The Endangered Species Act is the statute involved in the publicized case in which a tiny fish caused the Supreme Court to bar the completion of the massive, $100 million Tellico Dam. Just before the Tennessee Valley Authority was to close the floodgates, it was discovered that the resulting reservoir would destroy the sole habitat of the snail darter, which the Department of the Interior had designated as an endangered species after construction of the dam commenced. While the statute has since been amended to provide a few exceptions to its prohibitions on any activity that would harm an endangered species, the Tellico Dam case serves as a graphic illustration of the impact this statute can have on construction of new projects.

The U.S. Fish & Wildlife Service ("F&WS") often plays a key role in determining whether a proposed project may jeopardize an endangered species, or constitute a prohibited "take" that would harm an endangered species.

In 1995, the U.S. Supreme Court upheld a F&WS rule defining "harm" to include any activity that would result in significant environmental modification or degradation of a listed species habitat. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687. In 1998, Congress will give serious consideration to major amendments to the statute that would give more consideration to human needs and economics in decisionmaking under the statute.

Morgan Lewis Endangered Species Activities

• Advice regarding restrictions on new projects adversely affecting endangered species.

Kenneth Rubin has addressed the ramifications of the Endangered Species Act in district court controversies. John Quarles has written about the Endangered Species Act in his book on project planning.

The Coastal Zone Management Act of 1972 (CZMA) reflected the concern of Congress with uncontrolled coastal development. The statute encourages states along the oceans and Great Lakes to adopt Coastal Zone Management Plans (CZMP) which, upon approval by the Department of Commerce, require any applicant for a federal permit to certify that its project is consistent with the state CZMP. Questions regarding such consistency may arise in proceedings for issuance of environmental permits by EPA or the Corps of Engineers.

The Coastal Barrier Resources Act of 1980 may also limit coastal development. The purpose of this law is to protect ecologically important and geologically vulnerable islands along the country s coastline. In areas designated as portions of the Coastal Barrier Resources System, developments cannot qualify for federal flood and disaster insurance.

• Assistance on complying with certification requirements.
• Identification of the scope of a particular coastal management plan.
• Assistance regarding the designation of Coastal Barrier Resources System areas.

While the application of the CZMA is limited to coastal areas, it obviously can have a crucial impact on a company seeking a permit to construct a new project in the coastal zone. Kenneth Rubin considered such issues in his article, "The Role of the Coastal Zone Management Act of 1972 in the Development of Oil and Gas from the Outer Continental Shelf," published in the Natural Resources Lawyer. He has lectured on this subject for many years. John Quarles and Richard Pettigrew have successfully obtained a determination from the Department of the Interior that certain acreage should not be included in the Coastal Barrier Resources System.