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<br />OIJ25n <br /> <br />. <br /> <br />Assuming the input from the public hearings do not reveal major problems with the <br />Program Agreement and the remair\ing details are worked out, the Governors and <br />Secretary Babbitt will sign the Program Agreement in late June or early July. <br /> <br />The Program Agreement consists of a number of component parts, which total <br />approximately 150 pages in length. This briefing will summarize the major elements of <br />the Agreement, but of course cannot address all of the provisions, nor can it speak for the <br />document itself. This briefing is for informational purposes only. <br /> <br />BACKGROUND .- THE ESA, AND COLORADO'S INTEREST IN SIGNIFICANT <br />EVENTS THA T AFFECT THE DEVELOPMENT OF A PROGRAM <br /> <br />. <br /> <br />The ESA. The ESA has been called the most powerful envirorunental law in existence. <br />The Act is invoked when the US Fish and Wildlife Service (the "FWS") "lists" a species <br />as endangered or threatened. This means that the species is in danger of extinction, or is <br />likely to become endangered within the foreseeable future. Once a species is listed, all <br />federal agencies must take affirmative measures to bring the species to a point at which <br />listing is no longer necessary. Additionally, any federal agency which takes any action, <br />or issues any permit to a private party (a "federal action agency"), must consult with the <br />FWS on whether the action or peffilit will likely jeopardize the continued existence of the <br />species or adversely modify its habitat. <br /> <br />Federal permits are required for a variety of private actions. In the case of the Platte <br />River, the most common are those issued by the Federal Energy Regulatory Commission <br />(FERC) for the licensing of hydroelectric facilities, the US Forest Service for the use and <br />development of water facilities on national forests, and' the' US Army Corps of Engineers <br />under section 404 of the Clean Water Act for dredge and fill activities in streams and <br />rivers. Thus, the development and operation of most large water supply and hydroelectric <br />facilities, which supply water and electricity to millions of people and irrigate tens of <br />thousands of acres of land, come within the scope of the ESA. On the other hand, private <br />actions, such as the drilling of wells, that do not involve federal funds, lands or permits <br />are not subject to the consultative provisions of the ESA. <br /> <br />. <br /> <br />If in the consultation process the FWS believes that a proposed federal action or permit <br />will jeopardize a listed species or its habitat, it will issue a ')eopardy opinion," which <br />specifies the basis for the opinion. In that event, the federal action agency cannot <br />undertake the action or issue the permit, because to do so would violate the ESA. The <br />jeopardy opinion also specifies what alternative actions, called "reasonable and prudent <br />alternatives," could be taken to allow the proposed action to go forward while not causing <br />jeopardy. In that case, if the federal action agency or permittee complies with the <br />reasonable and prudent alternative, the action or permit may go forward in compliance <br />with the ESA. <br /> <br />However, even for those activities that go forward on the basis of a reasonable and <br /> <br />2 <br />