Appendix I to Subpart F of Part 157 - Procedures for Compliance With the Endangered Species Act of 1973 Under § 157.206(b)(3)(i)
18:1.0.1.5.45.6.26.19.5 : Appendix I
Appendix I to Subpart F of Part 157 - Procedures for Compliance
With the Endangered Species Act of 1973 Under § 157.206(b)(3)(i)
The following procedures apply to any certificate holder which
undertakes a project to be authorized under a blanket certificate
issued pursuant to subparts E or F of part 157 and to any other
service subject to § 157.206(b) of the Federal Energy Regulatory
Commission's (Commission) regulations.
Pursuant to § 157.206(b)(7) of the Commission's regulations, the
certificate holder shall, upon acceptance of its blanket
certificate, be designated as the Commission's non-Federal
representative to the U.S. Fish and Wildlife Service (FWS) and the
National Marine Fisheries Service (NMFS) in order to conduct
informal consultations with those agencies. For purposes of this
appendix, “listed species” and “critical habitat” shall have the
same meanings as set forth in 50 CFR 402.02. The certificate holder
shall be deemed in compliance with § 157.206(b)(2)(vi) of the
Commission's regulations only if, prior to constructing facilities
or abandoning facilities by removal under the blanket certificate,
it complies with the following procedures:
1. The certificate holder shall contact the appropriate regional
office of either the FWS or the NMFS (or both the FWS and the NMFS,
if appropriate) as determined pursuant to 50 CFR 402.01 for the
purpose of initiating informal consultations.
2. The certificate holder shall be deemed in compliance with §
157.206(b)(2)(vi) of the Commission's regulations if the consulted
agency (either the FWS or NMFS, or both if appropriate) initially
determines, pursuant to the informal consultations:
(a) That no listed species or its critical habitat occur in the
project area; and
(b) That no species proposed to be listed under 16 U.S.C. 1533
or its critical habitat occur in the project area.
3. If the consulted agency, pursuant to the informal
consultations, initially determines that any species proposed to be
listed under 16 U.S.C. 1533 or its critical habitat occur in the
project area, then the certificate holder shall confer with the
consulted agency on how potential impact can be avoided or reduced.
Upon completion of the conference and the implementation of any
mitigating measures the certificate holder elects to implement, and
compliance with paragraph 4 of this Appendix, if applicable, the
certificate holder shall be deemed in compliance with §
157.206(b)(2)(vi) of the Commission's regulations.
4. (a) If the consulted agency initially determines, pursuant to
the informal consultations, that a listed species or its critical
habitat may occur in the project area, then the certificate holder
shall continue informal consultation with the consulted agency to
determine if the proposed project may affect such species or
habitat. Continued informal consultations may include discussions
with experts (including experts provided by the consulted agency),
field surveys, biological assessments, and formulation of
mitigation measures.
(b) The certificate holder shall be deemed in compliance with §
157.206(b)(2)(vi) of the Commission's regulations if the consulted
agency agrees with the certificate holder's determination resulting
from the continued informal consultations, that the proposed
project is not likely to adversely affect a listed species or
critical habitat, or that no further consultation is necessary.
(c) If the consulted agency does not agree with such
determination by the certificate holder, or if the certificate
holder concludes that the proposed project may affect listed
species or the critical habitat of such species, then the
certificate holder may not proceed with the proposed project under
the blanket certificate.
[Order 234, 47 FR 24266, June 4, 1982, as amended by Order 436, 50
FR 42491, Oct. 18, 1985; Order 603, 64 FR 26609, May 14, 1999;
Order 603-A, 64 FR 54537, Oct. 7, 1999]