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<br />000292 <br /> <br />MANAGING ESA ISSUES <br /> <br />HOLLAND & HART LLP <br /> <br />II. Listing <br /> <br />Assuming that listing cannot be avoided, the possibility of a special rule should be <br />considered for proposed threatened species. A special rule issued under Section 4( d) at <br />or following the time of listing can limit the scope of the "take" definition that otherwise <br />would apply, and can provide that specific activities do not constitute "take" for Section <br />9 purposes, thus providing clearer definition of (and perhaps obviating) potential <br />"takings" liability concerns. <br /> <br />III. Section 7 Consultations <br /> <br />For projects requiring a federal permit, authorization or approval to go forward, <br />the Section 7 consultation process is often the pivotal step for project proponents. <br />Indeed, this process can yield results ranging from approval of the action as proposed, <br />approval with more-or-Iess serious constraints or requirements designed to conserve the <br />species in question, or a prohibition of the action altogether. Additionally, the nature of <br />the take authorized by the incidental take statement (and the inclusion of such a <br />statement), and its supporting terms and conditions (known as reasonable and prudent <br />measures) are of considerable importance to the proj ect proponent. The ability and <br />diligence of the action agency in negotiating a Section 7 biological opinion can vary <br />widely, ranging from highly to minimally proficient; further, the relationship between the <br />action agency and the Service can range from cordial and professional to adversarial. <br />Under such circumstances, leaving the conduct of the consultation wholly to the action <br />agency can be problematic and potentially fatal. The project proponent should consider <br />trying to become an integral participant in the consultation process, so that the fate of <br />the project does not rest in uncertain hands. <br /> <br />. Be Involved in the Consultation Process. Although the Section 7 <br />consultation process may appear as a carefully choreographed procedure between <br />the action agency and the Service lacking a structured role for public input, the <br />Section 7 regulations do allow for participation by a project applicant at several <br />crucial steps in the process. If possible, project applicants should take advantage <br />of these opportunities so that they are not mere bystanders while a project's <br />future, scope, and potential management constraints are being debated between <br />the agencies <br /> <br />A prospective applicant may request the action agency to enter into early <br />consultation with the Service to develop a preliminary biological opinion on <br />expected species impacts from the proposed action. 50 C.F.R. S 402.11. Next, a <br />project applicant may prepare the biological assessment for the Section 7 process <br />under the supervision of the action agency and in cooperation with the Service. <br />Id. S 402.12(b)(I). If the biological assessment indicates formal consultation is <br />necessary, a project applicant may participate in an on-site inspection of the <br />project area with representatives of the Service and the action agency. Id. S <br /> <br />- 8 - <br />