Can the Corps deny a permit based on the ESA?
A. Yes. If, in the opinion of NMFS or USFWS, a project results in a “take” severe enough to jeopardize the continued existence of the listed or proposed species, the Corps will deny the permit, except in extremely unusual circumstances [33 CFR 320.3(i); 50 CFR 402.15; and 40 CFR 230.10(b)(3)]. This situation is quite rare because “take” issues are addressed during the consultation process, and the Services and the Corps work with the applicant to modify their project design or construction techniques such that impacts are minimized and jeopardy will not occur.
