Feel lucky that the standard is not whether or not the programs cause "take" or there would be no programs at all anywhere where there are listed fish.

Once the feds issue the permit, which means the programs' take is "incidental", that's where the gray area comes in and there will be more litigation about it, count on that.

One side will argue that the take is "not incidental", but is actually "significant"...but they will have an uphill battle to fight since they will have the burden of proof and the fed agency finding the take to be "incidental" gets quite a bit of deference when they make that decision.

That being said...look at the CRPPS lawsuits. The feds keep saying the salmon plans are hunky dory, and Judge Redden repeatedly sent them back telling them their plans are not hunky dory and to re-do it.

Fish on...

Todd
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Team Flying Super Ditch Pickle