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an agency trial-type hearing on issues of material fact under Sections 4(e)and 18 <br /> of the.FPA 4nd.to propose Alternatives under Section 33 of the FPA.. n..• <br /> 4.3 Authorities Under the CWA and CZMA <br /> Nothing in this Settlement Agreement is intended to or shall be construed to <br /> restrict or affect the authorities of WDOE under the CWA and CZMA and other <br /> appropriate requirements of state law. <br /> 4.4 ESA and Magnuson-Stevens Act Consultation <br /> 4.4.1 Biological Opinion/EFH Conservation Measures <br /> 4.4.1.1 Notwithstanding section 2.1,the Parties recognize that FERC will <br /> need to consult with NMFS and FWS pursuant to Section 7 of the <br /> ESA,and NMFS and FWS will likely have to prepare Biological <br /> Opinions evaluating the effect of FERC's action in response to the <br /> measures in this Settlement Agreement and engage in Essential <br /> Fish Habitat(EFH)consultation under the Magnuson-Stevens Act. <br /> NMFS and FWS are not making a pre-decisional determination of <br /> the outcome of any consultation and expressly reserve the right to <br /> take such future action or to issue Biological Opinions and <br /> Incidental Take.Statements as necessary to meet their obligations <br /> under the ESA. Further,NMFS is not making any pre-decisional <br /> determinations regarding EFH conservation recommendations <br /> necessary to meet its obligations under the Magnuson-Stevens Act. <br /> 4.4.1.2 If FERC adopts the Proposed License Articles as the proposed <br /> action,that federal action shall be the basis for a Section 7 <br /> consultation between FERC and NMFS and FWS,and any <br /> biological opinion relating to relicensing of the Project shall <br /> address and evaluate that federal action. Within thirty(30)of the <br /> Effective Date,the Licensee will request to be designated the non- <br /> federal representative for purposes of this consultation and <br /> preparing a draft biological assessment for consultation related to <br /> the Project License.The Licensee shall prepare this draft biological <br /> assessment. <br /> 4.4.1.3 Nothing in this Settlement Agreement limits or waives the <br /> authority of NMFS and FWS to take whatever action they deem <br /> necessary if FERC modifies the Proposed License Articles in a <br /> manner causing effects to EFH,listed species or critical habitat not <br /> previously analyzed,or fails to adopt as license conditions the <br /> terms and conditions in the Incidental Take Statements. <br /> 4.4.2 Biological Opinion Inconsistent with Settlement Agreement <br /> DRAFT—CONFIDENTIAL <br /> SETTLEMENT DOCUMENT- 10 <br /> 48 <br />