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<br />DRAFT -. August 11, 1999 <br /> <br />construction projects) or a Biological Evaluation, or (2) a determination that the action "is not <br />likely to adversely affect any listed species or critical habitat" (see 50 CFR 402.14(b)(l).) If <br />the Service concurs in writing with such a determination, then no formal consultation is <br />required. This is a very useful process for the action agency, as it may, in the course of <br />informal consultation, make relatively minor revisions in the proposed action so as to avoid <br />"adverse effect" to the species. This informal consultation process may involve a negotiation <br />between the action agency and the Service to avoid impacts or on how to lessen any impact, <br />which may also include the agency's applic;int for funding or services. Informal consultation <br />is often efficient and benign. But when this process provides opportunities for the develop- <br />ment of junior, non-Indian water rights, Indian tribal officials become very skeptical, fearing <br />that when the time comes for the development and exercise of tribal water rights, the tribes <br />will ultimately bear the greatest burden of n1itigating the cumulative effects of all water <br />resource development on the endangered species in their basin. <br /> <br />Another threshold issue for Section 7 consultation on water resource development is whether <br /> <br /> <br />an agency action has sufficient discretion. If an agency has no discretion to modify or <br /> <br />withhold an action, then a Section 7 consultation is not required. (See 50 CFR 402.03.) This <br /> <br /> <br />is a matter of controversy for existing Western water projects which were authorized for <br /> <br /> <br />power production and to provide water supply. For example, if Congress has mandated that a <br /> <br />dam be operated by an agency for flood control purposes, but if modifications of that <br /> <br /> <br />operation for the purpose of conserving listed species would increase the flood risk, then, it <br /> <br /> <br />has been argued, no purpose would appear to be served by inter-agency consultation, since <br /> <br />such conservation measures may be outside the action agency's authority. On the other hand, <br /> <br />FWS would argue that any consultation might reveal some modifications which can reconcile <br /> <br />project operation with species conservation. Indeed that is what has happened in most <br /> <br />instances. <br /> <br />21 <br />