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

64

PACE ENVIRONMENTAL LAW REVIEW

[Vol. 11

for the projects can in fact be implemented.140 As was noted
above, one of the two substantive elements of the Flaming
Gorge biological opinion is the legal protection of the flows of
the Green River south to Lake Powell. FWS noted in the fi-
nal draft version of the Flaming Gorge opinion that this is a
"critical ingredient" of the RPA since without it the BR can-
not insure that releases from Flaming Gorge Dam are avail-
able for endangered species, or that they will offset depletions
by the four CUP projects.141
The final biological opinion allows two years for the rele-
vant parties - which include BR, the states of Utah, Colo-
rado and Wyoming, private water-user groups and the
Northern Ute Indian Tribe - to develop an agreement to pro-
tect instream flows. for the river fish.142 During those two
years BR is apparently not required to protect instream flows
in any fashion. At the close of that period FWS may, but is
not required to, reinitiate section 7 consultation.143
The Flaming Gorge biological opinion's proposal is strik-
ingly similar to the circumstances of Sierra Club v. Marsh, 144
in which the Ninth Circuit ruled that the Corps of Engineers
was in violation of section 7.145 In Marsh, the plaintiff envi-
ronmental groups sought to enjoin the Corps of Engineers
ongoing construction of a flood control arid highway pro-
ject.146 FWS issued a jeopardy opinion for the project because
of the presence of two: endangered bird species in the area,
but permitted it to go forward under an RPA that required,
among other measures, that the Corps acquire and preserve
188 acres of nearby wetlands.147 Because of delays in appro-
priating funds for the acquisition, the County of San Diego
agreed to acquire the property and transfer it to a federal
agency to be designated by the Corps, and a contract was

140. . 16 D.S.C. S 1536(b)(3)(A),(B) (1988).
141. Flaming Gorge Final Draft Opinion, supra note 136, at 34; see also
Flaming Gorge Opinion, supra note 6, at 32-33.
142. Flaming Gorge Opinion, supra note 6, at 33.
143. Id.
144. 816 F.2d 1376 (9th Cir. 1987).
145. Id. at 1389.
146. Id. at 1378.
147. Id. at 1379.

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