Legal Developments

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by Larry MacDonnell


Endangered Species

The Endangered Species Act of 1973 arguably is the strongest environmental protection law ever enacted. To achieve its stated purpose of conserving plant and animal species in danger of extinction and the ecosytems on which they depend, the ESA precludes federal agencies from taking any action that might jeopardize protected species or their critical habitat and prohibits any person from harming or killing a protected wildlife species. Significant habitat disruption that harms an endangered species may be prohibited. (See related story on Preble’s meadow jumping mouse, page .)

Interest in conserving important habitat on private lands has led to expanded use of habitat conservation plans. Development activities that might run afoul of the ESA can obtain a permit to go forward, based on implementing an approved plan. Under the “no surprises” policy, compliance with the plan assures the developer that no additional protection requirements will be imposed. Similar agreements, called “candidate conservation agreements,” can be made for development affecting habitat of species likely to be protected under the ESA at some time in the iuture.

Property owners voluntarily taking steps to help conserve protected species can obtain a “safe harbor agreement” allowing future development without penalty for their enhancements. S.1180, a bill by Senator Kempthorne reauthorizing the ESA, would codify these administrative efforts to make the ESA more workable on private lands as well as making other changes.

In Bennett v. Spear, the U.S. Supreme Court held in March 1997 that the provisions of the ESA authorizing citizen suits applied to a group of plaintiffs opposing federal agency application of the statute. Traditionally, such citizen suit provisions have been used to force agency action to implement environmental laws — not to oppose their implementation.

 


Wetlands

In December 1996, the Corps of Engineers narrowed use of nationwide permits for wetlands. Nationwide permits authorize activities regarded as having minimal effect on wetlands to occur without Corps review. The most significant change involved activities authorized under Nationwide Wetland Permit 26 which had allowed alteration of up to 10 acres of wetlands provided that (1) the wetlands were either isolated or located above headwaters, and (2) state water quality srandards were met. Now this nationwide permit applies only to alterations of up to three acres, requires preconstruction notification of alterations of more than 1/3 acres (previously, one acre). and precludes its use for proj ects affecting more than 500 linear feet along a streambed. Moreover, this modified nationwide permit will permanently expire in December 1998, requiring that such alterations receive individual permits thereafter.

Meanwhile, a COE/EPA regulation governing removal of material from a wetland (as opposed to depositing materials in a wetland) has been held invalid by a federal district court in Washinton, D.C. Section 404 of the Clean Water Act requires anyone discharging dredged or fill material into a wetland to get a permit from the COE. In 199)3, COE defined discharge of dredged material to include “incidental fallback”–soil disturbed in the act of excavation. This decision is on appeal.