Almost 30 years of amendments, and the labors of a generation of Members of Congress and congressional staff have, for the most part, managed to enhance rather than diminish the original vision of the ESA. That vision was driven by a concern over the loss of some of the country's most notable species.

In 1973, there were 109 species listed as endangered under the precursors to the current ESA. The bald eagle, brown pelican, and peregrine falcon were all in danger of extinction from eggshell thinning caused by pesticides, particularly DDT. The American alligator was threatened by overexploitation for its hide and loss of habitat. The continued existence of wolves and grizzly bears in the 48 conterminous states was in doubt as a result of programs to protect livestock and the expansion of development into wilderness areas. House of Representatives ESA sponsor John Dingell would declare that the "existing laws are sound, as far as they go, but later events have shown that they do not go far enough."

In its explanation and justification of the ESA legislation, the House Merchant Marine and Fisheries Committee found, "From all evidence available to us, it appears that the pace of disappearance of species is accelerating." An Interior Department Assistant Secretary told the Committee, "The truth in this is apparent when one realizes that half of the recorded extinctions of mammals over the past 2,000 years have occurred in the most recent 50-year period."

Much of what was said and written about the need for the ESA in 1973 expressed concern over the risk that might lie in extinction. The House Merchant Marine and Fisheries Committee wrote:

"As we homogenize the habitats in which these plants and animals evolved, and as we increase the pressure for products that they are in a position to supply (usually unwillingly) we threaten their . and our own . genetic heritage. The value of this genetic heritage is, quite literally, incalculable. "From the most narrow possible point of view, it is in the best interests of mankind to minimize the losses of genetic variations. The reason is simple: they are potential resources. They are keys to puzzles which we cannot solve, and may provide answers to questions which we have not yet learned to ask."

As the Senate considered passage of its own ESA legislation, a much younger Senator Pete Domenici of New Mexico declared, "man has been the culprit in bringing certain species to the point of extinction; it would be a double indictment against humanity to ignore the present situation and allow the destruction of our resource of wildlife to continue."

Noting "sheer self-interest impels us to be cautious," Congress, with unusual foresight, constructed a law that had at its heart "the institutionalization of that caution." It is likely one of the earliest legislative expressions of what is now referred to as the "precautionary principle." This principle essentially states that precautionary actions should be taken to address human and environmental threats even if it is not possible to demonstrate scientifically any link between cause and effect.

It may surprise many that the rationale and language used to articulate the need for passage of the ESA 30 years ago is nearly the same as that used today to argue for its continued strength. Perhaps all that has changed is that there are more examples on which to draw of species facing extinction (more than ten times as many) and of specific benefits that may be foreclosed to humans by the impending loss of this genetic material.

A Simple Law of Far-Reaching Proportions
The ESA that emerged in 1973 is relatively short and sweet, as federal laws go, and it has remained that way. Other stalwart environmental laws, such as the Clean Water Act and Clean Air Act, are more than five times as lengthy. But the simplicity of the ESA has proven visionary and far-reaching.

The Act establishes a broad goal and expansive definitions of what it protects. It then sets up a process to determine whether an animal or plant species is either in danger of becoming extinct (endangered) or likely to become endangered (threatened). Those species found to be threatened or endangered are added to the list of species that are protected under the ESA. Once a species is listed, two key types of protection follow: it is illegal for anyone to kill or harm an individual animal or plant of a listed species, and all federal agencies are required to ensure that they don't fund or do anything that would be likely to put the continued existence of a listed species in jeopardy or adversely modify habitat critical to that species.

The broad purpose for the ESA has proven to be far ahead of its time by focusing not just on the conservation of all endangered and threatened plant and animal species, but more importantly on the conservation of "the ecosystems upon which they depend." As our knowledge of ecological systems has expanded, so has our understanding and appreciation of the wisdom in this purpose.

The broad purpose of the ESA is given meaning by the scope of the Act's provisions. The species that were made eligible for listing, for example, include any member of the plant or animal kingdom, except insects that are pests and pose an "overwhelming and overriding risk" to humans. The 1,262 currently listed species range from the Oregon silverspot butterfly, fat pocketbook clam and California red-legged frog to the coho salmon, whooping crane and blue whale. Only bacteria and viruses need not apply.

The original drafters of the ESA broadened the law's scope even further by expanding the traditional taxonomic definition of species to include, "any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish and wildlife that interbreeds when mature." In deciding to provide for listing of subspecies and geographically-discrete fish and wildlife populations, Congress chose to protect animals that are in trouble in part of their range, but healthy in other areas. In particular, they chose to require protection of bald eagles, wolves and grizzly bears in the lower 48 states even though there were, and still are, healthy populations of these species in Alaska. Perhaps they did so because, as the conservationist Aldo Leopold said, "Relegating grizzlies to Alaska is like relegating happiness to heaven; one may never get there."

Soon after the passage of the current Endangered Species Act in 1973, Congress was embroiled over the controversy involving the Tellico Dam and the snail darter, a three-inch fish that was stopping completion of the dam. (The only fish story, some wag noted, where the size of the fish kept getting smaller.) During the debates, many in Congress made the argument that when they voted for passage of the 1973 Act, they had intended to protect animals such as the bald eagle and the grey wolf, but they certainly would have never voted to protect such an insignificant species as the snail darter.

However, since the snail darter controversy, Congress has had multiple opportunities to limit the coverage of the Act to what biologists have termed "charismatic megafauna" (large, attractive animals) and has not done so. In fact, when Congress last amended the law in 1988, it went the other direction, directing that priorities for recovery plans should be based on need and "without regard to taxonomic classification." This is due, in large part, to the expanding science of conservation biology and the consistent efforts of conservation groups and the federal agencies to educate Congress on the interconnectedness of species in the environment and the value of species diversity to human concerns.

Critical Habitat Designation and Listing: A Tail that Wags the Dog
The shape of the current process for determining whether to list a species owes much to the poor judgment of former Secretary of the Interior James Watt. In the early days of the Reagan Administration, Secretary Watt virtually shut down the listing of species, regardless of their imperiled status. (The average annual number of listings dropped from 33 in 1976 through 1979 to just 9 from 1980 to 1983.) Watt also insisted that listing decisions be subject to economic analysis by the Office of Management and Budget, which presumably could veto listings that would have negative economic consequences. Congress responded by establishing a process that forced the agencies to respond to petitions from individuals and to make findings on those petitions within strict time frames. Congress also reinforced the ESA to make crystal clear that listing decisions are to be based solely on the best available scientific information.

Endangered Species Glossary and Statistics Source: U.S. Fish & Wildlife Services Data current as of 12/31/2002 Endangered The classification provided to an animal or plant in danger of extinction within the foreseeable future throughout all or a significant portion of its range. Threatened The classification provided to an animal or plant likely to become endangered within the foreseeable future throughout all or a significant portion of its range. As of December 31, 2002, 745 plant species and 517 animal species in the U.S. are listed as threatened or endangered. Critical Habitat Critical habitats are specific geographic areas, whether occupied by listed species or not, that are determined to be essential for the conservation and management of listed species.. 163 species listed in the U.S. have designated critical habitat. Habitat Conservation Plan (HCP) A plan which outlines ways of maintaining, enhancing, and protecting a given habitat type needed to protect species on state and private lands, possibly including measures to minimize impacts and provisions for permanently protecting land, restoring habitat, and relocating plants or animals to another area. The U.S. Fish and Wildlife Services has approved 414 habitat conservation plans. Recovery Plan A document drafted by the Service or other knowledgeable individual or group, that serves as a guide for activities to be undertaken by Federal, State, or private entities in helping to recover and conserve endangered or threatened species. 1000 listed species have approved recovery plans.

Unlike the almost unlimited discretion the government had regarding the listing process before Watt, the current listing process is largely petition driven. As a result, the average annual number of listings since 1983 increased six-fold to 54. Private citizens or groups submit petitions to list animals or plants. The listing agencies, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS), must respond within 90 days with a finding as to whether there is enough information in the petition to move forward with the listing process. A year after the petition is filed the agency must decide whether or not to propose that the species be listed. Finally, two years after a petition is filed, the agencies must make their final decisions.

FWS and NMFS also are required to designate "critical habitat" for the species in question at the time of listing, or at most one year later, if doing so is practicable. Although the listing decision itself is shielded from economics, the designation of critical habitat is not. The theory behind this distinction, which frankly makes more political than scientific sense (and for which one of the authors of this article admits partial responsibility), is that there may be some choices in designating habitat for a species and the listing agencies should choose the habitat that causes the least economic harm.

In practice, over most of the ESA's history the agencies resisted designating critical habitat. (Only 163 of the 1,262 listed species have critical habitat designated.) They did so, in part, because critical habitat designation has proven to be a controversial and costly yet largely toothless means of furthering conservation of listed species. Nothing focuses and energizes controversy more than having government agencies draw lines on maps, and the required economic analysis added significant costs to listing actions. At the same time, since regulations were issued in 1986, the duty for federal agencies to avoid adversely modifying critical habitat has provided little if any additional protection beyond that provided by the requirement that they avoid jeopardizing a listed species' existence because the two have been defined to mean the same thing.

Critical habitat designation has become the tail that wags the dog of listing species. Because so few species have designated habitat and because each step in the process of listing and critical habitat designation has hard deadlines, it offers what some have described as a "target-rich environment" for litigation . and much litigation in recent years has focused on routine failure to designate critical habitat. These slam-dunk lawsuits to compel designations and the court orders that quickly follow have diverted already scarce resources from listing. Cuts in funding for listing supported by Congress and the Clinton and Bush Administrations have made it even more difficult for the FWS and NMFS to respond to the growing backlog of listing petitions and critical habitat designations within the prescribed deadlines, which has triggered additional lawsuits. Perhaps as a result of this death spiral, the number of species listed in 2001 was the lowest since 1983.

Federal Agency Consultation and the Magic Language of Section 7
Once a species has been listed as either threatened or endangered, the full force of the ESA is brought to bear to halt and reverse the trend toward extinction. A primary means of achieving this goal is found in the "magic language" of the Act's section 7, memorized by a generation of lawyers and the cause of the vast majority of lawsuits and controversy surrounding the ESA. Section 7 states that federal agencies: "must insure that all actions authorized, funded or carried out are not likely to jeopardize the continued existence of an endangered or threatened species or adversely modify habitat critical to it." As the Supreme Court, in deciding TVA v. Hill (the Tellico dam/ snail darter case) said, "One would be hard pressed to find a statutory provision whose terms were any plainer than those in section 7 of the Endangered Species Act."

The responsibility for making sure that projects or activities are not approved, funded or carried out if they jeopardize a listed species' existence belongs with each and every federal agency. It is a remarkable statement of the preference for species survival over other government activities. As the Supreme Court has said, it "reveals a conscious decision by Congress to give endangered species priority over the 'primary missions' of federal agencies."

While the federal agencies that propose actions are the responsible parties for "insuring" their actions are not likely to jeopardize species, they must "consult" with the fish and wildlife agencies - FWS and NMFS - on those actions. The process, though in practice often complex and controversial, is conceptually simple. The agency responsible for the project discovers that a pro- ject may affect a listed species. It then must consult with FWS or NMFS, depending on the species. The agencies look at the proposed action and, based on the best science available, issue a "biological opinion" with either a "jeopardy" or a "no jeopardy" finding. Jeopardy opinions must, if possible, contain "reasonable and prudent alternatives" suggested by the consulting agencies that recommend economically feasible modifications that would both preserve the species and minimize the economic impacts of allowing the action to go forward.

In 1982 Congress provided that FWS and NMFS could issue "incidental take statements" for projects that received favorable biological opinions. This allows some harm, including death, to come to individual animals resulting from the project as long as the project does not jeopardize the existence of the species. Although incidental take statements must be accompanied by "reasonable and prudent measures" to minimize the amount of take, at times these statements can be startling, as is the case of the biological opinion on the Columbia River Hydropower System, which allows a "take" of 88% of juvenile Snake River fall chinook that pass through the hydropower system.

The consultation procedure is the key mechanism by which the ESA results in economically feasible modifications of development proposals in order to prevent extinction of species. While the highly visible ESA controversies, such as the Klamath or the Snake River dams, draw considerable attention, what is remarkable about the Act is how few projects have actually been stopped and how much flexibility the agencies have been able to find in the language of the law. Over the history of the Act, only about one out of every 3,500 federal actions fails to go forward as a result of ESA requirements. The remainder proceed with little conflict, often with minor adjustments to projects that cost little but provide breathing room for imperiled species.

If the recommended project would jeopardize a species' existence and modifications are not reasonable . are not economically feasible . then an exemption can be sought from the requirements of the ESA. This exemption process, which is known by one of the most evocative phrases of environmental law, "God Squad," allows economically important activities to go forward, even if the agency actions are certain to cause extinction of a species. In 1978, when the Tellico Dam . snail darter conflict was at its height, Congress was in the process of reauthorizing the ESA. Rather than establish a precedent for exempting specific projects from the Act, Congress established a process whereby a panel of 6 cabinet level officers and a representative from the state in which the project was located could exempt projects from the Act if, among other requirements, the "benefits of such action clearly outweigh the benefits of alternative courses of actions consistent with conserving the species and its critical habitat, and such action is in the public interest."

The following year, after numerous votes and with the full weight of the Minority Leader of the Senate, Howard Baker of Tennessee, Congress finally overrode the Act and ordered completion of the dam. In the almost quarter century since the God Squad was created, it has been convened only twice since Tellico Dam. The only project that it fully exempted was Greyrocks Dam in Wyoming . and that exemption in 1979 was the result of an agreement between conservationists and agency officials to conserve the endangered whooping crane. In 1992, the God Squad exempted thirteen of 44 timber sales that were found likely to jeopardize the northern spotted owl in Oregon, but those sales never went forward and the Bureau of Land Management (BLM) subsequently withdrew the exemption application.

Preventing Harm to Endangered Species on State and Private Lands
The ESA's other primary means of achieving its goal to bring species back to the point at which its protections are no longer necessary is by imposing duties on individuals rather than government agencies. As individuals, none of us can "take" a listed species. In the parlance of the ESA, the prohibition on "take" means that we can't harm, harass, hunt, pursue, wound, capture, collect or even attempt to do any of these things. By 1975 regulation the term "harm" was defined to include environmental modification or degradation, and four years later in Palila v. Hawaii Department of Land and Natural Resources a federal court found that Hawaii's maintenance of feral sheep and goat herds for hunting violated this rule by destroying the woodland habitat of the Palila, an endangered bird. In confirming that the ESA barred harm caused by habitat modification, the court's decision presented a difficult issue that surfaced when Congress reauthorized the ESA in 1982. Having decided that federal agencies that received favorable biological opinions could "incidentally" take listed species, Congress was faced with the fact that the take prohibition was absolute for individuals and there was no mechanism for incidental take of species on non-federal projects. The result was the development of an exemption to take for those who develop "habitat conservation plans," or HCPs.

HCPs are intended to minimize take of listed species caused incidentally by non-federal activities and provide measures to mitigate the effects of that take and ensure that it does not appreciably reduce the likelihood of survival and recovery of these species. Private landowners, corporations, or state or local governments who clear land, cut timber, or alter habitats in some other way that might incidentally harm a listed species must get an incidental take permit by developing a HCP. As of December 2002, 414 HCPs had been approved, covering approximately 30 million acres of non-federal lands and protecting 200 endangered or threatened species.

HCPs have worked well for protecting species from incidental take in cases involving large corporate landholders, states and municipalities, particularly where natural habitats are almost completely eradicated, such as often results from construction of subdivisions and shopping centers. With smaller private landowners engaged in production of agricultural commodities or timber the story has been different. As Environmental Defense's Michael Bean has said, one of the ESA's clear weaknesses is that "it has not promoted a happy marriage" between its goals and the goals of these smaller landowners; "more often, it has prompted the sort of bitter acrimony more typical of a nasty divorce." But despite what many view as an unyielding law, Administrations responsible for carrying out the ESA during the last decade have crafted new regulatory approaches to allay fears about the regulatory consequences of having listed species on their land and to encourage the conservation of these species.

Key among these approaches are the "no surprises" and "safe harbors" policies, which provide regulatory assurances to encourage conservation of listed species on private lands. The "no surprises" rule assures private landowners that they will not incur any additional mitigation requirements beyond those they agreed to in their HCPs, even if protected species take a turn for the worse. In other words, if more needs to be done to prevent a species from sliding closer to the brink of extinction, the federal government will get that done by some means other than going back to private landowners and requiring them to do more. The "safe harbor" rule encourages voluntary management by private landowners to provide a net benefit for listed species for some period of time, and thus promote recovery, on their lands by giving assurances to the landowners that no additional regulatory restrictions will be imposed in the future if the lands are returned to a pre-determined baseline condition.

ESA and the Klamath Basin:
Looking for Help in All of the Wrong Places
Nevertheless, while implementation of the ESA has continued to evolve, particularly in the area of conservation on private lands, many argue the need for these regulatory approaches and a multitude of other changes to be incorporated into the law. Indeed, the ESA, which has been amended significantly twice in the last 25 years, has been the subject of nearly continuous calls for changes in its provisions during the last 10 years.

The authors are among those who believe the ESA certainly could be improved by additional amendments, but we also maintain that many blame the Act for things that are not the fault of the law. The criticism showered on the ESA has more to do with its being the only law with firm standards that fundamentally are substantive, not procedural, than it has to do with any flaws in the Act. It has more to do with the Act forcing change. Few of us particularly care for change, and even fewer of us like to be forced to change. This dislike of change applies to the refusal by many to embrace experiment and change in the ESA. And it applies equally well to those who focus almost solely on ESA shortcomings as though that were the source of our natural resource conflicts over the last 20 years.

Too much of our focus is on the controversies surrounding the ESA. Too little of our attention is on how effectively we are protecting our environment and ensuring sustainable levels of development under the myriad of other laws that supposedly have those goals as their purpose. Our failure to manage ecosystems, to prevent the component parts of these systems from becoming threatened or endangered, is not a failure of the ESA. To say that it is, is a form of blaming the victim.

The recent controversy in the Klamath River basin in Oregon and California is a perfect, if tragic, illustration of both the strengths and weaknesses of the ESA. Once a bountiful natural system producing large runs of salmon and steelhead and providing habitat for millions of migratory birds, the Basin has been replumbed to provide for agriculture and electric power. The Bureau of Reclamation's Klamath Project diverted massive amounts of water for agriculture. Wetlands in the upper Basin were drained for cattle operations. Hydroelectric dams on the mainstem of the river blocked passage for anadromous runs of salmon that once spawned above Klamath Lake. Dams and water diversions on the Shasta, Scott, and Trinity Rivers . key tributaries to the lower Klamath River . destroyed and degraded habitats for salmon. Throughout the Basin, agricultural runoff, exacerbated by the drainage of wetlands, pollutes both Klamath Lake and the river below.

As a result, indigenous fish in the upper basin, unfortunately called Lost River and shortnose suckers by non-Indians but known as Kuptu and C'wam to the Klamath Indian tribe, have been pushed to the brink of extinction. Coho salmon and steelhead in the lower basin, much of their habitat blocked by dams and much of the flow reduced by water diversion projects in the Upper Klamath Basin and the Shasta, Scott and Trinity sub-basins, have been listed as threatened. The Kuptu and C'wam and the salmon are the subject of treaties signed with the Native American tribes in the 19th century. In short, the fact that the Klamath ecosystem is severely stressed cannot be denied.

The causes for the demise of the Klamath ecosystem are many, but the operation of federal and state laws and the failure of other legal mechanisms to arrest a decline several decades in the making lie at the heart of the problem. The Klamath Act, which established the Klamath Project a century ago, is a single purpose law and that purpose is irrigation. Klamath irrigators, backed by the current federal administration, argue that the law requires that water be delivered to their fields even during drought years, regardless of the impact on the indigenous fish in Klamath Lake or the salmon in the river below. Oregon and California water laws, based on the mid-nineteenth century doctrine of prior appropriation, allowed irrigators in the upper Klamath Basin and California's Scott River, to obtain water rights to virtually all of the water in these tributaries. Between 80 and 90 percent of the Trinity River flow into the lower Klamath River has been diverted to the thirsty farms and cities to the South.

Other laws that we expect to protect the environment have failed to prevent the ecological disaster. The Clean Water Act has been largely ineffective in dealing with agricultural run-off. The National Environmental Policy Act (NEPA) is largely powerless against decisions made a century ago, long before its passage. Until the Kuptu and C'wam were listed in 1989, there was little in the way of substantive law to stop the ecological destruction of the Basin. With the coming of the ESA, federal and state agencies were forced to begin the painful process of addressing the impacts of a century of unrestrained development of the natural resources of the Klamath ecosystem. Conflicts between the federal project and the ESA simmered until the drought year of 2001, when the federal government shut off water to part of the Klamath Project to provide water for the Kuptu and C'wam in Klamath Lake and the coho in the lower river. The ensuing conflict, with acts of civil disobedience by farmers and threats of violence, led many politicians to call for the "reform" of the ESA. In 2002, the Bureau of Reclamation, relying on a draft National Research Council report that questioned the link between flow levels and fish survival, and relying on legal theories that there is no flexibility in the operation of the Klamath project, provided full water deliveries to the pro- ject irrigators at the expense of the Kuptu and C'wam and the salmon downstream.

In the fall of 2002, chinook salmon, returning from the ocean to begin their spawning journey, encountered a river that had too little water, and the water that was in the river was too warm. Jammed together in narrow channels, the salmon succumbed to a common fish disease, appropriately nicknamed "ich," that raced through the population. Over 33,000 fish died. While the Klamath chinook are not listed, they are extremely important to tribal fisheries as well as to non-Indian recreational and commercial fishers. Coho salmon, which are protected under the ESA were also affected, but fortunately their run timing brought most of them into the river after rains and cooler weather had improved conditions. During the period of the die-off, over half of the Klamath River was being diverted onto the agricultural lands that are part of the Klamath Reclamation Project. In statements that strained credulity, officials from NMFS and FWS stated that it was premature to say that the lack of water was the cause of the die-off and that further study was needed to determine the true causes of the disaster. There is considerable irony in the calls for reform of the ESA in the wake of the Klamath conflict. If there is any consensus in the scientific community, it is that the Klamath system is severely stressed and that changes need to be made to bring the system back into some semblance of ecological balance. To extend the old analogy of endangered species being like canaries in the coal mines, blaming the ESA for the conflict in the Klamath would be like the miners blaming the canary for the lack of oxygen. It is killing the messenger rather than heeding the message.

It is also ironic that the ESA, which has been substantially amended several times in its 30-year history, is the subject for calls for reform when there are other laws that have not been reexamined in decades. Given the situation in the Klamath, shouldn't we take a hard look at the century-old Reclamation Act or even more archaic 19th Century state water laws? How do we respond to those who say that the ESA needs to be changed to make it more flexible? If there are no alternative means of carrying out an action that won't jeopardize a species' existence, then seeking greater flexibility in application of the law is just another way of asking to increase the likelihood of extinction. The question posed essentially is, "Are we absolutely sure that the species will go extinct if we allow some action?" While the congressional sponsors of the ESA stated that "sheer self-interest impels us to be cautious," more selfish interests now urge us to put the burden of risk entirely on the species. This is the pressure to abandon stewardship entirely.

Using "Sound Science" and Other Trojan Horses To Weaken the ESA
In the next couple of years there likely will be many attempts to weaken the Act . both through legislation and administrative changes. One of the more serious attacks will likely be in the form of a call for basing decisions under the ESA on "sound science." The ESA already requires decisions to be made on the basis of the best available scientific information. The call for decisions to be based on "sound" science is an effort to weaken the ESA by requiring absolute proof of significant harm to a species before any restrictions are placed on any economic activity. It is in fact a reversal of the "institutionalization of caution" that the ESA's authors established 30 years ago, which requires that those implementing the ESA err on the side of the species when uncertainty exists. The problem is that it rarely will be possible to demonstrate fully and scientifically a causal connection between habitat modification and species survival. We know, for example, that fish need water. But how little can they get by with and for how long? That can depend on a myriad of other environmental conditions. What is the temperature of the water? For salmon, what were the ocean conditions that they experienced? Were there diseases present in the fish population? Given enough activities that destroy and degrade habitat, at some point there will be a crash, but "sound science" proponents argue that each activity considered should go forward unless it can be shown unequivocally to be the activity that will cause the crash. At which point it's too late.

Another possible change in the Act, either through legislation or administrative changes, could be in the treatment of salmon produced in hatcheries. The administration, and in particular the National Marine Fisheries Service, could limit the scope of the ESA with regard to salmon by blurring the distinction between hatchery and wild salmon. A 2001 decision by a federal court in Oregon has raised the issue of whether it is permissible under the ESA to distinguish between hatchery and wild fish in considering whether a species should be listed. The case, which is on appeal, has triggered a NMFS reexamination of federal hatchery policy as it relates to the ESA. Hatchery fish have different life histories from wild fish (hatchery fish are spawned in plastic buckets, incubated in trays and raised in concrete raceways) and there is now considerable scientific evidence that hatchery fish pose a threat to wild fish. If hatchery fish and wild fish are treated the same for purposes of the ESA, then habitat protections can be relaxed as hatchery fish can be produced without relying on the natural environment. While this is obviously contrary to the intent of the ESA to protect species and the habitats on which they depend, property rights groups have made this issue one of their top priorities.

The effectiveness of the ESA ultimately depends upon the commitment of the federal agencies to enforce its provisions. While the ESA, as has been amply demonstrated, provides multiple opportunities for litigation by interests from the entire spectrum of political advocates, much depends on the commitment of the federal agencies charged with implementing the Act, the FWS and NMFS and, more importantly, agencies like the Corps of Engineers and the Forest Service that carry out actions that can affect endangered species. In the coming years, will the "take" provisions be enforced against timber companies that destroy spotted owl habitat? Will the Bureau of Reclamation claim, as they have in the Klamath, that it has no discretion under the law to provide water for listed fish species? That same rationale has been used to withhold water from Bureau of Reclamation projects for the Rio Grande silvery minnow. Will federal agencies, in fact, find ways to circumvent the hard choices that the ESA forces?

The Supreme Court has said the ESA represents "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." But in the end, our commitment to species conservation must go beyond the ESA. Precious few species have been recovered, and the ESA has often succeeded in maintaining species and their habitat only at threshold levels. Often underfunded, with the agencies that administer the ESA and the Act itself often under attack, species conservation can not be carried on the back of one law. Letting our level of natural resource stewardship so often devolve to merely trying to avoid species extinctions surely represents the lowest level of stewardship imaginable. We need, instead, to devote more effort toward ensuring that the laws governing the management of our public lands and our nation's waters make the ESA a rarely used, last resort rather than the only barrier to loss of the Nation's biological heritage.