4101

• UCREFRP Catalog Number: 4101
• Author: Mobil.
• Title: Summary of Technical and Procedural Concerns.
• USFW Year: 1984.
• USFW - Doc Type: \
• Copyright Material: NO

,.

**IV.

WILL THE ~VS COMMIT TO DESIGNATING CRITICAL HABITAT?

1. The FY7S has informally advised that it sees no reason
or need to designate critical habitat.

But even if the designation of critical habitat is
not legally mandatory, it is difficult to see how the
agency can focus on a possible recovery plan without
identifying the habitat critical to the recovery of
the fish. Additionally, it is uncertain whether the
Endangered Species Act can be fully complied with
without such a designation. That is, BLM's author-
ization can neither: (1) jeopardize the continued
existence of the endangered species, nor (2)
, -

"result in the destruction or adverse modification of

habitat of such species..." (Section 7(a) of ESA, 16
use l536(a)). To date, the FWS has focused solely on
the issue of jeopardy to the species. The FWS draft
Biological Opinion does not discuss whether there
would be any destruction of critical habitat since
none has been designated. Unfortunately, a third
party might try to challenge. BLM' s. right~Q~_-way _gra~_t

for failure to comply with the ESA, i.e., by not

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considering the effect the project will have on

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critical habitat.

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