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9 Regulatory Context: The Endangered Species Act Although the fecleral EnciangerecT Species Act (ESA) is not alone in providing a legal framework for resolving issues relatecT to enciangerecT ancT threatened fishes in the I(lamath River basin, it is the dominant legal feature now affecting fecleral water management in the basin. As the nation's prin- cipal fecleral law to protect species, the ESA's express purpose is "to pro- vicle a means whereby the ecosystems upon which enciangerecT species ancT threatened species clepencT may be conserved" (16 U.S.C. 1531(b) F200211. Further explanation is proviclecT in the statute's definition of "conserve," which is "to use .. . all methocTs ancT procedures which are necessary to bring any enciangerecT species or threatened species to the point at which the measures proviclecT pursuant to this chapter are no longer necessary" (16 U.S.C. 1532 F200211. It is also a policy of the ESA, however, that "Fecleral agencies shall cooperate with State ancT Local agencies to resolve water resource issues in concert with the conservation of enciangerecT species" (16 U.S.C. 1531(c) F200211. The cTifficulty of satisfying those two central objec- tives is well illustratecT by the I(lamath River basin, as attested by the U.S. Bureau of Reclamation's (USBR) I(lamath Project ancT other public ancT private water-management practices. AccorcTingly, this chapter provides an overview of the ESA ancT discusses the structure ancT implementation of its provisions that are relevant to the I(lamath River basin generally ancT the I(lamath Project in particular. The chapter provides conclusions as to how the ESA couicT be implementecT more procluctively for the benefit of species ancT ecosystems in the I(lamath River basin. 311

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312 FISHES IN THE KLAMATH RIVER BASIN OVERVIEW OF THE ESA IN THE KLAMATH CONTEXT In 1988, pursuant to its authority uncler Section 4 of the ESA, the U.S. Fish ancI WilcIlife Service (USFWS) listecI the shortnose sucker ancI Lost River sucker as enciangerecI species (53 FecI. Reg. 27130, luly 18, 19881. Almost a clecacle after the sucker listings, in 1997, the National Marine Fisheries Service (NMFS) listecI the Southern Oregon/Northern California Coast (SONCC) coho salmon, an evolutionarily significant unit (ESU) of coho salmon found in the I(lamath River basin, as a threatened species (62 FecI. Reg. 24588, May 6, 19971. These listings triggered a suite of ESA regulatory responsibilities that have since hacI substantial influence in I(la- math River basin water issues: Section 4 of the ESA requires the listing agency to designate "critical habitat" for enciangerecT ancT threatened species unless exceptions, which are narrow, apply. Section 4(f) of the ESA requires the listing agency to clevelop ancT implement a "recovery plan" for enciangerecT ancT threatened species. Section 7(a)~1) of the ESA requires all fecleral agencies, through consultation with the listing agency, to use their authorities to carry out programs for the "conservation" of enciangerecT ancT threatened species. Section 7(a)~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 encian- gerecT ancT threatened species ancT clo not result in "adverse modification" of their critical habitat. Section 9(a)~1) of the ESA prohibits all persons subject to U.S. juris- cTiction (inclucTing fecleral, state, tribal, ancT local governments) from "tak- ing" enciangerecT wilcTlife species ancT Section 4(cT) allows the listing agency to extencT the same level of protection to threatened wilcTlife species unless authorized by the listing agency pursuant to appropriate "inciclental take authorization" provisions of the ESA. For reasons clescribecI more fully below, some of these responsibilities have not been implementecI to their full potential in the I(lamath River basin. USFWS ancI NMFS have used ESA's authority primarily through Section 7(a)~2), which prohibits fecleral agencies from causing "jeopardy" to listecI species. Thus, the listing agencies have focused primarily on USBR's operation of the I(lamath Project. Before proceeding to a section-by-section comparison of ESA imple- mentation in the I(lamath River basin, it is important to recognize the pervasive influence of three general principles of ESA law ancI policy: the "best available evidence" stanciarcI, the burden of proof applicable to the relevant clecision-makers, ancI the species-specific orientation of the ESA.

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REGULATORY CONTEXT: THE ENDANGERED SPECIES ACT 313 As a package, these principles substantially affect the agencies' implementa- tion of ESA cluties anti authorities uncler specific ESA provisions anti their approach to the larger challenge of ecosystem-level management of re- sources in the I(lamath River basin. Emphasizing the general principles also helps to clarify the distinctions between the framework within which the agencies operate uncler the ESA ancI the framework within which the NRC committee evaluatecI the relevant agency decisions as clefinecI by its charge. 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) F20021 anti 50 CFR 424.11(b) F20021 (listing clecisions) anti 16 USC 1536(b) F20021 ancI 50 CFR 402.14(g)~8) F20021 (consultations). Section 7 thus requires that NMFS ancI USFWS consult the existing body of the "best scientific anti commercial ciata avail- able" to determine whether USBR's proposed operation of the I(lamath Project is "likely to jeopardize the continued existence of any enciangerecI species or threatened species." Although the statute leaves the stanciarcI for "best evidence" unclefinecI, the courts have interpreted it to mean several things: The agencies may not manipulate their decisions by unreasonably relying on some sources to the exclusion of others. The agencies may not clisregarcI scientifically superior evidence. Relatively minor flaws in scientific ciata clo not render the ciata unreliable. possible. The agencies must use the best ciata available, not the best ciata The agencies must rely on even inconclusive or uncertain informa- tion if that is the best available at the time of the decision. The agencies cannot insist on conclusive ciata to make a decision. The agencies are not required to conduct inclepenclent research to improve the pool of available ciata. A summary of the existing body of case law appears in Southwest Center for Biological Diversity v. Norton, 2002 WE 1733618 (D.D.C. 20021. Similarly, in 1994, USFWS anti NMFS issued a joint policy providing guiclelines for ESA decisions (59 FecI. Reg.34271 F199411. The policy shows how the "best evidence" stanciarcI wouicI apply in the context of the jeop- arcly consultation; it clirects the agencies to follow six guiclelines:

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314 FISHES IN THE KLAMATH RIVER BASIN Require that all biologists evaluate all scientific ancI other informa- tion that will be used to make any consultation decision. Gather anti impartially evaluate biological, ecological, anti other information that disputes official positions taken by USFWS or NMFS. Ensure that biologists document their evaluation of information that supports or cloes not support a position being proposed by the agency. Use primary ancI original sources of information, when possible, as the basis of consultation decisions or recommendations. Adhere to scheclules establishecI by the ESA. Conduct management-level review of documents clevelopecI by the agency to verify ancI ensure the quality of the science used to establishecI official positions. Appropriately, therefore, the charge of the NRC committee incluclecI a determination as to "whether the biological opinions are consistent with the available scientific information" (emphasis aciclecI). The Decision-Making Burclen of Proof The NRC committee's charge to assess "whether the Lagencies'1 bio- logical 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. Scientific burclen of proof may differ from legal burclen of proof; this issue pervades the ESA, where science anti law intersect. Keeping scientific ancI legal burclens of proof separate is important for proper execu- tion of the committee's charge. The committee believes that in its interim report anti in this final report it has appliecI an accepted scientific frame- work for its assessment. Some parties to the I(lamath River basin ESA actions have acivocatecI use of a "precautionary principle," according to which a special burclen of proof lies with users of resources (e.g., G. H. Spain, Pacific Coast Feclera- tion of Fisherman's Associations, personal communication, August 26, 20021. The precautionary principle, however, is a clecision-making policy instrument, not a scientific stanciarcI of proof or a requirement of the ESA. Although many versions of the precautionary principle exist in the laws of many nations anti in the text of many international treaties, the prototype is founcI in Principle 15 of the 1992 Rio Declaration of the United Nations Conference on Environment anti Development (Rio Declaration on Envi- ronment anti Development, UNCED, U.N. Doc. A/CONF.151/Rev. 1, 31 I.L.M.874119924~: In order to protect the environment, the precautionary approach shall be widely applied by the States according to their capabilities. Where there

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REGULATORY CONTEXT: THE ENDANGERED SPECIES ACT are threats of serious or irreversible damage, lack of full scientific cer- tainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. 315 In other worcTs, ignorance shouicT not justify the decision either to move forward with a proposed action that might threaten the environment or to not regulate an activity for purposes of protecting the environment. Application of the precautionary principle in the ESA context is cTis- cussecT in the National Research Council's report Science and the Endlan- geredt Species Act (NRC 1995), which outlines the benefits of applying such an approach to decisions about conservation of species uncler the ESA. As that discussion demonstrates, however, whether to apply the precautionary principle is a policy decision ancT as such is outside the present committee's scope of work, which pertains to "whether the biological opinions are consistent with the available scientific information." IncleecT, even when a policy decision is macle to apply the precautionary principle, the question of whether the decision is consistent with the avail- able scientific information is important. As cTiscussecT above, the ESA ancT the agencies' implementing regulations unequivocally require that NMFS ancT USFWS base their decisions, as given in their biological opinions, on the best available scientific evidence ancT that NMFS ancT USFWS use that evidence to clecicle whether I(lamath Project operations are likely to jeopar- cTize the listecT species. These are the only explicit eviclentiary stanciarcTs ancT burclens of proof that the ESA ancT the agency regulations impose on the two agencies in the consultation process. In the clecision-making context, relevant principles of administrative law ancT the ESA leave application of the precautionary principle to the discretion of USFWS ancT NMFS when they are confronted with substantial but inconclusive or conflicting data, especially as to whether a species deserves listing or whether a proposed action is likely to cause jeopardy See Conner v. Burfordt, 848 F.2cT 1441, 1454 9th Cir. F198811. At some point, however, erring on the sicle of protec- tion in clecision-making ceases to be precautionary ancT becomes arbitrary. One indication that policy-basecT precaution has given way to bias or politi- cal 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 threat- enecT coho salmon. In making this evaluation, the NRC committee recog- nizecT that scientists of fecleral agencies who are responsible for judging jeopardy to listecT species inevitably face cTifficulties that derive from incom-

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316 FISHES IN THE KLAMATH RIVER BASIN plete information even uncler the best of circumstances, ancI certainly so in the case of the I(lamath basin. The Species-Specific Orientation of the ESA The portion of the committee's charge requiring it to evaluate "whether the biological opinions are consistent with the available scientific informa- tion" implicates one of the inherent limiting features of the ESA: it is species-specific. The biological opinions uncler study, therefore, are opin- ions about listecI species ancI not clirectly about the effects of the I(lamath Project on resources in the I(lamath River basin that have no known link- age to listecI species. Notwithstanding its statecI purpose of conserving the ecosystems on which listecI species clepencI, the ESA is strikingly short on ecosystem-focusecI rationale. 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 agen- cies from jeopardizing species, ancI it prohibits all others (inclucling incli- vicluals ancI private organizations) from taking species. IncleecI, the NRC committee's charge has been conclitionecI by the ESA's species-specific fo- cus, with the ultimate objective of providing "an assessment of scientific considerations relevant to strategies for promoting the recovery of listecI species in the I(lamath River Basin" (Appenclix A). As shown in previous chapters of this report, the listecI species clo not define all there is to manage in the basin; their neecis encompass only a portion of the I(lamath basin's combined environmental resources. In fact, a species-specific focus ancI an ecosystem-level focus may leacI to different management policies ancI decisions (NRC 1995, p. 111-1211. Often, ac- tions that restore ecosystem functions are beneficial to listecI species, but not always. Conversely, what is goocI for the listecI species is not necessarily goocI for other ecosystem attributes or, for that matter, equally beneficial for all the listecI species themselves. The dichotomy between the listecI species ancI ecosystems limits the extent to which USFWS ancI NMFS can use the ESA for ecosystem management (Ruin! 20001. The ESA's species- specific focus is in itself an inadequate basis of ecosystem-wicle clecision- making in the I(lamath River basin. SPECIES LISTING AND DESIGNATION OF CRITICAL HABITAT None of the conservation measures of the ESA that bear on the I(la- math River basin apply unless a species is listecI as enciangerecI or threat- enecI according to procedures specified in Section 4 of the statute. A relatecI

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REGULATORY CONTEXT: THE ENDANGERED SPECIES ACT 317 decision, although not necessarily made at the time of listing (or, in some cases, at all), is whether the species has "critical habitat" that should receive special protection. Listing of species and critical-habitat designations thus are the events that trigger the ESA's recovery-planning efforts and regula- tory programs. A review of the background of the I(lamath River basin species listings and critical-habitat determinations shows the potential and realized scope of the recovery-planning efforts and regulatory programs that have followed. Listing of Enciangerec! ant! Threatener! Species Section 4 of the ESA governs listing of species as endangered or threat- ened. 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. 1532 F200211. The agencies must consider five criteria in listing a species: the present or threatened destruction, modification, or curtailment of its habitat or range; its overuse for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; and other natural or anthropogenic factors affecting its continued existence (16 U.S.C. 1533(a)~11(A)-(E) F200211. As noted above, the agencies must evaluate these criteria for the species in question and make the listing determination "solely on the basis of the best scientific and commercial data available . . . after conducting a review of the status of the species." This limitation keeps USFWS or NMFS from considering economic factors in deciding whether . . to lSt a species. USFWS listed the two sucker species as endangered in 1988, noting that "dams, draining of marshes, diversion of rivers and dredging of lakes have reduced the range and numbers of both species by more than 95 per- cent.... Both species are jeopardized by continued loss of habitat, hybrid- ization with more common closely related species, competition and preda- tion by exotic species, and insularization of remaining habitats" (53 Fed. Reg. 27130 F198811. The agency explained some of the principal factors causing decline in amount of habitat, as given in Chapters 5 and 6. NMFS, in listing the coho salmon as a threatened ESU in 1997, found that "threats to this ESU are numerous and varied. Several human caused factors, including habitat degradation, harvest, and artificial propagation, exacerbate the effects of natural environmental variability brought about by drought, floods, and poor ocean conditions" (62 Fed. Reg. 24588 F199711. The agency also explained in more detail the major factors responsible for the decline of coho salmon in Oregon and California (Chapters 7 and 81.

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318 FISHES IN THE KLAMATH RIVER BASIN Designation of Critical Habitat Section 4 of the ESA also requires USFWS and NMFS, subject to speci- fied exceptions, to designate the critical habitat of a listed species. Critical habitat consists of "the areas within the geographical area occupied by the species, at the time it is listed .. . on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection" (16 U.S.C 1531 t200211. Areas outside the occupied area can be included if they are essential to the conservation of the species. USFWS and NMFS in . .. . . . . . . . . . . . making one cr~ca~-nan~rar aererm~nar~on, consider space ror individual and population growth and for normal behavior; food, water, air, light, miner- als, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, rearing of offspring, germination, or seed dispersal; and habitats that are protected from disturbance or are represen- tative of the historic geographic and ecological distributions of a species (50 C.F.R. 424.12(b)~11-~5) F200211. In weighing these factors, the agencies focus on "primary constituent elements," which are "roost sites, nesting grounds, spawning sites, feeding sites, seasonal wetland or dryland, water quality or quantity, host species or plant pollinator, geological formation, vegetation type, tide, and specific soil types." The agencies must consider the factors "on the basis of the best scientific and commercial data avail- able" but must also take "into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat" (16 U.S.C. 1533(b)~2) F200211. Areas that otherwise satisfy the criteria for critical habitat must be excluded from designation if the costs of designa- tion outweigh the benefits of including the area, unless failure to designate such an area would result in the extinction of the species. The agencies are required to designate critical habitat, to the greatest extent prudent and determinable, concurrently with the listing decision (16 U.S.C. 1533(a)~3) F200211. The time period for a designation may be ex- tended up to 1 yr if the agency finds either that publishing the listing rule has high priority for conservation of the species or that critical habitat is not determinable at the time of listing. 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. 1533(b)~61(C) F200211. Accordingly, the agency can find that designating critical habit is "not prudent" and thus decline to do so. Treatment of the "economic impacts" and the "not prudent" compo- nents of critical-habitat requirement by the agencies has been the subject of intense litigation in recent years; several judicial opinions have found the agencies' approaches flawed. For the analysis of economic impacts, the agencies have taken the position that the combined legal (and thus eco-

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REGULATORY CONTEXT: THE ENDANGERED SPECIES ACT 319 nomic) effects of jeopardy consultations uncler Section 7(a)~2) ancI of the take prohibition uncler Section 9(a)~1), both of which apply when a species is listecI ancI clo not require designation of critical habitat to take effect, subsume any regulatory effects that critical-habitat designation might im- pose. Thus the incremental economic impact of designating critical habitat is, according to the agencies, essentially nil. Adopting this position as an assumption for purposes of analyzing economic impacts has allowecI the agencies to truncate the process: although economic effects were never actually quantified, the agencies took the baseline effects imposed uncler the jeopardy consultation ancI the take prohibition as the starting point for economic analysis of the effects of critical-habitat designation. The agencies thus avoiclecI having to describe the baseline effects ancI routinely founcI- with relatively little analytic exercise, given their operating assumptions- that the incremental effects of critical-habitat designation were zero. In 2001, however, a court rulecI that the agencies' approach subverted con- gressional intent; the court requirecI the agency in question to quantify both the baseline effects ancI any incremental effects (see New Mexico Cattle Growers Association v. USFWS, 248 F.3cI 1277, 10th Cir. F200111. Similarly, on the "not prudent" question, the agencies hacI taken the position that because designation of critical habitat triggers only the prohi- bition 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. Des- ignation of critical habitat, the agencies also argued, couicI be cletrimental to species by identifying places where unscrupulous collectors might fincI the species. On balance, the agencies often founcI that detriments associated with designation of critical habitat outweighed benefits ancI that a clesigna- tion of critical habitat was "not prudent." This set of assumptions also has been rejected by courts in recent years on the grouncis that designation of critical habitat has important eclucational effects at least ancI that Congress clicI not intend it to be avoiclecI through the blanket assumptions that the agencies have acloptecI (see Sierra Club v. USFWS, 245 F.3cI 434, 5th Cir. F200111. Notwithstanding the assumptions that have prevailecI in the agen- cies' implementation of critical-habitat rules, USFWS has proposed critical habitat for the suckers, ancI NMFS has clone the same for the coho salmon (Chapters 5-81. In its 1988 rule listing the suckers, USFWS cleclinecI to designate critical habitat, because "little aciclitional benefits of notification of the species presence wouicI be achieved through critical habitat designation" (53 FecI. Reg. 27132 F198811. Later, however, USFWS proposed critical habitat for the species (Chapter 6; 59 FecI. Reg. 61744, December 1, 1994), but it has not promulgatecI a final ruling on critical habitat for the suckers, probably because of general litigation over the manner in which USFWS has imple-

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320 FISHES IN THE KLAMATH RIVER BASIN mentecI decisions on critical habitat. It is not clear what effect some of the recent juclicial opinions on critical habitat wouicI have on the designation of critical habitat for the listecI suckers, because the analysis of economic impacts has not been clevelopecI, contrary to some juclicial requirements. In its 1997 rule listing the salmon, NMFS founcI that "critical habitat is not cleterminable at this time" ancI that the species shouicI be listecI before the decision on critical habitat was finalizecI (62 FecI. Reg. 24608 F199711. The agency clicI, however, designate critical habitat for the species in 1999 (64 FecI. Reg. 24049, May 5, 19991. It acloptecI a watershecI-basecI ap- proach to the designation (64 FecI. Reg. 24052 F19991), explaining that a more inclusive, watershed-based description of critical habitat is appro- priate because it (1) recognizes the species' use of diverse habitats and underscores the need to account for all of the habitat types supporting the species' freshwater and estuarine life stages, from small headwater streams to migration corridors and estuarine rearing areas; (2) takes into account the natural variability in habitat use that makes precise mapping problem- atic (e.g., some streams may have fish present only in years of plentiful rainfall); and (3) reinforces the important linkage between aquatic areas and adjacent riparian/upland areas. While unoccupied streams are ex- cluded from critical habitat, NMFS reiterates the proposed rule language that "it is important to note that habitat quality in this current range is intrinsically related to the quality of upland areas and of inaccessible headwater or intermittent elements (e.g., large woody debris, gravel, wa- ter quality) crucial for coho in downstream reaches." Significantly, NMFS incluclecI riparian zones in the designation because "streams ancI stream functioning are inextricably linkecI to adjacent ripar- ian ancI uplancI (or upsiope) areas" (64 FecI. Reg. 24053 F199911. NMFS also explainecI (64 FecI. Reg. 24059 F19991) that activities that may require special management considerations for fresh- water and estuarine life stages of listed coho salmon include, but are not limited to (1) land management; (2) timber harvest; (3) point and non- point water pollution; (4) livestock grazing; (5) habitat restoration; (6) beaver removal; (7) irrigation water withdrawals and returns; (8) mining; (9) road construction; (10) dam operation and maintenance; (11) diking and streambank stabilization; and (12) dredge and fill activities. 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) of the ESA provides that, on listing a species, USFWS or NMFS "shall clevelop ancT implement plans (hereinafter in this subsection

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REGULATORY CONTEXT: THE ENDANGERED SPECIES ACT 321 referred to as 'recovery plans') for the conservation anti survival of encian- gerecI species ancI threatened species listecI pursuant to this section, unless Lthe agency] fincis that such a plan will not promote the conservation of the species" (16 U.S.C. 1533(f) F200211. Recovery plans are to inclucle a cle- scription of site-specific management actions that may be necessary for the conservation ancI survival of the species ancI objective, measurable criteria that, when met, wouicI result in a determination that the species be removed from the list. Despite the requirements of Section 4~fl, recovery plans clo not consti- tute 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. The courts have rejected efforts to instill more legal effect into the recovery- plan program (Cheever 20011. NMFS has prepared no formal recovery plan for the coho salmon. In contrast, USFWS finalizecI a formal recovery plan for the enciangerecI sucker species on March 17,1993. As explainecI in Chapter 6, the NRC committee believes that the sucker recovery plan contains many constructive recom- menciations but may neecI revision in view of extensive research efforts since 1993. REGULATORY CONSEQUENCES Only when a species is listecI clo the regulatory programs of the ESA come into play. Two of them apply clirectly only to fecleral agencies: the so- callecI conservation cluty uncler Section 7(a)~1), anti the cluty uncler Section 7(a)~2) to avoid jeopardizing species or aciversely modifying critical habitat. Section 7(a)~2), however, can have substantial indirect effects on state, tribal, ancI local governments ancI private entities that receive fecleral funcI- ing or approvals or that benefit from fecleral actions. The thircI major regulatory program, the take prohibition of Section 9(a)~1), applies clirectly to all entities fecleral, state, tribal, ancI local governments ancI all private . . entitles. Federal Agency Conservation Duty Section 7(a)~1) of the ESA states that "all fecleral agencies shall, in consultation anti with the assistance of USFWS anti NMFS4, utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of enciangerecI species ancI threatened spe- cies" (16 U.S.C. 1536(a)~1) F200211. This cluty, however, is poorly clefinecI. No procedures are specified in the ESA, nor have USFWS ancI NMFS pro- viclecI any in their regulations.

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322 FISHES IN THE KLAMATH RIVER BASIN The courts generally have construed the provision to require fecleral agencies to take affirmative action or to restrain from negative action to advance the purpose of conservation (Ruin! 19951. In aciclition, courts have confirmed that Section 7(a)~1) is a source of authority for an agency to take action in support of species conservation where no other provision of the ESA requires it, as long as the action is within the scope of anti not in conflict with the agency's authority uncler its enabling statures. As ex- plainecI below, Sections 7(a)~2) ancI 9(a)~1) are prohibitions: Section 7(a)~2) prohibits fecleral agencies from jeopardizing species or aciversely modifying critical habitat, whereas Section 9(a)~1) prohibits fecleral agencies from causing take (mortality or impairment). Failure of an agency to undertake actions that wouicI promote conservation of species often wouicI be consis- tent with these prohibitions. In contrast, Section 7(a)~1) is an affirmatively statecI cluty to promote conservation of species, ancI thus can serve as au- thority for taking actions that neither Section 7(a)~2) nor Section 9(a)~1) ... . . . ~ wouicI require (see Carson-Truckee Water Conservancy District v. Watt, 549 F. Supp. 704, D. Nev. 1982, aff'cI 741 F.2cI 257, 9th Cir. F198411. For example, USBR couicI restrict water cleliveries to protect enciangerecI fish, even though it is not requirecI to clo so uncler Section 7(a)~2) or 9(a)~1), because of Section 7(a)~11. USFWS, NMFS, anti other fecleral agencies carrying out their responsi- bilities in the I(lamath River basin have not taken full advantage of their authority uncler Section 7(a)~11. For example, USBR explainecI in its 2002 biological assessment for the I(lamath Project that Section 7(a)~1) cloes not expand the agency's authority beyond its enabling laws. On the basis of that principle, USBR macle no aciclitional effort to exercise its authority uncler Section 7(a)~11. As clescribecI above, however, Section 7(a)~1) essen- tially states that actions by agencies that are consistent with enabling laws ancI that are intenclecI to provide for the conservation of species cannot be challengecI just because they are not requirecI by Sections 7(a)~2) or 9(a)~11. Hence, the provision creates an opportunity for conservation-promoting actions uncler the ESA beyond the mandates of Sections 7(a)~2) anti 9(a)~11. Many of the actions outlinecI in this report for conservation of the listecI suckers anti coho salmon wouicI be supported by Section 7(a)~1), even though they might not be requirecI by Sections 7(a)~2) or 9(a)~11. In other worcis, USFWS, NMFS, ancI all other fecleral agencies carrying out actions in the I(lamath River basin have substantial discretion to act on behalf of the listecI species even where they clo not have the cluty to clo so. Section 7(a)~1) clearly cloes require that all relevant fecleral agencies at the very least consult with USFWS ancI NMFS about the exercise of cliscre- tionary authority (see Sierra Club v. Glickman, 156 F.3cI 606, 5th Cir. F199811. Unlike consultation uncler Section 7(a)~2), which has been the context for most ESA implementation measures in the I(lamath River basin,

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REGULATORY CONTEXT: THE ENDANGERED SPECIES ACT 323 consultation uncler Section 7(a)~1) is not governed by formal procedures. Working together, the agencies couicI establish ancI implement a compre- hensive, flexible, multiagency consultation process that is clirectecI specifi- cally at the I(lamath River basin ancI is clesignecI to specify actions that each agency couicI take, uncler ancI consistent with its general authorities, to promote conservation of the listecI species. In implementing such actions, agencies wouicI be protected from legal challenge by their authority uncler Section 7(a)~11. A substantial effort, justified uncler Section 7(a)~1), shouicI be macle to enlist all fecleral agencies operating in the I(lamath River basin in recovery efforts. In fact, the relevant agencies which inclucle USFWS, NMFS, USER, the U.S. Environmental Protection Agency, the U.S. Forest Service, ancI the U.S. Army Corps of Engineers in 1994 jointly affirmed their Section 7(a)~1) authority ancI agreed to "identify opportunities to conserve Fecler- ally listecI species ancI the ecosystems upon which those species clepencI" (Memoranclum of Agreement 19941. Each of these agencies also agreecI to "determine whether its respective planning processes effectively help con- serve threatened ancI enciangerecI species ancI the ecosystems upon which those species clepencI" ancI to "use existing programs, or establish a pro- gram if one cloes not currently exist, to evaluate, recognize, ancI reward the performance ancI achievements of personnel who are responsible for plan- ning 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)~1) couicI expand recovery efforts beyond USER ancI its I(lamath Project, as neeclecI ultimately for recovery. Section 7(a)~1) cloes not require any agency participating in the consultation to implement particular measures; only institutional will can bring that about. But if ever a case existed for motivat- ing institutional will in this direction, the I(lamath River basin fits the c .escrlptlon. Prohibition Against leoparcly ant! Adverse Mollification Causer! by Fecleral Agencies Section 7(a)~2) of the ESA requires (16 U.S.C. 1536(a)~2) 2002) that each federal agency shall, in consultation with and with the assistance of tUSFWS and NMFS1, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an "agency action" ) is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modifica- tion of habitat of such species which is determined . . . to be critical.

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324 FISHES IN THE KLAMATH RIVER BASIN The I(lamath Project is subject to this requirement (see Klamath Water Users Protection Ass 'n v. Patterson, 191 F.3cI 1115, 9th Cir. 1999; O'Nei! v. Uniter] States, 50 F.3cI 667, 9th Cir. F199511. The ESA provides an elaborate set of procedures ancI criteria for carrying out the jeopardy ancI adverse modification consultations (16 U.S.C.1536(b)-(cI) F200211. USFWS ancI NMFS also have issued an extensive set of regulations covering the process (50 C.F.R. part 402 F200211. Generally, the action agency must prepare a "biological assessment" cletailing the effects that it believes its actions will have on listecI species, anti the consulting agency (USFWS or NMFS) must in response provide a "biological opinion" cleclaring whether jeopardy anti adverse modification are likely to occur. If the consulting agency fincis that jeopardy will occur, it must suggest "reasonable ancI prudent alternatives" (RPA) by which the action agency can avoid such an outcome. The RPAs, technically within the discretion of the action agency to accept or reject (see Southwest Center for Biological Diversity v. B?vrea?v of Reclamation, 143 F.3cI 515, 9th Cir. F19981), carry consiclerable weight anti are viewed as essentially mandatory in the absence of some compelling basis that the action agency might have for using different alternatives (see Bennett v. Spear, 520 U.S. 154 F19971). All agencies must fulfill all the cluties by using "the best scientific ancI commercial ciata available" (50 C.F.R.402.14(cI) ancI 402.14(g) ~ 8) F200211. Action agencies also must ensure that they ancI their license or permit applicants "shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclos- ing the formulation or implementation of any reasonable anti prudent alter- natives" (16 U.S.C. 1536(cI) F200211. A procedure establishecI in the ESA- but rarely usecI, given its narrow criteria allows an action agency to appeal a jeopardy or adverse modification finding to a committee of cabinet-level anti other fecleral agency officials anti thereby seek to carry out the action regarcIless of jeopardy or adverse modification (16 U.S.C. 1536(e)-(n) F20021; 50 C.F.R. part 450 F200211. Irrigation districts sought to initiate that procedure with respect to the 2001 jeopardy opinions that USFWS ancI NMFS issued for the I(lamath Project, but in luly 2001 the Department of the Interior cleclinecI to pursue the exemption process further. In aciclition to the jeopardy stanciarcis of Section 7(a)~2), the criteria for exemption involve policy matters outside the scope of this report. The proceclural cletails of the consultation process are not relevant to the NRC committee's charge. Rather, the key aspects of the consultation program for the committee's purposes are the meanings of jeopardy ancI reasonable ant] 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. Uncler USFWS ancI NMFS regulations, jeopar-

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REGULATORY CONTEXT: THE ENDANGERED SPECIES ACT 325 dlize the continued" existence means "to engage in an action that reasonably wouicI be expected, clirectly or inclirectly, to recluce appreciably the likeli- hoocI of both the survival ancI recovery of a listecI species in the wilcI by reducing the reproduction, numbers, or distribution of that species" (50 C.F.R. 402.02 F200211. Reasonable and prudlent alternative means "alter- native actions iclentifiecI cluring formal consultation that can be imple- mentecI in a manner consistent with the intenclecI purpose of the action, that can be implementecI consistent with the scope of the Fecleral agency's legal authority, that is economically ancI technologically feasible, ancI that FUSFWS or NMFS] believes wouicI avoid the likelihoocI of jeopardizing the continued existence of listecI species or resulting in the destruction or acI- verse modification of critical habitat" (50 C.F.R. 402.02 F200211. lucig- ments of jeopardy are inherently clifficult in a technical sense. Site-specific evidence must be used as extensively as possible in making such judgments, but use of professional judgment where site-specific evidence is inadequate or absent is inevitable ancI clesirable for rational judgments of jeopardy (see Chapter 11. As clescribecI in Chapter 1, USFWS has consultecI with USER regarding the I(lamath Project's effects on the listecI sucker species, ancI NMFS has clone so for the coho salmon. The history of the consultations is long ancI has at times been controversial (see, e.g., Bennett v. Spear, 5 F.Supp.2cI 882 D. Or. F19981; Pacific Coast Fedleration of Fishermen v. Bureau of Recla- mation, 138 F.Supp.2cI 1228 N.D. Cal. F200111. For consistency with its charge, the NRC committee's principal focus has been on the 2001 ancI 2002 consultation documents. In aciclition to the I(lamath Project, numerous other actions in the I(lamath River basin are carried out, funclecI, or authorized by fecleral agencies (Chapter 21. USFWS anti NMFS clo not appear to maintain com- prehensive inventories of actions for which consultation is necessary ancI for which each action agency's consultation is satisfied or deficient, nor is there any basinwicle strategy for conservation of the species through coorcli- natecI Section 7(a)~2) consultations. The agencies shouicI prepare ancI imple- ment such an inventory ancI strategy. The Authorities to Prohibit Take ant! Incidental Take Section 9(a)~1) of the ESA provides that "with respect to any encian- gerecI species of fish or wilcIlife . . . it is unlawful for any person subject to the jurisdiction of the United States to . . . take any such species within the United States or the territorial sea of the United States" (16 U.S.C. 1538(a) (1) F200211. Although threatened species, such as the coho salmon, are not covered clirectly in this provision, Section 4(cI) of the ESA provides that USFWS ancI NMFS "may by regulation prohibit with respect to any threat-

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326 FISHES IN THE KLAMATH RIVER BASIN enecI species any act prohibited uncler section 1538(a)~1) of this title . . . with respect to enciangerecI species" (16 U.S.C. 1533(cI) F200211. Uncler the statute, to take is to "harass, harm, pursue, hunt, shoot, wound, trap, capture, or collect, or to attempt to engage in any such ac- tion" (16 U.S.C. 1532 F200211. USFWS ancI NMFS have further clefinecI harm to mean "an act which actually kills or injures wilcIlife. Such an act may inclucle significant habitat modification or clegraciation where it actu- ally kills or injures wilcIlife by significantly impairing essential behavioral patterns, inclucling breeding, feeding or sheltering" (50 C.F.R. 17.3 F200211. The U.S. Supreme Court has uphelcI the latter definition as consistent with the congressional intent of the ESA but in so ruling construed the regulation to limit findings of harm to cases in which actual cleath or injury to iclenti- fiable members of a protected species is the proximate ancI foreseeable result of a habitat modification (Babbitt v. Sweet Home Chapter of Com- m?~nities for a Great Oregon, 515 U.S. 687 F199511. When USFWS ancI NMFS prepare biological opinions in connection with consultations uncler Section 7(a)~2) of the ESA, they most often fincI that no jeopardy or adverse modification will occur. Even in such cases, however, inciclental take of a species might be a foreseeable consequence of the action. In such instances the consulting agency must (16 U.S.C.1536(b) (4) F20021) provide the Federal agency and the applicant concerned, if any, with a written statement that (i) specifies the impact of such incidental take on the species, (ii) specifies those reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize such impact, (iii) in the case of marine mammals, specifies those measures that are neces- sary to comply with section 1371(a)~5) of this title with regard to such taking, and (iv) sets forth the terms and conditions (including, but not limited to, reporting requirements) that must be complied with by the Federal agency or applicant (if any), or both, to implement the measures specified under clauses (ii) and (iii). A similar procedure for authorization of inciclental take is available uncler Section lO(a)(l)(B) of the ESA for projects ancI actions not carried out, funclecI, or authorized by a fecleral agency ancI thus not subject to the consultation requirement of Section 7(a)~21. Uncler the procedure, the entity carrying out an action that will cause take of a listecI species must submit a habitat conservation plan (HCP) to USFWS or NMFS on which the agency bases its decision of whether to grant a permit for the inciclental take (16 U.S.C. 1539(a)~11(B) F200211. USFWS ancI NMFS consistently have founcI in their biological opinions for the I(lamath Project that USBR's actions will result in take of the species in question ancI have prepared inciclental-take statements with reasonable ancI prudent measures ancI terms ancI conditions for implementing them.

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REGULATORY CONTEXT: THE ENDANGERED SPECIES ACT 327 Some take of the listecI species is an unclisputecI consequence of USBR's operation of the I(lamath Project (see Chapters 6 ancI 8), and the reasonable ancI prudent measures for avoiding this take are well founclecI. One concern of the NRC committee, however, is the lack of attention that USFWS ancI NMFS appear to have given to take of the listecI species by actions other than USBR's operation of the I(lamath Project. Throughout the I(lamath River basin, actions by public ancI private entities are causing take of the listecI species. Many of these actions are outside the control of the USBR ancI thus not susceptible to correction though the I(lamath Project consulta- tions. Such sources of take, which the committee believes may be substan- tial, shouicI not be ignored simply because USBR ancI the I(lamath Project present a bigger ancI easier target for consultation. IncleecI, cloing so leacis inevitably to the potential for overregulation of the I(lamath Project anti, inclirectly, its beneficiaries ancI thus an inequitable distribution of the social ancI economic costs of the conservation of species. The I(lamath Project is a valicI target for scrutiny ancI regulation, but not the only one. Examples of take outside the reach of the I(lamath Project are given in the listing documents ancI in Chapters 5-8 of this report. For example, Chiloquin Dam causes take of enciangerecI suckers but is not uncler the control of USBR in connection with the I(lamath Project. Even so, there is no organized effort by USFWS to enforce the take prohibition at Chiloquin Dam or elsewhere outside the I(lamath Project where persons causing take must moclify their behavior so as to avoid take or submit HCPs uncler Section 10(a)~11(B). NMFS has a similar record in relation to coho salmon. In other parts of the nation, however, such as Austin, PortiancI, Tucson, ancI southern California, USFWS ancI NMFS have expenclecI consiclerable resources to limit inciclental take of listecI species caused by clispersecI ac- tions, inclucling those of private parties. It is not clear why the agencies have not initiated similar enforcement actions in the I(lamath River basin. 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~) of the ESA, and thus to regu- late take of the species. In luly 1997, the agency publishecI an interim Section 4~) rule extending the full extent of Section 9(a) take prohibitions to the species, except for specified benign ancI beneficial actions, inclucling aspects of habitat restoration programs that the states hacI initiated (62 FecI. Reg. 38479 July 18, 19971. In July 2000, the agency included the coho salmon in a rule establishing general take authorizations for specified ac- tivities, subject to limits, covering 14 salmonicI ESUs (65 FecI. Reg. 42421 July 10, 20001. When describing the activities that would be affected by the take prohi- bition in its luly 1999 interim Section 4(d) rule for the coho salmon ESU,

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328 FISHES IN THE KLAMATH RIVER BASIN NMFS explainecI that "agricultural activities that might result in take of SONCC coho are . . . sediment from cultivation or livestock movements on the banks or in the becis of streams; unscreened water diversions anti recluc- tions of flow through irrigation couicI also result in take; anti NMFS . . . wouicI expect the 4(cI) rule to result in some curtailment of Ltimber] harvest on lancis owned by small entities over anti above the impacts of state regulation" (62 FecI. Reg. 38481-38483 F199711. In the luly 2000 rule, NMFS explainecI that the general take authorizations cover "properly screened water diversion crevices" (62 FecI. Reg. 42423 F199711. Other agricultural, logging, anti lancI-use activities were not covered in any gen- eral or specific way by the general take authorizations. 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. If, as NMFS has concluclecI, USBR's flow-clepletion component has triggered jeopardy of the species, the other irrigation flow clepletions most likely are also causing take of the species. Yet there is little evidence that NMFS has actively enforced the take prohibition in these contexts in the I(lamath River basin (as it recently clicI, in contrast, against the Grants Pass Irrigation District for its take of salmon at its Savage Rapicis Dam diversion structure). The NRC committee has not examined the full extent of the potential measures that NMFS might take in enforcing the take prohibition in the I(lamath basin beyond USBR's operation of the I(lamath Project, but there is ample basis for the agency to clo so, anti cloing so is likely to benefit the species (Chapter 81. For take caused by the I(lamath Project, USBR obtains approval through the procedure on inciclental-take statements given in Section 7(b)~41. If USFWS anti NMFS were faithfully to enforce the take prohibi- tion, there wouicI be many more aciclitional nonproject actions that, if not moclifiecI to discontinue the take, also wouicI require authorization of inciclental take. Take of listecI suckers anti salmon caused by actions other than the I(lamath Project may even be associated with some fecleral agency funding or approval, in which case Section 7(b)~4) also wouicI apply. For take caused by actions not carried out, funclecI, or authorized by a fecleral agency, Section 10(a)~1) supplies the applicable procedure. Given the multiplicity of actions that may be causing take of the listecI suckers anti salmon, it may be productive for representatives of various interests to consider organizing an effort to explore a regional HCP that wouicI form the basis for USFWS anti NMFS to issue an "umbrella" autho- rization of inciclental take for several actions in the I(lamath River basin.

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REGULATORY CONTEXT: THE ENDANGERED SPECIES ACT 329 Regional HCPs have been used or explorecI in a number of urban ancI rural settings as a means of avoiding piecemeal administration of inciclental take permitting ancI to enhance opportunities for more efficient ancI effective habitat conservation ancI mitigation measures (Thornton 20011. Moreover, like the Section 7(a)~1) multiagency consultation proposed above, the re- gional HCP process involves coordination of numerous diverse interests ancI thus has the potential to produce more sustainable decisions than wouicI incremental, action-specific permitting. As an earlier National Re- search Council committee found (NRC 1995, p. 92, 198-199), "habitat conservation planning ... has the potential to be effective in protecting ecosystems ancI has realizecI that potential in a few cases," leacling it to "endorse regionally basecI, negotiated approaches to the clevelopment of habitat conservation plans." NMFS appears to have recognized the benefits of such interest planning processes in its 2002 biological opinion when it recommenclecI creation of a "task force" to aciciress the 43/O of irrigation-relatecI flow clepletion at Iron Gate Dam that is not attributable to USBR. The NRC committee sees no reason why a Section 7(a)~1) process ancI a regional HCP process cannot be undertaken simultaneously ancI in coordination to fulfill the objectives of such a task force ancI of relatecI species-conservation goals in the I(lamath River basin. CONCLUSIONS The ESA is not a panacea for the challenges of ecosystem management ancI species conservation posed in the I(lamath River basin. However, ESA authorities couicI be implementecI more effectively, more extensively, ancI more creatively than they are now. Specifically, the relevant fecleral agen- cies have failecI in several ways to exercise their full ESA authorities. USFWS ancI NMFS recovery planning for listecI species uncler Sec- tion 4~fl has stallecI. Fecleral agencies operating in the I(lamath River basin have not been successful in the full use of discretionary conservation authority given in Section 7(a)~11. USFWS ancI NMFS appear to have focused jeopardy consultation uncler Section 7(a)~2) narrowly on USBR's operation of the I(lamath Project, notwithstanding the many other fecleral agency actions carried out, funclecI, or authorized in or affecting the I(lamath River basin. Neither agency has macle any basinwicle inventory of or strategy for fecleral actions ancI consul- tations a prominent part of its public discourse on the I(lamath basin. USFWS ancI NMFS have not actively enforced the ESA Section 9 take prohibition outside the context of the I(lamath Project itself, notwith-

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330 FISHES IN THE KLAMATH RIVER BASIN stancling ample evidence that numerous other actions are causing take of the species. Those problems in large part couicI be remecliecI as follows: NMFS could prepare and promulgate a recovery plan for the coho salmon, ancI USFWS could revise, update, and repromulgate the sucker recovery plan. In each case, the recovery plan couicI be clesignecI with the specific purpose of enabling fecleral agency consultations uncler Sections 7(a)~1) ancI 7(a)~2) ancI incliviclual or regional habitat-conservation plan- ning uncler Section lO(a)(l), ancI it icleally wouicI be capable of being car- riecI out more comprehensively that is, across the full spectrum of issues in the I(lamath River basin ancI not just the I(lamath Project ancI through aciaptive-management principles. NMFS ancI USFWS could inventory all federal agencies that are exercising any authority in or affecting the I(lamath River basin ancI couicI initiate a multiagency consultation process with them uncler Section 7(a)~11. The consultation process wouicI be most effective if centerecI on aciaptive- management principles. Each fecleral agency engaging in the process couicI clirect its institutional will towarcI fulfilling the agreements it macle in the 1994 interagency agreement regarcling the exercise of cliscretionary author- ity uncler Section 7(a)~1), with the I(lamath River basin specifically in mincI. If they have not aireacly clone so, NMFS ancI USFWS could inventory all active ancI potential fecleral agency consultations that are or couicI be carriecI out in the I(lamath River basin uncler Section 7(a)~2), ancI clevelop a more coorclinatecI basin-wicle approach to the entire package of consulta- tions. If these instruments aireacly exist, the agencies couicI use them more overtly ancI provicle the public more information about them. NMFS ancI USFWS could identify the inventory of federal, state, local, tribal, ancI private actions that are causing unauthorizecI take of the suckers ancI coho salmon. NMFS ancI USFWS could work with the agencies ancI persons causing the takes to help them either to moclify their behavior to avoicI the takes or to obtain inciclental-take authorization uncler Sections 7(b)~4) or lO(a)(l). NMFS ancI USFWS could explore with those interests, which inclucle private-sector ancI government actors, the possibility of a regional habitat-conservation planning approach.