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002912 Federal Register I Vol. 4& No. 126 I Wednesday, June 29, 1983 I Proposed Rules designed to minimize potential conflicts between the action Bnd the conservation of listed species. The early consultation provisionll authorize the Service to consult with Federal agencies al the request of and in cooperation with prospecti\"e applicants regarding the impact of proposed actions on listed species or critical habitat. These provisions are incorporated into the proposed regulations in 1402.14. The intent 10 thIS provision is 10 involve the Service, the Stale, and lOt::al planning and conservation entities in the planning stages of 8c1ions. The Service believes that early consultation will be belpful in establishing 8 mechanism for early resolution of potentia) conflicts. Congress did nol intend thai this provilion be utilized to require consultations for ~peculative or remote actions but rather only on actions which the prospective applic'.ant can demonstale lire likely to occur. The regulations requrie prospective applicants to provide sufficient information describing the project. its locations. the IlCOpe of activities associated with it. and the anticipated impacts to listed species to enable the Federal agenc)' and the Service to conduct meaningful early consultations. Prospecti'\"e applicants and Federal agencies should examine the proposed action closely to insure they have adequate infonnetion before requesting early consultation. Detailed guidance outlining early consultation is included in the rl'gulations in f 402.14. Informal Con'JUltation The consultation process may start with informal consultation. This includes all contacts between the Service,"the Federal agency, or Ihe designated non-Pederal representative. including the preparation of the biological assessment. prior to the initiation of formal consultation. Although the Federal agency cannot delegate itl! ultiIDflte responsibility for informal coosultation. it can designate a non-Federal representative to conduct the informal consultation. The designated non-I-'edernl representative mlJY be the permit or license applicant. The Director shall be notified, in writing. if a non-Federal entity has been designated to ",prese'nl the Federal agency during informal consultalion for a particular action. The purpot\e of informal consultation is to assist the Federal agency in determining whether a "may advet!lely affect" situation exists. whicb would require the Federal agency to initiate fomlal con!mltation. The Service believes that informal consultation is extremely important and may resolve potential problems, which may eliminate the need for fonnal consultation. However, informal consultation is not a substitute for fonnal consultation. In addition. only federal agencies are authorized to initiate fonnal consultation with the Service. Proposed Species and Proposed Critical Habitat The 1979 Amendments added the requiremt!nt Ihat Federal agencies confer with the Service on any agency action which is likely 10 jeopardize the continued existence of any proposed species or result in the destruction or advene modification of proposed critical habitat for such species. The purpose of tbis requirement is to identify and resolve potential conflicts between an action and the conservation of proposed species or proposed critical habitat at an early point in the decision- making process. Conferences will be conducted on an informal basis between the Federal agency and the Service. The Service may make recommendations to minimize or avoid the adverse effects of the action on proposed species or proposed critical habitat. The8e recommendations are advisory in nature. If the action involves only proposed species or proposed critical habitat. a copy of the recommendations will be fo......;arded to the Federal agency by themselves. However, if an action also involves listed species or critical habitat. the Service will provide the recommendations on proposed species or proposed critical habitat along with the biological opinion. Although consolidation is encourll8ed. the Service does not inh:nd that the informal nature of the conference on proposed species or proposed critical habitat be changed or that any of the requirements of formal consultation under Section 7 be imposed on Federal agencies with respect to proposed ~pt'cies or proposed critical habitats. F..arly initiation of such discussions increases the chances of resolution of potential conflfcts. Biological Assessments A major new requirement for facilitating compliance with Section 7(a' contained in the Amendments is the requirement that Federal agencies prepare a biological assessment for certain actions. Under these regulations. the biological assessment may be conductt'd by a designated non-Federal representative. The biological assessment requirement should be 29993 - fulfilled in conjunction with the NEPA process. For a major construction activity, the Federal agency may inco'l'Orate the biological assessment into a NEPA document. A mBior construction activity is defined as a construction project {or other undertaking having similar physical impacts} which is a major Federal action significantly affecting the quality of the human environment. The tenn includes dams, buildings, pipelines. roads. water resource developments, channel improvements. Bnd other such undertakings which significantly modify the physical environment. Generally, biological assessments would not be required for Outer Continental Shelf (OCSlleasing and exploration activities that do not involve a significant modification of the physical environment. In mosl cases, the NEPA review procesl C1lnducted for OSC leasing and exploration activities will contain the functional equivalent of 8 biological asseSllment. These proposed regulations require the preparation of a biological assessment if listed or proposed species or critical habitat or proposed critical habitat may occur within the action area of any major construction activity. Thus, a biological assessment would not have to be prepared for every agency acllon. This interpretation finds support in the Conference Reports on the 1979 Amendments which states that biological assessments are to be conducted on ''major Federal actions initiated after November 10. 1978 and designed primarily to result in the building or erection of dams, buildings, pipelines and the like."'H.R. Cool. Rep. No. 96-fl9'7, 96th Cong., 1st Sess. p. tJ (1979)J. Section 7(c)(1) of the Act 8S well 85 the legislative history of the Amendments IH.R. Conf. Rep, No. 95- 1804. 95th Cong.. 2nd Sess.. p. 19 (1978); H.R. Rep. No_ 95-1625. 95th Congo 2nd Sess.. p. 20 11978}: S. Rep. No. 96-151. 96th Cong., ht Sess., pp. 4--5 (l979)J, refer specifically to" constroction" activities. E\"en if a biologica.l assessment is not required, Federal agencies may voluntarily prepare an assessment if it would allsist them in fulfilling their Section 7 responsibilities. Although not required. a biological 3ssessmenl also may be conducted by a prospective applicant as pari of the early consultation component of the consultation process. Under Section 7{h)(2}. an exemption is not pennanent unless a biological assessment has been prepared. The fact that II biological assessment is not required for all actions dol'S not , j . I