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<br />. <br /> <br />Yes. Fish and Wildlife's regulation 50 CFR <br />S 402.04 promulgated pursuant to 16 USC 1536 <br />does not allow the Service to issue a jeopardy <br />opinion if insufficient information exists to <br />conclude that a project is not likely to jeopar- <br />dize the continued existence of a listed species <br />or results in the destruction or adverse modifi- <br />cation of its critical habitat. There is a <br />caveat, however, i.e., S 1536(d) of the ESA <br />precludes the action agencies (such as BU1 or <br />the Corps of Engineers) froe making any irrevers- <br />ible or irretrievable commitment of resourc~s <br />which has the effect of foreclosing the formula- <br />tion or implementation of reasonable and prudent <br />alternative measur~s. In other words, if BI~ or <br />COE proceeds in the face of inadequate information <br />or knowledge, it do~s so at the risk that it has <br />not met the requirements of ESA. <br /> <br />(c) Is there a continuing obligation to supplement <br />an incomplete or non definitive biological <br />opinion? <br /> <br />Yes. In order to be legally justifiable the <br />"Windy Gap" solution must include a requirement <br />to acquire additional information. If the <br />future studies contemplated by nJS result in <br /> <br />-6- <br />