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<br />. . <br /> <br />. <br /> <br />. <br /> <br />. <br /> <br />Question #2C: If so, how would adverse effects that may have occurred as a result of the <br />operation aild maintenance of the facility be addressed, and how would they be evaluated in <br />determining the environmental effects of the action of issuing a permanent easement? <br /> <br />Short Answer: The existing water facility is part of the environmental setting in which the Forest <br />Service will be establishing terns and conditions for the easement. Accordingly, the Forest <br />Service should develop those terms and conditions in light of, or in cons.ideration of, the <br />environmental condition that exists as a result of that water facility being in place. <br /> <br />ESA. <br /> <br />Inclusion of the effects of the existing facility in th.e environmental baseline under the ESA should. . <br />not confuse the scope of the Federal action, or the Forest Service decision to be made. The Forest <br />Service is not deciding whether or not the facilities wiIIremain,. or whether or not there will be a. <br />diversion aIJ,d transport of water. The effect ofthe diversion and transport facilities on any <br />threatened or endangered species, or critical habitat, is part of the environmental baseline for <br />considering the "direct and indirect effects" of the terms and conditions developed by the Forest <br />Service for the easement In other words, the effect of the terms and conditions imposed by the <br />Forest Service must be evaluated in light of the effects of the existingJacilities. <br /> <br />Logically, if the historic diversion and transport of water is negatively affecting an endangered <br />species, any further effect from imposing, or failing to impose, terms and conditions on the <br />easement may become more critical. If the status of the species is precarious due to effects of <br />. diversion or transport of water, any incremental effect of how diversion and transport occurs is <br />potentially more significant. For example, if water diversions have critically depleted instream <br />flows, it may be that fish populations are stressedorreduced. to the pointwherehaving fish <br />screens on diversion structures is far more critical. Requiring a fish screen would be a "term or <br />condition" imposed by the Forest Service under FLPMA. Likewise, timing of diversions could be <br />much more critical where the baseline condition includes instream 'flows that have been depleted <br />by diversions, and timing may be a term and condition imposed by the Forest Service. <br /> <br />Including the effect of existing facilities in the environmental' baseline does not dictate an . <br />outcome for the Forest Service decision. The discretion of the Forest Service is defined by law, <br />and does not include the ability to deny, or effectively deny, an easement to a qualified applicant. . <br />The Forest Service is required by Section 7 of the ESA to insure that its actions do not jeopardize <br />. the continued existence of threatened or endangered species: The Forest Service action here does. <br />not include deterrrtination of whether or not diversion and transport fa:cilities should exist, or <br />should continue to exist. That decision has been made by Congress. The Forest Service action is <br />limited to determining under what terms and conditions these facilities will exist and be operated <br />on National Forest System lands. . <br /> <br />Page 8 of 14 <br />