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

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PAC,

. 7IRONMENTAL LAW REVIEW

[Vol. 11

dated further c,ctions to protect the fish, again in violation of
the ESA. 38
The plight. of the river fish is a startling indicator of just
how radically we have altered the ecology of the basin. Their
recovery will require rethinking western water policy and
generating creative solutions that provide intelligently for
both people and fish. The possibilities are endless and fasci-
nating - water marketing, mandatory conservation, and
other schemes are in place or coming fast.39 It is precisely
this sort of innovative reevaluation of 'water policy that the
West is lurching toward in the 1990s and beyond. Rather
than dragging their collective feet, the Fish and Wildlife Ser-
vice, the Bureau of Reclamation, the United States Army
Corps of Engineers, and other federal agencies responsible
for water projects in the basin should squarely assume their
responsibilities under the Endangered Species Act.40

II. An Overview of the ESA and its Application to the
River Fish

When the ESA was enacted in 1973, few could have fore-
seen the power and reach the statute would come to have in
subsequent years. In the watershed case of Tennessee Valley
Authority v. Hill (TVA v. Hill),41 the Supreme Court held that

38. 16 V.S.C. ~ 1531(b), (cXl) (1988).
39. For example, a recent Oregon statute, OR. REv. STAT. ~ 537.455(2)
(1991), encourages conservation by permitting appropriators to sell or lease
water they save, less a portion that reverts to the state for instream flow main-
tenance. Joseph L. Sax,. The Constitution, Property Rights and The Future of
Water Law, 61 V. COLO. L. REV. 257, 277 n.68 (1990). In addition, the Reclama-
tion Projects Authorization and Adjustment Act of 1992 provides for some mar-
ket sales of water from California's Central Valley Project. See Pub. L. No. 102-
575, 106 Stat. 4600, 4709-14 (codified at 43 V.S.C. S 371 (1993)).
40. Vnder the ESA, 16 U.S.C. ~~ 1531-1544 (1988 & Supp. IV 1992), these
responsibilities include: the agency must consult with the Secretary about pos-
sible agency action, 16 V.S.C. S 1536(aX3) (1988); the agency must confer with
the Secretary regarding action that may jeopardize the existence of a listed spe-
cies, 16 U.S.C. ~ 1536(aX4) (1988); the agency may not commit any irreversible
resources which would conflict with the implementation of a reasonable and
prudent alternative, 16 V.S.C. ~ 1536(d) (1988); and prior to implementing a
revised recovery plan, the agency must consider all information received during
the public comment period, 16 V.S.C. ~ 1533(0(5) (1988).
41. 437 U.S. 153 (1978).

1993]

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