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Last modified
7/14/2009 5:02:30 PM
Creation date
5/20/2009 5:14:13 PM
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UCREFRP
UCREFRP Catalog Number
7393
Author
Harrington, W.
Title
Endangered Species Protection and Water Resource Development.
USFW Year
1980.
USFW - Doc Type
LA-8278-MS,
Copyright Material
NO
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<br />(3) They must consult with the Secretary concerning such activities. <br />Section 7 does not allow for the regulation of all activities protecting <br />endangered species; it allows for only those with some Federal agency presence. <br />This is a very large class of activities, particularly in the West. In addi- <br />tion to all federally funded projects, it includes those for which a federal <br />permit is required. Also, while Section 7 does not contemplate direct inter- <br />vention by the Secretary of the Interior, the process that has emerged from it <br />allows extensive opportunities for the regulation of projects. The other <br />federal agencies have the direct responsibility and regulatory authority to <br />protect endangered species jeopardized by activities performed, funded, or <br />otherwise permitted by them. The Secretary's authority comes from the consul- <br />tation requirement put on these other agencies. The result of the consultation <br />is that the Fish and Wildlife Service issues a "biological opinion" on the <br />effects of the action on endangered wildlife. The agency involved is not bound <br />to accept this opinion, but if it does not, its position is more vulnerable if <br />there is a subsequent court case. <br />The fourth innovation in the 1973 Act was a citizen suit provision, which <br />permits any person to file a civil suit against the United States and any of <br />its agencies to enjoin them from violating the Act. <br />Section 7 has emerged as the most effective (and controversial) feature <br />of the 1973 Act. It is useful to compare it with Section 102 of the National <br />Environmental Policy Act (NEPA), with which it has a certain procedural resem- <br />blance. NEPA makes environmental quality an objective of national policy, and <br />Sec tion 102 states that federal programs be undertaken so that environmental <br />objectives "be given appropriate consideration in decisionmaking along with <br />economic and technical considerations." To that end, Section 102 (C) requires <br />the preparation of an Environmental Impact Statement (EIS) for most federal <br />actions that may affect environmental quality. Similarly, the Endangered Spe- <br />cies Act requires that federal agencies report on the impacts of their actions <br />on endangered species (in fact, this determination is usually made as part of <br />an EIS) and if necessary, they should consult with the FWS. <br />However, Section 7 goes far beyond a requirement that agenc1es "give ap- <br />propriate consideration" to the effects of their actions on endangered species <br />(presumably this is required by NEPA anyway). If it is determined in the con- <br />sultation process that a proposed agency action poses a threat to the survival <br /> <br />11 <br />
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