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

002910

Federal Register I VoL 48. No. 126 I Wednesday. June 29. 1983 I Proposed Rules

29991

. thai lake place prior to the initiation of
any neceulI.ry fonnal consultation. This
may include, but is not limited 10. the
request for 8 species list, the preparation
of a biological assesament. the
determination of "may adversely affect"
(which requires formal consultation).
and discussions on other relevant topics.
"Formal col15ultation" is that part of
the consultation process which the
Federal agency initiates after it has been
determined during informal consultation
that the agency', action "may adversely
affect" listed species Of critical habitat.
Formal consultation is initiated by a
written request from the Federal agency
and concluded within 90 days or within
such other period of time as is mutually
agreeable 10 the Federal agency, the
Service, and the permit or license
applicant {hereinafter referred to as the
applicant}, if any. After roncluding
formal consultation. the Service will
deliver lis biological opinion promptly
thereafter, defUled by the Service as
wilhin 45 days,
"Further discussion" provides the
Federe.l agenc)' or applicant with an
opportunity to review the biological
opinion and to discuss an)' conservation
recommendations and any reasonable
and prodent altematives rontained in
the biological opinion. It is designed to
in!l'l,lre aU relevant dala have been
considered and may eliminate the need
to seek an exemption. Although not
required. the Service especiaU)'
encoUfagea further discussion when the
biologictll opinion concludes thai the
action III likely to jeopardize the
continued exi5tence of the species or
result in the destruction or adverse
modification of critical habitat. I"urther
di5c\Hlsion terminales upon the Servit:e'lI
receipt of a wrillen notification from the
Federal agency station is final decision
onthe action.
"Termination of the consultation
procelJS"could occur at different (JOinls
within the procells.
1. U during informal consultation it is
determined that no listed species or
critical babitat Hie in the action area or
tbat there will be no adverae effect on
such speciea or habitat. the consultation
process is terminated. and no further
action is necessary.
2. If fonnal consultation results in 8
biological opinion shtting that the action
is not likely 10 jt'Oparidize the continued
existence of listed spf'cies ur result in
the destruction or ad...erse modification
of critical habitat, the consultation
process is lerminated with tbe issuance
of !he opinion unless the Federal agency
wishes to conduct further discussion on
conservotion rerommendations
contained in the biological opinion. If
8uch furth..r discussion takes place, the

COOBultation process terminates with the
Service's receipt of a written notification
from the Federal ogency stating its final
decision on the action.
3. If formal consultation results in a
biological opinion staling that the action
is likel)' to jeopardize tbe continued
existence of listed species or result in
the destruction or ad\'erse modification
of critical habitat. reasonable and
prudent alternatives. if any, and
conservation recommendations, if any,
will be included in the opinion. Although
further discussion is not required, it Is at
lhls point that the Sendee strongly
recommends it take place, thus
continuing the consultation process. If a
jeopardy biological opinion is issued,
whether further discussion takes place
or not. the conllultation process
terminates with the Service's receipl of
a written notice from the Federal agency
stating ils final decision on the action.
4. If during any stage of consultation a
Federal agency or a applicant
delermines that its proposed action Is
not likely 10 occur, the con5ultaUoD
processls terminaled with notice to the
&rvice.
s. The biological opinion issued after
early consultation will be reviewed by
the Service before the action is
permitted or licensed by the Federal
agency. If the Service determines that no
significant changes hltve occurred in
either the proposed action or the
information available, and no new
anticipated impacts are identified. and
no new species have been tisted or
critical habitat designated since early
consultation. then It will certify in
writing to the Pederal agency that the
preliminary biologicltl opinion from
early consultation is still accurate and
shall be treated aa a final biological
opinion Issued under Section 7(b} of the
Act. The consultation process
terminates in accordance with 2 or 3
above.
Should the Fed~ral agency detennlne
that its action is likely 10 jeopardize the
continued existence of any species
proposed to be added to the list of
Endangered and Threatened Species of
Wildlife and Planlll (hereinafter reCerred
to as proposed species) or result in the
dHtructioD or adverse modification of
crilical habitat proposed to be
designated (hereinafter referred to as
proposed critical habitat) for such
s.pecies. the Federal agency must
"conIer" \'o'ith the Service. A discussion
of this requirement is found in the
Proposed Species and Proposed Critical
Habitalsection of the preamble.
Se\'eral new definitions have been
added in ~ 402.2.. The existing regulatory
definiton of "critical habitat" has been
deleted from these regulations. The

Amendments significantly changed the
definition of critical habitat and the
procedures to be followed in designating
critical habitatlsee 16 U.S.C. 153215)
and 1533(blJ. Rules governing Ihe listing
of species as endangered or threatened
and Ihe designation of critical habitat
have been promulgated (lIee 50 eFR Part
424, 4S FR 13010, February 21,1980). The
definition oC critical babitat contained in
these rules simply makes reference to
those areas so designated under Section
4 of the Act. Revised section'
regulations, incorporating the 1982
Amendments. will be proposed in the
near future.
"May adversely affect" is the
standard used to require the initiation of
Cormal Section 7 consultation. This
lItandard represents a change from the
present regulations which requires
Cormal consultation for all actions thai
"may affe<:t" listed species or critical
habitat. The Service believes that this
new standard will decrease the number
of fonnal consultations without
decreasing tbe protection provided
listed species and criticaJ habitat under
Section 7. "May adversely affect" is
defined in t 402.2 of the proposed rules
and dlscusaed in the Formal
Consultation section ollhe preamble.
"Biological assesllment.. as used in
these rules refers to the inConnation
concerning listed and proposed species
or critical habitaland proposed critical
habitat that tbe Federal agency mUIIl
gather and evaluate on any major
consln1ction activity. This biological
assessment .hall determine which
species or critical babitat may be
present in the action area aDd the
potential effects of the action on sucb
lIpecies or habitat. The biological
assessment ilio shall include an
analysis of cumulative effects. The
requirements of the biological
assessment should be completed in
conjunction with the National
Environmental Policy Act (l'l'EPA)
process.
"Conservation recommendations" are
introduced In these revised rules.
Although frequently used in the past as
"recommendations, " these proposed
rules explain the Sen1ce's role in
helping agencies meet their Section
7(a)(1} obligations through the '1
development of conservation
recQTnmendations.
"Cumulative effects" are dofined in
t 402.02 oC the proposed regulations.
Under t 402.15fO of these proposed
regulations. the Service will ronsider
both the "effects of the action" subject
to ronsultation and "cumulative effects"
in determining whether the action is
likely to jeopardize the continued

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