76 



section 3. small Take provisions. 



wo are gratified to see that this bill would rotain 

 ovaraight of management of Thraatanad and Endangarad marina 

 mammals with tha National Marina Fisheries Sarvice. While 

 we feel that requiring a section 7 consultation under the 

 Endangered Species Act (ESA) would aaaist in providing 

 information to monitor impact on thaae atooke, we do not 

 feel that thia addition ia adequately protective. 



The Section 7 process is not as protective as is generally 

 believed. In 1992 the General Accounting Offioe and the 

 World Wildlife Fund conducted aeparate reports on the 

 results of Section 7 consultationa in reaent years. Their 

 conclusions were virtually identical: .(1) almost ninety 

 percent of all consultations under the ESA are diaposed of 

 informally and without fanfare (2) over ninety peroent of the 

 consultations concerning activitiea sufficiently serious to 

 be conducted formally raaulted in findings of M no jeopardy"; 

 and (3) of those few [consultations] that were conducted 

 formally and found potential "jeopardy", nearly ninety 

 percent arrived at "reasonable and prudent" alternatives 

 that allowed projects to proceed. 



Furthermore "Through a myriad of interpretive and 

 regulatory means, only eighteen projects were terminated — 

 less than one percent of formal consultations, and less 

 than .02% of consultations overall. The alternatives 

 implemented for dealing with controversial projects that 

 impact threatened and endangered species have been strongly 

 influenced by local and national politics." (from: O.A. 

 Houck, The Endangered Species Act and its Implementation bv 

 the U.S. Departmen ts of Interior and Commerce. University 

 of Colorado Law Review) . 



In a report to the U.S. Fish and Wildlife Service by 

 its own biologists, it was stated that up to sixty percent 

 of vertebrate species listed under the ESA have recovery 

 goals which could lead to species extinction. Furthermore, 

 we are concerned that within the ESA, there is insufficient 

 definition of jeopardy to allow adequate protection even 

 under the Section 7 consultation provisions. 



We are not convinced that consultations under Section 7 

 of the ESA are likely to result in "reasonable and prudent" 

 measures sufficient to protect and recover ESA listed marine 

 mammal populations. The Kokachik decision in 1987 

 reaffirmed the notion that taking even one individual from a 

 depleted population may be sufficient to disadvantage that 

 stock. 



For these reasons, we do not support permitted takings 

 of endangered species. We acknowledge that there may be an 

 occasional accidental taking of an endangered species in the 

 absence of a permit. Because we propose that there be no 

 permits for takings, and to prevent penalty from accruing in 

 the case of a truly accidental taking; we propose that in 

 the event a vessel incidentally kills an animal from an 

 endangered species, that take should be reviewed by an 



