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<br />DRAFT -- August 11, 1999 <br /> <br />environmental baseline. That concept has been the subject of controversy, rulemaking, and <br />two published Solicitor's Opinions since the enactment of the ESA. The Departmental <br />position has been that future federal actions which have not been subject to Section 7 <br />consultation are not included in the environmental baseline: Thus new tribal water projects <br />are not included in the baseline until FWS prepares a Biological Opinion on the project. <br />Indian tribes have viewed this concept, and the manner in which it is utilized in the agency <br />process, as the most troublesome aspect of Section 7 consultation, because it appears to <br />"grandfather" all past incidents of non-Indian degradation of the ecosystem at the expense of <br />tribal use of Indian-owned natural resources, and may render the character of Indian water <br />rights meaningless, especially their seniority. <br /> <br />The ESA itself provides little guidance on bow this concept should be applied. Congress has <br /> <br />left to FWS rulemaking the source of guidance on the measurement of "how the agency <br /> <br />action affects the species or its critical habitat." 16 U.S.C. SI536(b)(3)(A). FWS regula- <br /> <br />tions, promulgated in 1986, require the action agency to do most of the initial information <br /> <br />gathering before consultation is initiated, including the preparation of a Biological Assessment <br /> <br />(BA) for "major construction activities". 2 The regulation states that the BA <br /> <br />shall evaluate the potential effects of the action on listed and proposed species and <br />[their] critical habitat and determine whether any such species or habitat are likely to <br />be adversely affected by the action .... <br /> <br />50 CFR 402. 12(a). And if formal consultation is commenced, the regulations require FWS to <br /> <br />"[e]valuate the effects of the action and cumulative effects on the listed species or critical <br /> <br />habitat", and <br /> <br />[f]ormulate its biological opinion as to whether the action, taken together with <br />cumulative effects, is likely to jeopardize the continued existence of the listed species <br />or result in the destruction or adverse modification of critical habitat. <br /> <br />The FWS comments on the 1986 regulations state that this term encom- <br />passes "water resource developments". 51 F.R. 19936 (June 3,1996). <br /> <br />25 <br />