7852

• UCREFRP Catalog Number: 7852
• Author: Bolin, J. H.
• Title: Of Razorbacks and Reservoirs
• USFW Year: 1993
• USFW - Doc Type: The Endangered Species Act's Protection of Endangered Colorado River Basin Fish
• Copyright Material: YES

v

[Vol. 11

1993]

OF RAZORBACKS AND RESERVOIRS

luirement on
ly"61 any fed-
~deral actors,
:;ons often re-
! and fill per-
32 is required
~ngineers' is-
m 7 review.63
ure" that the
ued existence
mdard) or (2)
n of[the criti-
modification"
~, as adverse
Lize a species'
lrd, however,
of harm to a
l)(2) violation
val.65

(a)(2) are im-
3efore under-
ies or critical

habitat,"66 the "action agency" must consult with FWS as to
whether the action will violate section 7(a)(2). FWS may also
request consultation on its own initiative.67 During the con-
sultation process, the action agency must provide FWS with
the "best scientific and commercial data available or which
can be obtained during the consultation" concerning the ac-
tion's potential impacts on endangered species.68 FWS then
reviews this data and issues a "biological opinion," or, if FWS
concludes that it has insufficient data, it may request that
consultation be extended. While consultation is ongoing,
ESA section 7(d) mandates that neither the action agency nor
any private permit applicant "shall. . . make any irreversible
or irretrievable commitment of resources with respect to the
agency action which has the effect of foreclosing the formula-
tion or implementation of any reasonable and prudent alter-
native measures . . . ."69
Biological opinions can come to one of three conClusions.
If FWS issues a "no jeopardy" opinion, the project may pro-
ceed as planned. "Jeopardy" opinions come in two forms: a
naked "jeopardy opinion" or a jeopardy opinion with "reason-
able and prudent alternative" (RP A). If possible, FWS must
formulate an RPA, containing modifications tothe proposed
action that will enable it to avoid a naked jeopardy opinion.
IfFWS is unable to come up with an RP A, then it simply is-
sues a jeopardy opinion. The biological opinion may also in-
clude "conservation recommendations," suggestions as to
steps the action agency could take to reduce the impacts of
the proposed action on endangered species. These conserva-
tion recommendations are, however, purely advisory and are
not legally enforceable.
Finally, ESA sections 7(b)(4)70 and 7(0)(2)71 allow FWS to
authorize limited takings of protected species. When an ac-
tion will result in takings that do not rise to the level of a

)8, 512 (10th Cir.
tep. (BNA) 1156,

. slip op. at 7 (D.
itat for razorback
Ins be scrutinized
emorandum from
.991) ("thresholds
rent . . . in most
;ervation benefits
ication of Critical
L. REV. 311, 324
finds an adverse
ltion. n Therefore,
lalysis, ceasing to

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66. 50 C.F.R. ~ 402.14(a) (1992).
67. Id.
68. 50 C.F.R. ~ 402.14(d) (1992).
69. 16 V.S.C. ~ 1536(d) (1988).
70. 16 V.S.C. ~ 1536(bX4) (1988).
71. 16 V.S.C. ~ 1536(oX2) (1988).

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