WSP04495

• File Number: 8065
• Description: Section D General Statewide Issues - Endangered Species Act - Fisheries
• State: CO
• Basin: Statewide
• Date: 6/29/1983
• Author: Federal Register
• Title: Federal Register - DOI-FWS - DOC-NOAA - Interagency Cooperation-Endangered Species Act of 1973-Proposed Rule
• Water Supply Pro - Doc Type: Publication

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29990

Federal Register

9!1S .
I Vol. 48. No. 126 AOe~neSday. June 29, 1983 I Proposed Rules

DEPARTMENT OF THE INTERIOR

CEPARTMENT OF COMMERCE
National OceanIc and Atmospheric
AdmInistration

50 CFR Part 402

Interagency CooperatIon; Endangered
Species Act at 1973

AGENCIES; Flah and WildHfe Service.
Interior; National Marine Fisheries
Service. Commerce.
ACTION: Proposed rule.

SUMMARY: Section 7(a)(2) of the
Endangered SpeCies Act 1973. 85
amended.lhereinafter referred to 8S the
Act} requires Federal agencies. in
consultation with and with the
assistance of the Secretaries of the
Interior and Commerce, to insure that
their actions are nOllikely to jeopardize
the continued exilllence of endangered
and threatened species Of result in tbe
destruction or ad~'erse modification of
critical habitat of such species. The
Endangered Species Act Amendments of
1978, 1979, and 1982 [hereinafter referred
to as the Amendments) changed the
consultation r~qui~ments of SeCtion 1.
This proposal would amend e'listing
rules governing Section 1 consultation
by implementing changes required by
the amendments and by incorporating
procedural changes designed to tmprove
interagency cooperation.
DATE: Comments from the public must
be received by July 29. 1983.
ADDRESSES: Submit comments to
Director, U.S. Fish and Wildlife Service,
Office of Endangtlred Species (DES),
Department of the Interior. Washington.
D.C. 20240. Comments and materials
received will be'a\'ailable for public
inspection during nonnal business hours
{7;45 a.m. to 4;15 p.m.} at the Service's
Office of Endangered Species. Suite 500,
toOO N. Glebe Road. Arlington. Virginia.
fOR fURTHER INFORMATION CONTACT:
John L Spinks. Ir.. Chief, Office of
Endangered Species. U.s. Fish and
Wildlife Service, Department of Ihe
Interior, Washington, D.C. 20240 (703-
235-2771): or Richard B. Roe. Acting
Director. Office of Protected Species and
Habitat Consen:alion. National Marine
Fisheries Service. Department of
Commerce. Washinglon, D.C. ZOZJ5
(202-634-7461).
SUPPLEMENTARY INFORMATION:

Background

Section 7(a)(I) of the Act requires
Federal agencies. in consultation wilh
and with the assistance of the
Secretaries of the Interior or Commerce,

depending on the species invoh'ed
(hereinafter referred toas the
Secretary), to utilize their authorities in
furtherance of the purposes of the Act
by cam'ing out programs for the
conservation of endangered species and
threatened species (hereinafter referred
to as "listed species"} listed pursuant to
Section 4 of the Act.
The Act also requires Federal
agencies. in consultation with and with
the assistance of the Secretary. to insure
that any action authorized, funded, or
carried out by such is not likely to
jeopardize the continued existence of
any listed species or tesull in the
destruction or adverse modification of
habitat of such species which has been
designated 88 critical (hereinafter
referred toas critical habitat).
On January 4, 1976. the Department of
Ihe Interior and the Departmenl of
Commerce established procedures for
the consultation process implementing
the interagency cooperation
requirements of Sectiott 7 (SO CFR 402
(1981)]. The consultation process is
designed to assist Federal agencies in
complying with the requirements of
Section 7 and provides such agencies
with advice and guidance from the
Secretary on whether an action
complic8 with the substantive
requirements of Section "
The Amendments made several
changes to Section 7, This most
significant change in the 1978
Amendments was the creation of the
Endangered Species Commillee which is
authorized to grant exemplions from the
requirements of Section 7(a){2) in
appropriate ca~es. Regulations
governing the submission of e'lemption
applications and consideration of such
applications by the Endangered Species
Committee were published in the
Federal Register (45 FR 23354, April 4,
1980; see SO CFR Parts 450-453). The
1982 Amendments streamlined the
exemption procees and revised
regulations will be published In the near
future.
The Secretaries of the Interior and
Commerce share responsibilities for
conducting consultations pursuant to
Section 7 of the Act. Generally, marine
species and under the jurisdiction of the
Secrelary of Commerce and all other
species are under the jurisdiction of
Secretary of the Interior. A more
detailed explanation of the division of
responsibility is found at 1402.1 of the
proposed roles. Authority to conduct
consuJtalions has been delegated by the
Secretaries to the Director of the Fish
and Wildlife Service (F'WS) and the
Assistant Administrator for Fisheries.
National Marine Fisheries Service
IJ\'MFS), National Oceanic and

Atmospheric AdminJstration
(hereinafter both referred 10 as the
Service). Refer 10 f 402.2 of the proposed
rules for the definition of the terms to be
used throughout this document.

The Proposal

The regulations explain more fully sll
the requirements of Section 7 of the Act,
asarnended.
The Section 7 consultation process
has four component~arly
consultation, informal consultation.
formal consultation, and further
discussion. The consultation process
requires one or more of these
components. The consultation process.
for example, may be initiated by
informal consultation, during which it
may be determined that fonnal
consullation is necessary. Each
component is discussed in detail below.
"Early consultation" was created by
the 1982 Amendments and refers to a
component of the consultation process
that has been requested by a
prospective permit or license applicant
(hereinafter referred to as the
prospective applicant} having reason to
believe that i1s proposed action "may
adversely affect" listed species or
critical habitat. Such early consultation
is conducted between the Service and
the Federal agency responsible for
issuing the requesled permit or license,
in cooperation wilh the prospective
applicant.
The prospective applicant requests
the Federal ogene). issuing the permit or
license to conduct early consultation
with Ihe Service. Early consultation is
initiated by a written request from the
Federal agency responsible for issuing
the permit or license and is concluded
within such period of time 8S is mutually
agreeable to the Service. the Federal
agency, and the prospective applicant.
Alter concluding early consultation,
the Service will deliver its preliminary
biological opinion to the Federal agency
and the prospective applicant promptly
thereafter. defined by lhe Service 8S
within 45 days. A preliminary biological
opinion Issued a8 a result of early
consultation 17(a){3)j is 10 be treated as
an opinion issued during formal
consultation 17(a}{2lJ if the Service
reviews the action before the permit or
license is issued and finds that there
have been no significant changes with
respect to both the action planned and
the information used during the early
consultation.
"Informal consultation" includes all
the contacts (discussions.
correspondence. etc.) between the
Federal agency or its designated non-
Federal representative and the Service

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