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<br />. <br /> <br />. <br /> <br />2 <br /> <br />The Opinion then states that "the likelihood of recovery in the mainstem <br />Colorado River is still appreciably reduced." It appears as though the <br />Opinion is making the argument that a proposed action cannot reduce <br />appreciably the likelihood of survival or recovery without falling below the <br />jeopardy threshold. However, the opposite conclusion is supported by the U.S. <br />Fish and Wildlife Service's (Service) analysis of the regulations as printed <br />in the following sections of the Federal Register: <br /> <br />Page 19931 of the Federal Register, Vol. 51, No. 106, June 3. 1986 states: <br /> <br />"The obligation of Federal agencies under section 7(a)(2) is to <br />insure that the actions they authorize, fund or carry out are not <br />likely to jeopardize listed species or destroy or adversely modify <br />their critical habitat. A showing of "adverse effect " does not <br />necessarily violate section 7(a)(2), because the jeopardy standard <br />is the ultimate barrier through which Federal agencies may not pass <br />in conducting these actions. "Reasonable and Prudent Alternatives" <br />represent avenues of fulfilling the action without violating the <br />jeopardy standard." ' <br /> <br />Page 19958 states: <br /> <br />"The Definition of "Jeopardize the continued existence of" means to <br />engage in an action that reasonably would be expected, directly or <br />indirectly, to reduce appreciably the likelihood of both the <br />survival and recovery of a listed species in the wild by reducing <br />the reproduction, numbers, or distribution of that species." <br />(emphasis added) <br /> <br />Page 19934 of this same rule states that: <br /> <br />"The conjunction "and" was added to the 1978 rule's definitions of <br />these phrases, but the word "both" was added by the proposed rule to <br />emphasize that, except in exceptional circumstances, injury to <br />recovery alone would not warrant the issuance of a "jeopardy" <br />biological opinion." <br /> <br />The difficulty of separating jeopardy and recovery is further illustrated by <br />numerous references within the Opinion to pre-dam conditions and to a report <br />by Dr. Stanford evaluating instream flows to assist in recoverv (page 31). <br />Similarly, references within the Opinion to 'a unique opportunity to conserve <br />and protect endangered and other native fish.. ' (page 33), and, reference to <br />the Grand Canyon Protection Act (GCPA) as opposed to the Endangered Species <br />Act (ESA), raise concern as to whether the reasonable and prudent alternative <br />has as its goal removal of jeopardy or recovery. It should be recognized that <br />the GCPA is Title XVIII of the Reclamation Projects Authorization and <br />Adjustment Act of 1992, Title VI of which contains the provision that nothing <br />in these titles shall be interpreted as modifying or amending the provisions <br />of the ESA of 1973. Also, section 1806 of the GCPA states that nothing in <br />this title is intended to affect in any way ...any Federal environmental law, <br />including the ESA. Again, we appreciate the difficulty in separating impacts <br />