leave the permit in place, subsequent work by the permittee may be considered in violation of State law and subject to State enforcement procedures.

Applicability to Section 10 Activities. Section 401 certification of Section 10 only activities is not required unless the Section 10 permit involves a discharge into waters of the United States. Section 10 only projects normally do not result in a discharge, which is what triggers the need for 401 certification. For example, the installation of piers, docks, and similar structures do not require a Section 401 certification because there is normally no discharge associated with the project. If the state issues a 401 certification for a Section 10 only activity (no discharge) then those conditions do not become part of the DA permit unless the Corps adopts them, as Corps required conditions.

15. Endangered Species Act (ESA).

- Corps determines scope of analysis

- Corps determines no effect/may effect and no jeopardy/jeopardy

- Corps decides whether to include RPAs

- Applicant must comply with take statement

For the purpose of evaluating permit applications, the scope of analysis under the ESA is limited to boundaries of the permit area, plus any additional area outside Corps jurisdiction where there is sufficient Federal control and responsibility. The ESA scope of analysis is the same as that used for the consideration of historic properties under Section 106 of the NHPA and the NEPA. Within the properly defined scope of analysis for the ESA, the Corps must consider all direct and indirect impacts of the proposed discharge of dredged or fill material, structure or work on the federally listed species and its critical habitat. Indirect impacts of interrelated actions (part of the larger action and dependent upon the larger action for their justification) and interdependent actions (having no independent utility apart from the Federal action) must also be considered. This determination of indirect impacts to evaluate must include an evaluation of the causal relationship between the activity being authorized by the Corps, and the resultant physical effect of the activity on the listed species.

With respect to the conditioning of permits for applications that have undergone consultation as defined in the ESA, the Corps will decide what if any conditions are appropriate for inclusion into a Section 404/10 permit (if the Corps issues a permit all elements of the incidental take statement must be included by reference—see below). The ESA consultation may result in the drafting of a biological opinion (BO) by the USFWS/

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