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VIEW ;~ !work, and Wrote ..~\~" :LIlation' on which~' ~nment's declared~ ach no conclusion j., tation' process is~ ~~', .'~ lkes it clear that ~ . ,~, :lnod in which it;" 1 opinion. FWS's'" d the four CuP inly based on in- k any action by' Isonably likely to ;uation in North ~. ; Interior's le~se ,~ , whales, FWS is- ~ all three existing ( ill RP A. Ai:, the , pinion is conclu-: lto'l l: :l y VIO ate sec- ,"c IS have already;: f Flaming Gorge Unit without an '(a)(2)'s substan- rvival of endan- Again, section commitments of 11 opinion is in : as the RPA for Iplemented. In- ion which led to 984. Neverthe- of Strawberry I them in opera- yet to be imple- 1993] OF RAZORBACF 'J) RESERVOIRS 63 rnented.136 Spending federal r IC': (:y on a construction project is the archetypical "irretrievable commitment" of resources section 7(d) is designed to prevent.137 Further, it is eminently reasonable to argue that the "re- sources" referred to in section 7(d) need not be monetary. Water is also a resource, and a valuable one, particularly in the Colorado River Basin. However, Flaming Gorge Dam has continued normal or nearly-normal operation for more than a . decade since it received a jeopardy opinion. Each year it has " 'released the water it impounds, "irretrievably" and "irreversi- ;bly" committing it to uses other than protection of endan- gered fish.138 The release of the impounded water also has ; : had "the effect of foreclosing the . . . implementation" of an RP A, since the proposed RP A for the project was and is the release of that very water.139 BR has also violated section 7 by continuing construction and/or operation of the CUP projects and operation of Flam- ing Gorge Dam before being reasonably certain that the RP A 136. Since Strawberry Aqueduct went on line, BR has reportedly slightly in- creased flows from Flaming Gorge Dam during the periods the Aqueduct is in operation. There is, however, no formal biological opinion indicating that these releases are adequate. Further, there is no proof that these releases benefit endangered fish rather than downstream appropriators. The Flaming Gorge draft biological opinion specifically notes that to compensate for depletions from Strawberry Aqueduct it is "critical" that BR obtain legal protection to insure that water from the dam remains instream in the Green River to a point below the confluence of the Duchesne River. U.S. Fish and Wildlife Service, Final Draft Biological Opinion for the Operation of Flaming Gorge, 34 (Feb. 11, 1992) [hereinafter Flaming Gorge Final Draft Opinion]. However, to date BR appar- ently has taken no steps to protect instream flows. 137. See Nebraska v. Rural Electrification Admin., [1979) 12 Env't Rep. Cas. (BNA) 1156, 1172 (D. Neb. Oct. 2,1978). 138. The plaintiffs in Pacific Coast Federation of Fishermen's Ass'ns v. Lu- jan, CIV-S-92-1492 LKK (E.D. Cal. 1992), offered a similar section 7(d) argu- ment (discussed supra notes 98-100 and accompanying text). 139. The North Slope district court did suggest that commitment of re- sources for the sake of research would generally not violate section 7(d), 486 F. Supp. at 356, and BR argued that its releases from Flaming Gorge were part of a study designed to determine the endangered fishes' habitat requirements. North Slope, however, suggests that a necessary condition of the oil lease sales at issue in that case surviving section 7(d) scrutiny was the fact that they were not likely to jeopardize an endangered species' survival in violation of section 7(a)(2). [d. As the case held, a jeopardy opinion is conclusive evidence that a project is likely to violate section 7(a)(2). Id. at 358.