Part I of this article provides a brief background to fish stocking practices in the United States, including a discussion of beneficial fish stocking practices, as well as some of the allegations surrounding the detrimental effects. Part II of this article provides some necessary background on section 9 of the ESA, the “actual injury” prong, the “significant impairment” prong, and their application to fish stocking. Part III of this article sets forth recommendations for future clarification and increased consistency on these issues. Specifically, this article supports the use of two rules that can help reconcile the uncertain landscape surrounding a taking based on habitat modification. First, “actual injury” should be found where there is injury to either an individual or a population of protected species. Second, the degree of proof required to establish an “injury” where essential behaviors are impaired should be bifurcated into two tests, depending on which behavioral pattern is being adversely affected. Together, these rules can bring resolution not only to scenarios like fish stocking, but also to other future fact patterns scrutinized under the habitat modification analysis. Part IV of this article demonstrates how application of these rules to states can further the goals of the ESA, both through voluntary reevaluation of fish stocking programs, and through application for an Incidental Take Permit and corresponding Habitat Conservation Plan. These rules can provide two different paths to the same goal: to minimize adverse impacts to endangered and threatened species.
Amy L. Stein, State Fish Stocking Programs at Risk: Takings Under the Endangered Species Act, 20 Duke Envtl. L. & Pol'y F. 63 (2010), available at http://scholarship.law.ufl.edu/facultypub/507