Tamarack Plan Implementation and Governance Issues

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Assuming the input from the public hearings do not reveal major problems with the Program Agreement and the remaining details are worked out, the Governors and Secretary Babbitt will sign the Program Agreement in late June or early July. The Program Agreement consists of a number of component parts,which total approximately 150 pages in length. This briefing will summarize the major elements of the Agreement, but of course cannot address all of the provisions, nor can it speak for the document itself. This briefing is for informational purposes only. BACKGROUND— THE ESA, AND COLORADO'S INTEREST IN SIGNIFICANT EVENTS THAT AFFECT THE DEVELOPMENT OF A PROGRAM The ESA. The ESA has been called the most powerful environmental law in existence. The Act is invoked when the U.S. Fish and Wildlife Service(the"FWS") "lists" a species as endangered or threatened. This means that the species is in danger of extinction, or is likely to become endangered within the foreseeable future. Once a species is listed, all federal agencies must take affirmative measures to bring ti►e species to a point at which listing is ..o longer necessr- Additionally, any federal agency which takes any action, or issues any permit to a private party (a "federal action agency"), must consult with the FWS on whether the action or permit will likely jeopardize the continued existence of the species or adversely modify its habitat. Federal permits are required for a variety of private actions. In the case of the Platte River, the most common are those issued by the Federal Energy Regulatory Commission (FERC) for the licensing of hydroelectric facilities, the U.S. Forest Service for the use and development of water facilities on national forests, and the U.S. Army Corps of Engineers under section 404 of the Clean Water Act for dredge and fill activities in streams and rivers. Thus, the development and operation of most large water supply and hydroelectric facilities, which supply water and electricity to millions of people and irrigate tens of thousands of acres of land, come within the scope of the ESA. On the other hand,private actions, such as the drilling of wells, that do not involve federal funds, lands or permits are not subject to the consultative provisions of the ESA. If in the consultation process the FWS believes that a proposed federal action or permit will jeopardize a listed species or its habitat, it will issue a "jeopardy opinion," which specifies the basis for the opinion. In that event, the federal action agency cannot undertake the action or issue the permit, because to do so would violate the ESA. The jeopardy opinion also specifies what alternative actions,called "reasonable and prudent alternatives," could be taken to allow the proposed action to go forward while not causing jeopardy. In that case, if the federal action agency or permittee complies with the reasonable and prudent alternative, the action or permit may go forward in compliance with the ESA.