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- 29994 002913 FederaJ Register I Vo}; 48. No. 128 I Wednesday, June 29. 1983 I Proposed Rules I mean lhallisled or proposed species or critical habitat or proposed critical habitat receive less protection. Federal agencies still have an obligation to review their actions, through informal consultation with the Service. to determine whether those actions may ad\'ersely aHectlisted species or critical habitat and. if 50,10 initiate formal consultation pursuant to Section 7Ia}. In addition. Federal8gencies must confer on actions they determine aN! likely to jeopardize the continued ex.istence of proposed sppcics or result in the destruction or Ilrlverse modification of proposed critical habitat. The biological assessment process begins when 8 Federal agency decidea thai ils aeticn is 8 major construc.tion activity as discussed in these regulations. If the action meets these criteria. the Federal agency or the designated non.Federal representative submits a request to the Director for infonnation on .....hether listed or proposed species or critical habital or proposed critical babitat may be present in the area affecled by the aclion. Within 30 days of receipt of thai inquiry. the Director will reapond with a Iisl of any auch apecies and critical habitat that may be present 81 well as the available data. and recommendations for necessary studies. surveys. and information to include in Ihe assessment. If the Service ad\"ises that listed or proposed species or critical habitat or proposed critical habitat may be present in Ihe action. area. then the Federal agency or the designated non. Federal representative must complete a biological assessment within 180 days after initiation. unless the agency and the Service agrCi! to a different time period. If an applicant Is involved, the lBO-day period may not be extended unless the agency provides the applicant, before the close of the 1ao. day period. with a written statement ~elting forth the estimated length of the proposed exten!lion and the reasons therefor. The assessmenl should identify any listed or proposed species or critical habitat or proposed critical habitat that is in the action area and should describe the effects that the action may have on such species and critical habitat. The assessment also shall include an 8nlllysis of cumulative effects. In response to previous agency comments, the proposed regulations allow the Federal agency or the designated non.Federal representati\'e to proceed with the preparation of the biological assessment prior 10 receiving 8 list of species from the Service. However, in this situation. the Federal agenC)" or the de-signated non. Federal I representative is required to notify the Director In writing as to the species they are including in their assessment, The Service will respond to this notification within JO days only if it disagrees with the species to be included or the items 10 be covered in the biological assessment. Upon receiving the llpecieslist. the Federal agency or the designated non. Federal representative will detennine when to initiate the biological asses.smenl and will detennine the scope of the assessment. If the biological aSBessmenll, Initiated more than 90 day, after receipt of the species list, the Federal agency or the designated non. Federal representative should contact the Service informally to insure that the species list is cUrTImt. Once the biological assessment has been completed and the results have been compiled into a document pursuant to t 402.12{b}, the Federal agency must determine whether fonnal consultation should be initialed or if a conference is necessary. For Federal actions which are not major construction activities, a biological assessment is not required. However, the Act does provide that any person who wishes to apply for an exemption from the requirements of Section 1(a}{2) may voluntarily conduct such 8S assessment. The statute requires that such assessments be conducted in cooperation with the Service and under the supervision of the appropriate Federal agency. Potential exemption applicants may conduct a biological assessment on their own initiative. In order to insure the assessment is conducted under the supervision of the Federal agency, such persons shall follow the procedures described In 1402.12. The Service r~serves the rigbt to (1) request that an agency prepare a biological assessment. and {2} request any agency to enler into consullation. This request will be made by the Director. In those instances ......here a proposed agency Dction requiring tbe preparation of a biological assessment is identical. or very similar, to a previous action for which a biological assessment was prepared. the action agency may fulfill Ihe biological assessment requirement by incorporating the reference the earlier biological assessment and supporting data into the agency's certification in writing that: (l) the proposed agency action involves no new impacts and is being conducted in the same geographic area or administrative unit; (2) no new species have been listed or proposed to be listed or critical habitat designated or critical habitat proposed to be designated: and (3) there hall been no material change in the information considered in the fonner biological asseument. Upon request. the Federal agency shall provide 10 the Service a copy of the earlier biological assessment and supporting data. Formal Consullation These regulations require Federal agencies to (1) review their actions through informal consultation with the Service to determine whether they "may adversely affect"' listed species or critical habitat and (21 initiate formal consultation if it is determined (through informal consultation) that their actions may adveraely affect listed species or critical habitat. Section 402.15 of these proposed regulations specifies the information that must accompany a request for formal consultation. SecUon 402.15 expands the opportunities for non.Federal representatlvesto participate in formal consultations. The participation of such representatives in informal consultations already has been discussed. Such persons may be authorized to provide 81Jsistance during formal consultations to the extent deemed appropriate by the Federal agency and the Service. However. the formal consultation responsibility of the Federal agency may not he delegated 10 the designated non.Federal representative. The ultimate responsibility for compliance with the requirements of Section 1 rests with the Federal agency proposing the action at Issue. The Service encourages the participation of the designated non. Federal representative in the consultation process. Evaluation of Effects In delermining whether an action is likely to jeopardize the continued existence of a species or result in the destruction or adverse modification of critical habitat, the Director first will evaluate the status of the species or critical habitat at issue. This will involve consideration of the present environment In which the species or critical habitat exists. as well8IJ the environmenl that will exist when the action is completed. in terms of the totality of factors affecting the species or critical habitat. The evaluation will serve in part as the baseline for determining the effects of the action on the species or critical habitat. The e\'sluation includes an appraisal of the effet:ts of the propoaed action on the species or critical habitat. Section 402.02 of these proposed rules defines effet:ts of the action as the direct and , , I J I I I I j ,