Organizing for Endangered and Threatened Species Habitat Draft

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proposed action with section 7. Hawever, since the biological opinion will be given weight in the FWS's legal challenge to the proposed action, other agencies are seldom willing to proceed with their challenge in face of a biological opinion specifying jeopardy. Furthermore, the FWS is reluctant to grant permits in face of its own biological jeopardy opinion because the agency can predictably find itself subject to civil lawsuits from citizens who follow closely the disposition of jeopardy opinions (Bean 1999). The ESA specifically has empowered citizens to file suit against the Fish and Wildlife Service and ather resource agencies and users for violations of the act. Remedy for having been found to be a cause of "jeopardy" to listed species is to be found in devising a"reasonable and prude;nt alternative." If one's project or facility has contributed to jeopardy of one or more of the spec;ies of interest, sponsors face two choices: 1) shut down and thereby eliminate that cause of jeopardy; or 2) undertake to create a"reasonable and prudent alternative" that permits the projeci: to continue while at the same time providing relief for the listed species. The holy grail of the; section 7 consultation process is for a resource user, singly or in collaboration with others, to create such an alternative, have it reviewed under NEPA/EIS process, and have it judged to be s;atisfactory by the FWS-i.e., sufficient to offset the original harm to the species. All this will produce the prize-sanction to continue operation with the promise of regulatory certainty. The No Action Option Since the late 1970's, the Fish and Wildlife Service has issued "jeopardy biological opinions" for virtually all water projects that deplete flows in the Platte River Basin. In 1993, the Fish and Wildlife Service issued a series of draft jeopardy biological opinions for existing municipal and irrigation reservoir supply projects located on national forest lands in the headwaters of the South Platte River Basin in Colorado. In principle, the barrage of.jeopardy opinions could have caused major disruptions of water supplies for agriculture, cities, and power production. However, the FWS granted temporary approval for continued operation of permitted facilities on the condition that serious negotiations would be undertalcen. The purpose would be to create a basin-wide solution. There was clear understanding that if negotiations were to fail, ESA section 7 consultations would be reopened. Water users in the Platte River Basin were thereby provided an opportunity to voluntarily come into compliance with ESA, but there were fearsome consequences for no action. Failure to accomplish a sati.sfactory collective solution on a basin wide basis would mean individual consultations during which the Fish and Wildlife Service would evaluate each individual project against what the agency judged to be a basin-wide target flow shortage of 417,000 acre-feet per year at Granshortage numbers presented by the Fish and Wildlife Services, they were bound to them. If individual water users failed to build their own collective reasonable and prudent alternative in an acceptable manner, the Fish and Wildlife Service would devise its own solution on an individual case-by-case basis as federal permiit renewals came up. It would do so within a frame centered on what was to water users a shockingly high FWS water shortage calculation-an average of 417,000 acre feet per year. 17