EP 1165-2-1
30 Jul 99
c. Section 7(c) of the amended ESA, requires the Corps, on
all construction projects for which no contract for construction had
been entered into or for which no construction had begun as of 10
November 1978, to request of the USFWS and/or the NMFS information
regarding species listed or proposed to be listed that may be in the
proposed project area. If the USFWS and/or the NMFS advises that
listed species may be present, the Corps shall conduct a biological
assessment to identify any listed species which are likely to be
affected by the project. The biological assessment shall be completed
within a time period mutually agreed to by the Corps, the USFWS,
and/or the NMFS, but before any contract for construction is entered
into and before construction is begun. If the findings of the
biological assessment determine that an endangered or threatened
species or its critical habitat will be impacted, the Corps must
notify the USFWS and/or the NMFS of these findings. This notification
triggers the formal consultation process. Under the ESA, the finding
by the Corps that a proposed construction or operational activity will
negatively impact an endangered or threatened species or its critical
habitat will initiate the preparation of a biological opinion by the
USFWS and/or the NMFS. This biological opinion must include a summary
of the information upon which the opinion is based; a detailed
discussion of the proposed action's effects on the species or its
critical habitat; and the opinion of the USFWS and/or the NMFS as to
whether the proposed action is likely to jeopardize the continued
existence of a listed species or result in the destruction or adverse
modification of its critical habitat. The USFWS and/or the NMFS have
basically two options, (1) to determine that the proposed action will
not jeopardize the species and/or its critical habitat or (2) that the
proposed action will result in jeopardy to the species and/or its
critical habitat. When there is a finding of potential jeopardy, the
USFWS and/or the NMFS must include in their biological opinion
reasonable and prudent alternatives that would allow the project to
continue.
d. Section 7(d) of the amended ESA states that after
initiation of consultation required under Section 7(a) the Corps shall
not make any irreversible or irretrievable commitment of resources
which will have the effect of foreclosing the formulation or
implementation of any reasonable and prudent alternatives to avoid
jeopardizing the continued existence of any endangered or threatened
species or their critical habitat.
e. Section 7(e) provides authority for the establishment of
the Endangered Species Committee (composed of six cabinet level
members and one state representative) that is empowered to grant an
exemption from the requirements of Section 7(a) to Federal agencies,
the governor of a state and/or permit applicants.
f. Section 7(h) provides the criteria to be considered by the
Endangered Species Committee whether or not to grant an exemption to
Section 7(a) of the ESA.
19-19. The Clean Water Act of 1972, as amended (Public Law 92-500 and
33 USC 466 et. seq.). The objective of the Clean Water Act (CWA) as
amended, is to "... restore and maintain the chemical, physical, and
biological integrity of the Nation's waters." The CWA goes on to state
that this objective is to be achieved, in part, by providing interim
water quality which provides for the " ... protection and propagation
of fish, shellfish , and wildlife ...". The Corps has two primary
responsibilities under the CWA, i.e., compliance with Section 401,
state water quality certification, and Section 404 (b)(1), the
discharge of dredged or fill materials into the waters of the United
19-13
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