ML20118A654
| ML20118A654 | |
| Person / Time | |
|---|---|
| Site: | Oyster Creek |
| Issue date: | 09/14/1992 |
| From: | Coogan C COMMERCE, DEPT. OF, NATIONAL MARINE FISHERIES SERVICE |
| To: | Durham B GENERAL PUBLIC UTILITIES CORP. |
| References | |
| NUDOCS 9209240314 | |
| Download: ML20118A654 (8) | |
Text
{{#Wiki_filter:_ _ _ _ _ _ _ . .. ewe ! [ \ UNITED STATES CEPARTMENT CF COMMERCE
. N-ti:n t Crinl3 cnd Atm:cph:ris Admini tr;ti:n NATIONAL MARINE FISHE' *S SERVICE
* \,% ef+# jHabitat Protecti1 Resources Division one Blackburn Drive d [#. [M-8/[ Gloucester, MA 01930 September 14, 1992 Barry Durham General Public Utilities Nuclear P.O. Box 388 Forked River, NJ 08731
Dear Mr. Durham:
This letter is in reference to our discussion today regarding the live loggerhead sea turtle taken by your facility last week. Enclosed is a copy of the regulations implementing Section 7 of the Endangered Species Act which requires federal agencies to conuult with the National Marine Fisheries Service on any projects they permit, fund or conduct that may af fect e:idangered marine cpecies. The permitting agency, in this case the Nuclear Regulatory Commission (NRC), may designate the applicant or permittee (General Public Utilities Nuclear (GPU)) da.their representative in the 3 consultation process (see 5 402.08 or enclosed regulations). Since there are documented takes of loggerhead turtles at the Oyster Creek facility, a formal consultation is necessary. A biological assessment ($ 402.12) evaluating the impacts of the Oyster Creek nuclear generating station on endangered and threatened species should be prepared by the NRC or GPU. The species of sea turtles that may be found in the waters adjacent to your fac:,'.ity and should be considered in the assessement, are the endangered Kemp's ridley, green and threatencd loggerhead turtles. The enclosed pamphlet may assist in species identification. As we discussed, the staff at the Salem Nuclear Generating Station may be able to provide advice on the preparation of an assessment. I suggest we arrange e conference caf l. With the NRC some time during the week of September 21st to' discuss the consultation-process further. I can be reached at 508 281-9291. Sincerely D Colleen C. Coogan Pr te ted Species Program 220041 cc: NRC <Druaricks F/PR2 - Williams, Bohan MMSC - Schoelkopf , , hD It' 5 9209240314 920914 cKi ' OOI PDR ADOCK 05000219 -
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[ r Federcl Registir / Vol. 51, No.100 / Tuesday, June 3,1980 / Rules and Regulations 19957 requirements as defined by the programs must comply with applicable 228. Endangered or threatened specleo Paperwork Reduction Act.The analyses permit requiremerts (50 CFR Parts 17 under the jurisdiction of the NMFS are under Eiccutive Order 12291, the 220,222. and 227) for listed species and located in 50 CFR 222.23(a) and 227.4. If Regulatory Flexibility Act, and NEpA should be coordinated with the the subject species it cited in 50 CFR cre available to the public at the Office appmpriate Secretary. Section 7(a)(2) of 222.23(a) or 227.( the Feders! agency of Endangered Species, U.S. Fish and the Act requires every Federal agency, shall contact the NMFS. For all other Wildlife Service, at the address listed in consultation with and with the listed species the Federal Agency shall above, t nistance of the Secretary, to insure contact the FWS. that any action it authorizes, funds, or List of Subjects in 50 CFR Part 402 carries out,in the United States or upon !402m Demons. Endangered and threatened wildlife, the high seas, le not likely to jeopardize "Act" means the Enhngered Species Fish, Intergovernmental relatloas. Plants the continued existence of any listed Act of 1973, as ameuded to U.S.C.1531 (agriculture). species or results in the destmetion or etseq. adverse modif1 ation f critical habitat. " Action" means all activities or Regulation Promulgation Section 7(a)(3) of the Act authorizes a programs of any kind authorized. Accordingly, the Service revises 50 prospective permit or license applicant funded, or canied out,in whole or in CFR Part 402 to read as follows: to request the issuing Federal agency t part, by Federal agencies in the United enter into early consultation with the States or upon the hibh peas. Examples PART 402-INTERAGENCY CIES AC 0 73 ENDED o a nti u sten f , e g Sut>part A--General listad species or result in the destruction promulgation of regulations:(c) the or adverse mod 1Ecation of critical granting of licenses, contracts, leases, y e Deidoy habitat.Section 7(a)(4)'of the Act requires Federal agencies to confer with easements, rights.of.way, permits, or grants in.ald; or (d) :ctions directly or 402.n3 Appticability, the Secretary on any action that is likely indirectly causing modifications to the coast counterpart regulations. to jeopatdize the continued existence of land, water, or air. 402.05 Emergencies. . proposed species or result in the ,, Action area,, means 'all areas to be (c2.oo coordinattomith o$er destruction or adverse modification of environmental reviews. proposed critical habitat. Section 7(b) of affected directly or indirectly by the (o2.07 Designation of lead agency, Federal action and not merely the the Act requires the Secretary, after the immediate area Involved in the action. , 40248 Designation of non. Federal conclusion of early or formal "pnsentaun' consultation, to issue a written
- Applicant" refers to any person, as
" " " " statement setting forth the Secretary's defined in section 3(t3) of the Act, who commi n u requces formal approval or opinion detailing how the agency action subpart B-Consuttatim Procedums affects listed species or critical habitat authortration from a Federal ageacy as 402.10 Conference on pecposed species or Biological assessments are required - a prerequ! site to conducting the action.
proposed critical hbitat- under section 7(c) of the Act if listed - - "Diological assessment" refers to the M 11 Early consultatinn- species or critical nabital may be ' information prepared by ot; under the M 12 Biological assessment. - direction of the Federal agency M INg*j,",*j"t,$"' I present in the area major construction affected activity by any b inconcerning listed and proposed species as defin y 40115 Responsibilities of Federal agency 14%02.Section 7(d) of the Act prohibits and designated and proposed critical following issuance of a biologicaj Federal agencies and applicants from habitat that may be present in the action opinion, making any irreversible or irretrievable area and the evaluation potential effects (cito Reinitiationof formalconsultation. commitment of resources which has the of the action on such species and Authority:16 U.S.C.1531 et seg, effect of foreclosing the formulation or habitat. Implementatiou of reasonable and "Diological opinion"is the document Subpart A-General prudent alternatives which would avoid that states the opinion of the Service as gm3 {copwdizing the continued existence of to whether or not the Federal action is E ' " (a) Tids Part inteipiets and des e r ad e7s ficathan of implements sections 7(a}-{d) {te U.S.C. **1*ence f listed species or resuit in critical habitat. Section 7(eMo)(1) of the * *"* "" " 1536(a}-(d)] of the Endangered Species Act provide procedures for granting Act of 1973, as amended ("Act").Section exemptions from the requirements of-( '" *[* ' 7(a) grants authority to and imposes " Conference',is a process which-section 7(a)(2). Regulations governing requirements upon Federal agencies the submission of exemption . . inv lves informal discussions between a regarding endangered or threatened
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Fedewl agency er d the Service under applications are found at 50 CFR Part. speciee of fish, wildlife, or plants section 7(a)(4) of the Act tegarding the 451, and regulatione governing the ("listd q celes") and habitat of such - exemption process are found at 50 CFR impact of an action on proposed species species that has been designated as . Parts 450,452, and 453. or proposed critical habit,at and critical (" critical habitat"). Section recommendations to mtmmize or avoid (b) The U.S. Fish and Wildlife Service the adverse diects, 7(a)(1) of the Act directs Federal (FWS) and the National Marine egencies, in consultation with and with Fisheries Service (NMFS) share
- Conservation recommendations" are the assistance of the Secretary of the responsibilities for administering the suggestions of the Service regaiding Interior or of Conunerce, as appropriate, Act.The 1.ists of Endangered and discretionary measures to minimize or to utilize their authorities to further the Threatened Wildlife and Plants are avoid adverse effects of a proposed purposes of the Act by carrying out found in 50 CFR 17.11 and 17.12 and the action on listed species or critical conservation programs for listed designated critical habitats are found in habitat or regarding the development of species. Such affirmative conservation 50 CFR 17.95 and 17.90 and 50 CFR Part information.
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's l 19958 Federal Register / Vol. 51, No.100 / Tuesday, June 3,1980 / Rules and Regulations
" Critical habitat'* efers to an eres concludes with the Service's issuance of " Recovery" means improvement in.
designsted as crith.al habitat listed in 50 the biological opinien under section the status of listed species to the point CFR Parts 17 or 226. 7(b)(31of the Act. at which lisung is no longer appropriate
Cumulative effects" are those effects " incidental take" refers to takings that under the criteria set out in section of future State of p-ivate activities, not result from, but are not the purpose of, 4(a)(1) of the Act.
Involving Federal activities, that are carrying out an otherwise lawful activity " Service" means the U.S. Fish and reasonably certain to occur within the conducted by the Federal agency or Wildlife Service or the National Marine ection area of the Federal action subject applicant. Fisheries Service, as appropriate, to consultation. "Infurmal consultation" is an opuonal
" Designated non-Federal process that includes all discussions, U"" #PP"***'
represemative" referr 'o a person correspondence, etc., between the Section 7 and the requirements of this designated by the Feo. ral agency as its Service and the Federal agency or the Part apply to all actions in which there representative to conduct informal designated non-Federal representative is discretionary Federal involvement or conaultation and/or to prepare any
- prior to formal consultation, if required. control.
biological assessment. " Jeopardize the continued existence Destruction or adverse moddication,, po2m hunterpartregutath of" means to en age in an action that means a direct or thdirect alteration that reasonably wou d be expected, directly The consultation procedures set forth appreciably diminishes the value of in 61s Part may be superseded for a or indirectly, to redm.c sppreciably the critical habitat for both the survival and particular Federal agency by joint likelihood of both the survival and recovery of a listed species.Such recovery of a listed species in the wild centupart regulaums amag that alterations include, but are not limited agency, the Fish and Wildlife Service, by reducing de reproduction, nuaibers, to, alterations adversely modifying any or distribution of that species. and the National Marine Fishenes of those physical or biological features 11sted species" means any species of Service. Such counterpan regulations that were the banjs. shall be published in the Federal habitat to be critica,for determining the ftsh, wildlife,; e plant which has been Reg! star in proposed form and shallbe determined to be endangered or
" Director" refers to the Assistant subject to pubhc comment for at least 60 threatened under'section 4 of the Act.
Administrator for Fisheries for th 1.isted species are found in 53 CFR days before final rules are published. Naticnal Oceanic and Atmosphen? c Administration, or his authorized 17:1M7.12. t402m Enwgencks. representative; or the Fish and Wildlife Maja, construction activity"la a (a) Where emergency circumstances Service regioual director, or his c nstruction pmject (w oth" , mandste the need to consult in en authortzed representative, for the region undertaking having similar physical expedited manner, consultation may be where the action would be carried out. impacts) which is a major Federal action conducted informally through {
"Early consultation"is a process significantly affecting the quality of the alternative procedures that the Director .
requested by a Federal agency on behalf human environment as referred to in the determines to be consisten; with the of a prospective applicant under section NationalEnvironmentalPolicy Act requirements of sections 7(aHd) of the [NFPA,42 U.S.C. 4332(2)(C)}. Act.This provision applies to situations 7(a)(3) of the Act.
" Effects of the action" refers to the " Preliminary biological opinion" involving acta of God, disasters direct and indirect effects of an action refers to en op!nlon issued as a result of casualties, nr.tional defense or security on the species or critical habitat, early consultation. emergencies, etc.
together with the efiects of other *ltoposed critical habitat" means ' (b) Formal consultation shall be cctivities that are interrelated or habitat proposed in the Federal Registor initiated as soon as practicable after the interdependent with that action, that to be designated or revised as critical emergency is under controh The Federal will be added to the environmental habitat under section 4 of the Act for agency shall submit information on the
' baseline.The environmental baseline any listed or proposed species. nature of the emergency action (s), the includes the past and present impacts of " Proposed species" means any justification for the expedited all Federal. State, or private actions and species of fish, wildlife, or plant that is consultation, and the impacts to other human activities in the action proposed in the Fadaral Register to be endangered or threatened specie and '
area, the anticipated impacts of all listed under section 4 of the Act. p their habitats.The Service will evaluate proposed Federal projects in the action " Reasonable and prudent such information and issue a biological area that have already undergone alternatives" refer to alternative actions opinion including the information and formal or early section 7 consultation, identified during formal consultation recommendations given during the and the impact of State or private that can be implem(nted in a manner emergency consultation, actions which are contemporaneous consistent with the latended purpose of with~the consultation in process. Indirect the action, that can be implemented 1402.06 cowomation with otte consistent with the scope of the Federal envimomental reviews, effects are those that are caused by the proposed action and are later in time, agency's legal authority and jurisdiction. (a) Consultation, conference, and but still are reasonably certain to occur, that is economically and technologically ' biological assessment procedures under Interrelated actions are thcse that are feuible, and that the Director believes section 7 may be consolidated with I part of a larger action and depend on would avoid the likelihood of Interagency cooperation procedures the larger action for their justification. jeopardizing the continued existence of required by other statutes, such as the Interdependent actions are those that listed species or resulting in the NauonalEnvironmentalPolicy Act have no independent utility apart from destruction or adverse modification of (NFPA) {42 U.S.C. 4321 et seq., the action under consideration, critical habitat. implemented at 40 CFR parts 1500-1508)
" Formal consultation" is a process " Reasonable and prudent measures" or the Fish and Wildlife Coordination between the Service and the Federal refer to those actions the Director Act (FWCA) (to U.S.C. 601 et seq.).
agency that commences with the Federal believes necessary or approprime to Satisfying the requirements of these agency's written request for consultation minimize the impacts,i.e., amount or other statutes, however, does not in under section 7(a)(2) of the Act and extent ofincidental take, itself relieve a Federal agency of its i
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$, Federal Regist:r / Vol. 51, No. It;G / Tuesday, lune 3,1936 / Rules and Regulations 19959 obligations to comply with the satisfied.This provision does not apply shall be documented by the Service and procedures set forth in this Part or the to the conference requirement for provided to the Federal agency and to
-substantive requireuents of section 7. proposed species or proposed critical any apphcant.ne style and magnitude The Service will attempt to provide a habitat under section 7(a)(4)of the Act. of this document will vary with the coordinated review and analysis of all complexity of the conference. lf formal environn. ental requirements. Subpart B-Consultation Procedures consultation also is required for a (b) Where the consultation or i scuo confer $ce on propose sec6es particular action, then the Service will conference has bee.n consolidated with or proposed criticamstat. provide the results of the conference the interagency cooperation procedures with the biological oplnlon.
(a) Each Federal agency shall confer required by other etstutes such as NEpA with the Service on any action which is i 402.11 Earty consuttation. or FWCA, the results should be included likely to jeopardize the continued in the documents required by those ex1stence oi any proposed species or I"Y####' 'NC*"*" "U " I* date- designed to reduce the likelihood of result in the destruction or adverse confhets between listed species or
$ 402.07 Dehgnation of lead agency modificadon of proposed critical critical habitat and proposed actions When a particular action Involves a e erence is des ed t ud xcurs pdom th filW of a y
more than one Federal agency, the application for a Federal permit or aEPl icant in identifying and resolving license. Although early consultetion is consultation and conference potential conflicts at an early staae in responsibHides may be fulfilled through conducted between the Service and the e lead agency. Factors relevant in the planningymcess. Federal a8ency, the pros ective determining an appropriate lead agency applicant should be lavo ved throughout include the time sequence in which the th ere ce i e c or the consultation process , Service may request a conference if, agencies would become involved, the after a review of available information, (b) Request by prospechve opph, cont. magnitude of their respective If a prospectivo applicant has reason to involvement, ahd thelt relative expertise it determines that a conference is believe that the prospectivt: action may required for a particular action. with respect to the environmental affect listed species or critical habitat, it effects of the action.%e Director shall (c) A conference between a federal may request the Federal agency to enter agency and the Service shall consist c 'r be notified of the designation in writing informal discussions concerning an into early consultation with the Service. by the lead agency. action that is likely to jeopardize the %e pmspective applicant must certify
$ 402.06 Tesignation of nonfederal . continued existence of 'he proposed in writing to the Federal agency that (1) representative. - species or result in the destruction or it has a definitive proposal outlining the adverse modification of the proposed action and its effects and_(2) it irdends A Federal agency may Jesignate a to implement its proposal, if authorized.
non-Federal representativs to conduct criticalisabitat at issue. Applicants may be involved in these informal (c) Initiocon of early consultobon. If Informal consultation or prepare a the Federal agency receives the
' blo'ogical assessment by giving written discussions to the greatest extent practicable. During the conference, the prospective applicant s certification in notice to the Director of such paragraph (b) of this section, then the -
designation.If a permit orlicense Service will make advisory recommendations,if any, on ways to Federal agency shallinittste earlym applicant is involved end is not the designated non-Federal representative, . minimize or avoid adverse effects if the mnsultation with the Service.%is proposed species is subsequently listed request shall be in writing and contain then the applicant and Federel agency must agree on the choice of the or the proposed critical habitat is the information outlined in i 402.14(c) designated prior to completion of the and,if the action is a major construction designated non-Federal representative. activity, the biological assessment as if a biological assessment is prepared by action, the Federal agency must review the designated non-Federel the action to determine whether formal outlined in 1 402.12. - representative, the Federal agency shall consultation is required. (d) Pmcedes andresponsibilities. furnish guidance and supervision and (d)lf requested by the Federal agency %e procedures and responsibilities for shall independently review and evaluate and deemed appropriate by the Service, early consultation are the same as the scope and contents of the biological the conference may be conducted in outlined in i 402.14(c}-{J) for formal acmrdgnce with the procedures for consultation, except that all references assessment. De ultimate responsibility formal consultation in i 402.14. An to the " applicant" shall be treated as the for compliance with section 7 remains with the Federal agency. opinion issued at the coaclusion of the "prospec,tive applicant" and all conference may be adopted as the references to the "blological opinion" or
$4010s trrEmsm orirretrievat>le biological opinion when the species is the " opinion" shall be treated as the commitment of tesources. listed or critical habit:t is designtted. .' preliminary biological opinion" fo'r the After initiation or reinitiation of but only if no significant new u purpose of this section. e consultation required under section information is developed (including that (c) Pnliminory biologicolopinion.
7(a)(2) of the Act, the Federal agency developed during the rulemaking ' ne contents and conclusions of a and any applicant shall make no process on the proposed listing or preliminary biclogical opinion are the irreversible er irretrievable commitment critical habitat designation) and no same as for a biological opinion issued of resources with respsct to the agency significant changes to the Federal action after formal consultation except that the action which has the elTect of are made that would alter the content of incidental take statement provided with foreclosing the formulation or the opinion. An incidental take a preliminary biological opinion does implementation of any reasonable and statement provided with a conference not constitute authority to take listed prudent alternatives which would avoid opinion does not become effective rpecies, violating section 7(a)(2).his prohibition unless the Service adopts the opinion (f) Confirmation ofpaliminory is in force during the consultation once the listing is final, biologicol opinion os finci biological process and continues until the (elne conclusions reached during a opinion. A preliminary biological requirements of section 7(n)(2) are conference and any recommendations opinion may be confirmed as a r
1 1 19960 Federal Register / Vol. 51, f o.10e / Tuesday, lune 3,1986 / Rules and Regulations _ biological opinion issued after formal Director shall either concur with or action.%e following may be considered consultation if the Service reviews the revise the list or,in those cases where for inclusion: proposed action and finds that there no list has beca provided, advise the (t)ne results of an on-site inspection have been no significant changes in the Federal agency or the designated non. of the area affected by the action to action as planned or in the information I ederal representative in writing determine if listed or proposed species used during the early consultation. A whether, based on the best scientific are present or occur seasonally. written request for confirmation of the and comme cial data available, any (2) The views of recognized experts on preliminary biological opinion should be listed or proposed species or designated tk species st issue, submitted after the prospective or proposed critical habitat may be (3) A review of theliterature and applicant applies to the Federal agency preent in the action area. In addition to other infonnation. for a permit or license but prior to the listed and proposed species, the Director (4) An analysis of the effects of the lasuance of such permit or license. will provide a list of candidate species action on the species and habitat, Within 45 days of receipt of the Federal that may be present in the action area. including consideration of cumulative . - , agency's request, the Service shall Candidate species refers to any specie: effects, and the results of any related either: (1) confirm that the preliminary being considered by the Service for studies. biological opinion stands as a final listing as endangered or threatened (5) An analysis of alternate actions biolog'ent opinion; or (2) il the findings species but not yet the subject of a considered by the Federal agency for the noted above cannot be made, request proposed rule. Although candidate proposed action. that the Federal agency initiate formal species have no legal status and are (g) Incorporation by reference. If a consultation, accorded no protection under the Act, proposed action requirtng the 1402.12- Biological assessments. their in&slon will alert the Federal preparation of a biological assessment is I agency of potential proposals or listings. identical, or very similar, to a previous I (1)If the Director advises that no action for which a biological assessment sha t the olen 1e of the listed species or critical habitat may be was prepared, the Federal agency may l action on listed and proposed species and designated and proposed critical present, tha Federal agency need not fulfill the biological assessment , habitat and determine whether any such prepare a biological assessment and requirement for the proposed action by species or habitat are likely to be further consultation is not required. If incorporating by reference the carber adversely affected by the action and is nly proposed species or proposed biological assessment plus any used in determining whether formal critical habitat may be present in the supporting data from other documents consultation or a conference is ucti n area, then the Federal agency that are pertinent to the consultation,
, neccesary, must confer with the Service if required into a written certificatson that:
(b) Prrpomtion requirement. (t) ne under {402.10, but preparation of a (1}T)w proposed action involves , procedures of this section are required biological asscument is not required similar impacts to the same sp(cles in for Federal actions that are
- major unless the proposed listmg and/or , the same geographic area: -
caratruction activities"; provided that a designation becomes final. (2) No new epecies have been listed or contract for construction was not (2)lf a listed species or critical habitat proposed or no new critical habitat entered into or actual construction was - may be present in the action area, the designated or proposed for the action not begun on or before November 10, Director will provide a species list or area; cod . 1978. Any person including those who concur with the species tha provided. (3)ne biological assessment has may wish to apply for an exemption The Director also will provide available been supplen.cated with any relevant . from section 7(s)(2) of the Act, may information (or references thereto) changes in information. prepare a bielogical assessment under regarding these specics and critical (b) Termit requirements. If conducting the supervision of the Federal agency habita., and may recommend a biological assessment willinvolve the and in cooperation with the Service discretionaiy studies or surveys that takin6 of a listed specica, a permit under consistent with the procedures and may provide a better information base - section 10 of the Act (M U.S.C.1539) and requirements of this section. An for the preparation of an assessment. Part 17 of this Title (with respect to exemption from the requirements of Any recommendation for studies or species under the jurisdiction of the section 7(a)(2)is not permanent unless a surveys is not to be construed as the' FWS) or parts 220,222, and 227 of this biological assessment has been Service's opinion that the Federal Title (with respect to species under the prepared. agency hae failed to satisfy the jurii. diction cf the NMFS)is required. (2) The biological assessment.shall be information standard of section 7(a)(2) (i) Completion time.The Federal completed before any cantract for of the Act. agency or the designated non. Fedi tal construction is entered into and before (e) Verification of current occurocy of representative shall cc.mplete the con 9 truction is begmn species list. If the Federal agency or the biological assessment within 180 days (c) Requestforinformotion.ne designated non-Federal representative after its initiation (receipt of or . Federal agency or the desirnated non. does not begin preparation of the + concurrence with the species list) unless Federal representative shall convey to biological assessment within ta days of a different period of time is agreed to by the Director either (1) a written request receipt of(or concurrence with) the the Director and the Federal agency. If a for a list of any listed or proposed species list, the f ederal agency or the permit or license applicant is involved, species or designated or proposed designated non-Federal representative the 180-day period may not be extended critical habitat that may be present in must verify (formally or informally) with unless the agency provides the the action area: or (2) a written the Service the current accuracy of the applicant, before the close of the 180-noti *1 cation of the species and critical species list at the time the preparation day period, with a written statement habitat that arc being included in the of the assessment is begun. setting forth the estiented length of the biological assessment. ' (f) Contents. %e contents of a prcposed extension and the reasons (d) Director's responsa. Within 30 biological assessment are at the why such an extension is necessary. days of receipt of the notificttion ef, or discretion of the Federal agency and (j)Submissica ofbiologicolm the request for, a species list, the will depend on the nature of the Federal ossessment. The Federal agency shall ____ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _-__---_u
[. Federal Register / Vol. 51, No.100 / Tuesday, June 3,1980 / Rules and Regulations 199,;j
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submit the completed biological critical habitat. lf such a determination provide the Service with the best assessment to the Director for review. is made, formal consultation is required, scientific and commercial data available
%e Director wi!!:espond in writing except as noted in paragraph (b) of this or which can be obtained during the within 30 days as to whether or not he section.%e Director may request a consultation for an adequate review of concurs with the findings of the Federal agency to enter into the effects that an action may have upon biological assessment. At the option of consultauon if he identifies any action listed species or entical habitat. %is
< the ibletal agency, formal consultation of that agency that may affect listed information may include the results of may be initiated under $ 402.14(c) species or criucal habitat and for which stud;es or surveys conducted by the coacurrently with the submission of the there has been no consultation. When Federal agency or the designated non-assesement. such a request 15 made, the Director Fcderal representative.%e Federal (k) Use of the biologicolossesscunt shall forward to the Federal agency a agency shall provide any applicant with (1) he Federal agency shall use the written explanation of the basis for the the opportunity to submit information biological assessment in determin106 request. for consideration during the whe*ber formal consultation or a (b) Exceptions. (1) A Federal a8ency consultation. conference is required under $402.14 or need not initiate fo mal c6nsultation if, (e) Dumtion and extension efformal i 402.10- respectively. lf the biological as a result of the preparation of a consultation. Formal consultation assessment indicates that there are no biological assessment under $ 402.12 or concludes within 90 days after its , litted species or criijca! habitat present as a result of informal consultation with initiation unless extended as provided that are likely to be adversely affected the Service under 1402.13, the Federal below. lf an applicant is not involved, by the action and the Director concurs agency determines, v ' the written the Service and the Federal agency may as specified in paragraph (j) of this concurrence of the Duccior, that the mutually agree to extend the section, then formal consultatfor:is not proposed action is not likely to consaltation for a specific time period. lf required. If the biological assessment adversely affect any listed species or an applicant is involved, the Service and < indicates that the action is not likely to critical habitat. the Federal agency may mutually agree 4 jeopardize the coatjnued existence of (2) A Federal agency need not initiate to extend the consultation provided that proposed species or result in the formal consultation li a preliminary the Service submits to the applicant, destruction or adverse modification of biological opinion, issued after early before the close of the 90 days, a written proposed critical habitat, and the consultation under $ 402.11, is confamed statement setting forth: Director concurs, then a conference is as the final biological opinion. (1) %e reasons why a longer period is not required. (c) initiation &farmalconsultation. A " gged, (2) He Director may use the results of written request io initiate formal the biological assessment in (i) 12) e inf nnadon that is mquimd to consultation shall be submitted to the e the consuhahn, and detendinktg whether to request the * '"p Director and shallinclude:- Federal agency to initiate formal (1) A descriptionof the action to be (3)D* estimated date on which the consultation or a conference (ii) considered: e naultation will be completed,. formulating a biological opinion, or (iii) - (2) A des /ription of the specific area A consultation involving an applicant a' formulating a preliminary biological that may be affected by the action: cannot be extended for more than 00
, opinion. (3) A description of any listed species days without the consent of tne
$ 402.13 Informal consuttation.
or critical habitat that may be affected applicant. Within 45 days after by the action: concluding formal consultation, the (a) Informal consultation is an (4) A description of the mannerin im,on el d Service shallagency dehver ndence,e which the action may affect any listed to the Federal anda any' biological app obcant. s ion between the Service and the Federal 8Pecies or critical habitat and an (f) Additionaldata. When the Service analys!s of any cumulative effects: determines that additional data would agency or the designated non-Federal (5) Relevant reports,incleding any provide a better information base imm representative, designed to assist the Federal agency in determining whethft enVit nmentalimpact statement, which to formulate a biological opinion, envir nmental assessment, or biological the Director may request an extension of formal consultation or a conference is requimd. If during informal cot.sultation -assessment prepered; and fonnal consultation and request that the (0) Any other relevant available Federal agency obtain additional data ta
- it is determined by the Federal agencv, ini rmation on the action, the affected with the written concurrence of the - determhie how or to what extent the listed species, or critical habitat. action may affect listed species or Service, that the action is not likely to adversely affect listed speciea or critical Formal consultation shall not be critical habitat. lf formal consultation ,u
' initiated by the Federal agency until any extended by mutual agreement habitat. the consultation process is i terminated, and no further action is required biological ase-ment has been t.ccording to 1402.14(e), the Federal recessary. completed and subdiittoi to the Director agency shall obtain, to the extent (b) During infortal consultation, the in acwrdance with (402.12. Any request practicable, that data which can be Service may sugges' iodifications to the for formal consultation may encompass, developed within the scope of the action that the Federal agency and any subject to the approval of 'he Director, e extension.The responsibility for applicant cou',1 implement to avoid the - number of similar individual actions conducting and funding any studies , likelihood of adverse effects to listed within a given geographical area or a , belongs to the Federal agency and the species or critical habitat. segment of a comprehensive plan.This applicant, not the Service. The Service's does not relieve the Federal agency of request for additional data is not to be 9 402.14 f%rmal consultat6on. the requirements for considering the construed as the Service's opinion that (a) Requirement forformal effects of the action as a whole. the Federal agency has failed to satisfy consultation. Fach Federal agency shall (d) Respcnsibility toprovide best the information standard of section review its actions at the estliest scientific and commercio/ dato 7(a)(2) of the Act. lf no extension of possible time to determine whether any available. %e Federal agency formal consultation is agreed to, the action may affect listed species or requesting formal consultatiun shall Director will issue a bielogical opinion 4
l
*. ' \
(, l'ederal Register / Vol. 51, No.100 / Tuesday, June 3.1M6 / Iiules and Regulation's j 199h2 t I i using the best scientific and c,mmercial (7) Formulate a statement concerning (3)In order to monitor the impacts of ' data available, incidental take,if such take may occur. h.cidental take, the Federal agency or l (g) Service responsibilities. Service (8)In formulating its biological any 3pplicant must report the progress e opinion, any reasonable and pru. lent of the action and its impact on the responsibilities during formal consultation are as follows: alternatises, and any reasonable and species to the Service as specified in the prudent measures, the Service will use - incidental take statement ne reporting (1) Review all relevant information requirements will be established in provided by the Federal agency or the best scientific and commercial data j otherwise avadable. Such review may available and will give appro'priate accordance with 50 CFR 13.45(FWS) and include an on-site inspection of the consideration to any beneficial actions 222.23(d)(Nh0'S). (4)If duru.g the course of the action j i action area with representatives of the taken by the Federal agency or Federal agency and the applicant. applicant, including any actions taken the amount or extent ofincidental prior to the initiation of consultation. taking, as specified under paragraph (2) Evaluate the current status of the listed species or critical habitat. (h) Biologicalopinions ne biological (i)(1)(1)of this Section,is exceeded. the (1) Evaluate the effects of the action opinion shallinclude: Federal agency must rein!tiate and cumulauve effects on the li ted (1) A summary of the information on consultation immediately. species or critical habitat. which the opinion is boed; (j) Conservation recommendations. (4) Fonnulate its bfological opinica as (2) A detailed discussion of the effects ne Service may provide with the j to whether the action, taken together j of the acdon on listed species or critical biological opinion a statement a 3 with cumulative effects,is likely t habitat: and containing discretimary conservation
- copardize the continued existence of. (3) ne Service's opinion on whether recommendations. Conservation
, isted species or result in the destruction the action is likely to feopardize the recommendations are advisory and are e verse modification of critical continued existence of a listed ' species not intended to carry any binding legal
- or result in the destruction or adverse force.
m ddicade of critical habitat (a (k)lacrementalsteps. Wh, the i and a pplican e [s e "je pardy biological opinion ); or, the action is authorized by a staiate that i and evaluadon conducted under acUon is not likely to jeopardize the allows the agency to take incremental c ntmued existence of a listed species steps toward the completion of tl.e baragraphs (g)(1H3) asis for an finding in theofbiological this section, the action, the Service shall,if requested by an the availability of or result in the destruction or adverse the Federal agency, issue a biological and prudent :.!!craatives modification of critical habitat (c "no opinion'ble (if
~
reasona le pardy" biological opmion). A opinion on the incremental step being i a jeopardy opinion is to be hsued) that " jeopardy" biological opinion shall considered, including its views on the the agency and the applicent can take to include reasonable and prudent , entire action. Upon the issuance of such 1 avoid viciation of section 7(a)(2). He a'ternatives,if any. If the Service is a biological opinion, the Federal agency ! Service will utilize the expertise of the may proceed with or authorize the unable to develop such alternatives,it i Federal agency and any appiicant in incremental steps of the action if: identifying these alternatives. U willindicate that to the best of its l knowledge there are no reasonable and (1) ne biological cpinion does not i requested, the Serv'ce shall make
- conclude that the incremental step i
available to the Federal agency the draft prudent alternatives. . would violate section 7(a)(2); i biological opinion for the purpose of (i)Incidentaltale. (1)Ir those cases where the Service concludes that an (2)ne Federal agency continues
- analyzing the reasonable and prudent ccuultation w
- th respect to the entire
' alternatiws.W 45 day period in which action (or the implementation of any action and obtains biological opinions, the biological opinien must be delivered reasonable and prudent alternatives) and the resultant incidental take of as required, for each incremen'al step;
- will not be suspended unless the Fede al (3)The Federal agency fulfills its agency sscures the written consent of listed species will not violate section 7(s)(2), the Service will pmvide with the continuing obligatic, to obtain sufficient i the applicant to an extension to a data upon which to base the final specific date.ne applicant may request biological opinion a statement biological opinion on the entire actio .;
concerning incidental take that: a copy of the draft opinion from the (i) Specifies the impact,i.e., the (4) ne incremental step does not Federal agency. All comments on the draft biological opinion must be . amount or extent, of such incidental violme section 7(d) of the Act j taking of the species; concerning irreversible or irretrievable
- submitted to the Service through the (ii) Specifies those reasonable and commitment of tesources; and
!- Federal agency, although the applicant 4 may send a copy of its comments prudent measures that the Director (5) nere is a tensonable likelihood , directly to the Service. The Servve will considers necessary or appropriate to that the entire action wili not violate , not issue its biological opiaion prior to minimize such impact; . section 7(a)(2) of the Act. . the 45 day or extended deadline while (iii) Sets forth the terms and (1) Termination of consultorion. (1)
- i. conditions (including, but not limited to, Formal consultatioc is terminated with -
the draft is under review by the Federal a agency, flowever,if the Federal agency reporting requirements) that must be - the issu.cce of the biological opinion. submits comments to the Service complied with by the Federal agency or (2)If during any stage of consultation ' i regarding the draft biological opinion any applicant to implement the a Federal agency determines that its within 10 days of the deadline for measures specified under (ii) above; and proposed action is not likely to occur, l the consultation may be terminated by e issuing the opinion, the Service is (iv) Specifies the procedures to be entitled to an automatic 10-day used to handle or dispose of any ' written notice to the Service, extension on the deadline. individuals of a species actually taken. (3)If during any stage of consultation (0) Formulate discretionary (2) Reasonable and prelent measures, a Fedetal agency determines, with the conservation recommendations,if any, along with the terms and conditions that concunence of the Dnector, that its which will assist the Fcdcral agency in implement them, cannot alter the basic proposed action is not likely to reducing or eliminating the impacts that design, location, scope, duration, or adversaly affect any listed species or its proposed action may have on listed timing of the action and may involve critical habitat, the consultation is species or critical habitat. only minor changes. terminated. O
~ '- -- < w-,,--,m,y,, ,, , , , , _ _ , , _ ,
, Federal Register / Vol. 51. No.100 / Tuesday. ]une 3.1986 / Rules and Regulations -
19963-s t---
. g40b5 R3sponsibtuties of Federal agencies and others are found in 50 CFR causes an effect to the listed species or agewy fonowing issuance of a t4o4ogical Part 451, critical habitat that was not considered oN in the biological opinion or
'I I'""*I
! (a) Following the issuance of a (d)If a new species is listed or critical ! biological opinion, the Federal agency habitat designated that may be affected shall determine whether and in what Reinttiation of formal consultation is required and shall be requested by the by the identified actwn. Federal agency or by the Service, where Dated; December 12.1985. ht ofit sec on 7o tions and he discretionary Federal involvement or Service's biological opinion. William P. Ilora. (b) If a ;eopardy biological opinion is ^ *# reta d is auth nre by a and: g'
- Issued, the Federal agency shall notify (a)If the amount or extent of taking the Service of its final decision on the specified in the incidt.ntal take Dated:lanuary 3b.19eo.
- s. action. statement is exceeded; William G. Gordon.
(c)If the Federal agency determines (b)If new information reveals effects Assistant Adadaistmtorforrisheries,
- j. that it cannot comply with the of the action that may affect listed
- NationalOceanic ondAtmospheric i requirements of section 7(a)(2) siter species or critical habitat in a manner or Administmtion.
- ' consultation with the Service,it may to an extent not previously considered; (FR Doc. 8S-105e6 Filed 6-M 8:45 am) apply for an exeniption. Procedures for (c)If theidentified actionis . , , og j exemption applications by Federal subsequently modified in a manner that i
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