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INSERT TO TESTIMONY 



OF GARY SMITH, NATIONAL MARINE FISHERIES SERVICE 



BEFORE THE BONNEVILLE POWER ADMINISTRATION TASK FORCE 



SEPTEMBER 24, 199 3 



During the National Marine Fisheries Service's (NMFS) testimony 

 presented by Mr. Gary Smith, Northwest Region, before the 

 Bonneville Power Administration Task Force on September 24, 1993, 

 in Boise, Mr. Smith agreed to supplement the record on the role 

 of the public in consultations under section 7(a) of the 

 Endangered Species Act (ESA) . Following is NMFS' analysis of the 

 statute and regulations in response to your reguest. We also 

 have included a brief review of the efforts provided by NMFS to 

 maintain an open process in all aspects of the ESA which we 

 believe is a model for ensuring full and open participation for 

 all stakeholders in ESA actions. 



In reviewing this information, we believe the main issue of 

 concern by various regional interests in the ESA process, is not 

 whether the administrative process is open, but rather the desire 

 to have influence over or be involved in the decision making 

 process delegated to NMFS in issuing biological opinions on 

 proposed federal actions. Clearly, we can continually strive to 

 make improvements in affording the public greater opportunities 

 to participate and be aware of the issues and alternatives being 

 considered to ensure the continued existence of listed species. 

 However, NMFS can not abrogate to the public process its 

 responsibility for making ultimate biological decisions on 

 whether actions are likely to jeopardize listed species. 



Section 7 Consultations 



ESA section 7(a)(2) requires all Federal agencies to ensure that 

 their actions are not likely to jeopardize the continued 

 existence of any listed species. The same section requires the 

 action agency to consult with NMFS. In providing a biological 

 opinion, NMFS is giving its expert advice, on which the action 

 agency relies. However, the ultimate decision on actions 

 affecting listed species and the responsibility to avoid 

 jeopardizing them lies with the action agency. 



There is no statutory or regulatory provision for public 

 participation during the consultation process. This contrasts 

 with the statutory requirements for notice and comment for: 

 Listings and critical habitat designation under section 4 of the 

 ESA; taking permits under section 10 of the ESA; and recovery 

 plan adoption under section 4. 



The statute and regulations provide for participation by the 

 permit or license applicant (where the proposed federal action is 

 authorization) , who participates in the consultation in 



