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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 />[Sec. 7(a-d)] 1.S essentially the same as the FWS regulations promulgated on <br />January 4, 1978 (43 F.R. 870). <br />A,.I.~> Eac~ Federal agency is required ~o request from the. Interior .secretary <br />cu".\t~ 1.nformat1.on on whether endangered spec1.es may be present 1.n the reg1.on to be <br />~u\ affected by a project. If the Secretary advises that such a possibility <br />\ exists, the Agency must complete within 180 days a biological assessment to <br />identify endangered species that may be present. If a project could affect an <br />endangered species, the Secretary must submit within 90 days a biological <br />opinion stating whether in his view the proposed action will affect the species <br />or its habitat, and he must suggest modifications to the project that will <br />remove these effects. Neither the agency nor its licensee may make any "ir- <br />reversible commitment of resources" that would foreclose such modifications <br />during the consultation process. Further, if the biological opinion concludes <br />that the action will adversely affect the species or its habitat, it must be <br />altered in accordance with the opinion, or an exemption must be secured (see <br />below). By explicitly stating that a project cannot proceed in defiance of an <br />unfavorable biological opinion, the Amendments removed one source of ambiguity <br />in the 1973 Act. <br />But the Amendments also included some noteworthy changes that brought <br />"flexibility" to the Act and allowed incorporation of other considerations <br />under certain circumstances. The impetus for these changes was TVA v. Hill, <br />which subordinated all objectives to the cause of endangered species protec- <br /> <br />ti on: <br /> <br />One would be hard pressed to find a statutory provision whose terms <br />were any plainer than those of Section 7 of the Endangered Species <br />Act. . . . This language admits of no exception. <br />TVA vs. Hill, 8 ELR at 20517. <br /> <br />It was felt by many Congressmen that this absolute interpretation was not what <br />they had intended in the original Section 7, and the Act was amended to allow <br />tradeoffs among competing objectives. The Congress made sure, however, that <br />such tradeoffs were not to be made lightly; they were especially not to be <br />made by the developing agency. Decisionmaking that would balance endangered <br />species protection with other considerations was tightly centralized and made <br />highly visible. <br /> <br />18 <br />
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