Common use of ESA Consultation Clause in Contracts

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 FERC or USFS. If the provisions of the BiOp, Incidental Take Statement or Reasonable and Prudent Alternatives contain a Material Modification of this Settlement Agreement, a Party may withdraw from this Settlement Agreement after the Parties comply with the dispute resolution process in Section 9 of this Settlement Agreement. 7.3.5 A disputing Party may, in addition and to the extent provided by applicable law, seek administrative and/or judicial review of any BiOp, Incidental Take Statement, or Reasonable and Prudent Alternative that would require a Material Modification of this Settlement Agreement. The Parties shall follow the dispute resolution process set forth in Section 9 of this Settlement Agreement to the extent reasonably practicable, in order to consider modification of this Settlement Agreement, while such administrative or judicial review is pursued. If all Parties subsequently agree to modify this Settlement Agreement, the disputing Party or Parties shall withdraw or dismiss any administrative or judicial action, or recommend such withdrawal or dismissal as appropriate. 7.3.6 Unless this Settlement Agreement is terminated pursuant to Section 7.4.3.1 or Section 10, if any BiOp contains a Material Modification of this Settlement Agreement after a final and non-appealable administrative or judicial decision, this Settlement Agreement shall be deemed modified to conform to that decision.

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 SUANew License. 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 Licensee 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 Articles 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 Statement, or Reasonable and Prudent Alternatives, unless a Party provides notice 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 FERC or USFSfiled with FERC. If the provisions of the BiOp, Incidental Take Statement Statement, or Reasonable and Prudent Alternatives contain a Material Modification of this Settlement Agreement, a Party may withdraw from this Settlement Agreement after the Parties comply with the dispute resolution process in Section 9 of this Settlement Agreement. 7.3.5 A disputing Party may, in addition and to the extent provided by applicable law, seek administrative and/or judicial review of any BiOp, Incidental Take Statement, or Reasonable and Prudent Alternative that would require a Material Modification of this Settlement Agreement. The Parties shall follow the dispute resolution process set forth in Section 9 of this Settlement Agreement to the extent reasonably practicable, in order to consider modification of this Settlement Agreement, Agreement while such administrative or judicial review is pursued. If all Parties subsequently agree to modify this Settlement Agreement, the disputing Party or Parties shall withdraw or dismiss any administrative or judicial action, or recommend such withdrawal or dismissal as appropriate. 7.3.6 Unless this Settlement Agreement is terminated pursuant to Section 7.4.3.1 or Section 1010 herein, if any BiOp contains would require a Material Modification of this Settlement Agreement after a final and non-appealable administrative or judicial decision, this Settlement Agreement shall be deemed modified to conform to that decision.