§ 585.701 How must I conduct my approved activities to protect marine mammals, threatened and endangered species, and designated critical habitat? ( a ) You must not conduct any activity under your lease or grant that may affect threatened or endangered species or that may affect designated critical habitat of such species until the appropriate level of consultation is conducted, as required under the ESA, as amended (16 U.S.C. 1531 *et seq.*), to ensure that your actions are not likely to jeopardize a threatened or endangered species and are not likely to destroy or adversely modify designated critical habitat.
( b ) You must not conduct any activity under your lease or grant that is likely to result in an incidental taking of marine mammals until the appropriate authorization has been issued under the Marine Mammal Protection Act of 1972 (MMPA) as amended (16 U.S.C. 1361 *et seq.*).
( c ) If there is reason to believe that a threatened or endangered species may be present while you conduct your BOEM-approved activities or may be affected by the direct or indirect effects of your actions: ( 1 ) You must notify us that endangered or threatened species may be present in the vicinity of the lease or grant or may be affected by your actions; and
( 2 ) We will consult with appropriate State and Federal fish and wildlife agencies and, after consultation, shall identify whether, and under what conditions, you may proceed.
( d ) If there is reason to believe that designated critical habitat of a threatened or endangered species may be affected by the direct or indirect effects of your BOEM-approved activities: ( 1 ) You must notify us that designated critical habitat of a threatened or endangered species in the vicinity of the lease or grant may be affected by your actions; and
( 2 ) We will consult with appropriate State and Federal fish and wildlife agencies and, after consultation, shall identify whether, and under what conditions, you may proceed.
( e ) If there is reason to believe that marine mammals are likely to be incidentally taken as a result of your proposed activities: ( 1 ) You must agree to secure an authorization from National Oceanic and Atmospheric Administration (NOAA) or the U.S. Fish and Wildlife Service (FWS) for incidental taking, including taking by harassment, that may result from your actions; and
( 2 ) You must comply with all measures required by the NOAA or FWS, including measures to affect the least practicable impact on such species and their habitat and to ensure no immitigable adverse impact on the availability of the species for subsistence use.
( f ) Submit to us: ( 1 ) Measures designed to avoid or minimize adverse effects and any potential incidental take of the endangered or threatened species or marine mammals;
( 2 ) Measures designed to avoid likely adverse modification or destruction of designated critical habitat of such endangered or threatened species;
( 3 ) Your agreement to monitor for the incidental take of the species and adverse effects on the critical habitat, and provide the results of the monitoring as required;
( 4 ) Your agreement to perform any relevant terms and conditions of the Incidental Take Statement that may result from the ESA consultation; and
( 5 ) Your agreement to perform any relevant mitigation measures under an MMPA incidental take authorization.