Appendix 2.b.
PART 402--INTERAGENCY COOPERATION--ENDANGERED
SPECIES ACT OF 1973, AS AMENDED
Subpart A--General
Sec.
402.01 Scope.
402.02 Definitions.
402.03 Applicability.
402.04 Counterpart regulations.
402.05 Emergencies.
402.06 Coordination with other environmental reviews.
402.07 Designation of lead agency.
402.08 Designation of non-Federal representative.
402.09 Irreversible or irretrievable commitment of resources.
Subpart B--Consultation Procedures
402.10 Conference on proposed species or proposed
critical habitat.
402.11 Early consultation.
402.12 Biological assessments.
402.13 Informal consultation.
402.14 Formal consultation.
402.15 Responsibilities of Federal agency following issuance
of a biological opinion.
402.16 Reinitiation of formal consultation.
Authority: 16 U.S.C. 1531 et seq.
Source: 51 FR 19957, June 3, 1986, unless otherwise
noted.
Subpart A--General
§ 402.01 Scope.
(a) This part interprets and implements sections
7(a)-(d) [16 U.S.C. 1536(a)-(d)] of the Endangered Species Act
of 1973, as amended ("Act"). Section 7(a) grants authority
to and imposes requirements upon Federal agencies regarding
endangered or threatened species of fish, wildlife, or plants
("listed species") and habitat of such species that
has been designated as critical ("critical habitat").
Section 7(a)(1) of the Act directs Federal agencies, in consultation
with and with the assistance of the Secretary of the Interior
or of Commerce, as appropriate, to utilize their authorities
to further the purposes of the Act by carrying out conservation
programs for listed species. Such affirmative conservation programs
must comply with applicable permit requirements (50 CFR Parts
17, 220, 222, and 227) for listed species and should be coordinated
with the appropriate Secretary. Section 7(a)(2) of the Act requires
every Federal agency, in consultation with and with the assistance
of the Secretary, to insure that any action it authorizes, funds,
or carries out, in the United States or upon the high seas,
is not likely to jeopardize the continued existence of any listed
species or results in the destruction or adverse modification
of critical habitat. Section 7(a)(3) of the Act authorizes a
prospective permit or license applicant to request the issuing
Federal agency to enter into early consultation with the Service
on a proposed action to determine whether such action is likely
to jeopardize the continued existence of listed species or result
in the destruction or adverse modification of critical habitat.
Section 7(a)(4) of the Act requires Federal agencies to confer
with the Secretary on any action that is likely to jeopardize
the continued existence of proposed species or result in the
destruction or adverse modification of proposed critical habitat.
Section 7(b) of the Act requires the Secretary, after the conclusion
of early or formal consultation, to issue a written statement
setting forth the Secretary's opinion detailing how the agency
action affects listed species or critical habitat. Biological
assessments are required under section 7(c) of the Act if listed
species or critical habitat may be present in the area affected
by any major construction activity as defined in § 404.02.
Section 7(d) of the Act prohibits Federal agencies and applicants
from making any irreversible or irretrievable commitment of
resources which has the effect of foreclosing the formulation
or implementation of reasonable and prudent alternatives which
would avoid jeopardizing the continued existence of listed species
or resulting in the destruction or adverse modification of critical
habitat. Section 7(e)-(o)(1) of the Act provide procedures for
granting exemptions from the requirements of section 7(a)(2).
Regulations governing the submission of exemption applications
are found at 50 CFR Part 451, and regulations governing the
exemption process are found at 50 CFR Parts 450, 452, and 453.
(b) The U.S. Fish and Wildlife Service (FWS) and
the National Marine Fisheries Service (NMFS) share responsibilities
for administering the Act. The Lists of Endangered and Threatened
Wildlife and Plants are found in 50 CFR 17.11 and 17.12 and
the designated critical habitats are found in 50 CFR 17.95 and
17.96 and 50 CFR Part 226. Endangered or threatened species
under the jurisdiction of NMFS are located in 50 CFR 222.23(a)
and 227.4. If the subject species is cited in 50 CFR 222.23(a)
or 227.4, the Federal agency shall contact NMFS. For all other
listed species the Federal Agency shall contact FWS.
§ 402.02 Definitions.
"Act" means the Endangered Species
Act of 1973, as amended, 16 U.S.C. 1531 et seq.
"Action" means all activities or programs of any kind
authorized, funded, or carried out, in whole or in part, by
Federal agencies in the United States or upon the high seas.
Examples include, but are not limited to:
(a) actions intended to conserve listed species or their habitat;
(b) the promulgation of regulations;
(c) the granting of licenses, contracts, leases, easements,
rights-of-way, permits, or grants-in-aid; or
(d) actions directly or indirectly causing modifications to
the land, water, or air.
"Action area" means all areas to be
affected directly or indirectly by the Federal action and not
merely the immediate area involved in the action.
"Applicant" refers to any person, as
defined in section 3(13) of the Act, who requires formal approval
or authorization from a Federal agency as a prerequisite to
conducting the action.
"Biological assessment" refers to the
information prepared by or under the direction of the Federal
agency concerning listed and proposed species and designated
and proposed critical habitat that may be present in the action
area and the evaluation potential effects of the action on such
species and habitat.
"Biological opinion" is the document
that states the opinion of the Service as to whether or not
the Federal action is likely to jeopardize the continued existence
of listed species or result in the destruction or adverse modification
of critical habitat.
"Conference" is a process which involves
informal discussions between a Federal agency and the Service
under section 7(a)(4) of the Act regarding the impact of an
action on proposed species or proposed critical habitat and
recommendations to minimize or avoid the adverse effects.
"Conservation recommendations" are suggestions
of the Service regarding discretionary measures to minimize
or avoid adverse effects of a proposed action on listed species
or critical habitat or regarding the development of information.
"Critical habitat" refers to an area
designated as critical habitat listed in 50 CFR Parts 17 or
226.
"Cumulative effects" are those effects
of future State or private activities, not involving Federal
activities, that are reasonably certain to occur within the
action area of the Federal action subject to consultation.
"Designated non-Federal representative"
refers to a person designated by the Federal agency as its representative
to conduct informal consultation and/or to prepare any biological
assessment.
"Destruction or adverse modification"
means a direct or indirect alteration that appreciably diminishes
the value of critical habitat for both the survival and recovery
of a listed species. Such alterations include, but are not limited
to, alterations adversely modifying any of those physical or
biological features that were the basis for determining the
habitat to be critical.
"Director" refers to the Assistant Administrator
for Fisheries for the National Oceanic and Atmospheric Administration,
or his authorized representative; or the Fish and Wildlife Service
regional director, or his authorized representative, for the
region where the action would be carried out.
"Early consultation" is a process requested
by a Federal agency on behalf of a prospective applicant under
section 7(a)(3) of the Act.
"Effects of the action" refers to the
direct and indirect effects of an action on the species or critical
habitat, together with the effects of other activities that
are interrelated or interdependent with that action, that will
be added to the environmental baseline. The environmental baseline
includes the past and present impacts of all Federal, State,
or private actions and other human activities in the action
area, the anticipated impacts of all proposed Federal projects
in the action area that have already undergone formal or early
section 7 consultation, and the impact of State or private actions
which are contemporaneous with the consultation in process.
Indirect effects are those that are caused by the proposed action
and are later in time, but still are reasonably certain to occur.
Interrelated actions are those that are part of a larger action
and depend on the larger action for their justification. Interdependent
actions are those that have no independent utility apart from
the action under consideration.
"Formal consultation" is a process between
the Service and the Federal agency that commences with the Federal
agency's written request for consultation under section 7(a)(2)
of the Act and concludes with the Service's issuance of the
biological opinion under section 7(b)(3) of the Act.
"Incidental take" refers to takings that result from,
but are not the purpose of, carrying out an otherwise lawful
activity conducted by the Federal agency or applicant.
"Informal consultation" is an optional process that
includes all discussions, correspondence, etc., between the
Service and the Federal agency or the designated non-Federal
representative prior to formal consultation, if required.
"Jeopardize the continued existence of"
means to engage in an action that reasonably would be expected,
directly or indirectly, to reduce appreciably the likelihood
of both the survival and recovery of a listed species in the
wild by reducing the reproduction, numbers, or distribution
of that species.
"Listed species" means any species of
fish, wildlife, or plant which has been determined to be endangered
or threatened under section 4 of the Act. Listed species are
found in 50 CFR 17.11-17.12.
"Major construction activity" is a construction
project (or other undertaking having similar physical impacts)
which is a major Federal action significantly affecting the
quality of the human environment as referred to in the National
Environmental Policy Act [NEPA, 42 U.S.C. 4332(2)(C)].
"Preliminary biological opinion" refers
to an opinion issued as a result of early consultation.
"Proposed critical habitat" means habitat
proposed in the Federal Register to be designated or revised
as critical habitat under section 4 of the Act for any listed
or proposed species.
"Proposed species" means any species
of fish, wildlife, or plant that is proposed in the Federal
Register to be listed under section 4 of the Act.
"Reasonable and prudent alternatives"
refer to alternative actions identified during formal consultation
that can be implemented in a manner consistent with the intended
purpose of the action, that can be implemented consistent with
the scope of the Federal agency's legal authority and jurisdiction,
that is economically and technologically feasible, and that
the Director believes would avoid the likelihood of jeopardizing
the continued existence of listed species or resulting in the
destruction or adverse modification of critical habitat.
"Reasonable and prudent measures" refer
to those actions the Director believes necessary or appropriate
to minimize the impacts (i.e., amount or extent, of incidental
take).
"Recovery" means improvement in the
status of listed species to the point at which listing is no
longer appropriate under the criteria set out in section 4(a)(1)
of the Act.
"Service" means the U.S. Fish and Wildlife
Service or the National Marine Fisheries Service, as appropriate.
§ 402.03 Applicability.
Section 7 and the requirements of this part apply
to all actions in which there is discretionary Federal involvement
or control.
§ 402.04 Counterpart regulations.
The consultation procedures set forth in this
part may be superseded for a particular Federal agency by joint
counterpart regulations among that agency, the Fish and Wildlife
Service, and the National Marine Fisheries Service. Such counterpart
regulations shall be published in the Federal Register in proposed
form and shall be subject to public comment for at least 60
days before final rules are published.
§ 402.05 Emergencies.
(a) Where emergency circumstances mandate the
need to consult in an expedited manner, consultation may be
conducted informally through alternative procedures that the
Director determines to be consistent with the requirements of
sections 7(a)-(d) of the Act. This provision applies to situations
involving acts of God, disasters, casualties, national defense
or security emergencies, etc.
(b) Formal consultation shall be initiated as
soon as practicable after the emergency is under control. The
Federal agency shall submit information on the nature of the
emergency action(s), the justification for the expedited consultation,
and the impacts to endangered or threatened species and their
habitats. The Service will evaluate such information and issue
a biological opinion including the information and recommendations
given during the emergency consultation.
§ 402.06 Coordination with other environmental reviews.
(a) Consultation, conference, and biological
assessment procedures under section 7 may be consolidated with
interagency cooperation procedures required by other statutes,
such as the National Environmental Policy Act (NEPA) (42 U.S.C.
4321 et seq., implemented at 40 CFR Parts 1500-1508) or the
Fish and Wildlife Coordination Act (FWCA) (16 U.S.C. 661 et
seq.). Satisfying the requirements of these other statutes,
however, does not in itself relieve a Federal agency of its
obligations to comply with the procedures set forth in this
part or the substantive requirements of section 7. The Service
will attempt to provide a coordinated review and analysis of
all environmental requirements.
(b) Where the consultation or conference has been
consolidated with the interagency cooperation procedures required
by other statutes such as NEPA or FWCA, the results should be
included in the documents required by those statutes.
§ 402.07 Designation of lead agency.
When a particular action involves more than one
Federal agency, the consultation and conference responsibilities
may be fulfilled through a lead agency. Factors relevant in
determining an appropriate lead agency include the time sequence
in which the agencies would become involved, the magnitude of
their respective involvement, and their relative expertise with
respect to the environmental effects of the action. The Director
shall be notified of the designation in writing by the lead
agency.
§ 402.08 Designation of non-Federal representative.
A Federal agency may designate a non-Federal
representative to conduct informal consultation or prepare a
biological assessment by giving written notice to the Director
of such designation. If a permit or license applicant is involved
and is not the designated non-Federal representative, then the
applicant and Federal agency must agree on the choice of the
designated non- Federal representative. If a biological assessment
is prepared by the designated non-Federal representative, the
Federal agency shall furnish guidance and supervision and shall
independently review and evaluate the scope and contents of
the biological assessment. The ultimate responsibility for compliance
with section 7 remains with the Federal agency.
§ 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.
Subpart B--Consultation Procedures
§ 402.10 Conference on proposed species or proposed critical
habitat.
(a) Each Federal agency shall confer with the
Service on any action which is likely to jeopardize the continued
existence of any proposed species or result in the destruction
or adverse modification of proposed critical habitat. The conference
is designed to assist the Federal agency and any applicant in
identifying and resolving potential conflicts at an early stage
in the planning process.
(b) The Federal agency shall initiate the conference
with the Director. The Service may request a conference if,
after a review of available information, it determines that
a conference is required for a particular action.
(c) A conference between a Federal agency and
the Service shall consist of informal discussions concerning
an action that is likely to jeopardize the continued existence
of the proposed species or result in the destruction or adverse
modification of the proposed critical habitat at issue. Applicants
may be involved in these informal discussions to the greatest
extent practicable. During the conference, the Service will
make advisory recommendations, if any, on ways to minimize or
avoid adverse effects. If the proposed species is subsequently
listed or the proposed critical habitat is designated prior
to completion of the action, the Federal agency must review
the action to determine whether formal consultation is required.
(d) If requested by the Federal agency and deemed appropriate
by the Service, the conference may be conducted in accordance
with the procedures for formal consultation in § 402.14.
An opinion issued at the conclusion of the conference may be
adopted as the biological opinion when the species is listed
or critical habitat is designated, but only if no significant
new information is developed (including that developed during
the rulemaking process on the proposed listing or critical habitat
designation) and no significant changes to the Federal action
are made that would alter the content of the opinion. An incidental
take statement provided with a conference opinion does not become
effective unless the Service adopts the opinion once the listing
is final.
(e) The conclusions reached during a conference
and any recommendations shall be documented by the Service and
provided to the Federal agency and to any applicant. The style
and magnitude of this document will vary with the complexity
of the conference. If formal consultation also is required for
a particular action, then the Service will provide the results
of the conference with the biological opinion.
§ 402.11 Early consultation.
(a) Purpose. Early consultation is designed to
reduce the likelihood of conflicts between listed species or
critical habitat and proposed actions and occurs prior to the
filing of an application for a Federal permit or license. Although
early consultation is conducted between the Service and the
Federal agency, the prospective applicant should be involved
throughout the consultation process.
(b) Request by prospective applicant. If a prospective
applicant has reason to believe that the prospective action
may affect listed species or critical habitat, it may request
the Federal agency to enter into early consultation with the
Service. The prospective applicant must certify in writing to
the Federal agency that
(1) it has a definitive proposal outlining the
action and its effects and (2) it intends to implement its proposal,
if authorized.
(c) Initiation of early consultation. If the Federal
agency receives the prospective applicant's certification in
paragraph (b) of this section, then the Federal agency shall
initiate early consultation with the Service. This request shall
be in writing and contain the information outlined in §
402.14(c) and, if the action is a major construction activity,
the biological assessment as outlined in § 402.12.
(d) Procedures and responsibilities. The procedures
and responsibilities for early consultation are the same as
outlined in § 402.14(c)-(j) for formal consultation, except
that all references to the "applicant" shall be treated
as the "prospective applicant" and all references
to the "biological opinion" or the "opinion"
shall be treated as the "preliminary biological opinion"
for the purpose of this section.
(e) Preliminary biological opinion. The contents
and conclusions of a preliminary biological opinion are the
same as for a biological opinion issued after formal consultation
except that the incidental take statement provided with a preliminary
biological opinion does not constitute authority to take listed
species.
(f) Confirmation of preliminary biological opinion
as final biological opinion. A preliminary biological opinion
may be confirmed as a biological opinion issued after formal
consultation if the Service reviews the proposed action and
finds that there have been no significant changes in the action
as planned or in the information used during the early consultation.
A written request for confirmation of the preliminary biological
opinion should be submitted after the prospective applicant
applies to the Federal agency for a permit or license but prior
to the issuance of such permit or license. Within 45 days of
receipt of the Federal agency's request, the Service shall either:
(1) Confirm that the preliminary biological opinion
stands as a final biological opinion; or
(2) If the findings noted above cannot be made,
request that the Federal agency initiate formal consultation.
§ 402.12 Biological assessments.
(a) Purpose. A biological assessment shall evaluate
the potential effects of the action on listed and
proposed species and designated and proposed critical
habitat and determine whether any such species or habitat are
likely to be adversely affected by the action and is used in
determining whether formal consultation or a conference is necessary.
(b) Preparation requirement. (1) The procedures
of this section are required for Federal actions that are "major
construction activities"; provided that a contract for
construction was not entered into or actual construction was
not begun on or before November 10, 1978. Any person, including
those who may wish to apply for an exemption from section 7(a)(2)
of the Act, may prepare a biological assessment under the supervision
of the Federal agency and in cooperation with the Service consistent
with the procedures and requirements of this section. An exemption
from the requirements of section 7(a)(2) is not permanent unless
a biological assessment has been prepared.
(2) The biological assessment shall be completed
before any contract for construction is entered into and before
construction is begun.
(c) Request for information. The Federal agency
or the designated non-Federal representative shall convey to
the Director either (1) a written request for a list of any
listed or proposed species or designated or proposed critical
habitat that may be present in the action area; or (2) a written
notification of the species and critical habitat that are being
included in the biological assessment.
(d) Director's response. Within 30 days of receipt
of the notification of, or the request for, a species list,
the Director shall either concur with or revise the list or,
in those cases where no list has been provided, advise the Federal
agency or the designated non-Federal representative in writing
whether, based on the best scientific and commercial data available,
any listed or proposed species or designated or proposed critical
habitat may be present in the action area. In addition to listed
and proposed species, the Director will provide a list of candidate
species that may be present in the action area. Candidate species
refers to any species being considered by the Service for listing
as endangered or threatened species but not yet the subject
of a proposed rule. Although candidate species have no legal
status and are accorded no protection under the Act, their inclusion
will alert the Federal agency of potential proposals or listings.
(1) If the Director advises that no listed species
or critical habitat may be present, the Federal agency need
not prepare a biological assessment and further consultation
is not required. If only proposed species or proposed critical
habitat may be present in the action area, then the Federal
agency must confer with the Service if required under §
402.10, but preparation of a biological assessment is not required
unless the proposed listing and/or designation becomes final.
(2) If a listed species or critical habitat may
be present in the action area, the Director will provide a species
list or concur with the species list provided. The Director
also will provide available information (or references thereto)
regarding these species and critical habitat, and may recommend
discretionary studies or surveys that may provide a better information
base for the preparation of an assessment. Any recommendation
for studies or surveys is not to be construed as the Service's
opinion that the Federal agency has failed to satisfy the information
standard of section 7(a)(2) of the Act.
(e) Verification of current accuracy of species
list. If the Federal agency or the designated non-Federal representative
does not begin preparation of the biological assessment within
90 days of receipt of (or concurrence with) the species list,
the Federal agency or the designated non-Federal representative
must verify (formally or informally) with the Service the current
accuracy of the species list at the time the preparation of
the assessment is begun.
(f) Contents. The contents of a biological assessment
are at the discretion of the Federal agency and will depend
on the nature of the Federal action. The following may be considered
for inclusion:
(1) The results of an on-site inspection of the
area affected by the action to determine if listed or proposed
species are present or occur seasonally.
(2) The views of recognized experts on the species
at issue.
(3) A review of the literature and other information.
(4) An analysis of the effects of the action on
the species and habitat, including consideration of cumulative
effects, and the results of any related studies.
(5) An analysis of alternate actions considered
by the Federal agency for the proposed action.
(g) Incorporation by reference. If a proposed action requiring
the preparation of a biological assessment is identical, or
very similar, to a previous action for which a biological assessment
was prepared, the Federal agency may fulfill the biological
assessment requirement for the proposed action by incorporating
by reference the earlier biological assessment, plus any supporting
data from other documents that are pertinent to the consultation,
into a written certification that:
(1) The proposed action involves similar impacts
to the same species in the same geographic area;
(2) No new species have been listed or proposed
or no new critical habitat designated or proposed for the action
area; and
(3) The biological assessment has been supplemented
with any relevant changes in information.
(h) Permit requirements. If conducting a biological
assessment will involve the taking of a listed species, a permit
under section 10 of the Act (16 U.S.C. 1539) and Part 17 of
this title (with respect to species under the jurisdiction of
the FWS) or Parts 220, 222, and 227 of this title (with respect
to species under the jurisdiction of NMFS) is required.
(i) Completion time. The Federal agency or the
designated non-Federal representative shall complete the biological
assessment within 180 days after its initiation (receipt of
or concurrence with the species list) unless a different period
of time is agreed to by the Director and the Federal agency.
If a permit or license applicant is involved, the 180-day period
may not be extended unless the agency provides the applicant,
before the close of the 180-day period, with a written statement
setting forth the estimated length of the proposed extension
and the reasons why such an extension is necessary.
(j) Submission of biological assessment. The Federal
agency shall submit the completed biological assessment to the
Director for review. The Director will respond in writing within
30 days as to whether or not he concurs with the findings of
the biological assessment. At the option of the Federal agency,
formal consultation may be initiated under § 402.14(c)
concurrently with the submission of the assessment.
(k) Use of the biological assessment. (1) The
Federal agency shall use the biological assessment in determining
whether formal consultation or a conference is required under
§ 402.14 or
§ 402.10, respectively. If the biological assessment indicates
that there are no listed species or critical habitat present
that are likely to be adversely affected by the action and the
Director concurs as specified in paragraph (j) of this section,
then formal consultation is not required. If the biological
assessment indicates that the action is not likely to jeopardize
the continued existence of proposed species or result in the
destruction or adverse modification of proposed critical habitat,
and the Director concurs, then a conference is not required.
(2) The Director may use the results of the biological
assessment in (i) determining whether to request the Federal
agency to initiate formal consultation or a conference, (ii)
formulating a biological opinion, or (iii) formulating a preliminary
biological opinion.
§ 402.13 Informal consultation.
(a) Informal consultation is an optional process
that includes all discussions, correspondence, etc., between
the Service and the Federal agency or the designated non-Federal
representative, designed to assist the Federal agency in determining
whether formal consultation or a conference is required. If
during informal consultation it is determined by the Federal
agency, with the written concurrence of the Service, that the
action is not likely to adversely affect listed species or critical
habitat, the consultation process is terminated, and no further
action is necessary.
(b) During informal consultation, the Service
may suggest modifications to the action that the Federal agency
and any applicant could implement to avoid the likelihood of
adverse effects to listed species or critical habitat.
§ 402.14 Formal consultation.
(a) Requirement for formal consultation. Each
Federal agency shall review its actions at the earliest possible
time to determine whether any action may affect listed species
or critical habitat. If such a determination is made, formal
consultation is required, except as noted in paragraph (b) of
this section. The Director may request a Federal agency to enter
into consultation if he identifies any action of that agency
that may affect listed species or critical habitat and for which
there has been no consultation. When such a request is made,
the Director shall forward to the Federal agency a written explanation
of the basis for the request.
(b) Exceptions. (1) A Federal agency need not
initiate formal consultation if, as a result of the preparation
of a biological assessment under § 402.12 or as a result
of informal consultation with the Service under § 402.13,
the Federal agency determines, with the written concurrence
of the Director, that the proposed action is not likely to adversely
affect any listed species or critical habitat.
(2) A Federal agency need not initiate formal consultation if
a preliminary biological opinion, issued after early consultation
under § 402.11, is confirmed as the final biological opinion.
(c) Initiation of formal consultation. A written
request to initiate formal consultation shall be submitted to
theDirector and shall include:
(1) A description of the action to be considered;
(2) A description of the specific area that may
be affected by the action;
(3) A description of any listed species or critical
habitat that may be affected by the action;
(4) A description of the manner in which the action
may affect any listed species or critical habitat and an analysis
of any cumulative effects;
(5) Relevant reports, including any environmental
impact statement, environmental assessment, or biological assessment
prepared; and
(6) Any other relevant available information on
the action, the affected listed species, or critical habitat.
Formal consultation shall not be initiated by the Federal agency
until any required biological assessment has been completed
and submitted to the Director in accordance with
§ 402.12. Any request for formal consultation may encompass,
subject to the approval of the Director, a number of similar
individual actions within a given geographical area or a segment
of a comprehensive plan. This does not relieve the Federal agency
of the requirements for considering the effects of the action
as a whole.
(d) Responsibility to provide best scientific
and commercial data available. The Federal agency requesting
formal consultation shall provide the Service with the best
scientific and commercial data available or which can be obtained
during the consultation for an adequate review of the effects
that an action may have upon listed species or critical habitat.
This information may include the results of studies or surveys
conducted by the Federal agency or the designated non-Federal
representative. The Federal agency shall provide any applicant
with the opportunity to submit information for consideration
during the consultation.
(e) Duration and extension of formal consultation.
Formal consultation concludes within 90 days after its initiation
unless extended as provided below. If an applicant is not involved,
the Service and the Federal agency may mutually agree to extend
the consultation for a specific time period. If an applicant
is involved, the Service and the Federal agency may mutually
agree to extend the consultation provided that the Service submits
to the applicant, before the close of the 90 days, a written
statement setting forth:
(1) The reasons why a longer period is required,
(2) The information that is required to complete
the consultation, and
(3) The estimated date on which the consultation
will be completed.
A consultation involving an applicant cannot be extended for
more than 60 days without the consent of the applicant. Within
45 days after concluding formal consultation, the Service shall
deliver a biological opinion to the Federal agency and any applicant.
(f) Additional data. When the Service determines
that additional data would provide a better information base
from which to formulate a biological opinion, the Director may
request an extension of formal consultation and request that
the Federal agency obtain additional data to determine how or
to what extent the action may affect listed species or critical
habitat. If formal consultation is extended by mutual agreement
according to § 402.14(e), the Federal agency shall obtain,
to the extent practicable, that data which can be developed
within the scope of the extension. The responsibility for conducting
and funding any studies belongs to the Federal agency and the
applicant, not the Service. The Service's request for additional
data is not to be construed as the Service's opinion that the
Federal agency has failed to satisfy the information standard
of section 7(a)(2) of the Act. If no extension of formal consultation
is agreed to, the Director will issue a biological opinion using
the best scientific and commercial data available.
(g) Service responsibilities. Service responsibilities
during formal consultation are as follows:
(1) Review all relevant information provided by
the Federal agency or otherwise available. Such review may include
an on-site inspection of the action area with representatives
of the Federal agency and the applicant.
(2) Evaluate the current status of the listed
species or critical habitat.
(3) Evaluate the effects of the action and cumulative
effects on the listed species or critical habitat.
(4) Formulate its biological opinion as to whether
the action, taken together with cumulative effects, is likely
to jeopardize the continued existence of listed species or result
in the destruction or adverse modification of critical habitat.
(5) Discuss with the Federal agency and any applicant
the Service's review and evaluation conducted under paragraphs
(g)(1) through (3) of this section, the basis for any finding
in the biological opinion, and the availability of reasonable
and prudent alternatives (if a jeopardy opinion is to be issued)
that the agency and the applicant can take to avoid violation
of section 7(a)(2). The Service will utilize the expertise of
the Federal agency and any applicant in identifying these alternatives.
If requested, the Service shall make available to the Federal
agency the draft biological opinion for the purpose of analyzing
the reasonable and prudent alternatives. The 45-day period in
which the biological opinion must be delivered will not be suspended
unless the Federal agency secures the written consent of the
applicant to an extension to a specific date. The applicant
may request a copy of the draft opinion from the Federal agency.
All comments on the draft biological opinion must be submitted
to the Service through the Federal agency, although the applicant
may send a copy of its comments directly to the Service. The
Service will not issue its biological opinion prior to the 45-day
or extended deadline while the draft is under review by the
Federal agency. However, if the Federal agency submits comments
to the Service regarding the draft biological opinion within
10 days of the deadline for issuing the opinion, the Service
is entitled to an automatic 10-day extension on the deadline.
(6) Formulate discretionary conservation recommendations,
if any, which will assist the Federal agency in reducing or
eliminating the impacts that its proposed action may have on
listed species or critical habitat.
(7) Formulate a statement concerning incidental
take, if such take may occur.
(8) In formulating its biological opinion, any
reasonable and prudent alternatives, and any reasonable and
prudent measures, the Service will use the best scientific and
commercial data available and will give appropriate consideration
to any beneficial actions taken by the Federal agency or applicant,
including any actions taken prior to the initiation of consultation.
(h) Biological opinions. The biological opinion
shall include:
(1) A summary of the information on which the
opinion is based;
(2) A detailed discussion of the effects of the
action on listed species or critical habitat; and
(3) The Service's opinion on whether the action
is likely to jeopardize the continued existence of a listed
species or result in the destruction or adverse modification
of critical habitat (a "jeopardy biological opinion");
or, the action is not likely to jeopardize the continued existence
of a listed species or result in the destruction or adverse
modification of critical habitat (a "no jeopardy"
biological opinion). A "jeopardy" biological opinion
shall include reasonable and prudent alternatives, if any. If
the Service is unable to develop such alternatives, it will
indicate that to the best of its knowledge there are no reasonable
and prudent alternatives.
(i) Incidental take. (1) In those cases where
the Service concludes that an action (or the implementation
of any reasonable and prudent alternatives) and the resultant
incidental take of listed species will not violate section 7(a)(2),
the Service will provide with the biological opinion a statement
concerning incidental take that:
(i) Specifies the impact (i.e., the amount or
extent) of such incidental taking on the species;
(ii) Specifies those reasonable and prudent measures
that the Director considers necessary or appropriate to minimize
such impact;
(iii) Sets forth the terms and conditions (including
but not
limited to, reporting requirements) that must be complied with
by the Federal agency or any applicant to implement the measures
specified under paragraph (i)(1)(ii) above; and
(iv) Specifies the procedures to be used to handle
or dispose of any individuals of a species actually taken.
(2) Reasonable and prudent measures, along with
the terms and conditions that implement them, cannot alter the
basic design, location, scope, duration, or timing of the action
and may involve only minor changes.
(3) In order to monitor the impacts of incidental
take, the Federal agency or any applicant must report the progress
of the action and its impact on the species to the Service as
specified in the incidental take statement. The reporting requirements
will be established in accordance with 50 CFR 13.45 for FWS
and 50 CFR 222.23(d) for NMFS.
(4) If during the course of the action the amount
or extent of incidental taking, as specified under paragraph
(i)(1)(i) of this Section, is exceeded, the Federal
agency must reinitiate consultation immediately.
(5) Any taking which is subject to a statement
as specified in paragraph (i)(1) of this section and which is
in compliance with the terms and conditions of that statement
is not a prohibited taking under the Act, and no other authorization
or permit under the Act is required.
(j) Conservation recommendations. The Service
may provide with the biological opinion a statement containing
discretionary conservation recommendations. Conservation recommendations
are advisory and are not intended to carry any binding legal
force.
(k) Incremental steps. When the action is authorized
by a statute that allows the agency to take incremental steps
toward the completion of the action, the Service shall, if requested
by the Federal agency, issue a biological opinion on the incremental
step being considered, including its views on the entire action.
Upon the issuance of such a biological opinion, the Federal
agency may proceed with or authorize the incremental steps of
the action if:
(1) The biological opinion does not conclude that
the incremental step would violate section 7(a)(2);
(2) The Federal agency continues consultation
with respect to the entire action and obtains biological opinions,
as required, for each incremental step;
(3) The Federal agency fulfills its continuing
obligation to obtain sufficient data upon which to base the
final biological opinion on the entire action;
(4) The incremental step does not violate section
7(d) of the Act concerning irreversible or irretrievable commitment
of resources; and
(5) There is a reasonable likelihood that the
entire action will not violate section 7(a)(2) of the Act
(l) Termination of consultation. (1) Formal consultation
is terminated with the issuance of the biological opinion.
(2) If during any stage of consultation a Federal
agency determines that its proposed action is not likely to
occur, the consultation may be terminated by written notice
to the Service.
(3) If during any stage of consultation a Federal
agency determines, with the concurrence of the Director, that
its proposed action is not likely to adversely affect any listed
species or critical habitat, the consultation is terminated.
[51 FR 19957, June 3, 1986, as amended at 54
FR 40350, Sept. 29, 1989]
§ 402.15 Responsibilities of Federal agency
following issuance of a biological opinion.
(a) Following the issuance of a biological opinion,
the Federal agency shall determine whether and in what manner
to proceed with the action in light of its section 7 obligations
and the Service's biological opinion.
(b) If a jeopardy biological opinion is issued,
the Federal agency shall notify the Service of its final decision
on the action.
(c) If the Federal agency determines that it cannot
comply with the requirements of section 7(a)(2) after consultation
with the Service, it may apply for an exemption. Procedures
for exemption applications by Federal agencies and others are
found in 50 CFR Part 451.
§ 402.16 Reinitiation of formal consultation.
Reinitiation of formal consultation is required
and shall be requested by the Federal agency or by the Service,
where discretionary Federal involvement or control over the
action has been retained or is authorized by law and:
(a) If the amount or extent of taking specified
in the incidental take statement is exceeded;
(b) If new information reveals effects of the
action that may affect listed species or critical habitat in
a manner or to an extent not previously considered;
(c) If the identified action is subsequently modified
in a manner that causes an effect to the listed species or critical
habitat that was not considered in the biological opinion; or
(d) If a new species is listed or critical habitat
designated that may be affected by the identified action.
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