March 01, 2016

Is the Endangered Species Act an endangered statute? Drought stressors on species protection

Sandi Snodgrass and Tom Jensen

The U.S. Supreme Court has remarked that the “the language, history, and structure” of the Endangered Species Act (ESA) “indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities.” Tennessee Valley Authority v. Hill, 437 U.S. 153, 174 (1978). The prolonged western drought is calling into question whether federal legislators will continue to grant imperiled species the highest priority. A recent California-focused bill passed by the U.S. House of Representatives shows that some in Congress believe that at-risk species conservation is a lower priority than agriculture and other economic interests. A California-focused bill introduced in the Senate directs agencies to maximize water supplies, but only to the extent consistent with the ESA. The Senate bill also funds water storage and other structural changes to augment water supplies for human needs and to benefit ESA-listed fish. Both bills appear to be framed to require agencies to avoid extinction of endangered species. However, neither bill appears written to foster recovery of endangered fish species, including those that are already near extinction.

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