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w <br />COMMENTS OF CENTRAL NEBRASKA PUBLIC POWER AND <br />IRRIGATION DISTRICT <br />CEN -lll b. The ESA does not Require More than <br />Mitigation for Anticipated Future Harm <br />In order to perform the section 10(a) <br />balance the Staff must recognize which recommendations are <br />tailored to address past effects of the Projects, which <br />address future impacts, and which attempt to implement a <br />broader program. Section 10(j) recommendations addressing <br />conditions for endangered species deserve a particularly <br />close look since they indicate issues to be anticipated <br />during section 7 consultation under the Endangered Species <br />Act (ESA). But section 7 addresses the future impacts of <br />particular projects seeking federal action,60' not past <br />impacts or the actions of other entities within the context <br />of basin -wide enhancement programs. Those DOI <br />recommendations which reach further are entitled to no <br />special deference in the section 10(a) balancing process: <br />the ESA cannot justify requiring more than a "fair share." <br />CEN -12 c. Reauirincr Enhancements in Excess of the <br />Protects' Fair Share is Contrary to Law <br />and Eauity <br />As a matter of equity alone, it is not <br />reasonable or fair for a few irrigators and ratepayers in <br />60' 2= 16 U.S.C. 5 1536(a)(2) (providing that "[elach <br />Federal agency shall, in consultation with and with the <br />assistance of the Secretary, insure that any action <br />authorized, funded, or carried out by such agency . . . is <br />not likely to jeopardize the continued existence of any <br />endangered species or threatened species or result in the <br />destruction or adverse modification of habitat of such <br />species . . . "). <br />- 32 - <br />RESPONSES TO CENTRAL NEBRASKA PUBLIC POWER AND <br />IRRIGATION DISTRICT <br />CEN -11 In relicensing determinations, the Commission does not dwell on <br />distinctions between past effects, future impacts, or broader goals. The <br />emphasis is on a comprehensive view of improving resource values over <br />the new licensing term, using current conditions as the point of departure <br />and giving equal consideration to developmental and nondevelopmental <br />values. <br />CEN -12 We see the Commission as having full discretion to determine the <br />appropriate use of the water resources in question, subject only to the <br />requirements and constraints of the Federal Power Act and other applicable <br />laws, such as the Endangered Species Act. <br />