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• Board Meeting Date: 9/17/2008
• Description: Director's Report - CWCB Director
• Board Meetings - Doc Type: Memo

NFEDERAL AND INTERSTATEN
PROPOSED AMENDMENTS TO ENDANGERED SPECIES ACT (ESA)
REGULATIONS GOVERNING INTERAGENCY COOPERATION: On August 15th the U.S.
Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) proposed to amend
regulations governing interagency cooperation under the Endangered Species Act of 1973. The proposed
changes, which appear in the Federal Register (73 FR 159, 47868-47875, August 15, 2008), are designed
to reflect current practices and recent court decisions. The proposed amendments would clarify several
definitions, clarify when Section 7 regulations are applicable and the correct standards for effects
analysis, and establish time frames for informal consultation. The amendments to these regulations
reflect what has been learned since the last meaningful amendments were made in 1986.
The definitions changed are: 1) Biological Assessment, 2) Cumulative effects, and 3) Effects of the
action. With respect to changes to the "Effects of the action," the intent of the amendment is to clarify
that the effect cannot just be speculative and that it must be more than just likely to occur. The intent is to
emphasize that "reasonably certain to occur" is not equivalent of NEPA's reasonably foreseeable
standard. The "reasonably certain to occur" is a much narrower standard. The amendment will seek to
clarify that for an indirect effect to be considered as an effect of the action under consultation that action
must be an essential cause of the effect.
Amendments to the "Applicability Section" seek to further clarify that section 7 consultation only applies
to discretionary agency actions as the Supreme Court has ruled. The amendments will seek to better
delineate when section 7 consultation is not applicable and that the threshold requirement will be that no
take is anticipated. In making these amendments it is hoped that the number of unnecessary consultations
can be reduced.
Amendments to the "Informal Consultation" process will include language that will expand the process
by allowing informal consultations on a number of similar actions, an agency program, or a portion of a
comprehensive plan to be done under a single consultation. The amendments will also limit the duration
of informal consultations and seek to lend greater certainty to that process. Comments were due on
September 15th and we will provide the Board additional information at the meeting. (Randy Seaholm)
NAVAJO-GALLUP PROJECT & NAVAJO SETTLEMENT UPDATE: In April 2007
Senator Bingaman of New Mexico introduced the "Northwestern New Mexico Rural Water Projects Act"
(5-1171) that would, among other things, ratify the Navaj o Settlement and authorize the construction of
the Navajo-Gallup Water Supply Project. Under the settlement agreement, the Navajo Nation obtains
water rights and associated water development projects within the State of New Mexico, primarily in the
San Juan River Basin. However, some of the water diverted from the San Juan River and the Upper Basin
of the Colorado River will be used in the Lower Colorado River Basin portion of New Mexico around the
Gallup area and could also be used within the State of Arizona under terms of a yet to be approved
settlement agreement between Arizona and the Navaj o Nation.
In late June, 5-1171 was moved to the Senate floor and has subsequently become part of an
approximately 90 bill omnibus package (5-3213). Language in 5-1171 was initially neutral on the matter
of use of Upper Basin water in the Lower Basin, however, Arizona and Navajo were both insistent on
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