committee in this or in its second report would have no bearing on the question of whether or not the biological opinions and RPAs are legally adequate. Instead, such considerations should be interpreted in contexts apart from the biological opinion and RPAs, such as the Bay-Delta Conservation Program (development of a habitat conservation plan); 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. This would violate Section 7 of the Endangered Species Act (ESA), which requires agencies to “insure” that any actions they authorize, fund, or carry out are not likely to jeopardize endangered species or to destroy or adversely modify the species’ critical habitat (16 U.S.C. § 1536 (a) (2)). As defined by agency regulations, “jeopardy” means that the proposed action “reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of [relevant endangered species] in the wild by reducing the reproduction, numbers, or distribution of that species” (50 C.F.R. § 402.02). As required by the ESA, the wildlife agencies suggested “reasonable and prudent alternatives” (RPAs) that would allow the action to go forward without violating Section 7 (16 U.S.C. § 1536 (B) (3) (A)).

In addition to the jeopardy determinations (generally, applying to species as a whole), both biological opinions found that the proposed action would “take” individual members of the endangered populations in violation of Section 9 of the ESA. By regulation, the “take” of an endangered species includes “an act which actually kills or injures wildlife” and may include “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering” (Babbitt v. Sweet Home Chapter of Communities, 515 U.S. 687 (1995)).

The resource agencies, the National Marine Fisheries Service and the Fish and Wildlife Service, issued an “incidental take statement,” in the present case, setting forth reasonable and prudent measures necessary and appropriate to minimize the effect of the proposed action on endangered species. If the action agencies (the Bureau of Reclamation and the California Department of Water



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