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AUGUSTIN BERNAL MOUNTAIN BIKE TRAIL PROJECT DRAFT INITIAL STUDY 12956 DUDEK 38 April 2022 Regulatory Context Federal Federal Endangered Species Act The federal Endangered Species Act (FESA) of 1973, as amended (16 USC 1531 et seq.), serves as the enacting legislation to list, conserve, and protect threatened and endangered species, and the ecosystems on which they depend, from extinction. FESA is administered by the U.S. Fish and Wildlife Service (USFWS) for terrestrial and freshwater fish species, and by the National Marine Fisheries Service for marine and anadromous species. Section 9(a)(1)(B) of FESA prohibits the taking, possession, sale, or transport of any endangered fish or wildlife species. “Take” is defined to mean “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct” (16 USC 1532[19]). Harm is defined as “any act that kills or injures the species, including significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering” (50 CFR 17.3). FESA also enables USFWS and the National Marine Fisheries Service to designate “critical habitat,” which are geographic areas that contain “physical or biological features essential to the conservation of the species” and that “may require special management considerations or protection” (50 CFR 424.12). Areas shown on maps as critical habitat units, published in the Federal Register by USFWS or the National Marine Fisheries Service, are often larger than the areas that actually support habitat for the species. Only those areas within the critical habitat units that support the species’ primary constituent elements are subject to FESA consultation and analysis of critical habitat effects. Primary constituent element (PCE) is a term introduced in the critical habitat designation regulations to describe aspects of ‘‘physical or biological features.’’ On May 12, 2014, USFWS and the National Marine Fisheries Service proposed to revise these regulations to remove the use of the term ‘‘primary constituent element’’ and replace it with the statutory term ‘‘physical or biological features’’ (79 FR 27066). However, the shift in terminology does not change the approach used in conducting a ‘‘destruction or adverse modification’’ analysis, which is the same regardless of whether the original designation identified PCE or physical or biological features, or both (81 FR 7220, February 11, 2016). Migratory Bird Treaty Act The Migratory Bird Treaty Act prohibits the intentional take of any migratory bird or any part, nest, or eggs of any such bird. Under the Migratory Bird Treaty Act, “take” is defined as pursuing, hunting, shooting, capturing, collecting, or killing, or attempting to do so (16 USC 703 et seq.). Additionally, Executive Order 13186, Responsibilities of Federal Agencies to Protect Migratory Birds, requires that any project with federal involvement address impacts of federal actions on migratory birds with the purpose of promoting conservation of migratory bird populations (66 FR 3853–3856). Executive Order 13186 requires federal agencies to work with USFWS to develop a memorandum of understanding. USFWS reviews actions that might affect migratory bird species.