A Scientific Assessment of Alternatives for Reducing Water Management Effects on Threatened and Endangered Fishes in California's Bay-Delta (2010) / Chapter Skim
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2 The Legal Context of This Report
2 The Legal Context of This Report
Pages 17-21
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From page 17... ...
Similarly, the RPAs should not be considered legally inadequate simply because different alternatives could be scientifically justified, as long as the agencies could reasonably believe that their RPAs would avoid the likelihood of jeopardy. Some aspects of the committee's task require it to make determinations beyond the scope of the agencies' legal obligations or authority when issuing a biological opinion and RPAs.
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From page 18... ...
; the State Water Resources Control Board's development of flow criteria for the delta; the Delta Stewardship Council's development of a delta plan; and others. POTENTIAL VIOLATIONS OF ESA SECTION 7 AND SECTION 9 In each biological opinion, the relevant wildlife agency concluded that the proposed federal action -- implementation of the water projects' operations plan -- was likely to "jeopardize" the continued existence of species listed as endangered and to adversely modify their critical habitat.
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From page 19... ...
. When developing biological opinions and RPAs, the Ninth Circuit acknowledged that the wildlife agencies may go beyond "apolitical considerations" and that if two proposed RPAs would avoid jeopardy to the relevant species, the agencies "must be permitted to choose the one that best suits all of its interests, including political or business interests." Southwest Center for Biological Diversity v.
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From page 20... ...
As the U.S. Supreme Court explained, "the action agency is technically free to disregard the Biological Opinion and proceed with its proposed action, but it does so at its own peril (and that of its employees)
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From page 21... ...
Avoid jeopardy: The directors of FWS and NMFS must believe that the RPAs would avoid the likelihood of jeopardizing the continued exis tence of listed species or resulting in the destruction or adverse modifi cation of critical habitat (50 C.F.R.
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