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<br />DRAFT -- August 11, 1999 <br /> <br />(12) the Department should make better use of its administrative discretion to <br />minimize the actual and potential conflicts between ESA implementation and the <br />exercise of tribal water rights. <br /> <br />Many but not all of the Tribes' recommendations are addressed in the Working Group's <br />Recommendations which follow this Report. <br /> <br />II. SECTION 7 CONSULTATION PROCESS <br /> <br />A. DESCRIPTION OF THE AGENCY ACTION/PROJECT <br /> <br />The process of ESA Section 7 consultation on federal actions affecting water resources is <br /> <br />complicated, but not beyond the understanding of the average bureaucrat, or fisherman-- and <br /> <br />thus not beyond the capacity of water users and biologists to find solutions to the problems <br /> <br />revealed through such consultations. The statutory mandate is very general, yet both simple <br /> <br />and strict. Section 7(a)(2) of the ESA states that Federal agencies <br /> <br />shall, in consultation with and with the assistance of the Secretary [read FWS], insure <br />that any action authorized, funded, or carried out by such agency . . . is not likely to <br />jeopardize the continued existence of any endangered or threatened species or result in <br />the destruction or adverse modification of [designated critical] habitat. . .. <br /> <br />The quoted language dates from a 1979 amendment. But it has takcn years to develop agency <br /> <br /> <br />procedures, sensitize agency officials, and promote the necessary inter-agency communications <br /> <br />to persuade and require agencies to consult with the Services when their actions may affect <br /> <br />listed species or critical habitat. Twenty years ago compliance with the mandate of Section 7 <br /> <br /> <br />was often dependent on FWS officials sending the action agency a letter suggesting that they <br /> <br />initiate consultation because an endangered species, perhaps obscure or unknown to agency <br /> <br />engineers and contractors, resided in the area of new water project. The Upper Colorado <br /> <br />River Basin Case Study, attached as Appendix A, reports on such communications in 1979-80 <br /> <br />18 <br />