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<br /> <br />. <br /> <br />. <br /> <br /> <br />o <br />o <br />(~:" <br />~ <br />W <br />en <br /> <br />utilize that oplnlon to facilitate consultations on small <br />projects so long as a proposed depletion fits within the <br />3,000 acre-feet/year ceiling and does not compromise the <br />purposes for which the minor depletion opinion was <br />issued. <br /> <br />e) Depletions that were in existence as of October 25., 1991, the date of <br />the issuance of the first Animas- La Plata Biological Opinion are <br />included in the environmental baseline of that opinion and will <br />not be counted against any minor depletions account. <br /> <br />7.0 Incidental Take <br /> <br />Section 9 of the Act and Federal regulation pursuant to section 4(d) of the Act prohibit the take <br />of endangered and threatened species, respectively, without a special exemption. Take is defined <br />as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to <br />engage in any such conduct. Harm is further defined by the Service to include significant habitat <br />modification or degradation that results in death or injury to listed species by significantly <br />impairing essential behavioral patterns including breeding, feeding, or sheltering. Harass is <br />defined by the Service as intentional or negligent actions that create the likelihood of injury to <br />listed species to such an extent as to significantly disrupt normal behavior patterns which <br />include, but are not limited to breeding, feeding or sheltering. Incidental take is defined as take <br />that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. <br /> <br />Under the terms of section 7(b)(4) and section 7(0)(2), taking that is incidental to and not <br />intended as part of the agency action is not considered to be prohibited,taking under the Act <br />provided that such taking is in compliance with the terms and conditions of an incidental take <br />statement in a biological opinion. The Service will include incidental take statements in <br />biological opinions for projects in the basin as appropriate. The incidental take statements will <br />identifY reasonable and prudent measures from the LRP that will minimize take, taking into <br />account the sufficient progress determination described above. <br /> <br />The reasonable and prudent measures, with their implementing terms and conditions, are <br />designed to minimize incidental take that might otherwise result from a proposed action. <br />Incidental take statements exempt action agencies and their permittee from the Act's section 9 <br />prohibitions so long as they are in compliance with the reasonable and prudent measures and the <br />implementing terms and conditions. As stated in 50 CFR 402.l4(i)(2) these "reasonable and <br />prudent measures along with the terms and conditions that implement them, cannot alter the <br />basic design, location, scope, duration, or timing of the action and may involve only minor <br />changes." I,.., <br />(Flip last 2 Paragraphs) <br />The measures are nondiscretionary, and must be undertaken so that they become binding <br />conditions of any Federal discretionary activity, for the exemption in section 7(0)(2) to apply. <br />The lead Federal agency has a continuing duty to regulate the activity j::overed by lffis an <br />incidental take statement included in a biological. If the lead Federalagency (I) fails to assume <br /> <br />10 <br />