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<br />DRAFT -- August 11, 1999 <br /> <br /> <br />The manner in which an agency action is defined or scoped may determine whether there is <br /> <br />sufficient discretion to require Section 7 consultation. Regimens for the operation of many <br /> <br />Western dams, which likely contributed to the imperiled status of many rivers-- and riparian- <br /> <br />dependent species, have been set for decades, and may be the creatures of interstate compacts, <br /> <br /> <br />Supreme Court decrees, or contracts for water delivery and generation of hydroelectricity. <br /> <br />The degree of flexibility in operating such projects depends on a number of factors, including <br /> <br />the future exercise of as yet undeveloped, senior Indian water rights, as well as project <br /> <br />impacts on listed species. <br /> <br />Addressing these difficult issues which often precede formal Section 7 consultation can <br /> <br /> <br />become an inter-agency ordeal. The agencies may not agree on the scoping of a project or <br /> <br />action, and may thus not agree on the adequacy of the action agency's Biological Assessment <br /> <br /> <br />or Evaluation. This can significantly delay the formal consultation process. However, <br /> <br />because of statutory and regulatory deadlines and the limitation in Section 7( d) of the ESA on <br /> <br />"any irreversible or irretrievable commitment" of agency resources after initiation of consulta- <br /> <br /> <br />tion, there are strong incentives for the Service, the action agencies, and agency applicants to <br /> <br /> <br />resolve those issues promptly. Importantly, the resolution of these issues may well have <br /> <br />indirect, but long lasting effects on future water resource development throughout an entire <br /> <br />basin, including unexercised Indian water rights. <br /> <br />Most major dams and diversions throughout the West had been built prior to the passage of <br /> <br />ESA. A principal complaint of Indian tribes has been that many water resource development <br /> <br />decisions have been made without consulting with them or taking their water rights into <br /> <br />account. This is not strictly an ESA issue, although modern Section 7 compliance has forced <br /> <br /> <br />agencies to take fresh looks at the impact of development on Western watersheds. Tribes are <br /> <br />concerned that this new look may be pushing their water resource development plans even <br /> <br />farther into the background. Executive Order 12898 (February II, 1994) directs each agency <br /> <br />to "make achieving environmental justice part of its mission", noting that there have been <br /> <br />22 <br />