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<br />002678 <br /> <br />MANAGING ESA ISSUES <br /> <br />HOLLAND & HART LLP <br /> <br />amount of water cannot be delivered consistent with requirements arising from ESA <br />Section 7 consultation for effects on listed Sacramento River chinook salmon and the <br />delta smelt). <br /> <br />. Hardy v. Higginson, 123 Idaho 48S, 849 P.2d 946 (1993) (protection of pool habitat <br />of candidate threatened and endangered species of Shoshone sculpin is a "local public <br />interest" factor that the director of Idaho Department of Water Resources may <br />consider in reviewing application for changes in point of diversion for a water right). <br /> <br />. Bennett v. Spear, 117 S. Ct, 1154, 137 L. Ed. 2d 281(1997) (Oregon ranchers and <br />irrigation districts have standing to challenge Fish and Wildlife Service biological <br />opinion requiring minimum operating levels for Bureau of Reclamation reservoirs to <br />protect endangered Lost River sucker and shortnose sucker). <br /> <br />. Sierra Club v. City of San Antonio, 112 F,3d 789 (5th Cir. 1997) (Court of Appeals <br />vacated preliminary injunction issued by district court regulating withdrawal of water <br />from aquifer to protect various listed plant, amphibian, and fish species; federal court <br />abstention was warranted based on state's comprehensive regulatory scheme under <br />Texas' Edward Aquifer Act) (earlier related decisions in Sierra Club v. Department <br />of Interior, 36 E.R,C. IS33 (WD. Tex, 1993), enjoined FWS to generate and <br />disseminate information regarding spring flows necessary to protect endangered <br />species inhabiting springs fed by the Edwards Aquifer in Texas; on appeal in Sierra <br />Club v. Babbitt, 995 F.2d 571(Sth Cir. 1993), the Fifth Circuit dismissed the appeal <br />of governmental and private water user intervenors where the FWS had decided to <br />comply with the district court's injunction and the Sierra Club and all plaintiff- <br />intervenors amended their complaints to remove their claim that the ESA required <br />FWS to regulate pumping from the Edwards Aquifer), <br /> <br />. Sierra Club v. Glickman, IS6 F,3d 606 (Sth Cir. 1998) (US, Department of <br />Agriculture violated its species conservation obligations under ESA 9 7(a)(I) by <br />failing to consult with FWS to adopt programs for conservation of fountain darter, <br />San Marcos gambusia, San Marcos salamander, Texas blind salamander, and Texas <br />wild rice in Edwards Aquifer area of central Texas). <br /> <br />. American Forest and Paper Ass 'n v. EPA, 137 F.3d 291 (Sth Cir. 1998) ("EPA <br />cannot invoke the ESA as means of creating and imposing requirements that are not <br />authorized by the [Clean Water Act]"; thus, EP A cannot require Louisiana, as a <br />condition of delegating NPDES permit program to state, to consult with FWS and <br />NMFS concerning the effect of state-issued permits on endangered species and to <br />yield to EPA veto of permit if FWS or NMFS finds jeopardy from permit action)29 <br /> <br />2. See atso John W, Steiger. The Consultation Provision of Section 7(0)(2) of the Endangered Species <br />Act and Its Application to Delegable Federal Programs, 21 Ecology L. Q. 243 (1994), <br /> <br />- S - <br />