50 C.F.R. § 402.09
Irreversible or irretrievable commitment of resources
After initiation or reinitiation of consultation required under section 7(a)(2) of the Act, the Federal agency and any applicant shall make no irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternatives which would avoid violating section 7(a)(2). This prohibition is in force during the consultation process and continues until the requirements of section 7(a)(2) are satisfied. This provision does not apply to the conference requirement for proposed species or proposed critical habitat under section 7(a)(4) of the Act.
Notes of Decisions
Cited in 17
cases (3 in the last 5 years), 1994–2026 · leading case: Nat. Resources Def. Council v. Kempthorne, 539 F. Supp. 2d 1155 (E.D. Cal. 2008).
Nat. Resources Def. Council v. Kempthorne, 539 F. Supp. 2d 1155 (E.D. Cal. 2008). “50 C.F.R. § 402.09 . 80. The restrictions imposed by section 7(d) are in effect because the Bureau has not yet completed the consultation process lawfully by ensuring that a valid biological opinion is in place regarding the 2004 OCAP before putting the species at risk.”
Kandra v. United States, 145 F. Supp. 2d 1192 (D. Or. 2001). “§ 1536 (d); 50 C.F.R. § 402.09 . Here, release of the requested amounts of Project irrigation water would foreclose the implementation of any RPA involving higher UKL elevations and higher in-stream flows below Iron Gate Dam; the water would be irretrievable.”
Pac. Coast Fed'n of Fishermen's Associations v. U.S. Bureau of Reclamation, 138 F. Supp. 2d 1228 (N.D. Cal. 2001). “” 50 C.F.R. § 402.09 . The Ninth Circuit has cautioned that section 7(d) does not stand for the proposition that a federal agency may initiate action before a “comprehensive biological opinion” has issued merely because the .”
Defenders of Wildlife v. Jackson, 791 F. Supp. 2d 96 (D.D.C. 2011). “” 50 C.F.R. § 402.09 . Private parties may enforce the ESA via a “citizen suit” provision that allows for “any person” to bring a civil suit to “enjoin any person, including .”
All. for the Wild Rockies v. Marten, 253 F. Supp. 3d 1108 (D. Mont. 2017). “See 50 C.F.R. § 402.09 (“After initiation or reinitiation of consultation required under section 7(a)(2) of the Act, the Federal agency and any applicant shall make no irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of…”
Ctr. for Marine Conservation v. Brown, 917 F. Supp. 1128 (S.D. Tex. 1996). “See 50 C.F.R. § 402.09 . However, because the CMC does not address this allegation in its Motion for Summary Judgment, the Court also treats this issue as abandoned.”
Rock Creek All. v. United States Forest Serv., 703 F. Supp. 2d 1152 (D. Mont. 2010). “; 50 C.F.R. § 402.09 . In actions where the federal agency remains in control or where the federal agency has discretionary involvement, re-initiation of formal consultation is required in the following instances: (a) If the amount or extent of taking specified in the incidental…”
Env't Prot. Info. Ctr., Inc. v. Pac. Lumber Co., 67 F. Supp. 2d 1113 (N.D. Cal. 1999). “The Services also stated: Based on the initiation of formal consultation, the provisions of section 7(d) of the Act and 50 C.F.R. 402.09 now apply. Under Section 7(d) PALCO may make no irreversible or irretrievable commitment of resources that would have the effect of…”
Env't Prot. Info. Ctr., Inc. v. Pac. Lumber Co., 229 F. Supp. 2d 993 (N.D. Cal. 2002). “The Services also stated: Based on the initiation of formal consultation, the provisions of section 7(d) of the Act and 50 C.F.R. § 402.09 now apply. Under Section 7(d) PALCO may make no irreversible or irretrievable commitment of resources that would have the effect of…”
Env't Prot. Info. Ctr., Inc. v. Pac. Lumber Co., 67 F. Supp. 2d 1090 (N.D. Cal. 1999). “1536(d); see also 50 C.F.R. §§ 402.09 & 450.01 (defining “irreversible and irretrievable commitment of resources”).”
Nat. Resources Def. Council v. Houston, 146 F.3d 1118 (9th Cir. 1998). “§ 1536 (d); see 50 C.F.R. § 402.09 . The district court concluded that the 40-year water contracts constituted an irreversible and irretrievable commitment of resources and that the Bureau was not permitted to proceed until FWS found that the contracts were not likely to affect…”
Idaho ex rel. Idaho Pub. Utils. Comm'n v. Interstate Com. Comm'n, 35 F.3d 585 (D.C. Cir. 1994). “§ 1536 (c); see also 50 C.F.R. § 402.09 (1993) (barring “irreversible or irretrievable commitment of resources” until “the requirements of [ 16 U.”
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