TS has it right. As he/she stated, the lack of documentation does not put programs in violation of the ESA. WDFW has to actually be out of compliance with a NMFS determination to be in violation of the ESA. That is, NMFS has to determine that WDFW actions are indeed adversely affecting ESA listed species, and then WDFW has to willfully ignore or not properly respond to the NMFS determination. But NMFS has not made a determination; and WDFW has not ignored their findings.

WDFW and NMFS are both guilty of not following up on the paperwork to ensure compliance. It's likely the court will agree, and the "punishment" will likely be a court-ordered schedule for completing consultation. Once the consultation is done, we will know whether and how the Chambers Creek steelhead adversely affect listed species. If WDFW fails to respond to the requirements of the subsequent incidental take permit, then (and only then) are they in violation of the ESA.

In my view, WDFW has over-reacted to this potential lawsuit. They need to get better tactical advice on how they are approaching this issue. I'm assuming they're already getting good legal advice....