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002683 MANAGING ESA ISSUES HOLLAND & HART LLP established the presence of the species at issue -- including the listed razorback sucker -- on the grazing allotments that were the subject of the biological opinion), Managing the Endangered Soecies Act Given the tremendous impact that ESA restrictions can have on development projects, it is advisable to consider what steps a project applicant or proponent can take to contribute to the ESA procedures that might affect its project. There are several key points in the ESA process that afford the opportunity to avoid being "managed by" the ESA machinery. Although none of them is simple or fool-proof, each represents a significant opportunity to minimize the possibility that the ESA will pose an insurmountable obstacle to project development This discussion is broken out by the milestone stages or events in the ESA process, I. Pre listing Once a species is listed, the full panoply of the Act's procedural safeguards becomes applicable, Depending on the circumstances, the presence (suspected or confirmed) of a listed species in the vicinity of a proposed project can have a significant impact, even stopping the activity in question. Even where the Act does not preclude the desired activity, its application can at a minimum result in significant transaction costs, . Monitor ESA Listing Petitions and Actions. Given the broad reach of the ESA and the numerous pending petitions and potential listings and critical habitat designations that may affect management activities, it is important for project proponents not to be caught by surprise, By being involved and commenting On the Section 4 listing process, resource users may be able to shape the jnitiallisting process or critical habitat designation in a way that provides for further flexibility or favorable considerations at the project consultation stage. Project applicants should also monitor and comment on programmatic agency responses to ESA issues, Apart from this type of traditional participation in regulatory development activities, under certain circumstances, the opportunity may exist to avoid the listing of a species altogether. One of the criteria for listing is that the species is in need of protection it is not otherwise receiving. Where the species or its habitat is under the control of an interested party or group of parties, however, it may be possible to develop a Conservation Agreement with the Service, Under such an Agreement, the Service will elect not to list a species (now or in the future) in return for commitments by the proponent(s) to provide adequate species conservation measures. Although conservation measures still would be required, the lengthy and potentially expensive procedural steps associated with Section 7 consultation requirements or the Section 10 habitat conservation planning process potentially can be avoided, - 7 -