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29992 002911 Federal Register I Vol. 48. No. 126 I Wednesday, June 29. 1983 I Proposed Rules I I existence of a listed species or resull in the destruction or adverse modifjcalion of critical habilal. "Effects of the action" {as defined I W2.2 of these proposed regulations) includes the direct and indirect effects of the actlon that is subject to consultation. The tenn "cumulalive effects" defines which effects on the species. other than those considered under "effects of the Bction" that the Service will cOrlllider in its biological opinion on the subject action. "Destruction or adverse modification" and "ieopardize the continued eJ(.jalence" are also defined. Both definitions contain, 88 do the present regulations (SO CFR 402). the phrase "survival and recover." The "reco~'ery" of II listed speciel mean! the status of the species ha, improved to the point at whiclllt may be removed from the Lists of Endangered and Threatened Wildlife and Plants. Actions that adversely affect the survival of the species f\]so will adversely affect the recovery of the species. Actions can adversely affect the recovery of the 'pedes but not necessarily affect the specie,' survival. Thus a no jeopardy opinion would be issued if a given action would not adversely affect the .urvival of a listed specie. although it may affect the apecies' recovery. "Incidental take" is defined us takings that are incidental to, and not the purpose of, the carrying out 0(611 otherwise lawful activity conducted by the agency or the applicant. A statement concerning incidentaltaJ..e will be provided with a biological opinion issued under Section 7. An incidental take statement provided with the preliminary biological opinion does not conslitute a permilto lake any listed species. "Preliminary biological opinion" refers to the biological opinion issued after the conclusion of early consultation. "Reasonable and prudent alternatives" ill also defIned. Section 7(b) of the Act requires the Service to Include reasonable and prudent alternatives. il any, in a jeopardy biologiCid opinion. An alternative is considered reasonable and prudent only il it can be implemented by the Federal agency and the applicant, if any, In a manner consistent with the intended purpose 01 the action. and if the Director believes it would avoid the likelihood of jeopardizing the continued existence of listed species or resulting in the destruction or adverse modification of critical habitat of such species. Coordination With Other Environmental Reviews These regulations allow Federal agencies to coordinate their informal and lormal consultation and conference responsibilities under the Act with the agency's responsibilities under other statutes such os NEPA [42 V.S.C. 4321 et seq" implemented at40 eFR 1500) or the Fish and Wildlife Coordination Act {16 V.S.C. 661 et seq.). The Service encouragea Federal agencies to coordinate these responsibililies, hut believes it is preferable to allow Federal agendesto do 50 in a manner that best conforms to their particular actions and which they believe is most efficient. Compliance with the ~'EPA process and the Act should be coordinated. For a major construction aclivity. the Federal agency should include the biological a8Bessment in any NEPA document. In gcneraL the Service believes that if Federal agencies adequately evaluate. through the NEPA process, the potential impacts of the proposed action on species or habitat 01 concern in the consultation, the Federal agecies will fulfill the biological assessment requirements. CounteTpart Regulations The Service has retained I 402.4(iJ 01 50 ern as I 402.4 which authorize the drafting of jOint counterpart regulations by Federal agencies and the Service, These counterpal1 regulations would allow individual Federal agencies to "fine tune" the general consultation process to reflect their par~cular program responsibilities and obligations. Couterpart regulations must be published first as proposed rules wilh at least a 6O-day comment period for the public, and must be approved by F'WS and NMFS before final rules are published. Such conterpart regulations must retain the overall degree of prolection afforded listed species along with the availability of biological infonnation reqttind by this proposed role. Changes in the general consultation proce99 must be designed to eMance the efficiency of the consultation process without eliminating ul.timate Federal agency responsibility for compliance with Section 1. As long 81 the general conaultation process is used 81 a starting point. Federal agencies can anticipate little difficulty in securing approval of the Service lor counterpart regulaliol18. Emergencie, Section oWZ.5 of the proposed regulations contains provisions for the Service to modily the consultation process In order to respond to emergel'lcy situations. This provision applies 10 situations involving acts 01 God, CASualties. etc. Upon request by the Federal agency, the Service may carry out consultation through procedures other than those provided by the proposed regulations. as long as such emergency procedures are consistent with Sections 7(al through (d) of the Act This allows, for example. consultation through inlonnal means (e.g.. a phone call) and therefore rapid responses to emergency situations. The Service recognizes that it is sometimes necessary to take immediate steps to contain. limit or alleviate an emergency in order to protect health. safety. and welli:lre prior to initiating any lonn of consultation. Early involvement of the Service in emergency response activities is important however to take advantage of Service expertise in minimizing the effects of emergency response activities on endangered and threatened species. Federal agencies must exercise discretion when responding to an emergency liS to when is the proper time to consult with the Service. This will depend. to some extent. on the nature of the emergency and the actions that lite immedialely required. Given these concerns. the Scn'ice should be contacted as soon as it i. practicable to do so keeping in mind the informal nature of emergency consultation and Service expertise in minimizing the impacts of emergency response activities on endangered and threatened species. Iml\.et'lliblf! or Imllrievablfl Commitment of Resources Section 7{d} of the Act provides that afler initiation of the consultation process. the Federal agency and any applicant shall make no irreversible or irTetrlevable commitment 01 resources with respect to the agency action which has the eflect of foreclosing the fonnulation or implementation of any reasonable and prudent alternatives which would not violate Section 7{al(2). This provision does not apply to proposed species or proposed critical habitat This requirement exists until: II "no Jeopardy" biological opinion Is issued by the Service; the Federll.lagency adopts reasonable and prudenl alternatives: or an exemption is granted under Section 7(h). See North Slope Borough v. Andrus. 486 F. Supp. 332 (D.D.C. 198OJ. of firmed in port and re~'ersed in part. 642 F. 2d S89 (D.c. Cir. 1980J. Earl)" Consultation The 1982 Amendments added a pro\ision to the consultatif'n process I I