7852 - Laserfiche WebLink

Home Browse Search

1?VIEW [Vol. 11 3.se three" ESA is- sin covers portions st rapidly growing de-ranging species phases of their life tion, for instance :lreds of kilometer~ ast to, say, the de- ,sisted of a single Monument - can- 19le river segment. linked to one an- levitable repercus- cologicaJ. If the L\.ct are to be met , :ly tinker with re- le agency is duck- lellate court held, how- ;, and held only that the of the reservoir's water Carson-Truckee Water 1.5 (1984). See also Kil- I be further litigated in aonal Marine Fisheries 993), which involves a 6, 1993, concerning the impact on listed Snake ease of water stored in NIlstream migration of av. 9, 1993, as well as m for summary judge- l8, 1993. Idaho is seek- ;olumbia River Power Interview with William 'ces Division, Attorney 3). RADO, V.S. Dept. of In- -882 (1993). The basin I, Nevada, and Califor- :es and the Real World: E AGAINST EXTINCTION, (. f'. !! 1993] OF RAZORBACKS AND RESERVOIRS III. ESA Section 7 Consultations in the Colorado River Basin - Flaming Gorge Dam Reoperation Section 7 consultations103 for water projects in the river basin have consistently failed to comply with the ESA. The proposed reoperation of Flaming Gorge Dam is an instructive example of many of the respects in which FWS has, to date, failed to follow the dictates of the Act. Although the archetypical ESA case involves a planned construction project such as a dam,' highway or other struc- ture, section 7's protections are not limited to large projects or new undertakings. Section 7 expressly applies to "any pro- spective agency action."104 As the Supreme Court noted in TVA u. Hill: One would be hard pressed to find a statutory provision whose terms are any plainer than those in 9 7 . . .. This language admits of no exception. Nonetheless, petitioner urges, as do the dissenters, that the Act cannot reasonably be interpreted as applying to a federal project which was well under way when Congress passed the Endangered Species Act of 1973. To sustain that position, however, we wo.uld. be forced to ignore the ordinary meaning of plain language.10S As a lower court wrote two years later, "not only prospective actions, but all actions contemplated by an agency are subject to ESA scrutiny."106 Given the ESA's expansive reach, sec- tion 7's requirements apply not only to new water projects, 103. 16 V.S.C. ~ 1536(a)(2) (1988) provides that: Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency. . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species. Id. 104. 16 V.S.C. ~ 1536(a)(3) (1988). 105. TVA v. Hill, 437 V.S. 153, 173 (1978). 106. North Slope Borough v. Andrus, 486 F. Supp. 332, 351 (D.D.C. 1980) (noting that Congress' 1978 and 1979 amendments to the ESA indicate that it approved of the Supreme Court's construction of the term "agency action"). 55