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002681 MANAGING ESA ISSUES HOLLAND & HART LLP II. Listing Assuming that listing cannot be avoided, the possibility of a special rule should be considered for proposed threatened species, A special rule issued under Section 4(d) at or following the time of listing can limit the scope of the "take" definition that otherwise would apply, and can provide that specific activities do not constitute "take" for Section 9 purposes, thus providing clearer definition of (and perhaps obviating) potential "takings" liability concerns. III. Section 7 Consultations For projects requiring a federal permit, authorization or approval to go forward, the Section 7 consultation process is often the pivotal step for project proponents, Indeed, this process can yield results ranging from approval of the action as proposed, approval with more-or-Iess serious constraints or requirements designed to conserve the species in question, or a prohibition of the action altogether Additionally, the nature of the take authorized by the incidental take statement (and the inclusion of such a statement), and its supporting terms and conditions (known as reasonable and prudent measures) are of considerable importance to the project proponent. The ability and diligence of the action agency in negotiating a Section 7 biological opinion can vary widely. ranging from highly to minimally proficient; further, the relationship between the action agency and the Service can range from cordial and professional to adversariaL Under such circumstances, leaving the conduct of the consultation wholly to the action agency can be problematic and potentially fataL The project proponent should consider trying to become an integral participant in the consultation process, so that the fate of the project does not rest in uncertain hands. . Be Involved in the Consultation Process. Although the Section 7 consultation process may appear as a carefully choreographed procedure between the action agency and the Service lacking a structured role for public input, the Section 7 regulations do allow for participation by a project applicant at several crucial steps in the process. If possible, project applicants should take advantage of these opportunities so that they are not mere bystanders while a project's future, scope, and potential management constraints are being debated between the agencies. A prospective applicant may request the action agency to enter into early consultation with the Service to develop a preliminary biological opinion on expected species impacts from the proposed action. 50 C.FR. 9 402, II. Next, a project applicant may prepare the biological assessment for the Section 7 process under the supervision of the action agency and in cooperation with the Service. Id. 9 402.12(b )(1), If the biological assessment indicates formal consultation is necessary, a project applicant may participate in an on-site inspection of the project area with representatives of the Service and the action agency. Id. 9 - 8 -