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002~32 eral involvemem or comrol. "). Whether discretionary federal involvement or contTol exists or lingers with respect (Q a given activity is not always readily evidem. In the case of federally operated projects or on. going federal activities and programs, a suffi- cient "federal nexus" may always exist to confer jurisdiction for reinitiation of consultation in the face of changed circumstances, notwith. standing the passage of many years since initi- ation of those activities. See, e.g., Defenders of Wildlife v. EPA, 688 F. Supp. 1334 (D. Minn. 1988), aff'd in pari, rev'd in pari, 882 F.2d 1294 (8th Cir. 1989) (evidencing multiple reinitiations of consultation on EPA's regulation permitting use of strychnine for certain above- ground purposes in response to new impact data) and Sierra Club v. Yeulter, 926 F.2d 429 (5th Cir. 1991) (evidencing renewals of con- sultation to assess impacts of Forest Service even- aged limber management practices on the red. cockaded woodpecker). See also Sierra Club v. Marsb, 816 F.2d 1376 (9th Cir. 1987) (Corps violated section 7 by failing to reinitiate consultation for a combined highway and fed- erally sponsored flood comrol projecr in the face of "new information" revealing the coun- ty's failure to transfer land necessary to mitigate the projecr as comemp1ated by the biological opinion). Whether a federal nexus continues with re- spect to so-called nonfederal projects will de- pend upon the status of and circumstances surrounding each project. Nonfederal projects can be grouped generally into the following four categories: (I) Historic projects that remain opera- tional but to which section 7 has never been applied; (2) Existing projects or actions that are operational and have previously met compli- ance with section 7; (3) Permitted projects that have complied with section 7 and received all requisite federal authorizations and approvals, but are yet to be implemented; and (4) Yet.to-be.permitted projects that have completed section 7 but have not received all federal permits or authorizations and are not yet operational. The first three categories may be analyzed together in assessing whether federal involve. ment exists sufficient to confer jurisdiction to reinitiare consultation. Assuming all requisite federal permits and licenses have been obtained and remain valid for a given activity, reinitiation is not appropriate unless the permitting or li- censing agency has retained jurisdiction over the matter under the specific terms of those authorizations or under the statute pursuant to which those authorizations were issued. This is recognized in the Explanatory Material accom- panying publication of the ESA Regulations, In the case where a permit or license had been granted, reinitiation would nor be appropriate unless the permitting or licensing agency re- tained jurisdiction over the matter under the terms of the permit or license or as otherwise authorized by law. 51 Fed. Reg. 19,926, 19,956 (June 3,1986). It is becoming increasingly common for agen- cies to include carefully crafted "reopener" provisions in their authorizations. See, e.g., Vil- lage of False Pass v. Clark, 733 F.2d 60S, 6 I I (9th Cir. 1984) (retained jurisdiction by agency over subsequent stages of offshore oil and gas activities under the Outer Continemal Shelf Lands Act). Hence, it is important (Q review the terms and conditions in existing permit.c;; or li- censes for a given activity with this issue in mind, and it is key to scrutinize the breadth of proposed reopener provisions when negotiat- ing future authorizations from an agency. Of course, reinitiation may also be trig- gered for previously permitted or existing pro- jects if a subsequent, new federal authorization is needed for continued operation of the pro- ject. This could arise where the project's exist- ing federal authorization comes up for renewal or relicensing proceedings, or where the pro- ject is modified in such a way as to require additional federal authorization or action that may affect listed species or designated habitat in a manner not previously considered. Thus, absent a retained jurisdiction provision in the approvals or in the underlying statute governing such approvals, and absem the trigger of some new federal action potemially affecting listed species or designated habitat, previously per. mitted or existing projects should not be vul- nerable to reinitiation under section 7 even where new species are listed or critical habitat is designated in their vicinity. or even though new information arises showing different envi- ronmental effects than were previously known or appreciated. This is imponant, as environmental organ- izations frequently encourage the identification and formal listing of a species in a sensitive or heavily used resource area as a means of dis- couraging further development and, perhaps, turning back the clock. Continual additions to the endangered species list are inevitable, as is the continual improvemem of knowledge and data concerning endangered species. These new circumstances should not automatically bring about new section 7 compliance concerns for existing and prepermitted projects for the rea- sons discussed above. Note, however, that such project activities could be deemed to run afoul NR&f:/SUMMER 1993 It is becoming inereasblgly common for agencies to include carefully crafted "reopet,er" provisiot's in their authorizations. 19