Endangered Species Act
Amendments of 1978:

A Congressional Response to
Tennessee Valley Authority v. Hill

I cannot tell you
How beautiful the scene is, and a little terrible, then,

when the crowded fish
Know they are caught...

Lately I was looking from a
night mountain-top

On a wide city, the colored splendor, galaxies of light:
how could I help but recall the seine-net

Gathering the luminous fish? I cannot tell you how beau-
tiful the city appeared, and a little terrible.

I thought, We have geared the machines and locked all
together into interdependence . . . 1

The passage of the Endangered Species Act Amendments of
1978 (Amendments)2 was in a large part stimulated by the judicial
decision in Tennessee Valley Authority v. Hill (Hill).3 This case pit-
ted the survival of a three inch fish, the snail darter, against the
completion of a $120 million4 federal water development and dam
project, Tellico. More importantly for purposes of this article, it
provided the country generally, and Congress specifically, the op-
portunity to reassess the balance to be drawn between environ-
mental and economic interests. The case was brought under the

1. ROBINSON JEFFERS, THE PURSE-SEINE, NORTON ANTHOLOGY OF POETRY 991
(A. Eastman ed. 1970).

2. Pub. L. No. 95-632, CONFERENCE REPORT, ENDANGERED SPECIES ACT
AMENDMENTS OF 1978, H.R. REP. No. 1804, 95th Cong., 2d Sess. (1978) (to be
codified at 16 U.S.C. §§ 1531-1543).

3. 437 U.S. 153 (1978).
4. N.Y. Times, June 16, 1978, § A, at 1, col. 5. The scope or design of the project

has not been altered since 1966, though the original cost estimate was $42.5 million.
Environmental Defense Fund v. TVA, 468 F.2d 1164, 1170 (6th Cir. 1972).



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [5: 283

Endangered Species Act of 1973 (ESA)5 which embodied the com-
mitment of Congress to the preservation of life forms threatened
with extinction. This commitment was based on the belief that all
forms of fish, wildlife, and plants are of "esthetic, ecological, edu-
cational, historical, recreational, and scientific value to the Nation
and its people." 6

This article evaluates the Amendments in two contexts-as a
step in the evolution of endangered species legislation and as a
specific response to the Hill case. Part I contains the legislative
background of the ESA. Parts II and III cover the events leading
up to Hill and the response of the judiciary. Part IV explores the
alternatives that Congress considered to deal with the Hill di-
lemma, and Part V is an in depth account of the development of
the Amendments, which were a product of compromise. The con-
cluding section explores the probable effects of the Amendments.

I. LEGISLATIVE BACKGROUND

Historically, federal legislation to protect wildlife has followed
one of two approaches-acts designed to protect specific species7

5. 16 U.S.C. §§ 1531-1543 (1976). The ESA will also be referred to as "the Act."
6. Id. § 1531(a)(3). In TVA v. Hill, the Supreme Court found that since this was

the policy which Congress had enacted, it could not say "that in this case the burden
on the public through the loss of millions of unrecoverable dollars would greatly out-
weigh the loss of the snail darter .... [N]either the Endangered Species Act nor Art.
III of the Constitution provides federal courts with authority to make such fine utili-
tarian calculations." This decision remained in the province of the legislature. TVA v.
Hill, 437 U.S. 153, 187 (1978).

7. The earliest act of this type was the Black Bass Act of 1926, 16 U.S.C. §§
851-856 (1976), which makes it illegal to knowingly transport any black bass or other
fish contrary to the law of the state or foreign country where the fish is found or
transported, or to purchase or receive such fish. The Migratory Bird Conservation
Act of 1929, 16 U.S.C. §§ 715-715r (1976), allows the Secretary of the Interior (Secre-
tary), on the approval of the Migratory Bird Conservation Commission, to purchase
or rent areas of land and water necessary for the conservation of migratory birds "for
use as inviolate sanctuaries." Id. § 715d. Under the Bald Eagle Protection Act of
1940, civil and criminal penalties are provided for anyone who takes, possesses,
sells, purchases, or transports any bald or golden eagle. 16 U.S.C. §§ 668-668d
(1976).

Two recent enactments following this pattern are the Marine Mammal Protection
Act of 1972, 16 U.S.C. §§ 1361-1384 (1976), and the Wild Horses and Burros Act of
1971, 16 U.S.C. §§ 1331-1340 (1976). The first makes it unlawful to take any marine
mammal on the high seas or to possess, transport, or sell such a mammal. The second
allows the Secretary to "designate and maintain specific ranges on public lands as
sanctuaries" for wild free-roaming horses and burros. Id. § 1333. It also provides
criminal penalties for those who willfully remove, attempt to so remove, convert to
private use, maliciously cause the death of, or sell such animals.



Endangered Species Act

and acts designed to protect broad classifications of life forms.
Methods typically employed by the former include allowing land
acquisition by the federal government in order to protect natural
habitats and providing penalties for actions deemed illegal.8 The
ESA, however, follows the second approach and represents an ef-
fort to deal comprehensively with the problem of extinction caused
by human action. The following material traces the legislative roots
and explores the provisions of the ESA.

The earliest act designed with a potentially broad coverage of
wildlife generally was the Lacey Act of May 25, 1900.9 This act
prohibits the importation of certain species'0 which the Secretary
of the Interior (Secretary) prescribes "to be injurious to human be-
ings, to the interests of agriculture, horticulture, forestry, or to
wildlife or the wildlife resources of the United States."" The Mi-
gratory Bird Conservation Act of 192912 was enacted next, but has
only a tangential impact on other forms of wildlife. Migratory birds
found within the sanctuaries established under its auspices are pro-
tected and, almost incidentally, so are "other species of wildlife
found thereon, including species that are threatened with extinc-
tion. '13

In 1966, Congress, for the first time, addressed the issue of en-
dangered species in a broad and direct manner. With the passage
of the Endangered Species Preservation Act of 1966 (ESPA), 14

Congress acted to conserve, protect and propagate native species of
fish and wildlife, including migratory birds, which were threatened
with extinction. The Secretary was given the authority to establish
and carry out programs to that end and to encourage all other fed-
eral agencies to do the same. Those agencies were to seek to pro-
tect such endangered species "insofar as is practicable and consis-
tent with the primary purposes" for which they were organized. 15

8. Examples of such actions are possessing, removing, transporting, selling,
purchasing, receiving, or killing such wildlife.

9. 16 U.S.C. H 677e, 701 (1976); 18 U.S.C. §§ 42-44 (1976).
10. The species covered were wild mammals, wild birds, fish (including mollusks

and crustacea), amphibians, and reptiles. 16 U.S.C. §§ 6 6 7e, 701 (1976); 18 U.S.C. §
42-44 (1976).

11. 18 U.S.C. 9 42 (1976).
12. 16 U.S.C. 9 715-715r (1976).
13. Id. § 715i. This was amended by the ESA, Pub. L. No. 93-205, § 13(b), 87

Stat. 902 (1973). The words "threatened with extinction" were replaced by "listed
... as endangered species or threatened species."

14. Pub. L. No. 89-669, 80 Stat. 926 (1966) (repealed 1973).
15. Id. at 926.

1979]



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

The ESPA also provided for land acquisition, where appropriate, to
further its purposes.

Three years later, Congress amended the ESPA in order to
strengthen federal protection of endangered species. This was ac-
complished by the passage of the Endangered Species Conserva-
tion Act of 1969 (ESCA). 16 There, the Secretary was given addi-
tional power to develop a list of species threatened with worldwide
extinction and to prohibit their importation into the United
States. 17 More money was appropriated for land acquisition.

In December 1973, Congress passed the ESA. i8 The impetus
came from legislative findings that various species' 9 "have been
rendered extinct as a consequence of economic growth and devel-
opment'20 and that still other species "are in danger of or threat-
ened with extinction."''- Though "the elimination of certain species
by better adapted competitors is fundamental to the evolutionary
processes of natural selection,-2 2 sudden extinction may upset the
balanced stability of natural biological communities of many inter-
related lifeforms. There is also a value in the existence of a large
"'gene pool" from which to draw for research and investigation in
the areas of biology, medicine, behavioral science, and commercial

16. Pub. L. No. 91-135, 83 Stat. 275 (1969) (repealed 1973).
17. Since the jurisdiction of the United States would not necessarily extend to the

natural habitats of all species threatened with worldwide extinction, forbidding im-
portation which limited the possible market for such species was an indirect way of
providing some protection.

18. 16 U.S.C. §§ 1532-1543 (1976). This Act repealed both the ESPA and the
ESCA, except for those provisions of both dealing with the National Wildlife Refuge
System. It should be noted that not all of the provisions discussed in this section are
still in force, though they were throughout the entire Hill controversy. Part V of this
article discusses the modifications made by the Amendments.

19. "Species" covers not only species, but smaller taxa, groups of plants and ani-
mals classified according to their presumed natural relationships, e.g., "in common
spatial arrangement that interbreed when mature." Id. § 1532(11). This means that
for purposes of the Act, endangered subspecies are covered under the term "endan-
gered species." SENATE COMM. ON COMMERCE, REPORT ON THE ENDANGERED
SPECIES ACT OF 1973, S. REP. No. 307, 93d Cong., 1st Sess., [hereinafter cited as
ESA SENATE REPORT] reprinted in [1973] U.S. CODE CONG. & AD. NEWS 2989,

2995.
20. 16 U.S.C. § 1531(a)(1) (1976).
21. Id. § 153 2 (a)(2). At that time, Congress found the number of domestic species

on the Secretary's list to be 109 and that the rate of extinction had increased to an
average of one species per year. ESA SENATE REPORT, supra note 19, [1973] U.S.
CODE CONG. & AD. NEWS at 2990.

22. Wood, Section 7 of the Endangered Species Act of 1973: A Significant Re-
striction for All Federal Activities, 5 ENVT'L L. REP. 50,189, 50,191 (1975).

[5: 283



1979] Endangered Species Act

technology.2 3 The view that science does not presently know the
future value of all species is reflected in the Act's stated purpose.
The ESA was designed to provide a means whereby ecosystems,
endangered species2 4 and threatened species2 5 could be con-
served.2 6 The inclusion of threatened species in the coverage of the
Act considerably broadened the scope of its protection.

Largely responsible for the effectuation of the Act is the Depart-
ment of the Interior,2 7 and, within that Department, the Fish and
Wildlife Service (FWS). 28 The main procedures provided by the
ESA for protection of endangered species include land acquisi-
tion,2 9 maintenance of published lists of endangered and threat-
ened species, 30 consultation between the Secretary and other fed-
eral agencies to prevent federal actions from jeopardizing such
species, 3' and the provisions for civil and criminal sanctions. 32

Congress gave the Secretary the power to carry outthe listing pro-
cedure. On the basis of the best available scientific and commercial
data, he or she makes a determination of endangered or threatened
status.3 3 This can be done on the Secretary's own motion or when
any interested person, presenting substantial evidence of jeopardy
to any species, petitions for such a determination. 3A The Act also

23. Id. It was also pointed out that technological, industrial, and agricultural uses
are constantly being discovered for plant and animal species formerly ignored.
Various examples have been given, such as the jojoba bean, id. at 50,192 n.33, and
the horseshoe crab, 124 CONG. REC. S10,973 (daily ed. July 18, 1978) (remarks of
Sen. Culver). It has even been suggested that the snail darter itself has a utilitarian
value as an indicator of local water quality. [1978] 8 ENvi. REP. (BNA) 1991, 1992.

24. Any species in danger of extinction throughout all or a significant portion of
its range, the region where the species is currently found, is considered endangered.
16 U.S.C. § 1532(4) (1976).

25. Threatened species are those likely to become endangered within the
foreseeable future. Id. § 1532(15).

26. Conservation includes all methods and procedures "necessary to bring any
endangered species or threatened species to the point at which the measures pro-
vided pursuant to this [Act] are no longer necessary." Id. § 1532(2).

27. Id. § 1532(10).
28. Implementing § 7 of the Endangered Species Act of 1973: First Notices from

the Courts, 6 ENVT'L L. REP. 10,120 (1976).
29. 16 U.S.C. § 1534 (1976). "Often, protection of habitat is the only means of pro-

tecting endangered animals which occur on non-public lands." ESA SENATE RE-
PORT, supra note 19, [1973] U.S. CODE CONG. & AD. NEWS at 2992.

30. See text accompanying notes 33-38 infra.
31. See text accompanying notes 40-45 infra.
32. See text accompanying notes 46-48 infra.
33. 16 U.S.C. § 1533(b)(1) (1976).
34. Id. § 1533(c)(2). Endangerment can be caused by destruction, modification, or

curtailment of habitat; overutilization for commercial, sporting, scientific, or educa-



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

describes an expedited listing procedure, which was used in Hill,35

for emergency situations posing significant risks to the well-being
of any species. 36 Published lists37 of species determined by the
Secretary to be endangered or threatened must be maintained in
the Federal Register. 38 Any regulations deemed necessary and ad-
visable to provide for the conservation of such species are also to
be published.3 9

The provision for interagency cooperation in section seven40 is
one of the shortest operational provisions of the Act, but it is also
the focal point of much controversy. It is an unavoidable direc-
tive41 to all federal departments and agencies to act so as to further
the purposes of the Act "by taking such action necessary to insure
that actions authorized, funded, or carried out by them do not
jeopardize the continued existence of such endangered species and
threatened species or result in the destruction or modification of
habitat of such species which is determined by the Secretary ...
to be critical." 42 Consultation is required between the Secretary
and any agency whose actions might jeopardize an endangered or
threatened species. Recent regulations have explained that consul-
tation is a three-step process.43 First, the agency decides whether
its action will affect any protected species. If so, it requests consul-
tation with the Secretary.4 4 If the Secretary determines that there

tional ends; disease or predation; inadequacy of existing regulatory mechanisms; or
other natural or manmade factors. Id. § 1533(a)(1).

35. 40 Fed. Reg. 47,505 (1975).
36. 16 U.S.C. § 1533(f)(2)(B)(ii) (1976).
37. 16 U.S.C. § 1533(b) and the rulemaking provisions of the Administrative Pro-

cedure Act, 5 U.S.C. § 553 (1976), collectively define the procedures which the Sec-
retary must follow in maintaining the lists. 16 U.S.C. § 1533(f)(1) (1976).

38. 16 U.S.C. § 1533(c)(1) (1976). This provision also states that each list "shall
specify with respect to each such species over what portion of its range it is endan-
gered or threatened." Id. This portion of the species range is its critical habitat. Crit-
ical habitat was not defined in the original Act, but was administratively construed
by 43 Fed. Reg. 870, 874 (1978) (to be codified in 50 C.F.R. § 402.02).

39. 16 U.S.C. § 1533(d) (1976).
40. Id. § 1536.
41. TVA v. Hill, 437 U.S. 153 (1978). There has also been much support from the

commentators for a mandatory reading of section 7. Note, Endangered Species Act:
Constitutional Tensions and Regulatory Discord, 4 COLUM. J. ENVT'L L. 97, 130
n.148 (1977); Wildlife Protection: Section 7 of the Endangered Species Act Comes of
Age, 7 ENVT'L L. REP. 10,049, 10,051 (1977); Wood, supra note 22, at 50,190.

42. 16 U.S.C. § 1536 (1976).
43. 43 Fed. Reg. 870, 875 (1978) (to be codified in 50 C.F.R. § 402.04).
44. If the FWS concludes on its own that an agency's action will jeopardize an

endangered or threatened species, it may initiate consultation. Id. at 875.

[5: 283



Endangered Species Act

is no danger, the agency's obligations are ended, If the actions will
jeopardize a covered species, the agency is so informed. Al-
ternatively, the Secretary can decide that he or she has inadequate
information and require the acting agency to make further biolog-
ical studies. When the agency has done so, the Secretary will issue
a biological judgment on the activity's effect. The importance of
this judgment can be seen in its use by courts in subsequent
suits. 4

5

The final method for implementing the policy behind the ESA is
prohibiting a multitude of acts, such as the taking,4 6 transporting,
or selling of endangered or threatened species.4 7 Enforcement is
procured through the use of civil and criminal penalties and
through provision for citizen suits.4 8 Anyone, on his or her own be-
half, may bring a citizen suit "to enjoin any person, including the
United States and any other governmental instrumentality or
agency ...who is alleged to be in violation" of the Act. 49 Jurisdic-
tion is vested in the district court in the district in which the
violation occurs, without regard to the amount in controversy. 5° The
original Act also authorized appropriations for the enforcement of
the provisions up to and through the fiscal year ending September
30, 1978.

51

The Amendments were designed to improve this Act. For the
most part, the intent was to write more flexibility into the ESA. In
order to understand why this was necessary, it is helpful to know
the circumstances surrounding the development of the Tellico proj-
ect and the discovery of the snail darter (Part II) and, also, the
courts' response to that situation (Part III).

45. See TVA v. Hill, 437 U.S. 153 (1978); National Wildlife Federation v.
Coleman, 529 F.2d 359, 375 (5th Cir.), cert. denied, 429 U.S. 979 (1976). Accord,
Note, Endangered Species Act: Constitutional Tensions and Regulatory Discord, su-
pra note 41, at 130, 133.

46. For purposes of the ESA, the term "take" includes harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect. 16 U.S.C. § 1532(14) (1976).

47. Other prohibited acts include importing, exporting, possessing, delivering,
carrying, shipping, receiving, or offering to sell such endangered species. Id. § 1538.

48. Id. § 1540.
49. Id. § 1540(g)(1).
50. Id. In addition, the court may award costs, including reasonable attorney and

expert witness fees. Id. § 1540(g)(4).
51. Id. § 1542.

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COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [5: 283

II. TELLICO AND THE SNAIL DARTER

A. Tellico

Tellico, first conceived in 1939,52 was to have been the sixty-first
dam53 built by the Tennessee Valley Authority (TVA).54 In 1966, it
was proposed as a multipurpose, water resource and regional eco-
nomic development project55 to "develop navigation; control de-
structive floods; generate electric power; provide water supply;
promote recreation, fish and wildlife use, and shoreline develop-
ment; create new job opportunities; advance industrial develop-
ment; and foster improved economic conditions" 56  in three
Tennessee counties. 57 The plan called for the acquisition of 38,000
acres. 58 Of those, 16,000 would become a thirty-three mile long
navigable reservoir behind a concrete and earthfill dam to be lo-
cated near the mouth of the Little Tennessee River. 59 The re-
maining acres were to be used for industrial, recreational, residen-
tial and commercial development, including a planned community
called Timberlake, estimated to attract 50,000 inhabitants.

From its inception, critics attacked the desirability of the proj-
ect. The dam would provide only 0.1% of the electricity within the
TVA system 60 and add only 1.3% to the water storage capacity

52. 124 CONG. REC. S11,028 (daily ed. July 18, 1978) (remarks of Sen. Nelson);
124 CONG. REC. S11,033 (daily ed. July 18, 1978) (remarks of Sen. Weicker).

53. Wood, On Protecting An Endangered Statute: The Endangered Species Act of
1973, 37 FED. B.J. 25, 30 (1978).

54. 16 U.S.C. § 831 (1976). TVA is a wholly-owned public corporation of the
United States.

55. Hill v. TVA, 549 F.2d 1064, 1067 (6th Cir. 1977), aff'd, 437 U.S. 153 (1978).
56. Brief for Appellee at 2-3, Hill v. TVA, 549 F.2d 1064 (6th Cir. 1977), re-

printed in Note, The Snail Darter v. The Tennessee Valley Authority: Is The Endan-
gered Species Act Endangered?, 66 Ky. L.J. 362, 367 (1977).

57. These were the counties of Blount, Loudon and Monroe. Hill v. TVA, 549
F.2d 1064, 1067 (6th Cir. 1977).

58. This land was mostly used for agricultural purposes before the Tellico pro-
ject.

59. The Little Tennessee River originates in the mountains of North Carolina and
converges with the Big Tennessee River near Knoxville. Environmental Defense
Fund v. TVA, 468 F.2d 1164, 1169 (6th Cir. 1972).

60. Note, The Snail Darter v. The Tennessee Valley Authority: Is The Endan-
gered Species Act Endangered?, supra note 56, at 368 n.33. The public mind gener-
ally associates both electricity and flood control with the construction of dams. Many
people viewed the Tellico project this way, 124 CONG. REC. S1l,028, note 52 supra,
even though TVA itself only attributed 13% of the benefits of the dam to flood con-
trol and another 11% to hydroelectric power. Endangered Species Committee Deci-
sion on the Application for Exemption for Tellico Dam and Reservoir Project (Feb.



Endangered Species Act

above Chattanooga, 6' the principal beneficiary of the project's flood
control capacity. Boeing Corporation, the builder for Timberlake,
dropped out of the endeavor because of doubts regarding the pro-
ject's financial viability. 62 If the land were to remain in production,
it would yield an estimated value of between $38 and $52 million a
year from agriculture and related activities of agribusiness. 63 In
contrast, the dam would provide less that $1 million per year value
in flood control and $3 million from power generation." Addition-
ally, the project had been described as "a most questionable and
speculative venture into real estate development." '65 From this
viewpoint, the cost-benefit ratio66 depended on the purchase by
TVA of land in the vicinity of the project, now mostly agricultural
land, and its resale at a profit for commercial and industrial pur-
poses after the reservoir was completed.

Non-economic interests would also be affected. The development
of the last free-flowing stretch of the Little Tennessee River would
lead to the loss of what is "acknowledged to be the largest and best
trout fishing water east of the Mississippi River." 67 Additionally,
several sites of historical interest would be destroyed. 68 Fort
Loudon, England's southwest outpost in the French and Indian
War, sits on the south side of the Little Tennessee and would be
inundated by the reservoir. There are also several Indian villages

7, 1979) (Cecil D. Andrus, Chin. of Endangered Species Committee) [hereinafter
cited as Decision]. The Tellico dam would have had no electric generators, but
would rather have contributed hydrostatic capacity to the existing TVA system via a
canal connecting the Tellico reservoir with the Fort Loudon reservoir. Hill v. TVA,
549 F.2d 1064, 1067 n.2 (6th Cir. 1977).

61. Note, The Snail Darter v. The Tennessee Valley Authority: Is The Endan-
gered Species Act Endangered?, supra note 56, at 368 n.33. Chattanooga is 70 miles
southwest of the dam site.

62. Supreme Court Protects Snail Darter from TVA; Congress Poised to Weaken
Endangered Species Act, 8 ENVT'L L. REP. 10,154, 10,157 (1978) [hereinafter cited as
Supreme Court Protects Snail Darter].

63. 124 CONG. REC. S11,028, note 52 supra.
64. Id. These are not the only considerations to be weighed in evaluating the fi-

nancial aspects of the project, but they do serve to show the difficulty of justifying
the project in terms of the traditional benefits attributed to dams.

65. 112 CONG. REC. 23,416 (1966) (remarks of Rep. Cleveland).
66. The claimed cost-benefit ratio was 1:1.4. Id. 23,417 (remarks of Rep. Dingell).
67. Environmental Defense Fund v. TVA, 339 F. Supp. 806, 808 (E.D. Tenn.),

aff'd, 468 F.2d 1164 (6th Cir. 1972). This was not viewed as much of a loss by some:
"it is more important to provide 7000 jobs ... over the pleasures of a few fisher-
men." 112 CONG. REC. 23,416, 23,418 (1966) (remarks of Rep. Evins, (D. Tenn.)).

68. TVA v. Hill, 437 U.S. 153, 156 (1978).

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COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

nearby, whose archeological significance has yet to be fully deter-
mined.69

Notwithstanding such arguments, Congress gave its go ahead to
TVA for Tellico by passing the Public Works Appropriations Act of
1967.70 TVA then authorized construction 7' and began the concrete
portion of the dam. Nevertheless, TVA's difficulties were just be-
ginning. In June 1971, TVA filed a draft environmental impact
statement (EIS) pursuant to the National Environmental Policy Act
of 1969 (NEPA)72 with the Council on Environmental Quality. 73 In
August, a round of litigation was begun under NEPA. 74 By this
time, TVA had already spent $29 .million to purchase land, con-
struct the concrete portions of the dam, and build a four lane high-
way over the proposed reservoir. Plaintiffs, 75 who with others, had
unsuccessfully urged TVA to consider alternatives before bringing
the suit, moved for an injuction against any further construction ac-
tivity until TVA filed an adequate EIS. 76 The District Court
granted the preliminary injuction, holding the draft statement to
be mostly unsupported conclusions. Judge Taylor found "[a]s a re-
sult, the non-expert reader is denied the opportunity to intelli-
gently evaluate TVA's conclusions. . . . [I]t is impossible to deter-
mine the thoroughness of the research .... "77 The Court of

69. One Indian Village nearby is Echota, a former sacred capital of the Cherokee
nation dating back to the sixteenth century. Another is the village of Tennase from
which Tennessee derives its name. By the fall of 1973, TVA had arranged for Echota
and Fort Loudon to be partially preserved. The latter, though, would lose its river
setting. Environmental Defense Fund v. TVA, 371 F. Supp. 1004, 1008 (E.D. Tenn.
1973), aff'd, 492 F.2d 466 (6th Cir. 1974).

70. Pub. L. No. 89-689, 80 Stat. 1002, 1014 (1966).
71. Environmental Defense Fund v. TVA, 339 F. Supp. 806, 808 (E.D. Tenn.),

aff'd, 468 F.2d 1164 (6th Cir. 1972).
72. 42 U.S.C. §§ 4321-4347 (1976).
73. Environmental Defense Fund v. TVA, 339 F. Supp. 806, 808 (E.D. Tenn.),

aff'd, 468 F.2d 1164 (6th Cir. 1972).
74. The suit was originally filed in the District Court for the District of Colum-

bia. It was dismissed on the grounds of improper venue and plaintiffs filed again in
the District Court for the Northern District of Alabama. The Alabama court
transferred the case to the Eastern District of Tennessee. Environmental Defense
Fund v. TVA, 468 F.2d 1164, 1170-71 (6th Cir. 1972).

75. Plaintiffs were the Environmental Defense Fund, Trout Unlimited, Associa-
tion for the Preservation of the Little T, and Thomas Moser, a landowner. Byrne,
Tellico: One Ball of Wax, 24 FED'N INS. COUN. Q. 53 (1973).

76. Environmental Defense Fund v. TVA, 339 F. Supp. 806 (E.D. Tenn.), aff'd,
468 F.2d 1164 (6th Cir. 1972).

77. Id. at 809.

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1979] Endangered Species Act

Appeals for the Sixth Circuit affirmed, 78 notwithstanding the fact
that the project had been started before the effective date of the
statute and the proposed steps were only the last part of an inte-
grated plan for economic development. The injunction was lifted in
1973, only after TVA filed a final EIS that complied with the
NEPA requirements. 79

B. The Snail Darter

In August 1973, a University of Tennessee ichthyologist 80 discov-
ered the snail darter8 ' in the Little Tennessee River. 82 In Decem-
ber, Congress passed the ESA. At that time, the Tellico project
was fifty percent complete.83 In early 1975, several residents of the
area petitioned the Secretary, pursuant to section four of the ESA,
to add the snail darter to the endangered species list.8 4 Following
appropriate procedure and despite TVA's protests, the FWS so
designated the snail darter, reasoning that:

[T]he snail darter occurs only in the swifter portions of shoals
over clean gravel substrate in cool, low-turbidity water. Food of
the snail darter is almost exclusively snails which require a clean
gravel substrate for their survival. The proposed impoundment
of water behind the proposed Tellico Dam would result in total
destruction of the snail darter's habitat. 85

The effective date of the designation was the tenth of November. 86

Pursuant to section eleven 8 7 of the ESA, plaintiffs8 then notified

78. Environmental Defense Fund v. TVA, 468 F.2d 1164 (6th Cir. 1972).
79. Environmental Defense Fund v. TVA, 371 F. Supp. 1004 (E.D. Tenn. 1973),

aff'd, 492 F.2d 466 (6th Cir. 1974).
80. Dr. David Etnier; TVA v. Hill, 437 U.S. 153, 158 (1978).
81. Its scientific name is Percina (Imostoma) tanasi. 41 Fed. Reg. 13,927 (1976).
82. Hill v. TVA, 419 F. Supp. 753, 755 (E.D. Tenn. 1976), rev'd, 549 F.2d 1064

(6th Cir. 1977), aff'd, 437 U.S. 153 (1978). The snail darter is a three inch tannish
bottom dwelling member of the perch family which feeds upon fresh water snails
(therefore its name). When discovered, the population was estimated to be 10,000 to
15,000. Hill v. TVA, 549 F.2d at 1068. There are approximately 130 other known spe-
cies of darters and new species are being constantly discovered. Eight to ten of them
have been identified in the last five years. TVA v. Hill, 437 U.S. at 159.

83. Hill v. TVA, 419 F. Supp. 753, 759 (E.D. Tenn. 1976).
84. Hiram Hill, Zygmunt Plater, and Joseph Congelton requested review under

the expedited emergency provisions of 16 U.S.C. § 1533(f)(2)(B)(ii). 40 Fed. Reg.
47,505 (1975).

85. Id. at 47,506.
86. Id. at 47,505.
87. 16 U.S.C. § 1540(g)(2)(A)(i) (1976).
88. See note 102 and accompanying text infra.



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

both the Department of the Interior and TVA that continued work
on Tellico, then seventy to eighty percent complete, would violate
section seven of the ESA. 89

In June of 1975, TVA had begun its own investigation. This in-
cluded a search for other populations of the fish and an attempt to
transplant over 700 fish into the Hiwassee River,90 a habitat similar
to that of the Little Tennessee. 91 Its search of sixty to seventy
other watercourses in Alabama and Tennessee and the upper
reaches of the Little Tennessee proved to be of no avail, and doubt
was also cast on the probable success of the transplant. 92 The FWS
commented that the snail darter's absence from the Hiwassee
River, "despite the fact that the fish has had access to it in the
past, is a strong indication that there may be biological and other
factors in this river that negate a successful transplant." 93 A five to
fifteen years wait might be necessary in order to determine
whether the transplant would prove to successful. 94 Some events
which could jeopardize the survival of the transplants occur in-
frequently, such as a very severe winter or a particularly bad
drought.

95

In December of 1975, the FWS proposed miles .5 to 17 of the
Little Tennessee River 96 as the snail darter's critical habitat. 97 This
stretch of the river was slated to be covered by the reservoir.
Fewer than seventy of the fish had been found below the dam, and
none had been found above river mile 18.98 Since reservoirs tend
to have more silt and less oxygen than flowing rivers, it would be

89. Hill v. TVA, 419 F. Supp. 753, 756 (E.D. Tenn. 1976).
90. The Hiwassee is about 45 miles south of the Little Tennessee. It also runs

into the Big Tennessee River.
91. Hill v. TVA, 419 F. Supp. 753, 757-58 (E.D. Tenn. 1976).
92. It is difficult to tell what the current status is of TVA's transplants into the

Hiwassee. In arguing before the Supreme Court, plaintiffs alluded to evidence that
only adult snail darters had been found at the transplant sites, raising doubt that suc-
cessful spawning was taking place. N.Y. Times, Apr. 19, 1978, § A, at 19, col. 1. In
contrast, during the House debates on the Amendments, Representative Duncan of
Tennessee indicated that the 700 transplanted fish had increased to 3,700, while the
number in the Little Tennessee had dropped to only 500. 124 CONG. REC. H12,891
(daily ed. Oct. 14, 1978).

93. 40 Fed. Reg. 47,505, 47,506 (1975).
94. Note, The Snail Darter v. The Tennessee Valley Authority: Is The Endan-

gered Species Act Endangered?, supra note 56, at 385 n.145.
95. Wood, supra note 53, at 33.
96. Mile 0 is the mouth of the Little Tennessee. Mile .5 is right above the dam.
97. 40 Fed. Reg. 58,308 (1975).
98. Hill v. TVA, 549 F.2d. 1064, 1068 n.6 (6th Cir. 1977).

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more likely that the darter eggs would smother, that the adult pop-
ulation would find the reservoir unsuitable for spawning, and that
their primary food source, the fresh water snail, would not sur-
vive if the dam were closed. 99 In April, the FWS designated miles
.5 to 17 as the snail darter's critical habitat with an effective date of
May 3, 1976.100

In February of 1976, a suit for a permanent injunction'0 1 against
the Tellico project was begun by citizens and users of the Little
Tennessee Valley area, the Association of Southeastern Biologists
and the Audubon Council of Tennessee. 102

III. TENNESSEE VALLEY AUTHORITY V. HILL:
JUDICIAL RESPONSE

A large part of the public outcry to enact the Amendments and
add flexibility to the ESA was a result of the decision in Hill. In
that case, the Supreme Court found that protection of an endan-
gered species, from the adverse effect of any action taken to fur-
ther any federal project, was an affirmative command to the acting
federal agency, 1 3 even at the expense of the entire project. 10 4 In
enacting the ESA, Congress, said the Court, had already per-
formed all the balancing between competing environmental and
economic interests and had decided in favor of endangered species
in all instances. 0 5

Plaintiffs in Hill sought a permanent injunction against TVA's
completion of the Tellico dam project as the only means to accom-
plish the purpose of the ESA, i.e., the conservation of an endan-
gered species. The Supreme Court accepted the premise, in ac-
cordance with the findings of the District Court for the Eastern
District of Tennessee, 10 6 that closure and operation of the dam
would either eradicate the known population of snail darters or de-
stroy their critical habitat. 10 7 The question, therefore, was whether
such closure of the dam would bring TVA into violation of the

99. Hill v. TVA, 419 F. Supp. 753, 756 (E.D. Tenn. 1976).
100. 41 Fed. Reg. 13,926-28 (1976).
101. Injunctive relief is provided for in 16 U.S.C. § 1540(g)(1)(A) (1976).
102. Hill v. TVA, 419 F. Supp. 753, 754 (E.D. Tenn. 1976).
103. TVA v. Hill, 437 U.S. 153, 173 (1978).
104. Id.
105. Id. at 184-88.
106. Hill v. TVA, 419 F. Supp. 753, 757 (E.D. Tenn. 1976).
107. TVA v. Hill, 437 U.S. 153, 171 (1978).

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Act. 10 8 This turned on the interpretation of section seven which
states that:

All other Federal departments and agencies shall . . . utilize
their authorities in furtherance of the purposes of [the Act] . . .
by taking such action necessary to insure that actions authorized,
funded, or carried out by them do not jeopardize the continued
existence of such endangered species and threatened species or
result in the destruction or modification of habitat of such spe-
cies which is determined by the Secretary ... to be critical.' 0 9

This language, said Chief Justice Burger, "admits of no excep-
tion," 110 the focus being on the use of "shall" and "to insure."

In finding this mandatory directive, the Court not only looked at
the actual language of section seven, but also examined both of the
earlier legislative acts which the ESA superseded"' and the spe-
cific legislative history of the ESA itself.112 Particularly significant,
in considering the responsibility of federal agencies, was the ab-
sence of such qualifying language as "insofar as is practicable and
consistent with the[ir] primary purposes." 113 Such language had
appeared both in the predecessor act, the ESPA, 114 and in all bills
introduced in 1973,1'5 the session which ultimately resulted in the
passage of the ESA. Chief Justice Burger also pointed out that
"Congress was also aware of certain instances in which exceptions
to the statute's broad sweep would be necessary." 116 This was
shown by the exceptions the Act provided, "none of which would
even remotely apply to the Tellico Project."' 117 It should be noted
that the District Court never directly faced the mandatory lan-
guage and character of section seven. Its discussion was almost ex-
clusively focused on balancing the equities."'

108. Id. at 172. After deciding this question in the affirmative, the Court then

dealt briefly with the issue of the appropriateness of injunctive relief. Because of
Congress' mandatory formulation of the protection to be given endangered species,
the majority decided that the granting of the injunction was not discretionary. Id. at
193-95. This issue is the focus of Justice Rehnquist's dissent. Id. at 211-13.

109. 16 U.S.C. § 1536 (1976). See also text accompanying notes 40-45 supra.
110. TVA v. Hill, 437 U.S. 153, 173 (1978).
111. Id. at 174-76. See also text accompanying notes 14-17 supra.
112. TVA v. Hill, 437 U.S. 153, 176-80 (1978).
113. Id. at 181-83.
114. See text accompanying note 15 supra.
115. TVA v. Hill, 437 U.S. 153, 181 (1978).
116. Id. at 188.
117. Id. Such exceptions are codified in 16 U.S.C. § 1539 (1976).
118. What the District Court said and what it did were not always easily recon-

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1979] Endangered Species Act

The majority opinion relegated to two footnotes the arguments
that "actions" in section seven meant only prospective actions, 119

not projects already substantially funded and completed, 120 and
that preventing the closure of the Tellico dam would give the ESA
retroactive effect. 121 It discussed, in considerably more detail, the
suggestion that Congress had approved the completion of Tellico
by authorizing appropriations for the project even after the discov-
ery of the snail darter and its inclusion on the list of endangered
species.122 In the final analysis, however, the Court stated that re-

cilable. It acknowledged that it was a legislative and not a judicial function to bal-
ance the, importance of any endangered species against a major federal project. Hill
v. TVA, 419 F. Supp. 753, 763 (E.D. Tenn. 1976). Nevertheless, the court said:

This case must be viewed in the context of its particular facts and circum-
stances. We go nio further than to hold that the Act does not operate in such a
manner as to halt the completion of this particular project. A far different situa-
tion would be presented if the project were capable of reasonable modifications
... or if the project had not been under way for nearly a decade.

Id. (Emphasis added).
In his dissent, Justice Powell would have followed the District Court. He said:
It is not our province to rectify policy or political judgments by the Legislative
Branch, however egregiously they may disserve the public interest. But where
the statutory language and legislative history, as in this case, need not be con-
strued to reach such a result, I view it as the duty of this Court to adopt a per-
missible construction that accords with some modicum of common sense and the
public weal.

TVA v. Hill, 437 U.S. 153, 196 (1978) (Powell, J., dissenting).
119. Justice Powell said that the meaning of "actions" is "far from 'plain.' " He

would have it mean not all actions an agency is capable of taking, but only those
"actions that the agency is deciding whether to authorize, to fund, or to carry out."
(Emphasis in original.) TVA v. Hill, 437 U.S. 153, 205 (1978) (Powell, J., dissenting).
Chief Justice Burger's response was that, under this reading, the inclusion of "or
carry out" would be superfluous. Additionally, he said that if Congress had meant
that an agency must comply only in the planning stage, it would have said so, as it
did in NEPA. Id. at 173 n.18.

120. The critical date of this determination could either be the effective date of
the ESA or the listing date for the particular endangered or threatened species. See
also text accompanying notes 138-42 infra.

121. Chief Justice Burger stated that "under the Act there could be no 'retro-
active' application since, by definition, any prior action of a federal agency which
would have come under the scope of the Act must have already resulted in the de-
struction of an endangered species or its critical habitat." (Emphasis in original.)
TVA v. Hill, 437 U.S. 153, 186 n.32 (1978). But see id. at 202 (Powell, J., dissenting).

122. Id. at 189-93. TVA first raised the issue during Congressional appropriation
hearings in both Houses in April and May of 1975. Hill v. TVA, 419 F. Supp. 753,
758 (E.D. Tenn. 1976). It informed the committees that the snail darter had been dis-
covered but that it was trying to preserve the fish and felt that the project should be
completed in any event. Nevertheless, Congress approved TVA's general budget,
which included a $29 million appropriation for the project. Id. In March of 1976,
there were more appropriation hearings and, once again, TVA reported on the snail



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

peal by implication was a very disfavored concept, especially when
the alleged repeal was contained in an appropriations measure., 23

IV. CONGRESSIONAL REACTION

The decision in Hill raised a public outcry apparently based on
the belief that the Act required that the interests of such obscure
species as a three inch fish be put ahead of economic progress. In
actuality, the passage of the ESA was a recognition that the long-
term interest of human welfare was paramount to man's perceived
short-term interests.' 24 The criticism, however, reflected an under-
lying feeling that environmentalists had seized on the snail darter
as a way to block a project that they were unable to halt on other
grounds.' 2 5 The ironic result seemed to be that the snail darter
was now endangering the very law that had protected it. The con-
troversy was such that, though authorization for funding under the
original Act ran out September 30, 1978, an attempt in mid-

darter controversy. Id. at 759. It also gave an encouraging picture- of the progress of
the transplantation experiments. Less than a month after the District Court decision
denying the injunction, both committees recommended that the full budget request
of nine million dollars for continued work on Tellico be granted. The Senate
Committee report included a statement that it did not view the ESA as prohibiting
the completion of the project. S. REP. No. 94-960, 94th Cong., 2d Sess. 96 (1976), re-
printed in TVA v. Hill, 437 U.S. 153, 167 (1978). Following the Circuit Court's grant
of the permanent injunction in January 1977, TVA officials again appeared before the
appropriation committees. The committees recommended that the full amount re-
quested be granted and, in addition, recommended that a supplemental two million
dollars be appropriated for the transplantation project. Both recommendations were
followed by the whole Congress. TVA v. Hill, 437 U.S. 153, 170-171 (1978).

123. Chief Justice Burger maintained that there was no evidence to indicate that
Congress as a whole was even aware of TVA's position. TVA v. Hill, 437 U.S. 153,
192 (1978). The appropriations acts themselves did not identify the projects for
which the sums had been appropriated. For that information, one must resort to their
legislative histories. Id. at 189 n.35. The Court stressed the fact that the committee
reports could only be taken to express the attitudes and understandings of the
committee members themselves. Id. at 189. Since TVA was the only witness, the evi-
dence presented in the committee hearings only represented one side of the issue.
Furthermore, Congress reacted identically, approving the general appropriations that
included funds for the Tellico project, after both the denial and the granting of the
permanent injunction by the District Court and Circuit Court, respectively.

124. 124 CONG. REC. H12,871 (daily ed. Oct. 14, 1978) (remarks of Rep. Dingell).
125. On June 14, 1978, the New York Times reported that "[e]nvironmentalists

have seized on the snail darter to block a project they were unable to halt on other
grounds." N.Y. Times, June 14, 1978 § A, at 24, col. 1. Accord, Wildlife Protection:
Section 7 of the Endangered Species Act Comes of Age, supra note 41, at 10,052.

[5: 283



Endangered Species Act

October of 1978 to pass a bill solely to fund the ESA for an addi-
tional three years was unsuccessful. 126

Reactions in Congress covered an entire spectrum. Some mem-
bers supported the Court's view of the mandatory character of the
protection afforded by the ESA and believed that the Act should
stand as interpreted. 127 Others felt exceptions should be made for
projects already significantly advanced at the time the Act was
passed.' 2 8 Still other members of Congress felt that each conflict
should be determined on its own merits, though there was much
dispute over who should have the authority to make such an evalu-
ation.129 These varying proposals are discussed below.

A. Supporters of the Original ESA

The most vocal advocate in the Senate for the retention of the
mandatory nature of the ESA was Senator Nelson of Wisconsin. He
felt that the criticism of the Act as a threat to progress was com-
pletely unfounded. In his view, the snail darter controversy did not
demonstrate any deficiency in the Act because the project should
never have been started in any case. In fact, he believed the ESA
was working quite well. 130 In support of this position it was often
reiterated that, of the 4500 consultations that had so far taken place
under the Act, 13' all but 124 were successfully resolved infor-
mally, 132 and all but three were resolved administratively. 133 As
one commentator wrote:

The Supreme Court's decision in TVA v. Hill was a clear and
simple affirmation of the congressional intent underlying the En-
dangered Species Act. The resulting clamor for amendment of
the Act is regrettably based on the faulty premise that the
Tellico decision proves that the Act is not working as intended

126. The bill was H.R. 10883, 95th Cong., 2d Sess. (1978). Time magazine attrib-
uted the defeat to the snail darter controversy. TIME, Oct. 16, 1978, at 84.

127. See text accompanying notes 130-35 infra.
128. See text accompanying notes 138-42 infra.
129. See text accompanying notes 144-61 infra.
130. 124 CONG. REC. S11,027-28 (daily ed. July 18, 1978) (comments of Sen. Nel-

son). Accord, 124 CONG. REC. S10,972 (daily ed. July 18, 1978) (comments of Sen.
Leahy); 124 CONG. REC. S11,156 (daily ed. July 19, 1978) (comments of Sen.
Brooke).

131. Wood, supra note 53, at 28.
132. Note, The Snail Darter v. The Tennessee Valley Authority: Is The Endan-

gered Species Act Endangered?, supra note 56, at 397.
133. Wood, supra note 53, at 28.

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COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

and is too rigid. The Act has worked very well indeed, but its
smooth functioning depends to a high degree on the successful
resolution of interagency conflicts through the statutorily man-
dated consultation process. This process, if carried out carefully
and in good faith, has been shown to be surprisingly effective in
resolving such conflicts. 13 4

During the debate over the Amendments, Senator Nelson pro-
posed an amendment geared to reinstating the ESA in its original
form, but he later withdrew it. 135 No similar proposal was subse-
quently advocated on the floor of either House.

B. Exemptions for Projects Already Begun

From the start of the snail darter controversy, there were advo-
cates supporting various versions of a grandfather clause exemp-
tion. 136 Among them was TVA, who argued before the courts that
a provision exempting projects already begun137 should be read
into the existing Act. 13 8 Representative Beard of Tennessee intro-
duced a series of identical bills in March and May of 1978 that
would exempt any project which was "on or directly affects the
navigable waters of the United States" if "construction, reconstruc-
tion, or operation" had begun before notice of the listing was pub-
lished in the Federal Register. 139 Several commentators main-
tained that these proposals were too narrow, while still others saw
them as too broad. Some found no reason to limit their scope to
projects related solely to navigable waters. 140 Others argued that a

134. Supreme Court Protects Snail Darter, supra note 62, at 10,159.
135. Sen. Nelson introduced his amendment, 124 CONG. REC. S11,027 (daily ed.

July 18, 1978), but withdrew it later, 124 CONG. REC. S11,035 (daily ed. July 18,
1978).

136. A "grandfather clause" is one which gives special consideration or rights to
individuals or entities acted upon by a specific statute, solely because such individ-
ual or entity was extant on a particular date. In this case, the argument is that the
Tellico project should be exempt from the ESA because it had been begun by the
critical date. (The two dates that have been suggested for this purpose are the date of
enactment of the ESA and the date of the proposed listing of the endangered or
threatened species.)

137. The Circuit Court in Hill saw still another problem with this approach-that
of creating a workable standard of review. The difficulty perceived was in deciding
the amount of expenditures or percentage of completion necessary to warrant disre-
garding the danger to the species. Hill v. TVA, 549 F.2d 1064, 1071 (6th Cir. 1977).

138. Hill v. TVA, 419 F. Supp. 753, 758-60 (E.D. Tenn. 1976). Accord, Note, The

Snail Darter v. The Tennessee Valley Authority: Is The Endangered Species Act En-
dangered?, supra note 56, at 402.

139. H.R. 7392, 6838, 5079, 5002, 4167, 95th Cong., 1st Sess. (1977).
140. Wood, supra note 53, at 35.

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Endangered Species Act

more narrow exemption would be sufficient. The exemption could
be limited to dams, since other projects would not affect such
widespread areas and could presumably be made to conform to the
existing Act.141 Yet another opinion focused on whether there had
already been an irretrievable commitment of resources when the
danger to the affected species was discovered.142

All of these proposals shared the problem of totally defeating the
purpose of the Act 143 with respect to the particular endangered or
threatened species found on the site of an exempted project. None
of the proposals required the acting agency either to weigh the
competing values of the project and the concerned species or to
mitigate the damage to such species.

C. Separate Determination of Each Conflict on Its Own Merits

This subsection discusses the proposals of those who felt that,
while the Act was working well in general, more flexibility needed
to be provided for those situations where a conflict remained even
after the section seven consultation provisions were exhausted. The
proposals uniformly provided for individual consideration of each
dispute, but differed with regard to the designation of who was to
make the final determination. Under one formulation, Congress,
the initiator of the policy of preservation, would also be the body
capable of making exceptions to that policy.'"4 Argument would
take place on the floor of both Houses on the merits of a particular
exemption. If granted, a bill to that effect would be passed. Sup-
porters of this approach claimed that it would preserve the
agencies' overall duty to consult under the Act 145 and that Con-
gress would bring a broader perspective to the problem than the
jurisdiction of any one agency would allow.146 Such a bill, granting

141. Note, Endangered Species Act: Constitutional Tensions and Regulatory Dis-
cord, supra note 41, at 140 n.194.

142. Wildlife Protection: Marine Mammals, Endangered Species Threatened in
Congress by Economic Concerns, 7 ENVT'L L. REP. 10,124, 10,127 (1977) [herein-
after cited as Wildlife Protection].

143. See notes 22-23 and accompanying text supra.
144. This approach has been used under NEPA, e.g., regarding the trans-Alaska

oil pipeline. Pub. L. No. 93-153, 87 Stat. 576 (1976). Support for this approach with
the ESA can be found in Note, Endangered Species Act: Constitutional Tensions
and Regulatory Discord, supra note 41, at 137-38; Wildlife Protection, supra note
142, at 10,127.

145. Supreme Court Protects Snail Darter, supra note 62, at 10,158.
146. Note, Endangered Species Act: Constitutional Tensions and Regulatory Dis-

cord, supra note 41, at 138.

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TVA an exemption for Tellico, was actually introduced in the
House.147 It did not pass, but an amendment to the Amendments,
granting a specific exemption for Tellico, was adopted by the
House.' 48 The joint conference committee eliminated it, however,
in the final version of the bill.

Based on the statistics of past consultations, 149 it was argued that
such impasses would occur so rarely that this method of resolution
would be quite viable. There was, however, no real consensus as
to how often such resolution might be required or requested. As of
August 1978, an additional 137 animal species and 1,850 plant spe-
cies had been formally proposed for listing.150 The FWS estimated
that, in fiscal year 1979 alone, 20,000 consultations would take
place under the Act. 151 This figure should be compared to the total
of 4500 consultations which took place in all previous years under
the Act. Such a growth in the number of consultations suggests
there might be a similar increase in the number of irresolvable
conflicts through the use of the section seven consultation proce-
dures. In addition, detractors said that Congress was already over-
burdened and, moreover, worked very slowly; 152 that an imple-
menting agency would be in a better position to weigh carefully
technical and environmental considerations against financial and
economic factors; 153 and that allowing Congressional exemption
would be a sign to some that "pet projects" could be undertaken in
spite of the Act.' 54 In the "parade of potential horribles" was the

eventuality that Congress might not be in session when a conflict
came up involving a defense project affecting national security. 155

But, it should be noted that Congress would still be the body
authorizing exceptions to its own policy of protection even if it del-

147. H.R. 4557, 95th Cong., 1st Sess. (1977).
148. 124 CONG. REC. H12,890-93 (daily ed. Oct. 14, 1978).
149. See text accompanying notes 131-33 supra.
150. HOUSE COMM. ON MERCHANT MARINE AND FISHERIES, ENDANGERED SPE-

CIES ACT AMENDMENTS OF 1978, H. REP. No. 1625, 95th Cong., 2d Sess. 6 (1978)
[hereinafter cited as H. REP. No. 1625].

151. SENATE COMM. ON ENVIRONMENT AND PUBLIC WORKS, ENDANGERED SPE-

CIES ACT AMENDMENTS OF 1978, S. REP. No. 874, 95th Cong., 2d Sess. 2-3 (1978)
[hereinafter cited as S. REP. No. 874].

152. Wood, supra note 53, at 27.
153. Supreme Court Protects Snail Darter, supra note 62, at 10,158.
154. Note, The Snail Darter v. The Tennessee Valley Authority: Is The Endan-

gered Species Act Endangered?, supra note 56, at 401.
155. Wood, supra note 53, at 36.

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Endangered Species Act

egated the final decision to some other body, so long as Congress
promulgated the criteria for deciding.

Another proposal,156 which called for some form of balancing, re-
ceived marginal support in the House. It provided that the Presi-
dent could grant an exemption if the acting agency, after having
consulted with the Secretary and also having lost on the merits in
court, still wanted to proceed with the project. 157 This proposal
had many of the same disadvantages as the previous approach. Its
feasibility would be limited if it were required too often, and the
decision would still be susceptible to political influences over
purely technical and environmental considerations. Additionally,
since the exemption could not be granted without prior judicial re-
view, if the President had already decided to grant the exception,
court time would be wasted and moot questions would be adjudi-
cated.

One approach, which never received a strong following, might
be termed the insignificant species exemption. 158 Under one of its
formulations, if a species could meet the following five criteria, it
would be allowed to die out. The five criteria are:

(1) the reason for the species' disappearance is that it has not
evolved appropriate adaptations to environmental changes caused
by natural phenomena;

(2) the species does not represent a unique genetic composi-
tion needed for study of an important biological problem (e.g.
cancer research);

(3) the species does not provide human beings with significant
emotional enjoyment or potential practical benefits;

(4) the presence, absence, or well-being of the species does
not provide environmental data needed by human beings;

(5) human beings do not recognize a strong moral responsibil-
ity for preserving the species.' 59

It is difficult to imagine any consensus regarding the applicability
of the given tests and unlikely that many species, could qualify. No
one can foresee what future contributions a given species might

156. H.R. 13807, 95th Cong., 2d Sess. (1978).
157. The President would be required to find that the agency had carried out the

required consultation and conducted an agency hearing, that the action in question
was of national or regional significance, and that the national interest warranted the
granting of the exemption. If the President so found, an executive order could be is-
sued. This decision would not be subject to judicial review. Id.

158. Wildlife Protection, supra note 142, at 10,127; Wood, supra note 53, at 24.
159. Wood, supra note 53, at 34.

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COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

make. 160 Additionally, this approach totally denies the value of ge-
netic variations of which the Supreme Court in Hill wrote:

[Tihey 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.

Who knows, or can say, what potential cures for cancer or
other scourges, present or future, may lie locked up in the struc-
tures of plants which may yet be undiscovered, much less ana-
lysed? . . . Sheer self-interest impels us to be cautious.1 '

A balancing procedure was embodied in the enacted compro-
mise. It recognizes that conflicts between the interests of economic
development and endangered species can occur, but still promotes
a consideration of the individual situation. It was developed to re-
move the decision from a strictly political arena and to avoid the
impossible situation of attempting to valuate a particular species.
The following section charts its evolution through Congress, dis-
cusses its relevant features, and points out its strengths and weak-
nesses.

V. THE ENDANGERED SPECIES ACT AMENDMENTS

OF 1978: A COMPROMISE

A. S. 2899

The Senate Committee on Environment and Public Works gave
its reasons for amending the Act in its report on S. 2899.162 It

wanted to provide flexibility, while 'insuring "that the integrity of
the interagency consultation process . . . be preserved."' 63 The
need for flexibility was pointed out by the seemingly irresolvable
conflict in the Tellico case and the position in which the TVA
found itself-that is, that "it [had] ambiguous congressional direc-
tives and that it [was] not at liberty to terminate the project at
[that] time.' 16 Other federal actions were then underway which
had elements of potentially irresolvable conflicts. In addition, the
General Accounting Office (GAO) alleged that at times the FWS

160. See note 23 supra.
161. H. REP. No. 93-412, 93d Cong, 1st Sess. 4-5 (1973), reprinted in TVA v.

Hill, 437 U.S. 153, 178 (1978).
162. See note 151 supra.
163. Id. at 5.
164. Id. at 2.

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had refrained from listing species for fear of provoking the Con-
gress into weakening the protective provisions of section seven. 165

The bill, as passed by the Senate, 166 was a compromise forged
by Senators Culver and Baker. It also provided funding for the en-
tire Act through September 30, 1981167 and contained a new defi-
nition of critical habitat that included only areas essential to conser-
vation of the species and requiring special management. 168 It

specifically indicated that this definition might not cover the entire
existing range of a species, but might include areas where a species
was not then found. The bill also required determination of the
critical habitat concurrently with the determination of species sta-
tus. 169

In revising section seven,1 70 the consultation requirement be-
tween the acting agency and the Secretary was retained, but the
absolute mandate that the agency not jeopardize any endangered
species or their critical habitats now contained a caveat. This sec-
tion created the Endangered Species Committee (ESC) which was
given the power to grant exemptions. The ESC was composed of
seven members: the Secretaries of Agriculture, Army, and the In-
terior; the Chairman of the Council on Environmental Quality; the
Administrators of both the Environmental Protection Agency and
the National Oceanic and Atmospheric Administration; and the
Governor of any affected state.' 7' Senator Culver, one of the spon-
sors of the bill, noted that-the composition of the ESC was so
weighted that "the presumption in favor of protection of the spe-
cies is overwhelming."' 172 Five of the seven members must vote for

165. Id. at 3. For a review of section seven provisions, see text accompanying
notes 40-45 supra.

166. S. 2899, 95th Cong., 2d Sess., 124 CONG. REC. H12,903 (daily ed. Oct. 14,
1978) [hereinafter cited as S. 2899].

167. Id. §8, 124 CONG. REC. at H 12,905.
168. Id. § 2(1), 124 CONG. REC. at H12,903. See note 38 supra and note 185 infra.
169. S. 2899, supra note 166, at § 10, 124 CONG. REC. at H12,905. Limited ex-

ceptions to concurrent determination were provided where no critical habitat infor-
mation was available or the particular species was listed prior to the ESA (i.e. under
the ESCA).

170. Id. § 3, 124 CONG. REC. at H12,903-04.
171. "[I]n the case of an action affecting more than one State, the Governors of

all such States . . . shall cast collectively a single vote . . . " Id. As enacted, the
Amendments required the President to appoint one individual from each affected
State, instead of automatically including the Governor. See note 203 infra.

172. 124 CONG. REc. S10,974 (daily ed. July 18, 1978) (remarks of Sen. Culver).
Some Congressmen felt the presumption was so strong that "the man-made project is

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exemption for the application to succeed. Further, after an amend-
ment by Senator Heinz was passed, 173 only permanent members
and not their representatives were allowed to cast votes. Initially,
the bill contained a provision that required the presence of all
seven members to constitute a quorum, but, as passed, it required
only five. 174

An agency could apply for an exemption only after the required
consultation with the Secretary had taken place and a finding had
been made that an irresolvable conflict existed. 175 The ESC would
then determine whether the case was ripe for review.176 The issue
was required to pass jurisdictional hurdles which included findings
by the ESC that:

(i) the requirements of the consultation process . . . have
been met; and

(ii) there has been a reasonable and responsible effort to re-
solve the conflicts which are known to exist, and the Federal
agency requesting such exemption has made, subsequent to the
initiation of the consultation . . . , no irreversible or irretrievable
commitment of resources which forecloses the consideration of
modification or alternatives to such action; and

(iii) an irresolvable conflict exists .... 177

sure to lose." 124 CONG. REC. S11,129 (daily ed. July 19, 1978) (remarks of Sen.
Garn).

173. 124 CONG. REC. S 11,040 (daily ed. July 18, 1978).
174. 124 CONG. REC. Sl1,135 (daily ed. July 19, 1978) (amendment proposed by

Sen. Scott).
175. S. 2899, supra note 166, at § 3, 124 CONG. REC. at H12,904. An amendment

was proposed by Senator Stennis which would have given a wide degree of discre-
tion to the acting agency. The agency's responsibility to insure that it did not jeop-
ardize the species or its habitat was qualified "insofar as practicable and consistent
with their primary responsibilities." 124 CONG. REC. S10,971 (daily ed. July 18,
1978). If the project or a particular part thereof was at least 50% complete based on
the amount expended, the agency head was required to balance the benefits to the
public when the action was completed against the "esthetic, ecological, educational,
historical, recreational or scientific loss" should the species become extinct, "but in
no event shall such agency be precluded by reason of this Act .. .from carrying out
any such actions." Id. This amendment would have significantly reduced the impact
of the Act had it passed since the agency was not required to consider the possible
benefits from alternative actions. In addition, there were no requirements that the
danger to the species be mitigated in the event that the agency did decide to go
ahead with the project as planned.

176. The ESC would have to give the application immediate consideration if the
National Security Council requested, whenever failure to make exception for a criti-
cal military installation would have an adverse effect on the security of the country.
S. 2899, supra note 166, at § 3, 124 CONG. REC. at H12,904.

177. Id.

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If all these criteria were met, the ESC would go on to make a de-
termination on the merits. In order to grant an exemption, it must
find that:

(A) there is no reasonable and prudent alternative to such ac-
tion; and

(B) the action is of national or regional significance; and
(C) the benefits of such action clearly outweigh the benefits of

alternative courses of action consistent with conserving the spe-
cies or its critical habitat, and that such action is in the public
interest. 178

The Senate committee further explained that these criteria were
not intended as limitations on the factors that could be considered,
but should be used only for guidance. "Clearly such factors. as the
ecological, educational, genetic, recreational, aesthetic, historic and
scientific values of the affected, endangered or threatened species
should be given weight in any final decision."1 79

The committee also enunciated the difference between the
alternatives that the acting agency must consider in the initial con-
sultation with the Secretary and those which the ESC was required
to consider. The agency must have thoroughly reviewed all modifi-
cations and alternatives within its jurisdiction which were also con-
sistent with the objectives of the project. On the other hand, the
ESC must consider all available alternatives, not limited to those of
the original project objectives or the acting agency's jurisdiction. 180

Furthermore, the ESC must be sure that the action incorporates
all reasonable measures deemed necessary by the Secretary to min-
imize adverse impacts on the species or its habitat.'"'

As one commentator noted: "[i]mplicit in the Culver-Baker ap-
proach is a strong but less than absolute priority for environmental
values .... "182 It had the benefit of allowing a very broad review
of the proposed project. Instead of considering only some aspects,
the review was to take place in a cabinet-level committee. It did,
however, add another layer of bureaucracy to the conflict resolu-
tion process. Some commentators have suggested that the availabil-
ity of any exceptions might weaken the consultation at the earlier
stages. 18 3 In view of the jurisdictional qualifications an agency must

178. Id.
179. S. REP. No. 874, supra note 151, at 7.
180. Id. at 4.
181. S. 2899, supra note 166, at § 3, 124 CONG. REC. at H12,904.
182. Supreme Court Protects Snail Darter, supra note 62, at 10,158.
183. Id. at 10,159.

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satisfy in order to receive a review on the merits by the ESC, how-
ever, the possibility of exemption is not likely to influence greatly
the early consultation between the agency and the Secretary.

B. H.R. 14104

H.R. 14104184 was the House version of the ESA amendments.
Its basic principles were very similar to S. 2899, in which the ma-
jor departure from the existing Act was the creation of an ESC.
Once again, the Congressional committee responsible for the bill
made the primary assumption that the consultation between the
acting agency and the Secretary was central to the resolution of any
conflicts. Only those provisions significantly different from S. 2899
will be discussed here. 18 5

As in S. 2899, the proposed legislation provided that all federal
agencies were to insure against any degradation of species or habi-
tat, unless granted an exemption from the ESC. 8 6 The House ver-

184. H.R. 14104, 95th Cong., 2d Sess. (1978) (introduced Sept. 18 by Rep.
Leggett) [hereinafter H.R. 14104].

185. Both Houses had believed that the definition of critical habitat should be in-
cluded in the statute, instead of left to administrative determination. Previously, the
designation of critical habitat had been a purely biological question. The House
wanted to allow the Secretary some discretion to alter a given critical habitat so as to
limit the economic impact of the designation-at least where only an invertebrate
species was endangered. Id. § 2(2). The weight to be given these considerations was
left completely to the Secretary's discretion. H. REP. No. 1625, supra note 150, at 17.
The bill, as reported by the committee, also excluded taxonomic categories below
subspecies" from the term "species" for purposes of the Act. Id. at 25. Both of these
provisions would have been significant limitations on the scope of the Act-one po-
tentially limited the extent of protection, the other removed entire lifeforms from the
reach of the Act. Another provision, originally proposed as a committee amendment,
would have required a review of the endangered species list at least once every five
years. Id. at 1.

186. Under H.R. 14104, the ESC would have been composed of only six mem-
bers. Missing from this version was the Administrator of the Environmental Protec-
tion Agency.

A vote of not less than four members, voting in person, was required to grant an
exemption. H. REP. No. 1625, supra note 150, at 15. The basis of such a decision-
was that:

(A) there are no feasible and prudent alternatives to the agency action;
(B) the benefits of such action clearly outweigh the benefits of alternative

courses of action consistent with conserving the species or its critical habitat,
and such action is in the public interest; and

(C) the action is of regional or national significance.
H.R. 14104, supra note 184, at § 3. The ESC was required to establish reasonable
mitigation measures, H. REP. No. 1625, supra note 150, at 15, and judicial review of
the decision was available. Id. at 24.

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sion, however, began the exemption application process with an in-
itial consideration by a three member review board. 187 Initially,
the board had to determine whether the agency carried out its con-
sultation in good faith, conducted any required biological assess-
ments, and refrained from making any irreversible or irretrievable
commitment of resources after the initiation of the consultation
process. If the board made positive findings on these issues, it
would proceed to consider the application on the merits. It would
then make recommendations to the ESC on the application, which
would include mitigation and enhancement measures.' 8  By
creating the review board, the House bill added still another layer
of bureaucracy to the exemption process. Although the existence of
a screening body would reduce the time required of important
ESC members, the duties of the board seem somewhat duplicative
of those of the ESC.

Before the House and Senate versions of the bill were sent to
the joint conference committee, two significant amendments were
proposed and approved on the floor of the House. One, offered by
Representative Beard of Tennessee, provided that once an exemp-
tion had been granted for a particular project, it would be good
even as to new species added to the lists of endangered or threat-
ened species and as to species newly discovered within the con-
struction area. 189 The second amendment provided a specific ex-
emption from the Act for the Tellico project.' 90

The bill also included authorization for appropriations to take the Act through fis-
cal year 1981. H.R. 14104, supra note 184, at § 4. This was modified by amendment
so that funding was authorized only through March 31, 1980 because "[pireliminary
findings by the General Accounting Office indicate[d] that the Endangered Species
Act [was] incredibly mismanaged." 124 CONG. REC. H12,881-82 (daily ed. Oct. 14,
1978) (amendment offered by Rep. Beard). See also text accompanying notes 222-24
infra.

187. H. REP. No. 1625, supra note 150, at 14.
One is appointed by the Governor or Governors, one by the Secretary, and the

third is selected by the first two within 15 days of the appointment of the sec-
ond. If the two appointees are unable to agree on a third member, the Endan-
gered Species Committee is directed to select the third member.

Id. at 21. As passed, the Amendments provided for one review board member to be
appointed by the Secretary, one by the President after receiving recommendations
from the Governors of the affected States, and the third was to be an administrative
law judge selected by the Civil Service Commission. See note 201 infra.

188. H. REP. No. 1625, supra note 150, at 14-15.
189. 124 CONC. REC. H12,881-82 (daily ed. Oct. 14, 1978).
190. See note 158 supra.

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C. The Endangered Species Act Amendments of 1978

The Amendments' 91 were clearly a product of compromise, con-
taining provisions from both the House and Senate versions and
funding for the Act through March 31, 1980.192 As enacted the
Amendments provide that the Secretary must consider the eco-
nomic impact on areas proposed as critical habitats and exclude any
such areas if the benefits of the exclusion outweigh the benefits of
including them. 193 This is not limited to critical habitats of inverte-
brate species as in the House bill, but does contain the caveat that
the Secretary cannot exclude an area from designation if failure to
delineate it would result in the extinction of the species. The defi-
nition of "species" still includes lower taxonomic groups, such as
subspecies, but only with respect to vertebrate fish or wildlife. 194

The Amendments include provisions requiring specification of criti-
cal habitats at the time the species are listed as endangered or
threatened 19 5 and requiring review of such lists at least once every
five years. 196

The early consultation process between the agency and the Sec-
retary has been modified for those situations in which no contract
for construction has been entered into and no construction has
been begun by the date of enactment of the Amendments. In that
event, the agency shall request information from the Secretary as
to whether any species listed or proposed for listing is present in
the construction areas. 197 If the Secretary identifies a potential con-
flict, the agency is required to conduct a biological assessment for
the purpose of identifying any endangered species likely to be af-
fected. ' 98 After the initiation of consultation, the agency may not
make any irreversible or irretrievable commitment of resources
which would have the effect of foreclosing any reasonable and pru-
dent alternative measures. 199 At the end of the consultative pro-

191. Endangered Species Act Amendments of 1978 (Amendments), Pub. L. No.
95-632, CONFERENCE REPORT, ENDANGERED SPECIES ACT AMENDMENTS OF 1978,
H.R. REP. No. 1804, 95th Cong., 2d Sess. (1978) [hereinafter CONF. REP.] (to be
codified at 16 U.S.C. §§ 1531-1543).

192. Id. § 9, CONF. REP. at 12.
193. Id. § 11, CONF. REP. at 16.
194. Id. § 2, CONF. REP. at 2.
195. Id. § 11, CONF. REP. at 13.
196. Id. § 11, CONF. REP. at 14.
197. Id. § 3, CONF. REP. at 3.
198. Id.
199. Id.

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cess, the Secretary must issue a written opinion containing sugges-
tions of reasonable and prudent alternatives. 200

In the case of an irresolvable conflict, an application for exemp-
tion shall be considered initially by a review board.20' Rather than
making recommendations to the ESC, the review board prepares a
report discussng the availability of reasonable and prudent alter-
natives, the nature and extent of benefits of the action and any
alternatives, whether the action is in the public interest and of na-
tional or regional significance, and, finally, an appropriate rea-
sonable mitigation and enhancement measures available to the
ESC.

2 0 2

Under the Amendments, the ESC is composed of seven mem-
bers. 20 3 The presence of five, appearing in person, is required to
constitute a quorum. An exemption can be granted only by the
vote of five of those members.204 The basis of its decision to grant
an application must be that there are no reasonable and prudent
alternatives, that the benefits of the action clearly outweigh the
benefits of any alternatives and the action is in the public inter-
est, 20 5 that such action is of regional or national significance, and
that the ESC has provided reasonable mitigation and enhancement
measures.20 6 Once granted, an exemption will be permanent with
respect to that project, even as to species later listed or discovered
within the construction area, unless it would result in the extinc-
tion of the species.20 7

200. Id.
201. Id. § 3, CONF. REP. at 5-7.
202. CONF. REP., supra note 191, at 19, 21. (Due to printing errors, pages 19-21 of

the Conference Report should be read in the order: 19, 21, 20.)
203. Amendments § 3, supra note 191, CONF. REP. at 4.
204. Members must vote in person. Id. § 3, CONF. REP.. at 8.
205. The Conference Committee stressed that the ESC should not "balance the

benefits of the action against the value associated with the listed species." CONF.
REP., supra note 191, at 20. This caution has been overlooked in reports by the
press. N.Y. Times, supra note 125; N.Y. Times, Jan. 24, 1979, § A, at 21, col. 3.

206. These measures should be reasonable in cost, likely to protect the listed
species, and technologically possible. Their provisions must be spelled out in the
document granting the exemption, authorized by Congress prior to implementing the
exempted project, and funded by Congress concurrently with all of the other project
features. CONF. REP., supra note 191, at 22.

Notwithstanding the other provisions of the Act and the Amendments, the ESC
must grant an exemption if the Secretary of Defense finds it necessary for reasons of
national security. Amendments § 3, supra note 191, CONF. REP. at 8.

207. Amendments § 3, supra note 191, CONF. REP. at 8. Judicial review of the
ESC's decision is available. Id. § 3, CONF. REP. at 9.

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The House had specifically exempted Tellico from the provisions
of the Act, but the Senate had rejected this approach. In the ver-
sion which emerged from the conference committee, TVA was
granted a telescoped procedural review, omitting the consideration
of the application by the review board.20 8 Additionally, the ESC
was not required to find that the project was of national or regional
significance 20 9 and was required to decide the merits of the case
within ninety days after the date of enactment.2 10 Lest others be-
lieve that this abbreviated review would be available for other proj-
ects, the conference committee stated their view that "these are
the last instances when any project should receive special consider-
ation in the exemption process."211

VI. CONCLUSION

A. Tellico and the Snail Darter Revisited

On January 23, 1979, the ESC voted unanimously not to grant
TVA an exemption from the ESA for the Tellico project. 212 This
decision was based on the findings of the ESC that there was a rea-
sonable and prudent alternative and that the benefits of completing
the project21 3 did not clearly outweigh the benefits of alternative
courses of action. 214 The primary alternative 215 called for removal
of a portion of the earthen dam and development of the site as a

208. CONF. REP., supra note 191, at 24-25.
209. Id.
210. If no decision had been forthcoming in that time, the project would have

been automatically exempted. Id.
211. The Grayrocks Dam and Reservoir in Wyoming was also granted special

consideration by the Amendments. Id.
212. Endangered Species Committee Transcript on the Application for Exemp-

tion for Tellico Dam and Reservoir Project (Jan. 23, 1979) (Cecil D. Andrus, Chm. of
Endangered Species Committee) [hereinafter cited as Transcript].

213. As the ESC viewed it, the benefits of completing the dam and filling the
reservoir included power production, flood control, recreation, navigation and water
supply. Decision, supra note 60, at 3.

214. Id. at 2.
215. The ESC also discussed two other project alternatives. One involved the

construction of a 2500 acre reservoir on the Tellico River, a tributary of the Little
Tennessee River. TVA had found this alternative infeasible, though according to the
Decision some commentators found it to be reasonable and prudent. Id. The last
suggestion involved leaving the reservoir areas unflooded, but keeping the dam in-
tact for flood control. There was, however, no assurance that this alternative would
permit continued viability of the snail darter population. Id. at 2-3.

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Endangered Species Act

free flowing river. 216 The ESC found the river development
scheme to be technically feasible and prudent to implement.2 17
This plan involved some unquantifiable benefits from preservation
of archaeological, cultural, and historic sites; customary fish and
wildlife values (e.g., trout fishing); and ecological, aesthetic and
scenic values associated with the preservation of the snail darter.2 18

The net measured benefits, as found by the ESC, would be about
one half million dollars more for the reservoir than for the river de-
velopment alternative.2 19 This was not enough to clearly outweigh
the benefits of this alternative, as required by the Amendments,
particularly when the unquantifiable benefits were considered. In
spite of this, late in the summer of 1979 Congress passed a $10.8
billion energy and water development bill which included an ap-
propriation for. the completion of the Tellico, Dam. The President
signed the bill on September 25, 1979 and on the following day the
New York Times reported that "one reason the President had
agreed to the bill was to avoid the possibility that Congress would
weaken or abolish the Endangered Species Act in the future."

B. An Evaluation

The Amendments should add more flexibility to the original
ESA, but at a cost, the extent of which will not be known until the
Amendments are enforced. The scope of the ESA has been limited
somewhat by the new definitions of species and critical habitat,
though in real numbers, the exclusion of lower taxonomic groups of
invertebrate species and the additional discretion over the designa-
tion of critical habitats given to the Secretary may not be too signif-
icant. Neither of these changes would have affected the outcome of
the Tellico controversy. The requirement that all agencies check
with the Secretary at the planning stage on all projects begun after
the enacting date of the Amendments provides an additional layer
of insurance. Again, had this provision been part of the original
act, the Tellico controversy still would not have been averted.

216. Its quantifiable benefits included agricultural and forestry production and
recreation. Id. at 3.

217. Id. at 2.
218. Id. at 3. According to one source, these measures may have come too late

because silting and other construction problems have already decreased the number
of snail darters in the Little Tennessee to about 500. [19781 9 ENVIR. REP. (BNA)
664.

219. Transcript, supra note 212, at 18.

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The value of the review board will need to be reexamined after
its operative provisions have been utilized in the resolution pro-
cess, as it is questionable whether its screening function is worth
the added layer of bureaucracy. The first two controversies re-
solved by the ESC did not utilize this procedure and seemed to be
none the worse for it. The same function could probably be per-
formed adequately by the ESC's own staff, as in the Tellico deci-
sion.

Commentators have noted at least two other problems with the
original Act. The first occurs when the Act is seemingly misused:

Some mechanism needs to be found to keep special interest
groups from using the Endangered Species Act cynically, for
their own purposes .... [A] number of "environmentalists" ...
do not care about some of these endangered species at all. They
are using the act as a way to attack the construction of dams,
grazing, drilling, mining, and any other activity they think is un-
desirable .220

The answer has already been provided:

[T]hough relatively few lawsuits are filed solely to protect en-
dangered species, many environmental suits attempt to preserve
natural ecosystems from the burgeoning "development" which
threatens the habitats needed by endangered species and other
wildlife. . . . [S]urely there is nothing dishonorable about en-
forcing a valid statute to the full extent allowed by its plain
meaning. 221

The final problem concerns the manner in which the FWS is al-
legedly administering the listing procedures. 22 2 To the extent that
political pressures prevent the FWS from listing a species out of
"fear of provoking the Congress into weakening the protective pro-
visions of section 7, "223 the flexibility added to section seven by
the Amendments should eliminate the difficulty. To this end, the
new provisions regarding the scope of the meaning of "species" and
the discretion granted with regard to the desgination of critical
habitats should also help. Full consideration of this problem must,
wait, however, for more information on the extent of the problem
from the forthcoming GAO report. 224

220. 124 CoNG. REC. S11,017 (daily ed. July 18, 1978) (remarks of Sen. Gan).
This criticism has also been made of NEPA.

221. Emphasis added. Wood, supra note 53, at 31-32.
222. H. REP. No. 1625, supra note 150, at 13.
223. S. REP. No. 874, supra note 151, at 3.
224. 124 CoNG. REc. H13,358 (daily ed. Oct. 13, 1978) (remarks of Rep. Lott).

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1979] Endangered Species Act 315

In passing the 1978 Amendments, Congress has largely reaf-
firmed its stance on the value and importance of protecting endan-
gered and threatened species. The greatest difficulty remaining
with the Act is its implementation by the FWS, and not the con-
flict resolution process. The requirements for consideration by the
ESC have been made strict enough to maintain the integrity of
the consultative process between the acting agency and the Secre-
tary, leaving the bulk of the responsibility for protecting endan-
gered and threatened species with those whose actions create the
danger to the species. If an irresolvable conflict does arise, the Act
now clearly indicates what body will do the final weighing and
what standards will guide the decision.

Nancy M. Ganong