Recovery Implementation Program for Endangered Fish Species in the Upper Colorado River Basin

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Second, section 7 of the Act deals with federal agency • actions and, in turn; the actions of a water resources project's proponents. Each federal agency is required by section 7(a)(2) to insure that: any action authorized, funded, or carried out by [it] ... is not likely to jeopardize the continued existence of any endangered...or threatened species or result in the destruction or adverse modification of the [critical] habitat of such species.... The Fish and Wildlife Service must be consulted in this regard by the involved federal agency. The Service prepares a written opinion, commonly referred to as a section 7 biological opinion, which details how a proposed project would affect a listed species or its critical habitat. If the Service concludes that the project would jeopardize the continued existence of a species or adversely affect its critical habitat, then the Service specifies those "reasonable and prudent alternatives" (often called conservation measures) which must be implemented to avoid impacting a species. A project cannot go forward unless impacts are avoided. History of the Recovery Implementation Program • Water project development in Colorado inevitably entails federal agency action of some sort. Even when projects are privately financed, the large amount of federal land ownership in Colorado (about one -third of the state's land area) or the requirement for section 404 permits under the federal Clean Water'Act bring the federal government into the project development process. Consequently, the consultation procedure called for in section 7(a)(2) and 7(b) of the Act is triggered for nearly every, if not all, water development project proposals in Colorado. In the late 1970s, the Fish and Wildlife Service took the position, when issuing biological opinions, that nearly any additional depletion of water, no matter how small and even though within the state's compact entitlements, would necessarily jeopardize the continued existence of the three endangered Colorado River fishes or adversely affect their critical habitat. The scientific bases for these judgments were, at best, uncertain due to a lack of information about habitat requirements, life stages, etc., but the Act requires the Service to pass judgment based on whatever information is available. Indeed, the Service has taken the position that the burden of uncertainty about the condition or requirements of a species falls on a project proponent when the Service renders a biological opinion. • -2-