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When some USBR water facilities in the basin, along with certain other non-federal <br />projects, had been found to have created jeopardy for listed species associated with the central <br />Nebraska critical habitat, the project sponsors wauld have to begin to search for options to redress <br />matters. Any solutions to be developed would be advanced for scrutiny under two lenses-one <br />conducted under the auspices of NEPA that eventuates in the production of an environmental <br />impact statement (EIS), and another of the United States Fish and Wildlife Service as it worked to <br />implement the ESA by formulating a biological apinion regarding the proposed action and, if <br />jeopardy is to be found, working to offset projected harm to species by insuring construction of a <br />viable reasonable and prudent alternative that could maintain and improve habitat for listed <br />species. <br />ESA and Reasonable and Prudent Alternatives <br />To obtain ESA compliance, any federal action agency proposing to undertake a project <br />that may negatively affect one or more listed species is required under section 7 to consult with <br />the USFWS to determine whether that agency believes that the proposed action will likely <br />jeopazdize the continued existence of endangered or threatened species (Freedman 1987). Any <br />action agency that receives a FWS `jeopardy opinion' is technically free to make its own decision <br />about the consistency of its proposed action with section 7. However, since the FWS biological <br />opinion will be given weight in any citizen's legal challenge to the proposed action, other agencies <br />are seldom willing to proceed with their challenge in face of a FWS biological opinion specifying <br />jeopardy. Furthermore, the FWS will be unwilling to endorse any action agency's proposal that <br />would be inconsistent with its own biological opinion stating a jeopardy rationale because that <br />agency would predictably find itself subject to civil lawsuits from citizens who follow closely the <br />disposition of jeopardy opinions (Bean 1999). The ESA specifically has empowered citizens to <br />file suit against the Fish and Wildlife Service and other resource agencies and resource users for <br />violations of the act. <br />Remedy for having been found to be a cause of "jeopard}?" to listed species is to be found <br />in any one or more of three ways: 1) shut down and thereby eliminate that cause of jeopardy; 2) <br />revise the project so as to eliminate cause of jeopardy; or 3) undertake to create a"reasonable and <br />prudent alternative" (RPA) that permits the project to continue while at the same time providing <br />relief for the listed species. The holy grail of the section 7 consultation process for a resource <br />user, singly or in collaboration with others, is to create either a project revision or a RPA, have it <br />reviewed under NEPA/EIS process, and have it judged to be satisfactory by the FWS-i.e., <br />sufficient to offset the original harnl to the species. All this will produce the prize-sanction to <br />continue operation with the promise of regulatory certainty. <br />Future Without A Collaborative Recovery Program <br />Since the late 1970's, the Fish and Wildlife Service has issued "jeopardy biological <br />opinions" for virtually all water projects that deplete flows in the Platte River Basin. In 1993, the <br />Fish and Wildlife Service issued a series of draft jeopardy biological opinions for existing <br />municipal and irrigation reservoir supply projects located on national forest lands in the <br />headwaters of the South Platte River Basin in Colorado. <br />18