Exhibit D.5.B Implications Relevant to Metro's Request to Amend the CP and for Permits As Any
Appendix A ESA Litigation The established facts are that listed salmon and steelhead use Burlington Bottoms. McCarthy Creek is a salmon spawning stream. These species also use Burlington Creek. It seems highly likely that, given the slopes, type of soil in the BCF, and the more extreme weather events brought on by global warming, that harm will result from almost any version of the trails Metro has thus far proposed, because fine silt does the most harm to fish. The definition of "take," which triggers EPA liablity is expansive under the Act, and is further expansively refined by administrative rule. Set forth below is an excerpt from the Habit:iJ Conservation Planning and Incidental Take Permit Processing fiandbook (NOAA Fisheries, 2016). This excerpt is probably as good a summary of the ESA take provisions and rules, and their Exhibit D.5.b implications relevant to Metro's request to amend the CP and for permits as any: Section 9 of the ESA prohibits the take of any fish or wildlife species listed as endangered. Section 9 prohibits damage or destruction of plants listed as endangered on Federal property or on non-Federal lands when doing so in knowing violation of any State law or regulation or in the course of any violation of a State criminal trespass law. Take is defined as "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." FWS further defines "harm" (50 CFR 17.3) as " ... an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." The NMFS definition of "harm" (50 CFR 222.102) is very similar, but adds more specific terms related to fish.
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