in.
dude, but are not limited to:
(a) actions intended to conserve
listed species or their habitat;
(b) the promulgation of regulations;
(C) the granting of licenses, con-
tracts, leases, easements. rights-of
way, permits, or grants-In-aid; or
(d) actions directly or indirectly
causing modifications to the land.
water, or air.
Action area means a’ - areas to be af-
fected directly or indirectly by the
Federal action and not merely the Im-
mediate area involved in the action.
Applicant refers to any person, as
defined in section 3(13) of the Act.,
who requires formal approval or au
thorization from a Federal agency as a
prerequisite to conducting the action.
Biological assessment refers to the
information prepared by or under the
direction of the Federal agency con-
cerning listed and proposed species
and designated and proposed critical
habitat that may be present in the
action area and the evaluation poten.
tial effects of the action on such spe-
cies and habitat.
Biological opinion is the document.
that states the opinion of the Service
as to whether or not the Federal
action is likely to jeopardize the conS
tinued existence of listed species or
result in the destruction or adverse
modification of critical habitat.
Conference is a process which In-
volves informal discussions between a
Federal agency and the Service under
section 7(a)(4) of the Act regarding
the impact of an action on proposed
species or proposed critical habitat
and recommendations to minimize or
avoid the adverse effects.
Conservation rçcommendatiofls are
suggestions of the Service regarding
discretionary measures to minimize or
avoid adverse effects of a proposed
action on listed species or critical habi-
tat. or regarding the development of
information.
Critical habitat refers to an area
designated as critical habitat listed in
50 CFR parts 17 or 226.
Cumulative effects are those effects
of future State or private activities,
not involving Federal activities, that
are reasonably certain to occur within
the action area of the Federal action
sub j . ct to consultation.
Designated non-Federal rep resenta-
live refers to a person designated by
the Federal agency as its representa-
tive to conduct informal consultation
and/or to prepare any biological as-
sessment.
Destruction or adverse modification
means a direct or indirect alteration
that appreciably diminishes the value
of critical habitat for both the survival
and recovery of a listed species. Such
alterations include, but are not limited
to, alterations adversely modifying
any of those physical or biological fea-
tures that were the basis for determin-
ing the habitat to be critical.
Director refers to the Assistant Ad-
ministrator for Fisheries for the Na-
tional Oceanic and Atmospheric Ad-
ministration. or his authorized repre-
sentative; or the Fish and Wildlife
Service regional director, or his au-
thorized representative, for the region
where the action would be carried out.
Early consultation is a process re.
quested by a Federal agency on behalf
of a prospective applicant under sec-
tion 7(a)(3) of the Act.
Effects of the action refers to the
direct and indirect effects of an action
on the species or critical habitat, to-
gether with the effects of other activi-
ties that are interrelated or interde-
pendent with that action, that will be
added to the environmental baseline.
The environmental baseline includes
the past. and present impacts of all
Federal, State, or private actions and
other human activities in the action
area, the anticipated impacts of all
Proposed Federal projects in the
action area that. have already under-
gone formal or early section 7 consul-
tation, and the Impact of State or pri-
vate actions which are contemporane-
ous with the consultation in process.
Indirect effects are those that are
caused by the proposed action and are
later in time, but still are reasonably
certain to occur. Interrelated actions
are those that are part of a larger
action and depend on the larger action
for their justification. Interdependent
actions are those that have no inde-
pendent utility apart from the action
under consideration.
Formal consultation is a process be-
tween the Service and the Federal
agency that commences with the Fed-
eral agency’s written request for con-
sultation under section 7(a)(2) of the
Act and concludes with the Service’s
issuance of the biological opinion
under section 7(b)(3) of the Act.
Incidental take refers to takings
that result from, but are not the pur-
pose of. carrying out an otherwise
lawful activity conducted by the Fed-
eral agency or applicant.
Informal consultation is an optional
process that includes all discussions,
correspondence, etc., between the
Service and the Federal agency or the
designated non-Federal representative
prior to formal consultation, if re-
quired.
Jeoparthze the continued existence
of 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, num-
bers. or distribution of that species.
Listed species means any species of
fish, wildlife, or plant which has been
determined to be endangered or
threatened under section 4 of the Act.
Listed species are found in 50 CFR
17.11— 17.12.
Major construction activity is a con-
struction project (or other undertak-
ing having similar physical impact.s)
which is a major Federal action sig-
nificantly affecting the quality of the
human environment as referred to in
the National Environmental Policy
Act (NEPA. 42 U.S.C. 4332(2)(C)].
Preliminary biological opinion
refers to an opinion issued as a result
of early consultation.
PToposed critical habitat means
habitat proposed in the FEDzRAL Rm-
to be designated or ‘ ed as
472
473
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Joint R.guiatlons on Endang.r.d Sp.cI..
§ 4O2.0
critical habitat under section 4 of the
Act for any listed or proposed species.
Proposed species means any species
of fish, wildlife, or plant that is pro-
posed in the FEDERAL REGIsTER to be
listed under section 4 of the Act.
Reasonable and prudent alternatives
refer to alternative actions identified
during formal consultation that can be
implemented in a manner consistent
with the intended purpose of the
action, that can be implemented con-
sistent with the scope of the Federal
agency’s legal authority and jurisdic-
tion, that is economically and techno-
logically feasible, and that the Direc-
tor believes would avoid the likelihood
of jeopardizing the continued e, st-
ence of listed species or resulting in
the destruction or adverse modifica-
tion of critical habitat.
Reasonable and prudent measures
refer to those actions the Director be-
lieves necessary or appropriate to min-
imize the impacts, i.e., amount or
extent, of incidental take.
Recovery means improvement in the
status of listed species to the point at
which listing is no longer appropriate
under the criteria set out in section
4(a)(1) of the Act.
Service means the U.S. Fish and
Wildlife Service or the Natioral
Marine Fisheries Service, as appropri-
ate.
§ 402.03 Appiicability.
Section 7 and the requirements of
this part apply to all actions in .hich
there is discretionary Federal involve-
ment or control.
• 402.04 Counterpart reguiatlons.
The consultation procedures set
forth in this part may be superseded
for a particular Federal agency by
ioint counterpart regulations among
that agency, the Fish and Wildlife
Service, and the National Marine Fish-
eries Ser ice. Such counterpart reguta-
tions shall be published in the FEDERAL
REGISTER in proposed form and shall
be subject to public comment for at
least 60 days before final rules are
published.
§ 402.05 Emergencies.
(a) Where emergency circumstances
mandate the need to consult in an cx-
50 CFR C li. IV (10-1-92 Edition)’
pedited manner, consultation may be
conducted informally through alterna-
tive procedures that the Director de-
termines to be consistent with the re-
quirements of sections ‘l(a)-(d) of the
Act. This provision applies to situa-
tions involving acts of God, disasters,
casualties, national defense or security
emergencies. etc.
(b) Formal consultation shall be ini-
tiated as soon as practicable after the
emergency is under control. The Fed-
eral agency shall submit information
on the nature of the emergency
action(s), the Justification for the ex-
pedited consultation, and the impacts
to endangered or threatened species
and their habitats. The Service will
evaluate such information and issue a
biological opinion including the infor-
mation and recommendations given
during the emergency consultation.
§ 402.06 Coordination with other environ-
mental reviews.
(a) Consultation, conference, and bi-
ological assessment procedures under
section 7 may be consolidated with
interagency cooperation procedures
required by other statutes, such as the
National Environmental Policy Act
(NEPA) (42 U.S.C. 4321 el seq., imple-
mented at 40 CFR Parts 1500-1508) or
the Fish and Wildlife Coordination
Act (FWCA) (16 U.S_C. 661 ci seq.).
Satisfying the requirements of these
other statutes, however, does not in
itself relieve a Federal agency of its
obligations to comply with the proce-
dures set forth in this part or the sub-
stantive requirements of section 7.
The Service will attempt to provide a
coordinated review and analysis of all
environmental requirements.
(b) Where the consultation or con-
ference has been consolidated with the
interagency cooperation procedures
required by other statutes such as
NEPA or FWCA, the results should be
included in the documents required by
those statutes.
§ 402.07 DesignatIon of lead agency.
When a particular action involves
more than one Federal agency, the
consultation and conference responsi’
bilities may be fulfilled through a lead
agency. Factors relevant in determin-
ing an approDriate lead agency-include
the time sequence in which the agen-
cies would become involved, the mag-
nitude of their respective involvement,
and their i elative expertise with re-
spect to the environmental effects of
the action. The Director shall be noti-
fied of the designation in writing by
the lead agency.
§402.08 Designation of non-Federal repre-
sentative.
A Federal agency may designate a
non-Federal representative to conduct
Informal consultation or prepare a bio-
logical assessment by giving written
notice to the Director of such designa-
tion. If a permit or license applicant is
involved and is not the designated
non-Federal representative, then the
applicant and Federal agency must
agree on the choice of the designated
non-Federal representative. If a bio-
logical assessment is prepared by the
designated non-Federal representative.
the Federal agency shall furnish guid-
ance and supervision and shall inde-
pendently review and evaluate the
scope and contents of the biological
assessment. The ultimate responsibil-
ity for compliance with sectIon 7 re-
mains with the Federal agency.
• 402.09 Irreversible or irretrlevabie com-
mitment of resources.
After initiation or reinitiation of
consultation required under section
7(a)(2) of the Act, the Federal agency
and any applicant shall make no Irre-
versible or irretrievable commitment
of resources with respect to the
agency action which has the effect of
foreclosing the formulation or imple-
mentation of any reasonable and pru-
dent alternatives which would avoid
violating section 7(a)(2), This prohibi-
tion is in force during the consultation
process and continues until the re-
quirements of section 7(a)(2) are satis-
fied. This provision does not apply to
the conference requirement for pro-
posed species or proposed critical habi-
tat under section 7(a)(4) of the Act.
Subpart I
§402.10 Conference on proposed species
or proposed criticai habitat.
(a) Each Federal agency shail confer
with the Service on any action which
is likely to jeopardize the continued
existence of any proposed species or
result in the destruction or adverse
modification of proposed critical habi-
tat. The conference is designed to
assist the Federal agency and any ap-
plicant in identifying and resolving po-
tential conflicts at an early stage in
the planning process.
(b) The Federal agency shall initiate
the conference with the Director. The
Service may request a conference if,
after a review of available informa-
tion, it determines that a conference is
required for a particular action.
Cc) A conference between a Federal
agency and the Service shall consist of
informal discussions concerning an
action that is likely to jeopardize the
continued existence of the proposed
species or result in the destruction or
adverse modification of the proposed
critical habitat at issue. Applicants
may be involved in these informal dis-
cussions to the greatest extent practi-
cable. During the conference, the
Service will make advisory recommen-
dations, if any, on ways to minimize or
avoid adverse effect,s. If the proposed
species is subsequently listed or the
proposed critical habitat is designated
prior to completion of the action, the
Federal agency must review the action
to determine whether formal consulta-
tion is required.
Cd) If requested by the Federal
agency and deemed appropriate by the
Service, the conference may be con-
ducted in accordance with the proce-
dures for formal consultation In
§ 402.14. An opinion issued at the con-
clusion of the conference may be
adopted as the biological opinion when
the species is listed or critical habitat
is designated, but only if no significant
new information is developed (includ-
ing that developed during the rule-
making process on the proposed listing
or critical habitat designation) and no
significant changes to the Federal
action are made that would alter the
content of the opinion. An incidental
$02.10
4 14
475
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§4)2.11
50 CM Ch. IV (10-1-92 Edition) I Joint R.gulations on Endang.r.d Sp.dsa
§402.12
take statement provided with a confer-
ence opinion does not become effective
unless the Service adopts the opinion
once the listing is final.
Ce) The conclusions reached during a
conference and any recommendations
shall be documented by the Service
and provided to the Federal agency
and to any applicant. The style and
magnitude of this document will vary
with the complexity of the conference.
If formal consultation also is required
for a particular action, then the Serv-
ice will provide the results of the con-
ference with the biological opinion.
O 402.11 Early consultation.
(a) Purpose. Early consultation is de-
sgned to reduce the likelihood of con-
flicts between listed species or critical
habitat and proposed actions and
occurs prior to the filing of an applica-
tion for a Federal permit or license.
Although early consultation is con-
ducted between the Service and the
Federal agency, the prospective appli-
cant should be involved throughout
the consultation process.
Cb) Request by prospective applicant.
If a prospective applicant has reason
to believe that the prospective action
m y affect listed species or critical
• hi,bitat. it may request the Federal
agency to enter into early consultation
with the Service. The prospective ap-
plicant must certify In writing to the
Federal agency that (1) It has a defini-
tive proposal outlining the action and
its effects and (2) it intends to iniple-
ment its proposal, if authorized.
(C) Initiation of early consultation.
If the Federal agency receives the pro-
spective applicant’s certification in
paragraph (b) of this section. then the
Federal agency shall initiate early con-
sultation with the Service. This re-
quest shall be in writing and contain
the Information outlined in 402.14(c)
and. If the action is a major construc-
tion activity, the biological assessment
as outlined in 0 402.12.
(dl Procedures and ,esponslbUitie&
The procedures and responsibilities
for early consultation are the same as
outlined in 402.14(c)-(j) for formal
consultation, except that all refer-
ences to the “applicant” shall be treat-
ed as the “prospective applicant” and
all referen es to the ‘biological opin-
ion” or the “opinion” shall be treated
as the “preliminary biological opinion”
for the purpose of this section.
(e) Preltminarll biological opinion.
The contents and conclusions of a pre-
lIminary biological opinion are the
same as for a biological opinion issued
after formal consultation except that
the incidental take statement provided
with a preliminary biological opinion
does not constitute authority to take
listed species.
(f) Confirmation of prelsminarll bio-
logical opinion as final biological
opinion. A preliminary biological opin-
ion may be confirmed as a biological
opinion issued after formal consulta-
tion if the Service reviews the pro-
posed action and finds that there have
been no significant changes In the
action as planned or in the informa-
tion used during the early consulta-
tion. A written request for confirma-
tion of the preliminary biological opin-
ion should be submitted after the pro-
spective applicant applies to the Fed’
eral agency for a permit or license but
prior to the Issuance of such permit or
license. Within 45 days of receipt of
the Federal agency’s request, the Serv-
ice shall either:
(I) Confirm that the preliminary bi-
ological opinion stands as a final bio-
logical opinion: or
(2) If the findings noted above
cannot be made, request that the Fed-
eral agency initiate formal consulta’
Lion.
1402.12 Biological assessments.
(a) Purpose. A biological assessment
shall evaluate the potential effects of
the action on listed and proposed spe-
cies and designated and proposed criti-
cal habitat and determine whether
any such species or habitat are likely
to be adversely affected ‘y the action
and is used in determining whether
formal consultation or a conference Is
necessary.
(b) Preparation requirement. (1) The
procedures of this section are required
for Federal actions that are “major
construction activities”; provided that
a contract for construction was not en-
tered into or actual construction was
not begun on or before November 10,
1978. Any person, including those who
may wish to apply for an exemption
from section 7(a(2) of the Act, may
prepare a biological assessment under
the supervision of the Federal agency
and in cooperation with the Service
consistent with the procedures and re-
quirements of this section. An exemp-
tion from the requirements of section
7(a)(2) Is not permanent unless a bio-
logical assessment has been prepared.
(2) The biological assessment shall
be completed before any contract for
construction is entered Into and before
construction is begun.
Cc) Request for information. The
Federal agency or the designated non-
Federal representative shall convey to
the Director either (1) a written re-
quest for a list of any listed or pro-
posed species or designated or pro-
posed critical habitat that may be
present in the action area; or (2) a
written notification of the species and
critical habitat that are being included
in the biological assessment.
(d) Director’s response. Within 30
days of receipt of the notification of,
or the request for, a species list, the
Director shall either concur with or
revise the list or, in those cases where
no list has been provided, advise the
Federal agency or the designated non-
Federal representative In writing
whether, based on the best scientific
and commercial data available, any
listed or proposed species or designat-
ed or proposed critical habitat may be
present In the action area. In addition
to listed and proposed species, the Di-
rector will provide a list of candidate
species that may be present in the
action area. Candidate species refers
to any species being considered by the
Service for listing as endangered or
threatened species but not yet the sub’
Ject of a proposed rule. Although can-
didate species have no legal status and
are accorded no protection under the
Act, their inclusion will alert the Fed’
eral agency of potential proposals or
listings.
U) If the Director advises’ that no
listed species or critical habitat may be
present, the Federal agency need not
Prepare a biological assessment and
further consultation is not required. If
Only proposed species or proposed crit.-
ical habitat may be present In the
action area, then the Federal agency
must confer with the Service If re-
quired under § 402.10, but preparation
of a biological assessment is not re-
quired unless the proposed listing
and/or designation becomes final.
(2) If a listed species or critical habi-
tat may be present in the action area,
the Director will provide a species list
or concur with the species list provid-
ed, The Director also will provide
available information (or references
thereto) regarding these species and
critical habitat, and may recommend
discretionary studies or surveys that
may provide a better information base
for the preparation of an assessment,
Any recommendation for studies or
surveys is not to be construed as the
Service’s opinion that the Federal
agency has failed to satisfy the infor-
mation standard of section 7(a)(2) of
the Act.
Ce) Verification of current accuracy
of species list. If the Federal agency or
the designated non-Federal represent-
ative does not begin preparation of the
biological assessment within 90 days of
receipt of (or concurrence with) the
species list, the Federal agency or the
designated non-Federal representative
must verify (formally or informally)
with the Service the current accuracy
of the species list at the Lime the prep.
aration of the assessment is begun,
(f) Contents. The contents of a bio-
logical assessment are at the discretion
of the Federal agency and will depend
on the nature of the Federal action.
The following may be considered for
inclusion:
(1) The results of an on ’site inspec-
Lion of the area affected by the action
to determine if listed or proposed spe-
cies are present or occur seasonally.
(2) The views of recognized experts
on the species at Issue.
(3) A review of the literature and
other information.
(4) An analysis of the effects of the
action on the species and habitat, in.
cluding consideration of cumulative ef-
fects, and the results of any related
studies.
(5) An analysis of alternate actions
considered by the Federal agency for
the proposed action.
(g) Incorporation by reference. It a
proposed action requiring the prepara-
tion of a biological assessment is iden.
476
477
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§402.131
50 CFR Ch. IV (10-1-fl Edition) Joint Rogulation, on Endang.r.d Spd.s
tical. or very similar, to a previous
actk’n for which a biological assess-
ment was prepared, the Federal
ager. y may fulfill the biological as-
sessment requirement for the pro-
posed action by incorporating by refer-
ence the earlier biological assessment,
plus any supporting data from other
documents that. are pertinent to the
consultation, Into a written certifica-
tion that:
(1) The proposed action Involves
similar impacts to the same species in
the same geographic area;
(2) No new species have been listed
or proposed or no new critical habitat
designated or proposed for the action
area; and
(3) The biological assessment has
been supplemented with any relevant
changes in information.
(h) Pernrit requirements. If conduct-
ing a biological assessment will involve
the taking of a listed species, a permit
under section 10 of the Act (18 U.S.C.
1539) and part 17 of this title (with re-
spect to species under the jurisdiction
of the FWS) or parts 220. 222. and 227
of this title (with respect to species
under the jurisdiction of the NMFS) is
required.
(I) Completion time. The Federal
agency or the designated non- Federal
representative shall complete the bIo-
logical assessment within 180 days
after its initiation (receipt of or con-
currence with the species list) unless a
different period of time is agreed to by
the DIrector and the Federal agency.
If a permit or license applicant is in-
volved, the 180-day period may not be
extended unless the agency provides
the applicant, before the close of the
180-day period, with a written state-
ment setting forth the estimated
length of the proposed extension and
the reasons why such an extension is
necessary.
(j) Submission of biological assess-
menL The Federal agency shall submit
the completed biological assessment to
the Director for review. The Director
will respond in writing wIthin 30 days
as tc whether or not he concurs with
the findings of the biological assess-
ment. At the option of the Federal
agency, formal consultation may be
initiated under 40214(c) concurrent-
ly with the submission of the assess-
ment.
(k) Use of the biological assessment.
Cl) The Federal agency shall use the
biological assessment in determining
whether formal consultation or a con-
ference is required under 402.14 or
402.10, respectively. If the biological
assessment Indicates that there are no
listed species or critical habitat
present that are likely to be adversely
affected by the action and the Direc-
tor concurs as specified in paragraph
(j) of this section, then formal consul-
tation is not required. If the biological
assessment indicates that the action is
not likely to jeopardize the continued
existence of proposed species or result
in the destruction or adverse modifica-
tion of proposed critical habitat, and
the Director concurs, then ii confer-
ence is not required.
(2) The Director may use Lie results
of the biological assessment ‘n Ci) de-
termining whether to request the Fed-
eral agency to initiate forma’ onsulta-
tion or a conference, Cii) formulating a
biological opinion, or (iii) formulating
a preliminary biological opinion.
§ 40213 informal consultation.
(a) Informal consultation is an op-
tional process that includes all discus-
sIons, correspondence, etc., between
the Service and the Federal agency or
the designated non-Federal represent-
ative, designed to assist the Federal
agency in determining whether formal
consultation or a conference is re-
quired. If during Informal consultation
it is determined by the Federal
agency, with the written concurrence
of the Service, that the action is not
likely to adversely affect listed species
or critical habitat, the consultation
process is terminated, and no further
action is necessary.
(b) During informal consultation.
the Service may suggest modifications
to the action that the Federal agency
and any applicant could implement to
avoid the likelihood of adverse effects
to listed species or critical habitat.
§ 402.14 Formal consultation.
(a) Requirement for formal consults-
lion. Each Federal agei cy shall review
its actions at the earliest possible time
to determine whether any action may
affect listed species or critical habitat.
If such a determination is made,
formal consultation is required, except
as noted in paragraph (b) of this sec-
tion. The Director may request a Fed-
eral agency to enter into consultation
if he identifies any action of that
agency that may affect listed species
or critical habitat and for which there
has been no consultation. When such
a request is made, the Director shall
forward to the Federal agency a writ-
ten explt&nation of the basis for the re-
quest.
(b) Exceptions. (1) A Federal agency
need not initiate formal consultation
if, as a result of the preparation of a
biological assessment under I 402.12 or
as a result of informal consultation
with the Service under 402.13, the
Federal agency determines, with the
written concurrence or the Director,
that the proposed action is not likely
to adversely affect any listed species
or critical habitat.
(2) A Federal agency need not initi-
ate formal consultation if a prelimi-
nary biological opinion, issued after
early consultation under § 402.11, is
confirmed as the final biological opin-
ion.
(C) Initiation 0/formal cOnsultation.
A written request to initiate fonnal
consultation shall be submitted to the
Director and shall include:
(1) A description of the action to be
considered;
(2) A description of the specific area
that may be affected by the action;
(3) A description of any listed spe-
cies or critical habitat that may be at-
Iecl.ed by the action;
(4) A description of the manner in
which the action may affect any listed
species or critical habitat and an anal-
ysis of any cumulative effects;
(5) Relevant reports, including any
environmental impact statement, envi-
ronmental assessment, or biological as-
sessment prepared; and
(8) Any other relevant available in-
formation on the action, the affected
listed species, or critical habitat.
Formal consultation shall not be initi-
ated by the Federal agency until any
required biological assessment has
been completed and submitted to the
Director in accordance with § 402.12.
Any request for formal consultation
may encompass, subject to the approv-
al of the Director, a number of similar
individual actions within a given geo-
graphical area or a segment of a com-
prehensive plan. This does not relieve
the Federal agency of the require-
ment.s for considering the effects of
the action as a whole.
Cd) Responaibilatj,, to provide best
scientific and commerciaj data avail-
able. The Federal agency requesting
formal consultation shall provide the
Service with the best scientific and
commercial data available or which
can be obtained during the consulta-
tion for an adequate review of the ef-
fects that an action may have upon
listed species or critical habitat. This
information may include the results of
studies or surveys conducted by the
Federal agency or the designated non-
Federal representative. The Federal
agency shall provide any applicant
with the opportunity to submit infor-
mation for consideration during the
consultation.
Ce) Duration and extension 0/format
consulgation. Formal consultation con-
cludes within 90 days after its initi-
ation unless extended as provided
below. If an applicant is not involved,
the Service and the Federal agency
may mutually agree to extend the con-
sultation for a specific time period. If
art applicant is involved, the Service
and the Federal agency may mutually
agree to extend the consultation pro-
vided that the Service submits to the
applicant, before the close of the 90
days. a written statement setting
forth:
(1) The reasons why a longer period
is required,
(2) The information that is required
to complete the consultation, and
(3) The estimated date on which the
consultation will be completed.
A consultation involving an applicant
cannot be extended for more than 60
days without the consent of the appli-
cant. Within 45 days after concluding
formal consultation, the Service shall
deliver a biological opinion to the Fed-
eral agency and any applicant.
(f) Additional data. When the Serv-
ice determines that additional data
would provide a better information
478
419
-------
§402.14
base from which to foçmulate a biolog-
ical opinion, the Diredtor may request
an extension of formal consultation
and request that the Federal agency
obtain additional data to determine
how or to what extent the action may
affect listed species or critical habitat.
It formal consultation is extended by
mutual agreement according to
402.14(e). the Federal agency shall
obtain, to the extent practicable, that
data which can be developed within
the scope of the extension. The re-
sponsibility for conducting and fund-
Ing any studies belongs to the Federal
agency and the applicant, not the
Service. The Service’s request for addi-
tional data is not to be construed as
the Service’s opinion that the Federal
agency has failed to satisfy the infor-
mation standard of section 7(a)(2) of
the Act. If no extension of formal con-
sultation is agreed to, the Director will
issue a biological opinion using the
best scientific and commercial data
available.
(g) Service responsibilities. Service.
responsibilities during formal consul-
tatIon are as follows:
(1) Review all relevant Information
provided by the Federal agency or oth-
erwise available. Such review may In-
clude an on-site inspection of the
action area with representatives of the
Federal agency and the applicant.
(2) Evaluate the current status of
the listed species or critical habitat.
(3) Evaluate the effects of the action
and cumulative effects on the listed
species or critical habitat.
(4) Formulate its biological opinion
as to whether the action, taken to-
gether with cumulative effects, is
likely to jeopardize the continued ex-
istence of listed species or result in the
destruction or adverse modification of
critical habitat.
(5) Discuss with the Federal agency
and any applicant the Service’s review
and evaluation conducted under para-
graphs (g)(1) through (3) of this sec-
tion. the basis for any finding in the
biological opinion, and the availability
of reasonable and prudent alternatives
(if a Jeopardy opinion Is to be issued)
that the agency and the applicant can
take to avoid violation of section
7(a)(2). The Service will utilize the ex-
pertise of the Federal agency and any
50 CFR Cli. IV (10-1-92 EdItion)
applicant in identifying these alterna-
tives. If requested, the Service shall
make available to the Federal agency
the draft biological opinion for the
purpose of analyzing the reasonable
and prudent alternatives. The 45-day
period in which the biological opinion
must be delivered will not be suspend-
ed unless the Federal agency secures
the written consent of the applicant to
an extension to a specific date. The
applicant may request a copy of the
draft opinion from the Federal
agency. All comments on the draft bio-
logical opinion must be submitted to
the Service through the Federal
agency, although the applicant may
send a copy of its comments directly to
the Service. The Service will not issue
its biological opinion prior to the 45-
day or extended deadline while the
draft is under review by the Federal
agency. However, if the Federal
agency submits comments to the Serv-
ice regarding the draft biological opin-
ion within 10 days of the deadline for
issuing the opinion, the Service is enti-
tied to an automatic 10-day extension
on the deadline.
(6) Formulate discretionary conser-
vation recommendations, if any, which
will assist the Federal agency in reduc-
ing or eliminating the impacts that its
proposed action may have on listed
species or critical habitat.
(7) Formulate a statement concern-
ing incidental take, If such take may
occur.
(8) In formulating its biological opin-
ion, any reasonable and prudent alter-
natives, and any reasonable and pru-
dent measures, the Service will use the
best. scientific and commercial data
available and will give appropriate
consideration to any beneficial actions
taken by the Federal agency or appli-
cant. including any actions taken prior
to the initiation of consultation.
(Ii) Biological opinions. The biologi-
cal opinion shall Include:
U) A summary of the information
on which the opinion is based;
(2) A detailed discussion of the ef-
fects of the action on listed species or
critical habitat; and
(3) The Service’ opinion on whether
the action is likely to jeopardize the
continued existence of a listed species
or result in the destruction or adverse
Joint Regulations on Endanger.d Sp.d.s
modification of critical habitat (a
“Jeopardy biological opinion”); or. the
action is not likely to jeopardize the
continued existence of a listed species
or result in the destruction or adverse
modification of critical habitat (a “no
jeopardy” biological opinion). A “Jeop-
ardy” biological opinion shall include
reasonable and prudent alternatives, if
any. If the Service is unable to develop
such alternatives, it will indicate that
to the best of its knowledge there are
no reasonable and prudent alterna-
tives.
(i) incidental take. (1) In those cases
where the Service concludes that an
action (or the implementation of any
reasonable and prudent alternatives)
and the resultant incidental take of
listed species will not violate section
7(a)(2), and, in the case of marine
mammals, where the taking is author-
ized pursuant to section 101(a)(5) of
the Marine Mammal Protection Act of
1972, the Service will provide with the
biological opinion a statement con-
cerning incidental take that:
Ci) Specifies the impact, i.e., the
amount or extent, of such incidental
taking on the species;
(ii) Specifies those reasonable and
prudent measures that the Director
considers necessary or appropriate to
minimize such impact;
(iii) In the case of marine mammals,
specifies those measures that are nec-
essary to comply with section 101(a)(5)
of the Marine Mammal Protection Act
of 1972 and applicable regulations
with regard to such taking;
(iv) Sets forth the terms and condi-
tions (including, but not limited to, re-
porting requirements) that must be
complied with by the Federal agency
or any applicant to implement the
measures specified under paragraphs
(i)(1)(ii) and (i)(t)(ili) of this section:
and
(v) Specifies the procedures to be
used to handle or dispose of any indi-
viduals of a species actually taken.
(2) Reasonable and prudent meas-
ures, along with the terms and condi-
tions that implement them, cannot
alter the basic design, location, scope.
duration, or timing of the action and
may involve only minor changes.
(3) In order to monitor the impacts
of incidental take, the Federal agency
§402.14
or any applicant must report the
progress of the action and its impact
on the species to the Service as speci-
fied in the incidental take statement.
The reporting requirements will be es-
tablished in accordance with 50 CFR
13.45 and 18.27 for FWS and 50 CFR
220.45 and 228.5 for NMFS.
(4) If during the course of the action
the amount or extent of Incidental
taking, as specified under paragraph
(I)(1)(i) of this Section, Is exceeded,
the Federal agency must reinit,iate
consultation immediately.
(5) Any taking which is subject to a
statement as specified in paragraph
(i)(1) of this section and which is in
compliance with the terms and condi-
tions of that statement is not a prohib-
ited taking under the Act, and no
other authorization or permit under
the Act is required.
CJ) Conservation recommendations.
The Service may provide with the bio-
logical opinion a statement containing
discretionary conservation recommen-
dations. Conservation recommenda-
tions are advisory and are not intend-
ed to carry any binding legal force.
(k) incremental steps. When the
action is authorized by a statute that
allows the agency to take incremental
steps toward the completion of the
action, the Service shall, if requested
by the Federal agency, issue a biologi-
cal opinion on the incremental step
being considered, including its views
on the entire action. Upon the issu-
ance of such a biological opinion, the
Federal agency may proceed with or
authorize the incremental steps of the
action if:
(1) The biological opinion does not
conclude that the incremental step
would violate section ‘lCa)C2);
(2) The Federal agency continues
consUltation with respect to the entire
action and obtains biological opinions.
as required, for each incremental step;
(3) The Federal agency fulfills its
continuing obligation to obtain suffi-
cient data upon which to base the
final biological opinion on the entire
action;
(4) The incremental step does not
violate section 7(d) of the Act concern-
ing irreversible or irretrievab le com-
mitment of resources; and
480
481
-------
§402.15
50 CFR Ch. IV (10.1-92 Edlniq ’ Joint Regulations on Endang.r.d Sp.cl.s
§ 403.03
(5) There is a reasonable likelihood
that the entire action will not violate
section 7(a)(2) of the Act.
(I) Termination of consultation. (1)
Formal consultation is terminated
with the issuance of the biological
opinion.
(2) If during any stage of consulta-
tion a Federal agency determines that
its proposed action is not likely to
occur, the consultation may be termi-
nated by written notice to the Service.
(3) If during any stage of consulta-
tion a Federal agency determines, with
the concurrence of the Director, that
its proposed action is not likely to ad-
versely affect any listed species or crit-
ical habitat, the consultation is termi-
nated.
[ 61 FR 19957. June 3, 1986, as amended at.
54 FR 40350. Sept. 29. 19893
§ 402.15 Re.ponsibiiities of Federal agency
following issuance of a biological opin-
ion.
(a) Following the issuance of a bio-
logical opinion, the Federal agency
shall determine whether and in what
manner to proceed with the action in
light of its section 7 obligatIons and
the Service’s biological opinion.
(b) If a jeopardy biological opinion is
issued, the Federal agency shall notify
the Service of its final decision on the
action.
(c) If the Federal agency determines
that it cannot comply with the re-
quirements of section T(a)(2) after
consultation with the Service, it may
apply for an exemption. Procedures
for exemption applications by Federal
agencies and others are found in 50
CFR part 451.
§ 40L16 Relnitlatloui of formal consulta-
tion.
Reinitiation of formal consultation
is required and shall be requested by
the Federal agency or by the Service.
where discretionary Federal involve-
ment or control over the action has
been retained or is authorized by law
and:
(a) If the amount or extent of taking
specified in the incidental take state-
ment is exceeded;
(b) If new Information reveals ef-
fects of the action that may affect
listed species or critical habitat in a
manner or to an extent not previously
considered:
(C) If the identified action is subse-
quently modified in a manner that
causes an effect to the listed species or
critical habitat that was not consid-
ered in the biological opinion: or
(d) If a new species is listed or criti-
cal habitat designated that may be af-
fected by the identified action.
PART 403—TRANSFER OF MARINE
MAMMAL MANAGEMENT AU-
THORITY TO STATES
Sec.
403.01 Purpose and scope of regulations.
403.02 Definitions.
403.03 RevIew and approval of state re-
quest for management, authority
403.04 DeterminationS and hearIngs under
section 109(c) of the MMPA
403.05 State and Federal responsIbIlities
after transfer of management authorIty
403.06 Monitoring and review of state man-
agement program.
403.07 Revocation and return of state man-
agement authority.
403.08 List of states to which management
has been transferred.
AIFrH0RITY. 16 Usc. 1361 et seq. as
amended by Pub. L 97-SB.
SOuRCE: 48 FR 22486, May 18, 1983, unless
otherwise noted.
§ 403.01 Purpose and scope of regulations-
The regulations contained in this
part Implement section 109 of the Act
which, upon a finding by the Secre-
tary of compliance with certain re-
quirements, provides for the transfer
of marine mammal management au-
thority to the states.
(a) The regulations of this part
apply the procedures for the transfer
of marine mammal management au-
thority to a state, the form and mini-
mum requirements of a state applica-
tion for the transfer of management
authority, the relationshiP between
Federal and state wildlife agencies
both prior and subsequent to the
transfer of management authority.
and the revocation and return of man
agement authority to the Federal Gov-
ernment.
(b) Nothing in this part shall pre-
vent:
(1) The taking of a marine mammal
by or on behalf of a Federal, state or
local government official, in accord-
ance with 18.22 or 216.22 of this
Title and section 109(h) of the Act, or
(2) the adoption or enforcement of
any state law or regulation relating to
any marine mammal taken before De-
cember 21. 1972.
(c) The information collection re-
quiremenLs contained in li 403.03,
403.06, and 403.07 of this part do not
require approval by the Office of Man-
agement and Budget under 44 U.S.C.
3501 et seq., because there are fewer
than 10 respondents annually.
§ 403.02 Definitions.
The following definitions apply to
this part:
(a) The term species includes any
population stock.
(b) Optimum Sustainable Popula-
tion or OSP means a population size
which falls within a range from the
population level of a given species or
stock which is the largest supportable
within the ecosystem to the popula-
tion level that results in maximum net
productivity. Maximum net productivi-
ty is the greatest net annual incre-
ment in population numbers or bio-
mass resulting from additions to the
population due to reproduction and/or
growth less losses due to natural mor-
tality.
(C) Slate management program
means existing and proposed state
statutes, regulations, policies and
other authorities which form the
framework for the conservation of a
species of marine mammals.
(d) State regulation means the whole
or Part of a state agency statement of
general or particular applicability and
future effect designed to Implement,
interpret, or prescribe law or policy or
describing the organization, proce-
dure. or practice requirements of a
state agency and which is duly pro-
inulgated in accordance with estab-
lished procedure.
(e) The Act means the Marine
Manunal Protection Act (MMPA) of
1972, 16 U.S.C. 1361 ci seq., as amend-
ed by Pub. L 97-58.
if) The Secretary means the Secre-
tary of the Interior or the Secretary of
Commerce, depending on the species
involved. Under section 3U1) of the
Act, the Secretary of Commerce has
jurisdiction over members of the order
Cetacea and members, other than wal-
ruses. of the order Pinnipedia: the Sec-
retary of the Interior has jurdisdiction
over all other mammals. These secre-
tarial authorities have been delegated
to the National Marine Fisheries Serv-
ice and the Fish and Wildlife Service,
respectively.
(g) The Service or Services means
the Fish and Wildlife Service (FWS)
and the National Marine Fisheries
Service (NMFS, as appropriate de-
pending on the species involved. Any
determination or finding required by
this part to be made by the “Service”
must be made by the Director of the
FWS or by the Assistant Administra-
tor of the NMFS. or their delegees, as
appropriate.
§ 403.03 Review and approval of state re-
- quest for management authority.
(a) Any state may request the trans-
fer of management authority for a
species of marine mammals by submit-
ting a written request to the Director
of the Fish and Wildlife Service (“Di-
rector”) for species of marine mam-
mals under the jurisdiction of the
FWS, or to the Assistant Administra-
tor for Fisheries of the National
Marine Fisheries Service (“Assistant
Administrator”) for species of marine
mammals under the jurisdiction of the
NMFS. The request must include:
(1) Copies of existing and proposed
statutes, regulations, policies and
other authorities of state law which
comprise those aspects of the state
management program outlined in
paragraph (b) of this section, and, in
the case of Alaska, paragraphs Cd) (1)
through (3) of this section:
(2) A narrative discussion of the stat-
utes, regulations, policies and other
authorities which comprise those as-
pects of the state management pro-
gram outlined in paragraph (b) of this
section, and, in the case of Alaska.
paragraph Cd) of this section, which
explains the program in terms of the
requirements of the Act and the regu-
lat,ions of this part; and
482
483
-------
*
-------
§ 17.5
chapt’ ii the importer or export-
er cai nstrate .that the exemp-
tion ra i to in this section applies.
Exempt status may be established by
any sufficient evidence, including an
affidavit containing the following:
(1) The affiant’s name and address;
(2) IdentificatIon of the affiant;
(3) IdentIfication of the endangered
or threatened wildlife which is the
subject of the affidavit:
(4) A statement by the affiant that
to the best of his knowledge and
belief, the endangered or threatened
wildlife which is the subject of the af-
fidavit was in captivity or in a con-
trolled environment on December 28.
1973. and was not being held for pur-
poses contrary to the Act or in the
course of a commercial activity;
(5) A statement by the affiant In the
following language:
The foregoing Is principally based on the
attached exhibits which, to the best of my
knowledge and belief, are complete, true
and correct.. I understand that this affidavit
is being submitted for the purpose of induc-
ing the Federal Government to recognize an
exempt status regarding (insert descriphon
of wildlife), under the Endaiigered Species
Act of 1973 (16 U.S.C. 1531-1543), and regu-
lations promulgated thereunder, and that
any false statements may subject me to the
criminal penalties of 18 U.S.C. 1001.
(6) As an attachment, records or
other available evidence to show:
(i) That the wildlife in question was
being held in captivity or in a con-
trolled environment on December 28,
1973;
(ii) The purpose for which the wild-
life was being held: and
(iii) The nature of such holding (to
establish that no commercial activity
was involved).
(C) This section applIes only to wild-
life born on or prior to December 28,
1973. It does not apply to the progeny
of any such wildlife born after Decem-
ber 28. 1973.
§ 17.5 Alaska natives.
(a) The provisions of subpart C of
this part relating to the importation
or the taking of endangered wildlife,
and any provision of subpart D of this
part relating to the Importation or the
taking of threatened wildlife, shall not
apply to
50 CM Ch. I (10-1-92 Edition)
(1) Any Indian, Aleut, or Esk?
who is an Alaskan native and who
sides in Alaska; or
(2) Any non-native permanent resi-
dent of an Alaskan native village who
is primarily dependent upon the
taking of wildlife for consumption or
fot thç creation and sale of authentic
native articles of handicrafts and
clothing:
If the taking Is primarily for subsist-
ence purposes, and is not accom-
plished in a wasteful manner.
(b) Edible portions of endangered or
threatened wildlife taken or imported
pursuant to paragraph (a) of this sec-
tion may be sold in native villages or
towns in Alaska for native consump.
ti n within native villages and towns
in Alaska.
Cc) Non-edible by-products of endan-
gered or threatened wildlife taken or
imported pursuant to paragraph (a) of
this section may be sold in interstate
commerce when made into authentic
native articles of handicrafts and
clothing.
§ 17.6 State cooperative agreements. [ Re-
servedj
4 17.7 Raptor exemption.
(a) The prohibitions found in
§ 17.21 and 17.31 do not apply to any
raptor (a live migratory bird of the
Order .Falconiformes or L e Order
Sirigiformes, other than a’bald eagle
(Haliaeetus leucocephalks) or a golden
eagle (Aquila chrysaetos)] legally held
in captivity or in a controlled environ-
ment on November 10. 1978, or to any
of Its progenyj which is: -
(1)-Possessed and banded in compli-
ance with the terms of a .valld permit.
issued under part 21 of this chapter;
and
(2) Identified In the earliest applica-
ble annual report required to be filed
by a permittee u der part 21 of this
chapter as in a permittee’s pos ession,
on November 10, 1978, or as the proge-
ny of such a raptor.
(b) This section does not apjly (.0
any raptor intentionally returned to
the wild
14$ FR 3i6O’ July 8. 19831
U.S. Fish and Wildlife Serv., Interior
Subpaut B—Lists
(a) The list In this section contains
the names of all species of wildlife
which have been determined by the
Services to be ndangered or Threat-
ened. It also contaibs the names of
species of wildlife treated as Endan-
gered or Threatened because they are
sufficiently similar in appearance to
Endangered or Threatened species
(see § 17.50 et seq.).
(b) The columns entitled “Common
Name.” “Scientific Name,” and “Verte-
brate Population Where Endangered
or Threatened” define the species of
wildlife within the meaning of the Act.
Thus, differently classified geographic
populations of the same vertebrate
subspecies or species shall be identi-
fIed by their differing geographic
boundaries, even though the other two
columns are identical. The term
“Entire” means that all populations
throughout the present range of a ver-
tebrate species are listed. Although
common names are Included, they
cannot be relied upon for identifica-
tion of any specimen, since they may
vary greatly in local usage. The Serv-
ices thall use the most recently accept-
ed scientific name. In cases in which
confusion might arise, a synonym(s)
will be providec in parentheses. The
Services sluiall rely to the extent practi-
cabld on the International Code of Zo-
ological Nomenclatute.
(C) In the “Status” column the fol-
lãwing ’symbols are used: “E” for En-
dangered. “T” for Threatened, and “E
[ or TI (S/A)” for similarity of appear-
ance ‘species.
(d) The pther data in the list are
nonregulatory in nature and are pro-
vided for the . information of the
reader. In the annual revision and
coinpijation of this title.,the fqllowing
information may be amended rittiout
public notice: the spelling of species’
names, historical range, footnotes, ref-
erences to certain other applicable
portions of this title, synonyms, and
more current names. In any of these
revised entries, neither the species, as
defined in paragraph (b) of this sec-
tion, nor its status may be changed
§ 17.11 Endangered and threatened wild-
liFe.
§ 17.11
without followIng tb edures of
Part 424 of this title.
Ce) The “historic range” indicates
the known general distribution of the
species or subspecies as reported in the
current scfentific literature. The
present distribution may be greatly re-
duced from this historic range. This
column does not imply any limitation
on the application of the prohibitions
in the Act or implementing rules. Such
prohibitions apply to all individuals of
the species, wherever found.
(f)(1) A footnote to the FEDERAL Rso-
ISTER publication(s) listing or reclassi-
fying a species is indicated under the
column “When listed.” Footnote num-
bers to §4 17.11 and 17.12 are in the
same numerical sequence, since plants
and animals may be listed in the same
FEDERAL REGISTER document. That
document, at least since 1973. includes
a statement indicating the basis for
the listing, as well as the effective
date(s) of said listing.
(2) The “Special rules” and “Critical
habitat” columns provide a cross refer-
ence to other sections in Parts 17, 222.
226, or 227. The “Special rules”
column will also be used to cite the
special rules that describe experimen-
tal populations and determine if they
are essential or nonessential. Separate
listing will be made for experimental
populations, and the status column
will include the following symbols:
“XE” for an essential experimental
population and “XN” for a nonessen-
tial experimental population. The
term “NA” (not applicable) appearing
In either of these two columns Indi-
cates that there are no special rules
and/or critical habitat for that par-
ticular species. However, all other ap-
propt-iate ‘rules in Parts 17. 217
through 227, and 402 stIll apply to
that species. In addition, there may be
other rules in this title that relate to
such wildlife, e.g., port-of-entry re-
quirements. It Is not intended that the
references In the “Special rules”
column list all the regulations of the
two Services which might apply to the
species or to the regulations of other
Federal agencies or State or local gov-
ernrnents.
(g) The listing of a particular taxon
includes all lower taxonomic units. For
example, the genus Hvlobates (gib-
84
85
-------
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911.Is
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§17.11
bons) is listed as Endangered through-
out Its entire range (China. India, and
SE Asia); consequently, all species,
subspecies, and populations of that
genus are considered listed as Endan.
gered for the purpáses of the Act.’ In
19 ’18 (43 FR 6230-6233) the species Ha-
iffieetjjs leucocephajus (bald eagle) was
listed as Threatened in “USA (WA.
86
50 CFR Ch. I (10-1-92 F lis,,;
OR. MN. WI, MI)” rather than its
entire population: thus, all indivlduab
of the bald eagle found in those five
States are Considered listed as Threat;.
ened for the purposes of the Act.
(h) The “Ust of Endangered and
Threatened Wildlife” is provided
below:
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Specie , Vertebrate
Hiatonc wfiat Status “
— Common name Sciantdic listed habitat i i. ,
I p 1 . do E 233 NA
Lliir a.rw, piwies r , Owia (Tutu) do E 15 NA
Do . a,clfrs Pa -arctic .. • .. . . .. Ita l y S IS, ISA NA
Do - (Atois slob I— Ua. hondaab) ._ ... _. US A. (46 T 1.20.9 NA 11 4o (b,
ccmwmnor
Stat..)
- Do Lfrsiia aatycc (-U& nature) do . Metico E 3 NA NA
Bear. American blaCk l4tojs a,w jsis North Anianc . .. L iSA. (LA, MS. T(SIA) 456 NA 1740 (i)
Bear. Lousuaria black (A n* a, AiMMis U S A (LA. MS. TX) Entire T 456 NA 17 400
Beaver Poirit Arena mountain 4,M, pj gijf U S A (CA) . do 454 NA NA
Beaver C.s lice, bauli, Mo ngolia do . E 15 NA NA
Bison, wood 8 , bisa,, aN,abasca. Canada, Northivestam USA Canada . 3 NA NA
Bobcat F ee, ‘t itus mmanap.. Cent a1 Mexico . . Entire E i S NA NA
Bontsbofr (antelope) . Oantiisous e, Souuj i Africa •. . . do . E IS NA NA
Camel, Bactriaxi .. .. Camebj, bacfra,,y ( two, ,) Mongolia, China . . do • 5 5 NA NA
Canb u, woodland .. - Rangirfw, Illsfldi4 CVtoti Canada. U S A (AtC, ID. ME, MI, MN, Canada (that pert E 128E, NA NA
MT. NIl. VT, W WI) , o( SE. Bit - 136E.
‘COlboWided 143
by the Caa.
USA border.
Columtia R.
Koota nayp.
Kootenay L.
and l(Ootenai
R).USA (ID.
WA)
Cal, Andean .. F eocut . r , . Owe. Piau, Bolivia, Argentina EnWe IS NA NA
Cat CIaCk IOojed Pea, ,spr es Southern Ainca do . 5 15 NA NA
Cat. flat-headed FM, p.i’Tidlip , . Malaysia. Indonesia do E 15 NA NA
Cat. tnomote Pet, (h4 ,g,t, ) Nicrooetns ,s’ Japer (lnpai Island. Ryuky Island,) do E 50 NA NA
.Cit. leopard .. Pet, bWWiInS , , India Southeast a, E 15 NA NA
Cat. marbled . . Fe, mannoi’,s, Nepej, Southeast Asia, Indonesia.. do IS NA NA
Cal. Palustan sand - . Pee, Palust an .. . do . E 139 NA NA
Cat, Tamminck’a (—golden cat) FM, . . Necal. China. Souihea, Asia, do 15 NA NA
Indonesia (Sumatra)
Cat, tiger . Fea. apws,, .. Costa Rica to northern Argentina do E 5 NA NA
Chamo,a, Apenn,n, R& p oiriM, Italy do E is NA NA
Cheetah Aoinou orjubaa, , . Africa to India . do 3.5 NA NA
P , 5opfn e, Africa. Il 40(c)(3) Wherever found E iS. 376 . NA NA
In the arId
Do . .. . do do . Wherever found i le. 370 NA Il 40(c)
vi Captivity
CIwnpan .. pygmy , . . Zex. ._. . EnS,. 0 ii 37e NA NA
Chvichdla
Creel. Uatabar larg..epatiad
Coeltulo ( Gulf of California baiter
Ccugw. eastern
Daar. Bacotan
Deer, Barbary
Deer. Bawean
Deer. Cedros Island mule
Deer. Columbian Mills-tIded
Deer, Corsican red
Deer. Eld’s q .antlered
Deer. Formosan Ma.
Dear, hog
peer, key
Deer, marsh
Day. McNeifl’s
Deer, musk
.O Deer, North China siba
Deer, pampu
Deer, Persian tallow
Deer, Philippine.
Deer, Ryuk)aJ sika
Deer, Sharisi sika
Deer, South Cisna aika
Deer. swania ( batasingha)
Deer, V ’isayan
Deer, Ya,Iiarid
01101. (. .AsiatiC wild dog)
Dibble,
Dog. African wild
Dolphin. Ovn.se river (—atsieltn)
plon. Irdi ,ia River
Ot i S
Duilier. Jantinks
Eland. Westsm giant
Elephant Atnean
Eleptiwul. Asian
— mendannua
dam, dam, mw.;lotImtca -
Asia ( Can.ia) oinua
C 5l 5n x an e ,
tiII, , on Comma.
Certiv, n on graifs ’aiwJs
Cen ,s ,rçor, kppscbti
Carte, dirvluCeh
Carte, efapiius yalkafldensts
Ant iaiiis —
L)vaon AIS
LpoI.s umWM e ,
msiau ,,, nw
P ai —
TwoO’19 1 i a daiblfluS dertranim
Loro ,Ja afreana
maormis
chin. (Shantisig and Clshli Prosaic..)
B iazil. Argentine. Uruguay. Bolivia.
Paraguay
Iraq. Iran
Phi_nsa (Calanvan Islands)
Japan (Ryuityu Island,)
China (Sham, Prosvics)
Southern China
India, Necal
Pr-..
China (Sinklang)
CIS • Korea. China. India. Soulpuesat
.Asia
Australia
Sub-Saltaran Africa
Ow i a
Pakistan (lróia R and tidotanes)
Equatorial West Africa
East Africa to southern Japan.
mdudirig USA (Tnuit Ten4 )
Sierra Leone. Liberia. Ivory Coast
Senegal to Ivory C at
Africa
Souvycentrei and Souths.at Asia
oo.
do
do
do
do
..do
do
do
do
do
do
do
do
do
..do
do
Afghanistan.
Briutan. Biting.
Clime (Tibet.
Yisvian). India.
Nepal.
EnWe
do
..do
do
do.
do
do.
do
do
do
.do.
do
do
do
do
do
Entire. except
USA.
Entire
.do . -.
.do
NA NA
NA NA
NA NA
NA NA
.NA NA
NA NA
NA NA
NA NA
NA NA
NA NA
NA NA
NA NA
NA NA
NA NA
NA NA
NA NA
NA NA
OwarM,a orsaarer ,dstp bornan. I Soffi va -
Vising n1epes ows civ 1a nibs
Phxuans era Mexico (Cult Of California) -
FMs an k cci Ja’ Eastern North America
Caws ahapl li4 bactnarais. . U S S A. Afgflania lan
Carte, siIphus bamaniS . Morocco. Tunisia. Jg •
Am, ( -Carws) -- kalie ... Indo nea l e
cn4 , hanwvrvs xdusamm ,.. Mexico ‘(Cs*oe lslai4
Cdacorieus wgeirai Ieumavs U S A (WA. OR)
Carw,, .i_ia mmcama i.- - Sardine
C.rw,M, .. India to Southeast A lis
Carws ,sp on ta ,ouanu,s . Taiwan -
Aa. ( — Caring,) porc.e, aNuanx ,, Thajl.nd. Indochina
Cdocorlaw wpnuanv , ciaarum USA (FL)
Blestocarus dotoMmus Argentina. Uruguay. Patiguay, Bolivia.
BraId
Carws .1.pfru , macn a il. Chine (Sinkiang, Tibet)
M lus app (an specie.) . Central end East Asia
a
0
S
E
E
£
E
E
E
E
E
S
£
E
S
E
S
E
E
S
E
S
S
S
S
E
E
E
E
E
E
£
E
E
S
E
E
T
E
15
50
lee
6
50
50
3
I0
5 , ;
3
50
IS
3
15
50
15
3
i5
So
50
So
3
320
50
3
4
139
350
417
16
4
50
50
40
15
MA
NA
MA
MA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
Ni
NA
NA
NA
1740(5 )
-------
Fci, Nondiurn swift
FOz. San Jopaun kit
Fez, Sirmen
Gazelle. Allan
‘ Gusts. Oii . (—Dibatag)
0 Gaz.lle. Cuv,era
Gust.. Mhorv
Gazelle. Moroccan (-Dorcu)
Gazelle. P,lzulni
Gaz .ll.. Rie di Cr c Dime
Gaz.M. sand
Gazelle. Suu A llan...
Gazelle. sllndur.llcrn.d ( —Rlem)
Giations
Goat. wild (-claltan maiuihor)
Gcnd
Gorilla
Marl. hopid
Huuebeest. Swaynes
MlfllbeSsl. Ira
Ho gmy
HoiSt Przswalslu ’s
Iluslillil . North Andean
Husinul, South Andagri
Hulls. Cabrara’s
Hull. tiwsif
‘lull. larg e-eared
HubS. title earth
Hysna. Barbary
—. brown
Ibis. Pyrenean
Ibis. Wit ’S
Impits. btacklacld
lnls i
Ja v
Jaguarundi -
Do
Do
Do
KangaroO. eastern gi.y
Kangaroo. red
K.ngarOO. Tasmania ,’ forestal
Kangaroo, Westlffl Sy
Kaupr ly
un i. caOOed
Ungur. Do . -
Lsng ,s. tllluS
l.angur. Franca.,
CO Langw. golden
Langir. long-tailed
Langur. Pagi Island
Langur. purg+f acid
Isefiws. red
v_ lor hedaa.
mwobs m
Came ($st*sa) anemia
Gazai ’ib s ies ta
A,renodorw efai*.
Guide ow
GazstFa dania mhcvr
Gaze /Li rai massa.s$.
Gaze /Li dor is pdosftv
Gaze/i, d a na tozana
Ga n Maou mama
Gaze / ia doria iaithtr.
Gaze/ia £eptocaros
/f do1t.s app (mositsig 7IaJa.4)
c , uga w -ia en
es zedia pm!.
g o -i,
— h 4
A uius — t ,
&4 UhJlitia
Equ.ea pmmsaiska :.
HcocamdaA anfrserls ,a
Hcgorimabia brsidcus
c _ .. __ wa,.
Cam ongenana
Camwiillw un .na4
— am barbers
— —
C, a . ..-- - p venia..
Camawaba.
Acpycarai me/aiaptia p.*ia
In t*,ud,(.antvegsmla)
Pinb p oi a
FiLl yag usiDuriol c. n,lb
Fe/s yapouvcwtdi basal.
FaLl yagcuamufldi panamensia
Fairs y .poualDsIfl b/Lace
M00c / Lui pçanftui (all s&iblp exCSpt
tasiiwi ensia)
Maa.trpub IMage/era) ,vfus
Maa.rnus grppntaus iesmelwensur
Uamop&4 iuk noai4
Boa saWed
,iamaaua
bJdo ,flf4
fran ai....
ea 4s gear
P wi icS pOtMlraIS
Nasal ’ S (Samas) . L&o
—
KXils L i e /li.
Lirlanidas find Owirogaleidal.
Lep.leniu’idaa). all members of
genera Larraz Phanse HssalaIrmX.
L dowf. Maxdoua -- -
O ierogaleus . Varwa
Panthers —.
U S& (northern plains), Canada ..
USA (CA)
Ellicpia .
Arabian Peninsula. Patesans. Sinai
Scrubs. Etteogia. ......... .
MOOXO. Algeria Tuflilia.
Morocco ...
Morocco. Algeria. Tiai,ia.
Somalia ..
Western Sahara
Jcrdan. Arabian Psnin, la
l 55l, Iraq. Jordan, Syria. Arabian
Sudan. Egypt. Algeria. Libya
Clans. Ind Southeast A Sia
Soiabwut.rn Aaia.
EastAwa
Central and Western Africa
India. Nepal. Bhutan
Ethiopia. Somalia
Ethiopia. Sudan. Egypt
India, Nepal. Bliutan. Siklurn..
Mongolia, China
Ea.jador. Peru, ChIle. Bolivia. Argentina
Chile. Argentina .,
d i
do
do -
Morocco. Algeria. ‘l’isiaia
Southeni Alice
Spain.
Ethiopia
Namibla. Angola
MeJagaay Republic ( Madaguoal)
USA (TX. NM. AZ).C andS
USA (TX).Mexic o
Mswco, t4lc a9iJa
Neara9u Costs Rica. Panama..
USA (AZ),MSiicO
Australia
do .
Australia Tasmajila)
Australia -
Vietnam. Laos. CambodIa. Thailand.
India. Burma. Bangladesh
C.niboth_a. LaoS. Vietnam
Dana (That). India. Pakistan. Kauluiw.
Sn Lanka. Saturn, Bangladesh
Qua (kwangai). Indochina
ulaba (Aaaam). Bhetan
Indon e sia
do..
Sn Lanka (—Ceylon)
Southern Atnca .
Malaguy Republic ( MadaQarI.
Southeast arid sauV centrSt M
Tawieri
ErLls. aircept
a/Liars bated as
WI
s uper bn e n la l
P C —
below.
WV in SI. wild.
aa.lSt and east
Cf Ste N PlaIt.
River wither
Nations.
C.bc and
Canada
Lia.
do
.do
do
.. do.
...do. ..... -.
..do
do
...do..
40...
..do.
do
Chetan Rang. of
wsat.centra l
Pakia .
Enbre
do
do
do.,
do.
.do ... -
.do
..do
.do.
do
do.....
do.. -
Wherea bind.
except allUre It
I listed as
Ttweatsnud U
alt forth below
In Africa. ii tile
wild. SaudI Of.
and mdothn
the following
G& Congo.
Zaws. Uganda.
kenya.
EnW5. -...
Feer.t. btacli.Ioot.d
Do
Species ,.
Common name Scientific name
Mishaic range
Vertebrate
r=m
•
1
Western U SA. Western Canada
do
‘.3. 433
P433
50
50
3
3
3
3
50
3
50
50
3
3. 15
Is
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
S
15 NA
3 NA
IS NA
3.50 NA
SO NA
3 NA
IS NA
15 NA
IS NA
233 NA
233 NA
..233l NA)
E
S
XN’
E
E
E
E
E
E
E
E
£
E
E
E
E
E
£
£
£
E
E
E
E
E
£
E
£
a
0
B
£
£
B
E
E
£
E
£
£
E
T
T
E
T
E
E
E
B
E
E
T
£
T
T
£
£
T
NA NA
NA I7 .
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
‘4 , .
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
1740(a)
1740(a)
NA
1740(a)
NA
NA
NA
NA
NA
NA
11.40(c)
NA
1740 (c)
NA
NA
NA NA
NA 1740(f)
0O
NA NA —
do
do
do
do.
.do
do
do
acu t hward.
Enta,
do.
do.
.do . ....
.do
.do.
‘do
do
do.
do i’
do.
.dO.
do.
do
do
do..
do
do.
do
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
233
3
3
3
3
3
3
5
15
‘5
IS
15
7
1
a
7
3
15
3
15
16
‘S
‘5
3
l6
3. IS.
106
3, 15.
ISA
3.5. 114
3.5. 114
Do
Alice. Aaia
do
U
do
£ 3.15
-------
Mank.y. Lho..l.
MOritsy. Ptsuu rud colobjs . -. -
Manksy. probosas
Manksy. rsd.baCtsd SqisiTsi
Monhist,. r .d.blllisd
Monhisy. rsd.ssfsd flOlsipottSd
Monhisy. Spid
Monkey. spider
Monhisy. Tans River rid caldoul
Monhisy. woolty Spider
Monkey. yullcw.tlihsd waolty.
Monkey. Zanzibar rid colabua
Mauls. Alaba,,ia beach
Ma is. Anastasia Island bssdi
Mauls. Aultrabsn nsUvi
Mauls. Austrakan nsbvs
Mauls. ChOCtlwhaLCMi baach
Mauls. Fpsld.
Mauls. Gould.
Maui.. Ksy Lsrgo ca non
Mauls. Nsw Holland
Mouse. P. ,dude Ksy bud,
Maui.. salt mann hwv.,t -
Mauls. Shirt BayS
Mouss. Sfloctndg.s
Mou ss. Smoky
Mauss. sauthsastSm bsach
Mauls. Wilts? n
Murittac. F...
NULvu.c$l. NitWit
Numb.l
Ocstot
Ot) . kibiifl
Ott. ,. Camsroan clswlsla
Ohm. grain
Ottsr. long.lajlsd
Otter. mann
Otter. southern river
Ott.,. sauthsm isa
- -
us 3 5da4 pils
N.aato larraf&. -.
Swsi, awlaido
—
— vsa
Afal.. paomtiyc ftontgAa
Ati1., g .oAkuj4panamerias
ul nsforrdUaftra (—dodos)
wfinsbaftr&
ff1wr4 .
cc1.ibtra k,ib -
on iysaus pokonotus Iff .r 4Mo
thP 1CIW p0t inA4 pAaama
2)ue’r,, (-Notcn ya) p aicidMia
— —
— i vyn
— d .. -
— —
— n—se...
/lo roriy,saiapcdorioftir thSI)41 aw.
RuUi..4 ...Jpirrjr
ai ,*r S
—
— 6,n . ,4..
-
£*mbaa4 1...
£tjam& a taiaanra
F.
PbWO W4
Aor’r,’s (Para w) ipc. asaudon
-
LraO’a fmd .t* )
L va zin Sa
&IAydI 1.b l*’wo -.
upper Eastern Congo Ea % Cemercon
Borneo .
Costs Rica. Panama .. .. ....
Wsatum Nlgsfla
N C.mscocn. Fernando Pa
Costa Rica. Nicaragua . _.
CoetsRica.Pansnis ...
kasys . .... -
And.. of nordlun, Peru
Tsnumi
USA.(AL)
USA. (FL) .
..do
US a.(FL)
Am ska.
do
US.A.(FU
USA (AL FL)
US&(CA) -
.do ..
USA (FL)
Auafrsba. .
. Ths4v Brama - . - -
.do
US A. (AZ. TX) to C slid S. Mires
Bongo. Ststiaics
C.ms ,oan. Nlgsrls
- -
Psv South to Sicwto of Magellan
asia. — . -
Wust Coast. USA (WA. OP. CA) sOuth
to Madoo (BC)
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
to
a
Sososa I Vs rt e ,a — ______ ______________
Histonc rangs popintison slurs Whsn Cnticsi Spsr
fl g Sndanger.dor lslsd habitat n.
Leopard, snow Panm.ra r ita. . Csntnsj Aaia - do. . E 5 NA NA
Lirlang. lpattsd - Azor , pw Nspal. AUsti Vhstnsm, Csmbadis do . .. E IS NA NA
Lao..
Lion. Asiatic . flMar1 1.0 panic. Ti tsy to Intha do . .... . E 3 NA NA
Lion. mountain Pal,, cox (all sidop sxcagt a. ,) Canada to South Asnsnca. USA (FL) ...... T(S/Aj 432 NA Il 40(h)
Lana, tiller slOw P c3c 5bui pjçm ,au, Ind act uins . Entirs T i NA l?40(c)
Lynx. Spanislu Fairs ( Ljicr) pandora Spain. Po tugsJ . do 3 NA NA
Macaqus. Forvno. ‘ Ccli Macac. Ts,wwt . .. T i NA 17 40( e )
Ms aqus, Jspsns.s . Macac. luscaia Japan (SMoke. kyusluj and Honshu . do .. T 16 NA I ?40(c)
I s ll )
Macaqiji, bon-lailsd Macac. s n /anus - India . . . . do E 3 NA NA
Macaqus, ltump.Is / ad Macau amtord, . . ..... . India (Allam) to southsm Coma. . do T ie NA 1740 (c)
Macaqua. Toqus Macac. sa v e. Sn lanka (-Ceylon) . . do T 16 NA 1740(c)
Mints.. Amnusju Tncdocluijs ningris . . South Amine. (Amazon River Balm). . .do E 3 NA NA
Manat... Wsst African TromcJ scnapalan Wsst Cout of Africa from Sensg.j . . do T 52 NA NA
River to Rr j
Majnats.. West Indian (Flonda) Tno’*a manao,s ... . US A. (soutfleutssn) Caslbbsa,u ’$aa . . .do. . ... . . -. 5 1.3 17 95(a) NA
Souto
Mand,ifl Paniø go/anr . Equatont Wilt Africa do . .... .... E 16 NA NA
Mangsbey Tans River Cancocetai, ga/anti,, Kenya .. . . . do .. .. E 3 NA NA
Margabsy wtuits.cQlla,ad . . C.cocfrrj tovquaM Senegal to Ghsna. Niguna to s3on. .. . do 5 tO NA NA
Ma,gay F a / aii n.do USA. (TX).C ard$ Amen ... . Msxico E 5 NA NA
Southw a i
Mirtho,. Kabal . Capa / aAmran rnregaowrja -. - Af uaiuistsn, Pakistin .. .. -.......... 5mb, E IS NA NA
Martha ,. strsighl.hom.d - Caps /abonanjerdo do . . . . do .. £ 15 NA NA
Ms,mo, buff4toadsd . CatMan, Na vicaps Brash . . . do E 139 NA NA
Usmiasui. batty tultud. .a, do .. . do.. . . 5 233 NA NA
Msnnosal cotton.top Saguriu , odoçia Costa Rica to Cotonibia . ... do... II NA NA
Mazmoeut. • Brazil. Colombia, Ecuador. Pe r u. Badma . do. -. E 3 NA NA
Marmot. Va ,icouvs , Island Mvn,ots vancni*erpn,,, . .. Canada VancOuv s , lslan . do 5 139 NA NA
M supial. ‘later jarbos Antacnsnowiyn Ianig.r AjJsfrsM ,. - do . E NA NA
Manupiai.riiou i s targs dsasqt Srmn,th psamnropiw, . do do E 4 NA NA
MsrluplaI.nuC.j long4ailutj &nwnmops,, Ionpeaudaza do . do . -. E 4 NA NA
Mitten, Famtsun yshloW.yvn tad MaMas ffangr ,ta ctw .ws t . Taiwan . . . . . do E 3 NA NA
Monkey, black cOlCfru3 C Satan., Equetonaj Own... Psopls.s RspitUc . do.. . E tO NA NA
of Congo. Cameroori. Gabori
Monkey, black howler . A 1 .ui n .pgr Miuco. Gustamais. BsIiz. . do . . . T 16 NA 1740(c)
Monkey. Diana . . Ccccs’m c, ,, , dons . Coastaj West Africa - •. do . . . E 16 NA NA
Monkey. howl - 4bjana pa/ A lt. ( - wi/eta) • Muuco to South AMen a do . 5 15 NA NA
Monkey ( langis). Gtsth ti sm / a RAli ,r. . C - P) affc.) 1.s Chin. . do - . E 400 NA NA
n.sed
calud
Monkey ( lsngw),5iciiuan em/a Phmqiuim. i,. C - au uio ‘wpllIna do . - .. do . 5 400 NA N /
Monkey (—lang,,) Tonlun sm/a.nossd ( P igaiu ) awrsoA.q VIst Nam . .? . . . 4. do . S ii. 400 NA NA
Monkey langi ,), Ywyisri sni / anosad RFrggcç ,tr . ,o j ( i)p,iv 1.50 ClIfria . I E 400 P1* NA
a
do ..... - -.
do..
.do.
do.
.40 -
_4 0
.__do.
do
-do
...do
do..
do
. 40
.do -
do
- do
.do
.do.. - . ... - .
.do.
do.. - . . - -
do. . . . . . ......
do.
...do
40
-
..do.
..do..
Enbis. excspt
utters Utad
below
S
S
E
S
E
£
S
E
S
S
F
S
F
E
F
S
S
E
£
F
E
E
S
F
S
F
T
E
E
S
F
5
F
S
F
S
F
S
E
T
is
139
15
3
16
16
3
3
3.16
3
IS
3
163
349
15
15
183
4
S
1315.
l eo
4
163
2
4
4
4
349
4
50
S
4.6
5. lI e
3
3
3
3
3.15
15
Is
21. 264
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
1795(a)
NA
NA
NA
17 95(a)
NA
NA
NA
NA
1705(e)
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
-------
Rat kangaroo Issuers
Rat-kangaroo. plain
Ral4angaroo. Ou nila ,id
RIwiocer as. black .
Riw ’oca,oi groat Indian . -
Atwiocro. Java”
R(wioceros. noittoim wills.
Rtw, caroa. umatmn
Saiga. Mongolian (antilog.)
Sib southern b.wid
Sib wtitI no sd
Sea-hon Stiller (noilhern)
Sad Caribbean monk
Seal. guadalupe lit..
S.al Hawaiian monit
Seal. Medilerranean monk
Ss l edang(.Ga s)
ID Serou.
C l ’ ServE Barbary
ShUo
5Th Dismal Swamp acuthsutecn..
SdaW
Sloth. Bra han dYes-toed
S anoGwt QW
Solanodon. Haitian
Ca ma nerthurn ..
Sqiansi. Dalnissva Peninsula los
Squ.nsl. Mount GriMm red
Sqwrel, Virginia northern flysig
Stag. Barbary
Stag. Kashmir
Sum. Zanzibar
Talir. Arabian
Tamaraw
B.ftonpi. lakisi,
Ca . mveni CJfl S 5is
8.ff a sp. swica
Acwe. iconso
R ..wO4 w we..
AI .. . aorwicw
C.iftW ink.”
Sac. bibb
ale ni . utanas anas
Ellffi.tXdaS/ It atUS
0
— —
M -ao &ia X#IILeadV idi
A Aus mon w
B c e gwus
_ws SQmaMm .
F.Is Dar t.! 4Zanhrn,
Carves il Aiia wa!tcb
Sa x — dahen
— —..
RtW,lfseousspp (all spines)
_ is ( isWJfl4
S...oJ..n CAtXogaI.) mAinl4
Gili&mm , s wius ocioriftis
Tamrasoia’vs h& a, us pah.mar
Giliucomys satrartus lusmm
Carws W .a ,Wtus baibenm
N.O agi4 (Naae agus) mo.iM1l4
mo s ch aM
8 doA -.
do
do
do
Sub.Saharan Afnca . -
India. Nepal —
IndOnsiti. tndoclsna. Burma. Thailand.
Sikkim. Bangladssh. Malaysia
Zus. Sudan Uganda. Central African
Republic
Bangladsah to Vietnam to Indonesia
(Born
Bm
do
U S.A (AK. CA. OR. WA). Canada.
Soviet Union. North Pacilic Ocean
Caribbean S... Gulf of Meoco
USA (Fsratlor Islands of CA) sauth
to MextcO.(15lU Rsvtlagigsdo)
USA. (HI). -
Madoeiranean. Normwesi African
Cosat and Black Sea.
— Scuthuad Aa
L i i i Mis. Sumatra
KWarW..
Ttoet. Blaitan
USA.( tIA.NC)
- —
Mslagaay Rspi Uc (—Madagucafl.
Br I E
cubs
Donwscaji Repubilo. HaIti .
USA.(NC.TN)
U SA (Oelmarva Psrdnaula to
southsaat PA)
.do. ... -. .
US A .(AZ)
USA (VA. WV ). .
Tunisia. Aigina
Zanzibar (arid nearby alands)
Ptsuiepu iss. .._ —
. 0 0..
00.
do
.do.. -.
. .dO
do
.40
do.
do..
do
do
do
.do
do.
do
.do
do
do
.do
...do
do.
..do
.80.
do
do -
.80.
do
Entre. except
SussesCo,
0€
USA (0€—
Sea Ms
County)
Enlas
.do
do
do.
do...
Commas name
Historic rings
Viristirate
population where
.ndangsr.d or
Status
When
listed
‘Do
ano . part
Pa, m (scaIy afltUtsc)
Pentrier Florida
P nga4 tat ,.
ng i b
PO D .Qti 5 tIvfl igin.d
P s jm Leadbe.ters
Possum mountain pygmy
Pouum scaly tailed
Prams dog Mexican
Pram. dog. Utah .
peninsula?
ziru.çrglm So, an
PtOj
Pi,.ma. Coat. Rican.
Rabbit Lower Keys
Redo.. Ryuiiyu ... -.
Rabbit volcano
Rat, false water
Rat. rrsano kangaroo
Rat pant kangaroo
Rat Mono Bay kangaroo
Rat tics l.s i lv e rrCe)
Rat Stephan ’ kangaroo
Rat
Rat T ri kangaroo
R.t4 .angaroo. b rUsll4alIad
Rai.aari 0 s,oo Gainmards
Soentifi name
do.
— mUn
Marts l.mmmck,
Fairs tcofc, ccr r
epa u ans &Ctrblsuna (formarty
P DubhF,urma)
mmcm aniai’ostns
Cou —
Gymnodoird.us IsadoaDIarI
—
)I iiali Squanvcaud .Za
C)inon rs mesic.rgjs.
c,. .., . .
Antalocgp’a americana parvnsulmns
AnII(CCSp. americana smtorwnas
Satorsx acAjtsw
S )diuagus pa*rsbrs hafnari
Pvu .Jagus S,nasai.
R marcil.gus than
Xarorrsj, nt,odos
L odonlyg ‘tfri .s*
Oc u na
Mmnaras m er
Gysaspi pabjsb,s #Iata 1-0
alp a rdaAm)
,tephenai (lad 0 casous)
L rI*is 7dik.
niirszadas ‘adaioib,
Ba it cv ’ça pancllal.
B.fforipia P&mwto
do - —
Plods’s RepublIc of Clime.
Africa
USA (LA’and AR east toSC and FL)
Australia ... . -
do
Braid
do .
Ausvatia
do .
Mexico ...
US & (UT).
Mux lc o( BC)
USA (AZ).Mexico
Soumam South Mmsnca
Nicaragua. Panama. Coata Rica
Auatral ,a
USA(FL ) .
Japan (Ryvd
Mexico
Australia
USA (CA)
do
do..
US&(FL) . ._..._.. .. -
USA (CA)
Australia
USA (CA)
Australia
do
All arsas stdi ssi
toUS
south of Pt
Conception,
CA (34 26 9
N Lit) (Not.
status
governed by
Pub L 09—.
625.100 Stat.
35003.
Ents. -
do...
do...
do -
do
do.
do
.80
.do..
do
do
do
do
do
do -
.do.
do.
do
do
do..
.do
Lower FL Keys
(west of Seven
Mile Bndg.)
Enire
do
do
do
do
2 1.284 • NA l7.84(
139 NA NA
Is NA NA
NA NA
4 NA NA
4 NA NA
3 NA NA
233 NA NA
4 NA NA
4 NA NA
3 NA NA
6.140 NA 1740(g)
10 NA NA
1.3 NA NA
15 NA NA
15 NA NA
6 NA NA
390 NA NA
SO NA NA
3 NA NA
4 NA NA
170 1795(a) NA
251 NA NA
2 t795(e NA
421 NA NA
338 NA NA
6 NA NA
312 NA NA
4j NAI NA
It Iit*I NA
(Sea
1784
(dfl
E
.E
E
E
E
E
E
E
E
E
T
E
E
E
€
E
E
E
E
E
E
E
E
E
E
E
E
F
ii
E
£
E
E
E
E
E
F
E
E
F
T
F
T
F
E-
E
E
F
F
L
T
F
€
F
F
E
E
F
XN
E
E
F
E
F
F
€
r oy
.4
c c .
.4
4
4
4
07
4
3
3
.3
15
233
3
3 84E.
408
I. 20.45
1.20.
212
18
3
3
1
.3
IS
3
248
15
4
3. 4
3
3
lB s
1. 161.
168
16 1
286
169
3
3
50
50
4
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
22611
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
1705(a)
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
lEA
NA
NA
227 12
NA
22711
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
17.84(a)
NA
NA
NA
NA
NA
NA
NA
Do - .. ôo....
-------
Tape, mountain
lirwer, Philippine
Tiger
Tiger. Tasmanian ( Th)lac.ne
Uikan (it Species)
C Vicuna
VC4S. Amargosi
Vole. FIOnda salt nlatsh
Vole, Hualapai Mexican
Wiilaby. banded hire
Wallaby brindled n iil4ailed
Wallaby, cisacert tiatWailed
Willaby, Puma.
Wallaby Westwi hare
Wallaby, yslbw.fQot.d tacIt
While. blue
While. boetisad
Whale, leloecli
While, ply
Whale, llumptiarJi
While, light
While, Sw
Whale. spenti
Walt. gray
Wombat. havy.noaad (-Barnard. and
Queensland l’Lty.no*id)
Woodrat. Key argo
Yati. add
Zebra. G’e ”s
Zebra, H.rlmunn’S mO ntain
Zebra, mountain
BiRDS
Akepa Hawaii (honeycreuper)
Akepa. Maui (haneycreeper)
AkuiIoa. Kuuai (honeycreeper)
fiD Akuapolaau (honeycreeper)
3 Albatross, sNail-tailed
Blaclibird. yellOw-shouldered
Bobwhite. muked (qua /)
Booby. Abbott’s
Briatlebird. western
Bnstletjurd. western nil ous
BrOadbdl, Guam
Bulbul. Maunbua olrraceauu
Bultfincti. Sao Miguel (finch)
Busliwren. New Zealand
Bustard. great Indian
Cahow ( - Berrnuds Petrel)
Carecara, Au&dion’S crested
Condor. Andeatl
Condor. California
Coot. Hawaiian ( -ill. lee lee)
Cotinga. banded’
Cotinga. wtiIte.wInged
Crane. btack ’neckid’
Crane. Cuba ugildIwl
Crane hooded
Crane. Japerlele
Crane. M- sandiull
Sapi us b
Ta o.ta w ,s
T a tat t*VuSbTS
Tg ,o.tjj 81mb
TI. l iWt4pi7o aqcj .
Panmat. ig,
77 G 4
CaC o app (all species)
Osc. (-onenLW)
MaciM cahlb’ncvs
Maoniat amisj4va u, dim.cang .ai
Macif,, moéani mra a4n5,$•
LagoSb’cipllus lisci,Iug
agalba fraenaza
On a ’togalba Aural,
Macr
PWbtygaI, ‘anmcpus
8a1ws a mjia
E urchai , , ‘0814t119
Mp
Baln , 9/baA,
8111 1f 57p*a bwsahs
FPl)eatw macivcap#lug , , (—catodo,,)
Cane Aipus
Lasotmus krilft, (formerly L b& wdi
and L pdoWie /)
Naotcrna ftovrdina sma!h
Bdo pvflr* ’J ntoftis
Eqi.va pes ’
Eowai zebra liaipitemte.
Eqws zebra zebra
—
Loxcps os raiui odhraceus
Natmgnathtui DCirt4
Matmpnllh iLs muuval (.trlwra)
Acm.doa aaia rue
Ap/bws zanthovyws
Co / bus wgewanw ndgway,
&ja abbom
Oisyoniis bwcI len , , lorrpvoaVui
Oaayorrus b’uadbenhs molAr —
*l)ragra i an.b
?l) aMs bot ue ohyacaus
mho / b — zenra.
X*xaa /o7g ,,
Callow
Pa dionai planczui a&djtora
G rmogjpe caalcrnienus
Ftilca am.wna a/at
CoMpa macsNail
X g /sc / bita abciplapiuwa
Gn ia ltignoudo
Coat CafllNa S
One
Coat cenedoze —
do
Co l ombia
Biama, Laos, Cambodia, Vietnam,
Maleys a, Jndohu a , Thailand
Colombia sat Venezuela South to
Paraguay and Argentina.
Southern Mexico to Colombia end
Ecuador
Colombia, Ecuador and pdslibfy Peru
end Venezuela.
Philippine,
Temperuta and Tropical Ado
Auulr aha
Peru, Brazil, Ecuador. Colombis,
Venezuela,
South Amenca (Andes)
USA (CA)
USA (FL)
USA (AZ)
Australia
do
do
do
do ..
do
Oceanic,
Oceanic (n th latitudes only)
Oceanic,
North Pacutsc Ocean c ,aatal and
Berng Sea, formerly North Atlatitic
Ocean
Oceanic
do.,,
do.
do
Argentina. Bointi, Braza. Puraguati.
USA.. west to central TX)
Australia
USA (FL)
China (libel). India
Kenya, Ettiibpia. Somalia
Nimiba Angola
South Attica
USA.(Hl)
do
do.
..do
North Pacific Ocean Japan Russia,
U Si (AK. CA, HI. OR. WA)
USA. (PR) -
USA (AZ). Mexico (Sonora)
Indian Ocean Chiwo.u turd
Australia
do.
Western Pacific Ocean US A. (Guam)
Indian Ocean Mauntjua
Eastarn Allanl c Ocigan Azores
New Zealand
India. Pakistan
North Atlantic Ocean Bermuda
US & (AZ. FL LA. NM, TX) south to
Panama, Cidie.
Colombia to Chile and Argentina
USA. (OR. CA). Mexico (BC) -
USA. (HI) .
do
O r ate
West Indies Cidia . .. .. - .
Japan. Rusata .
China. Japan, Korea. Ruawa
USA(MS) . -
Vertebrate
Dxulabon where
endangered gr
t tveatened
do
do..
do
do
USA (48
C o ltte rm u r tou s
States, except
MN). Me 5 uce
USA (MN)
EnWe
Entre. except
wIwe Sated as
Expenmental
P o
below
‘USA (portions
of NC and TN.
see
17 e4(c)(rn)
mba.
do
..do
do
do
do..
do
do
do
do.
Entre, except
USA.
Entre
do
do
.do
do
do.
do
do
do
do
do.
USA(FL).
Entr.
US A. arty.
Entve
do
do.
.do
.do
-
..do
Co ar name
Tamann, golden.ri,jm (—golden.
headed tamaiin, —aolden. on
MatM t)
Iimann, pied
Tsmann, white.lcotad
Tapir Asian
Tap e, Brazilian
Tape, Central Arnencan
Historic range
Laonzcpilp ,om (—LaQrl us) app (all Brsof - . . ‘ .. do
Status
h I r
NA NA
do
.do
.d o.
- .do.
do.
do
do,.
do
do
do
do.
do
do
do.
...do..
do
do
do
do
do
do.
do.
do
E
1
16
16
NA ‘NA
NA 1 7 4 0(c)
E
15
‘ NA
NA
E
3
NA
NA,
E
3
NA
NA
E
1’
E
E
3
16
3.5
3
NA
NA
NA
NA
NA
1740(C)
NA
NA
E
E
E
E
E
E
E
E
E
E
E
E
E
E
E
3
is
3
166
415
292
4
4
4
I
4
6
3
3
3
3
NA
NA
. NA
1795(a)
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
E
E
E
E
E
Wolf. mined
Wall. red
Do
do
do
3
3
3
3
1. 6, 13.
15, 35
NA
NA
NA
NA
I? 95(a)
22231
NA
NA
NA
NA
do
1’ 35 i?i5 m) •?irO (ir)
£ 4 NA NA
E 1.24$. NA NA
449
XN 246449 NA 1784(c)
4.6
131E.
1 60
3
54
54,111
15. III
E
E
E
T
T
E
E
E
E
E
8
E
E
E
E
E
E
E
E
E
E
E
T
E
E
F
E
E
E
E
F
E
E
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
1795(b)
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
1795(b)
NA
NA
NA
NA
NA
NA
NA
1795(b)
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
2
3
17
I, 3
Is
3
15
156
3
3
3
3
3
280
4
15
15
IS
15
4
3
S
tide
-------
_____ H lstcnc xor a n w sce Whsn Olbcij Sps
Comm ‘ srne SGsnsoc , Indsngeredor bated habitat rules
Cm ,. Sibunaj eM. . Grgai expw , CIS (Sibsnaj to Inaia. mebidoig In, .... do , E I NA NA
_ and
. ... Gn .ia Mongoba do...... E 15 NA NA
C,aj i wnocpurg . Grog amai ”ranJ Cana USA (Roc*y MOwita,n east do. .. . E 1,3 17.95(e) NA
to CwoànasL Me
Crsgpuq luau Oaornjaip , (—Lo.i ruin. US A. (HI) . do .. E 10 NA NA
Cntaper M0 (O Icai —lIaJraw.h 1 e) Pwor,cruy,, (O’pQr7 I? do . . . do . . E 2 NA NA
—Lavapa) fl.n ,rne,
Ctsuper Oatiu ( aluwalupt. . - do - ...do.. ... E 2 NA NA
-Lox ) fllaru
Crow lawajiaj i ( ‘All.) Comea flairausns. C - do do E 1 NA NA
Crow Ma . . Cow, AMaG ,. . WeStern Paaflc OCeaft USA (Guam. . . do -.... E 155 NA NA
Rota)
cro. c aiicgn, , U.S.A (PR), Oonwxca,, Rept eac. do E 419 NA NA
Maunijus ( o ) f)po Indon Ocean Miwi . - . do E 3 NA NA
Cucaoo.snnke Reun n ,, ( Co’gn, n, n . Rew -. ... E . NA NA
Curassor,. razor.bitted Mlas (—Oa, nun, In’fli . . . Small (Ealtan,) .. do . . -. .. E is NA NA
Curasaow. ‘Id CuJIsd -. Qatam .v,b ,, .. B,w . . .. . .. do... .. .._... , . E • 4 NA NA
Curasso,,, Trinulad Pp . Wet Indies Tm s do.... 3 NA NA
Curs.,, Esisuno - Fslcn m,j bcveaba . . Aisaba and northern Canada to .. . do E 1.3 NA NA
A ,g.ntma
Do ,, ctontn.Map. ,._d . . .. . So thmatp 5 .Ocai, New . do E 3 NA NA
Dove Grenada gray.frnjlted L.pzoWa IUf&si&g Nh1 West Indi N Grst ...--. ... do NA NA
Hawaii, (-halos) . - . Mu s)iabi USA. (HI) £ NA NA
Ducli Laysan . Mu IDysgji ., ’gxi do . . ..• do . E I NA NA
Ducir - Rfto ap , l a m . . .. E NA NA
woc . Cwia xtjAJg India, Melaysia , lndon,sja. ThiaIan do. ... -... E . NA NA
Esgi. bald .. # kepi, 1aicc . North America souv, to northern USA E 1,34 NA NA
Mea o
US..exci4
WA. OR. MM,
WI, Ml)
-. . do . do .. . USA T NA I 7 4 1(a)
MF WI. MI)
Eagle Grsenlri 3 WtIite Iaii Hahae .p ... Greertan j and adjacent ASajitic Em ,., E is • NA NA
Esg , harpy Hajprg haipijj . . Mexico south to Atgectsts.. . . do ... E is NA NA
Eagle Piwippine (-moy. , , , ) ... Ptul i ppn ‘ do . E 3 NA NA
E.g. Spaniait mpenaJ . Agruttg flabac . adIOerV. Spain Morocco. Aigena do . 3 NA NA
Egret Chine,e Epwt, ai* cçetot . , China. Kor ‘ do E 3 NA NA
• Flncn. Laysar (honeycreeper)
Finch. N.hoa (honeycreeper)
Flycatcher. Euler’s
FlycAtcher, Seychefles paradise
Flycatcher. Tahiti
Fody Seychelles ( ,eavsr.flt’ch)
Fngstsbvd. Andrew’s
Goose. Aleutian Cenads
Goose. Hswaaan (—neise)
to Goshawti. Qingtmas Island
tO Grackle. 35f 5ç. fl 5
Gtaaswrsn. Eyrean (ftycstchar)
Greba. Atittari
Greenshenk. Nordmanns
Gui,. horned
Gum. wtuil..wmged
Gull. Audouin’s.
Gull. reliCt
Newk. — Island aparrow
Hawk. Galapagos
Hawk. HawiSaft (—10)
Herret. hOOk.bulled (hurnnsng.rd)
HoneyGuege’. crested (-‘Akoliekohe)
Honeysater. helmeted
Hombiti. helmeted
Ibus Japanese crested
northern bald..
Jay. Florida scn
— (-_
Kest,S, Mailitsia
Ksebid. SeyU .
Fa p... ar anailan
Puce hu diso
I Pi o lernozbs ,ept.nthonaIs
Tlaapyza ( .Pa.th’osra) canning
Telesç za ( —Platteosbxi) sdchll
Entax .uler% olVwtonai
Taipuç iona wia
Pbrns.. -
Foida ,.cF i.fianax,
Fir,g.Ia andrwp,
iB,anfl canade’,Si$ biuccparera
1 Nu we (- Slant.) santh,ce’lam
Axp?er lismaflIs ,,a!IId
O,awa*,, C. Caii. ) 5 1* 3 0 .
— —
Po p i,
Tang. purl.,
a çenrss
jays ai oiand
A t francs., piod*ai
Suteo patspeQOails.
SuWo acAt a rs.
Glaijcts (- Ra, .,d . .) Xt.71
PUn ,. d
—
Rflmept.x mgi!
Nanom. , ,
we’ ll.
4 —
Rh och.tos
P.1cc ,ictskia
Fa*3 ieee ‘... . ...
Hs. IrOn, cereal Alaska across
IIOrth.CS.IeII Careda to cenVsI
Mexico. elntsts south to South
Nests from northern Alasira to
Greenland. winter, south to CenVsI
and South America.
Europe. Ewusa south to AfnCs and
Mlasst
USA (AZ NM. TX). Mexico.
Guatemala.
Wa,tdwids, except Antarctica and most
Pa ltc Island,
USA (HI) ... . -
do
West rosa GrenaØa
Indan Ocean Seychelles
South Ps tIc Ocean Tahiti
Indian Ocean Seychelles
East Indian Ocean .
USA (AK. CA. OR. WA). Japan
USA (I’ll)
1Mm Ocean Omom Island..
Mexico .........
Ausliulla.
Guatemala
Russia. Japan. south to Malaya,
Bomso
Guatemala, Mexico
Peru,... - -.
Meditsranean Sea
India. China
Indian Ocean Camaro Islands
Ecoador (Galapagos hands)
US.A.(HI)
Brazil
USA (HI)
Thailand. MaJaycia
CPw ,a. Japan, Russ.. Korea
Souviarn Europe. southwestern As..
northern Afnca.
USA (FL)
South Paxific Oces New Caladone.
New Zealand
1Mm Ocean Mswth
Indon OceL SeyulMms Ilarida.
( 4
Falcon. American peregrine
Falcon. AlcX peregrine
Falcon. Ejasiar peregrine
Falcon. r them aplomado
Falcon. peregrine
do
do.
do
in wild in me
co n terwJaous
‘48 Stats.
Enta.
do
do
.do
do
do
do
.do
do
- do
..do
.do
..do
..dO..
do.....
.do.
.00
.do
do.
do
do.
do
...do.
.do
do
do
..do
..do
do
do
5. 3. i45
2. 3. 145
IS
216
145
3
.3
3
15
1 3. 410
3
3
3
Is
lot
3
IS
3
3
IS
4
IS
3
Sal
267
3
3
3
3
T
E
E
E(S!A)
E
E
E
E
. 5
E
T
E
E
E
E
£
E
E
E
E
E
E
E
E
E
E
E
E
E
T
E
E
E
E
17 0 5(b)
NA
NA
NA
NA
NA,
NA’
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA,
NA
NA
NA
NA
NA
NA
U I
NA
0
3
NA
NA
NA
El.
-------
Parakeet, DCtYe.niarked
Parakeet. orange-bellied
Parakeet. paradise ( —beautful)
Parakeet scarlet-cheated (— splundd)
Parakeet, turQuoIse -
Parrot Austraban
Parrot Bahaman Or c4dian
Parrot. ground
P.rrot. imperial
Parrot Puerto Rican
Parrot, red-thawed
Parrot. red capped
Parrot. red-necked
Parrot. red-epectaclad
Parrot rid-tailed
Parrot St Lucia - -
Parrot. St Vincenl
Parrot, thckatted
Parrot. ninaceous-breaatad
Perrodati. Mats (honeycresper)
Pelcan. brown
Pengtsn. Galapagos
Petit Hawaiian daiIt rtsnped
Pheaaant. bar.taited
Pheasant. Bbta —
Pheasant. brown eared
Pheaaant Cabof a tragopan
Ptieaaent, cheer
Pheasant. o!tlnne monet
Pheaaant, Edward’s
Ptteaaant, E llio t a
Pheaaant, enpanal
Pheaearit, Mtkado
Pheasant Patawan peacock
Pheaaant, Sciater’s monet.
Ptieaaant. Ses’thoa’a -
Pheaaant, weatem tagopan
Pheasant wI lts eared
Pigeon. Awn wood
Pqeo Ctiamem Island
Pigson. Mmdoro zone’tailed
Piper. Pisna Rican tern
—
Pia Koch’s -.
Plower. New Zealand shore
P w*tn atstfl
N a —
a —
Nsi Jt..e ptCeila
a
tars n a m e
aon
Anwsare wrfl
Ama z o n s a ots
Anwara nt. an.
Amazons . . -.
kne —
RI ...A., ,. ,li . pschphpVla
A mazons i ra n
Pn,evlcnestar anmcptvya
fldicama o thfl -
Aaaka ...
..do. -
me
..me
a. -... -.
Weat l i det Qa Baltamat Capra.
Aattia ... . - .
Weat Irdee Do,rflcs
USA (PR)
Brat .
me. -
Weal tides. Doadntce
Brat. hsgsntha . . -
Bra s
Weat dee. St Lids.
West limes St. Vhtoant
Metco, USA (AZ, NM)
Brad - - .
U.S&(Hl)
U.S.A (Cec i lia lo TX. CA). weal
Inalsa. C. and S Amelica, Coastal
Em ( flM.pe. . tenth) - -
US.A(HI) - ‘ -
BnO*to.
tent Ost Irate. ... -.. -
o n
do . -
t NagS, Pabatan .. . - -
Dana
Vfln .. -. .. -
Dana .
vflm.
Talwsn
Sigma. Chute. Inte
Taiwan -.
trims. Pakfln -
Dana flit hats.
Eat Adanbo Ooeamv Awn - - .
New Zeahed
- a t
. 40
- -do
. 4 0
me -
..me
‘.me
me
.4- - -
“-me
.me -.
.me .
me
Men’..
Efis.
...me
Ut Adsndc
ooat. FL, At.
Ease
me
.me
me
...me
...me
,.me
..me
..me - -
-.40 -
.me
-
4o ._._ -.
..me
....me .
-. me—-...
name
Hsoflc rings
S t ats
t o
Vertebrate
Poctiatot where
w wme — _ _ _ _ _ _ _ _ e r edo
e.eigterier, Guam Mcronaaran ... HaIcyon am .7tnrj a’manro,’w weal Pa Qeon USA (3 p4
KS Cice hook.blt.d . t. .. . mNvitake 1 5 1( 50mW Weal Indiea Ceba. .. —. — __.,
KS Eeergtade snail . -.... Aaa*ansa p4mtei U SA. (FL), Cidia .. USA (FL)
KS Grenada hock.bdted Glans’s, Lntah naits . Weal Irtd.ea Grenada . . . .. Enba
Kcs.ako (watttetwd) . Cauaeas owes New Zealand . . me
Macaw glaucous .. Anomemyrjwtj lla ma Paraguay, Uruguay 4 Brazil . me
mago Anoeah.wcirw San . - Brazil . me...
M n . .. me . . . me.
se metto (Oflab) . c ,s aemiüan nW Ocn Seychettes tanS,., me.
MaSons. red.faced (aicltoo) ffiaems aaetj P)1i*0C liAia Sir Lain (—Ceylon) - me
Maar Manjea . . Ar ias otmtaso . . Weal Pacific Ocean U S A. (Guam, . .. me
______ Manana Islands)
auew.000e . Maleo mrta.lpo . . .. p40 wa (Celebea)
Megapode, Microneeian (-La A4ggspo ljpavun ... Weal Pacific Ocean U.SA. (Pate, ‘ -. .me
Perouae’s) lalarit Manana Islands)
LSeru.J . Nihoa (old .oild . -i r i v ie r a Mp . US & (HI) me _. .
Monarch, man (old world flycatcher). Sbtarn MkaM*ane ... _. Weal Patic Ocean. U S & (Manana .... me.
— Ma cni . . , (—gatlinute), Hawa i ian Gasses pocs aansrcemes ..... US & (HI) -. .. _,,.,....... ......do.. — -
o _ _ _
o lktortat (gallrntdj). Manana Giow alawia S ia n . . Weal Pacific Ocean USA (Guam, . me
c a nni ar , mart, Saçajt, Pegan)
ilsreiet, marbled . . &an mam , USA (AK CA, OR, WA), Canada (BC) USA (CA, OR.
___ manrwaam WA)
( whigpoor ,ig, Puerto Ceencupa nocoshetis . US A. (PR) - -. Ense
R i can
u (Mne tesper) l*npna kan t... .. . . ...... USA (Ml)., ,---___. - me
to Ksmaifrto’A a) roraynr . me
Catch. Arebian . - . Strfl, cam a)mame . , Jas 5 5 me -
Ossicn West African . Sbrmno canreita spats Sp.’srs 5eJrs me
Ou(rloneycreepa j) ,. .-USA.(HI) - -
Ce ’ Anlcuan ecopa “ Ocia sti le caato Indian Ocean Camaro Ia, me. ,
Dec am scope Ocspmt s p itanns at vaswe, .., ,,,
slant
Madagascar red -. . T%o aoce7tapvi .. Madagascar me. .
Get ruviarn spottea . Sto tsaS ca i n ’ s . U S A. (CA. OR. WA). Bnttsh CoUrage me..
Get Seyclieltea . Ow, wraj Indian Ocean, Seychesea elate, me.
Owlet. Mordens (-Soltolte) 04 - me. .. . - -
USA (Ill) ,. - -
Parek.et osea’ , , 4’aru_,rra j Mw Zealand me .. ,
Parakeet golden Am Iga guaiotta Brass . , - me
Parakeet goldsn-ahosfl React ion s yaopSype Auatrska - . .. t -a
Parakeet Maunbus . P5s 4 5 emo Indian Dour Mania - . . 4 .me
Parakeet, Noilottt stand . 4vinratirs irovnnilarfln codes Australa (Norfolk Island) . I
When
toed
IS ’
3
3
IS
t S
tS
3
3
‘22
3
3
3 261
156
479
6
1.2
3
3
1 5
401
393
3
3, IS
4
3
3
409
S
S
S
S
S
S
S
S
S
S
S
S
S
S
T
S
S
T
S
S
S
E
S
S
S
S
S
T
-E
S
S
S
‘S
S
S
a.
Coda
NA
NA
I 7S5
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
t7g5
NA
NA
t7g5
NA
NA
NA
NA
MAr
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
Specs
Sn
Ii,.
NA
NA
NA
-NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
N I
M I
NA
NA r
NA
NA
NA a’
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
N . e
Nit
NA
NA
NA
NA
NA —
NA
NA
NA —
9
- I
0
-s
S
S
S
E
S
S
S
S
S
S
S
S
S
S
S
S
S
S
S
S
S
S
S
S
S
S
S
S
S
S
S
S
S
S
S
S
S
S
S
S
S
S
S
S
S
a
4
4
a
3
3
Z,1S
a
3
tS
50
IS
401
3
3
3
IS
2.3. 171
3
& 4,1
3
3
3
3
401
3
3
IS
3
3
3
3
3
3
4
3
3
IS
2
IS
IS
3
— ma As _
Pr.. ana phaacpjps sflsep%en
l in e
— M -
OsMo mantatun
Tmagqzems cabot - .
cetera tilde
Lcptan dearS.. . -
‘ S t
— —
Sjemataa naiteth ... -
— a-..
— n
l’magzpen melanocspleS
Does avi S
c__ nay
— nore idn
meats
a c e . - - -.
Castes aror sela aCme - USA (PR) _. . - - . ..-. -
P e - - Argentha . . . - .. .
P u ma.-
Phovines nowa mee_,, New Zntod
-------
Pocuk (honeyaeeper)
Prsine-ch.cken, Altwater’s grater
Oueil. Mernani’s Montezuma
Ouetzet. resplendent
Red, Aisland Island
— Rail, Catifornue dipper . . -.
Red, Guam
Do
Red, bght.f acted dipper
RH. Lard 110w . wood
Red. Yums clipper . .._ -
RI les, Direst’s
Robin. Chathem Island
Robin. scsulr-breasted (flycatcher)
Rocktowf. grey’neclted
Roclitowl. wtnte.nectued
Roller. long’taded ground
Soristied. noisy
Shama,Cetiu blada (flush). -
Shesrwster, Newetl5 Townsend’s
(formerly Mini) (a A’o)
Sivike. Sen Clement. loggerhead
Susba red
—. Cape Sable seaside
Spwow. FIend. g fl
-------
p -.
Wsitler (wood). Ketands
Wittier (Old wotId). nçhbngals reed
Wertir (old world). Rothiqu.s
Wittier (wood). Simpers
Wittier (Old world). Ssythe (lea
Wlt.p d Western
WNI.y5 bndled
WlVtS.y1 NOrfolk Island
W!ic-iye Ponipe gr.atar
WPst...ys Seychelles
Woodpecker. imperial
Woodpecker. ivory.buoed
Woodpecker. red-cockaded
Woodpecker. Tnst it, .. _.. -
— Wren Guadeloupe house
Wren St Lucia houie
Rapyius
Amgstor. American
Alligator Cli,,. ,.
Anal. Culabra Island giant
Boa. Jamaican
So. Mona
Boa P SflO Rican
Boa Round Island (no common
name)
Boa Round Island (no conu. ,,. .
name I
Boa Vvg.n Islands is.
Cumin Apapona River
Cairn.,, black
C .in ’an broedenoutud
Caiman Vicar.
Ctruckwafla. San Eeiaban Island
Croooml. African dwarf
Crocodile Africa,, el.nde,.a,’cut.d
Crocodile. American
Crocodile. Ceylon mugger
Crocodile. Congo dwarf
Crocodile. Cuban
Crocodile. Moreleta
Crocodile mugger
Crocodile Nile
Do
Crocodile. Onnoco
Crocodile Phuliggirue
Crocodile saltwater ( estua ,wIe)
Crocodile. Siamese
Gavial ( gh5iial)
Gecko, day
Gecko. Mondo
Gecko. Round Island dey
Gecko. Serpent Island
‘ Iguana Ackluns ground
g, Iguana, Allen’s Guy
Iguana, Anthos Island ground
Iguana. Anegada ground
Iguana. Bamnglcn lend
Iguana. Cayman Brec ground
Igiiana. Cuban ground
- -
Aci’1a34 k N - . -
rodo-rcaraia.
Ler eza aon ., —.
8 ones .
Zo.tlrcW. iapicraanit . ca
a 4ar ,s
Thai lcfrpio,,a (-un ). . -.
Zostwcp. mod.sta
Gufl li*dl u7 I
Gunrc(cJ lu*erprwrcrpatst
(- ht. i) bgr.a
DW 4$Wnam
Tmg ott ’ f,s a i guadalotçanu,
T
Alqa -
Anode m.seucm
Ep raMs v iormMia
9c u*v nurcca ta -
E ciW., flIdta,t44 piitU
Car,an 1I OSDZ. -
crocodost yaoae..
SaiaomMsi va,sia
l.da
ó 4 CiW UCO4
0 104
OocotMa P . 4 , 5 5W kil*.J4
tèoifs.mus tedaapis osborm
Cr
—
ODcOap*JP.AISUWPMW5W.
— 4
do.
Qcco *st utta,medvs
auco novaagraneaa nen
— porastst
— .ern
Gaunahs pa ’
SpAaa,odactp*ii nIc th cus
falIum. pia’nmen
1- - m hiIia
4c* . yvMsa stomata
G ic*n c allan
Concfcøtu, palhd.s
G yckta iier4i ca man
t.. _ dwa
U S.A. (prlnclpe$ U ?) Cao.da. Weal
Bahama lIa
Watam Paciha Ocean
Mataftkie (Rodrlguea Islands).
Weal Indies St Lucia.
IMN Ocean Sey ha 5 N lelerd
Auctija,...
Western Pacific Ocean: U BA (Guam)..
Indian Ocean Nirfalk Islands
West Pacific Ocean F.daralad Statas
of Micronesia.
IMN Ocean Seychesea...
Maixo
USA (eouthoennl erud
USA (aculhoent,.j and acliheutem),,
Ker N
West Indies Guedslos. -
West Indies St. Lucia. ..
U S.A . (PR. Qietri Island). -
U.S.A .(PR)
do
Staten Ocean MLrta -.
do....
US and Br IWgi ri I s l ind s
Amsem bajbi
Briat. kgsnd Pa ey. qjay.
kpen* Pai BrasS
WaetAinca..,.
Western and carultal Aince
USA (FL). Mexico. South ,Tleiw. .
CenSal Amsfloa Cadsbsan
Sn Lanka.
Congo River di.u iage
Cuba
Mexico. Belcie. Guatamela
India, Palustin. Iran, Bangladesh
Africa. Muddle East
do
South Amanca Qmoco River Basin
Philippine Islands
Southeast Mu AuaVehla. P.gua.Nsw
G(wIea , Pacific Islands
Southeast Asia. Malay Panouds
Pakustan, BI4TtW, Bai4ade,h. m d ..
Idepal
Indian Ocean Manhest
USA (PR)
Indian Oces Mauntus
do .
Weal Indiaa Bahamas
do
do
West Indies Bullish Wgm Island.
(Anegada stand)
Eouader (Galapagos Islands)
Weal bldiss Cayman Islands
cubs-
West ross Bahama, -. -.
Pacific F , Tongs
Pa c iflcF9
West Indies Cayrnan Islands
West Indies Jamaica
West ItO., Bahamaa
USA (PR.M O n sI$land)
West flOes Tiata arid Caucos Islands
West Indies Bahamas
do
USA (CA). . . ..
do
Span (Canary Islands).
Span (Baleaflc and.) . -.
U SA (CA )...
U S.A. (Martens
Enla
-. ..flO ... -.
...do
- .. do..
do...
-..do
....dO.
do.
do... -
dO. . ..j
do
do..
do.
EnWe. escego
pcpiiatmns In
.do.
Entre. except
Guctes
. . .‘do.
do
do
do.
do
.do
.do
do
do.
.do
do
Eros (exds ng
mfrodiioed in
Puerto Rico)
Ent,.
do
do
.do
.do
..do..
do.
do. -
do
.do
.do
..do .
..do
1.11.20.
47, 51.
20,
I 13.134:
IN.
269
15
25
3
3 3
.2
66
Is
2.56
15
15
IS
3
66
Is
NA
NA
NA
NA
NA
N
NA
NA
NA
NA
NA
NA,
‘NA
P1*
NA
‘NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
P tA
NA
NA
NA
SOS
Species
.. ‘
rodo
Veitibrats
shere
listed
habitat
--..
nd
Convron name
ScientIfic nsnis
C
E
E
S
S
E
S
E
S
S
E
S
F
F
F
F
F
1,3
34
3
3
3
3
156
‘5
3
3
3
1. 3
2
3
3
3
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA’
NA
NA
NA
NA
U
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
Alpade’
SoasalamU.S&,.,.,.,... , ,_,, , , , ,_.. .. . ...do T(5 1AJ
NA 1742( 5)
do.... -
do
do -.
do..
do..
do - . -.
-.
..do
.do.
NA
1725(c)
NA
17 9 5 (c)
NA
NA
NA
NA
NA
NA
NA
NA
NA
MA
• S P4*
tOO? 179 5(c)
tS NA
15 NA
3 NA
3 NA
15 NA
3.334 NA
F
E
S
T
S
E
E
E
E
C
-E
S
S
B
£
E
S
E
S
E
S
T
E
S
E
F
S
E
£
T
1
1’
T
£
E
T
T
T
E
E
£
S
T
T
7
S
T
1’
E
7
7
17 . 42 (c)
NA
NA
NA
NA
NA
NA
NA.
NA
NA-
NA
NA
NA
NA
NA
NA
NA
3. 334
3
I ,
67
15
3. 15
3
125
3
129
129
129
129
3
3
129
129
129
N
Is
129
129
129
29
129
129
129
105
144
144
25
ana. Eauma Island C c*im cychtim pma
Iguana. F banded . . . &i #IlW Iasaati,,
Iguana. Fuji crested Brac #li,s ixb.nsi,
Iguana. Grand Cayntan ground . 4ckve flubs. (uses
Iguana. Jama ican . G) n utter
Iguana. Maysguana 4rc*ra Claus. baitsdi
Iguana. Mona ground G)OVi 5tiP*pei7
Iguana. Tuits and Gusto. C)O,a caauat. Carat,
Iguana, Wading Island ground 40 ,. m , riley,
Iguana. White Cay ground 4Oas nheyr marata
Lriant. bkjnt.ndsed leopard GenWek . (-Crot, 4) MW
Lriard. Coach.IIa Valley fmge.Ioed (mu stomata
L ard. Huerro giant . Gaffoba w go enters.
Lesrit, tboa wail ,,. . Po5a, pt carx.
L d, Island liofIl. .,......... Xan* (.A7,ui*wta) Wes’ na
NA
NA
NA
NA
NA
NA
NA
17 95(c)
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
1795(c)
NA
NA
NA
NA
1795(c)
NA
NA
NA
-------
Monitor, Comodo Mind
Monitor yellow
PhThcn.lnW .
Ramesnalie. Anib$ hand
Rantasnalis. NSw MSxiCSn ndge.nos.d
Slunk. bluI4IMd m e
S lunk.Roundlaland
— Slunk, sand
o Snake. Atlantic alt ,na,sh
a Snake. toncho water
Snake. aisi yr indigo
Snake. Nina Island -
Snake. San Franceco gaiter
Ta i tanjga
Terrapin. flyer (—Turttorg)
Tomu itoina
Toitoise. argulat.d.
Tortoise, Bolson
Tdeoiss. d l i i i
Varare4 kpinodo.ns&s
Varergm llav.scans
P)thon mc*m4 flw&nia
Oors*n
ciotes a,ilaith oOscia’us
Nsps,pa r.jni .
N.vudia lew is ta.nista
Nercidie lLqlf In naici,lila
miiiotio.t liS L ?
— pines’s
Themncçlse 8.VteFia takitaefte
oJerThJ I Jfl3I
Batogt beaks
Tpirsytpin. ecN.pa
G. —
0*w davvmeapnelt ’ s
Gopneria (Xs’obetoA
. Sc Mcha ’s) egesslD
Weal India St. Lucia (Mans Lends)
USA (VI)
Iran. 152. India. Sr Lanka. MalaySia.
Afghanistan. Burma. Vietnam.
Th a n d
Ncrth Ainca to Nearesat. Caeplan Sea
through USSR toPaiustan,
Northwe sl India
Indonewa (komodo, Rint e. PaLer, and
western Floes Island)
West Pakistan ttvcugfl li a to
Bangladesh
Sn Lanka arid India
Aub. Island (Niheftand Antilles)
USA (NM). Memos
USA (FL)
Indian Ocean MaeItsa.
USA (FL).
do
USA(TX)
USA (ALFLGA.US.SC)
West Indies St. Lucia (Mans Linda).
USL(CA)
South America Ormoco alL Amason
River besets
MalaySia. Bangladesri. Burma. India.
Indonesia
Maley Indonesia
Maiagasy Republic ( -Madagascar)
Mexico
U SA (AZ. CA. NV. UT ). Ms
NA NA
179 5(0) NA
NA NA
•NA
NA
NA
NA
NA
NA
1742(d)
NA
1742(d)
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
I. ’
TOitOisa. radiated
Tracata
Titers
TUnte. Alabama red.beflied
e Turtle aquatic box
0 Title, black sottiflell
Tells. Brazilian (.HCga’i) sidenedi
Turtle. Burmase peacock -
Turtle, Cat liland
Tells, Central Amsncafl 114. ,
Tells. Cuatro Cenegas sottiliell
Turtle. flattened musk
G.od*on. elepflefliopUS
— x amua
G.ocholon. — T.szialo) reLate
Sçksno*fl punctet&ia
Psetrd.myi elabelr n
Terrap.n. co.h le
Trrcnys nqcans
n s
MarinaS casuals
Traot* ’nys terrapin
Ocniwr.nbtl flu”
Tnoa’rp star
S*riothiruS wasua
PunenobetSS psomsoxcaS
C- G.xhsksts g.ornakce)
iksse mjdas (mc i 5 9 1 5 w ’)
Ecuador (Galapagos Linda)
USA (AL.FLGA.LA.MS.SC)
Malagasy RspubIic ( MadagaiCar)
South America Onnoco and Aniazon
River basins
New Zealand
USA (AL)
Bangladesh
Stints
West Indies Jamaica. Bahamas
Mexico. Beliz., Guatemala
Mexico
USA (AL)
C
US k (AZ. south T(SIA) 3575. -
sail sail of 37$
Colorado
River) and.
Meslao when
of AZ. south
ajileallof
Coforado
(beer, and
Mexico.
Enore
‘Wherever total
weal of Mdeda
and
T ... .L4 a s
Rivers m AL
MS. and LA.
Ems. . .. . E 3
do . E 3
do E 3
E 27$
do . . . E 6
do . . E IS
do E 443
.do E 15
Cat Island St 015 B 4d)
Bahamas
Entis E 129
do E tS
Black Wernor T 272
River mtam.
—
Bankhsad Dam
Ern ie. . . E iS
Wh ever found T 2.42
in—
Isatad is
bLow
Breedlig ociony E
populations m
FL and on
Paalfic coast c i
Mexico.
Estee
14A. ( 174 2 (e) F.
S m
I
.
NA
NA
I
S
0
NA
PitA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
1742(b)
eral
Pans
fOWL
227
41
LiWll. Mans island gound . OI Th IyJJIa sa ilor
tjzatd SI Croix ground .4mw,
Monitor. Bengal . Varams ben9alenss
Species
Ilustcnc range
Vertabrate
population where
pared or
sta
When
kited
Cidical
habitat
SpeciE
rtbes
Common name
ScientifIc name
Monitor. desert
Vaster, gne
443
24
‘5
15 1A
E
E
E
£
E
E
T
T
T
T
T
T
T
T
E
E
E
E
£
E
E
T
do
do
do
do
4°
do
do
do
...do.
.do
do
.do
do.
do
.do..
..do
do....
do
do
Entire, except AZ
south and east
01 Itt.
River. and
15
15
IS
129
43
299
129
299
30
241
32
443
3
3
15
15
4$
103.
357E.
37$
NA
NA
NA
NA
17 . 9 5(c)
NA
NA
NA
NA
17 95(c)
NA
NA
NA
NA
NA
NA
NA
NA
17 9 5(c)
do
do
be
lortoala. Galapagos’
Toitosse. 90 0 1w
E
T
3
2$’
NA
NA
NA
NA
NA
NA
NA
NA
NA
5 NA
NA
NA
NA
Turtle, geomellic
T .stie pun sea
Co
?urds. hawkdoill use (—cats !)
..do
E,.enouh.44 il IceL
Sc m Atnca
CvcumglCbal m tropical and tan ate
sass and oceans
do ‘ -
Tropical sass
NA
NA
2.42 NA
El 3 179 5 (c)
-------
0
Turtle. peacock softahsfl
TuWS. Pt ’niouth rsdb.flusd
Turtle. nriged uwback
Tutu. short-necked or western swamp
Titus. wetted pond
Tuttle. South Am.ncan red-tired
‘runt.. ttw..-k.s4.d Asian
hits. yell w-b tct rsd mw
(-sawback)
Vgr . 1st Valley -
AMPWIIANS
Frog. Israel pa inted - -
Frog, Panamanian golden
Frog. Stephen Island
Salamander. Ch.at Mountain
Salamander. China. giant
Salamander. desert slander
Selaniandit. Japanese giant
Seignuandur j)ed Hills
Sal inai . San Marcoa
Salamander Santa Crux Iorig ’toed
Salamiruder Shenandoah
Saiamander. Texas blind
Toad. African viviparous
Toed. Camstcon
Toed. Housloc
Toad. Mont. Verde
Toed. Puerto Rican a.sted
Toad. Wyoming
Fi s iiiS
Ala Batik (trou1) .
A imodclu (lcacfr)
BWidcal. Mexican (catfish)
Ba us. Asian
Cattish (no common nami]
Cattish, giant
Catfish, Yaqus
Cavedih. Alabama
Gaveflah. OwIi
ok , — -
cltude. Borax Lake
Gls . Othuahua
—c l i
Oti . Hutton fri
Oii , Mohive li i
c Ix. OwsnsSa .
Qiu . Paluranagal rouZndtajt ( bonytai)
Qasi. Sowa
Q di. apollir
clN . Virgin Prier
Otu . Yaqua
OcK wvicw)
Q , s - ... -
Odes. Ash Meadows pe ’r 1
Dec.. blacked .
• Dec.. Clover Valley apr ’ s rd
Dec.. daeen
Dec.. Foeli83 Ipr’ ’
Dice. lndapanow Valley ap’ 1 ” 1
Dec.. Kendull Wane Sponge
Derter. witer
TOorT)w huatp,,
(Qli3iaan ia) 6wbm
Grepwnrys xu*Fwa
Geoc*r,y , (- morsa) h Wtc ,1
Tra lan5w saipti caIt.osow
A*snocfle ’, (—G.ostr t*
-Moon.) bs,staa,la
Orwptenrj, denxiomia .
y . i15I3
-.
mponeri*
Atatcçcjs rarer, z.t.* ,
L .1ma hans/to’,
PivOicOlis, nsmi’V
.4nthu daaickamrs davrdiam , ,
Baivachoaap, andus
Ahe’.aa dex. ma
iWtaic9natSfria h, ex ’ib
t a cai n ina -
— m
Flett r aflstiar ,doah
T)rI*k u.W IU*In
spa
. - —
Rude peripdenis
Rude h ’ , Jt ,,’ , batten
Sabno pIa Aa*ia
M ( 8oha) aide
Threivde —
P .rçaswssinmecrçsw
Pang.sianodcn ppa&
— —
— ma..
Gdew.pans
Ode bora,cK, ,
Ode , J&J
Odequgin.
Ode oraap
Ode AccK mcKsarxas
Ode’ s ,ip .,
Ode rebu dejorder.
Er,rr ritax ( - ?iG &) ca Ms
Ode dewsa
C iIed1 C — P,bCr, ) nrorua ’u.
Ode ,cbuSta snab ’erda
Ode nsa
A doorvic4
r2iunwst.s oipis
R Uu w oanAia nerwder,
R l oex N i a
Rhawl itrj, Aia sap
Rha tuye &ba
oenmia min d
A_
Weal Indies. Bahamaa (Gmat I s
India
Pakistan. India
Trcpical and temperate seas in Adarix
Basen. mcI C i ii Of Mexico
Tropical, temperate. and sutpof ar seas
C .o .ng lobal ii tropical and tangisrals
seas and ocea
Tr p.cal and taniperat. seas in PacIfic
Sean
Bangladesh
USA. (MA)
US&(LAMS) . . -
A cK ..
North Indo, Psliiate_n..
Coloristia, Venezuela
Carrel India to Bargladesh and Bums.
USA(MS) .... ...
f ran
USA (PR).
tw ist
New Zealand
USA (WV)
Weatam Chata
US A, (CA)
Jar e r i
USA (AL)
USA (TX)
USA (CA).
US A. (VA)
USA (TX)
Tanzania. Guinea. Ivory Coast.
Cameroon. Liberia. Ethiopia
Equatorial Africa
USA (TX)
Costa Rica
USA. (PR). British Virgin Islands
USA (WY)
Turkey .. .
Japan
Mexico
TTedarst. lndones Mate)Na..
do
US A. (AZ). Mexico
USA (AL)
USA (AR. MO. OK)
USA (AZ. CA.CD. NV. UT. WY)
USA (OR)
US A. (NM), Mexico (Ctaliuahua)
U S A. (AZ. CO. UT. WY)
USA (OR)
USA (CA)
do
USA (NV)
USA (TN,VA)
USA.. (AZ), Mexico
USA. (AL GA. NC. TN, VA)
U SA (AZ NV. UT)
USA.IAZ), Mexico
Turkey
USA . (NV)
USA (TN.KV )
USA. (NV)
...do..
USA. (OR) . -
U S A. (NV)
USA (NV)
USA (GA. TN)...._.. .
Wherev dewat
hated as
below.
pogudeboil on
Pacific coast of
Mexico
-. .do. --
do...
do.
do
do
do.
NA
NA
NA
22241
22241
1742(b)
and
P$ .
220 end
227
1742(b)
and
Pit’s
220 and
227
22241
NA
t7 43(a)
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
i24A
NA
NA
1744(g)
NA
NA
NA
NA
1744(g)
NA
‘luG
NA
NA
NA
17 44(c)
17 4 4(o)
17 44(C)
NA
NA
NA
NA
NA
NA
NA
1744(m)
17 44(j)
NA
NA
NA
NA
Speoies
Historic range
Vertebrate
endangered or
traitened
Status
When
hated
C dxii
habitat
.
Special
rides
Co.nmpn
Titus. lnegua Ipland. . .. _... -.
Turtle. tndor sawback
Tuttle. indian acitahell
Tuttle. Kamps (—Attantic) ndley sea
Tulle, Ieatherfrack sea
Tuttle. lcggartread sea
Tuttle. Olive (PsOfic) tidily sea
Tfaohgr,b, JfR) ’agln nialon*
K tecde Mcde . -
Tncfrys g.npstrors
L. siAxh$’ , kan
Car. ! ?. caras.
L io ri w ..
do -
do
..do
do
do.
4 43
IS
15
4
3
42
NA
NA
NA
NA
1795(c),
225.71
NA
42 NA
B
E
B
E
B
T
T
E
E
E
T
B
E
B
T
S
42
15
as
250
3
15
443
1 5
4 ,8
129
NA
NA
NA
NA.
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA’
NA
Q
T 29
B 3
E is
5 3
T 358
B 15
B 8
E Ia
NA
NA
17.95(c)
NA
NA
.NA
‘NA
NA
NA
NA
1795(d)
NA
NA
NA
NA
NA
NA
NA
NA
1795(d)
NA
NA
NA
NA
NA
17-95(d)
NA
NA
NA
NA
NA
NA
‘NA
NA
NA
1195(e)
1 195(e)
NA
NA
179 5(e)
NA
NA
NA
NA
17.95(e)
NA
17 95 ( 5)
17 95(e)
1795(e)
NA
1795(e)
NA
NA
.17 9 5(a)
NA
.NA
1795(e)
NA
NA
NA
NA
1795(5)
do
do.
do
do
do.
do.
do
do
do..
do
- do
do
do
do
do
do
..do
do
do
do
..do
do
..dO
do
do.
.do
..do
do
do
do
do.
do
do
do
do
do.
do
do
do
do
do
do
..do
do
do
do.
- .do.. -
do
..do -
I
T
B
E
S
E
E
E
£
T
B
E
E
E
S
E
T
B
T
B
B
T
B
T
B
E
E
1 ’
T
T
E
B
B
E
E
T
B
T
T
E
£
B
E
19
358
- 15
a
Is
.283
138
3
3
3
15
3
3
157
28. 328
184
92
124
132
174
2
195
2
28
227
28
381
157
1 17E ,
127E.
130
273
370
1.20.
210
174
370. 372
198
-------
Dafter, bayou
Darter. boulder ( Elk Rivw)
Diner, fotinhain
Diner. golden.
Darter l.opard
Diner, Ma, 4arid
Oilier Nliflgui
Darter Okaloosa
Diner. slickwaler
Da,ier snail
Darter watercress
Gamtiusia Big Bend
Gambusia. CIw Cie.k
Gambuxia. P.cos
Gambusia. San Marco,
LcgDerch. Conasauga
Logpeccir. Roaruolie
— MadtOm. NeosIio
— Maiftom. Scioto
0 MadtOm. Snioky
Midtorn. yellowfin
Miiuiow. bach
Nitiogig.JcatI l sh)
P00 11 h r— itoai . Pehvw,
PUplish. Ash MeaOows Anwgoa.
Puptish, Comap h1e Springs
Pupfofl, deieTl ‘ -
Pup)iehi Devils Hole
Puptaji. Leon Springs
PupfiSli, Orion.
Pupfisti, Warm Spring,
Salmon. chinook
Salmon, sockeye ( -red. -bluebec )
Sculpun, pygmy
Shiner beautiful
Shiner, blue. .
Shiner, Cahaba
Stifler, Cape Fear
Shiner Peco, bluritnose
SultiSrIjite Waccamaw
Spukedace
Sprnedac. ø.g Spring
Spunedac.. Little Colorado.
pnedace. Whit. Rrvsi
Sprnghsh, Hike Whiti River
Spnngfish, Ridroad Valley
5prngfish, While River
Squawfish. Colorado
Stickleback, unamiored threespine
Sturgeon, pallid
Sturgeon. phoilnos.
Sturgeon. Gulf
SUcker, Jun.
Sucker, Lost River
Sucker, Modoc
Sucker, razorback
Sucker, sl ’iori.nos.
Sucli, Warner
Em.ostorrie ftbtml
Ern.osztnna waprft
Efteostome ‘on
Plrcivii atirc .4iut.
Per ie p.ntrvinna
Ettmoston,a i.der.
Emwstam. rtienguae
EtItoostcina oka!ccsae
Et*.ostoma boschw
P*cvia teness
Etlieostcma fliicflIbi
Gambi,ie ge iger
Gentvjssa h.tivciclw
Gan*us,a nood,
GarrA lie g.GQ.
haciui.r.x’
Abilics s.uMtam.
Nchavs baW t.
AbMus flaviwwW
nevadens,snwvwct,s
wWn1 ailepena
G pnn , maculanus
— ,athoazs
G)p’in , r,ivader,sis pectomlw
Orwtiynchue tshaw 1scha
—
C - No#t ur) mou
(_ 4)
C)prwiwla C. Notitps) cas i ’vlea
Nob’cçss cahebee
NOIrcPrS m.k,stocholas
Nobcp’s slmia p.00S.ns is
Mv a aziense
Mad, Il,Igide
L.pdcsneda n7oTh rms çs’atensrs
L.prdom.da wheta
Lpidcirseda ItoIVCUIS
wsuchthye bas , grand,
Cs ,nicltthy, ‘gevadee
nsxchzh ,,, ba rley , bailey ’
ochM flicant
Gastercstus Iculafl,s iwlhamsonr
ScflDftvhy,ichus albus
Acç.nser PWOSbi,m
Ac pnsr ouy,fiyochim desotci
Otasnsst.s hams
ai,t.s kit e (US
Carostwnus n s
Xyraiecneri tevanus
OlaSfl lntMs evyoSDiS
CMo,lamit aerneraitaw
USA.(MS) . ..._............ -
USA (TN. AL)..
US A . (TX)
US A. (ALGA.TN)
USA (AR.OK)
USA (MD)
USA (MO)
USA (FL)
USA (ALTN)
USA (ALGA.TN)
USA (AL)
USA (TX)
do
USA (NM.TX)
USA(TX) .
USA (GA.TN)
USA (VA)
US A. (KS, MO, OK
USJ(ON)
USA(TN)
USA (TN,VA)
USA. (AZ. NM). Mexico
Japan
US & (NV)
USA (NV)
USA (TX)
USA (AZ. CA) Mexico
USA (NV).
USA (TX)
USA (CA)
USA(NV)
Pacific Ocean
North Pacific Basin from U S A. (CA) to
Ruuua
USA (AL)
USA (AZ. NM), Mexico
USA (ALGA)
USA (AL)
USA (NC)
USA (NM)
USA (NC)
US A (AZ. NM), Mexico
USA (NV)
USA (AZ)
USA (NV)
do
do
do
USA (AZ. CA. CO. NM, NV, UT. WY ),
MexicO
USA (CA)
USA (AR. IA. IL KS. KY. LA. MO.
MS. MT. ND, NE. SO. TN)
USA and Canada (Atlantic Coast)
US A. (AL FL. GA. LA. MS)
USA. (UT)
USA (OR.CA)
USA (CA)
US A (AZ. CA, CO. NM. NV. UT. WY ),
Mexico
U SA (OR. CA)
USA (CR)
.dD
..do.
.do.
do..
do
do
do.
do
do
do.
do
do..
do
do
do
do
do..
-
do.
Ems, except
where hated ii
an
pc p t i faxn
below
N Fork Holster
R. V TN. S
Fcrk l4 lston
R. iai sveem
to FL Patrick
Da
TN. HclstOn
R.
downstream to
Ja Sower
Detention Lake
Dam. TN. and
ill Ututanu
thereto
Entire
do
do
do
do
do
do
do
do
USA (CA
Sacramento A
winter run)
USA (Snake
River. ID Stock
found)
Entire
do
.do
do
do
do
.do
do.
do
do.
do
.do
do
do
Entire, except
Sail and Verde
R drainages.
AZ
Sift and Verde
A drainages.
AZ
Entire
do
do
do
do
do
do
do
do..
...do
NA
NA
NA .
NA
NA
• NA • ,.
NA
22721
NA
1744(u)
17 4 4(g)
NA
NA
NA
1744(r)’ q
1744( 5 )
l74
1744()
17 44(t)
NA
NA
17 44(n)
NA
NA
Species
Milan. range
VeVt ate
pcgulalion where
erd)angered or
Status
When
listed
Clixal
habitat
.
Special
lutes
Common hamS
Scientific nams
NA
NA
179 5 (e)
NA
I 7 9 5(e)
17 95(e)
Il 95(5)
NA
I 795(e)
NA
NA
NA
NA
NA
17 95(e)
17 95(e)
NA
NA
NA
17 95( s)
Il 95(e)
17.44(b)
NA
NA
NA
17.44(d)
NA
1744(h)
NA
17 44(c)
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
1744(c) 0
Do
S
‘I
‘I I
0
n
‘a
A
.tI.
C
RPamctfr (- 7 )woga) co ( Uto
o ’s*awar
Enin.wrollth,a late.
NA 1764(e)
NA 1744(d)
NA NA
NA NA
T
E
E
T
T
E
T
E
T
T
E
E
E
£
E
£
E
T
E
E
T
XN
T
£
E
F
E
E
E
E
E
£
T
E
7
1’
7
£
E
7
7
T
T
7
E
E
T
E
E
XN
E
E
E
T
E
E
E
E
E
T
10
322
2
462
31
185
e
28
42. 150
2
2
98
196
359
388
10
183
28. 317
317
247
117 5,
127E,
130
2
102
383E.
407
455
365
•157
.462
405
290
‘265
236
173
267
203
206
224
206
I, 193
‘93
2
399
444
223
313
164
447
313
20$
17 554.)
NA
1795(e)
NA
1795( 1)
NA
NA
22621
NA
NA
1795(e)
NA
NA
1795(e)
1795(e)
1795(e)
NA
1795(e)
17.95(e)
1795( 5)
1795(e)
17 95(e)
17 95(e)
NA
Do
do
do
NA 1764(b)
NA
NA
NA
NA
1795(e)
NA
1795(e)
NA
NA
179 5 (s)
NA
NA
NA
t744M
•NA
NA
NA
NA
NA
17.44(9
‘I
-------
Tango. Mryako (Tokyo bttarlirtg).
Temoleli. Ikan (rtwvtcw)
Togminnow. G Sa (it ’d YeqJ)
Totoebe (esaPout w wsaklleh)
Trout Apache ( —M acna)
TroutGrla
Trout. greenback outthroat.
Trout Latronten outllvoat S...
Trout. UtIle Kim golden ,
Trout. Pasta outtltroat
Slt.geen Magazine Mountain
Snail. Crtrttanatrgo ovate enS
Sites. Pflced Ihratcothed
SitS. Iowa Pluatocana -
Sits. Menus hand tree..
Sneil.rroondey -
snetoeiwtraa
Snag. parntsE snake coiled forest
Snarl. Stock Island tea -
Snail. hiotoma ( -Alabama kvar
Snail. Virgxrsa fringed mountain
Spnrtgsnail. Alamoaa
Spnnganail. Socono
C ar la
beak I -Cuts’ miwsat
CS asnr (-panawa
nasal)
F iner ies -
Fatnatkat Arkansas
Healapliltar. inflated
Must Cumbartand prøoe
Muaaal. Owe n wedge
Must m o flirt (—goltafl pearly)
MusseL winged mplelea(
Paast shell. Louisiana
Pasty ntraaal, Alabama lfl.
P. narsaal, Appatsotar
monkeyl ace
Pearly musseL SOwing
Pearly muaael. crclung
Peartynvi. GuS bar
Pearly mussel. CuntétaM
monkeylaca
Pearly naaseel.
. .--- .
Pearly missed. grean bloaaom
aarly najaael. Hçgina eye
Pearly nasal. lotte-w i ng
Pearly mrsael, Nckhns
Pearly nasal (-pangs bS nw
footed
Pearly nasal. — pL
Pearly nasal. pat racket. . -
Pasty nasal. piaple cata paw
Pearly nasaaal. Tampico
Pefl mi s
Pearly nasaL sØssonam
Pep’ly nasal. sPite tale pew
Pasty mi S shea wartytack
Pearly nasaL paSs
Pugtoe. (te l (-Materials nassa u ).
Plgtoe. heavy (—Judge Tat. nasal)...
PlgtO eJcr4L.
Tanaka tanqo -
P(3t 1 *r ocSntaba
flittat atacdenad
O ftstoias C— Se men) —
Otowtr,a C-Samro) —.
O ’bntotka (—Sehtto) asS
O t sflss C— Semen) at
O’rcottgotoltrs (.Sahrto) queSts
me a l
Otwlrjvcillis ( —Semen) St
S
% skgeSMms
_
Sow —
flkiik 3 iaw — —
caaar —
Pl,emo. puL1l ,w ,
r aMe
‘aesnesa app (as Wades)
‘ 1__
OVlahaa s e en (riot trel. nawca}ea) .
Fi%otars nrapivMa. .. _
Trysts alesrtoeae
— —
4,...,....a etepane C —wiDest
— _ar
PSanMa stRatus
flrv pwrm .
Atesrstsrsa he s S ,
Ocosflrefts..
Oats —
Mas’pflts’a ran.
— s a r a n
Oasis apar
cans. caeiaar
Har&etena (-Lsstena) Zeta
s a ( Mau’riyo) babe S
OaSi s trieS. . . -
Epobiaame (-Ojrarn) Rarben
Draw flw
mo ( -L3rru) sSa
— ftçgea.
Pbpaa 55
— ,ec*Mww
Mcbasrs ooxewms
To.rciasma I — Carwtcrthna) q*t*eta
Lerrwsth. Sips C— a Ss.)
iesrrie C -fltsnane) Squeta
Siasla(-E srtstasr*sta)
fltMrtw Z e wadL. teccrrtetera.e
0Sasma C —l anarva) torts
a ss e s
teama (—Lessttra) hspasda
(-Iwane) stta
s a t
Aemabasa acsbas
Sixtairt . C—anna .) A....&’. .
Fr ’rse astaess
Fba.S,me tsnr..
Japan
Thwlent C S mar
USA(AZ.NM),Metdoo
Ma o (G uI I Calltorrila)
USA.(AZ)
USA(AZ.NM) ....
USA(CO) ...._...._
USA. (CA. NV. CA, UT)
USA(CA)
. 0 0
USA (AZ. NV UT)
USA(AR)..... _.-.
US.A.(NY) . -.
USA.(WV) . . . . . . ...
US.A.(IA)
PaSt Ocean: AStSaItyit (Marts 1e4.
USA(NC) -
US.A.p4l)
USA.(TN) . -
U.S.A. (FL) . ... ........, .... . -
USA (AL)
UtA.(VA3
USA (NM) —
-
USA (AL IL IN. KY, ON.PA. TN. VA.
WV)
USA (AR) .
USA (AL LA MS)
USA (TN)
USA (CT. DC. 0€. MA. MD . NC. NH.
NJ. PA. VA. VT). Ceneda (NS)
USA (AL IL IN. KY, ON. PA. TN.
WV)
USA. (WI. IL MN. MO. ON. NE. TN.
KY, IN. IA . OK)
USA (IA)
USA (AL TN)
USA (TN, VA)
do.
U 5 k (AL. IL. IN, KY, OH. TN, VA)
US A. (KY. TN)
USA(AL.TN.VA) ... . a..
U.S.A (MO)
USA (TN,VA)
do
U SA (IL IA. MN. MO. NE. WI)
USA (AL. KY NC. TN, VA)
Metso
USA (ALIN.IA.KY,ON.PA.TN).
USA(ALTN)
USA. (AL IL IN. KY. MO. Cli. PA.
TP&WV)
USA. (AL. IL IN, KY. OH. TN)
Mezico.
USA (IL IN. KY. TN, WV)
USA (ALTN)
U.S A. (IN. MI. OH)
USA. (AL. IN , TN)
USA(ALTN)
USA(ALTN.VA) ..
USA (AL.MS)
..do ...
USA (IN. KY.TN, VA) _......................
-00.. - - - -
U.S.A. o I ly -
—40-....
Es —
a a
1.l..a t AZ.
Nk
a a se ma
a
Speon .
KUbat sage
V e lb ah
==e
OwnS
Stats
W en
Used
Cl&S
4s
rise
tanxn name
‘ Slant nan.
CS
I-
Woundltn
AirtarenS. Kanab
E
E
€
E
E
T
T
T
T
E
3
to
a
t. S
1.35
37
I. S
2.130
NA
NA
NA
NA
NA
N A
NA
NA
haS(s)
NA
NA
NA
NA
NA
NA
17.444.)
NA
1744( 1) .
t7.44(e)
t7.44( IL
17. 4 4(a)
NA
tnehea pkstaSs - - USA(AZ.UT) ..._ ..._.._.. NA....................
NA 1754 (b)
154 I n
E 43tE.
4O0
4 77
T 340
T 41
T 41
E 41
E 3
T 4t
E tOO.tt2
T 4t
T 41
E 412
E 41
E 442
E 442
sea
NA _.....
NA. ..
NA.
NA
- .
NA. . . -.
NA -
NA... .... -
NA........
NA..
NA
NA..............
Ftssn wean -
U 5k (At.. MSI . NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
A
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
.Me
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
N A
S
NA
NA
NA
NA
NA
NA —
NA
NA _
NA P
NA ‘r
NA
NA INS
NA
0
a
I
NA
NA
NA
NA
NA
NA
NA.. -
NA._..._..
NA -
NA....
NA
NA
NA
NA
NA
NA -
NA - -.
NA
NA
NA
NA
NA
NA -
NA .. ... -
NA..
NA
NA........
NA. .. -
NA
NA
NA
NA
NA.
a
E
T
T
E
€
E
E
E
E
E
E
E
E
C
E
E
E
E
€
E
E
E
E
E
E
E
E
E
E
€
E
€
E
E
ads
set
302
454
423
377
3
42
304
IS
to
to
350
to
to
to
to
to
to
342
to
to
to
to
354
to
to
to
15
to
to
to
252
2 52
to
-------
i s srsny
Doctstook tat
Doastofl. spacklsd
R#sa snaIl. Ian
RoagockatbOOk. Ouachuta
— Wnsalar’s party musaat)
Sgryvrssaaat Jima Rast (—WgsI$)
Soryniussal.TwRive
Swrw shall
Cl iust ic lANs
Anvlcod Hay’s Sprng
Cisyfian (no common Mini)
Crayfish. Nashville
C,syf’sh SMsla (-plaod)
wood Madison Cavi
S Socoro..
• .-
Sing Alabama cave
SIvr Cahlynia trssltwalst
5tvvirg Kentucky cavs
Srvre Sqieel Qsmnay (-Panda)
Cave
INSECTS
Bases Amsncan bwbvng (—Own
canon bssds)
Bases. daM grain pound
Bases. Ka stschman Cave mold
Bseoe. norlhslstsifl bsach bgsr
Bases Pfln tger.
Bssiis Tooth Csvsgoisid
Bases valley sldsfbsviy longhorn
Bunwify bay checherlool
Butterfty El Segundo blue
Bur angie mstalmsik
Butterfly tota l this
Bunrty mission this
Buitsrtly Mitchsll’s satyr
Bune*y M YUS5 i4velQOi
C
Bunwfly Oregon siSsngol
Butiartit Pelos Vstdes talus
Bulterily. Ousan AJixanoli’s bedwing
Bultsrtly. San Bnino elfin
Butterfly. Scliaus swallowtsil
Butterfly. Smiths blue
Butterfly Unconrpallgrs thtiitsry
MoB ’. Ksrn pnmtosa sphinx
Nsuco’o. Ash Maadows
Slugger. Pawnss menta l.
ARACwNI0s
Hsiveslman. Baa Crash Cave
Pssudoscwpot. Tooth Calve c...
Sg.dsr tooth Csv$ -
Puaconais C —
ftahs (-P?ggftri) Gear
Laircpsdds sb.ckan
EPotfasma either
Agans,. (-A dsn —
Rernberris (—Fusconaa - 57*Do.
-CSyt& colhna
FLI LU CC,nrtq’rra) slglarlsvlI
OuWS sr es -
Sty pobfnnq M -
Cantan.’s z lwiaste5
C n —
Paortasracln bits
Anacisna La -
—C-—)
r n - A s
Pslaenonras spbama.
Sprcnaafte
Pa!aenoivas pant ., -
Palnmrst.s Aarnwp
Bern
Tara,nawcps ,s lh
O SaI a nn
Ahasne psrapAorls
Desmoc.us cshbnrars Smopflin..
El.Wyss sma bayensrs
Eitrdotes C —Shpiiincrdest ba#otn
Agosnemwrrio te wer
L.pca.dn sprognomai bbs
caSaa nxsanss.
Nsov,viwnapvtchs/k tnrlchWLr
Ss,s. sn rn vSa
— SnU
Gisiccpay s n easa
patoavsrsdann
Trc n (— Orurhapisiw) alexsii*ae
CaI fl’yw mow ba)ns
1 ,.,JJa C—P rbo) aistGdenlus
Eitttrn C -Shpvrsndns) erroptn
Ant
Sob ,. . w.....J
eutfle
Ant. a amasgosus
? a Sofl -panes) monta n a
Taxeaa ,s Th
11aM -
Laptonets nty rca
USA (ALTN.VA)
USA (AR, IN, MO. Oil)
USA (AR) .
USA (ICY, TN. VA)
USA (AR.OK)
USA. (VA. WV)
USA (NC) -
USA (ALMS).
USA (DC)
USA (AR)
USA (TN)
USA (CA)
USA (VA)
USA (NM)
USA (AL)
USA )
USA (ICY)
USA (FL)
NA
NA.
NA
NA
NA
NA.
NA.
NA
NA
NA
NA
—
Spscias
HSttatC iWIgi
Ver lstrala
000tMb0n wtlsrs
rda rsdor
evealenad
5111111
Whsn
latad
cnescaI
habitat
Speat
nAsa
-
Common nuns
Soentattc nania
E 15
E IS
E 345
E 27
E 446
E 316
E 166
E 262
E 115
E 263
E 242
B 337
T 123
B 36
E 323
B 340
B 135
T 390
B 351
T 100
B 327
T 396
T 396
B 327
iT 99
T 266
E 14
B 14
B I I
B 14
B 426E.
46 9
E 472
T 96
B 96
E 364
B . l4
£ ItiSt
B 14
B 427
T 91
T 161
T 269
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
17 95(h)
NA
NA
1795(i)
NA
NA
NA
NA
1795(i)
NA
NA
NA
NA
NA
NA
N A
179 5(i)
17 96(i)
NA
NA
NA
NA
NA
NA
17 9 5 )
NA
NA...
NA
NA
NA
NA
NA.
NA
NA
NA
NA...
NA
NA
NA
NA.
NA
NA
NA
NA
NA..
NA
NA
NA -.
NA.
MA
NA
NA
NA
NA
NA
NA..
NA.
NA
NA
NA
USA (sastsrnSlatessoulhtoFL
wa ll to SD and 170. ssatarn Canada
USA (CA)
USA (IX)
USA. (CT. MA, MD . NJ, NY, PA, RI.
VA)
USA (CT. MA, MD. NH. VT)..
USA (TX)
US.A(CA)
do
do
do
do ...
do
USA (IN. MI, NJ. OH)
USA (CAl
USA. (OR. WA. CA)
USA (CA)
Pepua New G ina
USA. (CA)
US A. (FL)
U.SA (CA)
USA ( )
USA (CA)
USA (NV)
USA.( O)
- 4
t e l
-4
us
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
1746(a)
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA F
NA
NA
NA a’
NA
a
NA
NA
NA
us
S
a
a
S
S
(0
a.
a.
U I
US.A(TX).. . NA . B 327 NA
do . . NA . .. . B 327 NA
do . NA . B 327 NA
Symbols usad in the wtlan tad” Column
D—tndicatss FR sites spabiss was Debstsd. Sang of Via spscies is indcatsd by ai tesqusnt numbar(s)
B—Indicates Emsrgsncy ruts pitlicabon (en FR docurnsnl tar sftectzvs dna). subsaqusni numbar(s) undicats FR Sit rule, if spplcabts. under When kflt’
Boltos haL Non ae the blowing bat tot the “when 11110’ olabons
.
-------
§ 17.11
1—32 FR 400 ‘ch 11. 1967.
2—35 FR 1604i, uctober 13. 1970.
3—35 FR 8495; June 2. 1970
4 ’—35 FR 18320; December 2. 1970.
5—37 PR 6176; March 30. 1972.
6—38 FR 14678; June 4. 1973.
7—39 PR 44991; December 30. 1974.
8—40 FR 29864; July 16. 1915.
9—40 PR 31736; July 28. 1975.
10—40 FR 44151: September 5 , 1915.
11—40 FR 44418; September 28. 1975.
12—40 FR 47506; October 9. 1975.
13—41 FR 17740; AprIl 28, 1916.
14-_41 FR 22044: June 1, 1976.
15—41 FR 24064; June 14. 1978.
15A—41 FR 26019. June 24. 1976.
16—41 FR 45993; October 19. 1916.
17—41 FR 51021; November 19. 1976.
18—41 FR 51612: November 23. 1916.
19—41 FR 53034; December 3, 1976.
20—42 FR 2016: January 10. 1971.
21—42 FR 2968; January 14. 1977.
22—42 FR 15971. March 24. 1977.
23—42 PR 28137; June 2. 1977.
24—42 FR 28545; June 3.1977.
25—42 PR 31373: July 21. 1977.
26—42 FR 40685; August 11. 1977.
27—42 FR 42353; August 23. 1977.
28—42 FR 45528; September 9. 1977.
29—42 Ff 1. 58155; November 11. 1917.
30—42 FR 60745; November 29. 1977.
31—43 FR 3715; January 27. 1978.
32—43 FR 4028: January 31. 1978.
33—43 FR 4621; February 3. 1978.
34—43 FR 6233. February 14. 1978.
35—43 FR 9612. March 9. 1978.
36—43 FR 12691. March 27. 1918.
37—43 FR 15429. April 13. 1978.
38—43 FR 16345. April 18. 1978.
40—43 FR 20504. May 12. 1978.
41—43 FR 28932. July 3, 1978.
42—43 FR 32808: July 28. 1978.
43—43 FR 34479: August 4. 1978.
45—44 PR 21289: April 10, 1979.
46—44 FR 23064. April17. 1919.
48—44 PR 29480. May 21. 1979.
50—44 PR 37128. June 25. 1979.
51—44 PR 37132. June 25. 1979.
52—44 FR 42911; July 20. 1979.
54—44 FR 49220. August 21. 1919.
55—44 FR 54007: September 17. 1979.
60—44 FR 59084; October 12. 1979.
85—44 FR 69208: November 30. 1979.
86—44 PR 70677; December 7. 1979
87—44 FR 75076; December 18. 1979.
88—45 FR 18010; March 20, 1980.
90—45 PR 21833. April 2, 1980.
91—45 FR 24090: April 8. 1980.
92—45 FR 27113; April 23. 1980.
93—45 PR 28722: April 30. 1980.
94—45 FR 35821; May 28. 1980.
95—45 FR 44935; July 2. 1980
96—45 FR 44939; July 2. 1980
91—45 FR 41352, July 14. 1980
98—45 FR 47355. July 14. 1980
99—45 FR 52803, August 8. 1980
100—45 FR 52807: August 8. 1980.
50 CFR Ch. I (10-1-92 EdItio n)
102—45 FR 54678: August 15. 1980.
103—45 FR 55654; August 20. 1980.
105..-4 FR 63812. September 25. 1980.
106—45 FR 65132; October 1. 1980.
• 108—48 FR 3178; January 13. 1981.
1i1—46FR 11665. February 10. 1981.
• 112—46 FR 40025; August 8. 198!.’.
113—46 PR 40664: August 10. 1981.
114—47 FR 4204; January 28. 1982.
115—47 FR 5425; February 5. 1992.
117—47 FR 19995: May 0. 1583.
110—47 PR 31610; July 21. 1982.
123—47 FR 43701 .,October 4, 1982.-
124—47 FR 43962; October 5, 1982.
125—47 PR 46093. October 15. 1982.
121—48 FR 612; January 5. 1983.
128—48 FR 1726; January’14. 1983.
129—48 PR 28464; Jund 22, 1983.
130—48 FR 40184; September 2. 1983.
31—48 PR 43043; September 21. 1983.
132—48 pg 46057: October 11. 1983.
134—48 PR 46336; Ojtober 12. 1983.
135—48 FR 46341; October 12. 1983.
136—48 FR 49249; October 25.1983.
,138— ’49 FR 1994; January 17. 1984.
139—49 FR 2783: January23. 1984.
142—49 PR 7335; February 28. 1984.
143—49 FR 7394: Pebruar1 29, 1984.
144—49 FR 7398; February 29 1984.
145—49 FR 10526; March 20. 1984.
146—49 FR 14356; Apr11 11. 1984.
149—49 FR 22334; May 29, 1984.
150—49 FR 27514. July 5. 1984.
156—49 PR 33885; August 7, 1984.
157—49 FR 34494; August 31. 1984.
159—49 FR 34504: August 31. 1984.
160—49 PR 34510. August 31. 1984.
161—49 FR 35954. September 13. 1984.
163—49 FR 43069; October 26. 1984.
164—49 FR 43969: November 1, 1984.
166—49 FR 45163; November 1.5, 1984.
168—49 FR 49639; December 21. 1984.
169—50 PR 1056. January 9. 1985.
110—50 FR 4226: January 30. 1985.
171—50 PR 4945; February 4. 1985.
173—50 PR 12302; March 28. 1985.
174—50 FR 12305; March 28. 1985.
181—50 FR 20786; May 20. 1985.
1 2—50 PR 21792; May 28, 1985.
183—50 FR 23884; June 6. 1985.
184—50 FR 24530; June 11, 1985.
185—50 FR 24653; June 12. 1985.
186—50 FR 25678; June 20. 1985.
188—50 PR 26575: June 21. 1985.
189—50 FR 27002; July 1. 1985.
193—50 FR 30194; July 24. 1985
195—50 FR 31599; August 5. 1985.
196—50 PR 31603; August 5. 1985.
203—50 PR 37198: September 12. 1985.
205—50 FR 39117; September 27. 1985.
206—50 PR 39123: September 27. r985.
210—50 FR 50308. December 10. 1985.
211—50 PR 50733. December II. 1985.
212—50 FR 51252. December 16. 1985.
216—Si FR 6890; February 25. 1988.
222—51 FR 10850. March 31. 1986
IJ,5, Fish and Wildlife Serv., Inferior
.3—51 FR 10857; March 31. 1986.
24—51 FR 10864: March 31. 1986.
227—51 FR. 16047: April 30. 1986.
228—51 FR 16482; May 2, 1986.
233—Si FR 17980: May 16. 1986.
236—SI FR 23781. July 1, 1986.
239—51 PR 27495: July 31. 1986.
241—51 FR 31422; September 3. 1986.
242—51 FR 34412; September 26. 1986.
246—51 FR 3 4425; September 26. 1986.
247—51 FR 39478. October 28. 1986.
248—51 FR 41796: November 19. 1986.
250—51 PR 45910; December 23. 1986.
251—52 FR 288: January 5. 1987.
258—52 FR 5302; February 20. 1987.
261—52 PR 10892: April 8. 1987.
262—52 FR 1.1169; April 7. 1987.
263—52 PR 11172; April 7. 1987.
265—52 FR 11266; April 8. 1987.
267—52 PR 20719; June 3. 1987.
268—52 FR 20999; June 3, 1987.
269—52 FR 21063; June 4. 1987.
272—52 FR 22430: June 11, 1987.
273—52 FR 22585; June 12. 1987.
278—52 PR 22943; June 16. ‘1987.
279—52 PR 23151; June 17. 1987.
280—52 PR 25232: July 6. 1987.
281—52 FR 25380: July 7, 1987.
282—52 PR 28785; August 3. 1987.
283—52 FR 2883 1; itugust 4, 1981
284—52 FR 29780; August 11, 1987.
287—52 FR 35040: September 16. 1987.
288—52 FR 35378; September 18, 1987.
289—52 FR 36180; September 25, 1987.
290—52 FR 36038; September 25. 1987.
292—12 FR 36719; October 1. 1987.
294—52 FR 37423; October 6. 1981.
296— 2 FR 42068; Novembdr 2. 1987.
299—52 FR 42662: November 8. 1987.
304—53 FR 3570; February 5. 1988.
312—53 FR 25611: July 8, 1988.
313—53 FR 21134; July 18, 1988.
316—53 FR 27693; July 22 1988.
317—53 1 3 R 29337; August 4. 1988.
320—’ 3 FR 33992; September 1, 1988.
322—53.FR 33998: September 1. 1988.
323—53 PR 34698; September 7, 1988.
327—53 FR 36033; September 16. 1988.
328—53 FR 31970; September 28. 1988.
334—53 FR 38453; September 30. 1988.
336—53 FR 38460; September 30, 1988.
337—53 FR 38465; September 30. 1988.
338—53 FR 38469: September 30. 1988.
340—53 FR 43889; October 30. 1988.
342—53 FR 45865: November 14. 1988.
345—54 FR 8341; February 28. 1989.
348—54 FR 15208: April 17, 1989.
349—54 FR 20602. May 12, 1989.
350—54 FR 22906; May 30. 1989.
35 1—54 FR 29655. July 13. 1989.
357—54 FR 32331. August 4, 1989.
358—54 FR 34468: August 18. 1989.
359—54 FR 34412. August 18. 1989.
361—54 FR 35311. August 24. 1989.
364—54 FR 38951. September 21. 1989.
365—54 FR 39849. September 28. 1989.
386—54 FR 39853: September 28. 1989.
!7.11
369—54 FR 40112: September 1
370—54 FR 41453; October 10. 1.
37 1—54 FR 43969: October 30. 1989.
372—54 FR 47861; November 17, 1989.
376—55 FR 9135; March 12. 1990.
377—55 FR 9451: March 14. 1990.
378—55 FR 12191; AprIl 2. 1990.
382—55 FR 12801: April 5. 1990.
383—55 PR 12832; AprIl 8. 1990.
384—55 PR 13488: April 10. 1990.
387—55 FR 18845, May 4. 1990.
388—55 FR 21153; May 22. 1090.
390—55 FR 25591: June 21. 1990.
391—55 FR 25595. June 21. 1990.
393—55 FR 26194. June 26, 1990.
394—55 FR 28213: July 10. 1990.
396—55 PR 32094: August 7. 1090.
399—55 FR 36647: September 6. 1990.
400—55 FR 39416. September 21. 1990.
401—55 PR 39860; September 28. 1990.
404—55 FR 39672. September 28. 1990.
405—55 FR 42968: October 25. 1990.
407—55 FR 49623: November 30. 1990.
408—55 FR 50006; December 4, 1990.
410—55 FR 51112; December 12. 1990.
411—55 PR 53160; December 27. 1990.
412—56 FR 800: January 9, 1991.
4 15—56 FR 1459: January 14. 1991.
416—56 FR 1463; January 14. 1991.
417—56 ’FR 1463; January 14. 1091.
419—5 6 FR 13600; April 3. 1991.
421—56 FR 10814; April 30. 1991.
423—56 FR 21087; May 1, 1991.
428—58 FR 28349; June 20. 1991.
427—56 PR 28711: June 24. 1991.
428—56 FR 28828; June 25. 1991.
43 1—56 FR 37671; August 8. 1991.
432—56 FR 40267: August 14. 1991.
433—56 PR 41488; August 21. 1991.
442—56 FR 43649: September 30. 1991.
443—56 FR 43653; September 30. 1991.
444—56 PR 49658: September 30. 1991.
446—56 FR 54957; October 23. 1991.
447—56 FR 54961; October 23. 1991.
449—56 FR 56333: November 4. 1991.
454—56 FR 64723; December 12. 1991.
455—57 FR 213: January 3. 1992.
456—51 FR 594; January 7. 1992.
459—57 FR 13661; April 17, 1992.
462—57 FR 14790: April 22. 1992.
469—57 FR 21569; May 20. 1092.
475—57 FR 28024: June 23. 1992.
475—57 FR 44340: September 25, 1992.
419—57 PR 45337: October 1. 1992.
(48 PR 34182. July 27. 1983]
EDITORIAL NoTE 1: For FEDERAL Rseisrsa
citations affecting the table In 4 17.11(h).
see the listing above.
EDITORIAL NoTE 2: For FEDERAL Rsoisiss
citations affecting 417.11, see the List of
CFR Sections Affected appearing in the
Finding Aids section of this volume.
Er,sc’rivs DATE Nois At 57 FR 28024,
June 23. 1992. 417.11 was amended in para-
116
117
-------
§ 222.23
50 CFR Ch. 11(10-1-92 Edltlo )
§ 222.23 Perim. a’ scientific purposes or
to enhance the propagation or survival
of the affected endangered species,
(a) The Director. National Marine
Fisheries Service, may issue permits
for scientific purposes or to enhance
the propagation or survival of the af-
fected endangered species which au-
thorize, under such terms and condi-
tions as he may prescribe, taking, im-
portation, or certain other acts with
respect to endangered species other-
wise prohibited by section 9 of the En-
dangered Species Act of 1973. The spe-
cies listed as endangered under either
the Endangered Species Conservation
Act of 1969 or the Endangered Species
Act of 1973 and currently under the
jurisdiction of the Secretary of Com-
merce are: Shortnose sturgeon (Ad-
penser brevirost rum); Totoaba (Cijnos-
clan macdonalda); Snake River sock-
eye salmon (Oncorhynchus
nerica); Gray whale (Eschrlcljgjus ro-
bustu (glaucus, gibbosus)), Blue
whale (Balaenopgera musculus),
Humpback whale (Megapt.era no-
vaeanghae), Bowhead whale (Balaena-
mystice(us), Right whales (Eubalaena
spp.), Fin or finback whale (Balaenop-
tera physalus), Sei whale (Balaenop-
tera borealis), Sperm whale (Physeter
Catocion); Cochito (Phocoena Sinus),
Chinese river dolphin (Lipotes vexil-
lifer); Indus River dolphin (Platanisga
minor); Caribean monk seal (Mona-
chus tmpicalzs) Hawaiian monk seal
(Monachus schauznalandz): Mediterra-
nean monk seal (Monachus mona-
chus); Leatherback sea turtle (Dermo-
chelys coriacea), Pacific hawksbill sea
turtle (Eretmochejys imbricaga bissa),
Atlantic hawksblll sea turtle (Eretmo..
chelys imbricata imbricata), Atlantic
ridley sea turtle (Lepidochejyg
IcempiO. Green sea turtle (Chelonja
mydas) breeding colony populations in
Florida and on the Pacific coast of
Mexico, and the olive ridley sea turtle
(Lepidochelys OliVacea) breeding
colony population on the Pacific coast
of Mexico. Of these, the National
Marine Fisheries Service has sole
agency jurisdiction for sea turtles
while the turtles are In the water and
the U.S. Fish and Wildlife Service has
jurisdiction for sea turtles while the
turtles are on land. Within the Juris-
diction of a State, more restrictive
State laws or regulatio In regard to
endangered species shall prevail in
regard to taking. Proof of compljan
with applicable State laws will be re
quired before a permit will be Issued.
(b) Applicatjo procedures. Any
person desiring to obtain such a
permit may make application therefor
to the Director except for permits In-
volving sea turtles in which case the
applicant shall follow the procedures
set out in 50 CFR part 220 subpart
The sufficiency of the application
shall be determined by the Director in
accordance with the requirements or
this part and, In that connection, he
may waive any requirement for infor.
mation, or require any elaboration or
further lnlormation deemed neces-
sary. The following information will
be used a-s the basis for determining
whether an application is complete
and whether a permit for scientific
purposes or to enhance the propaga-
tion or survival of the affected endan-
gered species should be Issued by the
Director. An original and four copies
of the completed application shall be
submitted to the Director, National
Marine Fisheries Service. National
Oceanic and Atmospheric Administra-
tion (NOA.A), U.S. Department of
Commerce, Washington, DC 20235. As-
sistance may be obtained by writing
the Director or calling the Marine
Mammal and Endangered Species Di-
vision in Washington, DC (202-343-
9445 and effective December 2, 1974, It
win become 202-634-7529). At least 45
days should be allowed for processing. -
An application for a permit shall pro-
vide the following Information (when
the information requested Is not appli-
cable put ‘N.A.”) and such other In-
formation that the Director may re-
quIre:
(1) Title: As applicable, either:
(i) Application for Permit for Scien-
tific Purposes under the Endangered
Species Act of 1973; or
(ii) Application for Permit to En-
hance the Propagation or Survival of
the Eridaiigerecj Species Under the En-
dangered Species Act of 1973.
(2) The date of the application.
(3) The identity of the applicant In-
cluding complete name, address, and
telephone number. If the applicant Is
a Partnership or a corporate entity set
86
forth the details. If the endangered
species is to be utilized by a persow
other than the Applicant, set forth
the name of that person and such
other Information as would be re-
quired If such person were an Appli-
cant.
(4) A description of the purpose of
the proposed acts, including:
Ci) A detailed justification of the
need for the endangered species, In-
cluding a discussion of possible alter-
natives. whether or not under the con-
trol of the applicant; and
(it) A detailed description of how the
species will be used.
(5) A detailed description of the
project, or program, In which the en-
dangered species is to be used, Includ-
ing:
Ci) The period of time over which
the project or program will be con-
ducted;
(ii) A list of the names and addresses
of the sponsors or cooperating Institu-
tions and the scientists involved;
(iii) A copy of the formal research
proposal or contract 11 one has been
prepared;
(iv) A statement of whether the pro-
posed project or program has broader
significance than the individual re-
searcher’s goals (I.e., does the pro-
posed project or program respond di-
rectly or Indirectly to recommendation
of any national or international scien-
tific body charged with research or
management of the endangered spe-
cies, and, if so, how?); and
Cv) A description of the arrange-
ments, If any, for the disposition of
any dead specimen or its skeleton or
other remains, for the continued bene-
fit to science, in a museum or other In-
stitutional collection.
(6) A description of the endangered
species which is the subject of the ap-
plication, Including the following:
(i) A list of each species and the
number of each, including the
common and scientific name: the sub-
species (if applicable); population
group, and range;
(ii) A physical description of each
animal, including the age, size, and
Sex;
(iii) A list of the probable dates of
capture or other taking, Importation,
exportation, and other acts which re-
quire a permit, for each am..al, and
the location of capture or other
taking, importation, exportation, and
other acts which require a permit, as
specifically as possible;
(lv) A description of the status of
the stock of each species related Inso-
far as possible to the location or area
of taking;
Cv) A description of the manner of
taking for each animal, including the
gear to be used;
Cvi) The name and qualifications of
the persons or entity which will cap-
ture or otherwise take the animals;
(vii) If the capture or other taking is
to be done by a contractor, a state-
ment as to whether a qualified
member of your staff (Include name(s)
and qualifications) will supervise or
observe the capture or other taking.
Accompany such statement with a
copy of the proposed contract or a
letter from the contractor indicating
agreement to capture or otherwise
taken the animals, should a permit be
granted:
(7) A description of the manner of
transportation of any live animal
taken, imported, exported, or shipped
in interstate commerce, including:
(i) Mode of transportation;
(ii) Name of transportation compa-
ny;
(iii) Length of time in transit for the
transfer of the animal(s) from the cap-
ture site to the holding facility;
(iv) Length of time in transit for any
future move or transfer of the
animal(s) that is planned;
Cv) The qualifications of the
common carrier or agent used for
transportation of the animals;
(vi) A description of the pen. tank,
container, cage, cradle, or other de-
vices used, both to hold the animal at
the capture site and during transpor-
tation;
(vii) Special care before and during
transportation, such as salves, antibi-
otics, moisture; and
(viii) A statement as to whether the
animals will be accompanied by a vet-
erinarian or other similarly qualified
person, and the qualifications of such
person.
(B) Describe the contemplated care
and maintenance of any live animals
sought, including a complete descrip-
87
onol Marine Fisheries Sirvic•INOAA, Commerce
sii—ias 0—n—i
-------
§226.71
Subpart C—(R.served]
Subpart D—CrltIcal Habitat for
Marine Reptiles
6226.71 Sandy Point, St. Croix, U.S.
Virgin Islands.
LEATHERBACK SEA TURTLE
(DERMOCHELYS CORIACEA)
The waters adjacent to Sandy Point.
St. Croix, U.S. Virgin Islands, up to
and inclusive of the waters from the
hundred fathom curve shoreward to
the level of mean high tide with
boundaries at 1V42 ’12” North and
6450 ’OO” West.
PART 227—THREATENED FISH AND
WILDLIFE
Subpavl A—Gsnsral Provisions
Sec.
227.1 Purpose.
227.2 Scope.
227.3 Definitions.
221.4 Enumeration of threatened species.
Subpa,I B—Thr.atmrod Madn. Mammals
227.11 Guadalupe fur seal.
227.12 Steller sea lion.
Subpars C—Thrsof.n.d Mann. and
Anadromou. Fish
227.21 Threatened salmon.
Subpart C—CR.s.rv.d]
Subpart D—Thr.at.n.d Mann. R.ptii.s
227.71 ProhibitIons.
227.72 ExceptIons to prohibitions.
AUTHORITY: 16 U.S.C. 1531 et seq.
SOURCE: 43 PR 32809. July 28. 1918. unless
otherwise noted.
EDrrORIAL No TE For a document relating
to adoption of alternative scientific testing
protocol for evaluating TEDs see 55 PR
41002. Oct. 9. 1090.
Subpart A—General ProvIsIons
§ 227.1 Purpose.
The regulations contained in this
part identify the species, subspecies, or
any other group of fish and wildlife of
the same species or smaller taxa in
common spatial arrangement that In-
50 CFR Cl i. 11(10-1-92 EdlIlon)
terbreed when mature, under the ju.
risdictlon of the Secretary of Corn.
merce which have been determined to
be threatened species under the En.
dangered Species Act of 1973 and pro-
vide for the conservation of such spe.
des by establishing rules and proce.
dures to govern activities involving the
species.
§ 227.2 Scope.
(a) The regulations contained In this
part apply only to the threatened spe-
cies enumerated in § 227.4.
(b) The provision of this part are in
addition to, and not in lieu of other
regulations of parts 217 through 222
and part 225 of this chapter H which
prescribe additional restrictions or
conditions governing threatened spe-
cies.
(C) Certain of the threatened fish or
wildlife listed in 50 CFR 17.11 and
enumerated in 50 CFR 227.4 are In-
cluded in Appendix I or II to the Con-
vention on International Trade in En-
dangered Species of Wild Fauna and
Flora. The Importation, exportation,
and reexportation of such species are
subject to additional regulations pro-
vided in part 23, chapter I (title 50).
6227.3 Definitions.
In addition to the definitions con-
tained in the Act, and in parts 217 and
225 of this chapter, and unless the
context otherwise requires, in this
part 227:
(a) Act means the Endangered Spe-
cies Act of 1973, as amended, 16 U.S.C.
1531 through 1547;
(b) Assistant Administrator means
the Assistant Administrator for Fish-
eries. National Oceanic and Atmos-
pheric Administration, Department of
Commerce, or his authorized delegate.
The Assistant Administrator for Fish-
eries is in charge of the National
Marine Fisheries Service;
(C) Ongoing project(s) means an ac-
tivity for scientific purposes or to en-
hance the propagation or survival of
such species which are not conducted
in the course of a commercial activity
initiated before the listing of the ef-
fected species;
(d) Plastron means the ventral part
of the shell of a sea turtle consisting
typically of nine symmetrically placed
bones overlaid by horny plates; and
Ce) Sea turtle(s) means those sea
turtle species enumerated in § 227.4
and any part(s), product(s), egg(s) or
offspring thereof, or the dead body or
part( ) thereof.
0227.4 EnumeratIon of threatened spe-
cies.
The species listed as threatened
under the Act which are under the ju-
risdiction of the Secretary of Com-
merce are:
Ca) Green sea turtle (Chelonia
rnydas) except for those populations
listed under 50 CFR 222.23(a).’
(b) Loggerhead sea turtle (Caretta
caretta ).‘
Cc) Pacific ridley sea turtle (Lepido-
chelys olivacea) except for those popu-
lations listed under 50 CFR 222.23(a).’
The effective date of the listing of the
species in paragraphs (a), (b). and (C)
of this section is September 6. 1978.
Cd) Guadalupe fur seal (Arctocepha-
las townsendO.
Ce) Sacramento River winter-run chi-
nook salmon (Oncorhynchus
tschawytscha).
(1) Steller (northern) sea lion (Eume-
lopias jubatus).
(g) Snake River spring/summer chi-
nook salmon (Oncorhynchus tshawyts-
d na). Includes all natural
population(s) of spring/summer chi-
nook salmon in the mainstream Snake
River and any of the following subba-
sins: Tucannon River, Grande Ronde
River, Imnaha River, and Salmon
River.
(h) Snake River fall chinook salmon
(Oneorhynchus tshawijtscha). Includes
all natural population(s) of fall chi-
nook salmon in the mainstem Snake
River and any of the following subba-
sins: Tucannon River, Grande Ronde
River, Imnaha River, Salmon River.
and Clearwater River.
(43 FR 32809. July 18, 1978, as amended at
45 FR 29055, May 1, 1980; 50 FR 51258, Dec.
16, 1985; 55 FR 46523. Nov. 5, 1990; 55 FR
‘Department of Commerce, National Oce-
anic and Atmospheric Administration, Na-
tional Marine Fisheries Service. jurisdistion
for sea turtles Is limited to turtles while in
the water.
§ 227. 1 . 5
49210, Nov. 26, 1990; 5’I 4662, Apr. 22,
19921
Subpart B—Threatened Marine
Mammals
8227.11 Guadaiupe fur seal.
(a) Prohibitions. The prohibitions of
section 9 of the Act (16 U.S.C. 1538)
relating to endangered species apply
to the Guadalupe fur seal except as
provided in paragraph (b) of this sec-
tion.
(b) Exceptions. (1) The Assistant Ad-
ministrator may Issue permits author-
izing activities which would otherwise
be prohibited under paragraph (a) of
this section in accordance with the
subject to the provisions of part 222
subpart C—Endangered Fish or Wild-
life Permits.
(2) Any Federal, State or local gov-
ernment official, employee, or desig-
nated agent may, in the course of off I-
cial duties, take a stranded Guadalupe
fur seal without a permit If such
taking:
(I) Is accomplished in a humane
manner
(ii) Is for the protection or welfare
of the animal, is for the protection of
the public health or welfare, or is for
the salvage or disposal of a dead speci-
men;
(iii) Includes steps designed to
ensure the return of the animal to Its
natural habitat, if feasible; and
(iv) Is reported within 30 days to the
Director, Southwest Region, National
Marine Fisheries Service. 300 S. Ferry
Street. Terminal Island, CA 90731.
(3) Any animal or specimen taken
under paragraph (b)(2) of this section
may only be retained, disposed of, or
salvaged in accordance with directions
from the Director, Southwest Region.
•t 50 FR 81258, Dec. 16, 19851
§ 227.12 Steller sea lion.
(a) Prohibitlons—(1) No dischartve of
firearms. Except as provided in para-
graph Cb) of this section. no person
subject to the jurisdiction of the
United States may discharge a firearm
at or within 100 yards (91.4 meters) of
a Steller sea lion. A firearm Is any
weapon, such as a pistol or rifle, capa-
National Marine Fisheries S.rvlce/NOAA, Commercs
104
105
-------
§ 17.12.
graph (h) by reEL he entry under MAM.
MAIS for the “, . ili Ovu ammon ?*odg-
soni. effective January 1. 1993.
§ 11.12 Endangered and threatened plants.
(a) The list in this section contains
the names of all species of plants
which have been determined by the
Services to be Endangered or Threat.
ened. It also contains the names of
species of Ølants treated as Endan-
gered or Threatened because they are
sufficiently similar in appearance to
Endangered or Threatened species
(see 17.50 et seq.).
(b) The columns entitled “Scientific
name” and ‘Common name” define
the species of plant within the mean-
ing of the Act. Although common
names are included, they cannot be
relied upon for identification of any
specimen, since they may vary greatly
in local usage. The Services shall use
the most recently accepted scientific
name. In cases in which confusion
might arise, a synonym(s) will b pro.
vided in parentheses. The Services
shall rely to the extent practicable on
the” Lnternational Coda of Botanical
Nom nc1ature.
(C) In the “Status” column the fol.
lowing symbols are used: “E” for En.
dapgered, ‘T” for Threatened, and “E
(or TI (S/A)” for similarity of appear.
ance species.
(d) The other data in the list are
nonregulatory In nature and are pro-
vided for the information of the
reader. In the annual revision and
compilation of this title, the following
information may be amended without
public notice: the spelling of species’
names, historical range, footnotes, ref-
erences to certain other applicable
portions of this title, synonyms,,and
more current names. In any of these
revised entries, neither the species, as
defined in paragraph (b) of this sec-
tion, nor its status may be changed
without following the procedures of
part 424 of this title.
Ce) The “Historic range” indicates
the known general distribution of the
species or subspecies as reported in (he
current scientific literature. The
50 CFR Ch. I (10-1-92 EdIti. 5 ) U.C. Fish and WIIdIif. S.rv., InOirIor
present distribution may be greatly re
duced from this historic range, This
column does not imply any limitation
on the application of the prohibition
in the Act or implementing rules. Such
prohibitions apply to all individuals of
the plant species, wherever found.
(f)(1) A footnote to the FEDERAL Rgc.
‘s’r publication(s) listing or reclassi-
fying a species is indicated under the
column “When listed.” Footnote num-
bers to ft 17.11 and 17.12 are in the
same numerical sequence, since plants
and animals may be listed in the same
FEDERAL REGISTER document. That
document, at least since 1973, includes
a statement indicating the basis for
the listing, as well as the effective
date(s) of said listing.
(2) The “Special rules” and “Critical
habitat” columns provide a cross refer.
ence to other sections in parts 17, 222,
226, or 227. The “Special rules”
column will also be used to cite the
special rules which describe experi-
mental populations and determine If
they are essential or nonessential. Sep.
arate listings will be made for experi-
mental populations, and the status
column will include the following sym-
bols: “XE” for an essential experimen-
tal population and “XN” for a nones-
sential experimental population. The
term “NA” (not applicable) appearing
in either of these two columns indi-
cates that there are no special rules
and/or critical habitat for that par-
ticular species. However, all other ap-
propriate rules in parts 17, 217
through 227, and 402 still apply to
that species, In addition, there may be
other rules in this title that relate to
such plants, e.g., port-of-entry require-
ments. It is not intended that the ref.
erences in the “Special rules” column
list all the regulations of the two Serv-
ices which might apply to the species
or to the regulations of other Federal
dgencies or State ‘or local govern-
ments.
(g) The listing of a particular taxon
includes all lower taXonomic units (see
§ 17.11(g) for examples).
(h) The “Ust of Endangered and
Threatened Plants” is provided below:
118
§ 17.12
I III I I II II I. I
II II III I III I I II II
UI UI UI I- UI UI UI UI UI UI UI UI UI UI UI UI I l l s- Ill UI I- I-
‘ . . ‘I (
0) 01 (flU)
2
Iii
D
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g
.
: g
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In
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In
0)flZU) Ib
In
- .: :1:.
1 lid ji’IIi 11111 i i ii I
I I II II I L I
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118
8
i t I. I L [ j ! 1 1
h •; I h I _____
S.
• I
‘I
‘I
119
sii-ie, o—s2——5
-------
— mmii
Sokdapo isma.a..
Stipfl nomen. malhai,tn$ii
.T.Rin1d& itm lIhbm.
doamdaçM,, Iap(doftml vat I Xflmi
T. imc cçiwn rm
17 on ’6i wvdaca (.0) , L)
Toris.nda a a
Ndas . .. . -
None
Mclvi Subs,.. b Ilon..
Ruiha Qolisil daIs,
Non.
Miii ramya . .... ..
Non.
San Francisco Peaks pcundsa (
WIMi.hassd ,AJa...4.
Ho sgld .d.
Shs,r. g..1d _ .u . —.
She Ridg. goldarvod .
Norm
Non..
M
Last Chance toisn.ind
Dw aif8 au
hlcOcnaMs mck r.u.
ShaM ba,ysn rock.aau..
SmaIl.withered b it11la.s$
CaMonde —
CorOs Cost. wsIIttcws,.
MunDsa wallflower
— — (-_)
- . - 0km. Ma .
L ista bladderpod
White blaUda.,.od
Duste , Slut?, tunpod
Qay ree nsatud
Bameby me atard.
Slm by reed imiatsid (.Tcad.IIax
u s a)
do
U S.A. (At.. GA)
US.A.(TN)
U.S.A. (lii)
.4o
...do.
USA.(AZ)
USA.(KY)
U S.A. (MI), Canada
US.A(KY)
U SA (NC TN)..
U.S.A. (OR)
USA. HQ.
.do.
USA. (TX)
USA. (UT).
U.S.A. (HI).
US.A.(CA).
USA (V&WV).
U8.A.(NC )
U S.A. (CA)
.do
do
USA.(UT)
US.A.(GO)
USA(MO)
USA(AL)
USA(TX)
USA.( )
USA. (UT)
..do
...do
F
‘ I
. 5 ’
0.
0.
NA2
I—
A IamSs maade
AxWhis .iraIs!ai
am s a_______
.
t.I
n .m.
Statia
When
IiaISd
Cnbc&
habitat
Specist
tulSa
c .efititic name Cenvoon
‘a
,32I NA
295 1796 (a)
Meld. milkweed
Watatis milkweed
Non.
Amuncsn hsIt s-tcngue tarn .
AlSuben uh,sld.Iem (-Aleuban holly.
fern)
Ailinahana (. Haleakala silvafiword).
Alwiahms Mairna K u silvarawoid)
Cuneslebudena
KOOkOCIau
Scnoma sunshin. (—Bakwa
an—
Deciaisnt I alga sat.,
Fiord, golden dater
Pitch.,. tlsaS.
Sacramento Mountains thistle
t4 aen aa 0
Non.
Non. .
Tennessee pulpie conatl ar
Ash Meadows mnvey
Miguira daisy
Zun u( —Rhizo tne )fl g aban .
Ash Meadows gumplant
Schweimt.s sunflowii.
None
None.
Lakeside daisy
Issab prairie dawn-flows, (-T.w
bitlerwoed)
Bialuis goidlields.
Such Isyis
Sen Joequin wythraada
Hellers blazingataf
Sciub blazmgstar
N.h.
USA (IL IN. IA.
KS. MO. WI)
U SA. (AZ. UT)
U Si.. (HI)
USA (AL MI, NV.
TN). Canada (ON)
USA. (AK)
USA (MI)
do
do
USA.(CA)
US A. (IL MO) ... -
USA. (FL)
U.S A. (IL IN. MI.
WI). Canada (ON)
USA (NM).
US.A.(HI)_.
do
USA (TN)
USA.(NV)
USA (UT)
USA. (NM)
U.S.A (CA. NV)
USA (NC.SC)
USA. (HI)
do
USA (OMIt.)
Canada (ON)
USA. (TX)
USA. (CA)
do
do
USA (NC)
USA (FL)
USA (HI)
do
0.144 laIcata
m 4bb, vat anwvwani I -P uprsca asp. a)
A .ter.cua.—Aster Ismily
Aap 1 u’ox lwJm sandlwcinsa up macsoc.pAalum
AIp i’cx hsuni uiakiicansa up unthwcinsa
BaMris Cuflaata
&dens Imcranm. up kalu!aIia
8I.nncspenra Oaken
— BoSwaa ducz#rens
Qoyscpsis lhondaiia I. HstaicitAsca F)
o caesm, prdllen
Cuawm wwca . .. -
A auba Pmrbstobatgo -
Aebaiitta laWofra
A.Oautae paicflottcla
Echinacu TanrmSsNns4
Enn.i ps.s nutacaidui vat cO .rugata
Engarun magiatar vat ,flapuer*
OWns, ,WzomaM
Grrtdeha fraxiricpcetanm
# 4Mfltflut SWlWStflltZI .
N1ps,omannia a,tuscu/a
H.,ps,cinanma Sstga*.
Mv77.nci i aCauki Vat gIabm
—
Laslher aa
La ra cemosa . . .
L.InderIla co
LiattIi hellI lI
Liat ,,S ohki)gara.
L ocAa.ta kamWo.. .
£.aioai..iaSpOeta V. , I ( I)4si
L .sodla.th Wh -
nenCaa.
Mawhalka molI&.
4 iS n,aw H.harom.ca I. k’ S W r)
R.nyie Aaujat!$i&
R.n ie mai.sans ,s
Ramya mcii omai (
Senwno franowcanus
Sobdago a!bcp!osa . . .
5o hoiçhab .
NA
NA
NA NA
NA NA
NA NA
NA NA
NA NA
NA NA
NA NA
NA NA
NA NA
NA NA
NA NA
NA NA
NA NA
NA NA
NA NA
NA NA
1796 (e) NA
NA NA
NA NA
1796(a) NA
NA NA
NA NA
NA NA
N NA
NA NA
NA NA
NA NA
NA NA
NA NA
NA NA
NA NA
NAI NA
448
354
305
219
210
141
467
453
341
232
315
276
448
484
436
49
18 1
202
177
let
424
448
436
310
216
472
39
300’
356
48?
446
44.
73
324
191
413
413
413
137
314
201
175
126
448
448
435
152
473
76
T
.7
7
E
E
E
E
E
E
7
E
T
T
E
E
E
E
7
S
7
T
E
E
E
I
E
S
E
E
I
E
£
a
S
S
T
E
S
E
E
T
T
T
E
S
‘S
S
E
S
T
S
S
S
£
S
S
E
S
S
S
S
S
E
T
C
T
S
T
T
E
E
NA
NA
NA
NA.
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
1296 (a)
NA
NA
NA
NA
1796( 1)
NA
NA
NA
NA
NA
NA
NA
Ttudsu batbwy .. U Si.. (CA).. -
*gudsrc ia id4aafb th .... U.SA(VA)....
Higuero d. SIerra . .... USA (PR)
Latg..lh ...d riddlensoic USA. (CA)
Ye.lh igu .creebcata..y. . USA(T )Q.
Barbendaosa.-8wthny fwidfr
Ba ’8ana aciv* ( .Maho,ga ) . .
I 848 .4 . & er .. -.
0. acnba pwto nt.. . a i a
Bciaghiac as—Borage finely
Am a t.
O) tantha craabupa -
Brassicaceae—Muslvd (sIl lIly
AraOis n’cdcnaksana ...
Arab, urowm ....
CaiMnmue cahlc .rwcvs.
Er sarsem c.a cizarum vat anpustaomr
Eiyatrwi ,rmniusi
L.,in bamdayarun
L.s .i.rWi. ccngsata
Lasqi alFa Siibwsa ... —
Lupt*&a va1a ... .
L, qi*Whi palada
,y3ana oOc*stata
-
Smo .i a, ,* aisff,vtssCn a (—Guai cca.pcsi , a)
301 NA
170 1796(5)
439 NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
44
352
363
395
39
472
402
374
253
403
260
374
457
457
293
NA
NA
NA
NA
1706(a)
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
-------
•
Historic rings
Status
Whsii
kstsd
Critical
habitat
Spscisi
tulsa
Sosntihc nm .
Common nsms
USA (CA)
USA (FL)
do
US&G’M) - .
B
E
E
B
£
B
E
B
T
T
T
B
B
T
E
£
B
B
B
B
T
T
B
B
E
B
B
E
T
T
B
is
is
B
B
B
B
E
B
£
USA (TX)
USA (FL)
USA (FL). Cita
USA (TX)
USA (TX). Msxico
(Coahfl
USA (AZ). Msxico
(Sono
USA (NM)
USA (TX . NM)
USA (AZ)
USA (TX)
U SA. (NM)
USA (TX).
do - .
USA (AZ)
USA (CO. UT)
‘US.A (TX)
USA (PR)
USA (TX). Msuco
(—
USA (CA)
USA (AZ)
USA (Lii)
USA (NM.CO)
USA. (AZ)
USA (AZ.Ui)
USA (CO.U1)
USA (CO.NM)
USA (UT)
USA (FL)
U S A. (HI)
do
do
do
do
do
do
do
The4çoalvm nncpetalum
Wamia amplsa7fMs
Warn ca,tavr
Buuacsas—SoxwOOd family
Bu.uvsva.hLs •
Cactscsss—Cactus family
Ancrstrocactws tflbuactlv C eEchirsccacrus I , Manvrsltpjia 1)
Cesu5 svicphonta var frap’ans
Corsua robuw
Cotyphantha nsrama (cit nsiabaa. Fscobana n. Msnrnsttana n)
Goryptrantha ramrtttsa
Co’,phantrra mbCinswzan ( .Cccnasisr. Eaccoana I )
Cojçhantha snssdu var law C — Eacotanal. Manvrallana I)
Cawhan(ha snuck var snuck C - Escobarw s. Mansndtana a)
EcnurocaCws llonzonzhaSvws var mcflola
— Ecrvnocera,s ch,sosansrs var clfisosanam (—6 rsctlsnbacttiv var c)
Echinocw’sus tsndlwr v u huenztr C -6 kuanrlavt £ henwala of
tO authors, not Fob.)
Ecnsiocnusllojok(=EiOaffwvar I )
EJwzocws.a iwicflw*act vat a t a r I , (a F maisnocent’ta)
Ecturiocnus mgtoctlabatus vat anzoaws C eE anZCflCiiS)
Ectvnocnus uvJoclWsaftrs vat utatrrsa (a E co iaus var r. 6
phosnceus var a)
Ecturanus withibus var dssa C — F damas)
kans as povtoncensas C - tarsus p)
mwwos.nn (—Echvnocacft,a m • Ec lreramastus art)
Countia release
Pkdzocaclus bva, C — Toumeya b)
Pssocactus dsspauw
Pflocacrl,s Arcs /Wa C — P Ws s var A, Tanya A)
Plsocacna psablssaania var pflMaiflis I - Ecftnocacn,s p. Navajca
p . ronysp.uraraap)
Pethocacraja air (—Ects’rocactus a. Vishia &)
S ocaclus glaxus C - Echinocactus g. 6 saatglaucra 6 sf at var
p. Pett’xactusp. $ franAhas& $ awatvsr p)
Sc/arocacnis nrasaa nrdae C — C ’adoa Dr. Ecfrraocactus m.
Pasocac/us m)
$ro,cactus ivnphftas C - P.øccactua w)
Carnpanulac.as.—Ssllflowsr family
CamS mbnne . , -
O.mvonha xsngftiaa asp matnnfl
C)iansa lebara
G i n a msoostspa Ut paws
— —
4’ansa pravrafletda
— —
cyann unilulata
Lobtha mhsanfl
Caryoph llac .as—Pink family
ALsr, atflpn otavarum
A&ndsnOvar Pa S tas
Aranaha cwnbslard.nss a
Geocaipon musmum
Ponyctsa chaalacsa - Nyachsa puMnata)
Schassa adamantra ft
a rca -
Schiadsa haleakalaosis
$dsssa Ma /se - ‘
Si / she p 5 1*72 5 1W
Si / sn. xoc.ta!a
Cfisn000diacsas—000saf 001 family
Convolvutac.ss—MOflnO’Olory firmly’
Cr.ssutscaaa—SSsaop family
CSdeya traskin -
SMsrr mrapn*7Lu1r asp /sat v
- Cucratitscuis—GOurd family
Tarmamoca mafl”rk
Slsndsr-pstalod mustard
Wids-leaf warn
Caatsrs mustard
VahIs boxwood
Tobuscfi fishhook cactus -
Fragranl pnckly-appls
Kay traa4actus
NsIIis cay cactus
Bunchsd cay cactus
Coolirsa punoisluon cactua
L u pincushion cactus
Snnd pincushion cactus
Nichols Tins bud cactus
Chisos Mountain hsdgshog cactus
Kusnzfsr hsdvsflOg cactua
Uoyd’s hsdgahog cactus
Black lacs cact i .
Mzons Mdgshog cactus
Spipslsss hsdgshog cactus
Dan grsaar prays
11190 chumbo
Uoyda Mariposa cacti.
Baksrsflsld cactus
Brady pincushion cactus
San Raf sa l cactus
Knowlton cactus
Pssblss Navajo cactus
Sils — cactus
Uinta Basin hoolilass cactus
Masa Vsrds cactus
Wright fishhook cactus
Wooiiavrll. (—Rsbns’) ba sflowar
thaws - ,
‘f shs.
Nons
Haha -
l’fsha
No n .
Non.
Norm
Nons
QarreaftaM sandwofl
Non.
Paparywh illo woi1 -
Dlamond Mud scfusdsa
Msofr’ofl.
Non.
Nons
Norm
Fringad cartoon
—
Mountain goldan huts
Flonda Xn.nu
Santa Barbara Island livsforsvar
Lady’s rossroot
Tumsmoc gIobs.bsny
Ssnta Or. cyprsu
Oslsan 15155 larch (.slsrcs)
Blfin o bafsrn -
‘I
p a
t58 NA NA
288 NA NA
258 NA NA
tO ? NA NA
80 NA NA
208 NA NA
153 NA NA
St NA NA
77 NA NA
2t4 NA NA
81 NA NA
82 NA NA
71 NA NA
335 NA NA
70 NA NA
87 NA NA
88 NA NA
82 NA NA
83 NA’ NA
St NA NA
397 NA NA
77 NA NA Q
a
395 NA NA
83 NA NA r
288 NA NA
72 NA NA —
89 NA NA
2 2
75 NA NA
58 NA NA
0
350 NA NA
487 NA NA
487 NA NA ps
435 NA NA
487 NA NA
448 NA NA r
487 NA NA
438 NA NA
448 NA NA 0.
448 NA NA &
448 NA NA
311 NA NA
275 NA NA
258 NA NA
t4t NA NA
441 NA NA
487 NA NA —
448 NA NA
448 NA -NA t
418 NA NA
181 1798(a) NA
107 179 6(s) NA
NA NA
NA NA
NA NA
NA NA
NA NA
NA NA
NA NA
(Ca
1798(a) NA vr4
NA NA
NA NA •P0
— mol*svsnsis
i s.,
Ca ) Crstacsas—Rockros. family’
HSsonta montana
Bonansa yaai/s ’a -
do
B
do
B
USA (KV,TN)
B
USA (AR,MO)
I
USA (FL)
I
USA (HI)
B
do
B
do .
B
do
- B
do
B
USA (FLGA)
B
USA.(CA ,NV1
B
USA (NC)
I
USA (FL) • ,
1
297
USA (CA)
B
39
USA (MN.NV)
T
480
USA (AZ).Msxico
B
228
(Sonora)
USA (CA)
B
252
Oslo. Argsntina
T
79
USA (PR)
. B
277
USA.(AZ)
T
178
USA. (HI)
USA (DE NJ)
B
t
435
429
taprsssus aXamsana
Feoya aansodsa
Cyaswacsss—Trss-f sin family
Cya tree avwsw s
Cyparacass—S ldga truly
Cans —
Gahraa lsnaasnwa
fl s knaakn.
Nsvsjo s.dgs
Nonc
Knisakwns bssksd-fush
-------
•S910 57
Scusntrfic name
Common name
HustariC 51195
Whan CnflcaI
listed hefidil rulli
425 • NA
Scip ’js ancushaCflUtuS
EriciosII—HSIIh family
A ,crosrapllylos pungerla v i , ravine ( -A 1 1004*7 upr)
RhXodv cfl chiwmalw
EuphOft lIICleO—SPUTSS family
Cl amiuyC6 C1115(fC’dCS var kainana
Chamaisyca d.ltodaa tsp d.ltX.a ( Eupl1Cibia a app d)
G’ama .s,Cs p118.11 ( .. EicAcmia g)
Chamaisyce h..lkmanuu
Criama.syc . kuwaleana
CJlamaeS)Ci skoffsbei’gi var kalailoana ( E&4rflmSua a va r 4)
Euoho’bua f.IipI ,*d .s
Jatropha coStaficenS’S
ManrirOt wa/karma
Fabaceas—PSI family
• A.scfljnion*’i lTl9lflCl
• ArropIPa.omflutata
Astr,gM ,3 8.u/JatldS
Astrigaflis o’.mnophyt&i vat ctlmflcp!lylIv
Asifagalus hum,llm,uS -.
Astragalus front , (—A trfllnXhmlIS VaT m)
Aatragi ’us ostimouts
Astragakis pflO*xx
Astragakis ,obb,ms var srp
Biptisia arachra/a,a
Ca.Sa*vira kaval*7Sa C— M.,crmwcui 4)
Ca . . , . nwabvhs.
Oal ia 1 01J031 C - Paralost.mumr I)
G.Jacba small.
Hoff mannsagpra *r.lla
Lai,D .aeza laptosraclP,a
LOtus don Gdaiis sap traMsa. ( L anrsa sap I)
Ls Iu3 andcvvm
LlDnuS tsd•sflOma . —
Ch,t, a can .sms VaT anS00
Sarrantfu .s nhlSfrl,
Stan/a mono ma
Tat dun sm warum . -
Vsaa m*72n6& ,
Fegaceee—Oak family-
Ouacus tunckWIT
USA (VA. MD. WV.
PA. NY. MA. VT).
USA (CA)
US A. (FL)
a
USA (HI)
do
do.
do...
do
do.
USA (PU
Costa Rica.
U S.A (TX). Mixico
U S.. (CE. MD. NC.
NJ. PA. VA)
USA.(FU.
USA (Al.. IL. KY,
MS. TN)
USA (TN).
USA. (AZ)
USA (CO.NM)
USA (UT)
USA (cQ)
USA (Ne)
USA (NH. r /Tj’.
USA (GA)
USA (HI)
USA (PR)
USA. (AL IL TN)
USA (PU
USA (TX)
USA. (IA. IL. UN.
WI)
U S A. (CA)
U S A. (FL)
USA (CA)
USA (V /I)
Western Pacific
Ocsan USA
(Guam. Rote
NovIttaaSlim (— Barbed beetle)
bulrush
Priaidu ( Rave11$) mazlzattta
Chapman nIlOdOdSfldtOu%
Akoko
Dell Cud t UF9O
Ga,beira spurge
None
Alioko
Ewa PIwpa Akoko
Teispilue spurge
Costa Ricart jatTopha
Walkers manioc
Senailais ,fl.v,Icfl
Crenelate Isad.pfanl
Pros. PcIato .buan
Guttviss grcund.plum
Sentry milk.v.lch
Macca mulk •vetch
Heliotrope mitk.vetch
Osterhoul milk-v.tCh
kill Meadows ijk.vItCh
Jaeups flvIk.vetdfl
Hairy reltieweed a
Ulautlu
None
Lufy praa*.clovei
Smile milkpea
Smnder —
Presre bimh.ctover
San demonIc 11111 16 brOom
Sctiai lupine
Clover lupine
Faeaelts locoweed
May an lagu (Guam). Trorkon guah
(Rota)
Cobwta nepm
Rwvwrg brdfaIo dover
Hawer4fl vetdh
Hinckleye oak —
Palo di Rimon
None..
hankema -
Spivig4owrg csnlauay
Aw nsa..
l -Iawauuen rad.IICWIrId gerasvuun
Nohoane..
Hal u wuis
Dwe lt n.upaka
Qay -
NOrth Park pflacaIia
Highlands uat Irypencurri
Palo do rosa..
E
E
E
B
E
1
B
B
E
T
B
B
T
E
T
E
B
B
T
B
T
B
E
E
E
B
E
E
T
B
B
B
I
E
T
E
E
T
B
E
£
10
B
B
B
B
E
E
B
B
65
47
5 ,
5448
192
192
464
448
120
463
1 54
as
470
192
323
•437
409
167
298
353
181
271
39
238
379
422
192
209
254
26
264
472
329
257. 259
310
270
39
318
255
464
155
101
.44
465
487
467
231
44
121
256
38$
Co y
‘ 4
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA -
NA
NA —
NA p
NA r
NA
NA m
NA
NA
NA
NA
5 f
NA
NA
Banara vandorWtj
Xy/051P7a GwnaMIl
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
1796(a)
NA
1796(s)
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
17.96(aJ
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
F,ank.n,a of Instant
q.nuasracea.—Gentran family
Cant umè.ninrcpfl ,Mn.
C*’tfaurwm ssba.o,dix
G,renuaceà.—Guraniunr emily
Geranium aillasaum
UI Geranium mulbflontm
Geanenacaae—Geairert. limb
Cyrtandra iixH
Goodemecesa—000d.nua family
Scaauvla conic..
USA (PR).
Oomuilcan
R ep i l ic
USA (AR. IL iN.
KS. KY. MO. C I I.
U.S.A. (HI)
US.A(TX)
USA (PR)
USA. (HI)
USA (TX). Mexico
(Nuixo Leon)
USA (CA, NV)
USA. (HI)
do
.do.
do.
.60
USA (L/T)
USA (CO)
U S A. (FL)
USA (PR).
Derwican
Regu8lrc
USA (Ml.Wl).
Canada (ON)
USA (NC)
Pftac.I-a a,p,lIac.a
Ph icda i
Hypenc.e.ae—St. Johns-wON family
— ci
lCacinac.a.—lcaona family
Onoscnituta mox.-y/on
lndacea,—l,us family
Ohs £acunrm..
— udOtrodi mi
Dw l Il I akes..
WMeme.fle
1 330
E .435
-------
Species - ,,
Hiatonc range
—
Statue
—
When
listed
nticaJ
habitat
Special
ivies
—
-
Scientific name ‘
Common asme
.w,raceee—OuillwOn family
ecieres malanospcfa
sofls tsgetilcnrianS
aniieceae—Mint tamily
eca.vtoninrna obovata sep Sane
1 o-ra v vs’trciltata
.re’tta cfinstlrialsi
rsndra comubssima
ranS’a InItescIns
Xea’O’a ,mmacist eta
‘. stachyS haploStacltya vi, angusttfohs
‘ n ao m i apaculatun?
‘ na todsen.
uilecfridea DIN
r*,tatsg:a g!afra vat !anatSnsd
mi stegma moths
p ri . JfltTisI
— Scuteltana ltoridana
bh Scutam’Iana montana
stenogyns usnlcha var angustwoha
. evpv” . caitspaflutata
S,am’iogyna kane /loans -
Laeaceee—Laurel lantity
1 ’a’a snehssdolia
LSeceae—UiY family
Erytl’voraum propuffans
MempatOcD/t I /e va
P M5 buiIata
Tier nmstens
T,tgn mhquum
Limnantriaceae—Falsa mermaid lamily
LsYvienthfl IIoccosa sap cablomtaca
tJrCilnthes mrncu/ana
Loaeaceae—t.Oesa family
Mraeka SucaOflySa
302
302
204
452
207. 362
207
207. 352
160
73
itS
110, 112
463
435
446
44
463
234
13
484
466
240
NA
NA
NA
NA
NA
NA
NA
NA
NA
17 96 (a)
I l 96(a)
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
USA (GA.SC)
USA (GA).
USA(CA)
USA (KY.TN)
USA (FL)
do
do
do
USA (HI)
USA (TX,NM)
USA (NM)
USA (FL)
USA (HI)
do
USA (CA)
USA (FL)
US A (GA.TN)
USA (HI)
do -
do
U S A. (AL AR. FL.
GA, LA. MO, MS.
NC, SC)
USA (MN)
USA (FL)
US A. (DE. GA. MD.
NC. NJ. NY, SC.
VA)
U S & (GA. SC)
USA (AL GA. SC)
USA (CA)
.,do
USA fNV)
Black.spored quiliwoft
Mat lamming qisltwort
Ban Mates tltornmiflt
Cumbarland tosalnaly
Garrett’s mint
Longspurted mint
Scrub mint
Lakala a mint
None
MclCittnck pennyroysl
Todsen’s penn-y’oy&
White birds-in ’s nest
None
None
San Diego mesa minI
Flonda skullcap
urge.tlowered skullcap
None
None
None
PoS
Minnesota trout lily
Harper’s beauty
Swamp pink
Persistent tnllsen
Relict trillium
Butte County meadoisfoan l
Sebuwpol meadowloam
Ash Meadowe biasing-star
Kamakahala
a nn _ e r ... -
vawsiole
Mane
lCo’oloa’ula
Mare
Tease poppy-mallow
Kenimeilow.
Kaumhaukualwai -.
-Peters Mountain mellow.
Cooke’s kolug
4 KSfo (.hau-liele’ula am Hewn tree
$an Qementa Island busiwneflow
Pedete dieclier-mallow
.. .
LaIgflS sanSvethra
MeoFesenes
.None
.7. Pyputy lrmge4ee
San Bersto eversntp.stvoae
Ewelia Valley evening-pnnvoae
Anboob mes evetwq-pnewose
221 NA
57 NA
326 NA
39 NA
306 NA
alt NA
453 NA
let 1796(e)
S
E
S
I
S
E
E
S
E
I
E
I
S
E
E
I
£
S
E
E
S
S
S
T
E
S
S
£
T
E
E
S
£
S
S
S
£
E
S
‘S
S
E
S
£
£
£
E
T
£
T
E
E
£
S
S
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA I ii
0
( 1 b
‘i ’ s
N
NA
NA
NA -
NA
NA r
3
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA.
NA
NA
NA
NA
NA
NA
NA
NA
NA
S
‘ .4
NA
109.
Looweecea.—Logane leivSy
LJ flS S at
&a pennanoas
Lyospoaeorn-OobThOU
frtpsn mamsi C - Lj d,m , m)
Meivecese—Mallow lanel r
- - . ems
Abuftb’ mennasa
AASO? undawn
Csmoe acabmiaada
Evnttme ksnwns,a CaE pan>u sap S i
/Ibx S hijs S I ms
Ihnva ows
Kokia cooker
Koija Syrtaxdn
Malacothamnus cMnttnesw
Sates pedals . -
Msrsileaceae—P’. en. tt family’
Man.Sa S / en
— Mehacase—Mahogany family’
mows macan ts
Nyctsgmacaaa—Foia4’clock family
Aflu nuic
htvatmha nuactadanem
Oiecaoner-Ou fansly
SoFcwS nn
Disease-Owe family
ae mma,ua
Onagaceae—Evenngpnnirose family
-as
Oenothera aie sap ankansis
Orothn anoas asp hoina
Omhaase-O w family
Oan.tcttms ncgna
/500 15
Ltsianlhaa amsme,.a
436
40 8
467
43 5
243
448
112
395
as
230
74
167
26
156
474
303
331
66
420
256
172
39
39
45 ,
122
L ISA (HI) -
USA (FL)
USA (HI)
do
do. ..
do.
USA (TX)
USA(CA)
USA (HI)
USA (VA)
U.BA (HI)
do
USA (CA)
do
U BA (HI)
U BA (PR)
U BA (TX)
USA (ID.OR)
USA (PR)
U BA (FL)
USA (CA)
do
do
U BA (PR)
U BA (CT. DC. OS,
GA, IL MA. MD,
MS. MI. MO. NC.
NH. NJ. NY, PA .
RI , SC. Th, VA.
VT). Canada (ON)
U BA (PR)
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
1796( 5)
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
1796( 5)
NA
NA
Mane
Smal e ed pogoma . -
-- — None -.... -
451 NA
-------
Ei tim, orahib ,m vi, i, angiiig
Enagcw um pde (mL
PoWLV*7a 5ig affwa( P delta vi, b)
Pmi ijic.ae—Prmva si tinily
Lyaml Va asp.MWC&a
Lj svnedsa t dgatb....
wta ma * •
Gouaixa Ivll.frando
— . Ocuams maya ,.
ZQP)A CetIta
Rouc.i.—Ro.. hilly
.4caana anpul
Ga,an ride turn
hew. kw Vi? w.il a..
PozwnWL. icbtans,ana -
mi,vs g.i 9ata.
P ,Wv. si . nt.p’. (.Cowarna A)
— wprn na.
Ri iacsw.—GoltaS hunily
O ii*’ii taighhiiii
H v01 iac.a
M V01 in..
As —
Hed )v01 pwpiiia VI? n itan.
H VDa 51
Rutac.a.—Gitna fwu.fr
— flTi.OD%4 1ta.
ZaMin tm? 0 nw.am,r
USA (NV)
USA (COt
USA (FL) . .
US.A.(1X)
U S.A. (NC. SC)
USA (HI).
U,SA (UT)
U S.A. ((A. NY. Ofi.
WI).
USA (AU . -
do
U.S.A. (CA)
USA (UT) .
4.) S A. (NC. FL)_.
US&(HI)
do
U S.A. (FL)
U.S.A. (HI)
USA. (NC. TN)
USA (NV)
US A. (NH. VT)
USA (FL)
USA (AZ)
U S.A. (GA. KY. NC.
PA. TN. VA. WV)
USA. (HI)
do
do
do -.
U SA (NC. TN)
USA (HI)
do
USA.(P .VI).
us A. Ø4I)
237
I”
256
450
274
467
199
39
460
245
355
344
105
44$
35$
4é7
361
161
104
256
‘4$
3.9
190
467
44$
44$
361
441
467
213
215
o • _____
Histonc rang.
Status
When
listed
CIIXII
labial
Special
nilig
Scisnollc .
.
Common name
• Eastern ahie hinged DICrId
- . Wsitam prim. fringed dal I )..
366 NA
366 NA
6 NA
116 NA
U S A (AR. IA. IL IN.
ME. MI. MO. NE.
NJ. NV. OH. OK.
PA. VA. WI).
Canada (ON. NB)
U.S A (IA. MN. MO.
NE. ND. OK. KS.
SD). Canada (MB)
USA (CO. NV. UT)
USA (TX)
USA.(UT)
USA (NM)
Msstc Guitamila.
Hon .riI. El
Salvido,
USA (PR)
do
USA (HI)
do
do
USA(CA)
do
USA (TX)
USA (CA)
do
do
USA (TX)
USA (FL)
USA (CA)
do
do
USA (NM)
ommeri —
ranm., deiwaha
enm.s pamsa
Ps svisCus—POflpy lim y
tu. hun11vs -.
Aipamon. pdoacanth. lIp pinnafts.cta
p gi©ig fgi y
A J guatarnatunsii.
C
3 Pgi s ,aceaa—Pepp er family
Pc.c. . .—Grau family
Aritd. po I?isis
ewmn ILIV* Vi, cadarr
a uno’. rcensis
whonoglossa
5..u.m. ataWdaI
Fi to,na ,m c ,nata ( Qwflt . in).
Zirnnia r1fl1
PCIa,T.OIIIICUS-PIIIO . fanily
Ennovm don, ’tOlum up ui ?wusn
Er,astn .mr heovif? ..
Gia rarwrlbJ up .r.nana
RI , Vv abS up t•ntis s .. ..
Poiygiiacsa.—Mdliwon tinily
smith
Pcogonacew.—Buckwhul family
c’io,,za,nme Ii On .u . - . -
aannz.nrr. valida
d.cah.ma !ptxa,aI ( — c.nhoitapi.l)
Enu onvm g3m.CCV4Im •
g.aCsU-POfldosad hanWy
Pcto,migetom c t jns oca! Pu,
Raiimcunsc.a.—thmsmiip Tiflblr
-
Q.nl4$s • ,
Ctumabs ,ornafrs
C. rurvjm kam,,ns (.0 rafltgaftan up 5) .
Ra,aaxb’mis vwa.stwahs( -Rtci”taVIi £)
76
360
64
255
396
133
464
464
39
44
39
291
395
472
440
102
472
472
291
tid 112
Ut. lad.s.-lrsuu
NIvaIOIi 4ig ig
Duad —.
Sacramento pnckly.pcpy
Guit.malin f (.pmibets)
Whsshwua p.,.a..ma
P1101 del disblo
Cinars pinicgrisi
Huwiian bliasgrau
Non.
Ei,uka Duis ua
Salami p u s
This uld.nc.
Santa Mi Ru., wooIy a1ar
HOOvI?i wodIty.ita
Moritacep gde
Tin.. fruihing phlox
Tmy p&ygIla
Howell’. ap.n.lIowsI
Sanoma apm.Miar
S4nds homed —
Gypwim ld.buckwtIe .l
StuambOit ui Iwhlsat
cliy4ovvig wild.budlrwNsat
Vurswsad
UMo AIp — .
Rough4eavsd looa.itflf S
-.
No,Utarn wed morkdoood
AsreWs lig$ ç5pw
AJaham ffiar.ftowS , . -
San Ctamsnte leland tatipw
Autism buSsmi
msadpwna
T
T
T
E
E
E
T
E
S
E
E
S
E
E
E
E
T
E
E
E
S
S
E
T
E
E
E
S
E
E
T
T
S
S
E
E
S
S
E
E
E
E
T
S
E
E
T
S
E
E
S
S
S
E
S
S
c o n
‘4
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA Q
NA
NA
NA —
NA
NA C
NA V I
NA!
ii.
NA
NA
NA
NA
NA
I 796(I)
NA
NA
NA
NA
I? 06(i)
NA
NA
NA
NA
NA
NA
NA
01*
I 7 5 1 ( 1)
NA
1760(i)
NA
NA
NA
NA
NA
NA
NA
NA
• NA.
NA
NA
17.96(i)
NA
‘NA
NA
NA
17J6(a)
1796(i)
NA
NA
NA
NA
NA
NA.
NA
NA
NA
NA
NA
J lA
None
None .
Flo .
u
S ng ivan.
Ash Usidows vega . -.
Rotifreg orad
VW nii spiri.a ...
Niu (Hiwiiin gwdsna).
K l oa hI
None
Non..
Roan Mountast blist
Na Psi. bado hsdyotm
St. Thom.. pncldy .ssii...
La , ,. .andaMcod or I hi -
Sa . .-Sand&u.ed n4fr •
S.nla*an frep taSamsn Vi ? (giuI IN.... . ...
-------
AwctJVon iflt Ci1J
Speows
Scientific name name
Histciic ring,
‘
Whsn
kited
Cntical
habitat
Special
Sanacviia Of ecQt sla
Swracenia n,bra up atCamans’s C = S alabam.nsiS up a)
Saivacviia ruiltia up jon se (.S j an .5 5)
•gacsae—Saxifruge amity
.cranellum
Aga lIvS acute
Aff niJflTflU5 pusdiUs
Casteja 91 755.
Cofo’ylanrh Js msnh,mus up mintimus
Co’ 4anrnus p.Fmatus
— Ms’r&riuS glibratus viz mcnç,n.nsss
P c i,1ans Aub.shiee
0
PVnsdinOn ha dora
n.ten —
Scnis,lba. americana
Goabpa 1z9 .ns -
5——
Sryiacaceed—Styrax family
Styraz pvfonc.n.cis
Srjira anna
Tazaceae—Yew amity
Tonaya tvilolia
Th.acea.—Tea amity
T.m,r,o.mia Iuqwftensas
T.mso’o.rma sièsassifr5
Thalyptendaceae—MltISl fern laimly
Th)iptans pdoaa viz alaban*WS (— Letcgfanwrs. p viJ a)
Ma?loe
Green pitcliec .plant
Alabama canebrake pitcher-plant
Mountain sweet pdcher.plant
Mmcosuhae goosebeny
Ssndplain gerardia
Little ampluanthus
San Clem.nte Island IndIan pãitbwah
Salt mizih bads.beak
P.Imate-bract d bird.-b..k
Michigan monkey-flower
Fuibish Ic uSew o il
Blowout pensteman
Penland beardtongus
Amencan cheft.eed
Beautiful goe ea m matabuey
Palo di iaznsn
Texes snowbella
Flonda tOfrey$
Palo Colorado
None
Alabama st,eak..on,a fern
NOrm.
Ncne.
Palo d. Nigua
Aupeka
Pamakam -
None - . -.
Non,
Tennessee yellct syed ais
60
USA (AL GA. TN)
US A. (AL)
U S#. - (NC. SC)
USA (FL SC)
USA. (CT. MA, MD.
NY. RI)
USA (AL GA. SC)
USA (CA)
USA (CA). Mexico
(BC)
USA (CA)
USA. (Ml)
US L (ME). Canada
NB)
USA (NE)
USA (CO)..
USA. (AL CT. 0€.
FL GA. KY. MA.
MD. MS. NC. NJ.
NY, SC. TN. VA)
USA (PA) -
do. -.
.60
USA (TX)
USA (FL GA)
USA (PR)
do
US&(AL)
USA (PR)
USA (HI)
•do
USA. (PR)
do
USA (HI)
do
do
do
USA. (AL GA. TN)
E
6
E
E
T
E
T
E
E
E
E
E
E
E
6
E
E
E
E
E
6
E
T
E
6
E
E
E
E
E
6
6
E
467
56, 69
348
33’
126
325
302
26
44
235
392
39
285
353
478
176
319
461
162
140
481
481
476
309
448
448
461
307
ha
448
436
435
430
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
O pnncps,s n a t / ama -
U’ticeceae—N.ttt. family
Neraida angulat,
Ul ’s kaalae
Vemenaceae—Vemeria family’
Calkca,pa ar4Oia
Cornutia 000vata
Violaceae—Violei family-
Isodndrmi, hosak,.
Via /a Cnamissanrana asp chanxssonuina
Iho a fl./.naa
Vici . Ial aiens,s
NA
NA
NA
NA
NA
NA -
NA
NA
NA
NA
NA
NA
NA
NA
NA
VI
a
A
•1 1
NA
NA fl
3.
NA
NA _
9
NA
NA
NA
0
3
NA
NA
5
NA
NA
3
3
NA
NA
3.
NA
NA S
NA U S
NA S
NA —
3
•1
0
cot
‘4
.———--—.—..‘,—.—,—— v,._ ..‘...y
Xjin, lanrieSsaer is,s
V
I-
Symbol used in the when hated” columm
C—Indicates Emergency rule pubbcation (see FR document for effectve dates). sequent number(s) indicate FR Final rule, it 6pØcabls, under ‘When listed’
-------
‘p17.12 -
26—42 FR 40685: AUgUSt 11. 1971.
39—43 PR 17916; April 26. 1978.
44—43 FR 44812; September 28. 1978.
47—44 FR 24250; April 24. 1979.
49—44 FR 32605: June 9. 1979
53—44 FR 43701; July 25. 1979.
56—44 PR 54923; September 21. 1979.
57—44 FR 58863; October 2. 1979.
58—44 FR 58868; October 11. 1979.
59—44 FR 58870; October 11. 1979.
61—44 FR 6tS56; October 25. 1979.
62—44 FR 61558; October 25. 1979.
63—44 FR 61786; October 26. 1979.
64—44 PR 61788; October 26. 1979
65—44 FR 61911: October 26. 1979..
66—44 PR 61913: October 26. 1979..
67—44 FR 61916; Octol er 26. 1979.
68—44 FR 61920; October 26. 1979.
69—44 FR 61924; October 26. 1979.
70—44 FR 61927: October 26. 1979.
7 1—44 FR 61929: October 26. 1979.
72—44 FR 62246; October 29. 1979.
73—44 FR 62469: October 30. 1979.
14—44 FR 62471; October 30. 1979.
75—44 FR 62474: October 30. 1979.
76—44 FR 64247; November 8. 1979.
77—44 FR 64250: November 6. 1979.
78—44 FR 64252; November 6. 1979.
79—4 4 FR 64733; November 7; 1979.
80—44 FR 64738: November?. 1979.
8 1—44 FR 64740: November 7. 1979.
82—44 FR 64743; November 7. 1979.
83—44 FR 64746; Nobember 7. 1979.
84—44 FR 65005: November 8. 1979.
89—45 FR 18929; March 24. 1980.
104—45 FR 61944. September 17. 1980.
107—45 FR 69 60. October 20. 1980.
109—46 FR 3184. January 13. 1981.
1’10—46 FR 5730: January 19. 1981.
1 12 46 FR 4Q025, August 6. 1081.
116—47 FR 19539. May 6. 1982.
118—47 FR 30440. July 13. 1982.
120—4 7 FR 36846: August 24. 1982.
121—47 FR 38540. September 1, 1982.
122—47 FR 38927; September 10. 1982.
126—47 FR 50885. November 10. 1982.
133—48 FR 463?1; October 12. 1983.
137—48 FR 52147; November’22. 1983.
140—49 FR 2786. January 23. 1984.
14 1—49 FR 6102: February 17. 1984.
147—49 FR 21058: May 18. 1984.
148—49 FR 22329: Ma 29. 1984.
151—49 FR 28565: July 13. 1984.
152—49 FR 29234: July 19. 1984.
153—40 FR 29237. July 19. 1984.
154—49 FR 30201; July 27. 1984.
155—49 FR 31421: Aug.?. 1984.
i 8—49 FR 34500: Aug. 31 1984.
l62 -.49 FR 40038. October 12. 1984.
165—49 PR 44756. November 9. 1984.
167—49 FR 47400. December 4. 1984.
168—49 FR 49639. December 21. 1984
172—50 FR 5758, Februaty 12. 1985
175—50 FR 12309. March 28 1985
176—50 FR 15567. April 19. 1985
177 50 FR 16682 April 26 1985
178 50 FR 19373 May 8 1985
179—50 FR 19377: May 8. 1985.
180—50 FR 20214: May 15. 1985.
181—50 FR 20786; May 20. 1985.
187—50 FR 26572: June 27. 1985.
190 —SO FR 29341: July 18. 1985.
191—50 FR 29344: July 18. 1985.
192—50 FR 29349; July 18. 1985.
194—50 FR 31190; August 1. 1985.
197—50 FR 32575; August 13. 1985.
198—50 FR 33731; August 21. 1985.
199—50 FR 33734: August 21. 1985.
200—50 FR ,33737: August 21. 1985.
201—50 FR 36089; September 5, 1985.
202—50 FR 36091: September 5, 1985.
204—50 FR 37863; September 18. 1985.
201—50 FR 45618; November 1. 1985.
208—50 FR 45621: November 1. 1985.
209—50 FR 45624: November 1. 1985.
213—50 FR 51870: December 21. 1985.
214—51 FR 956: January 9, 1986.
215—51 FR 3185; January 24, 1986.
217—51 FR 6693: February 25. 1986.
218—51 FR 8683: March 13. 1986.
219—51 FR 9820; March 21. 1986.
220—51 FR 10521; March 26. 1986.
221—51 FR 10523: March 26. 1986.
225—51 FR 15906; April 29. 1988.
226—51 FR 15911: AprIl 29. 1986.
229—51 FR 16530; May 5. 1988.
230—51 PR 17340; May 12. 1986.
23 1—51 FR 17914; May 16. 1986.
232—51 FR 17917; May 16. 1986.
234—51 FR 22524; June 20. 1986.
235—51 FR 23769; July 1. 1986.
237—5 1 FR 24672; July 8. 1986.
238—51 FR 24675: July 8. 1986
240—51 FR 27500: July 31. 1986.
243—51 FR 34415; September 26. 1988.
244—51 FR 34419; September 26. 1980.
2 5—51 FR 34422: September 26. 1986.
249—51 FR 45907; December 23. 1986.
252—52 PR 079; January 8. 1987.
253—52 FR 682; January 8. 1987.
254—52 PR 784. January 9, 1987.
‘255—52-FR 1462: January 14. 1987.
256—52 FR 2234; January 21. 1987.
257—52 FR 4910; February 18. 1987.
259—52 PR 6651; March 4, 1987.
260—52 FR 7426: March 11, 1987.
264—52 FR 11175: AprIl?, 1987.
266—52 FR 15505: April 29. 1987.
270—52 FR 21480; June 5. 1987. g
271—52 FR 21484: June 5. 1987.
274—52 FR 22589; June 12. 1987.
275—52 PR 22933; June 16, 1987.
276—52 PR 22936; June 16. 1987.
277—52 FR 22939: June 16. 1987.
285—52 FR 32929; September 1. 1987.
286—52 PR 34917; September 16. 1987.
291—52 FR 36270. September 28. 1987.
293—52 FR 37420. October 6. 1987.
295—52 FR 41440. October 28. 1987
291—52 FR 42071, November 2. 1987
298—52 FR 42657. November 6, 198’I
300—52 FR 44401. November 19. 1987
301—52 PR 46087, December 4, 1987
132
U.S. Fish and Wildlife Serv., Interior
302—53 FR 3565: February 5, f988.
303—53 FR 3567: February 5. 1988.
305—53 PR 4629; February 11. 1988.
306—53 FR 10884; AprIl 4, 1988.
307—53 FR 11612: April 7, 1988.
308—53 FR 11615: April 1. 1988.
309—53 FR 23742; June 23. 1988.
3 10—53 FR 23745; June 23. 1988.
311—53 PR 23748: June 23. 1988.
314—53 FR 27137; July 18, 1988.
315—51PR 27141; July 18, 1988.
3 18—53 PR 32821; August 26. 1988.
319—53 FR 32830: August 26. 1988.
321—53 FR 33990; September 1, 1988.
324—53 FR 34701; September?, 1988.
325—53 FR 34705: September 7. 1988.
328—53 FR 35080: September 9. 1988.
329—53 FR 37972; September 28. 1988.
330—53 W,R 37975; September 28, 1988.
331—53 PR 37978: September 28. 1988.
332—53 PR 37982: September 28. 1988.
333—53 PR 38451; September 30, 1988.
335—53 FR 38456; September 30. 1988.
339—53 FR 38474; September 30. 1988.
34 1—53 FR 45861; November 14. 1988.
343—54 PR 2134; January 19. 1989.
344—54 PR 5938; February 7, 1989.
346—54 FR 10154; March 10. 1989.
347—54 FR 14967; Apr11 14. 1989.
352—54 PR 29658; July 13, 1989.
353—54 FR 29663; July 13. 1989.
354—54 FR 29730; July it 1989.
355—54 FR 30554; July 21, 1989.
356—54 PR 31196: July 27, 1989.
360—54 FR 35305: August 24. 1989.
362—54 FR 38941: September 21. 1989.
363—54 PR, 38950; September 21. 1989.
367—54 FR 39857; September28, 1989.
368—54 FR 39863: September 28. 1989.
373—55 FR 433; January 5. 1990.
374—55 FR 4157; ebruary 6. 1990.
375—55 FR 4159: February 6. 1990.
379—55 FR 12 90; April . 1990.
38Q—55 FR 12793; April , 1990.
381—55 FR 12797; April 5.-1990.
385—55 FR 13491: April 10. 1990.
386—55 FR 13911; April.13. 1990.
389—55 FR 24246; June 15, 1990.
392—55 FR 25599; June 21. 1990.
395—55 FR 29370 July. i : 1990.
397- 55 FR 32255; ugus 8, 1q90.
398—55 FR 32257: Augu t 8; 1990.
402—55 PR 39864, Sept mber 28, 1990.
403—55 FR 39867: September 28. 1990.
406—55 FR 49050; November 26, 1990.
409—55 PR 50187: December 5. 1990.
41.3—56 FR 1453: January, 14, 1991.
414—56 FR 1457. January. 14. 1991
418—56 FR 1936; January, 18. 1991
420—56 FR 16024; AprIl. 19, 1991.
422—5$ FR 19959: May 1. 1991
424—56 FR 21091. May 7. 1991
425—56 FR 21096. Maya. 1991
429—56 PR 32983:.July 18. 1991
430—56 FR 34154. July 26, 1991.
434—56 FR 46239. September 11. 1991
435—56 FR 47694. September 20. 1991.
§ 17.21
436—58 PR 47699: September 20. 1991.
437—56 PR 48751: September 20, 1991.
438—56 FR 48755. September 20. 1991.
439—56 FR 49636; September 30, 1991.
440—56 PR 49639: September 30, 1991.
441—58 FR 49843: September 30, 1991.
44 5—56 FR 49853: October 2. 1991.
448—56 FR 55785: October 29. 1991.
450—58 FR 57849: November 14. 1991.
451—56 FR 60937; November 29. 1991.
452—56 FR 80940: November 29. 1991.
453—56 FR 61182: December 2. 1991.
457—57 FR 1403: January 14. 1992.
458—57 FR 2053: January 17. 1992.
460—57 PR 14653: Apr11 22, 1992.
461—57 FR 14785: AprIl 22. 1992.
463—57 PR 19819: May 8, 1992.
484—57 FR 20588: May 13. 1992.
465—57 FR 20592; May 13. 1992.
468—57 PR 20595: May 13, 1992.
467—57 FR 20787: May 15, 1992.
468—57 PR 21564; May 20. 1992.
470—57 FR 21574: May 20. 1992.
47 1—57 FR 24199; June 8. 1992.
472—57 PR 27858; June 22, 1992.
473—57 FR 27863: June 22, 1992.
474—57 FR 27887: June 22, 1992.
476—57 FR 30168; July 8. 1992.
478—57 FR 44108; September 29, 1992.
(48 FR 34182. July 21. 19831
EDITORIAL No s For FSDERAL Rsois’rsn ci-
tations affecting 117.12, see the List of CPR
Sections Affected appearing In the Finding
Aids section of this volume.
Errscrivg Dais Nors: At 57 FR 44708.
Sept. 29. 1992. I 17.12 was amended in para-
graph (h) by adding Schw&bea amer1 cana
to the Scrophularlaceae family, effective
October 29, 1992.
Subpart C—Endangered WIldIIf.
§ 17.21 Prohibitions.
(a) Except as provided in Subpart A
of this part, or under permits Issued
pursuant to § 17.22 or § 17.23. it Is un-
lawful for any person subject to the
jurisdiction of the United States to
commit, to attempt to commit, to solic-
it another to commit or to cause to be
committed, any of the acts described.
in paragraphs (b) through (f) of this
section in regard to any endangered
wildlife.
(b) Import or export It is unlawful
to import or to export any endangered
wildlife. Any shipment in transit
through thé United States is an Impor-
tation and an exportation, whether or
not it has entered the country for cus-
toms purposes.
50 CFR Ch. I (10-1-92 Edition)
133
-------
-------
‘. .‘ . .n. U (IU-l-92 Edition)
U.S. Fish and Wildilt. Srv., Int.i ’Ior
Platte River within Natrona, Carbon,
and Albany Counties (see map). All
marked ferrets found in the wild
within these boundaries prior to the
first breeding season following the
first year of releases will constitute
the nonessential experimental popula-
tion during this period. All ferrets
found in the wild within these bound-
aries during and after the first breed-
ing season following the fIrst year of
releases will comprise the nonessential
experimental population, thereafter,
(10) The reintroduced population
will be continually monitored during
the life of the project, including the
use of radio telemetry and other
remote sensing devices as appropriate.
All released animals will be vaccinated
against diseases prevalent in muste-
lids, as appropriate, prior to release.
Any animal which is sick, injured, or
otherwise in need of special care may
be captured by authorized personnel
of the Service or the Department or
their agents and given appropriate
care. Such an animal may be released
back to the wild In the Shirley Basln/
Medicine Bow Management Area or
another authorized site as soon as pos-
sible, unless physical or behavioral
problems make it necessary to return
the animal to captivity.
(11) The status of the experimental
population will be reevaluated within
the first 5 years after the first year of
releases of black-footec] ferrets to de-
termine future management needs.
This review will take into account the
reproductive success and movement
patterns of the individuals released on
Lhe area, as well as the overall health
f the experimental population and
he prairie dog ecosystem in the above
Iescribed area. Once recovery goals
met for deflating the species, a con-
rvation plan(s) will be proposed to
Iress delisting.
(12) This 5-year evaluation will not
iclude a reevaluation of the “nones-
tIal experimentaJ’ designation for
‘rils population. The Service does not
resee any likely situation which
3uld call for altering the nonessen-
al experimentaj status of the popula-
on. Should any such alteration prove
necessary and it results In a substan,
tial modification to black-footed ferret
management on private lands, any p j.
vaLe landowner who Consented to the
introduction of black-footel ferrets on
his lands will be permitted to terrni-
nate his consent and the ferrets will
be, at his ‘request, relocated pursuant
to paragraph (gX4xiIi) of this section.
/ WYOMING —
L
§ 17.95
[ 49 FR 35954, Sept. 13, 1984. and 50 PR 30194. July 24. 1985. as amended at 51 FR 41797,
Nov. 19, 1986: 52 PR 29780. Aug. 11, 1987; 53 FR 29337, Aug. 4. 1988; 53 PR 37580, Sept. 27.
1988; 54 FR 43969, Oct. 30, 1989; 56 FR 41488, Aug. 21. 1991)
F ’
essential to the conservation of the
species, Those major Constituent ele-
ments that are known to require spe-
cial management considerations or
protection will be listed with the de-
scription of the Critical Habitat.
(d) The sequence of species within
each list of Critical Habitats in
ft 17.95 and 17.96 will follow the se-
quences in the lists of Endangered and
Threatened wildlife ( 17.11) and
plants (I 17.12). Multiple entries for
each species will be alphabetic by
State.
[ 45 FR 13021, Feb. 27, 1980)
6 17.95 CrItical habitat—fish and wildlife.
(a) Mammoj ,&
O 17.85 Special rules—Inverteb . (Re..
servedj
*17*6 SpecIal ules—plants. (Reserved I
Subpart I—Intrag.ncy Coop.,.ti 0
O 17.94 Critical habitats.
(a) The areas listed in 017.95 (fish
and wildlife) and 0 17.96 (plants) and
referred to In the lists at ft 17.11 and
17.12 have been determined by the Di-
rector to be Critical Habitat. All Fed-
eral agencies must insure that any
action authorized, funded, or carried
out by them is not likely to result in
the destruction or adverse modifica-
tion of the constituent elements essen-
tial to the conservation of the listed
species within these defined Critical
Habitats. (See part 402 for rules con-
cerning this prohibition; see also part
424 for rules concerning the detennf-
nation of Critical Habitat).
(b) The map provided by the Direc-
tor does not, unless otherwise Indicat-
ed, constitute the definition of the
boundaries of a Critical Habitat. Such
maps are provided for reference pur-
poses to guide Federal agencies and
other interested parties in locating the
general boundaries of the Critical
Habitat. Critical Habitats are de-
scribed by reference to surveyable
landmarks found Ofl standard topo-
graphic maps of the area and to the
States and county(ies) within which
all or part of the Critical Habitat is lo-
cated. Unless otherwise indicated
within the Critical Habitat descrip-
tion, the State and county(les) names
are Provided for Inforinatio, j pur-
poses only.
(C) Critical Habitat management fo-
cuses only on the biological or physi-
cal constituent elements within the de-
fined area of Critical Habitat that are
INDIANA BAT (Mpotg, sodaUl)
illinois. The Blackball Mine, La Salle
County.
Indiana. Big Wyandotte Cave, Crawford
County; Ray’s Cave, Greene County.
Kentucky. Bat Cave, Carter County;
Coach Cave, Edmonson County.
Missouri. Cave 021, Crawford County;
Cave 009, Franklin County; Cave 017.
Franklin County; Pilot Knob Mine, Iron
County; Bat Cave, Shannon County; Cave
029. WashIngton County (numbers assigned
by Division of Ecological Services, U.S. Fish
and Wildlife Service, Region 6).
Tennessee. White Oak Blowhole Cave.
Blount county.
West Virginia, Hellhole Cave, Pendleton
County.
HOTS: No map,
10 20 30 40 SONilsi
VIRGINIA Sic-asian BAT (Pt ecot us
townsendU Vfrginlgnis)
West Virginia. Cave Mountain Cave, Hell-
hole Cave, Hoffman School Cave, and Sinnit
Cave, each In Pendleton County; Cave
Hollow Cave, Tucker County.
Nol ’S: Map follows.-
180
181
-------
3t1 l’k pl. I . lu- I-Y;g LdIhOn) U.S. Fish and Wildlife Srv., Interior
Florida. Crystal River and Its headwaters
known as King’s Bay, Citrus County; the
Little Manatee River downstream from the
u.S. Highway 301 brIdge, Hillsborough
County; the Manatee River downstream
from the Lake Manatee Dam, Manatee
County; the Myakk.a River downstream
from Myakka River State Park, Sarasota
and Charlotte Counties; the Peace River
downstream from the Florida State High-
way 760 brIdge, De Soto and Charlotte
Counties; Charlotte Harbor north of the
Charlotte-Lee County line, Charlotte
County; Caloosahatchee River downstream
from the Florida State Highway 31 brIdge,
Lee County; all U.S. territorial waters ad-
joining the coast and Islands of Lee County;
all U.S. territorial waters adjoining the
coast and Islands and all connected bays, es-
tuaries, and rivers from Gordon’s Pass, near
Naples. Collier County, southward to and
Including Whitewater Bay. Monroe County;
all waters of Card, Barnes, Blackwater,
Little Blackwater, Manatee, and Button-
wood Sounds between Key Largo, Monroe
County, and the mainland of Dade County;
Biacayne Bay, and all adjoining and con-
nected lakes, rivers, canals, and waterways
from the southern tip of Key Blacayne
northward to and Including Maule Lake,
Dade County; all of Lake Worth, from Its
182
northernmost point Immediately south of
the intersection of US. Highway 1 and P 1 OI
Ida State Highway AlA southward to
southernmost point Immediately north of
the town of Boynton Beach, Palm Beach
County: the Loxahatchee River and Its
headwaters, Martin and West Palm Beach
Counties; that section of the Intracoastaj
waterway from the town of Seawalls Point,
Martin County to Jupiter Inlet, Palm Beach
County; the entire Inland section of water
known as the Indian River, from its north.
ernmost point immediately south of the
intersection of U.S. Highway 1 and Florida
State HIghway 3, VolusIa County, south-
ward to its southernmost point near the
town of Seawalls Point, Martin County, and
the entire Inland section of water known as
the Banana River and all waterways be-
tween Indian and Banana Rivers. Brevard
County; the St. Johns River including Lake
George, and Including Blue Springs and
Silver Glen Springs from their points of
origin to their confluences with the St.
Johns River; that section of the Intracoast-
*1 Waterway from its confluences with the
St. Marys River on the Georgia-Florida
border to the Florida State Highway AlA
bridge south of Coastal City, Nassau and
Duval Counties.
N0TL No map.
ALASAMA Bi*cx Mouss (Peromyscus
polionotus ammobates)
Alabama. Areas of land, water, and air-
space in Baldwin County with the following
components (St. Stephens MerIdian): (1)
That portion of the Fort Morgan Peninsula
south of State Road 180 and west of
87’59’35” W, except for that part each of
Fort Morgan State Park and more than
152.5 meters (500 feet) inland from the
mean high tide line of the Gulf of Mexico;
(2) those portions of T98 R3E Sec. 30 and
TOS RZE Sec. 25-28 and E1b/16 Sec. 29 ex-
tending 152.5 meters (500 feet) inland from
the mean high tide line of the Gulf of
Mexico: (3) that portion of the Gulf Shores
unit of the Gulf State Park south of State
Road 182 in T98 R4E Sec. 14-15 and Sec.
21-23.
Within these areas the major constituent
elements that are known to require special
management consideratons or protection
are dunes and interdunal areas, and associ-
ated grasses and shrubs that provide food
and cover.
NoTE Maps follow:
B AY
PLOSIDA MAI ATEI (T7-lchechus manalus)
GULF
I USLE
183
511-157 0—52—7
-------
50 CFI Cbi. 1(10.1.92 EdW U.S. Fish. - WIIdIIf. S.rv., kd.rlor
CHOCTAWRAICHES Ba*cx Mouse
(Peromysctsa pollonotaa aliophrps)
Florida. Areas of land, water, and airspace
In Walton and Bay Counties with the fol-
lowing components (Tallahassee Meridiani:
(1) Those portions of T28 R21W E% Sec. 35.
Sec. 36, T28 R2OW 834 Sec. 31, and T38
R2OW W34 Sec. 4, N44 Sec. 5, and NE34 Sec.
6 extending 152.5 meters (500 feet) Inland
from the mean high tide line of the Quit of
Mexico; (2) those portions of T38 R I9W
W34 Sec. 15 and Sec. 16 extendIng 152.5
meters (500 feet) inland from the mean
high tide line of the Oulf of Mexico; (3)
those portions of the mainland part of the
St.. Andrews State Recreation Area in T48
R ISW Sec. 21 and Sec. 32 extending 152.5
meters (500 feet) Inland from the mean
high tide line of the Quit of Mexico; (4)
those portions of Shell Island In T4S RI5W
Sec. 25-27 and Sec. 36. T48 R14W Sec. 31,
and T58 R14W Sec. 4-6 extending 152.5
meters (500 feet) Inland from the mean
high tide line of Gulf of Mexico.
Within these areas the major constituent
elements that are known to require special
management considerations or protection
are dunes and interdunal areas, and associ-
ated grasses and shrubs that provide food
and cover.
NoTE Maps follow:
§ 17.95
184
185
-------
50 CFR C I I. I (10.1 -fl Edition) U.S. Fish and WiIdIIf. S.rv., Int•rlor
9 II.Y
Alabama, An area of land, water, and air-
space in Baldwin County with the following
component (Tallahassee Meridian): That
portion of the Perdido Key unit of the Gulf
State Park south of State Road 182 in T9S
R33W Sec. 2-3.
Florida. Areas of land, water, and airspace
In Escambia County with the following com-
ponents (Tallahassee Meridian): (1) That
portion of the Perdido Key State Preserve
south of State Road 292 in T38 R32W Sec.
32-33 and T48 R32W Sec. 5; (2) those por-
tions of Perdido Key In T3S R31W Sec. 25-
26 and Sec. 28-34. and in T38 R32W E 6 Sec.
36, and W% Sec. 36 south of the entrance
road, parking lot, and Johnson Beach recre-
ational facilities at the Gulf Islands Nation-
al Seashore.
Within these areas the major constituent
elements that are known to require special
management considerations or protection
are dunes and interdunal areas, and associ-
ated grasses and shrubs that provide food
and cover.
Novz Maps follow:
§ 17.95
PeRDIDO KEY BEACH Mouss (Peromyscus
polfonotus trlssyUepsia)
186
187
-------
U.S. Fish .nd WlIdNf. S.rv., kit.risr
§ 17.95
California. An area of land, water, and
airspace In Fresno County. with the follow-
lug components (Mt. Diablo Base Meridian):
T148 RISE. E54 NWS4 and NE¼ Sec. 11,
that part of W44 Sec. 12 north of the South-
ern Pacific Railroad, E54 Sec. 12; T148
RiSE, that part of Sec. 7 south of the
Southern Pacific Railroad.
Within this area, the major constituent
elements that are known to require special
management considerations or protection
are the hummocks and substrate that pro-
vide sites for burrow construction, and the
natural alkali sink-open grassland vegeta-
tion that provides food and escape cover.
Nm ’s: Map follows:
California. An area of land, water, and
airspace In San Luls Obispo County. with
the following components (Mt. Diablo Me-
ridian): T308 R1OE 854 Sec. 14. those por-
Lions of Sec. 23-24 west of Pecho Valley
Road.
Nm’s: Map follows:
50 cFI h. I (10—1—92 Edft on)
Fazsno KMIGiIRoo RAT (Dipodomys
nttratoides exUts)
Moaso BAY KAJ!OAROO RAT (Dipodomys
P&eennanni morroenats)
188
189
-------
17.95
U.S. Fish and WiIdIlf. S.rv., Intarlor
NOUr
I . L
A5(M) IA ?
• . *UVIS%IA
Mowrr GRAHAM Rzn Squiaaxi.
(Tamiasciurus ?&udao,dcigs grakamenais)
Arizona. Areas of land, water, and air.
space in the Coronado National Forest, T. 8
8., R. 24 L, and T. 98.. R. 24 E. (Olla and
50 cFR h. 1(10-1-92 EditIon)
Salt River Meridian). Graham County. with
the following components:
1. Hawk Peak-Mount Gruiuzm Area. The
area above the 10,000-foot (3.048-meter
contour surrounding Hawk Peak and Plain
View Peak, plus the area above the 9,800-
foot (2,987-meter) contour that is south of
lines extending from the highest point of
Plain View Peak eastward at 90 (from true
north) and southwestward at 225’ (from
true north).
2. HeliOgraph Peak Area. The area on the
north-facing slope of Heliograph Peak that
Is above the 0,200-foot (2.804-meter) contour
surrounding Heliograph Peak and that is
between a line extending at 15’ (from true
north) from a point 160 feet (49 meters) due
south of the horizontal control station on
Heliograph Peak and a line extending
northwestward it 300’ (from true north)
from that same point.
3. Webb Peak Area. The area on the east-
facing slope of Webb Peak that is above the
9,700-foot (2,957-meter) contour surround-
ing Webb Peak and that Is east of a line ex-
tending due north and south through a
point 160 feet (49 meters) due west of the
horizontal control station on Webb Peak.
The major constituent element Is dense
stands of mature spruce-fir forest.
§ 17.95
190
191
-------
50 CM a . I (10-1.92 EdhIos,) U.S. Flab and WIldIIf. Serv., Inbarlor
§ 17.95
•95
]osA Votz (Microtv.s caZifornicvs
scfrpensla)
L(ornia. Marshes and associated land
water in the following areas of Inyo
sty (San Bernardino Meridian): T9ON
Sec. 4. 5, N54 and SE¼ Sec. 9, NW¼
10, SWY,8W44 Sec. 15, E34 Sec. 16.
v Sec. 22; T2 IN RIE 844 Sec. 28. 844
NW% Sec. 20. Sec. 32. 33.
thin these areas, the major constituent
a that are known to require special
ment considerations or protection
marsh vegetation (primarily buiruehes
he genus Sciiptjs), springs, and some
water along the Amargosa River.
provide escape cover and an adequate
)T Map follows:
Michigan.. Isle Royale National Park.
Miiusesota. Areas of land, w t p fr.
space In Beltraml, Cook. Itases, Koochich-
lag. Lake, Lake of the Woods, Rooeau , and
St. Louis Counties, with boundaries (4th
and 5th PrIncipal meridians) Identical to
those of woes 1,2, and 3. U delineated In 50
CPR 17.40(dXl)
N0Ts: See map in I 17.40(dXl).
(b) Birds.
Yzu.ow-SX0ULDZ*aD BLACKSIaD (AgeiaIus
xa*tho,nu.s)
Puerto Rico. Areas of land, water, and air.
space with the following components: (1) All
of Mona Island: (2) that portion of the main
Island of Puerto Rico within the following
boundary: Beginning at a point where the
Quebrada Boqueron joins the Bahia de Bo-
queron, thence proceeding southwesterly
along coast to Cabo Rojo, thence eastward
along the coast, including offshore cays, to
the point where Highway 332 meets the
Bahia de Ouanica. thence northward on
Highway 332 to Its junction with Highway
116. thence westward on Highway 116 to Its
junction with Highway 305. thence west-
ward on Highway 305 to its junction with
HIghway 303, thence northward on High-
way 303 to Its junction with Highway 101.
thence westward on Highway 101 to the
point where it crosses Quebrada Boqueron,
thence along the Quebrada Boqueron to the
point where It joins the Bahia de Boqueron;
(3) a circular portion of the main Island of
Puerto Rico with a one mile radius, the
center being the junction of Highways 360
and 102 In the town of San Oerman; (4)
Roosevelt Rods Naval Station, southeast of
Celba.
Non: No map.
CAIJIOSIIIA CoNDOR (Gy,nnogyps
Ca iforni anus)
California. Sespe-Ptru Condor Area. an
area of land, water, and airspace to an eleva-
tion of not less than 3,000 feet above the
terrain, In Ventura and I s Angeles Coun-
ties. with the following components (San
Bernardino MeridIan): Sespe Condor Sanc.
tuary, as delineated by Public Land Order
695 (January 1951); T4N R2OW Sec. 2. 5-10.
N44 Sec. 11; T4N R21W Sec. 1-3, 10-12, N¼
Sec 13, N44 Sec. 14, N% Sec. 15; TON R18W
Sec. 4-9, 18. 19. 30. 31, N34 Sec. 3, N44 Sec.
17: TSN R21W Sec. 1-4. 9-16. 21-28, 33-36;
TON RL8W Sec. 7-11, 14-23, 26-35; TON
R19W Sec. 7-36; TIN R2OW Sec. 8-36; TIN
R21W Sec. 13-36; TON R22W Sec. 3-26. 35.
36; TON R23W Sec. 1-3, 10-14. 24, N44 Sec.
23; T7N R22W Sec. 31; TIN R23W Sec. 34-
36.
Matilija Condor Area. An area of land,
water, and airspace to an elevation of not
less than 3,000 feet above the terrain, In
Ventura and Santa Barbara Counties, with
the following components (San Bernardino
Meridian): TON R24W W% Sec. 3, Sec. 4-11,
14, 15, N44 Sec. 16. N54 Sec. 17; 150 R25W
E44 Sec. 1, ME% Sec. 12; T544N R24W Sec.
31-34; TIN R24W 844 Sec. 32, 854 Sec. 33,
Sec. 34.
Sisquoc-San Rafael Condor Area. An area
of land, water, and airspace to an elevation
of not less than 3,000 feet above the terrain,
Santa Barbara County. with the following
components (San Bernardino Meridian):
TON R26W Sec. 3, 6; TON R2IW Sec. 1. 2;
TIN R26W Sec. 5-8, 17-20. 29-32; TIN
R27W Sec. 1-14. 23-26. 35, 36; ‘IIN R28W
Sec. 1, 2. 11, 12; TBN R26W Sec. 19-22. 27-
34; T8N RZ7W Sec. 19—36.
HI Mountaln-Beartrap Condor Areas:
Areas of land, water, and airspace to an ele-
vation of not less than 3,000 feet above the
terrain In San Luls Oblapo County. with the
following components (Mt. Diablo Meridi-
an): T308 R16E Sec. 13, 14, 23-26. SE¼ Sec.
11.844 Sec. 12; T308 R17E Sec. 17-20. 29, 30;
T318 R14E Sec. 1, 2, 11. 12, ESt Sec. 3, E54
Sec. 10. N44 Sec. 14. 054 Sec. 13; 1318 RiSE
W44 Sec. 6, W 445cc. 7. NW¼ Sec. 18.
Mt. Pinos Condor Area. An area of land.
water, and airspace In Ventura and Kern
Counties, with the following components
(San Bernardino Meridian): TON R2IW W44
Sec. 5. Sec. 6 04 Sec. 7. NW¼ Sec. 8; TON
R22W Sec. 1, 2, E44 Sec. 3, NE¼ Sec. 10. N44
Sec. 11. N44 Sec. 12; T9N R21W Sec. 31. 32.
W% Sec. 33; TON R22W E44 Sec. 35, Sec. 36.
Blue Ridge Condor Area. An area of land,
water, and airspace In Tulare County. with
the following components (Mt Diablo Me-
ridian): T198 R39E Sec. 5-9, 15-22,27-30.
Tejon Ranch: An ares of land, water, and
airspace in Kern County, with the following
components (San Bernardino Meridian):
R16W, T100. R17W T100. R17W T11N.
R18W TON, R18W T100. RI9W T100.
Kern County rangelands: An area of land,
water, and airspace In Kern County between
California State Highway 65 and the west-
ern boundary of Sequoia National Forest,
with the following components (Mt. Diablo
Meridian): R29E T25S , R29E T268, R3OE
1258. R3OE 1268.
Tulare County rangelands: An area of
land, water, and airspace In Tulare County
between California State Highway 65. State
Highway 198. and the western boundary of
SequoIa National Forest. with the following
components (Mt. Diablo Meridian): R28E
T188 (all sectIons): R28E T198 (all sec-
tions); R28E T2OS (all sections); R28E T218
Sec. 1-18; R29E 1208 (all sections); R29E
T21S Sec. 1-18.
N0T1 No map.
M iss iss iPPi 8aNDmLi. Casisa (Gnu
CanadenSÜ ptdla).
MissIssippi. Areas of land, water, and air-
space In Jackson County. with the following
components (St. Stephens Base
Merldian)T68 ROW Sec. 31; TIS RIW E54
of E54 Sec. 34, Sec. 35-36. 854 Sec. 38; TIS
ROW Sec. 27. those portions of Sec. 28-31
south of Seaman Road. Sec. 32-34; T’lS
Oa*y WoLr (Coals lupus)
192
193
-------
17.95
U.S. Fish and WiUdlif. S.rv., Int.rlor
§ 17.95
SW N44 of NSç, 3, Sec. I 178 R7W
2-11, Sec. 13- . 20-22, W 4 Sec. 23,
4 of E54 Sec. of NE¼ Sec. 23,
V. of NY. Sec. 24, that portion of the SWV,
8WY. Sec. 30 south of the Louisville and
shville Railroad, W Y . of W Y . Sec. 31, WY.
37, that portion of the E54 Sec. 37
th of U.S. Interstate HIghway 10; T7S
W Sec. 1-3, that portion of Sec. 4 north
U.S. Interstate Highway 10, Sec. 5.-S.
se portions of Sec. 7-8 north of US.
erstate HIghway 10, Sec. 10-12, WY. of
V. Sec. 14, Sec. 15, that portion of Sec. 25
ith of the Louisville and Nashville Rail-
that portion of the 8E¼ of Sec. 20
th of the Louisville and Nashville Rail.
and southeast of Davis Bayou, NY. of
16 Sec. 35. Sec. 34.
Nors: No map.
W oorn o Cwts (Gnss americana)
)rado. Areas of land, water, and air-
with the following components: (1)
te Vista National Wildlife Refuge In
)sa and Rio Orande Counties; and (2)
National Wildlife Refuge In Ala-
and Conejos Counties.
)Ts: Map follows:
50 CM Qi. I (10-1-fl Edition)
Idaho. An area of land, water, and air-
space In Bonneville and Caribou Counties
with the following components: Grays Lake
National Wildlife Refuge, and all contigu.
ous land and water withIn 1 mile of the
boundaries of this refuge.
Nors Map follows:
Kansaa Areas of land, water, and airspace
with the following components: (1) Qulvira
National Wildlife Refuge in Stafford. Reno,
and Rice Counties; and (2) Cheyenne Bot-
toms State Waterfowl Management Area In
Barton County.
Noi’s: Map follows:
Nebraska. An area of law’ , and air.
space in Dawson, Buffs! Phelps,
Kearny, and Adams Couni the fol-
lowing boundaries: Platte k . Oottoma—a
strip of river bottom with a north-south
width 3 miles, a south boundary paralleling
Interstate 80. begInning at the junction of
U.8. Highway 283 and Interstate 80 near
Lexington. and extending eastward along
Interstate 80 to the interchange for Shelton
and Dehman, Nebr. near the Buffalo-Hail
County line.
Nors: Map follows:
P4 I P
194
195
-------
I
§ 17.95
New Mexico An area of land, water, and
airspace in Socorro County with the follow.
trig component: All areas at or below 4,600
feet in elevation within Bosque del Apache
National Wildlife Refuge.
Nor’s: Map follows:
Oklahoma. An ares of land, water, and air-
space in Alfalfa County with the following
component: Salt Plains National Wildlife
Refuge.
Texas, An ares of land, water, and air-
space in Aransas, Calhoun, and Refuglo
Counties with the foilowing boundaries: Be-
34) iit Ui. I (10-1-92 EdItion) U.S. Peal, and WIIdlif. S..v., Int.rI.,
ginning at the point where the north bound.
ary of the Aransas National Wildlife Refuge
intersects the shore of San Antonio Bay at
Webb Point; thence, from this point along a
straight line across San Antonio Bay
through the westernmost tip of Mosquito
Point and Inland to a point of intersection
with metal surfaced road; thence eastward
along a straight line across Espirftu Santo
Say to the intersection of the bay shore and
a road at the east end of Pringle Lake on
Matagorda Island; thence south along this
road to the intersection with the main Ma-
tagorda Island road; southwestward along
this main road to Cedar Bayou at latitude
28’04’W N.; thence due west across Cedar
Bayou, Vinson Slough, and Isla San Jose to
Gulf Intracoastal Waterway platform chan-
nel marker No. 25; thence north to the
southwest corner of the Proclamation
boundary, just south of Blackjack Point;
thence north along the proclamation bound-
ary into St. Charles Bay to a line drawn as
an eastward extension of Twelfth Street on
Lamar Peninsula thence westward along
this line to intersection with Palmetto
Avenue; thence northward along a straight
tine to the southwest corner of the Aransas
National Wildlife Refuge at Texas State
Highway 35 and the north shore of Cavasso
Creek; thence northeast on a straight line
to the corner of the Aransag National Wild.
life Refuge north boundary adjacent to tn.
angulation station “Twin”; thence along the
north boundary of said refuge to the start.
tog point at Webb Point.
N0Ts: Map follows:
California. Dry Creek Zone: areas of land,
water, and airspace in Sonoina County, with
the following components (Mt. Diablo Base
MerIdian): (1) T1ON R11W WV. of SW%
Sec. 6, WV. of NW% Sec. 6, NWV. of NWV.
Sec. 7; T1ON R12W Sec. 1, LV. of 14EV. Sec.
2, SWV. of 14EV. Sec. 2, 8EV. Sec. 2, LV. of
8W3(. Sec. 2, 8EV. of NWV. Sec. 2, NV. of
NE 4 Sec. 11,14EV. of NW% Sec. 11.1434 of
NEV. Sec. 12, NV. of NWV. Sec.l2, T11N
R11W 8WV. of 8EV. Sec. 31, 8% of SWV.
Sec. 31; TllN R12W 8EV. of 8EV. Sec. 36.
8EV. of 8W34 Sec. 36; (2) T1ON R11W NW3f .
of 8W% Sec. 1, WV. of NWV. Sec. 1,14% Sec.
2,14% of SLY. Sec. 2, NV. of SW54 Sec. 2,1454
Sec. 3, 1434 of 8EV. Sec. 3, N% of 8W34 Sec.
3, NEY. Sec. 4, NV. of 8EV. Sec. 4, 14EV. of
SWV. Sec. 4. E% of NW¾ Sec. 4; T11N
R11W LV. of 8EV. Sec. 33, 554 Sec. 34, 554
Sec. 35, W34 of 8EV. Sec. 36, SW34 Sec. 36;
(3) TI1N R12W 854 Sec. 19, Sec. 30; T11N
R13W 8EV. Sec. 24, LV. of SWY. Sec. 24, EV.
Sec. 25, LV. of 8WY. Sec. 25. LV. of NWV.
Sec. 25.
Palisades-Table Rock Zone: an ares of
land, water, and airspace in Naps County,
with the following components (Mt. Diablo
Base Meridian): T9N R6W 834 Sec. 5, 5%
Sec. 6, Sec. 7, Sec. 8, Sec. 9, Sec. 16, Sec. 17,
Sec. 18, Sec. 19, Sec. 20; TVN R7W LV. Sec.
12, LV. Sec. 13. NEV. Sec. 24, LV. of 8EV.
Sec. 24.
Mount St. Helena Zone: An ares of land,
water, and airspace in Lake, Naps, and
Sonorna counties, with the following compo-
nents (Mt. Diablo Base Meridian): TVN
R7W WV. of 14EV. Sec. 3, WV. of SLY. Sec. 3,
WV. Sec. 3. Sec. 4, LV. Sec. 5, E34 of SWY.
Sec. 5, E% of NWY. Sec. 5; T1ON R7W that
portion of Sec. 20 east of Ida Clayton Road,
Sec. 21. WV. of 14EV. 8cc. 22, WV. of 8EV.
Sec. 22, WV. Sec. 22. WY. of 14EV. Sec. 27,
WV. of 8L’/. Sec. 27, WV. Sec. 27, Sec. 28,
that portion of Sec. 29 east of Ida Clayton
Road, that portion of the 14EV. Sec. 32 east
and south of Ida Clayton Road, 8EV. Sec.
32, E34 of 8WY. Sec. 32. that portion of the
8EV. of NWV. Sec. 32 south of the Ida Clay-
ton Road, Sec. 33, WV. of 14EV. See, 34, WV.
018EV. See. 34, WV. Sec. 34.
Nor’s: Map follows:
Florida. Areas of land (predominantly
marsh), water, and airspace, with the fol-
lowing components (Tallahassee Meridian):
(1) St. Johns Reservoir, Indian River
County T33S R37E 8WV. Sec. 6, WV. Sec. 7,
Sec. 18, Sec. 19; (2) Cloud Lake Reservoir,
St. Lucle County; T348 R38E 834 Sec. 16,
1434 Sec. 21; (3) Strasaulla Reservoir, St.
Lucie County: T34S RUE 8W¾ Sec. 21; (4)
western parts of Lake Okeechobee, Glades
and Hendry Counties, extending along the
western shore to the east of the levee
system and the undiked high ground at Fl-
sheating Creek, and from the Hurricane
Gate at Clewlaton northward to the mouth
of the Kisslinmee River, including all the
Eleocharts flats of Moonshine Bay. Monkey
Box. and Observation Shoal, but excluding
the open water north and west of the north-
ern tip of Observation Shoal, north of
Monkey Box, and east of Fisheating Bay;
(5) Loxahatchee National Wildlife Refuge
(Central and Southern Florida Flood Con-
trol District Water Conservation Area 1),
Palm Beach County, including Refuge Man-
agement Compartments A, B, C, and D, and
all of the main portion of the Refuge as
bounded by levees L-.7, L-39. and b-40; (6)
Central and Southern Florida Flood Control
District Water Conservation Area 2A, Palm
Beach and Broward Counties, as bounded
by Levees I -6. L—35B, L ,-36. L-38. and L-39;
(7) Central and Southern Florida Flood
Control District Water Conservation Area
2B. Broward County. as bounded by Levees
1.-35, L-35B, 1-36, and L-3$; (B) Central and
Southern Florida Flood Control District
Water Conservation Ares 3A, Broward and
Dade Counties, as bounded by Florida High-
way 84. Levees L-68A, L-67A (north of
Miami Canal), L-e’7C (south of Miami
Canal). L-29, and L-28, and a line along the
undiked northerwesterri nortlon of the
Nort Map follows:
FLORIDA Evxaoiang Krra (Rosirhgmig.r
soctabilla plumbeus)
AMIRICAJI Pnacaiwx PAtcox (Falso
pereprl*ag a,taium)
196
197
-------
U.S. Fish and WlIdIIf. S.rv., IntrIor
§ 17.95
50 CM Qi. I (10-1-92 Edition)
• (9) that portin Everglades Nation-
Park. Dade Cou thin the following
indary: beginnini., e point where the
boundary meets Florida Highway 94 In
R35E Sec. 20, thence eastward and
.hweat along the Park boundary to the
ithwest corner of Sec. 31 in T78 R37E,
moe southwestward along a straight line
the southwest corner of Sec. 2 in T588
SE. thence westward along the south
of Sec. 3. 4. 5, and 6 in T 588 R3SE to
! Dade-Monroe county line, thence north-
along the Dade-Monroe county line to
Park boundary, thence eastward and
ward along the Park boundary to the
of beginning.
Map follows:
State of Hawaii Tax Map Key 4-4-16. Third
Division) lying north of the Saddle Road
(State HIghway 20) and south of the Power
Une Road; (2) that portion of theState of
Hawaii Kaohe Osine Management Area
(Parcel 4, State of Hawaii Tax Map Key 4-
4-15, Third Division) to the north and east
of the Saddle Road (State Highway 20); (3)
that portion of the Upper Waikli Paddock
(Parcel 2. State of Hawaii Tax Map Key 4-
4-15. ThIrd Division) northeast of the
Saddle Road (State Highway 20); (4) that
portion of the lands of Humuula between
Puu Kahinahina and Kole lying southeast
of the Mauna Kea Forest Reserve fence
(portions of Parcels 2. 3, and 7. State of
Hawaii Tax Map Key 3-s-i, Third Division)
which are included in the State conserva-
tion district.
Novs: Map foilows
Pains (Psi (Umatra baiilewi)
Hawaii, An area of land, water, and air-
space on the Island of Hawaii, Hawaii
County, with the following components: (1)
The State of Hawaii Mauna Kea FOrest Re-
serve, except .(a) that portion above the
10.000 foot contour line, (b) that portion
south of the Saddle Road (State Highway
20), c) lands owned by the United States in
the Pohakuloa Training Area north of the
Saddle Road (State Highway 20) establIshed
by Executive Order 1719 (Parcel 6, State of
Hawaii Tax Map Key 4-4-16. Third Divi-
sion). (d) that portion (Parcel 10. Ksohe IV.
For the States of California, Oregon, and
Washington, critical habitat unIts under
Paderal Jurisdiction are depicted on maps
maintained on file at the U.S. Fish and
Wildlife Service, Fish and Wildlife Enhance-
ment, 911 Northeast 11th Avenue, Portland,
Oregon 97232-4181 (503/231-6131). CopIes
of these maps are available upon request at
the requester’s expense.
17.95
Noamsu SPorrzD Owi (Strix occidentalts
caurina)
CRITICAL HASITAT POt TIES FLORIDA
Evnoi.soa Krrz
198
199
-------
17.95 50 CE I Os. I (10-1-92 EdItion)
The general configuration of the California area are Illustrated on the sap which foliowt
GENERAL CONFIGURATION OF CRITICAL
HABITAT UNITS IN CALIFORNIA
‘ p
(ES. Fish end Wildlife Sen., intorlor § 17.95
The general configuration of the Oregon areas are illustrated on the sap which fallen
ea
, ,
r 1 i 1
200
201
-------
50 CFI ch. I (10-1-fl Edition) U.S. Fish and WiIdIIf. S.,v., IntrIo,
Primary conaiifue, elements: forested
lands that are used or potentially used by
the northern spotted owl for nesting, roost-
iitg, foraging, or dispersing.
Cm Sam.r Si’wow (Ammo.pij 5 7narltlma
‘Pdrubffis)
Florida. Areas of land, water, and airspace
in the Taylor Slough vicinity of Collier,
Dade, and Monroe counties, with the follow-
ing components (Ta1laha se Meridian):
Those portions of Everglades National Park
within T575 R36E, T578, R3654E, T578
R37E. T 588 RUE, T5$8 RUE, TUB R37E,
T58548 R35E, T58545 R3654E TUB RUE,
TUB, R36E, TUB R37E. Areas outside of
Everglades National Park within TUB R37E
Sec. 36; TUB R38E Sec. 31. 32; TUB R37E
Sec. 1, 2, 11-14. 23-26; TUB R38E Sec. 5-7,
18, 19; T578 R37E Sec. 5-8, Thea R3SE 8ec.
27, 29-32; TUB RUE Sec. 4.
California, Inyo County: lands within and
adjacent to the China Lake Naval Weapons
Center identified as follows:
(1) Approximately 2.0 miles of streazubed
and 54 mile on either side of the wash from
Margaret Ann Spring and proceeding down-
stream to the eastern boundary of Section 3
near Snooky Spring. The above includes
portions of Sections 3. 4. 9, and 10, T238
R42E. (Map location A)
(2) A cIrcle V. mile in radius with the
spring in T238 R42E WV. NE¼ Section 8 as
the center. (Map location B)
(3) Approxin e y 2 miles of streambed
and 56 mIle on either side of the wash from
§ 17.9
Ruby Spring (T23 Section 22)
Proceeding downatre. the boundary
tween Sections 25 and 26. The above hi
cludes portions of Sections 22, 23, 25, ar
26, T235 R42E. (Map location C)
(4) A circle 54 mile in radius with Qua)
Spring as the center in T238 R42E, N E
Section 28. (Map location D)
(5) A circle 54 mile in radius with Ber
Spring as the center in TUB R42E, Sectic
34 and 35. (Map location E)
(6) A circle 54 mile in radius with Bend,
Mark 5485 (some USGS maps report this aa
5484) near the common boundary of Sec-
tions 31 and 32, TUB R42E, as the center
and lying within Sections 31 and 32. (Map
location F)
(7) T24S R42E, NW%4 NW 54 Section 2 and
NE1/4 NE1/4 Section 3. (Map location G)
(8) T248 R42E, E54 8EV. Section 6. (Map
located H)
(9) Approximately i.e miles of streambed
and 54 mile on either side of Great Falls
Basin Wash commencing from the western
boundary of E% Section 11, T248 R42E, and
proceeding downstream along the stream-
bed to the eastern boundary of Section 13.
The above includes portions of Sections ii,
12, 13. and 14. T245 R42E, (Map location I)
(10) CIrcles with 56 mIle radii around
Muniford and Austin Springs in T24 5 R43E,
Section 7 and Bainter Spring in Section 18
and around Indian Joe Spring in T24S R42E
SectIon 24. (Map locations J)
Nor’s: Map follows:
§ 17.95
The general ‘aratlon of the Washington areas are Illustrated on the map which follows:
Inyo Biown Townag (Pipilo fuscus
erenzopfljft )
202
203
-------
(11) ApproximatelY 5 mIles of streambed
and V. mile on either side of Mountain
Springs Canyon commencing from the
southern border of Section 8 and continuing
along the streambed to the point at. which
Mountain Springs Canyon Wash Intersects
the eastern boundary of 8W¼ Section 12.
The above Includes portIons of SectIons 8. 9.
10, 11. 12. 13. 14, and 17, T238 R41E. (Map
location K)
Nors: Map follows:
SO cM Oi. I (10-1-fl Edition)
Major constituent element: desert ii.
parian scrub vegetation.
(C) Reptiles.
M0NIT0 Gscio (SphaerodaCtyh S
,pdcropltheciu)
Puerto Rico—Wa Monito. entire Island.
Nors: Map follows:
L:H _______
Most BOA (Epicrates nwnensis monenats)
Commonwealth of Puerto Rico. Mona
Ialand—entlre lslwd.
U.S. Fish and WildUf. S.rv., Int.r1o,
Nois: Map fol1ow
Nois: No text. Map follows:
I:
.; :—
( s
—
5
—
•
I
•1
3
‘2
TUS
fUT
s
.2
aa
7
•
. ..,
••, . •K
-.
••
..
.
I ,
- —
Is
24 is
-
Il
20
-
•4
ii
—
6
——————
32
14
-
I)
Asazcas Ciocosu.. (Crocodyiiis acktlga)
Piorida. All land and water within the fol
lowing bo m ry: Beginning at the eastern-
most Lip of Turkey Point, Dade County. on
the coast of Blacayne Bay; thence south-
eastward along a straight line to Christmas
Point at the southernmost Up of Elliott
Key; thence southwestward along a line fol.
lowing the shores of the Atlantic Ocean side
§ ii.c
of Old Rhodes Key. Palo Alto Key. Angic
fish Key. Key Largo. Plantation Key. Wind
icy Key. Upper Matecu,nbe Key. Lower Ma
tecumbe Key, and Long Key, to the west.
ernrnost Up of Long Key; thence North.
westward along a straight line to the west.
ernmost tip of Middle Cape: thence north.
ward along the shore of the Gulf of Mexico
to the north side of the mouth of Little
Sable Creek; thence eastward along a
straight line to the northernmost point of
Nine-Mile Pond thence northeastward
along a straight line to the point of begin.
ning.
No rx No map.
Mo * Osousa Iowuia (Cyclura stejlsegerd)
Commonwealth of Puerto Rico. Mona
Island—entire island.
Nois: Map follow
COACIISLLA V*u. y Fazisog-Tosa Lzzsza
(Uma i Iornata)
California. Riverside County. 8¼ SectIon
5, 8K’ ?, Section 6. K ’ ?, SectIon 7, all of sec.
Lions B through 11. WV. SectIon 12. WV. Sec-
tIon 13. all of sections 14 through 16, LV.
Section 17. EV.NWv. SectIon 17, EV.8wv,
Section 17. all of sections 21 through 26,
EI4NWv,, NW V. 8K’? ,, E348E¼. NE’?, Section
27. all of sections 35 and 36. T48 R6E.
Nors: Map follows:
OIAuT AS0LI (Anoijs roosevelt)
204
205
-------
Sv. Caoix Gaounn LIZARD (Ameiva p0bps)
U.S. Virgin Islands. Protestant Cay,
roughly defined by the coordinates 6442’lS”
N. and 17’451.5” W.; and Green Cay, rough-
ly defined by the coordinates 6”r37’30” N.
and 1746’16” W.
NoTs: Map follows:
50 CFR C l i. I (10-1-92 Edition)
Texas: Areas of land and water as follows:
1. 7Dm Green and Concho Counties.
Concho River The mainstream river chan-
nel and river banks, up to a level on both
banks that is 15 vertIcal feet above the
water level at median discharge (but not ex-
tending more than 34 mile upstream on any
tributary stream); extending from Muflin’s
Crossing. northeast of the town of Veribest
downstream to the confluence of the
Concho and Colorado Rivers.
2. Runnels, Concho. Coleman, and McCul-
loch Counties. Colorado River The main-
steam river channel and river banks, up to a
level on both banks that is 15 vertIcal feet
above the water level at median discharge
(but not extending more than 34 mile up-
stream on any tributary steam); extending
from the Farm to Market Road 3115 bridge
near the town of Maverick downstream to
the confluence of the Colorado River and
Salt Creek, northeast of the town of Doole.
3. The entire future Stacy Reservoir basin
up to the conservation p 0 01 level of 1551.5
feet elevation, and including reservoir banks
up to 15 vertIcal feet above the 1551.5 feet
elevation, and Including tributary streams
for not more than 34 mIle upstream from
the conservation pool level.
4. ConstItuent elements include shallow
riffles and rapids with rocky cover, mini-
mum steam flows, diet banks, rocky shore-
lines, and woody riparian vegetation. Mini-
mum flows Include the following:
(a) A continous, daily flow of 10.0 cubic
feet/second (Cf 5) In the Colorado River
from E.V. Spence Reservoir to Ballinger,
Texas.
(b) A flushing flow of 600 c ia from E.V.
8pence Reservoir for a duration of 3 consec-
utive days (at any time during the months
of November through February), at least
every other year for channel maintenance.
(C) A continuous, daily minimum flow of
11.0 cfs in the Colorado River between
Stacy Dam and Pecan Bayou between April
and September each year, and a minimum
of 2.5 cIa between October and March of
each year.
(d) Flushing flows of 2500 cfs from Stacy
Reservoir for 2 consecutIve days at least
once every 2 years for channel maintenance.
No!rz Map follows:
U.S. Fish and WlIdIIf. S.rv., Int.rIor
C I , —
I
—
-I
I.
‘4
I
L I
-J
-J
LI
LI
I
§ 17.95
1
3
‘ ,J 0
-J
I
o e
I _•4
o
w
o 0
4
I
-j
I
LI
1
0
LI
(-S • -
I v .
( C.’
•0
a..’
V) Z
a
a
— I.
I
I
Coacno WArn SJ1AKZ (Nerodia harteri
pauc tmacubata)
S
S.- S I
I
206
207
-------
U.S. Fish and WiidIif S rv., int.rl,
• 17.95
17.95
Naw MaxicAl ’ RIbcz-NOSSD RATTLSSNAKI
(CrotahsS wlUardl obscurus)
New Mexico. Hidsigo County. Elevations
reen 6,200 feet and 8.532 feet in Bear.
and Spring Canyons, Animas Moun-
NoTE Map follows:
Bz&vza DAM &oPZ PoPULATION OP ThE
DEsIsT ToavoIss (GopheTUS agassizit)
Utah. Washington County. E54 SectiOns 13
and 24, T438 R2OW; 834 SectIon ‘1, all of
Sections 8 through 38, E34 Section 29, SEV4
Section 5, 8W¼ Section 4, T438 R19W; all
of SectIons 7 through 10, 15 through 22, 28
through 30. and W34 SectIon 27. T438
RI8W.
NoTE Map follows:
So c t h. I (10-1-92 EditIon)
Bs vss DAM SLoPE POPULATIoN
Puerto Rico: (1) Isla Mona. All areas of
beachfront on the west, south, and east
sides of the Island from mean high tide
inland to a point 150 meters from shore.
This includes all 7.2 kilometers of beaches
on Isis Mona. (2) Culebra Island. The fol-
lowing areas of beachfront on the north
shore of the Island from mean high tide
inland to a poInt 150 meters from shore:
Playa Resaca, Plays Brava. and Plays
Larga. (3) Cayo Norte. South beach, from
mean high tide Inland to a poInt 150 meters
from shore. (4) Isis Culebrita. All beach-
front areas on the southwest facing shore,
east . facing shore, and northwest facing
shore of the island from mean high tide
Inland to a point 150 meters from shore.
NoTE Maps follow.
IZATHERIACK Sa* TURTLE (De nocheiy,
cOriacea)
U.S. Virgin Islande—A strip of land 0.2
mile wide (from mean high tide Inland) at
Sandy Point Beach on the western end of
the Island of St. Croix beginning at the
southwest cape to the south and running 1.2
miles northwest and then northeast along
the western and northern shoreline, and
from the southwest cape 0.7 mile east along
the southern shoreline.
NorE Map follows:
Msssachuaetts (Plymouth County).
An area including Brlggs Reservoir, Cooks
Pond. Little South Pond, South Triangle
Pond, Great South Pond, Powderhorn
Pond, Boat Pond. Hoyte Pond, Gunners Ex-
change Pond, Crooked Pond and Island
Pond as follows: Beginning at the intersec.
tion of the centerline of the right-of-way of
the Boston Edison and New Bedford Gas
and Edison Light Company transmission
lines and the westerly right-of-way line of
Long Pond Road, thence southeasterly,
along the westerly right-of-way line of Long
Pond Road, 10,370 feet to the Intersection
of the said right-of-way line and the bound-
ary line of the Myles 8tandlsh State Forest;
thence southerly and westerly, along the
boundary line of the Myles Standish State
Forest, crossing and re-crossing Snake Hill
Road. 11.200 feet, more or less thence west-
erly. leaving the boundary line of the State
Forest, 1,500 feet, more or less, to the
boundary line of the Myles Standish State
Forest; thence westerly, alonp ‘e boundary
HAwIIUILL Ssa TuRTLE (Eretmccl$etyS
Imbr*cata)
Pr.’ra(ouTn Rsa-Bsuiga Tuams (Chrysemys
nibri vent na bangal)
208
209
-------
§ 17.95
U.S. Fish and WildIIf. S.rv., Int.rIor
line of the N tandish State Forest.
9180 feet, mot - ess, to the intersection
of the boundary of the said State Forest
and the easterly right-of-way line of the Al-
gonquin Os. Transmission Company pipe-
line: thence northerly, along the easterly
right-of-way line of the said pipeline. 6,223
feet. more or lea., to the intersection of the
easterly right-of-way line of the said pipe-
line and the northerly right-of-way line of
Kings Pond Plain Road; thence northeaster-
ly, along the northerly right-of-way line of
said road 3,100 feet to a point; thence north-
erly, 800 feet, more or less, to the sourtherly
right-or-way line of the Boston Edison and
new Bedford Gas and Edison Light Compa-
ny transmission lines; thence northwesterly,
along the southerly right-of-way base of the
said transmission lines, 4,150 feet. more or
less, to the intersection of the southerly
right-of-way line of the said transmission
lines and the easterly right-of-way line of
the Algonquin Gas Transmission Company
pipeline; thence northerly, along the easter-
ly right-of-way line of the said pipeline.
2,500 feet, more or less, to the intersection
of the easterly right-of-way line of the said
pipeline and the southerly right-of-way line
of Black Cat Road; thence southeasterly,
along the southerly right-of-way line of said
road, crossing South Pond road and con-
tinuing southeasterly, along the southerly
right-of-way line of an unnamed road,
10.370 feet. more or less, to a point, thence
southerly 2,300 feet. more or less, to the
northerly right-of-way line of the Boston
Edison and New Bedford Gas and Edison
Light Company transmission lines, thence
easterly, along the northerly right-of-way
line of the said transmission lines, 1,300
feet, more or less, to the intersection of the
northerly right-of-way line of the said trans-
mission lines and the westerly right-of-way
line of long Pond Road; thence southerly,
along the westerly right-of-way line of said
road. 100 feet, more or less, the place of be-
g.
Nors: Map follows:
SOCFRCh. I (10-1-92 EdItion)
Puerto Rico. Areas of land, water and air-
space with the following components: (1)
Cerro Avispa-eievatlOfl above 700 meters on
the south and southeastern slope of the
mountain: from the northern Junction of
Highway 715 and an unnumbered dirt road
southeast and southwest along Highway 715
to the southern junction with the same un-
numbered dirt road and Highway 715, north
and northeast along the unnumbered dirt
roacL just below the southeast facing crest of
Ceno Avispa to its junction with Highway
715.
(2) Monte ci Gato-entire summit above
700 meters: from the junction of Highway
715 to the Junction of Highway 715 and the
700 meter contour interval west along High-
way 715 to the junction of Highway 715 and
an unnumbered road, north and northeast
along this road to where it crosses the 700
meter contour interval, and east along the
700 meter contour interval to where it
crosses Highway 715.
(3) Sierra de Cayey-elevatlona above 700
meters: southeast from the junction of
Highways 738 and 15 along Highway 15 to
point .5 kilometer south of Benchmark
684.5, northeast from this point in a line to
a point on Highway 7741 two kilometers
south of the junction of Highway 738 and
7141, north and northwest along Highway
7741 to its Junction with Highway 738, and
northwest from the Junction of Highways
7741 and 738 along Highway 738 to Its June-
tion with Highway 15.
Noix: Map follows:
Refer to 7.5 mInute U.S.G.S. Topographi-
cal Map, Cayey, Puerto RIco, 1972.
Norx Map follows:
SAM MAscos SALAMANDER furycea none)
Texas, Hays County; Spring Lake and Its
outflow, the San Marcos River, downstream
approximately 50 meters from the Spring
Lake Darn.
Nors: Map follows:
§ 17.95
Texas: Areas of land, water, and airspace
as follows:
(1) Bastrop County. From the junction of
a line corresponding to 30’121)0’ N. and
Texas State Highway 95 east along a line
corresponding to 30’1200” N. to where it
intersects a line corresponding to 97’7’30”
W. and south along a line corresponding to
Q’r7’30” W. to where It Intersects the Colo-
rado River, vest and northwest along the
north bank of the Colorado River to the due
southward extension of Texas State High-
way 95, and north along that extension and
Texas State Highway 95 to where it inter-
sects a line corresponding to 30’12’00 ’ N.
Nois: Map follows:
(d) Amphibians.
Gotom CoQul (Eieutherod act yltjs jasperi)
HousTol! Toan (Bufo ?ioustonensis)
210
211
-------
§ 17.95
50 CM C l i. I (10-1-92 EditIon) U.S. Fist. and Wj$ j s..,., Intorlor
(2) Barieson Coknt) A circular area with
a 1-mile radius, the center being the north
entrance to Lake Woodrow from Texas FM
2000.
Novs: Map follows:
YAqul CaTnsH (Ictalurus prtcel)
Arizona, Cochise County. All aquatic habi-
tats of San Bernardino NWR in 534 Sec. 11;
Sec. 14; 84 s and NE% Sec. 15; T248, R3OE.
Known constituent elements include clean
unpolluted permanent water In streams
with medium current with clear pools In the
Rio Yaqul drainage. These waters should be
without introduced exotic fishes.
NOTE: Map follows:
Alabama. Lauderdale County. More Spe-
cific locality data for Federal agencies ful-
filling their obligations under SectIon 7 of
the Endangered Species Act of 1973 can be
obtained from the Office of Endangered
Species. U.S. Fish and Wildlife Service.
Washington. DC 20240.
No a: No map.
BOSAX [ u Caus (G Za boraxoblus)
Oregon. Maniey County. Borax Lake and
environments associated with the outflow
from Borax Lake located within SW% Sec.
11, W34 Sec. 14. E% of the SE¼ Sec. 15. and
the 8EV. of the NE34 Sec. 15; T378; R33E.
NoTE Map follows:
CawomujI, Mowo Coupiyy
1. Hot Creek, adjacent springs and their
outflows In the vicinity of Hot Creek Hatch-
ery, and 50 feet of riparlan habitat on all
sides of the creek and springs in T38, RUE.
8W% SectIon 35.
§17
2. Owen* River. and 50 feet on both s
of the river, from Long Valley Darn dc
stream for $ stream miles In T48, R3OE.
tlons 19. 20, 21, 22. 23, 24. 25. and 30.
Nova: Map follows:
• • N
,, ,. •1
N •, fl N
I, • .,
* ‘
‘1 p
Known constituent elements Include hig
quality, cool water with adequate cover Ix
the form of rocks, undercut banks, or aquat.
Ic vegetation and a sufficient insect food
base.
&IIrDEa Caus (Hybopsj cahnf)
Tenne . Clalborne and Hancock Coun-
ties. Powell River, main channel from back.
waters of Mont. Lake upstream to the Ten-
neuee-VIrginJa State line. Clinch River,
main channel from backwaters of Non-Is
lake upstream to the Tennemee.VtrgIji
State line.
Virginia, Lee and Scott Counties. Powell
River, main channel from the Tennessee
Virginia State line upstream through Lee
County, Va, Clinch River main channel
from the Tennes.ee- Vh.giuija State line up-
stream through Scott County, Vs.
NOTE: Map follows:
ALABAMA C*vrnsw (Speoplatyrhinus
poul so ,d)
Owr s ThI Cwus (QUa bicojor snyvje,g) ______
Nov Map follow
N
(e) Fühe&
212
213
-------
U.s. P10 1, and WlIdUf $rv., lnt•rlor
§ 17.95
§ 17.95
Arizona, Santa Crus County. An area of
land and water In the Coronado National
Forest, consisting of the followlnL
1. Sycamore Creek, and a rlpsrlan zone 25
feet wide along each side of the creek, from
Yank’s Spring downstream approximatelY 5
stream miles to the International Border
with Mexico within sectIons 14. 22, 23. 27,
33, and 34, T. 238.; P.. 11 B.
2. Yank’s Spring in the 8EV. of the NW¼
of sec. 14,T. 23 S.;R. 11 B.
3. Penasco Creek, Including a riparian
zone 25 feet wide along each side of the
creek, from Its confluence with Sycamore
Creek (SW¼ of the SWV. of sec. 23, T. 23 8 .;
R. 11 B.) upstream approximatelY 1¼ mIles
to the east boundary of sec. 26, T. 23 8. P..
11 B.;
4. An unnamed tributary to Sycamore
Creek, from Its confluence with Sycamore
Creek (SWY. of the NW¼ of sec. 23, T. 238.;
P.. 11 B.) upstream approximately V. mile tO
the west boundary of the NE¼ of the 8EV.
of the NE¼ sec. 22, T. 23 8.; R. 11 B.
Nors: Map follows:
50 CM C l i. I (10-1-92 EditIon)
Known primary constituent elements In-
dude clean permanent water with pools and
Intermediate riffle areas and/or Intermit-
tent pools maintained by bedrock or by sub-
surface flow In areas shaded by canyon
walls.
Srorriiu CHUS (HybOpsia monach4z)
North Carolina. Macon and Swain Coun
ties. Uttle Tennessee River, main channel
from the backwaters of Fontana Lake up-
stream to the North Carollna.Oeorgla State
line.
Nors: Map follows:
Tennessee. Cuniberland, Fentress. and
Morgan Counties. Emory and Obed Rivers
and Clear and Daddys Creek in Morgan
County. Clear Creek In Pentress County.
Obed River upstream to U.S. Interstate
HIghway 40. Clear Creek upstream to U.S.
Interstate HIghway 40 and Daddys Creek
upstream to U.S. HIghway 127 In Comber.
land County.
Tennessee. Hawkins and Sullivan Coun-
ties. North Pork Holston, main channel up-
215
stream from junction with “uth Pork Hol-
ston River to the Tenn Irglnia State
line.
Virginia. Scott and Wasnmgwn Counties.
North Fork Holston River. main channel
from the Vlrglnla.Tennessee State line up-
stream through Scott and Washington
Counties.
Nors: Map follows:
Arizona, Cochise County. All aQuatic habi-
tats of San Bernardino NWR in 8% Sec. 11;
Sec. 14; 8% and 16EV. Sec. is; T248, R3OE.
Known constituent elements Include clean
permanent water with deep pools and inter.
mediate areas with riffles, areas of detritus
or heavily overgrown cut banks In the Rio
Yaqul drainage, and the absence of Intro-
duced exotic fishes.
NoTz Map follows:
SoxosA Cm,a (G Za ditaenta)
Yaqul Cm,s (Otla pwpureg)
Nors: Map follows:
214
1 11-i,; 0—is—s
-------
17.95
Nevada, Nye County: Each of the follow-
ing springs and outflows plus surrounding
land areas for a distance of 50 meters (164
feet) from these springs and outflows:
Bradford Springs in Section 11, T188,
R5OE. and their outflows for a distance of
300 meters (984 feet) from the springs.
Jack Rabbit Spring and its outflow flow-
ing southwest to the boundary between Sec-
tIon 24 In T188, R5OE and SectIon 19, T188,
R51E.
Big Spring and its outflow to the bounda-
ry between Section 19, T18S, R51E and Sec-
tion 24, T18S, R5OE.
NOTs: Map follows:
50 CM cii. I (10-1-92 EditIon)
ii 4itiLJ
-
a.
- :
i ’
=
Ti
-iii
, ,T *
a .
— .*i*a
.,..?
,
I..a a.
aa r .,.,,
‘E,’&•,
1 H :
H
i1-L
Known constituent elements Include
warm-water springs and their outflows and
surrounding land areas that provide vegeta-
tion for cover and habitat for insects and
other invertebrates on which the species
teeth
Dxsssr DACS (Ere nIchthjcs acius)
Nevada, Humboldt County. Thermal
springs and their outflows plus surrounding
riparian areas for a distance of 50 feet from
these springs and outflows in T4ON. R25E,
6W¼ Section 5, NWY 4 NWSI 4 Section 8. W 4
SectIon 13, W448WY, SectIon 19; T4ON,
R24E, Section 23, N548E¼ and 8 4NE% Sec-
tion 24. SE% SectIon 25, N54 Section 25. and
N’4 Section 26.
Nors: Map follows:
U.S. Fish and WIIdIIf. S.,v., Int.,1.,
Primary constituent elements of the habi-
tat are considered to be quantity, and ther-
mal and chemical quality of water in head-
pools and spring outflow streams; presence
of a stable, natural substrate supporting
food plants for the fish; and length of out-
flow streams; adequate for seasonal move-
ments in response to changes of water tem-
perature.
ASissa D*iwn (Percina anteseila)
Tennessee and Georgia: Conasauga River
from the U.S. Route 411 bridge in Polk
County, Tennesee, downstream approxi-
mately 33.5 miles through Bradley County,
Tennessee and Murray and Whitfield Coun-
ties, Georgia, to the Tibba Bridge Road
bridge (Murray County Road 109 and Whit-
field County Road 100).
Constituent elements include high quality
water, riffle areas (free of silt) composed of
sand, gravel, and cobble, which becomes
vegetated primarily with Podostemum
during the summer.
Nors: Map follows:
LR&* DA1U
camc*a. aanaT
a
1 17.9
Texas, Hays County; Spring Lake and
outflow, the San Marcos River, downsl
approximately 05 miles below Intersta
Highway 35 bridge.
.,_ C.
)
__.Li!,’!’p!!__
CSOCGIA
ASH Ma oows Sr&KLSD DAcZ (RhinWizuzys
oscWus nevadenzis)
FOUNTAIN D*arsa (Etheoatoma fonticola)
Nors: Map follows:
216
217
-------
17.95
LSOPARD DARTEr a pant henna)
Oklahoma. Mc( nd Pushinataha
)unties. Little 1. gain channel in
nataha County *.um mouth of Cloudy
reek (T. 38.; R. 20 E.; Section 3 upstream
the Pushmataha.Le Flore County line.
Lack Fork Creek In McCurtaln County
n Its junction with Little River (T. 1 8.;
20 E.; Section 22) upstream to Oklahoma
lghway 144 crossing (T. 1 8.; R. 19 E.; Sec.
12). Olover Creek. main channel in
CurtaIn County from Oklahoma High.
7 crossIng (T. 58.; R. 23 E.; Section 28)
.ream to the junction of the East Fork
West Fork of Glover Creek. East Fork
I West Fork of Glover Creek. East Fork
Olover Creek, main channel in Pushma-
County from its Junction with the
st Fork Olover Creek (T. 3 8.; R. 23 E.;
n 7) upstream to 4 aIr miles north.
rtheast of the community of Bethel (T. 2
R. 24 E.; Section 5). West Fork Glover
, main channel in McCurtain County
its junction with the East Fork Glover
upstream to the community of Bat-
(T. 2 S.; R. 23 E.; Section 7). Mountain
t Creek, main channel In McCurtain
.tnty, from mouth of Boktukola Creek (T.
3.; R. 25 E.; Section 9), 6 air miles south.
.ithwest of Smithville, upstream to the
ahoma.Arkansas State line.
.(ansas. Polk County. Mountain Fork
c, main channel from the Arkansas-
ahoma State line upstream to the corn-
ty of Mountain Fork (T. 1 8.; R. 32 W.;
on 29).
s Map follows:
_•__;_ .
“ ‘• —-
.s,.
MARYLAND DARTER (EUieostoma seliare)
iryland (Harford County): (1) Deer
c main channel from the Junction with
ow Branch thence downstream to the
ion with the Susquehanna River. (2)
ieys Run (also known as Gasheys
50 CFR Ch. I (10-1-92 EditIon)
Creek) main channels of east and west forks
from their overcrosaing by old Penn Central
Railroad (presently titled to National Rail.
road Passenger Corporation, Amtrak) south
to their confluence, thence south to the
confluence with Swan Creek.
Nois Map follows:
Constituent elements of this habitat are
considered to be quality and permanence of
streamflow in shallow areas of the streams
(riffles), and presence of unsilted rocky
crevices for shelter and production of aquat-
ic insects and snails for food.
NIANOVA DARTER (Etheostoma ntanguae)
Missouri. Big Tavern Creek, Miller
County. Big Tavern Creek and 50 feet along
each side of the creek from Highway 52 up-
stream to Highway 17.
NOTL Map follows:
U.S. Fish and WIIdlif. S.rv., Int.rlo,
Missouri. Niangua River, Dallas County.
Niangua River and 50 feet on each side of
the river from county road K upstream to 1
mile beyond county road M to the Webster
County line.
Missouri. Pomme do Terre River. Greene
County. Pomme de Terre River and 50 feet
on each side of the river from Highway 65
upstream to the Webster County line.
Missouri. Brush Creek, Cedar, and St.
Clair Counties. Brush Creek and 50 feet on
each side of the creek from 1000 feet up-
stream of county road J to the boundary of
• 17.95
Sections 34 and 35, Townahin 36 N, Range
25W.
NovE Map follows:
Missouri. Little Niangua River, Camden,
Dallas, and Hickory Counties. Little Nian-
gua River and 50 feet on each side of the
river from 1 mile below (downstream of)
Highway 54, Camden County, to county
road E, Dallas County.
Nov Map follows:
NoTs Map follows:
218
219
-------
U.S. Fish a W1IdlIf. S.,,., Int rl
mstltuent elements, for .11 areas desig.
ed as critical habitat, consist of medium.
creeks with silt-free pools and riffles
I moderately clear water draining hilly
underlain by chert and dolomite.
ranges from 8 to 46 inches In depth
gravel with scattered rubble.
S.AcIWATSS DAsm (Etlieostomg
boschung l)
ibama. Lauderdale County. All perrna.
and intermittent streams with flowing
er from December to June tributary to
fless Creek and its tributaries upstream
the junction of Burcham Creek. In-
ling Burchain Creek. excluding Threet
t and Its tributaries,
messee. Wayne County. All permanent
intermittent streams with flowing water
n December to June tributary to Cy-
and Middle Cypress Creek drainage.
vs: Maps follow.
Lawrence County. Buffalo
Its tributaries in Lawrence
Fh
* 1* 1* 5*
Texas, Hays County San Marcus River
from HIghway 12 brIdge downstream to ap-
proximately 0.5 miles below Interstate
Highway 35 brIdge.
Nova: Map follows:
miles to the Georgia State Highway 2
Bridge, Murray County. Georgia.
Constituent elements include high quality
water, pool areas with flowing water and silt
free riffles with gravel and rubble substrate.
and fast riffle areas and deeper chutes with
gravel and small rubble,
Nova: Map follows:
§ 17.95
Swo MADTOM (Notitrv.s baileyl)
Tenji .e, Monroe County. CitIco Creek,
Cherokee National Forest. Citico Creek
from the Cherokee National Forest bounda.
ry at upper Cities BrIdge on Mountain Set-
tlement Road (approximately creek mile
4.3) upstream to the confluence of Citico
Creek with Barkcamp Branch (approxi-
mately creek mIle 10.8).
Constituent elements of the critical habi-
tat include the present good water quality
In Cities Creek and run/pool areas with rel-
atively silt-free pea-size gravel substrate
containIng scattered large flat rocks for
breeding habitat. The species utIlizes palm.
size slab rocks for cover and relatively silt-
free riffle areas during other times of the
year. The area designated as critical habitat
provides the smoky madtom with all of the
necessary constItuent elements for comple-
tion of Its life cycle.
Nova: Map follows:
CosAsAucA Loorncu (Percina jenkinsfl
Tennessee and Georgia: Conasauga River
from the confluence of Halfway Branch
with the Conasauga River in Polk County,
Tennessee, downstream approximately 11
coNAsAuGA LOOPSICH
camcai. u*srrar
SAN MARCOS GAMBUSIA (Gambtjsig georgei)
220
h1
-------
U.S. Fish c Wildiff. S.rv., k.tsrlor
§ 17.95
50 CFR c l i. I (10-1-92 EditIon)
Ysu.owvns MAirroM (Noturusflavipinnis)
Tennessee. Clalborne and Hancock Coun-
ties. Powell River. main channel from back-
waters of Norris Lake upstream to the Ten.
nessee-Virginla State line.
Virginia. Lee, Scott, and Russell Counties.
Powell River. main channel from the Virgin-
is-TennCssee State line upstream through
ASH MEADOWS AISASGOSA PUPPISH
(Cyprlnodo* ,sevadensis wdonectes)
Nevada, Nyc County: Each of the follow-
ing springs and outflows plus surrounding
land areas for a distance of 50 meters (164
feet) from these springs and ouflowE
Fairbanks Spring and Its outflow to the
boundary between SectIons 9 and 10. T175.
RS OE.
Rogers Spring and its outflows to the
boundary between Sections 15 and 16. T178.
R50E .
Longstreet Spring and Its outflow to the
boundary between SectIons 15 and 22. T17S,
R S OE.
Three unnamed springs In the northwest
corner of Section 23. T178, R5OE. and each
of their outflows for a distance of 75 meters
(246 feet) from the spring.
Crystal Pool and its outflow for a distance
of 400 meters (1,312 feet) from the pool.
Bradford Springs in Section 11. T188,
R5OE. and their outflows for a distance of
300 meters (984 feet) from the springs.
Jack Rabbit Spring and its outflow flow-
ing southwest to the boundary between Sec-
tion 24. T1$8. R5OE and SectIon 19. T1BS,
R51E.
Big Spring and its outflow to the bounda-
ry between Section 19. T18S. R51E and Sec-
tion 34. TieS, RSOE.
Point of Rocks Springs and their entire
outflows within Section 7. TieS. RS1E.
Lee County. Copper C-e naln channel
from Its Junction with i River up-
stream through Scott Cot. sd upstream
In Russell County to Dickensonvifle.
N0Ts: Map follows:
CRITICAL HAPITAT ros ma Ysu.owruq
Known constituent elements Include
warm-water springs and their outflows and
17.95
Noi s: Map follows:
222
223
-------
•U• U WW WV PU UTW arv., •nv•ror
17.95
surrounding land areas that provide vegeta-
tion for cover and habitat for Insects and
other Invertebrates on which this species
feeds.
DeSERT PUnISH (Cyprtnodon macularlus)
Arlzons: Pima County. 1. QuUobaqufto
Spring, approximately 25 mIles WNW Luke-
viNe, Arizona In Organ Pipe Cactus National
Monument, In T178 R8N; and a 100-foot ii-
parian buffer zone around the spring.
Non: Map follows:
PIPE CACTUS NATIOSAL
MO$UMENT
4
QUITO3A OUITO
ANAGENENT AREA
N
m m
Ills. 5 1 W
* _ts
California: Imperial County.
1. San Felipe Creek Approximately 8%
stream miles and 100 feet on either side of
San Felipe Creek or the stream channel
commencing at the State Highway 86 bridge
crossing (approximately ¼ mile south of
Intersection of Hwy. 73 and Hwy. 86) up-
stream to the eastern boundary of Section
31, T128; R IOE Including those areas of the
stream channel In: T128; R11E Section 17,
18. and 19; T128; R1OE; Section 22, 23. 24.
26, 27, 28, 29, and 32.
2. Carrtzo Wash. Approximately 1%
stream miles and 100 feet on either side of
or the stream channel commencing at the
confluence of Carrizo Wash with San Felipe
Creek upstream to the southern boundary
of N% SectIon 33; T128; R1OE Including
those areas of the stream channel in T128;
RIOE Section 27. 28, and N% Section 33.
3. Fish Creek Wash. Approximately three-
fourths of one stream mile and 100 feet on
either side of the stream channel from the
confluence of Fish Creek Wash with San
Felipe Creek upstream to the southern
boundary of N% Section 32; Tl28: R1OE in-
cluding those areas of the stream channel in
T123; R1OE Section 29 and N¼ Section 32.
NOTs: Map follows:
Constituent elements for all four areas des-
ignated as critical habitat Include clean un-
polluted water that is relatively free of
exotic organisms, especially exotic fishes, In
small slow-moving desert streams and spring
pools with marshy backwater areas.
Laos, Sr*iwos Pumss, (Cpprtndo* bovlnu )
Texas, Pecos County. Diamond Y Spring
and Its outflow streajn, Loen Creek; from
the head of Diamond Y Spring downstream
In Leon Creek to a poInt 1 mIle northeast of
the Texas HIghway 18 crossing, approxi-
mately 10 miles north of Port Stockton.
Non: Map follows:
Arizona, Cochise County. All aquatic habi-
tats of San Bernardino NWR In 8% Sec. ii;
Sec. 14; 834 and NE% Sec. 15; T248, R3OE.
Known constituent elements Include small
permanent streams with riffles, or Intermit-
tent creeks with pools and riffles In the Rio
Yaqul drainage with clean unpolluted
water. These waters should be free of intro-
duced exotic fishes.
Can F *z Srnwza (No i pis
M EKI5TOCJ(OLA S)
(1) North Carolina. Chatham County. Ap-
proximately 4.1 river miles of the Rocky
River from North Carolina State Highway
902 BrIdge downstream to Chatham County
Road 1010 Bridge;
(2) North Carolina, Chatham and Lee
Counties. Approximately 0.5 river mile of
Bear Creek, from Chatham County Road
2156 BrIdge downstream to the Rocky
River. then downstream in the Rocky River
(approximately 4.2 river miles) to the Deep
River. then downstream In the Deep River
(approximately 2.6 river miles) to a poInt 0.3
river mile below the Moncure, North Caroli-
na, U.S. Geological Survey Gaging Station;
and
(3) North Carolina. Randolph and Moore
Counties. ApproxImately 1.5 river miles of
Pork Creek. from a poInt 0.1 river mile up-
stream of Randolph County Road 2873
Bridge downstream to the Deep River then
downstream approximately 4.1 rIver miles
of the Deep River in Randolph and Moore
Counties, North Carolina, to a point 2.5
river miles below Moore County Road 1456
Bridge.
Nois: Map follows:
BEAUTIFUL SHIMSR (Not ropia for,no.ngs)
N0Ts: Map follows:
224
225
-------
U.S. Fish and WlIdlIf. S.rv., Intarlor
§ 17.95
50 CFI cii. I (10-1-fl Edition)
Pacos SLUWTI,O8Z Smiim (Notropga slmua
1. New Mexico: De Baca and Chavez Coun-
ties. Pecos River from point t the north
boundary of NE V. Sec. 2; TiN; R26E tsp-
proxImately 10 ml. (16 km.) south of Fort
Sumner) extending downstream approxi-
mately 64 ml. (103 km.) to a point at the
south boundary SW V. Sec. 35; T58; R2$E.
Noes Map followE
2. New Mexico. Chavez and Eddy Coun-
ties. Pecos River from the west boundary
NW V. Sec. 7; T148; R27E, extending down-
stream approximately 37 mi. (80 km.) to the
NW ¼’ Sec. 18; T178; R27E (to the U.S.
highway $2 bridge near Artesia).
Constituent elements Include clean, perma-
nent water; a main river channel habitat
with sandy substrate; and a low velocity
flow.
WACCAMAW SILvxnsIDr (Menidia extensa)
§ 17.95
Norx Map follows:
226
227
-------
2 ‘ •‘
50 iR h. 1(10.1-92 Edition) U.S. Fish and WOdlif. S..v., Int.dr
North Carolina. Columbus County. Lake
Waccaniaw in lta entirety to mean high
water level, and Big Creek from Its mouth
at Lake Waccamaw upstream approximately
0.6 kilometer (0.4 mIle) to where the creek Is
crossed by County Road 1947.
Constituent elements include high quality
clear open water, with a neutral pH and
clean substrate.
Bic SPRING SPINIDACE (Lepidonseda
moliisptnis pratensis)
Nevada. Condor Canyon, Lincoln County.
Four stream miles of Meadow Vally Wash
and 50 feet on either side of the stream as It
flows through the following sections: T. 18.,
R. 68 E,, Sections 13, 23, 24, 26, 27, and 28.
Known constituent elements Include clean
permanent flowing spring-fed stream with
deep pool areas and shallow marshy areas
along the shore and the absence of exotic
fishes.
NoTz Map follows:
ArlzonL
1. Coconino County. East Clear Creek; ap-
proximately 18 miles of stream extending
from the confluence with Leonard Canyon
(NE ¼ Sec. 11 T14N R12E) upstream to the
Blue Ridge Reservoir dam (SE ¼ Sec. 33
T14N RilE), and approximately 13 miles of
stream extending from the upper end of
Blue Ridge Reservoir (east boundary SE ¼
Sec. 36 T14N R1OE upstream to Potato
Lake (NE ¼ Sec. 1 T12N R9E).
2. NavaJo County. Chevelon Creek; ap-
proximately 8 miles of stream extending
from the confluence with the Little Colora-
do River (NW% 8ec 23 T18N R17E) up-
stream to Bell Cow Canyon (8E¼ of the
8W34 Sec. ii T17N R17E).
\ ColoradO
— -...- .
0 IMILE
I —
T.
C, 1 5
, N.
0
0
1.
17
CRITICAL HABITAT N.
(Width not to scal a)
8•ll Cow
• . Cyn.
R 17
§
R3OE) upstream to the Nelson Reser,c
darn (NE¼ Sec. 29 TON R3OE),
Constituent elements, for all areas of criti-
cal habitat, include clean, permanent flow-
trig water, with pools and a fine gravel or
silt-mud substrate,
WElTS Rivn SPINEDACI (Lepidonseda
albivaflis)
Nevada, White Pine County. Each of the
following springs and outflows plus sur-
rounding land areas for a distance of 50 feet
from these springs and outflows:
Preston Big Spring and associated out-
flows within T12N. R6 IE, NE ¼ Sec. 2.
Lund Spring and associated outflows
within T11N, R62E, NE ¼ of NE ¼ of Sec. 4;
T12N, R62E, S ¼ of SE ¼ Sec. 33.
Notz Map follows:
3. Apache County. Nutrioso Creek; ap-
proximately 5 miles of stream extending
from the Apache-Sitgreaves National Forest
boundary (north boundary Sec. 5 TON
LvrrLz CoLowio Sriwrnscs (Lepidomeda
vittata)
229
-------
§ 17.95
U.S. Fish and WlIdlIf. S.rv., Int.rlor
— I ‘\
- - - -
3 a
S
32
$
33
4
34
t 3 N
T IZN
3
‘I
1$
22
4
23
3
24
II
ii
\‘
is
““
is
.
N
ft
? m !“ -
a
O
ft
25
i. -;
331
IT,2N
4IITHN
•3a
S
32
3
Nevada, Nyc County. Flag Springs and as-
sociated outflows plus surrounding land
areas for a distance of 50 feet from the
springs and outflows within the following
areas: TIN. RB2E, E ¼ of NE ¼ Sec. 32, SW
¼ of NW V. Sec. 33.
NoTs Map follows:
Known constituent elements for all areas
of critical habitat include consistently high
quality and quantity of cool springs and
their outflows, and surrounding land area
that provide vegetation for cover and habi-
50 CFR C l i. I (10-1-fl Edition)
tat for insects and other invertebrates on
which the species feeds.
HIKo WHITS Rivn 8r iwonsn (Crentchthys
bafieyf grandts)
Nevada. Lincoln County. Each of the fol-
lowing springs and outflows plus surround-
ing land areas for a distance of 50 feet from
these 8prlngs and outflows:
Riko Spring and associated outflows
within T48, R6OE, SWY . of NE¼ 8cc. 14 and
NW¼ of 8EV. Sec. 14.
Crystal Springs and associated outflows
within T58. R6OE. all of 11EV. of 8cc. 10 and
11EV. of 8EV. Sec. 10, 8WY . of NWY . Sec. 11
and NWY. of 8W¼ Sec. 11.
No’rs: Map follows:
Known constituent elements include
warmwater springs and their outflows and
surrounding land areas that provide vegeta-
tion for cover and habitat for insects and
other invertebrates on which the species
feeds.
RAiLnoaw Vaugy Sriuwarisu (CrenichUiys
nevadae)
1. Nevada, Nyc County. Duckwater area.
Big Warm Spring and its outflow pools,
streams, and marshes and a 50 foot riparlan
zone around the spring, outflow pools.
streams, and marshes In T13N, R56E. 11EV.
Sec. 31, 8EV. Sec. 31. NW¼ Sec. 32. Little
Warm Spring and its outflow pools, streams,
and marshes, and a SO-foot riparian zone
around the spring, outflow pools, streams,
and marshes in T12N, R56E, Sec. 5.
Ncirs: Map follows:
1. Nevada, Nyc County. Lockes Area.
North, Hay Corral, Big, and Reynolds
Springs and their outflow pools, streams,
and marshes, and a 50-foot riparlan zone
around the springs, outflow pools, streams,-
and marshes in T8N, R5SE, 8W¼ Sec. 11,
NW¼ Sec. 14. 8W¼ Sec. 14, 5EV. Sec. 15,
11EV. Sec. 15, 8W¼ Sec. 15.
No’rs: Map follows:
JN
‘?‘ ILL
T IN, 55E
4
I? IS
El”
21
3
2
10
.
Sprrn
22
(V
h r v,el
$io
•‘ 5- :
\
23
Iq
ags
-
24
Known constituent elements for all areas of
critical habitat of the Railroad Valley
sprlngflsh include clear, unpolluted thermal
spring waters ranging in temperature from
29 to 36 ’C in pools; flowing channels;
marshy areas with s
and mollusks.
§ 17.95
plants, insects,
Wxzz’g R ivan Spau.op isn (Crenichtjay,
baileyt baileyi)
Nevada, Lincoln County. Ash Springs and
associated outflows plus surrounding land
areas for a distance of 50 feet from the
springs and outflows within the following
areas: T68. R8OE, EV. of E44 Sec. 1 and TeS,
R61E, NW¼ of NW¼ Sec. 6.
No’rs: Map follows:
Known constituent elements include
warmwater springs and their outflows and
surrounding land areas that provide vegeta-
tion for cover and habitat or insects and
other Invertebrates on which the species
feeds.
JuNS 8ucKzH (Chasmistes itorus)
Utah, Utah County. Provo River, Sec. 5,
T1S. R2E; to Sec. 36. T68. R2E. the lower
7.8 kilometers (4.0 miles) of the main chan-
nel of the river as measured from it conflu-
ence with Utah Lake, upstream to the
Tanner Race diversion.
Not’s: Map follows:
230
231
-------
50 CM Ch. I (10-1-92 Edition) U.S. Fish and W IIdIIf. S.rv., Int.,1.,
§ 17.95
§ 17.95
Known constituent elements of the critical
habitat Include one to three feet of high
quality water constantly flowing over a
clean, unsilted gravel substrate. larval June
suckers require shallow areas with low ve-
locities connected to the main channel of
the river.
MoDoc Svcw (Catostomi s mtcrops)
California, Modoc County.
1. Turner Creek. Approximately 4.5
stream miles and 50 feet on either side of
the stream channel from the juncture of
Turner Creek with the Fit River upstream
to T42N, R$E, SectIon 30; IncludIng those
areas of the stream channel In T41N, R$E.
Sections 1 and 2; and in T42N, R$E. 8cc-
tlons 21. 27. 2$, 34, and 35.
2. WashIngton Creek. ApproxImately 4
stream miles and 50 feet on either side of
the stream channel from the juncture of
Washington Creek with Turner Creek to
T42N, R8E, Section 11; IncludIng those
areas of the stream channel In T42N. RSE,
SectIons 14, 23. 24, 25, 26, and 35. Also
Coffee Mill Gulch, a tributary of Washing-
ton Creek, for approximately 1.5 mIles and
50 feet on either side of the stream channel
from the Juncture of this tributary with
Washington Creek upstream to T42N, R$E.
Section 22. IncludIng those areas of the
stream channel in T42N, R$E. Sections 22,
23, and 26.
3. Hulbert Creek. Approximately 3.5
stream miles and 50 feet on either side of
the stream channel from the Juncture of
Hulbert Creek with Turner Creek upstream
to T42N. R$E. SectIon 31; Including those
areas of the stream channel In T42N, R8E.
SectIons 29. 30. 32. 33, 34, and 35; and Cedar
Creek, a tributary of Hulbert Creek, for ap-
proxImately 1.5 stream miles and 50 feet on
either side of the stream channel from the
Juncture of Cedar Creek with Hulbert Creek
upstream to Cedar Spring: including those
areas of the stream channel In T41N, P.8K
Section 4; and In T42N. P.8K, Section 33.
Novs: Map follows:
4. Johnson Creek. ApproxImately 4 stream
miles and 50 feet on either side of the
stream channel from the Juncture of John-
son Creek with Rush Creek upstream to
T4ON, R1OE, SectIon 6; Including those
areas of the stream channel In T4ON. R9E,
SectIons 1. 11, 12, 14. 23, and 24. Also In un-
named tributary of Johnson Creek In Rice
Flat, for approximately 1 stream mile and
50 feet on either side of the stream channel
from the Juncture of this tributary with
Johnson Creek upstream to T4ON, P.9K, Sec-
tion 10 , Including those areas of the stream
channel In T4ON. P.9K. SectIons 11 and 14.
Also In unnamed tributary of Johnson
Creek In Higgins Flat, for approximately 1
stream mile and 50 feet on either side of the
stream channel from the juncture of this
tributary with Johnson Creek upstream to
T4ON. R9E, Section 10; Including those
areas of the stream channel In T4ON. R9E,
SectIons 14 and 15.
5. Rush Creek. ApproxImately 5 stream
miles and 50 feet on either side of the
stream channel from the gauging station at
the State Route 299 crossIng upstream to
T4ON, P.10K, Section 16; IncludIng those
areas of the stream channel In T4ON. R9E,
SectIons 24, 25, 26. 35. and 36; and In T4ON.
R IOE. Sections 17. 16. and 19.
Noia Map follows:
Known constituent elements Include
Intermittent and permanent-water creeks,
and adjacent land areas that provide vegeta-
tion for cover and protection from soil ero-
sion.
WAiwn Sucnn (Catostomus warnerensjs)
Oregon: Lake County.
1. 7welvemjle Creek—ApproxImately 4
stream miles and 50 feet on either side of
the stream commencing at the confluence
of Twelvemile Creek and Twentymile Creek
and extending upstream, and including
those portions of Twelvemile Creek in T408,
R23E, Section 35; and T418. R23E, Sections
1, 2, 12, 13, 23, and 24.
2. Twentymije Creek—ApproxImately 18
stream miles and 50 feet on either side of
the stream commencing about 9 mIles up-
stream of the Junction of Twelvemile and
Twentymfie Creeks and extending to a point
about 9 mIles downstream of the junction,
and Including those portions of Twentymile
Creek In T408. R22E, Sections 25. 35, and
36; T408. P.23K. Sections 19. 20. 24. 25, 2$.
29, 30, 33, 34, 35 and 36; T408, R24E, Sec-
tIons 15, 16. 19. 20. 21. 22. 28, 29. 30; and
T418, R23E, SectIons 2 and 3.
Nors: Map follows:
3. SpiUway Canal north of Hart L zke—Ap.
proximately 2 stream miles and 50 feet on
either side of the waterway commencIng at
Its confluence with Hart Lake and extend-
ing to a point about 2 mIles downstream,
and Including those portions of the water-
way In T368. R24E, SectIons 7, 18. and 19.
4. Snyder Creek—ApproxImately 3 stream
miles and 50 feet on either side of the
stream commencing at the confluence of
Snyder Creek and Honey Creek and extend-
ing to a point about 3 mIles upstream on
Snyder Creek, and Including those portions
of Snyder Creek In T36S, R22E. SectIons 1
and 12: and T368. R23E, SectIons 7. 17, and
18.
5. Honey Creek—Approximately 16 stream
miles and 50 feet on either side of the
stream commencing at the confluence of
Honey Creek wIth Hart Lake and extending
to a point about 16 mIles upstream on
Honey Creek. and Including those portions
of Honey Creek In T368. R24E, SectIons 19.
20, 27, 28. 29. 30, 33. 34, and 35; T368 P.23K.
Sections 17, 18. 20. 21. 22, 23. 24. 26. 27, and
28; and T365, R22E, SectIons 13. 14. 22. and
23.
N0TL Map follows
232
233
-------
50 CII C l i. I (10-1-92 Edition)
LITTLI KERN GOLDEN TROUT (Salmo
aguabonlta whitef)
California, Tulare County. Little Kern
River, main channel and all streams tribu.
tary to the Little Kern River above barrier
falls located on the Little Kern River one
mile below the mouth of Trout Meadows
Creek.
Nors Map follows:
KENTUCKY C* ’z SHRIMP (Pataemongaa
ganievi)
Kentucky. Edinonson County: The Roar-
ing River passage of the Flint-Mammoth
Cave 8ystem in Mammoth Cave National
Park.
Known constituent elements include a
stream in a base level cave passage with
abundant organic material and sediments
234
U.S. Fish and Wildilt. S.rv., Intorior
consisting of coarse silt and very coarse to
very fine sand.
(I) Insects.
Dss.m GREEII GROUND Bsari. (Eaph,i ,
Viridis)
California Solano County. T.SN. R. IE.
West V. Sec. 12, southwest V. Sec. 13, south-
east 54 Sec. 14, northeast 54 Sec. 23. north-
west V. Sec. 24.
Nois Map follows:
VALLEY ELDERBERRY LONGHORN BERrLE (Des-
moceri caifor,iig,, dimorpj 5 ) Califor-
nia. Sacramento County.
(1) Sacrame, Zone. An area in the city
of Sacramento enclosed on the north by the
Route iso Freeway, on the west and south.
west by the Western Pacific railroad tracks,
and on the east by Comme Circle and its
extension southward to the railroad tracks.
Nois: Map follows:
§ 17.95
(2) AmerIcan River Parkway Zone. An
area of the American River Parkway on the
south bank of the American River, bounded
on the north by latitude 3 0373o ’N, on the
west .and southwest by Elmanto Drive from
its junction with Ambassador Drive to its
extension to latitute 3r3730”N and on the
south and east by Ambassador Drive and its
extension north to latitude 38 ’37’30 ”N
Goethe Park. and that portion of the Amer-
ican River Parkway northeast of Goethe
Park, west of the Jededith Smith Memorial
Bicycle Trail, and north to a line extended
ea tw.j-d from Palm Drive.
Nois: Map follows:
Constituent elements of all areas proposed
as critical habitat include streams 15 feet to (f g) (R rie’J]
60 feet wide with gravel-bottom shoal and (h) Crustacean&
riffle areas with intervening pools. Streams
should have clean, unpolluted flowing water
and a stable riparlan zone. The streams
should support a variety of aquatic insects,
crustaceans, and other small invertebrates
for food.
Nois Map follows:
235
-------
U.S. Fish and WUdlif. S.,v., Intarlor
§ 17.96
§ 17.95
Oregon. La.ne County T. 16 8.. R. 12 W.
Those portions of section 15 and of the
south half of sectIon 10 whIch are west of a
line parallel to. and 1500 feet west of. the
eastern section boundarIes of sections 10
and 15.
Constituent biological elements essential
to the continued existence of the Oregon
silverspot butterfly within the Critical Habi-
tat include the larval foodplsnt (Viola
aditnca), grasses and forbs in which the
larvae find shelter, the composite plants
236
50 FR Os. I (10-1 -92 EditIon)
from which the adults obtain nectar, and
the spruce woods in which the adults find
shelter.
PALo. Vnoss BLUE BUTTERVLY
(Qlaigcopsyche lygdasuis polosverdesensia)
California. Los Angeles County.
1. Agus Amarga Canyon Zone. Palo.
Verdes Estates. A square ares of land 0.4 x
0.4 kilometers located at the southeast
corner of the southernmost corporate
boundary of Paics Verde. Eatates.
2. Prank Hesse Park Zone. Rancho Palos
Verdes. An ares encolosed by Hawthorne
Boulevard, Locklenna Lane, and Verde
Drive.
3. Palos Verde. Drive Zone. Rancho Palo.
Verde.. The Swltchback area of Palo.
Verdes Drive East. bounded by a line con-
necting the two eastern curves, a line paral-
lel to and 0.3 kIlometers southwest of this
line, and the upper and lower portions of
Palo. Verdes Drive East.
Nov Map follows:
Within these Critical Habitat areas, the
known biological constituent elements es-
sential to the conservation of this species
are colonies of the larval foodplant, Astruga-
lus trichopothga leucopsis.
Asn Miasows NAUCORID (Ambrysiga
amargosus)
Nevada, Nyc County. Point of Rocks
Springs and their Immediate outflows In
SE¾ sec. 7. T188, R5 IE.
Known primary constituent elements In-
clude flowing warm water over rock and
gravel substrate.
Norv Map follows:
£42 FR 47840, Sept. 22, 1977]
EDITORIAL NOTE: For FEDERAL REGISTER ci-
tations affecting * 17.95, see the List of CFR
Sections Affected in the Finding Aids sec.
tion of this volume.
617.96 CritIcal habitat—plants.
(a) Flowering plants.
Family Asteraceae—Encejjopsu nudicau.
Us var. corrugate (Ash Meadows sunray).
Nevada. Nyc County, Ash Meadows:
SWVSSE 4 sec. 15, SW¼NE¼ and W448E¼
sec. 21. NW¼NE% sec. 22. E%48EY 4 sec. 34,
SW¼NE¼, S54NW5., SWV 4 , and W 4SEv 4
sec. 35, T17S R5OE. SE¼ sec. 20, T178,
RS1E. NW¼, 8W¼. and W 4SEY, sec. 1,
EYINE¼, SWY4NW%. NW¼SWY 4 , and
E 48E5 , sec. 2, NE¼NWY 4 S. 12, EY.SWv
and W 4SEY 4 sec. 13. T188, RSOE. SW¾SEY,
sec. 7, NWVJJEV and 8E¼8W¼ sec. 18,
T188, R5 IE.
Known primary constituent elements in-
clude dry washes or whitish saline soil asso-
ciated with outcrop, of pale whitish lime-
stone.
NOTE: Map follows:
N..II MJ IIiII _ — —
NOTE: Map foflow ,
OREGoN 8HvnsPoT BUrrERPLY (Speyerla
zerene ?&ippolyta)
NoTE: Map follows:
237
-------
§ 17.96
U.S. Fish and WIIdIlf S.rv., Int.rIor
Family Asteraceae—Grindelia fraxino-
pratenals (Ash Meadows gumplant). Califor-
nia, lnyo County, Ash Meadows: NE¼,
E%NW¼, SW%NW¼, N 5 48W¼, and
NW¼SE% sec. 30, T26N, ROE.
Nevada, Ny c County. Ash Meadows:
8E34NW¼ sec. 26, WS4SW¼NEY. and
WS4NW¼SE¼ sec. 33. WS4NW¼,
SWV.8W¼, E548E¾, and W548E¼ sec. 35,
T178, RSOE. N348W¼ sec. 1, NS4NWS4 sec.
2, NE¼NEV. and NW¼NW¼ sec. 3,
SW¼NE¼, SE¼NW¼. NE¼SW¼, and,
NW%8E¼ sec. 4; WS4NE¼ and NW%8E¼
sec. 5, NS4NE¼ sec. 7, NE¼8E¼ sec. 10,
WS4NWS4 and NW%8W¼ sec. 11, SW¼NE¼
and E448E¼ sec. 14; SWS4NW¼, 8W548E¼,
W448W¼, and 8E¼8W3(S sec. 20 northeast
of the Nevada-California boundary, ES4NE¼
and E%SE% sec. 23, WY 3 SWY. sec. 24.
NW¼NE’/, sec. 29 northeast of the Nevada-
California boundary, T188, R5OE.
SWS4NWY. and NW¼SW¼ sec. 18, T188,
R S1E.
Known primary constituent elements in-
clude saltgrass meadows along streams and
pools or drier areas with alkali clay soils.
Nois: Map follows:
50 CM C l i. I (10.1-92 Edil.n)
Family Asteraceac: Senecfo franciwanigs
(San Francisco Peaks groundsel).
Arizong. Coconino County Coconino Na-
tional Forest, Agassis Peak and Humphreys
Peak, T22N, R7E, N54 of NW% Sec. 5; T23N,
R7E, W54 SectIon 32 and W54 SectIon 29.
Primary constituent elements are the loose
cinder talus slopes of the alpine tundra
system of the San Francisco Peaks and ab-
sence of disturbance and damage from
bikers.
Non: Map follows:
Family Asclepiadaceae: Asciepta, wetthil
(Welsh’s milkweed). Utah, Kane County:
entire Coral Pink Sand Dunes, within T438,
R7W and R8W, and T445, R8W about 10
miles west of Kanab; also, the area of the
Sand Hills, about 10 miles north of Kanab,
within T428, R6W, Section 8 (854 of the N44
and N54 of the 854). The constituent ele-
ments of this critical habitat are the sand
dunes themselves.
Nois: Map follows:
§ 17.96
Family Asteraceae: Malheisr wire-lettuce
(Stephanomeria mallzeurenslM. Oregon,
Harney County; the lands west of State
Highway 205 within the SE ¼ of the NE ¼
and the NE ¼ of the SE ¼, Section 11; and
the W 54 of the SW ¼ of the NW ¼, and the
SW ¼ of the NE V 4 of the SW ¼, and the
NW ¼ of the SW ¼. Section 12. T2IS, R3OE,
Willamette Meridian.
W flAIS OO PIAU 9 OVN1S
Nors: Map follows:
238
239
-------
U.S. Fish and Wildiff. S.rv., lntrlor
§ 17.96
Boraginacese: Amsinckia grand tfiora
large-flowered tiddleneck)
California, Ban Joaquin County, Mount
iblo Meridian T38 R4Z Section 28 WV,
14 and W% 8W14.
This InClUdes the known primary constitu-
elements of a steep, west- and south-
Acing slope with light textured but stable
HoTs: Map follows:
It
/
Is,
t
Family Brassicaceae: Contra Costa Wall-
(Erysinwm capilatum var. angasta-
n). CaZtflbrnia. An area of land, water,
airspace In Contra Costa County, with
following components: T. 2 N. ft. 2 IL
V. sectIon 17, E% of 854of section 18.
50 CM CS,. I (10-1-92 Editl.n)
Burke County; the areas bounded by the
followlnL on the west by the 2200 contour,
on the east by the Unville Gorge Wilder-
ness Boundary north from the Intersection
of the 2200’ contour and the Shortoff
Mountain Trail to where It Intersects the
3400 contour at “The chlmneys”—then fol-
lowing the 3400’ contour north unth It reIn-
tersects the Wilderness Boundary—then fol-
lowing the Wilderness Boundary again
northward until It Intersects the 3300’ con-
tour extending west from It. intersection
with the Wilderness Boundary until It
begins to turn south—at this point the
Boundary extends due east until It inter-
sects the 2200 contour.
Nova: Map follows:
Family Cbenopodlaceae—NitrophiZa mo-
havensia (Amargosa niterwort). California.
Inyo County, Ash Meadows: W% aec.5, E
aec.6. NE% and ES4NWVS sec. 7. NWY. sec.
8, T25N, R6 I L
Known primary constituent elements In-
chide salt-encrusted alkaline flats,
Nova: Map follows:
Cyperaceae_ca specuicola
Arizona: Coconino County; Navajo Indian
Reservation. A 40 x 5 meter rectangular
area, with It. long axis In the direction of
seep-spring flow, around each of the follow.
Ing points: (1) LatItude 36’39’53” N, longi-
tude 11047’lS ’ W; (2) latItude 36’40’07” N,
longitude 1104755” W; and (3) latItude
3r40’la” N, longitude 1 1048’15” W. Primary
constituent elements include moist sandy to
silty soils at shady seep-springs within the
Navajo Sandstone Formation.
Hors: Map foHow
Family Ciataceae’ Mountain golden heath-
er (Hkdsonia montana) North Carolina;
\ c
Nova: Map follows:
240
241
-------
50 cM h. I (10.1-92 EditIon) U.S. Fish and WildOf. S.rv., Int.dor
17.96
A RI •flCU1COLA
oooosu.o so Y.
Family Fabaceae: Astragalus month (Heli-
otrope milk-vetch). Utah. Sanpete County.
western Heliotrope Mountain. T19S R4E.
Sec. 34. SE ¼ of SW ¼ of SE ¼ of NW ¼; S
44ofSE ¼ofSE ¼ofNW ¼;NE ¼ofNW
¼ of NE ¼ of SW ¼; NE ¼ of NE ¼ of SW
Y 4 ;E340fSE¼OINE ¼of8W%;NE¼of
NW ¼ of SE ¼ of SW ¼; S ½ of NW ¼ of
SE¼0fBW ¼;NW ¼of SE ¼ofSW ¼;N
½ of SW ¼ of SE ¼ of SW ¼; SW ¼ of SW
¼ of SE ¼ of SW ¼: W ½ of SE ¼ of NW ¼
of SE ¼;NW ¼of NW ¼ofSW ¼ofSE ¼.
The primary constituent element Is the
white limestone barrens of the Flagstaff
Formation.
Family Fabaceae—Astragglu, phoenix
(Ash Meadows milk-vetch). Nevada. Nyc
County. Ash Meadows: WY,NWy. and
8W¼8Wv 4 sec. 14. SW¼NE¼ and W½SE¼
sec. 21. NE¼SE¼ sec. 22. NW¼ sec. 26.
T178. R5OE. SW¼ and W½SEY 4 sec. 1.
NW¼NE¼ and N½NWY 4 sec. 12. 8W¼8W¼
sec. 13. W½NWY 4 sec. 24. T18S. RSOE.
8E¼5W¼ and SW¼S ¼ sec. 7. NYINW¼
and E½8Wy. sec. 18. NEY.NW% sec. 19.
T188. R51E.
Known primary constituent elements In-
clude dry, hard, white, barren, saline, clay
flats, knolls, and slopes.
Nors: Map follows:
§ 17.96
Family Gentlanaceae—Cen(aurium namo-
phUum (spring-loving centaury). Nevada.
Nyc County, Ash Meadows: SW¼NE¼.
8E¼NW¼. E½8W¼. and W¼8E¼ sec. 21;
W½NW¼ sec. 23, NW¼NE¼ and NE¼NW¼
sec. 28. SEY4SE¼ sec. 34, SWV.SWV. and
E%8W¼ sec. 35. T17S, RSOE. 8W½ sec. 1.
NE¼NW¼ and W½NW¼ sec. 2. EYINEY4
sec. 3, NE¼ sec. 7; 8E¼8E¼ sec. 23,
SE¼SW¼ sec. 24, T188, R5OE. NWY 4 SE¼
sec. 7. SVZNW¼ and 8W¼ sec. 18. NW¼ and
NE¼SE¼ sec. 19, EYSSW¼ sec. 20, N54NW¼
sec. 29, NE¼NW¼ sec. 30, T18S, R51E.
Known primary constituent elements in-
clude moist to wet clay soils along banks of
streams or in seepage areas.
Nora: Map follows:
aV*JO
I -.
I I
D I
LI
— CSTSCAL N ?*T
p
44
I.
S 0
0
4
e —. ‘
0
242
243
-------
Faintly Lamiacege Hedeoma apiciglatuni
(McKlttrlck pennyroyal) Texas, Culberson
County; 3 areas In Guadalupe Mountains
National Park: 85 acres In Devil’s Den
Canyon; 60 acres above Turtle Rock on
McKIttrtck Ridge and 180 acres In South
McKlttrlck Canyon.
1. Devil’s Den Canyon: from the 5,400’
contour on the canyon floor (1.1 km north-
west of Pratt Lodge) and along the sides of
the canyon southwestward following the
6,000 contour on the north side of the
canyon (beginning at Texas coordinates
19,893 m E., 39,169 m N.) and the 6,200’ con-
tour on the south side (beginning at Texas
coordInates 19,699 in E., 38,651 m N.) to ap-
proximately the 6,000’ elevation point of the
canyon floor.
2. Above Turtle Rock on McKlttijck
Ridge: high ridge surrounding unnamed
peak 2.65 km southwest of Pratt lodge and
located 19,073 m E, 36,439 m N. on the
Texas coordinate system. The boundaries
defined approximately by the 6.800’ contour
on the southeast, southwest, and northeast
and by the 7,400’ contour on the northwest.
The 7,400’ contour connected to the 6,800’
contour by a line paining through Texas co-
ordinates 18,699 m E.. 36,530 in N., and
18.781 m E., 36,854 in N. on the southwest
and coordInates 19.145 in L, 36,819 in N..
and 19.000 m L. 36.952 in N. on the north-
east.
3. South McKIttrIck Canyon: from the
5,400’ contour on the canyon floor (2.2 km
southwest of Pratt Lodge) and southwest-
ward along the sides of the canyon follow-
ing the 5,800’ contour on the north side of
the canyon (beginning at Texas coordinates
50 CM Ci .. I (10-1-92 Idiii.n)
20,169 in L, 36,434 in N.) and the 6,200’ con-
tour on the south side of the canyon (begin-
ning at Texas coordinates 20,289 m .,
36,121 in N.) to the 5,800’ contour of the
canyon floor.
Nows Map follows:
Family Lam1aceae. Todsens pennyroyal
(Hedeoma todseniO.
New Mexico; Sierra County; the Critical
Habitat of Hedeoma todsenji Ii best defined
by two one-square kilometer sections on the
1000 rn2 Universal Transverse Mercator
Grid. Zone 13. The more northern critical
habitat lie, between 76 and 77,000 m N and
39 and 40,000 m E. The southern area lies
between 74 and 75,000 m N arid 40 and
41.000 m £, Oypsuin limestone soils.
N0TI: Map follows:
U.S. Fish and Wudlif. S.rv,,, inOsrior
Family Loasaese—M ,, jg 5 1ez cop1iyUa
(Ash Meadows blazing star). Nevada, Nyc
County, Ash Meadows: 8W¼Swy, sec. 15,
8%NEy 4 , N548E¼, and SWY48E sec. .21,
NWy 4 NW , 85 NWy 4 , and NE¼SE% sec. 22,
NW¼SW% sec. 23. NW¼pJ sec. 28.
8E¼8W¼ and 8E¾ sec. 35, SW¼SWy 4 sec.
38, T178, R5OE. NW54NWv, 8W¼8W%,
and E4 5Wy, sec. 1, NEV4NE¼ and 8548E¼
sec. 2, Ni4NEY 4 sec. 11, NW54 sec. 12. T188,
R5 OE.
Knowri prImary constituent elements In-
dude sandy or saline clay soils along canyon
washes and near springs and seeps.
Novr Map follows:
§17.
iTr Lr
MaIvaCeae_.Ko drpnarjolde, kokro;
Hawaii, Island and County of Hawaii, Non
Kona District, three areas totaling approxf
mately 2.600 acres.
1. Ka’upu1e Ahupua’a area, bounded a
follows: from a point of origin at UnIversa’
Transverse Mercator (UTM) coordinate
925880 near or on the west boundary of the
Ka’upulehu 1800-1801 lava flow (approxi-
mately at intersection of said west boundary
and 2600 ft elevation contour); thence west
southwesterly approximately 864 ft to UTM
coordInate 914875 (also near 2600 ft eleva-
tion contour); thence north northwesterly
approxImately 1987 ft to UTM coordinate
909899 (near the 1400 ft elevation contour);
thence east northeasterly approximately
378 ft to UTM coordinate 913900 (also near
the 1400 ft elevation contour; then south
southeasterly approximately 720 ft to UTM
coordinate 918891; thence east northeaster-
ly apprOzI,nat ty 320 ft to UTM coordinate
920892 (near the said west boundary of the
1800-1801 lava flow); thence south south-
easterly approximately 1140 ft to the poInt
of origin. Included in this area Is Ka upu-
lehu Forest Reserve, Section B.
Nova Map follows:
E
244
245
-------
SU GPK C l i. I (111-1-92 tdrnon) U.s. Fish .nø VVIIdIit• .rv., Snf•noe
17
§ 17.96
2. Ka’upulehu Ahupua’a and
Pu’uwa’awa’a Ahupus’a boundary area,
Identified as follows: An unnamed kipuka
(diacontinulty) In 1800-1801 lava that strad-
dles the boundary between Kaupulehu and
Pu’uwa’awa’a Ahupua’a and also crosses
Mamalahoa Highway between 2400 and
1000 feet of elevation. Excluded Is a small
tongue of the said klpuka that extends
south of UTM coordinate 941885 at approxi-
mately 2400 ft of elevation and above. UTM
coordinate 931924 marks the low elevation
end of the said klpuka.
NoTE Map follows:
3. Pu’uwa’awa’$ Ahupua’a area Identified
as follows: Halep I’ula 3, Walmea Paddock of
Pu’uwa’awa’a Ranch, which lies south of
(upsiope) and abuts Mamalahoa Highway
Just east of the boundary between Ka’upu-
lehu and Pu’uwa’awa’a Ahupua’a. East
boundary of the 1800-1801 Kaupulehu lava
flow Is the west boundary of the paddock.
The paddock corners are near UTM coordi-
nates 948901 (NW), 985909 (NE) 913881
(SE), and 971819 (SW).
NoTs: Map follows:
Primary constituent elements of critical
habitat are appropriate soil type, climate,
protection from grazing da ”sge . protection
from aggressive exotic weeds, and presence
of suitable pollinators.
Family Onagraceae. Antloch Dunes
Evening-Primrose (Oenotheni deuoides asp.
Isoweliffl. California. An area of land, water,
and airspace In Contra Costa County with
the following components: T. 2 N. R. 2 E.
SW¼ section 17, E% of 854 of section 18.
NoTs: Map follows:
246
Family Poaceae: Carter’s panlcgrass (Pan.
icum carteri) Hawaii: City and County of
Honolulu: Entire Island of Mokolil (see
map).
Probable primary constituent elements in-
elude: Exposure to strong sunlight; low rain-
fall; exposure to sea spray: and presence of
gravelly, basalt-derived soil.
NoTE Map follows:
Family Poaceae: Texas Wild-Rice (Zi.
zania texans) Texas, Hays County; Spring
Lake and Its outflow, the San Marcos River,
downstream to its confluence with the
Blanco River.
N0Ts: Map follows:
Family Po ygonaceae. Gypsum Wild Buck-
wheat (Erlogonum gypaoplzilum) New
Mexico; Eddy County; T208, R25E, Section
19: N54, N44 NEY4 8E¼. N54 NW¼ 8E¼: and
T208, R24E, SectIon 24: N54 NE¼, N54 854
NE¼, NE¼ NW¼, NY . SEY. NWS4; gypsum
soils.
NoTE: Map follows:
Family Polygonaceae: Erlogonum peitno-
pMlum (clay-loving wild-buckwheat). Cob-
247
3ll-1WI 0—52—9
-------
17.96
50 CM Ch. I (10-1-92 Edition) U.S. Fish and Wildlife S.rv., lnt.rlo,
§ 17.96
rado, Delta County. About 3 mIles east of
&ustin near Highway 92. T148, R94W 6th
P.M. Section 26—west 225 feet of Section 26
lying south of State Highway 92 (5.6 acres).
3ection 21—that part of the SEV 4 SE¼ lying
iouth of State Highway 92 (35.6 acres). Sec.
ion 34—an area bounded by a line begin.
rung at the northeast corner of Section 34.
thence south along the section line 200 feet
o a point; thence southwesterly to a point
1050 feet south and 550 feet west of the
ruortheast corner of Section 34; thence
.athwesterly to a point 700 feet north and
feet east of center % corner of Section
I; thence westerly 900 feet to the north.
th V, line; thence northerly 600 feet
ong the ¼ line to a point; thence north-
isterly to a point of the east 4. line;
uence northerly along the 4 ’ s. line 300 feet
the north section line of Section 34;
ence easterly along the north section line
the point of beginning (65.0 aCres). Sec-
on 35—north 200 feet of the west 225 feet
1.0 acres). Section 21—west 200 feet of Sec-
on 27 lying south of State Highway 92(4.3
I. Section 28—east 400 feet of Section
I lying south of State Highway 92 (8.3
I. Total 119.8 acres. The primary con-
ituent elements Include those factors asso-
ated with the whitish alkaline clay soils
thin the sparsely vegetated badlands of
ncos shale.
Nors: Map follows:
Family Rhainnaceae: Gouania hiliebrun-
1*. Hawaii, Maui County. Maui Island. La-
iina District, two zones located as follows:
(1) Pa’upa’u Zone, Ahupua’a of Kuia. The
allowing Universal Transverse Mercator
UTM) designations form the corners of the
uadrangular Pa’upa’u habitat area
NW:0744123121
NE:0744’723122
SW:07442231 18
SE:01447231 17
NoTZ Map follows:
(2) Lihau Zone, Ahupua’a of Kula. This
zone consists of three circular areas having
radii of 0.1 mile on the western slopes of
Llhau Mountain, one centered at Pu’u Hipa
(near UTM 0746823070). one at UTM
0747723063, and the third at UTM
0147223059.
NoTs Map follows:
Primary constituent habitat elements are
considered to be climatic and edaphic fac-
tors that discourage introduced plant com-
petitors and insect pests, and freedom from
unrestricted browsing and trampling by do-
mestic or feral livestock,
Family Rosaceae—tnvesja eremica (Ash
Meadows invesia). Nevada, Nye County, Ash
Meadows: SW¼NEY . and W448E¼ sec. 21.
S 48W¼ and 8W¼3E¼ sec. 35, T178, R5OE.
SW¼ sec. 1, N54NW¼ and SW¼SW¼ sec. 2.
NE¼NE 4 ’. sec. 3. NW¼NE¼ sec. 12.
N½NE¼ and 8E¼NEi4 sec. 23, N54NW¼,
SW¼NW¼, and NW¼SW¼ sec. 24, T188,
R5OE.
Known primary constituent elements in-
clude saline seep areas of light colored clay
uplands,
Not’s Map follows:
Family Rosaceae: Robbins cinquefoil (Po-
tentllla robbinsiana). New Hampshire, Coos
County; the area is a strip of land 4,066 feet
inng and 450 feet wide with east and west
boundaries running parallel to Trail A (see
map): starting at the north junction of Trail
A and B and ending at their southern junc-
tion with two-thirds of the strip (300 ft.)
lying to the east and south of Trail A and
with one-third (150 ft.) lying to the west
and north of Trail A.
Norut: Map follows:
IN 5flVUS T .I%
.IF
raArlaLn _______
%ATM . 4I. %mL-r
______________ L
(43 FR 39043. Aug. 31, 19781
I ’ .,
248
249
-------
260.103
50 CFR Ch. 11(10-1-92 Edition)
§260.104
(a) Er e examination, segrega-
tion. j .tion, packaging, and
other p og operations applicable
to processiu products, in an efficient,
clean, and sanitary manner, and
(b) Permit easy access to all parts to
insure thorough cleaning and effective
bactericidal treatment. Insofar as is
practicable, all such equipment shall
be made of smooth impermeable cor-
rosion-resistant material that will not
adversely affect the processed product
by chemical action or physical contact.
Such equipment shall be kept in good
repair and sanitary condition. Such
equipment shall be cleaned and sani-
tized at a frequency as is necessary or
required in accordance with Good
Manufacturing Practice Regulations.
21 CFR part 128.
(36 FR 21041, Nov. 3, 19713
6260.103 Operations and operating proce-
dures shall be In accordance with an
effective sanitation program.
(a) All operators in the receiving
transporting, holdings, segregating,
preparing, processing, packaging, and
storing of processed products and in-
gredients. used as aforesaid, shall be
strictly in accord with clean and sani-
tary methods and shall be conducted
as rapidly as possible and at tempera-
tures that will inhibit and retard the
growth of bacterial and other micro-
organisms and prevent any deteriora-
tion or contamination of such proc.
eased products or ingredients thereof.
Mechanical adjustments or practices
which may cause contamination of
foods by oil, dust, paint, scale, fumes.
grinding materials, decomposed food,
filth, chemicals, or other foreign mate-
rials shall not be conducted during
any manufacturing or processing oper-
ation.
(b) All processed products, raw mate-
rials. ingredients, and components
thereof shall be subject to inspection
during each manufacturing or process-
ing operation. To assure a safe, whole-
some finished product, changes in
processing methods and procedures as
may be required by the Director shall
be effectuated as soon as practicable.
All processed products which are not
manufactured or prepared in accord-
ance with the requirements Contained
in § 260.96 to 6 260.104 or are unwhole-
some or otherwise not fit for hums
food shall be removed and segregate
prior to any further processing oper-
ation.
(c) Official establishments operating
under Federal inspection should have
an effective quality control program as
appropriate for the nature of the
products and processing operations.
(d) All ingredients used in the manu-
facture or processing of any processed
product shall be wholesome and fit for
human food.
(e) The methods and procedures em-
ployed in the receiving, segregating,
handling, transporting, and processing
of ingredients in official estab-
lishment(s) shall be adequate to result
in a satisfactory processed product.
Such methods and procedures include,
but are not iimited to, the following
requirements:
(1) Containers, utensils, pans, and
buckets used for the storage or trans-
porting of partially processed food in-
gredients shall not be nested unless
rewashed and sanitized before each
use;
(2) Containers which are used for
holding partially processed food ingre-
dients shall not be stacked in such
manner as to permit contamination of
the partially processed food ingredi-
ents;
(3) Packages or containers for proc-
essed products shall be clean when
being filled with such products; and all
reasonable precautio shall be taken
to avoid soiling or contaminating the
surface of any package or container
liner which is, or will be, in direct con-
tact with such products.
(f) Retention tags: (1) Any equip-
ment such as, but not limited to, con-
veyors, tillers, sorters, choppers, and
containers which fall to meet appro-
priate and adequate sanitation re-
quirements will be identified by the in-
spector in an appropriate and conspic-
uous manner with the word “RE-
TAINED,” Following such identifica-
tion, the equipment shall not be used
until the discrepancy has been re-
solved, the equipment reinspected and
approved by the inspector and the
‘RETAINED” identification removed
by the inspector.
(2) Lot(s) of Processed products that
may be considered to be mislabeled
and/or unwholesome by reason of con-
taminants or which may otherwise be
in such condition as to require further
evaluation or testing to determine
that the product properly labeled
and/or wholesome will be identified by
the inspector in an appropriate and
conspicuous manner with the word
‘RETAINED.” Such lot(s) of product
shall be held for reinspection or test-
ing. Final disposition of the lot(s) shall
be determined by NMFS and the re-
inoval of the “RETAINED” identifica-
tion shall be performed by the inspec-
tor.
(30 PR 21041, Nov. 3. 19111
I 260.104 Personnel.
The establishment management
shall be responsible for taking all pre-
cautions to assure the following:
(a) Disease controL No person affect-
ed by disease in a communicable form,
or while a carrier of such disease, or
while affected with boils, sores, infect-
ed wounds, or other abnormal sources
of microbiological contamination,
shall work in a food plant in any ca-
pacity in which there is a reasonable
possibility of food ingredients becom-
ing contaminated by such person, or of
disease being transmitted by such
person to other individuals.
(b) Cleanliness. All persons, while
working in direct contact with food
preparation, food ingredients, or sur-
faces coming into contact therewith
shall:
(1) Wear clean outer garments,
maintain a high degree of personal
cleanliness, and conform to hygenic
practices while on duty, to the extent
necessary to prevent contamination of
food products.
(2) Wash and sanitize their hands
thoroughly to prevent contamination
by undesirable microorganisms before
starting work, after each absence from
the work station, and at any other
time when the hands may have
become soiled or contaminated.
(3) Remove all insecure jewelry and,
when food Is being manipulated by
hand, remove from hands any jewelry
that cannot be adequately sanitized.
(4) If gloves are used in food han-
dling, maintain them in an Intact,
clean, and sanitary condition. Such
gloves shall be of an impermeable ma-
terlal except where th’ ‘age would
be inappropriate or in .tible with
the work involved.
(5) Wear hair nets, caps, masks, or
other effective hair restraints. Other
persons that may incidentally enter
the processing areas shall comply with
this requirement.
(6) Not store clothing or other per-
sonal belongings, eat food, drink bev-
erages, chew gum, or use tobacco in
any form In areas where food or food
ingredients are exposed or in areas
used for washing equipment or uten-
sils.
(‘I) Take any other necessary precau-
tions to prevent contamination of
foods with microorganisms or foreign
substances including, but not limited
to perspiration, hair, cosmetics, tobac-
co, chemicals, and medicants.
(C) Education and training. Person-
nel responsible for identifying sanita-
tion failures or food contamination
should have a background of educa-
tion or experience, or a combination
thereof, to provide a level of compe-
tency necessary for production of
clean wholesome food. Food handlers
and supervisors should receive appro-
priate training in proper food-han-
dling techniques and food-protection
principles and should be cognizant of
the danger of poor personal hygiene
and unsanitary practices, and other
vectors of contamination.
(36 FR 21041. Nov. 3. 1911)
§5260,200—260.201 Ikeservedi
PART 261—UNITED STATES STAND-
ARDS FOR GRADES OF WHOLE OR
DRESSED FISH
Subpart A—UaItsd Stat.. Standards for
Grad.s of Whots or Dross.d Fish
Sec.
281.10 1 Scope and product descrIption.
281.102 Product forms.
281.103 Grades-—quality factors.
281.104 DetermInation of grade.
28 1.105 Hygiene.
St p . .$ B—Unl?sd Stat.. Standards F.. Grad..
of F,ozsn N..dl..s Dr.ss.d Whiling
281.151 Description of the product.
I
National Marino FIsh.rl.s S.rvlco/NOAA, Comni.rc•
LABELING REQUIREMENTS
250
251
-------
Notional Marine Fisheries S.rvic./NOAA, Comrnerc
§226.11
the Director as provided in Federal
Managerr nt Circular 74-7.
Cc) nts of funds. including
paymer.. such preliminary costs and
expenses as may be incurred in con-
nection with projects, shall not be
made unless all documents that may
be necessary or required in the admin.
istraUon of the Act shall have first
been submitted to and approved by
the Director. Payments shall be made
for expenditures reported and certi-
fied by the State agency. Payments
shall be made only to the State office
or official designated by the State
agency and authorized under the laws
of the State to receive public funds for
the State.
Cd) Vouchers and forms provided by
the Director and certified as therein
prescribed, showing amounts expend-
ed and the amount of Federal Aid
funds claimed to be due on account
thereof, shall be submitted to the Di-
rector by the State agency.
(41 FR 24354. June 16, 1976, as amended at
49 FR 30074. July 26, 1984]
§ 225.10 Assurances.
A State shall certify that It will
comply with all applicable Federal
laws, regulations, and requirements as
they relate to the application, accept-
ance, and use of Federal funds for
projects under the Act in accordance
with Federal Management Circular
74-7.
§ 225.11 SubmIssion of documents.
Documents required by section 6 of
the Act or by these regulations shall
be addressed to the Director, National
Marine Fisheries Service, Washington,
DC 20235.
0225.12 Project evaluation.
Any difference of opinion about a
proposed project or appraised value of
land to be acquired or any other relat-
ed matter will be considered by quali-
fied representatives of the Director
and the State. Final determination in
the event of continued disagreement
rests with the Director.
0225.13 Contracts.
The State may use its own regula-
tions in obtaining services provided
r .n. 11(10-1-92 Edltie )
they adhere to Federal laws and the
requirements set forth in Federa’
Management Circular 74-7. The State
is the responsible authority Without
recourse to the Director regarding set..
tlernent of contractual issues.
§225.14 InspectIon.
Supervision of each project by the
State shall include adequate and conS
tinuous inspection. The project will be
subject to periodic Federal inspection.
PART 226—DESIGNATED CRITICAL
HABITAT
Subpart A—Introduction
Sec.
226.1 Purpose of regulations.
226.2 Scope of regulations.
Subpart I— ’C,itlcat Habitat for Maria.
Mammals
226.11 Northwestern Hawaiian Islands.
Subpart C—(R...rv.dJ
Subpaii D—CritIcol Habitat for Marts. Ispt u.s
226.71 Sandy Point, St. Croix, U.S. Virgin
Islands.
Aumo,ury 16 U.S.C. 1533.
Souscz 44 PR 17711, Mar. 23. 1979. unlem
otherwise noted.
unnarv —IflTrOOUCUOfl
02261 Purpose of regulations.
The regulations contained in this
part Identify those habitats designated
as critical under section 7 of the En-
dangered Species Act, as amended, by
the Assistant Administrator for Fish-
eries, National Oceanic and Atmos-
pheric Administration, for those en-
dangered and threatened species
under the jurisdiction of the Secretary
of Commerce. The list of these species
is found in 50 CFR 222.23(a) for en-
dangered species and 50 CFR 2714 for
threatened species.
§ 226.2 Scope of regulations.
(a) The critical habitat designations
contained in this part apply only to
the endangered and threatened spe-
cies Usted in this part.
(b) Regulations implementing sec-
tion 7 of the Endangered Species Act.
as amended, are found in 50 CFR’ part
402.
Cc) The provisions In this part are in
,.ddltlon to, and not in lieu of other
regulations of parts 217 through 227
and 402 of this chapter.
Subpart B—Critical Habitat for
Marine Mammals
5126.11 Northwestern Hawaiian Islands.
HAWAUAN MonK Sass.
(MonaChUs sehaulnzlandi)
All beach areas, sand spits and islets.
including all beach crest vegetation to
its deepest extent Inland, lagoon
‘,and ocean
-20 fathoms
Kure Atoll (28’24’N. 17820’W)
Midway Islands. except Sand Island and Its
harbor (28’14’ N, 177’22’ W)
Pearl and Rennes Reef (2’1’55’ N. 115’ W)
LlsianskI Island (2646’ N, 173’58 W)
Laysan Island (25’46’ N. 171’44’ W)
Maro Reef (25’25’ N, 170’35’ W)
Gardner Pinnacles (25 ’0O’ N, 168’0 W)
French Frigate Shoals (23’45’ N, 166’OO W)
Necker Island (23’34’ N, 164’42’ W)
Nihoa Island (23’03 5’ N, 161’SS.S W).
waters, inner reef wr
waters out to a dept
around the foflowIn .
94
95
-------
§226.11
50 CFR cii. II (10-1-92 Edition) Nitlonal Marine Fisheries S.Mc./NOAA, Comm.rcs
§226.11
N
‘ (I
28°c
0 I 2 3
I I I
NouliCol miles
urr w
(trom NOS chort 19480
MIDWAY ISLANDS
KURE ATOLL
96
97
-------
11(101-92 EdItion)
N
2Ofm
25°4o’ N.
i?I°4o W
LAYSAN ISLAND 9O22)
4e’
0
• fin
Nout nWss
20m
2T°
6°W _______ 25°5ó’N
I74 ’ooW ______
PEARL and HERMES REEF LISIANSKI ISLAND (f m NOS chorl 9022)
99
98
-------
National m l hirils
iisrci
‘ S.
ide w
fathoms
( ‘,
‘S.
I0
!ri N MARO REEF.
CNS
10 ’
25N
w
• f L ..j
rncm. u
)°• I70 W
20 fathoms
NECKER ISLAND
GARDNER PINNACLES
(from NOS chart 194211
100
101
-------
50. CFR Ch. 11(10-1-92 EdItI ) National Mann. Flsh.nI.s S.rvlc ./NOAA, Comm.rc.
•226.
0123
& I I I
Noutscol mdss
20’
23°50’ N
4O’
16° ‘ow
(from US. F.W.S.)
FRENCH FRIGATE SHOALS
(53 FR 18990. May 26. 19881
NIHOA ISLAND
§ 226.11
(from 1 10$ cliort 19016)
102
103
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3
-------
§424.19
50 CFR C li. IV (10-1-92 EditIon) Joint R.gulotions on Endanger.d Sp.ci.s
§ 450.01
proposed rule, and the Secretary
issues a final rule that Is in conflict
with such comments, or if the Secre-
tary tails to adopt a regulation for
which a State agency has made a peti-
tion in accordance with 424.14. the
Secretary shall provide such agency
with a written justification for the
failure to adopt a rule consistent with
the agency’s comments or petition.
§ 424.19 FInal rules—impact analysis of
critical habitat.
The Secretary shall identify any gig-
nit icant activities that would either
affect an area considered for designa-
tion as critical habitat or be likely to
be affected by the designation, and
shall, after proposing designation of
such an area, consider the probable
economic and other impacts of the
designation upon proposed or ongoing
activities. The Secretary may exclude
any portion of such an area from the
critical habitat if the benefits of such
exclusion outweigh the benefits of
specifying the area as part of the criti-
cal habitat. The Secretary shall not
exclude any such area if, based on the
best scientific and commercial data
available, he determines that the fail-
ure to designate that area as critical
habitat will result in the extinction of
the species concerned.
6424.20 Emergency rules.
(a) Sections 424.16, 424.17, 424.18.
and 424.19 notwithstanding, the Secre-
tary may at any time Issue a regula-
tion implementing any action de-
scribed in § 424.10 in regard to any
emergency posing a significant risk to
the well-being of a species of fish,
wildlife, or plant. Such rules shall, at
the discretion .of the Secretary, take
effect immediately on publication in
the FEDERAL REGISTER. In the case of
any such action that applies to a resi-
dent species, the Secretary shall give
actual notice of such regulation to the
State agency in each State in which
such species is believed to occur. Publi-
cation in the FEDERAL REGISTER of
such an emergency rule sball provide
detailed reasons why the rule is neces-
sary. An emergency rule shall cease to
have force and effect after 240 days
unless the procedures described in
H 424.16, 424.17. 424.18; and 424.19 (as
appropriate) have been complied with
during that period.
(b) If at any time after issuing an
emergency rule, the Secretary deter-
mines, on the basis of the best scientif-
ic and commercial data available, that
substantial evidence does not then
exist to warrant such rule, it shall be
withdrawn.
§ 424.21 PerIodic review.
At least once every 5 years, the Sec-
retary shall conduct a review of each
listed species to determine whether it
should be delisted or reclassified. Each
such determination shall be made in
accordance with H 424.11, 424.16, and
424.17 of this part, as appropriate. A
notice announcing those species under
active review will be published in the
FEDERAL REGISTER. Notwithstanding
this section’s provisions, the Secretary
may review the status of any specIes at
any time based upon a petition (see
§ 424.14) or upon other data available
to the Service.
PART 450—GENERAL PROVISIONS
AUTHORITY: Endangered Species Act of
1973, 16 U.S.C. 1531, et seq., as amended.
§450.01 DefinItions
The following definitiqns apply to
terms used in this subchapter.
Act means the Endangered Species
Act of 1973, as amended. 16 U.S.C.
1531. et seq.
Agency action means all actions of
any kind authorized, funded or carried
out, in whole or in part by Federal
agencies, Including, in the instance of
an application for a permit or license,
the underlying activity for which the
permit or license Is sought.
Alterna Live courses of action means
all reasonable and prudent alterna-
tives. including both no action and al-
ternatives extending beyond original
project objectives and .dting agency
jurisidiction.
Benefits means all benefits of an
agency action, both tangible and in-
tangible. including but not limited to
economic, environmental and cultural
benefits.
Biological assessment means the
report prepared pursuant to section
7(c) of the Act, 16 U.S.C. 1536(c).
Biological opinion means the writ-
ten statement prepared pursuant to
section 7(b) of the Act. 16 U.S.C.
1536(b).
Chairman means the Chairman of
the Endangered Species Committee,
who is the Secretary of the Interior.
Committee means the Endangered
Species Committee established pursu-
ant to section 7(e) of the Act, 16 U.S.C.
1536(e).
Critical habitat refers to those areas
listed as Critical Habitat in 50 CFR
parts 17 and 226.
Destruction or adverse modification
is defined at 50 CFR 402.02.
Federal agency means any depart.
ment, agency or instrumentality of the
United States
Irreversible or irretrievable commit-
ment of resources means any commit-
ment of resources which has the effect
of foreclosing the formulation or im-
plementation of any reasonable or
prudent alternatives which would not
violate section 7(a)(2) of the Act.
Jeopardize the continued existence
of is defined at 50 CFR 402.02.
Mitigation and enhancement meas-
ures means measures, including live
propagation, tranplantation, and habi-
tat acquisition and improvement, nec-
essary and appropriate (a) to minimize
the adverse effects of a proposed
action on listed species or their critical
habitats and/or (b) to improve the
conservation status of the species
beyond that which would occur with-
out the action. The measures must be
likely to protect the listed species or
the critical habitat, and be reasonable
in their cost, the availability of the
technology required to make them ef-
fective, and other considerations
deemed relevant by the Committee.
Permit or license applicant means
any person whose application to an
agency for a permit or license has
been denied primarily because of the
application of section 7(a)(2) of the
Act, 16 U.S.C. 1536(a)(2).
Person means an individual, corpora-
tion, partnership, trust, association, or
any other private entity, or any public
body or officer, employee, agent, de-
partment. or instrumentality of the
Federal government, of any State or
political subdivision thereof, or of any
foreign government.
Proposed action means the action
proposed by the Federal agency or by
a permit or license applicant, for
which exemption is sought.
Secretary means the Secretary of
the Interior or the Secretary of Com-
merce, or his or her delegate, depend-
ing upon which Secretary has respon-
sibility for the affected species as de-
termined pursuant to 50 CFR 402.01.
Service means the United States
Fish and Wildlife Service or the Na-
tional Marine Fisheries Service, as ap-
propriate.
To the extent that such infonnatzon
is available to the applicant means all
SUBCHAPTER B— [ RESERVED]
SUBCHAPTER C—ENDANGERED SPECIES EXEMPTION PROCESS
498
499
-------
§451.01
50 CFR Ch. IV (10-1-92 EditIon) Joint t.gulotlons on Endang.r.d Specie.
§ 451.02
pertinent information the applicant
has on the subject matter at the time
the application Is submitted, and all
other pertinent information obtain-
able from the appropriate Federal
agency pursuant to a Freedom of In-
formation Act request.
(50 FR 8126, Feb. 28. 1985)
PART 451—APPLICATION
PROCEDURE
Sec.
451.01 Definitions.
451.02 ApplicaUons for exemptions.
451.03 Endangered Species Committee.
Auyxoaivy: Endangered Species Act of
1913, 16 U.S.C. 1531 et seq.. as amended.
Souacz 50 FR 8127. Feb. 28. 1985. unless
otherwise noted.
§ 451.01 Deflnitions.
All definitions contained In 50 CFR
450.01 are applicable to this part.
§ 451.02 Applications for exemptions.
(a) Scope. This section prescribes the
application procedures for applying
for an exemption from the require.
ments of section 7(a)(2) of the Endan-
gered Species Act, as amended.
(b) Where to appl #. Applications
should be made to the appropriate
Secretary( ies) by writing:
(1) The Secretary, Attention: Endan-
gered Species Committee, Department
of the Interior, 18th and C Street,
NW.. Washington, DC 20240.
(2) The Secretary. Department of
Commerce. 14th Street and Constitu-
tion Avenue NW.. Washington, DC
20030.
(C) Who may apply. (1) A Federal
agency, (2) the Governor of the State
In which an agency action will occur, if
any, or (3) a permit or license appli-
cant may apply to the Secretary for an
exemption for an agency action if,
after consultation under section
7(a)(2) of the Act, the Secretary’s
opinion Indicates that the agency
action would violate section ‘l(a)(2) of
the Act.
(d) When to apply. (1) Except in the
case of agency action involving a
permit or license application, an appli-
cation for an e’ flion must. be sub-
mitt,ed to the S ary within 90 days
following the termination of the con-
sultation process.
(2) In the case of agency action in-
volving a permit or license application,
an application for an exemption may
be submitted after the Federal agency
concerned formally denies the permit
or license. An applicant denied a
permit or license may not simulta.
neously seek administrative review
within the permitting or licensing
agency and apply for an exemption. If
administrative review is sought, an ap-
plication for an exemption may be
submitted if that review results In a
formal denial of the permit or license,
For an exemption application to be
considered, it must be submitted
within 90 days after the date of a
formal denial of a permit or license.
(e) Contents of the application when
submitted. Exemption applicants must
provide the following information at
the time the application Is submitted.
(1) Name, mailing address, and
phone number, including the name
and telephone number of an individual
to be contacted regarding the applica-
tion.
(2) If the applicant is a Federal
agency:
(i) A comprehensive description of
the proposed agency action and if a li-
cense or permit denial is involved, a
comprehensive description of the li-
cense or permit applicant’s proposed
action.
(Ii) In the case of a denial of a li-
cense or permit, a description of the
permit or license sought, Including a
statement of who in the Federal
agency denied the permit or license,
the grounds for the denial, and a copy
of the permit or license denial.
(iii) A description of all permit(s),
license(s) or other legal requirements
which have been satisfied or obtained.
or which must still be satisfied or ob-
tained. before the proposed action can
proceed.
(iv) A description of the consultation
process carried put pursuant to section
‘1(a) of the Act.
Cv) A copy of the biological assess-
ment, if one was prepared.
(vi) A copy of the biological opinion.
(vii) A description of each alterna-
tive to the proposed action considered
by the Federal agency, by the licens-
ing or permitting agency, and by the
permit or license applicant, to the
extent known.
(viii) A statement describing why the
proposed agency action cannot be al-
tered or modified to avoid violating
section 7(a)(2) of the Act.
(ix) A description of resources com-
mitted by the Federal agency, or the
permit or license applicant, if any, to
the proposed action subsequent to the
initiation of consultation.
(3) If the applicant is a permit or li-
cense applicant other than a Federal
agency:
(I) A comprehensive description of
the applicant’s proposed action.
(Ii) A description of the permit or li-
cense sought from the Federal agency,
including a statement of who in that
agency denied the permit or license
- and the grounds for the denial.
(iii) A description of all permit(s),
license(s) or other legal requirements
which have been satisfied or obtained,
or which must still be satisfied or ob-
tamed, before it can proceed with the
proposed action.
(iv) A copy of the permit or license
denial.
(v) A copy of the biological assess-
ment, If one was prepared.
(vi) A copy of the biological opinion.
(vii) A description of the consulta-
tion process carried out pursuant to
section lLa) of the Act, to the extent
that such information Is available to
the applicant.
(viii) A description of each alterna-
tive to the proposed action considered
by the applicant, and to the extent
that such information Is available to
the applicant, a description of each al-
ternative to the proposed action con-
sidered by the Federal agency.
(ix) A statement describing why the
applicant’s proposed action cannot be
altered or modified to avoid violating
section 7(a)(2) of the Act.
(x) A description of resources com-
mitted to the proposed action by the
permit or license applicant subsequent
to the initiation of consultation.
( ) If the applicant is the Governor
of a State in which the proposed
agency action may occur:
(I) A comprehensive description of
the proposed agency action and if a Ii-
ense or permit denial is involved, a
comprehensive description of the li-
cense or permit applicant’s proposed
action.
(Ii) A description of the permit or li-
cense, if any, sought from the Federal
agency, including a statement of who
In that agency denied the permit or li-
cense and the grounds for the denial,
to the extent that such information is
available to the Governor.
(iii) A description of all permit(s),
license(s) or other legal requirements
which have been satisfied or obtained,
or which must still be satisfied or ob-
tained before the agency can proceed
with the proposed action, to the
extent that such information is avail-
able to the Governor.
(Iv) A copy of the biological assess-
ment, if one was prepared.
(vI A copy of the biological opinion.
(vi) A description of the consultation
process carried out pursuant to section
7(a) of the Act, to the extent that
such Information is available to the
Governor.
(vii) A description of all alternatives
considered by the Federal agency, by
the licensing or permitting agency,
and by the permit or license applicant,
to the extent that such Information is
available to the Governor.
(viii) A statement describing why the
proposed agency action cannot be al-
tered or modified to avoid violating
section 7(a)(2) of the Act.
(ix) A description of resources com-
mitted to the proposed action subse-
quent to the Initiation of consultation,
to the extent that such information is
available to the Governor.
(5) Each applicant, whether a Feder-
al agency, a permit or license appli.
cant, or a Governor, must also submit
the following:
(i) A complete statement of the
nature and the extent of the benefits
of the proposed action.
(ii) A complete discussion of why the
benefits of the proposed action clearly
outweigh the benefits of each consid-
ered alternative course of action.
(iii) A complete discussion of why
none of the considered alternatives are
reasonable and prudent.
(iv) A complete statement explaining
why the proposed anti” Is in the
public interest.
500
501
-------
§451.03
Cv) A complete explanation of why
the action is of regional or national
algnthcance.
Cvi) A complete discussion of mitiga-
tion and enhancement measures pro-
posed to be undertaken if an exernp-
tion is granted.
(6) When the exemption applicant is
a license or permit applicant or a Gov-
ernor, a copy of the application shall
be provided by the exemption appli-
cant at the time the application is
filed to the Federal agency which
denied the license or permit.
(f) Review 0/the application by the
Secretary. (1) Upon receiving the ap-
plication, the Secretary shall review
the contents thereof and consider
whether the application complies with
the requirements set forth in para-
graphs (C). (d) and (e) of this section.
(2) The Secretary shall reject an ap-
plication withIn 10 days of receiving it
if he determines that it does not
comply with paragraphs (C), (d) and
(e) of this section. If the Secretary re-
jects an application because it does riot
contain the Information required by
paragraph (e) ‘of this section. the ap-
plicant may resubmit a revised appli-
cation so long as the applicant does so
during the 90 day period specified in
paragraph Cd) of this section.
(3) If the Secretary finds that the
application meets the requirements of
paragraphs Cc), (d), and Ce) of this sec-
tion. he will consider the application
In accordance with part 452.
(g) Notification of the Secretary of
State. The Secretary will promptly
transmit to the Secretary of State a
copy of all applications submitted in
accordance with 451.02.
(h) Public notification. Upon receipt
of an application for exemption, the
Secretary shall promptly publish a
notice in the FEDERAL Rscisrmt (1) an-
nouncing that. an application has been
filed. (2) stating the applicant’s name,
(3) briefly describing the proposed
agency action and the result of the
consultation process, (4) summarizing
the information contained in the ap-
plication. (5) designating the place
where copies of the application can be
obtained and (6) specifying Lhe name
of the person to contact for further in-
formation The Secretary will prompt-
ly notify each member of the Commit-
50 CFR Ch. IV (10-1-92 EditIon)
tee upon receipt of an application for
exemption.
(i) The information collectiap re-
quirements contained in part 451 do
not require approval by the Office of
Management and Budget under 44
U.s.c. 3501 ci seq., because it is antici-
pated there will be fewer than ten re-
spondents annually.
§ 45103 Endangered Species Committee,
(a) Scope. This section contains pro-
visions governing the relationship be-
tween the Secretary and the Endan-
gered Species Committee.
(b) Appointment of State member.
(1) Upon receipt of an application for
exemption, the Secretary shall
promptly notify the Governors of each
affected State, if any, as determined
by the Secretary, and request the Gov-
ernors to recommend individuals to be
appointed to the Endangered Species
Committee for consideration of the
application. Written recommendations
of these Governors must be received
by the Secretary within 10 days of re-
ceipt of notification. The Secretary
will transmit the Governors’ recom-
mendations to the President and will
request that the President appoint a
State resident to the Endangered Spe-
cies Committee from each affected
State within 30 days after the applica-
tion for exemption was submitted.
(2) When no State is affected, the
Secretary will submit to the President
a list of individuals with expertise rele-
vant to the application and will re-
quest the President to appoint, within
30 days after the application for ex-
emption was submitted, an individual
to the Endangered Species Committee.
PART 452—CONSIDERATION OF
APPUCATION BY THE SECRETARY
Sec.
452.01
452.02
452.03
tions
452 04 Secretary’s report
452 05 Hearings
45206 Parties and int ,ervenors
45207 SeparatiQn of functions and ex porte
communications
45208 Submission of Secretary’s report
45209 Consolidated and joint proceedings.
.i R.gui.tI.ns on Endang.r.d Sp.ci.s
AUTHORITY: Endangered Species Act of
1913. 16 U.S.C. 1531. cC seq., as amended.
5ouac 50 FR 8129, Feb. 28, 1985. unless
otherwise noted.
§ 452.01 Purpose and scope.
ThIS part prescribes the procedures
to be used by the Secretary when ex-
ainining applications for exemption
from section 7(a)(2) of the Endan-
gered Species Act.
§ 452.02 Definitions.
Definitions applicable to this part
are contained in 50 CFR 450.01.
• 452.03 Threshold review and determina-
dons.
(a) Threshold deter,nlnation3
Within 20 days after receiving an’ ex-
emption application, or’ a longer time
agreed upon between the exemption
applicant and the Secretary, the Sec-
retary shall conclude his review and
determine:
(1) Whether any required biological
assessment was conducted;
(2) To the extent determinable
within the time period provided.
whether the Federal agency and
permit or license app’licant, if any,
have refrained from making any irre-
versible or irretrievable commitment
of resources; and
(3) Whether the Federal agency and
permit or license applicant, if any,
have carried out consultation responsi-
bilities in good faith and have marie a
reasonable and responsible effort to
develop and fairly consider modifica-
tions or reasonable and prudent alter-
natives to the proposed action which
would not violate section 7(a)(2) of the
Act.
(b) Burden of proof. The exemption
applicant has the burden of proving
that the requirements of * 452.03(a)
have been met.
(C) Negative finding. If the Secre-
tary makes a negative finding on any
threshold determination, the Secre-
tary shall deny the application and
notify the exemption applicant in
writing of his finding and grounds
Lherefor. The exemption process shall
Lerminate when the applicant receives
such written notice. The Secretary’s
denial shall constitute final agency
action for purposes of judicial review
,S2.04
under chapter 7 of title 5 of the
United States Code.
(d) Positive finding. If the Secretary
makes a positive finding on each of
the threshold determinations, he shall
notify the exemption applicant in
writing that the application qualifies
for consideration by the Endangered
Species Committee.
Ce) Secretary of Slate opinion. The.
Secretary shall terminate the exemp-
tion process immediately if the Secre-
tary of State, pursuant to his obliga-
tions under section 7(i) of the Act, cer-
tifies in writing to the Committee that
granting an exemption and carrying
out the proposed action would violate
an international treaty obligation or
other International obligation of the
United States.
§ 452.04 Secretary’s report.
(a) Contents of the report. If the Sec-
retary has made a positive finding on
each of the threshold determinations,
he shall proceed to gather information
and prepare a report for the Endan-
gered Species Committee:
(1) Discussing the availability of rea-
sonable and prudent alternatives to
the proposed action;
(2) Discussing the nature and extent
of the benefits of the proposed action:
(3) Discussing the nature and extent
of the benefits of alternative courses
of action consistent with conserving
the species or the critical habitat;
(4) Summarizing the evidence con-
cerning whether the proposed action
Is of national or regional significance;
(5) Summarizing the evidence con-
cerning whether the proposed action
is in the public interest;
(6) Discussing appropriate and rea-
sonable mitigation and enhancement
measures which should be considered
by the Committee in granting an ex-
emption; and
(7) Discussing whether the Federal
agency and permit or license appli-
cant. if any, have refrained from
making any irreversible or irretriev-
able commitment of resources.
(b) Preparation of the report. The
report shall be prepared in accordance
with procedures set . out in § 452.05 and
§ 452.09.
Purpose and scope.
Definitions.
Threshold review, and deLermIna
502
503
-------
§ 452.05
4452.05 HearIngs.
(a) Hearings. (1) To develop the
record for the report under 4 452.04,
the Secretary, In consultation with the
members of the Committee, shall hold
a hearing in accordance with 5 U.S.C.
554, 555, and 556.
(2) The Secretary shall designate an
Administrative Law Judge to conduct
the hearing. The Secretary shall
assign technical staff to assist the Ad.
mlnlstrative Law Judge.
(3) When the Secretary designates
the Administrative Law Judge, the
Secretary may establish time periods
for conducting the hearing and closing
the record.
(4) The Secretary may require the
applicant to submit further discus-
sions of the information required by
4 451.02(e)(5). This information will be
made part of the record.
(b) Prehearlng conferences. (1) The
Administrative Law Judge may. on his
own motion or the motion of a party
or intervenor, hold a prehearing con-
ference to consider
Ci) The possibility of obtaining stipu-
lations. admissions of fact or law and
agreement to the introduction of docu-
ments;
(ii) The limitation of the number of
witnesses;
(iii) Questions of law which may
bear upon the course of the hearings;
(iv) Prehearing motions, including
motions for discovery; and
Cv) Any other matter which may aid
in the disposition of the proceedings.
(2) If time permits and if necessary
to materially clarity the issues raised
at the prehearing conference, the Ad-
ministrative Law Judge shall issue a
statement of the actions taken at the
conference and the agreements made.
Such statement shall control the sub-
sequent course of the hearing unless
modified for good cause by a subse-
quent statement.
(C) Notice of hearings. Hearings and
prehearing conferences will be an-
nounced by a notice in the FEDERAL
RSGIsTER stating: (1) The time, place
and nature of the hearing or prehear-
ing conference; and (2) the matters of
fact and law to be considered. Such
notices will ordinarily be published at
least 15 days before the scheduled
hearings.
50 CFR Ch. IV (10-1-92 EditIon)
Cd) Conduct qf heañngs.—(1) Admis.
sib filly of evidence. Relevant, ma .
al, and reliable evidence shall be ad-
mitted. Immaterial, irrelevant, unreli-
able, or unduly repetitious parts of an
admissible document may be segrega .
ed and excluded so far as practicable.
(2) Motions, objections, rebuttal and
crosa-aramination. Motions and objec-
tions may be filed with the Adminis-
trative Law Judge, rebuttal evidence
may be submitted, and cross-examina.
tion may be conducted, as required for
a full and true disclosure of the facts,
by parties, witnesses under subpoena,
and their respective counsel.
(I) Objections. Objections to evi-
dence shall be timely, and the party
making them may be required to state
briefly the grounds relied upon.
UI) Offers of proof. When an objec-
tion is sustained, the examining party
may make a specific offer of proof and
the Administrative Law Judge may re-
ceive the evidence in full. Such evi.
dence, adequately marked for identif I.
cation, shall be retained in the record
for consideration by any reviewing au-
thority.
Ciii) Motions, Motions and petitions
shall state the relief sought, the basis
for relief and the authority relied
upon. If made before or after the
hearing itself, these matters shall be
in writing and shall be filed and served
on all parties. If made at the hearing,
they may be stated and responded to
orally, but the Administrative Law
Judge may require that they be re-
duced to writing. Oral argument on
motions and deadlines by which to file
responses to written motions will be at
the discretion of the Administrative
Law Judge.
Ce) Applicant responsibility. In pro-
ceedings conducted pursuant to this
section, the exemption applicant has
the burden of going forward with evi-
dence concerning the criteria for ex-
emption.
Ct) Open meetings and record, All
hearings and all hearing records shall
be open to the public.
(g) Requests for information, subpoe-
nas. (1) The Administrative Law Judge
is authorized to exercise the authority
of the Committee to request, subject
to the Privacy Act of 1974. that any
person provide Information necessary
Joint R.gulatlons on Endong.r.d Sp.d.s
to enable the Committee to carry out
its duties. Any Federal agency or the
exemption applicant shall furnish
such tnforjnation to the Administra-
tive Law Judge. (2) The Administra-
tive Law Judge-may exercise the au-
thority of the Committee to Issue sub-
poenas for the attendance and testi-
mony of witnesses and the production
of relevant papers, books. ana docu-
ments.
(h) Information collection. The In-
formation collection requirements con-
tained in 4452.05 do not require ap-
proval by the Office of Management
gAd Budget under 44 U.S.C 3501 et
seq., because it is anticipated there will
be fewer than ten respondents annual-
ly.
O 452.06 Parties and intervenors.
(a) Parties. The parties shah consist
of the exemption applicant: the Feder-
al agency responsible for the agency
action in question, the Service, and in-
tervenors whose motions to intervene
have been granted.
(b) Intervenors. (1) The Administra-
tive Law Judge shall provide an oppor-
tunity for intervention in the hearing.
A motion to intervene must state the
petitioner’s name and address, identify
its representative, if any, set forth the
interest of the petitioner in the pro-
ceeding and show that the petitioner’s
participation would assist in the deter-
mination of the issues in question.
(2) The Administrative Law Judge
shall grant leave to intervene if he de-
termines that an intervenor’s partici-
pation would contribute to the fair de-
termination of issues. In making this
determination, the Administrative
Law Judge may consider whether an
intervenor represents a point of view
not adequately represented by a party
or another Intervenor.
§ 452.07 Separation of functions and ex
paris communicatioit s.
(a) Separation offunctions. (1) The
Administrative Law Judge and the
technical staff shall not be responsible
for or subject to the supervision or di-
rection of any person who participated
in the endangered species consultation
at issue;
(2) The Secretary shall not allow an
p --qcy employee or agent who partici-
§ 452.09
pated in the endangered species con-
sultation at issue or a factually related
matter to participate or advise in a de-
termination under this part except as
a witness or counsel in public proceed-
ings.
Cb) L x parts communications. The
provisions of 5 U.S.C. 557(d) apply to
the hearing and the preparation of
the report.
§ 452.08 Submission of Secretary’s report.
Ca) Upon closing of the record, the
Administrative Law Judge shall certify
the record and transmit it to the Sec-
retary for preparation of the Secre-
tary’s report which shall be based on
the record. The Secretary may direct
the Administrative Law Judge to
reopen the record and obtain addition-
al information if he determines that
such action is necessary.
(b) The Secretary shall submit his
report and the record of the hearing
to the Committee within 140 days
after making his threshold determina-
tions under § 452.03(a) or within such
other period of time as is mutually
agreeable to the applicant and the
Secretary.
§ 452.09 Consolidated and joint proceed-
ings.
(a) When the Secretary is consider-
ing two or more related exemption ap-
plications, the Secretary may consider
them jointly and prepare a joint
report If doing so would expedite or
simplify consideration of the issues.
(b) When the Secretaries of the In-
terior and Commerce are considering
two or more related exemption appli-
cations, they may consider them joint-
ly and prepare a joint report if doing
so would expedite or simplify consider-
ation of the issues.
PART 453—ENDANGERED SPECIES
COMMITTEE
Sec.
453.01 Purpose.
453.02 Definitions.
453.03 Committee review and final deter-
minatlons.
453.04 CommIttee information gathering.
453 05 Committee meetings.
453.06 Additional committee powers.
504
505
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§453.01
50 CFR C l i. IV (10-1-92 Edition)
AumOnzTy Endangered Species Act of
1913. 16 U.S.C. 1531, ci seq.. as amended.
Souucs 50 FR 8130. Feb. 28. 1986. unless
otherwise noted.
0453.01 Purpose.
This part prescribes the procedures
to be used by the Endangered Species
Committee when examining applica-
tions for exemption from section
7(a)(2) of the Endangered Species Act
of 1973. as amended.
§453.02 DefinitIons.
Definitions applicable to this part
are contained In 50 CFR 450.01.
O 453.03 Committee review end final deter-
minations.
(a) Final determinations. Within 30
days of receiving the Secretary’s
report and record, the Committee
shall grant an exemption from the re-
quirements of section 7(a)(2) of the
Act for an agency action if, by a vote
in which at least five of its members
concur:
(1) It determines that based on the
report to the Secretary, the record of
the hearing held under 0 452.05. and
on such other testimony or evidence as
it may receive:
(I) There are no reasonable and pru-
dent alternatives to the proposed
action;
(ii) The benefits of such action clear-
ly outweigh the benefits of alternative
courses of action consistent with con-
serving the species or its critical habi-
tat, and such action is in the public in-
terest;
(iii) The action is of regional or na-
tional significance; and
(iv) Neither the Federal agency con-
cerned nor the exemption applicant
made any irreversible or irretrievable
commitment of resources prohibited
by section 7(d) of the Act; and,
(2) It establishes such reasonable
mitigation and enhancement meas-
ures, including, but not limited to, live
propagation, transplantation, and
habitat acquisition and improvement.
as are necessary and appropriate to
minimize the adverse elfects of the
proposed action upon the endangered
species, threatened species, or critical
habitat concerned. Any required miti-
gation and enhancement measures
shall be carried out and paid for by
the exemption applicant.
(b) Decision and order. The Commit-
tee’s final determinations shall be doc-
umented in a written decision. If the
Committee determines that an exemp-
tion should be granted, the Committee
shall issue an order granting the ex-
emption and specifying required miti-
gation and enhancement measures.
The Committee shall publish its deci-
sion and order in the Fanmt u. Rnois-
i mi as soon as practicable.
(c) Permanent exemptions. Under
section 7(h)(2) of the Act, an exemp-
tion granted by the Committee shall
constitute a permanent exemption
with respect to all endangered or
threatened species for the purposes of
completing such agency action—
(1) Regardless of whether the spe-
cies was identified In the biological as-
sessment, and
(2) Only if a biological assessment
has been conducted under section 7(c)
of the Act with respect to such agency
action. Notwithstanding the foregoing,
an exemption shall not be permanent
if—
(I) The Secretary finds, based on the
best scientific and commercial data
available, that such exemption would
result in the extinction of a species
that was not the subject of consulta-
tion under section 7(a)2) of the Act or
was not identif led in any biological as-
sessment conducted under section 1(c)
of the Act, and
(ii) The Committee determines
within 60 days after the date of the
Secretary’s finding that the exemp-
tion should not be permanent.
If the Secretary makes a finding that
the exemption would result 0 in the ex-
tinction of a species, as specified
above, the Committee shall meet with
respect to the matter within 30 days
after the date of the finding. During
the 60 day period following the Secre-
tary’s determination, the holder of the
exemption shall refrain from any
action which would result in extinc-
tion of the species.
(d) Finding by the Secretary of De-
fense. If the Secretary of Defense
finds in writing that an exemption [ or
the agency action is necessary for rea-
sons of national security, the Commit-
.it Isgulatlons on Endang.r.d Sp.d.s
tee shall grant the exemption notwith-
standing any other provision in this
part.
§453.04 CommIttee information gather.
ing.
(a) Written submissions. When the
Chairman or four Committee members
decide that written submissions are
necessary to enable the Committee to
make its final determinations, the
Chairman shall publish a notice in the
FEDERAL Rzoisitn inviting written sub-
missions from interested persons. The
notice shall include: (1) The address to
which such submissions are to be sent;
(2) the deadline for such submissions;
and (3) a statement of the type of in-
formation needed.
(b) Public hearing. (1) When the
Chairman or four Committee members
decide that oral presentations are nec-
essary to enable the Committee to
make its final determinations, a public
hearing shall be held.
(2) The public hearing shall be con-
ducted by (I) the Committee or (ii) a
member of the Committee or other
person, designated by the Chairman or
by four members of the Committee.
(3) Notice. The Chairman shall pub-
lish In the nsnAt REGISTER a general
notice of a public hearing, stating the
time, place and nature of the public
hearing. -
(4) Procedure. The public hearing
shall be open to the public and con-
ducted in an informal manner. All In-
formation relevant to the Committee’s
final determinations shall be admissi
ble, subject to the imposition of rea-
sonable time limitations on ‘oral testi-
mony.
(5) TmnscripL Public hearings will
be recorded verbatim and a transcript
thereof will be available for public in-
spection.
§ 453.05 CommIttee meetings
(a) The committee shall meet at the
call of the Chairman or five of its
members.
453.06
(b) Five members of the Committee
or their representatives shall consti-
tute a quorum for the transaction of
any function of the Committee, except
that in no case shall any representa-
tive be considered In determining the
existence of a quorum for the transac-
tion of a Committee function which
involves a vote by the Committee on
the Committee’s final determinations.
(c) Only members of the Committee
may cast votes. In no case shall any
representative cast a vote on behalf of
a member.
(d) Committee members appointed
from the affected States shall collec-
tively have one vote. They shall deter-
mine among themselves how it will be
cast.
(e) All meetings and records of the
Committee shall be open to the public.
(f) The Chairman shall publish a
notice of all Committee meetings In
the FEDERAL REGISTER. The notice will
ordinarily be published at least 15
days prior to the meeting.
045306 Additional committee powers.
(a) Secure information. Subject to
the Privacy Act, the Committee may
secure information directly from any
Federal agency when necessary to
enable it to carry out Its duties.
(b) Subpoenas. For the purpose of
obtaining information necessary for
the consideration of an application for
an exemption, the Committee may
Issue subp9enas for the attendance
and testimony of witnesses and the
production of relevant papers, books,
and documents.
(c) Rules and orders. The Committee
may issue and amend such rules and
orders as are necessary to carry out Its
duties.
(d) Delegate authority. The Commit-
tee may delegate its authority under
paragraphs (a) and (b) of this section
to any member.
506
507
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END J4G(RID SPECIES ACT - SECTION 7 CONSULTATION
ED E R.A L
ACTION
I
yes
NA.) OR
CONSTRUCT ION
A CT I V IT Y
yes
Cs
(enf
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EPA ENDANGERED SPECIES ACT LITIGATION
The following summarizes the status of Endangered Species
Act (ESA) litigation involving EPA as of 1/6/94. There is one
ESA claim against EPA in federal court and there are six notices
of intent to file suit against EPA under section 11 of the ESA,
16 U.S.C. § 1540.
ACTIVE COURT CASES:
1. The Bays’ Legal Fund, et al. v. Browner. et al . (1st Cir.).
Issue: Whether the district court properly denied a motion for a
preliminary injunction to stop construction of the ocean outfall
tunnel for the Boston Harbor clean-up project due to the alleged
failure of EPA and the Army Corps of Engineers to comply with the
ESA, the National Environmental Policy Act, and the Marine Mammal
Protection Act.
Status: Awaiting decision.
2. Wilson v. Formosa Plastics. et al . (S.D.Tex.).
Issues: Whether EPA complied with the ESA and NEPA during its
consideration of an application for a new source NPDES permit.
Status: Motions to dismiss and for summary judgment pending.
(EPA may file a motion to dismiss the ESA claims on grounds of
mootness since it has completed consultation with both the Fish
and Wildlife Service and the National Marine Fisheries Service
pursuant to section 7(a)(2) of the ESA).
Note: Similar claims are the subject of a related case pending
before EPA’S Environmental Appeals Board. EPA’s brief is due on
1—21—94.
CITIZEN SUIT NOTICES:
1. Notice of Suit Re: EPA Approval of New Jersey’s Assumption
of the Clean Water Act (CWA) 404 Program (Environmental
Defense Fund, 10/93).
Issue: Whether EPA violated the ESA by not initiating formal
consultation with the Fish and Wildlife Service in considering
New Jersey’s application for the CWA § 404 program.
2. Notice of Suit Re: EPA NPDES Permit Re-issuance to the City
of San Marcos Sewage Treatment Plant (Joe Gaddy, Jeff
Stefanoff, and Joseph Ptak (three separate notices), 11/92).
Issues: Whether EPA complied with the ESA and CWA in re-issuing
an NPDES permit to the City of San Marcos, Texas.
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2
3 Not!oe3ai Suit Re: EPA Approval of Arizona Water Qua ] it
Standards (Arizona Center for Law in the Public Interest,
a/92)
Issue3 Whet ’er EPA complied’idth the ESA und the CWA in
approving Arizona1#& water quality an L rds. -
•M 1 t-
4. Nct&ca c Süit’P EPb’s Fai pre to 4O4fc
Permit (Hick y H lls I a em any. i., 7/92),
Issuer ichei ber EPmp wjtti, the ESA in faLLing to veto a
permit under § 4Q44C (o..f thej WA .
‘5.. Not1C .u C 4 Born eMJ i’9wer AdmiMstratjon (B J
Q çJ jQn (Nor -’ st r4 a 4pD
‘ 2 :•’ .-.• •• -
Issues: TheI noti e fo U 4J the- Nationa a’zine 1 i h tie;
Sex vice’s (N1 F )’ o ance w h tb SA. EPA ppears to. e
incl ed be aua tè. .e... i ts of PDES-permitteC d scharges w*r
not ’donsideaed in a- N4F b iôlc j opi -’ibn c BPA. op . tions.
6. Notice of Suit- p j ions 3 he Trir ity/Shasta
pivsions of th Qentrai.V i ey ri c2j.Q t ,( acra1nento Pi ,er
Council, flj., l2/91 .) . . -
,t.t
Issues: The notice focuse Q tI e
compliance with the 6 . .- P ap 2ars ’t -Be1nclud’- d because oi
allegations invol ing state w ter qu iity standards,
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List of Attachments to Briefing Paper
TAB A - EPA Memoranda relating to the Agency’s Endangered
Species Initiative
TAB B — The Federal Endangered Species Act (ESA)
TAB C — Selected Court Cases Interpreting the ESA
TAB D - Threats to Biological Diversity in the United States ,
U.S. Environmental Protection Agency, September 1990
TAB E - Statement of Administrator Browner before the Committee
on Merchant Marine Fisheries, U.S. Rouse of
Representatives, April 1, 1993
TAB F - Regulations relating to the Listing of Species of the
U.S. Fish and Wildlife Service and the National Marine
- Fisheries Service (“Service”)
TAB G - Regulations relating to the Consultation Requirements
of Section 7 of the Act, and Related Preamble
TAB H — Listings of Endangered and Threatened Species
TAB I - Current Critical Habitat Designations
TAB J - Regulations relating to the Section 7 Exemption Process
TAB K - Chart of Section 7 Consultation Process
TAB L - List of Current EPA Endangered Species Act Litigation
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