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i Draft Supplemental Environmental Impact Report Page IV.F-16 Forward Inc.Landfill 2014 Expansion Project of any kind into the navigable waters of the United States without a permit18. The RHA also makes it a misdemeanor to excavate, fill,or alter the course, condition, or capacity of any port, harbor, channel, or other jurisdictional areas within without a permit. Although many activities covered by the RHA are regulated under the CWA, the 1899 Act retains independent vitality. 1.. The RHA is administered by the USACE. The South Branch of the South Fork of Littlejohn's Creek is not regulated under the Section 10 of the Rivers and Harbors Act. Executive Order 11990, Protection of Wetlands (May 24, 1977). Executive Order 11990 provides for the protection of wetlands. The administering agency for this Order is the USACE. The wetlands occurring on site are regulated under Executive Order 11990. U.S. Fish and Wildlife Service i Federal Endangered Species Act. Section 9 of the federal Endangered Species Act (FESA)19 prohibits the "take" of federally listed endangered species of fish or wildlife and many plant species20. The FESA defines "take" to mean "harass, harm,pursue,hunt, shoot, wound, kill, trap, capture, or attempt to engage in any such conducti21. A "take" can also include habitat modification or degradation that directly results in death or injury to a listed wildlife sV,ecies. An activity can be defined as "take" even if it is unintentional or accidental. The FESA 2 L• requires that actions authorized,funded, or carried out by federal agencies(i.e., issuing a permit pursuant to the CWA) do not "jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of lands determined by ti_ the USFWS or the National Marine Fisheries Service (NMFS) to be 'critical habitat"' for such species23. If a federal agency determines that a proposed federal action(i.e., issuance of a CWA Section 404 permit for wetland fill) "may affect" a listed species and/or designated critical habitat, the agency must consult with the USFWS and/or the NMFS in accordance with Section 7 of the FESA. If the "take" of a federally listed species may occur, the applicant may be required to obtain an Incidental Take Permit from the USFWS and/or NMFS. This permit allows the taking of federally listed species if the "take" is "incidental to and not the purpose of, .. the carrying out of an otherwise lawful activityi24. The USFWS and/or NMFS issues an Incidental Take Permit only if the applicant, to the maximum extent possible,has minimized and mitigated for the impacts of the taking and provided adequate funding for the mitigation plan, and if the taking would not appreciably reduce the likelihood of the survival and recovery of the species in the wild 25. Incidental Take permits are obtained through FESA Section 7 consultation between the USACE and USFWS and/or NMFS or under Section 10 through an approved Habitat Conservation Plan. Take authority for federally listed species covered under the SJMSCP would conform to the FESA. Federally listed species for which take authority may be required and provided by participation in the SJMSCP include Swainson's hawk and giant garter snake. 18 This specific provision is known as the Refuse Act. 1916 USC 1531,et seq.;50 CFR Parts 17 and 222 2016 USC 1538[a][1][B] 21 16 USC 1532[19] 22§7(a)(2) 6W 2316 USC 1536[a][2]and 16 USC 1532[5] 2416 USC 1539[a][1][B] 2516 USC 1539[a][2][B] V boo