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Biological Resources, MONK&ASSOCIATES Impacts and Mitigations Tracy Facility Expansion Site to "waters of the United States,"the Corps would be required to initiate formal consultation with USFWS pursuant to Section 7 of FESA. As part of the formal consultation,the USFWS would then be required to prepare a Biological Opinion based on a review and analysis of Granite's avoidance and mitigation plan. The Biological Opinion will either state that the project will or will not threaten the continued existence of t.e species (not just that population). To come to the latter decision,USFWS has to be in complete concurrence with the proposed avoidance and E mitigation plan, otherwise they will submit a"jeopardy decision"to the Corps stating that a Corps' permit should not be issued. The applicant would then have an opportunity to submit a revised mitigation plan that provides greater protection for the species. In the 1982 amendments to FESA, Congress established a provision in Section 10 that allows for the"incidental take" of endangered and threatened species of wildlife by non-Federal entities (e.g., project applicants, State and local agencies). "Incidental take" is defined by FESA as take that is "incidental to,and not the purpose of, the carrying out of an otherwise lawful activity." Under Section 10 of FESA,the applicant for an"incidental take permit" is required to submit a "conservation plan"to USFWS or LANES that specifies, among other things,the impacts that are likely to result from the taking, and the measures the permit applicant will undertake to minimize and mitigate such impacts, and the funding that will be available to implement those steps. Conservation plans under FESA have come to be known as "habitat conservation plans" or "HCPs" for short. The terms incidental take permit, Section 10 permit, and Section 10(a)(1)(B) permit are used interchangeably by USFWS. Section 10(a)(2)(B)of FESA provides statutory criteria that must be satisfied before an incidental take permit can be issued. 10.2 State Endangered Species Act In 1984, the State legislated the California Endangered.Species Act(CESA)(Fish and Game Code §2050). The basic policy of CESA is to conserve and enhance endangered species and C� their habitats. As such, State agencies will not approve private-or public projects under their jurisdiction that would jeopardize threatened or endangered species or destroy habitat essential to their continued existence if reasonable and prudent alternatives are available. CESA requires that all State lead agencies (as defined under CEQA)must conduct an endangered species consultation with CDFG if their actions could affect a State listed species. This process is similar to the Federal Section 7 consultation. The State lead agency and/or project applicants must provide information to CDFG on the project and its likely impacts. CDFG must then prepare written findings on whether the proposed action would jeopardize a listed species or destroy essential habitat that would result in the direct take of a listed species. Because CESA does not have a provision for "harm" (see discussion of FESA; Section 10.1), CDFG considerations pursuant to CESA are limited to those actions that would result in the direct take of a listed species. If CDFG determines that a proposed project could impact a State listed threatened or endangered species, CDFG will provide recommendations for"reasonable and prudent"project alternatives. The CEQA lead agency can only approve a project if these alternatives are implemented, unless - it finds that the project's benefits clearly outweigh the costs,reasonable-mitigation measures are adopted, there has been no "irreversible or irretrievable" commitment of resources made in the 11 .