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Page 7 <br />harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any <br />such conduct, and applies to individual members of a listed species. Harm is further defined <br />by the Service to include significant habitat modification or degradation that results in death <br />or injury to listed wildlife by significantly impairing essential behavioral patterns, including <br />breeding, feeding, or sheltering. Harass is defined by the Service as intentional or negligent <br />actions that create the likelihood of injury to listed wildlife by annoying it to such an extent as <br />to significantly disrupt normal behavior patterns which include, but are not limited to, <br />breeding, feeding or sheltering. Incidental take is defined as take that is incidental to, and not <br />the purpose of, the carrying out of an otherwise lawful activity. Under the terms of section <br />7(b)(4) and section 7(o)(2), taking that is incidental to and not intended as part of the agency <br />action is not considered to be prohibited taking under ESA provided that such taking is in <br />compliance with the terms and conditions of this incidental take statement. <br />Sections 7(b)(4) and 7(o)(2) of ESA do not apply to the incidental take of federally listed <br />plant species (e.g., Colorado butterfly plant, Ute ladies' tresses orchid, and western prairie <br />fringed orchid). However, limited protection of listed plants from take is provided to the <br />extent that ESA prohibits the removal and reduction to possession of federally listed <br />endangered plants or the malicious damage of such plants on non - federal areas in violation of <br />state law or regulation or in the course of any violation of a state criminal trespass law. Such <br />laws vary from state to state. <br />The Department of the Interior, acting through the Service and Bureau of Reclamation, is <br />implementing all pertinent Reasonable and Prudent Measures and implementing Terms and <br />Conditions stipulated in the Tier 1 PBO Incidental Take Statement (pages 309 -326 of the <br />PBO) which will minimize the anticipated incidental take of federally listed species. In <br />instances where the amount or extent of incidental take outlined in the Tier 1 PBO is <br />exceeded, or the amount or extent of incidental take for other listed species is exceeded, the <br />specific PRRIP action(s) causing such take shall be subject to reinitiation expeditiously. As <br />an additional term and condition of this opinion, the BLM should submit their monetary <br />contribution, in accordance with the Federal Agencies' MOA with the Service, by March 1, <br />2010. <br />CONSERVATION RECOMMENDATIONS <br />Section 7(a) (1) of ESA directs Federal agencies to utilize their authorities to further the <br />purposes of ESA by carrying out conservation programs for the benefit of endangered and <br />threatened species. Conservation recommendations are discretionary agency activities to <br />minimize or avoid adverse effects of an action on listed species or critical habitat, to help <br />implement recovery plans, or to develop information. Conservation recommendations are <br />provided in the PBO (pages 328 -329) and are hereby incorporated by reference. <br />