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<br />. - , <br /> <br />. <br /> <br />. <br /> <br />Tribal Council/Sheftel <br />~~'fl \0. 1990 <br /> <br />mitigation the Animas-La Plata could have "no affect" on endangered fish in <br />the San Juan River. <br /> <br />It was reported that the jeopardy opinIOn may not be the death knell for a <br />project. The Service may suggest reasonable and prudent alternatives. <br />However. a number of speakers discussing such alternatives for the oil and <br />gas industry suggested that the Service does not appear to have any guide- <br />lines as to what may be reasonable and prudent alternatives. Such alterna- <br />tives may involve mitigation unrelated to any of the damage being caused by <br />the applicant's project. For example, oil and gas developers have been asked <br />to repair roads put in place by prior developers and to purchase land for <br />reserves for the endangered species. <br /> <br />With regard to mitigation measures. Bob Thornton discussed habitat conserva- <br />tion programs ("HCPs"), which have become important area-wide programs in <br />California. He discussed the examples of the San Bruno mountains and <br />Riverside County. Developers in Riverside County must pay a $2,000 per <br />acre fee to develop a mitigation fund to purchase land for an endangered <br />species. <br /> <br />Jim Kilbourn, Chief, Wildlife Section. U.S. Department of Justice, discussed <br />various legal cases with particular focus on those dealing with Section 7. <br />The Ninth Circuit has concluded that any Section 7 consultation regarding oil <br />and gas leasing. even if the proposed lease contains significant authority for <br />a federal agency with regard to threatened and endangered species, must <br />review final drilling development, unless the Act authorizing leasing has <br />statutori Iy set forth review steps in the leasing process. We had hoped to <br />find support for the theory that no Section 7 consultation was needed for the <br />Animas-La Plata Project. because any potential effects of the Project on <br />endangered fish in the San Juan River will stem from its operation. not from <br />its construction. The Section 7 process also applies to certain aspects of <br />renewals of Bureau of Reclamation water delivery contracts in California. As <br />speakers pointed out. the operation of the Project itself can lead to a sepa- <br />rate Section 7 consultation. It is hoped that the Section 7 consultation for <br />the Animas-La Plata Project will be final and will include Project operations. <br /> <br />We had hoped that experimental populations of endangered fish could be <br />introduced into the San Juan River. Experimental populations of endangered <br />fish are not protected by the ESA. Experimental populations. however, can <br />be introduced only when and at such times as the population is wholly sepa- <br />rate geographically from non-experimental populations of the same species. <br />Experimental populations can only be established when an environment no <br />longer contains such endangered species and they are introduced into the <br />species former habitat. This would preclude the San Juan ever from becom- <br />ing the home of an experimental population of squawfish or razorback suckers <br />because they currently exist in that reach of the stream. <br /> <br />With regard to Indian tribes. a District Court in Florida, in a case which was <br />not appealed, indicated that the ESA can be utilized to prohibit <br />