EP 1165-2-1
30 Jul 99
c. Section 663 provides that in subsection 663(a) consistent
with primary project purposes, project land and water areas shall be
made available for conservation, maintenance, and management of fish
and wildlife and their habitat by the states or the Secretary of the
Interior. Use of such areas under the authority of this Act shall be
in accordance with general plans as provided for in subsection 663(b)
and the 1955 agreement between USFWS and the Corps. Subsection 663(c)
provides that before properties are acquired to preserve and assure,
for the public benefit, the fish and wildlife potentials of a project
area, specific authorization must be obtained from Congress; unless,
these properties are consistent with the requirements of Section
906(b) of WRDA 1986. (See also paragraph 19-8(a)(2))
19-18. The Endangered Species Act (ESA) of 1973 (Public Law 93-205).
The (ESA), as amended, has a unique place within the water resources
program of the Corps as it is one of the few pieces of environmental
legislation that has criminal liability associated with non-compliance
with its provisions. The ESA itself is divided into three principal
areas. First, Section 4 requires the identification and listing of
imperiled species, as well as their critical habitat. Second, and
perhaps the most important provision for Corps activities, Section 7
prohibits agency actions from jeopardizing listed species or adversely
modifying their designated critical habitat. Section 7 also requires
agencies to undertake affirmative programs for the conservation of
listed species. Finally, Section 9 prohibits all persons, including
all Federal, state and local governments, from taking listed species
of fish and wildlife. The important provisions of Section 7 are
outlined below, with additional information provided in paragraph 25-
11 and in ER 1105-2-100, Chapter 7 which provides the guidance
necessary for compliance. Offsetting measures, environmental design
features, or environmental protection measures for endangered species
under Section 7 of ESA should be a separable element from habitat
mitigation under the (FWCA) and Corps regulations for wetlands (ER
1105-2-100, para. 7-49).
a. Section 7(a) of the amended ESA, requires all Federal
agencies, in consultation with the Secretary of the Interior or
Commerce, to utilize their authorities in furtherance of the purposes
of the ESA by carrying out programs for the conservation of endangered
and threatened species protected by the ESA. Additionally, on
28 September 1994 a Memorandum of Understanding (MOU) was signed by
the Acting Assistant Secretary of the Army along with six other
Federal departments to establish a general framework for greater
cooperation and participation among the departments in the exercise of
their responsibilities under the ESA. The MOU stated that the
departments " ... will work together to achieve the common goals of (1)
conserving species listed as threatened or endangered under the ESA;
(2) using existing federal authorities and programs to further the
purposes of the ESA; and, (3) improving the efficiency and
effectiveness of interagency consultations conducted pursuant to
Section 7(a)(2) of the ESA." Further, Section 7 of the ESA also
requires that all Federal agencies, in consultation with either the
USFWS or the NMFS, shall insure that any action authorized is not
likely to jeopardize the continued existence of any endangered species
or threatened species or result in the destruction of their critical
habitat.
b. Section 7(b) of the amended ESA requires the USFWS and/or
the NMFS to complete the consultation within 90 days after the date it
was initiated unless the Corps, the USFWS and/or the NMFS mutually
agree to an extension.
19-12
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