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29998 Federal Register I Vol. 48. No. 126 I Wednesday, June 29. 1983 I Proposed Rules 002917 applicants to request the issuing Federal agency to enter into early consultation with the Service on proposed aclions 10 determine how such aclion!l will arfecl listed species aT critical habitat. Section 7(a](41 t1!quires Federal agencies to confer with the Secretary on Bny aelion that is likely to jeopardize the continued existence of proposed species or result in the destruction or adverse modification of proposed <:ritical habilal. II is the responsibility of the Federal agency 10 review its actions al the earliest pouible time and 10 determine. through informal consultatiorl with the Service. whether any sudt dction "may adverl>ely affect" listed species or critical habitat or is likely to jtOpiudize the continued existence of proposed species or ref;ult in the destruchon or adverse modification of proposed critical habitat, {bJ Section 7(bl (16 U.S.C. 1536(blJ requires the 5t!cretary. after the condusion of consultation. to issue a written statement 5etling forth the Secretary's opinion. This statement (biological opinion) will include (I) a Summary of the information on which the opinion was based: (21 a detailed discussion of the effects of (he action on listed spedes or critical habitat; (3} the Service', opinion whether the action is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habits!; (4) reasonuble and prudent alternBth'es, if any, if a jeoparrly biological opinion is issued; and (5) consen;ation recommendations, if any. ^ statement concerning incidentollt..ke ~ill be provided with the biological opinion. A detailed explanation of i.ncidentaltake is found under ~ 402.19 uf these regulations. (c) Biologi[;tll assessments are required under Section 7(e) {I6 U.S.c. 15J6(c)J wh{'n li~led or proposed species or critical habitat or proposed critical habihlt may be present in the area affected h}' a major construction activity. Biological asessments are designed to assisttbe Feder<l.1 agencies in meeting their Section 7 obligations. By identifyin~ the listed or proposed species or criti~1 habltal or proposed critical habit!ll that are present in lhe area affected hv the action and by idenlif)'ing the ~ffects on such species or critical hahilatlhat ore likel,' to result from the action. the Federal 'agency can determine whether to initiate formlll consultation or whether a conference is required. The assessment also may be used by the Servic.e in (11 determining whether to request the Federal agency to carry Ollt iuformal or formal consultation. or (2) formulating a biological opinion. (d) Section 7(dJ (16 U.s.C. 1536(dll prohibits Federal agencies and applicants from making any irreversible or irretrievable commitment of resources which has the effect of foreclosing the formulation or implementation of reasonable and prudenl alternatives which would avoid jeoparrlizing the continued existence of listed species or resulting in the destruction or adverse modification of critical habitat. This requirement exillts until: a "no jeopardy" biological opinion is issued by the Service: the Federal agency adopts reasonable and prudent alternatives: or an exemption is geantl'd under Section 7(h). (el Sections 7 (e) through (01 also provide for exemptions from the requirements of Section 7(al(2J if IIn action which received II "jeopardy" opinion is determined to be qualified for an exemption by the Endangered Species Committee. Regulalions governing the submission of exemption applications are found at 50 CFR Part 451. and regulations governing the exemption process ate found at 50 CFR Parts 450, 452. and 453. f402.2 Delinl1lot1a. "Action" means all activities of any kind authorized, funded, or carried ou1. in whole or in part, by Federal a~lPncies, Examples include. but are nollimited to: {al the promulgation of regulations; (bJ the granting of licenses. contracts. leases, easements. tights-of-way, permits. or grants-In.aid: or (cl actions direcll}' or indirectly causing modific.ations 10 the land. water. or air, "Action area" means all areas to be affected dl~tly or indirectly by the Federal action. not merely the immediate area involved in lhe action. "Ad\'er!!ely aHect" refers to actions which have II detrimental effect on any or all of the portions of the life cycle of a threatened or endangered species or on ils habitat or a component thereof. "Applicant" refers 10 any person who requires formal approval or authorization from II Federal agency as II prerequisite to conduct the acHon. "Biological asst'ssment" refers to the information concerning listed and proposed species and critical habitat and proposed Critical habitat that may be present in the action area that the Ft'deral agency or designated non- Federal r..presenlati\.e must gather and e'..aluate on any major construction activity, A major construction acth-it) is defined as a construction project (or other undertakings having Similar ph~.slcal impacls) which is a major Federal action significantly affecting the quality of the human environment. "Biological opinion" refers to the document that states the opinion of tlle Service as to whether or not the Federal action is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat. "Conference" refers to a process which involves informal discussions between a Federal agency And the Sen-ice regardin,::; the impact of an aclion on proposed spedes or proposed critical habitat, and recommendations to minimize or avoid the adverse effects. "Conservation" means to use and the use of all methods and procedures th<lt are necess<lry to bring a listed species to the point at which it may be removed from the Lists of Endangered and Threatened Wildlife and Plants. Methods and procedures of conservation include. but are not limited to, all activities associated with scientific resources management such as research. census. law enforcement. habitat acquisition and maintenance. propl:lgalion. live trapping. and tranllplanlation, and. in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated tl:lking of animals. "Conservation recommendations" refer to suggestions by the Service. in biological opinions, which will reduce or avoid any adverse effects of II proposed ilction on listed species or critical habitat. or which will assist II Federal allency in compl}.jnR wilh its obligations under Section 7 of the Act. especially Seclion i(a)(l) (see ~ 402.01{a}J. "Consultation process" refers to early consultation. informal consultation. formal consultation, and further discussion for listed species or critical habitat and conferences for proposed species or proposed criticaJ habitat. "CrHiCl'lI habitat" means those areas designated as critical habitat listed in 50 CFR Parts 17 or Z26. "Cumulalive effects" are those effecls of future State or private actions which are reasonably certain to occur prior to completion of the Federal action subject to consullation. For a more complete analysis on how the Department of the Interior inlerprets this concept. see 88 I,D. 903 (1981). "Designated non. federal representative" refers to a person designated by the Federal agency as its l'f'presentative to conductlhe informal consullation component of the consultation process. This mayor ma}' not he it permit tlr license applicant. , . I