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MAY 28 '91 11:04 MAv&ADFORD & SHIPPS . P.3/4 Jacobson/Young Page 2 May 29, 1991 releases can be protected even In the absence of a commitment from the Navajo Nation.. First, it Is clear to us that there is no practical way for an appropriator to take any significant quantity of water from the San Juan without trig- gering a Section 7 consultation under the Endangered Species Act, 16 U.S.C. is 1531-15113 ("ESA"). Of course, any faclf/ty built In the bed of the river would require a Section 1104 permit from the Corps of Engineers. Moreover. any facility that was federally funded would require a Section 7 consultation. So, too, federal approval would be required If the facility were located on federal land or if its delivery components traversed such lands. In sum, the only risk Is from non-federally funded wells that were located on private land and did not require the use of federal land for their purposes. The likelihood of such an activity causing any harm to the fish or Interfering with the provision of water under the proposed reasonable and prudent alternative is extremely remote. Second, even assuming arguendo that such an activity did Interfere with the recovery Implementation program and the re-regulation of Navajo Dam, the Fish and Wildlife Service has ample authority to protect the releases under Section 9 of the ESA. See, generally, Cheever, An Introduction to the Prohibition Against Taklng$Tri Section 9 of the Endangered Species Act of 1973: Learning to LIve with a Powerful Species Preservation Law, 62 U, Col. L. Rev. 109 (1991). As you are aware, the ESA prohibits the taking of endangered species. 16 U.S.C. S 1538(a)(1)(B)&(C). Section 1531(19) defines take as lito harass, harm, pursue, hunt, shoot, wound, kill, trap. capture, or collect, or attempt to engage In any such conduct. II The Servlce.s regulations define harm to Include an "act" that results In "slg- nlficant habitat modification or degradation where it actually kills or In- Jures wildlife by significantly impairing essential behavior pattern!>./I 50 C.F.R. S 17.3(c). Harass Includes Intentional acts that create "the likeli- hood of Injury to wildlife by annoying It to such an extent as to signifi- cantly disrupt normal behavior patterns./I Id. The taking of the reser- voir reieases or permitting such an acquisition can be said to fit within the framework of prohibited actions. See Pallia v. Hawaii Deeartment of Land and Natural Resources, (Pallia lIJ,"lill9 F. Supp. 1070 (D. HawaII 1986) aff'd 852 F.2d 1106 (9th Cir. 1988); Defenders of Wildlife v. Admlnlstra- 'fcir";""Environmental Protection AneSng(' 688 F. Supp. 13311 (D. Minn. 1988) affld 882 F.2d 12911 18th Cir. 9 ; Sierra Club v. Lyng, 6911 F. Supp. T2'6'O (E.D. Tex. 1988) 2!! appeal 88-60111 (5th Cir7). In short, we believe that for all practical purposes it will be impossible for anyone on the Navajo Reservation to acquire the water released from Navajo Reservoir for the benefit of the endangered fish without triggering the application of Section 7. In the event that anyone succeeded In secur- Ing enough water to interfere with the recovery program for the fish, It Is our view that Section 9 Is available to curtail such activities. We are sufficiently confident that the reservoir releases can be protected that we are prepared to accept an amendment to the MOU that shifts the risk from the fish to the water users. Our proposal Is premised on our i<