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" (JJ2294 . . 8. Review. A listed species' status must be reviewed every 5 years. 16 U.S.c. ~1533(c)(2). A species can only be delisted by Secretary's detennination that it is no longer endangered or threatened. m. The "Taking" Prohibition -- ~9 A It is unlawful for any person to "take" any endangered species. 16 U.S.c. H538(a)(I). 1. 'Taking"; any action to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.c. ~1532(19). a. "Harm" includes activities resulting in significant environmental modification of an endangered species' habitat. b. "Harass" is defined as negligent or intentional disruption of normal behavior patterns of an endangered animal. 2. "Taking" prohibition under the Act only extends to endangered species, but 16 U.S.c. H533(d) authorizes the Secretary to prohibit taking of threatened specIes. IV. The Section 7 Consultation Process A Under ~ 7(a)(2), every federal agency must insure that any action authorized, funded or performed by it "is nOllikely to jeopardize" any threatened or endangered species, or result in destruction or adverse modification of the critical habitat of such species." B. Procedure. Federal agency proposing an action must: 1. Formally ask FWS whether any threatened or endangered species may be present in the area of proposed action. 16 U.S.c. ~1536(c)(I). 2. If yes, the agency must prepare a biological assessment to determine if the species is present and likely to be affected by the action. Id. 3. If yes, the agency must formally consult with FWS regarding the proposed action (at this point, the Secretary may decide to promulgate an "emergency listing" to protect the species). 4. After formal consultation, FWS issues a "Biological Opinion" detailing the effect of the proposed action. 16 U.S.c. ~1536(b)(3)(A). a. "No Jeopardy Opinion." The opinion specifies the degree of allowable "incidental take" of a threatened or endangered species that is the action will cause and a list of reasonable and prudent measures to minimize such impacts. The project may proceed. b. "Jeopardy Opinion." If the opinion concludes that the proposed action would jeopardize the species QI adversely modify its habitat, the action cannot go forward unless FWS can identify reasonable and prudent alternatives to avoid such effects. 16 U.S.c. ~1536(b)(3)(A).