Lessons learned (or not): U.S. Endangered Species Act Section 7 and native fish conservation

Authors: Douglas K. Duncan

Year: 2014 (xlvi)

Abstract

Implementation of the U.S. Endangered Species Act (Act) can be highly convoluted, bureaucratic, and times seems at cross purposes. Section 7 of the Act is the epitomy of that. There are two major sub-sections of Section 7. Section 7(a)(1) restates the purposes of the Act, which are that all federal agencies must use their authorities to recover listed species. Section 7(a)(2) requires federal agencies to &lsquoconsult&lsquo with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service (depending on the species), when an agency action may affect a listed species. An agency action could include actions on federal land, a federal permit, or federal funding. The purpose of 7(a)(2) is to insure that federal actions do not jeopardize the continued existence of a listed species, do not adversely modify or destroy designated critical habitat, and allow for the take of individuals of listed species. The regulatory construct implementing 7(a)2) basically allows the status of a species to be negatively affected, contrary to the intent of the act. Some wags in the U.S. Fish and Wildlife Service refer to Section 7 consultation as &lsquojeopardy by a thousand paper cuts&lsquo. Significant &rdquoconservation&rdquo is not mandated under 7(a)(2) until a proposed project is determined to cause jeopardy or adverse modification or destruction of critical habitat. Such determinations are, thankfully, exceeding rare. However, as discussed in Sally Stefferuds&lsquo paper at the Desert Fishes Council in 2001, species conservation can be achieved in Section 7 consultation. Achieving conservation through Section 7 consultation largely depends on the conservation ethic of the consulting agency and their biologist, and the workload, dedication, and negotiation skills of the U.S. Fish and Wildlife Service biologist. I will present examples of consultations that did, and did not promote recovery, and the reasons why.

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