11. Endangered Species: In the July 21, 1999, Federal Register notice, we proposed to modify this general condition by adding a requirement for the prospective permittee to submit, with the notification, the name(s) of the endangered or threatened species that may be affected by the proposed work or utilize designated critical habitat that may be affected by the proposed work.
One commenter objected to the requirement for prospective permittees to notify the Corps if there may be threatened or endangered species in the vicinity of the proposed activity. Another commenter objected to the requirement for applicants to notify the Corps for any activity that will occur in designated critical habitat. A commenter stated that the requirement to notify the district engineer if listed species or critical habitat may be affected by the proposed activity should apply to both Federal and non-Federal applicants. Two commenters opposed the notification requirement, stating that project proponents cannot know if their projects are located in designated critical habitat. Several commenters stated that the Corps is responsible as the lead Federal agency for compliance with section 7 of the Endangered Species Act (ESA) and that the Corps cannot delegate to the prospective permittee the determination whether a listed species or their critical habitat would be affected by the proposed work.
The notification requirements for General Condition 11 are necessary to ensure that activities authorized by NWPs comply with the requirements of ESA. Federal permittees are required to conduct Section 7 ESA consultation directly with either the U.S. Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS), depending on which species may be affected by the proposed work. Prospective permittees should contact the FWS or NMFS to determine if their activities may affect Federally-listed endangered or threatened species or destroy or adversely modify designated critical habitat. We recognize that we are responsible for determining whether an activity is likely to jeopardize the continued existence of a threatened or endangered species or whether an activity will adversely modify or destroy designated critical habitat, but we cannot require permittees to submit notifications for all NWP activities so that we can determine compliance with ESA. Division engineers can regionally condition the NWPs to require notification for NWP activities in known locations of Federally-listed endangered or threatened species and their designated critical habitat.
One commenter suggested that a specific distance should be used to define the phrase "in the vicinity" as it is used in this general condition. Another commenter said that the Corps needs to define what constitutes "affecting critical habitat" as it applies to the NWPs. One commenter stated that the word "destroy" should be defined or deleted from this general condition. A commenter stated that any activity that may affect a Federally-listed endangered or threatened species or its critical habitat must be reviewed by the FWS. Another commenter said that individual permits should be required for activities that may affect endangered or threatened species or their critical habitat.
We do not agree that a specific distance should be established to define the term "vicinity" because the area that constitutes the "vicinity" varies from species to species. Activities in waters of the United States within critical habitat have the potential to destroy or adversely modify that critical habitat and should be reviewed by the Corps to ensure compliance with ESA. The phrase "destruction or adverse modification" is defined at 50 CFR 402.02 and this definition applies to the phrase "destroy or adversely modify" that is found in General Condition 11. We will consult with FWS and NMFS for those activities that may affect or jeopardize Federally-listed endangered or threatened species or may destroy or adversely modify the designated critical habitat of those species. We do not agree that all activities that may affect endangered or threatened species or their critical habitat should be reviewed under the individual permit process because these activities can often be authorized by NWPs in compliance with ESA.
As a consequence of the NWP/General Permit Programmatic ESA Section 7 consultation, district engineers will develop Standard Local Operating Procedures for Endangered Species and may develop other procedures to ensure that the NWPs and general permits will comply with the ESA. In addition, as part of this process, the Corps may need to adopt regional conditions for endangered species. To ensure that these conditions and procedures are properly coordinated, the decision authority for adding regional conditions for endangered species has been delegated to the district engineer in General Condition 11. This general condition is adopted with the modifications discussed above.
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