Board Meeting 05/03/1985

• Board Meeting Date: 5/3/1985
• Description: Minutes, Agenda, Memorandums May 3, 1985
• Board Meetings - Doc Type: Meeting

alternative available to a project is to provide specified .
instream flows. Such an alternative raises several problems:
( 1) there is often not a sound scientific basis
for the suggested flows due to a lack of data,
(2) in some instances the suggested flows would have been
so large as to make a proposed project infeasible,
(3) releases of water from a project for instream flows are
not reasonably calculated to protect an endangered
species if there is no legal mechanism by which such
flows can be protected from subsequent diversion,
especially when "deliveries" would be made across state
lines and over very long distances, and
(4) it fails to recognize the interstate compact
entitlements of the states and vested property_ rights
under state water laws.
Another major problem which has arisen is the apparent
failure of the Service to recognize the distinctions between the
requirements of section 4(f) , which applies to recovery plans,
and the requirements of section 7(a) (2) . Pursuant to section
4(f) , the Secretary of the Interior is to develop and implement
recovery plans, the purpose of which is to identify and guide the
implementation of the measures necessary to "conserve" an
endangered or threatened species (i.e. , bring a species back to,
the point of not requiring the protection afforded by the Act) .
In the jargon of the Service, the objective is to "recover" a
species to the point that it can be "de-listed" (i .e. , to provide
for the "conservation" of a species so that it is no longer
"endangered" or "threatened" within the statutory definition of
those three terms) .
Section 4(f) of the Act places the affirmative responsi-
bility for the conservation of a species only upon the
Secretary. Nowhere in the Act is it stated that the implementa-
tion of recovery plans, and the measures included therein, are
the obligation of anyone other than the Secretary. As a
corollary, the cost of implementing the measures in a recovery
plan is the responsibility of the federal government.
In contrast, section 7 of the Act deals only with those
situations in which federal agency actions, and in turn the
actions of a water project ' s proponents, are likely to jeopardize
the continued existence of an endangered or threatened species,
or adversely affect its critical habitat. This is a requirement
only that the condition of an endangered or threatened species be
made no worse by a developmental project than is already the case
(i.e. , that a project not increase the danger of extinction of a
species) . This standard requires considerably less of a project
proponent than the affirmative obligation placed on the Secretary •
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