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t <br />t <br />t <br />1 both the survival and recovery of a listed species in the wild by reducing the <br />2 reproduction, numbers, or distribution of that species." 50 C.F.R. § 402.02. Adverse <br />3 modification occurs when it is reasonable to expect that the action results in "a direct or <br />4 indirect alteration that appreciably diminishes the value of critical habitat for both the <br />5 survival and recovery of a listed species. Such alterations include, but are not limited <br />6 to, alterations adversely modifying any of those physical or biological features that were <br />7 the basis for determining the habitat to be critical." 50 C.F.R. § 402.02. Agencies must <br />8 reinitiate consultation when (1) the action changes in a manner that was not considered <br />9 by the FWS during the initial consultation, (2) the amount or extent of "take" is higher <br />10 than expected, (3) the manner or extent of the action's effects were not previously <br />11 considered, or (4) if a new species is listed or critical habitat designated that may be <br />12 affected by the identified action. 50 C.F.R. § 402.16. <br />13 B. The Section 9(a)(1)(B) Take Prohibition And Exceptions <br />14 14. Under section 9 of the ESA, it is unlawful for anyone to "take" a <br />15 threatened or endangered species of fish or wildlife. 16 U.S.C. § 1538(a)(1)(B) & (G). <br />16 Congress broadly defined "take" in the ESA to mean "harass, harm, pursue, hunt, shoot, <br />17 wound, kill, trap, capture, or collect." 16 U.S.C. § 1532(19). The term "harm" is further <br />18 defined to include "significant habitat modification or degradation where it actually kills <br />19 or injures wildlife by significantly impairing essential behavioral patterns, including <br />20 breeding, feeding or sheltering." 50 C.F.R. § 17.3. <br />21 15. Congress created two "incidental take" exceptions to section 9's take <br />22 prohibition. In addition to ESA section 10 incidental "take permits," which do not cover <br />23 federal agencies, Congress also created incidental "take statements" for federal <br />24 agencies. 16 U.S.C. § 1536(o)(2). As part of the section 7 consultation process, FWS <br />25 provides a "take statement" to an action agency only after making a no jeopardy and no <br />26 adverse modification finding or identifying a reasonable and prudent alternative that <br />27 avoids jeopardy and adverse modification. Id. § 1536(b)(4)(A). An incidental take <br />28 statement must (1) specify the impacts on the species, (2) specify the reasonable and <br />Complaint 5 <br />Case 3:07 -cv- 08164 -DGC Document 1 Filed 12/07/2007 Page 5 of 20 <br />