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Fall 2000] MANAGING ECOSYSTEM CONSERVATION 851 850 NATURAL RESOURCES JOURNAL [Vol. 40 from taking actions that harml34 threatened or endangered species. Whether the ESA restricts agency actions when impacts are created across an international bOWldary is unresolved.t35The National Environmental Policy Act (NEP A)I36 requires federal agencies to consider the environmental impacts of their actions, and Executive Order 12114137 directs federal agencies to consider the environmental effects abroad of major federal actions. In 1997, the COWlcil on Environmental Quality issued a memorandum directing all U.S. federal agencies to consider the environmental impacts of their actions, regardless of where those impacts might occur.l38 Even the BOR has implementing regulations that require analysis of the affected foreign environment in environmental reviews.139 In the MSCP, the BOR and FWS, along with Arizona, Nevada, and California, are committed to a mandated planning exercise that will result in an application by the states to "take" endangered species in exchange for mitigation measures.l40 The MSCP is also intended to serve as a long-term compliance vehicle Wlder the Endangered Species Act141 for federal agencies that must consult with the FWS concerning the impact of Colorado River dam operations on threatened and endangered species. Significantly, MSCP participants have excluded the Delta from the MSCP planning area,142 despite the connection between the river's ecosystem both north and south of the international border.143 Several environmental groups contend that the MSCP is not only.-. '. biologically flawed, but also illegal.l44 The exclusion of the Delta prevenUE, federal agencies from considering within the MSCP process the impacts o~ their actions on endangered species that depend on Delta habitat. It ~~ prevents agencies from evaluating the possible benefits of mitigation in th~~; Delta. Of the five MSCP priority species, three (the American peregrine falcon, the razorback sucker, and the Southwestern willow flycatcher) are listed by the FWS with reference to critical habitat in Mexico.l45 Another endangered bird on the lower Colorado River, the Yuma clapper rail, has been reported in the Delta at the Cienega de Santa Clara.146 United States conservation obligations Wlder the ESA must be applied to endangered species fOWld in the Delta even if these species are not fOWld in the lower Colorado River in the United States, such as the desert pup fish, totoaba, and vaquita.147 However, conservation goals of the MSCP do not include these species.l48 In the long rWl, FWS and other federal agencies may be forced to end the MSCP, reclaim the process, and complete a full examination of the effects of federal river operations on the viability of endangered species in the Delta. Mexican law offers fewer possibilities for enhancing Delta habitat and preserving threatened and endangered species. The Mexican Constitution includes the Colorado River in the definition of national waters, but sets no policy for instream flOWS.149 The National Water Law of 1992 clearly gives CNA authority overnational waters, and 1994 regulations that implement the law provide for the use of national waters for ecological 134. Implementing regulations define harm to include "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." 50 C.F.R S 17.3 (1999). 135. The Supreme Court heard a case on this subject but declined to rule on the matter. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 582 (1992). 136. 42 U.S.C. S 4321-4370 (1994). 137. Executive Order No. 12,114,3 C.F.R. 356 (1980), reprinted in 42 U.S.C. 4321 (1994). 138. See Memorandum from Kathleen A. McGinty, Chair, White House Council on Environmental Quality et aL, to Rosario Green. Minister of Foreign Affairs, Mexico et aI. (July I, 1997) (on file with author). 139. See Bureau of Reclamation, Policy ENV-P03, National Environmental Policy Act policy, (last updated Feb. 10, 1998) <http://www.usbr.gov/recman/env /env-p03.html>. 140. See Multi-Species Conservation Program (MSCP) for the Lower Colorado River, Arizona, Nevada, and CalifornIa, 64 Fed. Reg. 27,000, 27,000-27,002 (1999). "Take" is defined in the Environmental Species Act as "to harass, harm. pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. S 1532(19) (1994); see supra note 134. 141. 16 U.S.C. S 1536 (a)(2)(1994). 142. "It is proposed that the MSCP will serve as ..a coordinated, comprehensive conservation approach for the lower Colorado River basin within the lOO-year floodplain from below Glen Canyon Oam to the Southerly Intemational Boundary with Mexico for a period of 50 years." Multi-Species Conservation Program (MSCP) for the Lower Colorado River, Arizona, Nevada, and CalifornIa, 64 Fed. Reg. 27,000, 27,000-27,002 (1999). 143. When first established in 1995, the MSCP included representatives from environmental groups. In 1998, when MSCP participants voted not to include the Colorado River delta in the scope of the planning area, the environmental representatives withdrew. 144. See Defenders ofWild1ife v. Babbitt, No. 1:00cVOI544 (D.O.C. filed Jun. 28,2000). See also Defenders of Wildlife, Groups Sue U.S. to Protect Mexican Wetlllnds and U.S. Endangered Species (visited Oct. 12,2000) <bttp:/ /www.defenders.org/releases/pr2000/px062800.html>. 145. See 50 C.F.R. S 17.11 (1999). 146. See Erik Me1Iink et al., Non-Breeding Waterbirds of the Delta of the Rio Colorado, Mexico, 68 J.FIELOORNllHOLOGY 113, 114 (1997). 147. ESA consultation requirements apply to all agency actions affecting listed species, whether within United States or abroad. See Defenders bf Wildlife v. Lujan, 911 F.2d 117, 123 (8th Cir.I990), rev'd on other grounds, 504 U.S. 555 (1992). 148. See generally Ogden Envtl. and Energy Services Co., Inc., Lower Co~rado River Multi. Species Conservation Program: Preliminary Species Conservation Goals (August 28, 1998) (unpublished presentation to Lower Colorado River Multi-Species Conservation Program Biology Subcommittee), available in pieces at <bttp:/ /www.lamscp.org/files.ht:m1>). 149. See Constituci6n PoUtica de los Estados Unidos Mexicanos [Constitution), Art. 27.