1. Introduction to the Clean Water Act And Water Quality Regulation
ESA Section 4 Refresher
Introduction to the Clean Water Act
And Water Quality Regulation
Tracy Hester
Environmental Law
Fall 2012
November 8, 2012
Tracy Hester
Environmental Law
Fall 2018
Nov. 12, 2018

2. Three engines of ESA
Listing of species as endangered or threatened and designation of critical habitat – Section 4
Consultation and “no jeopardy” requirement for federal action – Section 7
Prohibition on “taking” – Section 9

3. “Species” – “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”

4. Section 4 – key concepts
4(a) – requires Secretary to determine if species is endangered or threatened, and its critical habitat
Listing of species based on “best scientific and commercial data available”; critical habitat can take economic impact into account
Secretary required to develop and implement recovery plans unless they “will not promote conservation of the species”

5. Section 4 - complications
“threatened” vs “endangered”
“in danger of extinction throughout all or a significant portion of its range”
“threatened” – “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range”
SPR – current, not historical; list all of species, even if only endangered in significant portion of range

6. Section 4 - complications
Candidate Conservation Agreements
TVA v Hill
Section 4d rules
Critical habitat: include land that could be used, but isn’t currently? (Weyerhauser)
Proposed revisions – no categorical section 4d rules in future; “species-by-species”

7. Species Triage?
Competing species for limited natural resources and food supplies
Limited scientific and financial assets available to save all species
Ethics based arguments to limit extraordinary efforts to save species

8. Lazarus Project

9. Resurrection of extinct species
Gastric brooding frog extinct in the wild in 1980s
Genetically unique – only known species with this type of brooding
Successfully cloned in 2013