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Revisiting Small Populations in Jeopardy: A Rejoinder to Börk et al.

July 2021

Citation: 51 ELR 10557

Issue: 7

Author: Paul S. Weiland and Dennis D. Murphy

This Comment responds to a comment by Karrigan Börk et al. published in the September issue that critiqued a biological opinion issued by the U.S. Fish and Wildlife Service (FWS) under §7(a)(2) of the Endangered Species Act (ESA) that analyzes the effects of ongoing operations of the Central Valley Project and State Water Project on the Delta smelt. Specifically, the Comment describes the ESA consultation process and its reliance on effects analysis, an analytical technique analogous to risk assessment, whereby FWS is obliged to follow a stepwise process to evaluate presumptive effects of agency actions on listed species and their designated critical habitat, and contrasts the effects analysis with the approach taken by Börk et al. in evaluating the adequacy of FWS’ determination and developing an alternative.

Paul S. Weiland is a Partner at Nossaman LLP. Dennis D. Murphy is a conservation biologist affiliated with the Center for California Water Resources Policy and Management.

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