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Breathing New Life Into the ESA: The Pacific Northwest's Endangered Species Act Experiment in Devolution

January 2001

Citation: 31 ELR 10102

Issue: 1

Author: Valerie Ann Lee and Jaelith Hall-Rivera

The Endangered Species Act (ESA or Act)2 has been in Congress' gun sights for a number of years. The regulated community has decried the impossibility of balancing strong economic development with species protection. Local governments have been hit with lawsuits and held liable under the ESA for "take" in connection with traditional permitting decisions. In this atmosphere, few gave the ESA very long to live. However, developments in the Pacific Northwest bring to mind Mark Twain's pithy comment: "The reports of my death are greatly exaggerated."

There is a revolution in ESA implementation that is designed to breathe new life into the Act. With the collaboration of state and local governments in California, Idaho, Oregon, and Washington, the federal government is using a provision of the ESA known as § 4(d).3 Section 4(d) allows the Secretary (of the U.S. Department of the Interior (DOI) or Commerce) to relax the normal prohibitions on "take" usually applied to threatened species, provided the regulations issued continue to "conserve the species."4 Though it has been used in the past, this is one of the few times it has been employed in such a broad manner.5 If the process is successful in the Pacific Northwest, it may change the way the federal government implements the ESA in other geographic areas. Has the federal government found a way to revive an ailing statutory patient and make the ESA more streamlined and effective in encouraging sustainable development? This Dialogue will explore these issues, focusing specifically on the National Marine Fisheries Service (NMFS) § 4(d) rule6 and its implementation primarily in the Pacific Northwest.

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