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

002914

Federal Register I Vol. 48, No. 126 I Wednesday. June 29. 1963 I Proposed Rules

29995

.

indirect effects of the Federal ae.ion
under considl!ralion. Effect of the action
also include direct and indirect effects
of actions thai are interrelated or
interol'pendent with the proposal under
considerotion. Actions will be
considered interrelated with the
proposed action if they are all pari of a
larger aclion. and actions will be
considered interdependent if they do not
have signifieon! independent utility
apart from the action that is under
consideration.
Imliret! effects' are those that are
caused bv the action and are later in
time but ~re still reasonablv certain.
'indiTed e1fecl!l' include th~ effects on
listed species or critical habitat of future
activities that are induced by lhe
Federalllclion and thnt occur after the
Federal action is compleled. In Notional
WildlIfe Federation Y. ColFmon, 529
F.ld 359 {5th Gir. 1976}. Ihe Court of
Appeals for the Fifth Circuit {ound Ihat
'indirect effects' which can be expected
to result must be considered under
Section 7 of the Act. In that case. lhe
court enjoined completion of a highway
because lhe Deparlment of
Transportation failed to consider the
effects to the endllngered sandhiU crane
from fulure privale development that
would resull from construction of the
highway. The Service will consider the
effects to list~d species from such fulure
acti\'ilies thai are reasonably certain to
occur under the analysis of 'indirect
effects.'
Cumululive effects 11.180 will be
considered, To assislthe Service in
l'valuatins cumulative effects. the
Federal agency or the designated non.
Federal representative will analy::e the
cumulalive effects of reasonabl)' certain
fulure Stale or prh;ale actions in the
action area in the information submitted
to the SeNice at the time fonnal
consultation Is wquested. The
regulations provide that only those
effects of State and private actions (nol
associated with the action subject to
consu1tallonj that are "reasonably
certain" to occur prior to completion of
lite federal 8clion shall be considereed
in the cumulative e(fects Hnalysis. Since
all future Federal actions will at some
point be subject to the Section 1
consultation process pursuant to these
proposed regulutions. their effecls on a
particular cffl1cts analysis associated
with the immediate action which is the
subject of con!luhalion.
During the consultation, the Service
also maV become aware of othf'r acllons
that ma,' ha\'e cumulative effects on
listed sPecieS or critical habilltt. The
Service will evaluate this infonnalion
<lnd include in the biological opinion its

conclusions on the long tenn
implications of these actions and their
foreseeable effects on the listed species
or critical habitat invoh'ed. for further
information as to how the Department of
thc Interior interprets cumulative
effecls. see 68I.D. 903 (1981).

Biological Opinions

The Amendments changed the timing
rei:juirement on the conclusion of fonnal
consultation from 60 daya to 90 days or
to such other time periods as discussed
below, If an applicant is involved. the
Service and the Federal agency may
mutually agree to extend the
consullation. provided the Service
submits to the applicant before the close
of lhe 90 days, a .....ritten staltlment
seUing forth (1) the reasons why a
longer period is required. (2) the
information that is required to complete
the consultation. and (3) the estimated
date on which the consultation will be
compleled. A consultation invol\'ing an
applicant cannot be extended for more
th<ln 00 days without the consent of the
<tpplicant. The biological opinion must
be delivered to tbe Federal agency and
the applicant. if any. promptly after the
conclusion of formal coJlllultation
(within 45 days),
The biological opinion will conclude
that either: (1) the action is not likely to
jeopardize the continued existence of
listed species or result in the destruction
or adverse modification of critical
habitat (8 no jeopardy biological
opinionl, or {2l the action is Iikel" to
jeopardize the continued existence of
listed spa;ies or resull in tbe destruction
or ad\'erse modification of critiClll
habitat (8 jecpardy biological opinion}.
The biological opinion will include: (1)
II. summary of the information on which
the opinion was based:. (2) a detailed
discussion of the effec.ts of the action on
listed spccit:s or cnticlll habitat; (3) the
Service's opinion on whether the action
ill likely to j€'Qpardize the continued
existence of a listed species or resuh in
the destruction or adverse modification
of critical habitat; (4) rea!lonable and
prudent alternatives, if any. if a
jeopardy biological opinion is issued:
and (5) conservation recommendation5.
if any. A statement concerning
incidenta I take will be provided with the
biological opinion. A detailed
explllnation of incidental take is found
in i 402.19 of these regulations.
U Ihe Service issues a "jeopardy"
biological opinion. the service must
identify reasonable and prudent
altemath'es. if any, that will avoid that
result and which the Federal agency or
applicant can take in implementing its
action. These alternatives shall be
based on the best scienlific and

commercial date available. Prior to
issuing this type of opinion. Ihe Service
will work with the Federal agency and
the applicant. if any (see i 402,15). to
utilize their expertise in developing
alternatives thai are feasible to
implement. This includes. if requested
by the Federal agenc)'. mat-ing the draft
biological opinion available to the
agency before it is finalized so that the
reasonable and pnldent alternatives can
be analyzed. \Vhen the Service forwards
the draft biological opinion to the
Federal agency, Ihe 45--day period in
which the biological opinion must be
delivered will be suspended. and will
resume when the draft biological
opinion is returned to tbe Service. If the
draft biological opinion is not returned
10 the Service within a reasonable
period of time. the Service will issue a
final biological opinion.
If the Service is unable to develop
reasonable and prudent alternatives, it
will indicate that to the best of its
knowledge, there are no sucb
alternatives Ihat would avoid
jeopardizing tbe conlinued existence of
the species or resulting In the
destruction or I!.d\'erse modification of
critical habitat anu still allow the
completion of the action.

Incidental Take

The 1982 AmendInen~ cl1angeu
Se1:;tion 7(b) 10 include provisions
concernins incidental taking of Speci~ll.
The nc..... provisions included in Sections
(b)(4) aod 7(0} of the Act and in '402.19
of the propc.lsed regulations are designed
to resolve the situation where a Fed~ral
agency or an applicant has been
advised. Ihrough a biological opinion.
that the proposed action will not violate
seclion 1(a)(21 of the Act. but the
propost--d action will result in taking
individuals of some species incidental to
the action. The new provision specifies
that under the conditions given in the
followillJol r>aragraph suw incidental
take will not be 8 violation of the
"laking" prohibitions Sections 4{d} and 9
of tht" Act.
The proposed regulations on
inddental lake state that the Service
will provide with the biological opinion
to the Federal agency or applicant II
written Iltatement that: {ll specifies the
amounl or exlent of such incidental
taking of the specips. (2) specifies those
reasonable and prudent measures that
must be incorporated to minimize such
taking. (3) sets forth the terms and
conditions that must be complied with
by the Federal agency or applicant in
order to implement the reasonable and
prudent measures specified undpr (21
above, and (41 specifies the procedures