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9. Regulatory Context: The Endangered Species Act
Pages 311-330

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From page 311...
... As the nation's principal fecleral law to protect species, the ESA's express purpose is "to provicle a means whereby the ecosystems upon which enciangerecT species ancT threatened species clepencT may be conserved" (16 U.S.C.
From page 312...
... ~2) of the ESA requires all fecleral agencies, through consultation with the listing agency, to ensure that actions they carry out, funcT, or authorize clo not "jeopardize" the continued existence of enciangerecT ancT threatened species ancT clo not result in "adverse modification" of their critical habitat.
From page 313...
... The "Best Available Eviclence" Stanciarc! USFWS ancI NMFS have ESA clecision-making cluties, such as listing of species uncler Section 4 anti issuance of biological opinions uncler Section 7, for which they must use the "best scientific ancI commercial ciata available" as prescribed in 16 USC 1533(b)
From page 314...
... . The Decision-Making Burclen of Proof The NRC committee's charge to assess "whether the Lagencies'1 biological opinions are consistent with the available scientific information" requires the committee to aclopt the burden of proof that wouicI apply in the scientific community rather than the legal burclen of proof that applies uncler the ESA.
From page 315...
... One indication that policy-basecT precaution has given way to bias or political forces is a major inconsistency of a presumed precautionary action with the available scientific information. Hence, the precautionary principle couicT not guicle the NRC committee's scientific evaluation; rather, the committee evaluatecT the way in which NMFS ancT USFWS consiclerecT the best available scientific information ancT how they usecT this information to clecicle whether USBR's proposed operation of the I(lamath Project is likely to jeopardize the continued existence of the enciangerecT suckers ancT threatenecT coho salmon.
From page 316...
... The ESA authorizes USFWS ancI NMFS to list species, to designate critical habitat for species, to prepare recovery plans for species, to use authorities for conservation of species, ancI to issue inciclental-take authorizations for species. The ESA prohibits fecleral agencies from jeopardizing species, ancI it prohibits all others (inclucling inclivicluals ancI private organizations)
From page 317...
... Species Section 4 of the ESA governs listing of species as endangered or threatened. A species is endangered if it "is in danger of extinction throughout all or a significant portion of its range" and is threatened if it "is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range" (16 U.S.C.
From page 318...
... In such a case the agency must designate critical habitat within the 1-yr extension period "to the maximum extent prudent" (16 U.S.C.
From page 319...
... F200111. Similarly, on the "not prudent" question, the agencies hacI taken the position that because designation of critical habitat triggers only the prohibition against fecleral agencies' aciversely modifying critical habitat, it acicis relatively little protection, if any, to what is aireacly available to listecI species uncler the jeopardy consultation ancI prohibition against take.
From page 320...
... It is not clear what effect some of the recent jucTicial opinions on critical habitat wouicT have on the NMFS ruling for coho salmon, because the analysis of economic impacts has not been clevelopecT. Recovery Planning Section 4(f)
From page 321...
... Despite the requirements of Section 4~fl, recovery plans clo not constitute mandatory directives to USFWS, NMFS, other fecleral agencies, or others. USFWS ancI NMFS portray them as guiclelines ancI useful menus of recovery-orientecI actions that they anti other parties can take voluntarily.
From page 322...
... ~2) prohibits fecleral agencies from jeopardizing species or aciversely modifying critical habitat, whereas Section 9(a)
From page 323...
... Each of these agencies also agreecI to "determine whether its respective planning processes effectively help conserve threatened ancI enciangerecI species ancI the ecosystems upon which those species clepencI" ancI to "use existing programs, or establish a program if one cloes not currently exist, to evaluate, recognize, ancI reward the performance ancI achievements of personnel who are responsible for planning or implementing programs to conserve or recover listecI species or the ecosystems upon which they clepencI." Yet there is little evidence that any fecleral agency operating in the I(lamath River basin has been successful in fulfilling these agreements in the context of the ESA. In summary, a multiagency consultation process uncler Section 7(a)
From page 324...
... prevalent alternative, because both USFWS ancI NMFS macle jeopardy findings in their 2001 biological opinions ancI because the RPAs that they presented lecI USER to suspend water cleliveries in 2001. The statute defines neither term.
From page 325...
... believes wouicI avoid the likelihoocI of jeopardizing the continued existence of listecI species or resulting in the destruction or acIverse modification of critical habitat" (50 C.F.R.
From page 326...
... 687 F199511. When USFWS ancI NMFS prepare biological opinions in connection with consultations uncler Section 7(a)
From page 327...
... There is ample basis for each agency to extend its authority to prohibit take, ancI cloing so is likely to benefit the listecI species. For example, NMFS listecI the coho salmon ESU as threatened, requiring the agency to aclopt conservation regulations uncler Section 4~)
From page 328...
... As is the case for the listecI sucker species, there clearly are numerous common activities outside the control of USBR that are recognized by NMFS as causing unauthorized take of coho salmon in the I(lamath basin. NMFS recognized this in its 2002 biological opinion on the I(lamath Project, for example, when it acknowlecigecI that USBR accounts for 57°/O rather than 100% of the total irrigation-relatecI clepletions of flow at Iron Gate Dam.
From page 329...
... Specifically, the relevant fecleral agencies have failecI in several ways to exercise their full ESA authorities. · USFWS ancI NMFS recovery planning for listecI species uncler Section 4~fl has stallecI.
From page 330...
... In each case, the recovery plan couicI be clesignecI with the specific purpose of enabling fecleral agency consultations uncler Sections 7(a)


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