ensure that any actions they authorize, fund or carry out are not likely to jeopardize the continued existence of any listed species or to modify adversely its designated critical habitat. While this obligation clearly applies to direct actions taken by a government agency, such as construction of roads and dams, it also includes indirect actions such as granting of permits, leases and licenses and establishing contracts and regulations.

To assist agencies in fulfilling their Section 7 obligations, the ESA establishes a consultation process in which an agency proposing an activity (known as the "action agency") can work with FWS or with the National Marine Fisheries Service (NMFS) in the case of marine species to ensure that the activity produces no more than minimal harm to protected species. Ideally, the potential impacts of a proposed action upon listed species should be considered early in the planning process while alternatives to the action still exist and before excessive amounts of money and resources have been irretrievably

committed to the activity.

In practice, the consultation process has both formal and informal aspects. In the early stages of project development, the action agency consults informally with FWS to determine whether any endangered or threatened species are found in the area to be affected by the project. If the informal consultation reveals that the project area is home to a listed species, the action agency must prepare a biological assessment to determine whether the project is likely to affect the species or its critical habitat adversely. The agency cannot enter contracts or begin construction until the consultation has been completed. This prevents significant investment in a project before its potential impacts on protected species have been assessed. Otherwise, a major financial investment might be used to justify an otherwise damaging or illegal project.

If the action agency and FWS determine that an action may adversely affect a listed species, FWS must issue a biological opinion that officially

declares whether the action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of its critical habitat. If FWS concludes that the action will not jeopardize the species in question, a no-jeopardy opinion is given, and the action is allowed to proceed. In conjunction with the biological opinion, FWS also may issue an incidental-take statement for the This statement

action agency. recognizes officially that although the action will not jeopardize the species as a whole, a few individuals of the species may be accidentally "taken" (harassed, harmed, injured or killed) during the course of the action. Although the incidental-take statement exempts the action agency from liability for such accidents, the agency nevertheless must reinitiate consultation and reconsider its conservation measures if more than the expected number of animals or plants are taken or if the nature of the impacts changes. The incidentaltake allowances, authorized under Section 7(b), act as a compro

mise, allowing carefully planned federal projects to go forward with appropriate conservation

measures

If the biological opinion condudes that the planned action will jeopardize the existence or every of a listed species, the action is not allowed to proceed without some modifications. In such a jeopardy opinion, FWS mist work with the action agency to provide reasonable and prudent alternatives so that adverse impacts on the protected species can be avoided. The action

agency must then adopt

an acceptable alternative before the proposed action can proceed. The development of alternatives

to the planned action enables FWS to explore compromises instead of prohibiting the activity outright. In most cases, the alternatives are simply adopted by the action agency, and the project continues.

The vast majority of interagency consultations result in either no change in the proposed action or in the adoption of a reasonable alternative. According to a recent study,' FWS listed 94,113 informal and 2,719 formal consultations between 1987 and 1992. Of these consultations, only 352 resulted in jeopardy biological opinions, and almost half of these were related to a single Environmental

for

Protection Agency program the registration of pesticides. Only 54 of these jeopardy opinions resulted in the termination of the proposed activity. The remaining projects continued after the inclusion of alternatives to prevent harm to listed species. Of 2,719 projects proposed for areas known to be inhabited by threatened or endangered species, more than 98 percent were allowed to proceed. Clearly, the Section 7 consultation process very rarely results in irreconcilable conflicts between development and listed species.

In the rare cases where no reasonable and prudent alternative to a proposed action can be

agreed upon, the action agency can petition for exemption from the constraints of the ESA. In the wake of the famous Tellico Dam

controversy, Congress amended

the ESA in 1978 to create an Endangered Species Committee to resolve conflicts that arise when the consultation process fails to result in agreement. Nicknamed the "God Committee" for its power to determine the survival of a species, the Endangered Species Committee

has been called upon only three times since its creation. Its infrequent rulings are a credit to the ability of the ESA to resolve conflicts and reach compromises acceptable to all.

A recent success story is the ESA's role in establishing water quality standards for the Sacramento River, the San Joaquin River and the San Francisco Bay ecosystems in California. A historic agreement between the federal government, the State of California and the myriad water users in the region established sensible limits on freshwater diversion to protect habitat used by the delta smelt, a

listed species. The agreement also protected wetlands and safeguarded the quality of water used for various purposes by people throughout much of northern California, demonstrating how the ESA can work for the benefit of everyone."

Habitat Conservation Plans

As mentioned above, the Section 7 consultation requirements apply only to projects that involve the federal government.

But state and private actions also can have a detrimental impact upon threatened and endangered species. In the 1982 amendments, Congress provided for the development of habitat conservation plans (HCPs) under Section 10 of the Act to reduce conflict between economic development and species protection. HCPs serve as a release valve, allowing development of and incidental take in portions of habitat used by listed species in exchange for the creation and implementation of a plan designed to conserve the same species in the remainder of the habitat. To ensure a balance between species protection and

economic development, FWS or NMFS must review and approve all HCPs prior to implementa

tion.

To be effective, the HCP planning process must involve all interested parties. In addition to landowners, developers and FWS or NMFS, HCP negotiations often include representatives from state and local governments, natural-resource agencies, environmental organizations and community groups. The HCP should list all threatened and endangered species in the planning area, as well as species likely to be affected by the plan. To be approved, an HCP must result in no net reduction in the prospects for survival and recovery of affected species. In addition to any economic benefits for local communities, HCPs should produce a net benefit to the species involved. To limit habitat fragmentation, HCPs should include as much as possible of the known ranges of affected species.

Most large HCPs seek to protect natural areas away from associated development sites. The selection, design and manage