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<br />DRAFT -- August 11, 1999 <br /> <br />being actively used? Some might think that this issue is similar to the question of whether <br />senior Indian water rights should be included in the baseline. If unused non-Indian water <br />rights don't belong in the baseline, there is presumably an enhanced opportunity for federal <br />project development-- subject to the caveat that if the non-Indian rights are later put back in <br />use, reinitiation of consultation may be necessary. <br /> <br />C. REASONABLE AND PRUDENT ALTERNATIVES <br /> <br />The ESA provides that if the Service determines that a proposed action is likely to jeopardize <br />the continued existence of a species, or finds that an agency action will destroy or adversely <br />modify critical habitat, it shall suggest "reasonable and prudent alternatives", if available, to <br />the proposed agency action which would not violate the Section 7(a)(2) mandate. This <br />inquiry is often critical because the fragile state of many Western stream systems has meant <br />that many proposed water developments are likely to jeopardize listed species. Indeed, the <br />action agency now often assumes that a reasonable and prudent alternative (RP A) to a project <br />formulated a decade or more ago will be necessary to avoid the likelihood of jeopardy. <br /> <br />However, there is little useful regulatory guidance on what constitutes an acceptable RPA. <br />The regulation does state that the alternative must be within the scope of the agency's legal <br />authority and jurisdiction and must be economically and technologically feasible. Project <br />proponents and action agency officials often view the debate with the Services over reason- <br />ableness and prudence as allowing FWS an inappropriate role in project planning, ostensibly <br />because the Service must still opine on whether a proposed RP A avoids jeopardy. The action <br />agencies often see the Service taking the opportunity to "suggest" an RP A as a means of <br />enhancing ESA recovery programs by setting aside or creating new habitat for the species, or <br />requiring the action agency or applicant to fund programs to offset the impacts on the species <br />outside of the action area. From the species survival perspective, given the current severely <br /> <br />32 <br />