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001& 3 2002] THE lAST GREEN lAGOON 959 Defenders of Wildlife v. Babbitt springs from BOR's dismissal of evaluations by several federal agencies detailing the effects of the decline of perennial fresh Colorado River water on listed species in the Delta.339 First, NMFS advised BOR in June 1996 that its operation of lower Colorado River dams modified flows into the Delta, contributing to the decline of the totoaba population.340 Consequently, NMFS advised BOR that it must consider the dams' impact on the totoaba in its final biological assessment (BA).341 Nevertheless, in its final BA, BOR considered only impacts on species within the territorial borders of the United States.342 Despite its earlier advisement, NMFS avoided a confrontation with BOR by reversing its earlier position. It decided there was no need for further consultation because the totoabaexists only in Mexico and BOR does not have the discretion to control water use in Mexico. 343 Second, FWS made a 1997 finding that that BOR's discretionary management of the Lower Colorado dams were likely to jeopardize a number of listed species, including the Southwestern willow flycatcher.344 Like NMFS, however, FWS also agreed that BOR need not consider the impact of its actions on listed species in Mexico.345 Defenders of Wildlife raises two separate legal questions. First, does the ESA apply when a federal agency acts outside the borders of the United States? This question was at least marginally at issue in Defenders of Wildlife, at least insofar as the decision to release or not to. release water to Mexico can be seen as action outside .of the United States. The more critical extra-territorial question, however, is whether domestic application of the ESA to the development of the Lower Colorado River Basin Multi-Species Habitat Conservation Plan requires consideration of the international impacts of BOR's activities. Does the ESA require federal agencies to engage in consultation regarding the impacts of their actions on species in Mexico? Defenders of Wildlife also implicitly raises a separate legal issue: whether federal agencies must consider the impact that the release of flows to Mexico and the Delta would have on protecting listed species within the boundaries of the United ~ ~ I ~ 339. See tel <JI'lI 49-61. 340. Id.'l!49. 341. Id 342. See id 'l! 52. 343. See id. 'l! 53. 344. See id <JI'lI 55-56. 345. See id. 'l! 55.