Back to the Drawing Board: A Proposal for Adopting a Listed Species Reporting System under the Endangered Species Act

Abstract

We cannot solve the problems that we have created with the same thinking that created them. --Albert Einstein PROLOGUE INTRODUCTION I. THE PROPOSED REPORTING SYSTEM: ITS STRUCTURE AND PURPOSE A. The Structure of the Proposed ESA Reporting System 1. The Reporting Requirement 2. The Reporting Mechanism 3. Integrating the Reporting Requirement and the Reporting Mechanism B. Why Establish a Listed Species Reporting System Under the ESA? 1. The Proposed Reporting System Can Help Address Biological Complexity a. TVA v. Hill: The Mother of All ESA Discoveries b. The Dilemma of Biological Complexity 2. A Reporting System Can Bring Success to the ESA II. THE EVOLUTION OF SPECIES CONSERVATION UNDER THE ESA A. The Origin of the Endangered Species Act B. Revamping the Roots: Transformation of the ESA III. THE FRAMEWORK FOR SUCCESS AN OVERVIEW OF MANDATORY ESA PROVISIONS THAT COULD BENEFIT FROM A REPORTING SYSTEM A. Section 4 and the Benefits of a Reporting System 1. Species Listing Determinations 2. Listing Reclassifications and Delistings a. Potential Benefits to Recovery Determinations b. Benefits to Extinction Determinations. 3. Critical Habitat Designations 4. Section 4 Species Recovery Plans B. Section 7 and the Benefits of a Reporting System 1. Informal Consultation, Biological Assessments, and the Benefits of a Reporting System 2. Formal Consultations, Biological Opinions, and the Benefits of a Reporting System a. Correcting Formal Consultation's Procedural Problems b. Correcting Problems with the Implementation of Formal Consultation C. Section 9 and the Benefits of a Reporting System 1. Prohibited Acts Under Section 9 2. The Benefits of a Reporting System to Section 9's Provisions 3. A Reporting System's Benefits to the Taking Prohibition IV. AUTHORIZATIONS FOR ADOPTING A REPORTING SYSTEM UNDER THE ESA A. Conservation Under the ESA B. Instituting a Reporting System Under the Conservation Mandate in Section 7(a)(1) C. Instituting a Reporting System Under State Cooperative Agreements 1. Partnerships for Cooperation and Conservation Under Section 6 and the Authorization of a Reporting System 2. The Constitution Does Not Bar Institution of a Reporting System at the State Level CONCLUSION PROLOGUE Certain experiences in life leave us with a lasting impression. For me, one of those experiences occurred during the summer of 2001. At the time, I was employed as a wetlands ecologist in the greater Washington, DC area and, until that day, took great pride in my work. It all began one particularly hot July afternoon while I was delineating a complicated wetland on a large, forested patch of land in Loudoun County, Virginia. As I stumbled my way up a deeply incised swale strewn with bowling-ball-sized chunks of limestone draped in thick blankets of sphagnum moss, the vicious attacks of a deer fly caused me to lose track of my pace count. I plunged my soil probe into the sandy muck between my feet and wrestled with a smudged blue-lined map in hopes of pinpointing my location. My right hand throbbed from the constant pounding of swinging a cheap machete all day, and my vision had clouded over with a woodsman's concoction of gummy spider webs, overly curious gnats, and my own stale perspiration. Yet, when I glanced toward the ground to pick up my probe, the intermittent agony of working outside in Northern Virginia's summer heat evaporated into the sultry afternoon air. …