ESA Consultation. 7.3.1 Notwithstanding Section 5.1, the Parties recognize that FERC and USFS will consult and may confer with USFWS pursuant to Section 7 of the ESA on issuance of the License Surrender Order and SUA. USFWS anticipates that the measures in this Settlement Agreement will be adequate to: (a) avoid a jeopardy finding for species presently listed as threatened or endangered; (b) avoid a finding of destruction or adverse modification of designated or proposed critical habitat for species presently listed as threatened or endangered; and (c) minimize incidental take of species presently listed as threatened or endangered. USFWS shall use reasonable efforts to exercise its authority under the ESA in a manner that allows this Agreement to be fulfilled. By signing this Settlement Agreement, however, USFWS is not making a pre-decisional determination of the outcome of any consultation and expressly reserves the right to take such future actions as may be necessary to meet its obligations under the ESA.
7.3.2 If FERC or USFS requests a draft Biological Opinion (“BiOp”), the USFWS shall provide one to FERC. With FERC approval, USFWS will share the draft BiOp with the PUD prior to issuing it in final form. If USFS requests a draft BiOp, the USFWS shall provide one to USFS. With USFS approval, USFWS will share the draft BiOp with the PUD prior to issuing it in final form. If appropriate, USFWS will consider consolidating its Section 7 consultations for both the License Surrender Order and the SUA.
7.3.3 Nothing in this Settlement Agreement limits or waives the authority of USFWS to take whatever action it deems necessary if FERC modifies the Proposed License Surrender Conditions or if USFS modifies the Proposed SUA Conditions in a manner causing effects to listed species or critical habitat not previously analyzed, or if either agency fails to adopt as Project License surrender conditions or SUA conditions the terms and conditions in the Incidental Take Statements.
7.3.4 If the ESA consultation process results in an inconsistency that would require a Material Modification of this Settlement Agreement, this Settlement Agreement shall be deemed modified to conform to the provisions of the BiOp, Incidental Take Statement or Reasonable and Prudent Alternatives, unless a Party provides notice to the other Parties that it objects to such modifications and initiates dispute resolution under Section 9 of this Settlement Agreement within 30 days after the BiOp is submitted to FER...
ESA Consultation. A. Reclamation will send a letter to FWS requesting reinitiation of ESA Section 7(a)(2) consultation on its Middle Rio Grande operations and maintenance activities within 30 days of the date of entry of this Settlement Agreement.
B. Reclamation and FWS will complete the reinitiated ESA Section 7(a)(2) consultation, and FWS will issue a new Biological Opinion, by October 30, 2028.
C. No less than 30 days before issuing a final biological assessment and final Biological Opinion, Federal Defendants will provide Plaintiff, and any member of the public who had requested them, draft versions of these documents to allow opportunities to comment. Additionally, Federal Defendants will provide status updates to Plaintiff on the progress of the consultation every six months. Following receipt of those status updates, Plaintiff may request a meeting with Reclamation and/or FWS representatives to discuss the progress made toward completion of each action.
