The marine sanctuaries program is still very much a fledgling program with only two sanctuaries designated thus far.251/ Nonetheless, if it lives up to the ambitions embodied in its implementing regulations, it offers substantial promise of protecting marine wildlife habitats. Those regulations contemplate that among the areas to be designated are those "necessary to protect valuable, unique or endangered marine life," as well as those "important to the survival and preservation of the nation's fisheries. "252/ Thus, marine sanctuaries could be established as, in effect, marine wildlife refuges. 253/ Obviously, however, the protection of such areas will necessarily entail developing a regulatory framework adequate to deal with the unique problems of protecting ocean areas. The land based wildlife refuges will offer only limited utility as analogous areas from which to derive management principles. 251/ 252/ 253/ Those sanctuaries are the U.S.S. Monitor Marine Santuary 15 C.F.R. $922.2 (1976). See text accompanying note 57 supra. CHAPTER SEVEN: WILDLIFE CONSERVATION THROUGH MANDATING CONSIDERATION OF WILDLIFE IMPACTS As early as the 1930's, it was apparent that the conservation of wildlife could not be assured solely by means of laws which regulated its direct utilization or set aside sanctuaries for its protection. What was needed as well were legal measures which would interject into the planning of a myriad of activities taking place outside those sanctuaries some consideration of their likely impacts on wildlife. By thus requiring that consideration, it could be hoped that alternatives having less adverse impacts on wildlife could be identified. This chapter examines a number of federal statutes utilizing that strategy to varying degrees to achieve wildlife conservation. Some, like the Fish and Wildlife Coordination Act, are narrowly drawn to mandate a consideration only of wildlife impacts. Others, like the more recent federal pollution legislation, seek to achieve a wide range of environmental goals including, but not limited to, wildlife conservation. There are also significant differences in the ways these statutes seek to compel consideration of wildlife and other environmental values. Some do so through requiring consideration of the impacts of individual projects; others require the development of long-range comprehensive plans encompassing a broad spectrum of development activities. Still others incorporate a consideration of such impacts in the setting of regulatory standards. Finally, there is a substantial degree of overlap and interrelationship among the statutes considered here, a fact which often reinforces, but sometimes dilutes, the mission of any single statute. A. The Fish and Wildlife Coordination Act Probably the first major federal wildlife statute to employ the strategy of compelling consideration of wildlife impacts was the Fish and Wildlife Coordination Act.1/ In some respects, the Coordination Act that was originally passed in 1934 was a remarkably forward-looking piece of legislation. For example, it authorized "investigations . . to determine the effects of domestic sewage, trade wastes, and other polluting substances on wild life, "2/ encouraged the "development of a program for the maintenance of an adequate supply of wild life" on the public domain and other federally owned lands"3/ and called for state and federal cooperation in "developing a Nation-wide program of wild life conservation and rehabilitation."4/ The need for legislation like the Federal Water Pollution Control Act5/ and the Sikes Act Extension6/ some forty years later underscores the failure of the original Coordination Act's promise. Part of that failure can be attributed to the purely hortatory nature of the legislation. Only two provisions appeared to be mandatory. They required consultation with the Bureau of Fisheries prior to the construction of any dam, 7/ and opportunity to use the impounded waters of any dam "for fish-culture stations and migratory bird resting and nesting areas . . not inconsistent with 16 U.S.C. §§661-667e (1970). Act of March 10, 1934, ch. 55, $2, 48 Stat. 401. Id. $5. Id. $1. 33 U.S.C. $$1251 et seq. (Supp. IV 1974), discussed infra at text accompanying notes 128-53. 16 U.S.C. §§670a-6700 (Supp. IV 1974), discussed in Chapter Six supra at text accompanying notes 104-16. Act of March 10, 1934, ch. 55, §3(b), 48 Stat. 402. the primary use of the waters."8/ As to the consultation requirement, however, the only apparent object was to determine if fish ladders or other aids to migration were "necessary [and] economically practica ble."9/ Moreover, the mandatory nature of both these provisions was questionable, for, according to the House Report: [T]here is nothing but a spirit Not surprisingly, Congress soon came to the view that the 1934 Act had "proved to be inadequate in many respects."11/ The result was a major legislative overhaul in 1946.12/ In part, the revisions of 1946 represented a retreat from some of the more ambitious goals of 1934. Deleted were the goals of establishing a nation-wide program of wildlife conservation and of maintaining an "adequate supply" of wildlife on the federal public lands. In part also, however, the 1946 amendments sought to expand the scope of some of the specific directives of the original Act. For example, consultation with the Fish and Wildlife Service (successor to the Bureau of Fisheries) and with the appropriate state wildlife agency was required not only in the case of dam construction, but "[w]henever the waters of any stream or other body of water are authorized to be impounded, diverted, or otherwise controlled for any purpose whatever by any department or agency of the United States, or by any public or private agency under Federal permit."13/ Further, the object of such 8/ Id. $3(a), 401. 9/ Id. $3(b), 402. 10/ 11/ 12/ 13/ H.R. Rep. No. 850, 73d Cong., 2d Sess. 1 (1934). consultation was not merely to aid the migration of fish, but to prevent "loss of and damage to wildlife resources, "14/ an object of enormous potential scope because of the following broad (and circular) definition given to "wildlife": [B]irds, fishes, mammals, and all A further expansion of the 1946 amendments was that whenever the requirement of consultation applied, so too did the requirement of making "adequate provision consistent with the primary purposes of such impoundment, diversion, or other control . . . for the conservation, maintenance, and management of wildlife."16/ To this end, the Act directed that the waters and lands thus utilized be made available without cost for administration by the appropriate state wildlife agency, or by the Secretary of the Interior if the area had "particular value" for migratory bird management.17/ The "adequate provision" requirement would have been given further specific content by a directive in the original House bill that the Corps of Engineers consider the impacts on wildlife in its operation of impoundment facilities. However, the War Department successfully lobbied against that operating restriction.18/ In the only significant reported case to consider the 1946 amendments, Rank v. Krug, the court found 18/ See Shipley, The Fish and Wildlife Coordination Act's Appli- |