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4.10.2 REGULATORY SETTING FEDERAL REGULATIONS Federal Endangered Species Act Pursuant to the ESA,the USFWS, and the National Oceanic and Atmospheric Administration(NOAA)Fisheries have authority over projects that may result in take of a federally listed species. Under the ESA,the definition of "take"is to"harass, harm,pursue,hunt, shoot,wound,kill,trap,capture,or collect,or to attempt to engage in any such conduct." USFWS has also interpreted the definition of"hams"to include significant habitat modification that could result m take. If a project would potentially result in take of a federally listed species,either an incidental take permit,under Section 10(a)of the ESA,or a federal interagency consultation under Section 7 of the ESA,is required. Migratory Bird Treaty Act The Migratory Bird Treaty Act(MBTA), first enacted in 1918,provides for international migratory bird protection and authorizes the Secretary of the Interior to regulate the taking of migratory birds. MBTA provides that it shall be unlawful, except as permitted by regulations,to pursue,take, or kill any migratory bird, or any part, nest,or egg of any such bird. The list of species protected by MBTA can be found in Title 50, Code of Federal Regulations Section 10.13.The list includes nearly all birds native to the United States. Loss of nonnative species,such as house sparrows,European starlings, and rock pigeons,is not covered by this statute. Section 404 of the Clean Water Act Section 404 of the CWA establishes a requirement to obtain a permit before any activity that involves discharge of dredged or fill material into waters of the United States, including wetlands. Waters of the United States include navigable waters of the United States; interstate waters, all other waters where the use or degradation or destruction of the waters could affect interstate or foreign commerce,tributaries to any of these waters, and wetlands that meet any of these criteria or that are adjacent to any of these waters or their tributaries. Wetlands are defined as those areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Jurisdictional wetlands must meet three wetland delineation criteria: hydrophytic vegetation,hydric soil types, and wetland hydrology. Many surface waters and wetlands in California meet the criteria for waters of the United States, including intermittent streams and seasonal lakes and wetlands. Pursuant to Section 404 of the CWA,the USACE regulates and issues permits for activities that involve the discharge of dredged or fill materials into waters of the United States. STATE REGULATIONS California Endangered Species Act Pursuant to the CESA and Section 2081 of the California Fish and Game Code,a permit from DFG is required for projects that could result in the take of a species state listed as threatened or endangered. Under CESA, "take"is -- defined as an activity that would directly or indirectly kill an individual of a species,but the definition does not include"harm"or"harass,"as the federal act does. Section 1602 of the California Fish and Game Code All diversions,obstructions,or changes to the natural flow or bed,channel,or bank of any river,stream,or lake in California that supports wildlife resources are subject to regulation by DFG,pursuant to Section 1602 of the California Fish and Game Code. Under Section 1602,it is unlawfiil for any person to substantially divert or obstruct the natural flow or substantially change the bed,channel,or bank of any river,stream,or lake designated by DFG,or use any College Park at Mountain House Specific Plan III Draft EIR EDAW San Joaquin County 4.10-13 Biological Resources