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I Draft Environmental g Impact Report Page IV.H-15 P P Forward Inc. Landfill Expansion Project Section 10 of the Rivers and Harbors Act. Section 10 of the Rivers and Harbors Act (RHA)18 authorizes he USACE to regulate dredging, filling, and construction activities in navigable waters. The Rivers and Harbors Act of 1899 makes it a misdemeanor to discharge refuse matter of any kind into the navigable waters of he United States without a permit19. 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. 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 i the Rivers and Harbors Act. I .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 Federal Endangered Species Act. Section 9 of the federal Endangered Species Act(FESA)20 prohibits he "take" of federally listed endangered species of fish or wildlife and many plant species". The FESA defines"take" to mean"harass, harm, pursue,hunt, shoot,wound, kill, trap, capture, or attempt to engage in any such conduct"22. A "take" can also include habitat t modification or degradation that directly results in death or injury to a listed wildlife sFecies. An activity can be defined as"take" even if it is unintentional or accidental. The FESA s 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 the USFWS or the National Marine Fisheries Service (NMFS) to be 'critical habitat"' for such species24. If a federal agency determines that a proposed federal action(i.e., issuance of a CWA ElSection 404 permit for wetland fill) "may affect" a listed species and/or designated critical l 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 x 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 activity . The USFWS and/or NMFS issues an Incidental Take Permit only if the applicant,to the maximum extent possible,has minimized F, 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 wild26. 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 iB 33 USC 201,et seq. 19 This specific provision is known as the Refuse Act. 2016 USC 1531,et seq.;50 CFR Parts 17 and 222 T 16 USC 1538[a][1][B] 2216 USC 1532[19] 23 7(a) 2 7416 USC 1536[a][2]and 16 USC 1532[5] 16 USC 1539[a][1][B] 2116 USC 1539[a][2][B]