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

58

PACE ENVIRONMENTAL LAW REVIEW

that agreements to protect instream flows will be reached
with the states of Utah, Colorado, and Wyoming under the
auspices of the Recovery Implementation Program, or
"RIP."1l5 If such an agreement is not in place within two
years of the promulgation of the Biological Opinion, FWS
may request reinitiation of section 7 consultation. The other
three of the RPA's five components mandate further studies
intended to refine dam reoperation. While additional study
of Flaming Gorge's effects will surely be beneficial, it will not
help mitigate the present impacts of the projects for which re-
operation is an RPA. Finally, the biologi~al opinion does not
authorize any incidental take of endangered river fish:
"[s]hould any take occur, Reclamation must reinitiate fonnal
consultation. "116
FWS'sactions during the Flaming Gorge consultation;
were and are in violation of several provisions of the ESA. .
First and most obviously, while consultation is ongoing ESA
section 7(d) unequivocally forbids "any irreversible or irre- .
trievable commitment of resources with respect to the agency
action which has the-effect of foreclosing the formulation or ....
implementation of any. reasonable and prudent alternative':
measures " . ."117 FWS issued jeopardy opinions for Flaming
Gorge and the two CUP Projects, Strawberry Aqueduct and
the Jensen Unit, inth~early 1980s. .However, the RPA for
these projects, FlalningGorge reoperation, was still being for-
mulated in 1992.:.DuriIlgthe decade in which'FWS studied
.reoperation there wa(no assured RP A in place for any of the
three projects. Indeed, until the parameters of reoperation
were more clearly specified, there could be no assurance that
the RP A would in fact preclude the section 7(a)(2)118 je9pardy
that FWS had already found the projects posed. FWS appar-
ez:I.tly understood that consultation on Flaming Gorge reoper-
ation was ongoing until a final biological opinion was in
place. The 1987 RIP for the basin commits FWS to "make

115. For a further discussion of the Recovery Implementation Plan see infra
notes 220-242 and accompanying text.
116. Flaming Gorge Opinion, supra note 6, at 35.
117. 16 D.S.C. ~ 1536(d) (1988).
118. 16 D.S.C. ~ 1536(a)(2) (1988).

-~.

'I
,".\

~'. ..

,
.:..

1993]

every effori
Flaming G,
ESAsE
to agree to
any privatE
to the exte
sultation 0
trary to 1m
consultatio
usual, in (
agency act:
;"give[s] thE
burden Sql
will not je
Flaming G
applied to
It coul
. completed
then spen1
portion of
and ESA c
issue a bio
; . available (
"However,
:opinion be

'119. D.S. I
Endangered]
Flaming Goq
120. 16 D.:
121. See SL
122. H.R.
1979U.S.C.C
Supp. 1123, J
Admin., [19n
"places the bl
species).
123. H.R.
1979 U.S.C.C
Supp. 1123, ]
Supp. 332, 3!
1980).