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

"'.
&
'EVIEW [VoL 11 ?t.'

>vs ~ll be reached t2'
V'.yommg under the i:
bon Program, or (,:,.
~ place within two l~,
,cal Opinion, FWS'
lltation. The other {
ate further studies ~
I ddi f}
.e a . tional study'"
meficlal, it will not'
ojects for which re-.~
11 opinion does not
Igered river fish:.
:t reinitiate formal

rt>rge consultation
sions of the ESA.
>n is ongoing ESA
reversible or irre-
pect to the agency
he formulation or
udent alternative
nions for Flaming
cry Aqueduct and
~ver, the RPA for
vas still being for-
Lich FWS studied
ace for any of the
rs of reoperation
10 assurance that
(a)(2)118 jeopardy
sed. FWS appar-
.ng Gorge reoper-
opinion was in
s FWS to "make

fltation Plan see infra

,~

1993]

OF RAZORBACKS A.ND RESERVOIRS

59

every effort to complete Section 7 consultation on operation of
Flaming Gorge during 1989."119
ESA section 7 permits FWS and an agency taking action
to agree to extend consultation almost indefinitely, so long as
any private permit applicant involved inthe process consents
to the extension.120 Thus, the more than ten-year-Iong con-
sultation over Flaming Gorge, while startling, was not con-
trary to law. However, FWS and the BR used this drawn out
consultation process as an excuse to continue business as
usual, in direct contravention of section 7(d).121 When an
. agency action is proposed, the section 7 consultation process
"give(s] the benefit of the doubt to the species" and places the
'. burden squarely on the action agency to prove that its action
will not jeopardize endangered species.122 So long as the
Flaming Gorge consultation was ongoing, section 7(d) clearly
applied to all of the projects which relied on it as an RPA.
It could be argued that biological opinions were in fact
completed for Flaming Gorge and the CUP projects, and FWS
. then spent the next decade refining and revising the RP A
portion of those opinions. Both the Act's legislative history
and ESA case law indicate that section 7 does permit FWS to
issue a biological opinion based on "the best evidence that is
available or [that] can be developed during consultation."123
However, these same sources hold that: "[s]hould such an
opinion be issued, the action agency must continue research-

119. U.S. Fish and Wildlife Service, Recovery Implementation Program for
Endangered Fish Species in the Upper Colorado River Basin (1987), quoted in
Flaming Gorge Opinion, supra note 6: at 2 (emphasis added).
120. 16 U.S.C. ~ 1536(bX1)(A),(B) (1988).
121. See supra note 117 and accompanying text.
122. H.R. CONF. REP. No. 96-697, 96th Cong., 1st Sess. 159, reprinted in
1979 U.S.C.C.A.N. 2557, 2576, cited in Village of False Pass v. Watt, 565 F.
Supp. 1123, 1155 (D. Alaska 1983); see also Nebraska v. Rural Electrification
Admin., [1979] 12 Env't Rep. Cas. (BNA) 1156, 1171 (D. Neb. Oct. 2, 1978) (ESA
"places the burden upon the agencies~ to show their actions will not jeopardize
species).
123. H.R. CONF. REP. No. 96-697, 96th Cong., 1st Sess. 159, reprinted in
1979 v.S.C.CAN. 2557, 2576, cited in Village of False Pass v. Watt, 565 F.
Supp. 1123, 1155 (D. Alaska 1983) and North Slope Borough v. Andrus, 486 F.
Supp. 332, 352 (D.D.C. 1980), affd in relevant part, 642 F.2d 589 (D.C. Cir.
1980).