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<br />. <br /> <br />. <br /> <br />Tribal Council/Sheftel <br />Page 2 <br />April 30, 1990 <br /> <br />Section 7 of the ESA positively requires federal agencies to utilize their <br />authority to further the ESA. Section 7(a)(1) of the Act states that: " <br /> <br />. . . all Federal agencies shall. in consulation with and <br />with the assistance of the Secretary. utilize their author- <br />ities in furtherance of the purpose of this chapter by <br />carrying out programs for the conservation of endangered <br />species and threatened species . .. " <br /> <br />Section 7 also includes a "shall not" provision. Section 7(a)(2): <br /> <br />Each Federal agency shall. in consultation with and with <br />the assistance of the Secretary, insure that any action <br />authorized, funded. or carried out by such agency . . . <br />is not likely to jeopardize the continued existence of any <br />endangered species or threatened species or result in the <br />destruction or adverse modification of habitat of such <br />species <br /> <br />A federal agency must insure that any actions, including any authorizations. <br />funding or carrying out of any project is not likely to jeopardize the con- <br />tinued existence of an endangered species or modify its critical habitat. <br /> <br />Since the enactment of the ESA in 1973, only one adverse biological opinion of <br />the Fish and Wildlife Service (the "Service") has been overturned. Courts <br />have given great deference to agency biological opinions. Although a Cabinet <br />level committee exists to obtain an exemption from 'a jeopardy opinion, re- <br />course to this Committee has only been used two times. If Section 7 consul- <br />tation is required. Don Barry. Counsel, Fisheries and Wildlife. House Commit- <br />tee on Merchant Marine and Fisheries, reported that the best strategy is to <br />negotiate with the Service. The likelihood of a project applicant or federal <br />agency succeeding by playing hard ball is very, very low indeed. <br /> <br />Don Barry was not optimistic about any legislative fix to the stringencies of <br />ESA. The Merchant Marine and Fisheries Committee has been unwilling to <br />discuss any amendments to the ESA except when the authorization of the Act <br />is up for renewal. which is now every five years. If a Project might "take" <br />an endangered species. the ESA under certain conditions will allow an inci- <br />dental taking. If a project receives a non-jeopardy opinion, then incidental <br />takes are allowed under the Section 7 opinion. <br /> <br />Mr. Barry suggested that given the Section 7 consultation process with the <br />Service, if a federal agency determines that a project "may affect" an endan- <br />gered species or its critical habitat, an applicant would be wise to propose <br />mitigation measures before Section 7 consultation so that the agency may <br />reach a "no affect" opinion in which the Service can concur. We question <br />why this approach was not utilized with regard to the proposed mitigation of <br />25,000 acre-feet out of Navajo Reservoir for the Animas-La Plata Project. <br />Had the Bureau been willing. it could have determined that with such <br />