[Federal Register Volume 79, Number 91 (Monday, May 12, 2014)]
[Proposed Rules]
[Pages 27060-27066]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-10503]
Federal Register / Vol. 79 , No. 91 / Monday, May 12, 2014 / Proposed
Rules
[[Page 27060]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 402
[Docket No. FWS-R9-ES-2011-0072]
RIN 1018-AX88
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 402
[Docket No. 120106026-3731-01: 92210-0-0009-B4]
RIN 0648-BB80
Interagency Cooperation--Endangered Species Act of 1973, as
Amended; Definition of Destruction or Adverse Modification of Critical
Habitat
AGENCIES: U.S. Fish and Wildlife Service, Interior; National Marine
Fisheries Service, National Oceanic and Atmospheric Administration,
Commerce.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (FWS) and the National
Marine Fisheries Service (NMFS) (collectively referred to as the
``Services'' or ``we'') propose to amend our regulations, which
implements the Endangered Species Act of 1973, as amended (Act). Our
regulation establishes the procedural regulations governing interagency
cooperation under section 7 of the Act. The Act requires Federal
agencies, in consultation with and with the assistance of the
Secretaries of the Interior and Commerce, to insure that their actions
are not likely to jeopardize the continued existence of endangered or
threatened species or result in the destruction or adverse modification
of critical habitat of such species. In 1986, the Services established
a definition for ``destruction or adverse modification'' (Sec. 402.02)
that was found to be invalid by the U.S. Court of Appeals for the Fifth
(2001) and Ninth (2004) Circuits. We propose to amend our regulations
to replace the invalidated definition with one that is consistent with
the Act and the circuit court opinions. Finally, the proposed amendment
is part of the Services' response to Section 6 of Executive Order 13563
(January 18, 2011), which directs agencies to analyze their existing
regulations and, among other things, modify or streamline them in
accordance with what has been learned.
DATES: We will accept comments from all interested parties until July
11, 2014. Please note that if you are using the Federal eRulemaking
Portal (see ADDRESSES below), the deadline for submitting an electronic
comment is 11:59 p.m. Eastern Standard Time on this date.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. In
the box that reads ``Enter Keyword or ID,'' enter the Docket number for
this proposed rule, which is FWS-R9-ES-2011-0072. Then, in the Search
panel, under the Document Type heading, check the box next to Proposed
Rules. You may enter a comment by clicking on ``Submit a Comment.''
Please ensure that you have found the correct rulemaking before
submitting your comment.
U.S. mail or hand delivery: Public Comments Processing,
Attn: [Docket No. FWS-R9-ES-2011-0072]; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, Suite 222; Arlington, VA 22203.
We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Request for Information section below for more
information).
FOR FURTHER INFORMATION CONTACT: Patrice Ashfield, U.S. Fish and
Wildlife Service, Division of Environmental Review, 4401 N Fairfax
Drive, Suite 420, Arlington, VA, 22203, telephone 703/358-2171;
facsimile 703/358-1735; or Cathryn E. Tortorici, National Marine
Fisheries Service, Office of Protected Resources, Interagency
Cooperation Division, 1315 East-West Highway, Silver Spring, MD 20910,
telephone 301/427-8405; facsimile 301/713-0376. If you use a
telecommunications device for the deaf (TDD), call the Federal
Information Relay Service (FIRS) at 800/877-8339.
SUPPLEMENTARY INFORMATION: Today, we publish in the Federal Register
three related documents that are now open for public comment. We invite
the public to comment individually on these documents as instructed in
their preambles. This document is one of the three, of which two are
proposed rules and one is a draft policy:
A proposed rule to amend the existing regulations
governing section 7 consultation under the Endangered Species Act to
revise the definition of ``destruction or adverse modification'' of
critical habitat. The current regulatory definition has been
invalidated by several courts for being inconsistent with the language
of the Act. This proposed rule would revise title 50 of the Code of
Federal Regulations (CFR) at part 402. The Regulatory Identifier Number
(RIN) is 1018-AX88, and the proposed rule may be found on http://www.regulations.gov at Docket No. FWS-R9-ES-2011-0072.
A proposed rule to amend existing regulations governing
the designation of critical habitat under section 4 of the Act. A
number of factors, including litigation and the Services' experience
over the years in interpreting and applying the statutory definition of
critical habitat, have highlighted the need to clarify or revise the
current regulations. This proposed rule would revise 50 CFR part 424.
It is published under RIN 1018-AX86 and may be found on http://www.regulations.gov at Docket No. FWS-HQ-ES-2012-0096.
A draft policy pertaining to exclusions from critical
habitat and how we consider partnerships and conservation plans,
conservation plans permitted under section 10 of the Act, tribal lands,
national security and homeland security impacts and military lands,
Federal lands, and economic impacts in the exclusion process. This
policy is meant to complement the proposed revisions to 50 CFR part 424
and to provide for a simplified exclusion process. The policy is
published under RIN 1018-AX87 and may be found on http://www.regulations.gov at Docket No. FWS-R9-ES-2011-0104.
Background
The Act requires Federal agencies, in consultation with and with
the assistance of the Secretaries of the Interior and Commerce, to
insure that their actions are not likely to jeopardize the continued
existence of endangered or threatened species or result in the
destruction or adverse modification of critical habitat of such
species. In 1978, the Services promulgated regulations governing
interagency cooperation under section 7 of the Act. (50 CFR part 402).
These regulations provided a definition for ``destruction or adverse
modification'' of critical habitat, which was later updated in 1986 to
conform with amendments made to the Act. The 1986 regulations defined
``destruction or adverse modification'' as: ``a direct or indirect
alteration that appreciably diminishes the value of critical habitat
for both the survival and recovery of a listed species. Such
alterations include, but are not limited to, alterations adversely
modifying any of those physical or biological features that were the
basis for determining the habitat to be critical.'' (50 CFR 402.02).
The
[[Page 27061]]
preamble to the 1986 regulation contained relatively little discussion
on the concept of ``destruction or adverse modification of critical
habitat.''
In 2001, the Fifth Circuit Court of Appeals reviewed the 1986
regulatory definition of destruction and adverse modification and found
it exceeded the Service's discretion. Sierra Club v. U.S. Fish and
Wildlife Service, 245 F.3d 434 (5th Cir. 2001). Specifically, the court
found the regulatory definition to be invalid on its face and
inconsistent with the Act. The court reasoned that the regulatory
definition set too high a threshold for triggering adverse modification
by its requirement that both recovery and survival be diminished before
adverse modification would be the appropriate conclusion. The court
determined that the regulatory definition actually established a
standard that would only trigger an adverse modification determination
if the ``survival'' of the species was diminished, while ignoring the
role critical habitat plays in the recovery of species. Citing
legislative history and the Act itself, the court was persuaded that
Congress intended the Act to ``enable listed species not merely to
survive, but to recover from their endangered or threatened status.''
Sierra Club at 436. Noting the Act defines critical habitat as areas
that are ``essential to the conservation'' of listed species, the court
determined that ``conservation'' is a much ``broader concept than mere
survival.'' Sierra Club at 436. The court concluded that the Act's
definition of conservation ``speaks to the recovery'' of listed
species.
In 2004, the Ninth Circuit Court of Appeals also reviewed the 1986
regulatory definition of destruction or adverse modification. Gifford
Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059
(9th Cir. 2004). That court agreed with the Fifth Circuit's
determination that the regulation was facially invalid. The Ninth
Circuit, following similar reasoning set out in the Sierra Club
decision, determined that Congress viewed conservation and survival as
``distinct, though complementary, goals and the requirement to preserve
critical habitat is designed to promote both conservation and
survival.'' Specifically, the court found that ``the purpose of
establishing `critical habitat' is for the government to designate
habitat that is not only necessary for the species' survival but also
essential for the species' recovery.'' Gifford Pinchot Task Force at
1070.
After the Ninth Circuit's decision, the Services each issued
guidance to discontinue the use of the 1986 adverse modification
regulation (FWS Acting Director Marshall Jones Memo to Regional
Directors, ``Application of the `Destruction or Adverse Modification'
Standard under Section 7(a)(2) of the Endangered Species Act 2004;''
NMFS Assistant Administrator William T. Hogarth Memo to Regional
Administrators, ``Application of the `Destruction or Adverse
Modification' Standard under Section 7(a)(2) of the Endangered Species
Act, 2005''). Specifically, in evaluating an action's effects on
critical habitat as part of interagency consultation, the Services
began applying the definition of ``conservation'' as set out in the
Act, which defines conservation (and conserve and conserving) to mean
``to use and the use of all methods and procedures which are necessary
to bring any endangered species or threatened species to the point at
which the measures provided pursuant to this Act are no long
necessary.'' 16 U.S.C. Sec. 1532(3). Further, after examining the
baseline and the effects of the action, the Services began analyzing
whether the implementation of the Federal action under consultation,
together with any cumulative effects, would result in the critical
habitat remaining ``functional (or retain the current ability for the
primary constituent elements to be functionally established) to serve
the intended conservation role for the species.''
Proposed Definition
After considering relevant case law and our collective experience
in applying the ``destruction or adverse modification'' standard over
the last three decades, the Services propose to amend the definition of
``destruction or adverse modification'' to (1) more explicitly tie the
definition to the stated purpose of the Act; and, (2) more clearly
contrast the definitions of ``destruction or adverse modification'' and
``jeopardize the continued existence of.'' To achieve these purposes,
the Services propose the following definition:
``Destruction or adverse modification'' means a direct or
indirect alteration that appreciably diminishes the conservation
value of critical habitat for listed species. Such alterations may
include, but are not limited to, effects that preclude or
significantly delay the development of the physical or biological
features that support the life-history needs of the species for
recovery.
Use of the term ``conservation value'' is intended to align the
definition of ``destruction or adverse modification'' with the
conservation purposes of the Act and the Act's definition of ``critical
habitat.'' Specifically, the term ``conservation value'' is intended to
capture the role that critical habitat should play for the recovery of
listed species. We believe by focusing on the conservation value of
critical habitat, which also necessarily includes attributes critical
to a species' survival, this definition will be consistent with the
Fifth and Ninth Circuit Court of Appeals decisions referenced above.
The Services note that ``value'' within ``conservation value'' refers
to its utility or importance. It does not refer to a quantified value.
The proposed definition also better clarifies and preserves the
existing distinction between the definitions of ``destruction or
adverse modification'' and ``jeopardize the continued existence of'' by
focusing the analysis for ``destruction or adverse modification'' on
how the effects of a proposed action affect the value of critical
habitat for the recovery of threatened or endangered species. The focus
of the ``jeopardize the continued existence of'' definition, on the
other hand, is the status of the species, which concentrates on a
species' reproduction, numbers, and distribution. The second sentence
of the Services' proposed definition of ``destruction or adverse
modification'' simply acknowledges that some important physical or
biological features may not be present or are present in a sub-optimal
quantity or quality. This could occur when, for example, the habitat
has been degraded by human activity or is part of an ecosystem adapted
to a particular natural disturbance (e.g., fire or flooding), which
does not constantly occur but is likely to recur. The critical habitat
area may either be unoccupied habitat, which is not required to have
physical or biological features present, or may be an area within an
occupied habitat that has only some but not all features. The area may
have been designated because of its potential to support the physical
or biological features that fulfill the species' life-history needs and
its potential recovery. A species life-history needs may include, but
are not limited to, food, water, light, shelter from predators,
competitors, weather and physical space to carry out normal behaviors
or provide dispersal or migratory corridors. Thus, an action that would
preclude or significantly delay habitat regeneration or natural
successional processes, to an extent that it appreciably diminishes the
conservation value of critical habitat, would result in destruction or
adverse modification.
The Act defines critical habitat to include those specific areas
within the
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geographical area occupied by the species, at the time it is listed, on
which are found those physical or biological features essential to the
conservation of species. Our use of the phrase ``physical or biological
features'' is consistent with the recently proposed definition of
``physical or biological features'' in 50 CFR 424.02 but is intended to
apply more broadly than in defining specific areas of critical habitat
within the geographic area occupied by the species at the time of
listing. All habitats are comprised of physical or biological features.
Consistent with current practice, we anticipate that our analyses of
the effects of the action to critical habitat will necessarily
consider, in part, effects to features irrespective of whether the
specific area was designated within or outside of the geographic area
occupied by the species at the time it was listed.
In proposing a new definition for ``destruction or adverse
modification,'' and setting out the accompanying clarifying discussion
in this Preamble, the Services are establishing prospective standards
only. Nothing in these proposed revised regulations is intended to
require (now or at such time as these regulations may become final)
that any previously completed biological opinions must be reevaluated
on this basis.
Basis for Term ``Conservation Value''
Our proposed definition of ``destruction or adverse modification''
of critical habitat is based on an understanding of the role that
habitat--which includes the physical or biological features required
for a species' life-history needs--generally plays for species. The
size of species' populations will fluctuate with, among other things,
the availability of the physical or biological features the species
finds in its habitat (for more detailed definitions of habitat and
reviews of the relationship between a species and its habitat, see
Gilpin and Soule 1986; Hall et al. 1997; MacArthur and Wilson 1967;
Odum 1971).
Our proposed definition is further shaped by the purpose of
designating critical habitat. Both for occupied and unoccupied habitat,
Congress focused on what habitat was essential to the ``conservation''
of listed species when designating critical habitat. As discussed
above, the courts have concluded that Congress intended that
``conservation and survival be two different (though complementary)
goals of the (Act).'' Gifford Pinchot at 1070. In light of
congressional intent that critical habitat be established for
conservation purposes, the courts concluded, and we agree, that the
purpose of establishing ``critical habitat'' is for the government to
designate habitat ``that is not only necessary for the species'
survival but also essential for the species' recovery.'' Id. From these
cases, it is clear that any definition of ``destruction or adverse
modification'' must reflect the purpose for which the critical habitat
was designated--the recovery of the species.
After reviewing the court cases discussed above, the Act's
definitions of ``conservation'' and ``critical habitat,'' and our
understanding of the role habitat plays for species' conservation, we
determined that ``conservation value'' embodies the intended recovery
role of critical habitat and, therefore, is relevant in a determination
as to whether an action is likely to destroy or adversely modify that
habitat. ``Conservation value,'' as used in the definition, then, is
the contribution the critical habitat provides, or has the ability to
provide, to the recovery of the species.
Determination of ``Conservation Value'' of Critical Habitat
Our determination of the conservation value of critical habitat for
a particular species will be based on our current understanding of the
life-history needs of that particular species, and how the features of
the critical habitat provide or have the ability to provide for those
life-history needs to continue the survival and promote the recovery of
that species. As a practical matter, to determine the conservation
value of critical habitat, we will need to consider several variables
for the entire critical habitat, including for the specific areas (or
units, as appropriate) designated. The variables include:
Life-history needs of the species being provided for by
critical habitat.
Current condition of the critical habitat, which requires
consideration of:
[cir] The quantity of features and habitat necessary to support the
life-history needs of the species for recovery.
[cir] The quality of features and habitat necessary to support the
life-history needs of the species for recovery.
[cir] The ability (or likelihood) for the critical habitat to
fulfill its role in the recovery of the species.
In conducting a section 7 analysis under the Act on the impacts of
an action on critical habitat, the Services will first consider the
information set out in the final rule designating the critical habitat.
In some cases, the final rules designating critical habitat contain
sufficient information to characterize the ``conservation value'' of
the critical habitat overall, and of any discrete areas that are
designated. In other cases, the available information may be quite
limited. With time, new information may become available and enable us
to refine our determination of the conservation value of the critical
habitat. For each section 7 consultation, we will rely upon the best
scientific and commercial data available to describe the life-history
needs of the species, and how the features or areas of the critical
habitat provide or have the ability to provide for those life-history
needs and the recovery of that species. In the future, an emphasis will
be placed on preparing final critical habitat rules that explicitly
describe the conservation value of critical habitat, both overall and
at the scale of individual specific areas designated, if applicable.
Our determination of conservation value is based not only on the
current status of the critical habitat but also, in cases where it is
degraded or depends on ongoing ecological processes, on the potential
for the habitat to provide further recovery support for conserving the
species. While occupied critical habitat would always contain at least
one or more of the physical or biological features that provide for
some life-history needs of the listed species, an area of critical
habitat may be in a degraded condition or less than optimal
successional stage and not contain all physical or biological features
at the time it is designated or those features may be present but in a
degraded or less than optimal condition. The area may have been
designated as critical habitat, however, because of the potential for
some of the features not already present or not yet fully functional to
be developed, restored, or improved and contribute to the species'
recovery. The condition of the critical habitat would be enhanced as
the physical or biological features important to the species life-
history needs are developed, restored, or improved and the area is able
to provide the recovery support for the species on which the
designation is based. The conservation value of critical habitat also
includes consideration of the likely capability, in the foreseeable
future, of the critical habitat to support the species' recovery given
the backdrop of past and present actions that may impede formation of
the optimal successional stage or otherwise degrade the critical
habitat. Therefore, an action that would preclude or significantly
delay the development or restoration of the physical or biological
features needed to achieve that capability, to an extent that it
appreciably diminishes the conservation value of critical habitat
relative to that which would occur without the action undergoing
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consultation, is likely to result in destruction or adverse
modification.
We note that habitat suitability for any particular species will
vary through time as a result of natural processes and, in a natural
system, these habitats would not be considered ``degraded.'' For
example, willow flycatchers generally nest in a specific age-class of
willows. In a dynamic riverine system this age-class of willows is
continually created and destroyed by periodic flooding, bank erosion,
and deposition. An area of riverine habitat would not be considered
``degraded'' during periods when the appropriate age-class of willows
is not present. However, as with ``degraded'' habitat, an action that
would preclude or significantly delay the development of those features
that support the life-history needs of the species--the appropriate
age-class of willows--is likely to result in destruction or adverse
modification of critical habitat if it occurs to an extent that it
appreciably diminishes the conservation value of critical habitat
relative to that which would occur without the action undergoing
consultation.
We are cognizant that section 7(a)(2) only applies to discretionary
agency actions. See 50 CFR 402.03. Further, while other parts of the
Act create certain responsibilities for all Federal agencies (such as
section 7(a)(1)), we recognize that section 7(a)(2) does not create an
affirmative duty for action agencies to recover listed species. The
consultation provision requires that agencies insure that any action
they authorize, fund, or carry out is ``not likely to jeopardize the
continued existence of any [listed] species or result in the
destruction or adverse modification of [critical habitat].'' 16 U.S.C.
1536(a)(2). This is a standard of prohibition rather than a mandate to
further recovery. Thus, the Ninth Circuit has made it clear that for an
action ``to jeopardize'' listed species, it has to cause ``some
deterioration in the species' pre-action condition.'' National Wildlife
Federation v. NMFS, 543 F.3d 917 (9th Cir. 2008).
We think the same is true for a finding of adverse modification (or
destruction) of critical habitat--that is, in order for an action to be
found to adversely modify critical habitat, it must in some way cause
the deterioration of the critical habitat's pre-action condition, which
includes its ability to provide recovery support to the species based
on ongoing ecological processes. For example, if one aspect of the
conservation value of the critical habitat is the capacity to develop
into a specific age-class of willows in a riverine system, an action
agency is not required under section 7(a)(2) to affirmatively assist
the transition of the habitat to that state. But, an adverse
modification may occur if the action agency takes an action that would
appreciably diminish the capacity of that habitat to complete that
transition relative to the conditions which would occur without the
action undergoing consultation. Conversely, if the proposed action does
not preclude or significantly delay the ability for that habitat to
develop through ecological processes into a specific age-class of
willows, then the habitat has not been adversely modified.
Determination of ``Appreciably Diminish''
Once the conservation value of the habitat is determined, then the
question becomes whether the effects of the action (as defined in Sec.
402.02) ``appreciably diminish'' that value of the critical habitat.
The preamble to the 1986 regulations provides no guidance regarding the
meaning of the words ``appreciably diminish.'' The Joint Consultation
Handbook (Services 1998), however, defines ``appreciably diminish the
value'' as ``to considerably reduce the capability of designated or
proposed critical habitat to satisfy the requirements essential to both
the survival and recovery of a listed species.''
We find this definition to be no longer valid in light of the
courts' rulings with regard to the regulatory definition of
``destruction or adverse modification.'' That is, that portion of the
definition that requires a reduction in the likelihood of ``both the
survival and recovery'' of listed species is no longer valid. Further,
we think the use of the term ``considerable'' to modify ``appreciably''
does not add any real value to help interpret what ``appreciably
diminish'' means with regard to the modification of critical habitat,
and may lead to disparate outcomes in consultations. For example, the
word ``considerable'' can mean ``large in amount or extent'' but it can
also mean ``worthy of consideration'' or ``significant.'' To further
complicate matters, ``significant'' can mean ``measurable.'' So, some
could interpret a ``considerable'' reduction to mean a massive
reduction in the value of critical habitat and others could interpret
it to mean a measurable reduction in the value of critical habitat. In
light of the range of results various interpretations of
``considerable'' could lead one to, we have set out below a more
detailed interpretation of the phrase ``appreciably diminish the
conservation value.''
A determination that an action's effects will ``appreciably
diminish'' the conservation value of critical habitat requires an
understanding of both the words ``diminish'' and ``appreciable'' and
how they relate to each other in the context of the definition. A
review of the definition of (and the synonyms for) ``diminish''
establishes that to diminish is to reduce, lessen, or weaken. As
applied to the definition of ``destruction or adverse modification,''
then, the inquiry is whether the relevant effects have reduced,
lessened, or weakened the conservation value of the critical habitat.
If so, then, the inquiry is whether that reduction or diminishment is
``appreciable'' to the conservation value of the critical habitat.
Appreciable is generally defined as ``noticeable'' or
``measurable.'' In this context, however, that definition is too
simplistic because, to determine a diminishment of the conservation
value--or a reduction, lessening, or weakening of that value--one would
have had to be able to notice or recognize the diminishment. Using this
unhelpful meaning, the inclusion of the term ``appreciably'' would not
add anything to the definition of ``destruction or adverse
modification.'' To determine the appropriate meaning of the term
``appreciably,'' we ultimately found it helpful to look at the
definition of ``appreciate,'' which means to ``recognize the quality,
significance, or magnitude'' or ``grasp the nature, worth, quality or
significance.'' This usage makes more sense to us in the actual
application of the phrase ``appreciably diminish.'' The relevant
question, then, becomes whether we can recognize the quality,
significance, or magnitude of the diminishment. In other words, is
there a diminishment to the value of the critical habitat that has some
relevance because we can recognize or grasp the quality, significance,
magnitude, or worth of the diminishment in a way that affects the
conservation value of the critical habitat.
It is important to understand that the determination of
``appreciably diminish'' will be based upon the effect to the
conservation value of the designated critical habitat. That is, the
question is whether the ``effects of the action'' will appreciably
diminish the conservation value of the critical habitat as a whole, not
just in the area where the action takes place. For example, an action
may have an adverse effect to a portion of critical habitat. The
question would be, then, whether the adverse effect in that one part of
the critical habitat will diminish the conservation value of the
critical habitat overall in such a manner that we can appreciate
[[Page 27064]]
the difference it will have to the recovery of the listed species.
Specifically, some factors to be considered will be: will recovery be
delayed, will recovery be more difficult, and will recovery be less
likely. At the appropriate time after rulemaking, the Services plan to
update guidance or handbook material to reflect any identified changes
to the ``appreciably diminish'' definition in the March 1998
Consultation Handbook. These considerations should be applied
cautiously so the Services do not apply a standard that is either too
sensitive in light of the particular circumstances, or not sensitive
enough. In a biological opinion, the Services provide an accurate
assessment of the status of critical habitat, (including threats and
trends), the environmental baseline (describing all past and present
impacts), and cumulative effects (i.e., future State or private
activities). The effects of any particular action are evaluated in the
context of the status, environmental baseline, and cumulative effects.
This avoids situations where each individual action is viewed as
causing only insignificant adverse effects but, over time, the
aggregate effects of these actions would erode the conservation value
of the critical habitat.
Finally, we note that the term ``appreciably'' also appears in the
regulatory definition of ``jeopardize the continued existence of,''
although in that definition it modifies ``to reduce.'' A similar
interpretation of ``appreciably'' should be applied to the definition
of ``jeopardize the continued existence of.'' In other words, is the
reduction one we can recognize or grasp the quality, significance,
magnitude, or worth of in a way that makes a difference to the likely
survival and recovery of the listed species?
The Relationship Between the Standards of Section 7 of the Act
The relationship between the ``jeopardize the continued existence
of'' standard and the ``destruction or adverse modification'' standard
reflects the ecological relationship between a species' population
dynamics and the physical or biological features a species needs to
grow and recover. To fulfill their responsibilities during interagency
consultation, the Services conduct separate analyses for the two
standards that are founded on this relationship. The difference between
the outcomes of the ``jeopardize the continued existence of'' and
``destruction or adverse modification'' analyses will depend on a
variety of factors. The results from applying the ``jeopardize the
continued existence of'' and ``destruction or adverse modification''
standards tend to converge and diverge depending on whether the area
designated as critical habitat currently encompasses the physical or
biological features that a species would need to be ``conserved,'' and
whether the species' reproduction, numbers, or distribution will be
affected. There is an inherent linkage, though, between a species and
its habitat, and that linkage means those alterations to a species'
habitat will in many cases cause alterations in the numbers,
reproduction, or distribution of the species.
The ``destruction or adverse modification'' standard focuses on how
Federal actions affect the quantity and quality of the physical or
biological features in the area that is designated as critical habitat
for a listed species and, especially in the case of unoccupied habitat,
on any impacts to the area itself. Specifically, as discussed above,
the Services should first evaluate Federal actions against the
``destruction or adverse modification'' definition standard by
considering how the action affects the quantity and quality of the
physical or biological features that determine the habitat's ability to
support recovery of a listed species. If the effects of an action
appreciably diminish the quantity and quality of those features to
support the conservation value of critical habitat, then the Services
generally conclude that the Federal action is likely to ``destroy or
adversely modify'' the designated critical habitat.
In addition, the Services may consider other kinds of impacts to
the designated areas. For example, some areas that are currently in a
degraded condition may have been designated as critical habitat for
their potential to develop or improve habitat and eventually provide
the needed ecological functions to support species' recovery. Under
these circumstances, the Services generally conclude that an action is
likely to ``destroy or adversely modify'' the designated critical
habitat if the action will alter the ecology of the habitat in ways
that prevent the habitat from improving over time relative to pre-
action condition. For example, by artificially maintaining an area of
critical habitat in a relatively late successional stage, to the
detriment of a species dependent upon periodic flooding or fire to
establish early successional stages.
Conversely, the ``jeopardize the continued existence of''
definition focuses on the effects of a Federal action on a listed
species' likelihood of continuing to survive and recover in the wild.
Specifically, the Services evaluate Federal actions against the
``jeopardize the continued existence of'' definition by considering how
the action affects a species' reproduction, numbers, or distribution.
If the effects of an action would likely reduce the species'
reproduction, numbers, or distribution in a manner or to a degree that
would appreciably reduce the species' likelihood of surviving and
recovering in the wild, the Services would conclude that the Federal
action is likely to ``jeopardize'' the species' continued existence.
The distribution and/or abundance of some species are not currently
limited by the quantity or quality of their habitat (for example,
population densities may be suppressed by other factors such as over-
exploitation, disease, or predators, and often persist well below
population sizes that could be supported by the available habitat). In
such circumstances where habitat modifications associated with a
Federal action are not expected to reduce the species' reproduction,
numbers, or distribution, the Services might conclude that a Federal
action ``adversely modified'' designated critical habitat, but they
would not conclude that the action ``jeopardized the continued
existence of'' the species (unless the modifications were dramatic).
Application of the two section 7 standards should produce different
outcomes whenever a proposed Federal action affects a portion of
designated critical habitat that will not result in an appreciable
reduction of the species' reproduction, numbers, or distribution (for
example, because the species exists as very small populations that do
not fully occupy the designated critical habitat).
Request for Information
We intend that a final regulation will consider information and
recommendations from all interested parties. We therefore solicit
comments, information, and recommendations from governmental agencies,
Native American tribes, the scientific community, industry groups,
environmental interest groups, and any other interested parties. All
comments and materials received by the date listed in DATES above will
be considered prior to the approval of a final document.
You may submit your information concerning this proposed rule by
one of the methods listed in ADDRESSES. If you submit information via
http://www.regulations.gov, your entire submission--including any
personal identifying information--will be posted on the Web site. If
your submission is
[[Page 27065]]
made via a hardcopy that includes personal identifying information, you
may request at the top of your document that we withhold this personal
identifying information from public review. However, we cannot
guarantee that we will be able to do so. We will post all hardcopy
submissions on http://www.regulations.gov.
Information and supporting documentation that we receive in
response to this proposed rule will be available for you to review at
http://www.regulations.gov, or by appointment, during normal business
hours, at the U.S. Fish and Wildlife Service, Division of Conservation
and Classification (see FOR FURTHER INFORMATION CONTACT).
We are particularly interested in comments concerning whether the
phrases ``conservation value'' and ``appreciably diminish'' are clear
and can be applied consistently across consultations and we invite the
public to suggest alternative phrases that might improve clarity and
consistency in implementing the ``destruction or adverse modification''
provisions of the section 7(a)(2) of the Act.
Required Determinations
Regulatory Planning and Review (E.O. 12866)
The Office of Management and Budget (OMB) has determined that this
proposed rule is a significant regulatory action and has reviewed this
proposed rule under Executive Order 12866 (E.O. 12866).
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
601 et seq.), whenever a Federal agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare, and make
available for public comment, a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies that the rule will not have a significant economic
impact on a substantial number of small entities. SBREFA requires
Federal agencies to provide a statement of the factual basis for
certifying that a rule will not have a significant economic impact on a
substantial number of small entities. We are certifying that this
regulation would not have a significant economic effect on a
substantial number of small entities. The following discussion explains
our rationale.
This rulemaking clarifies existing requirements for Federal
agencies under the Endangered Species Act. Federal agencies are the
only entities that are directly affected by this rule, and they are not
considered to be small entities under SBA's size standards. No other
entities are directly affected by this rule.
This proposed rule, if made final, would be applied in determining
whether a Federal agency has ensured, in consultation with the
Services, that any action it would authorize, fund, or carry out is not
likely to result in the destruction or adverse modification of critical
habitat. Based on procedures applied through existing agency (Guidance
[see ADDRESSES]), this proposed rule is substantially unlikely to
affect our determinations. The proposed rule would serve to provide
clarity to the standard with which we will evaluate agency actions
pursuant to section 7 of the Endangered Species Act.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(a) If adopted, this proposal will not ``significantly or
uniquely'' affect small governments. We have determined and certify
under the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that
this proposed rulemaking will not impose a cost of $100 million or more
in any given year on local or State governments or private entities. A
Small Government Agency Plan is not required. As explained above, small
governments would not be affected because the proposed regulation will
not place additional requirements on any city, county, or other local
municipalities.
(b) This rule will not produce a Federal mandate of $100 million or
greater in any year (i.e., it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act). This proposed
regulation would not impose any additional management or protection
requirements on the States or other entities.
Takings (E.O. 12630)
In accordance with Executive Order 12630, we have determined the
proposed rule does not have significant takings implications.
A takings implication assessment is not required because this rule
(1) will not effectively compel a property owner to suffer a physical
invasion of property and (2) will not deny all economically beneficial
or productive use of the land or aquatic resources. This rule would
substantially advance a legitimate government interest (conservation
and recovery of listed species) and would not present a barrier to all
reasonable and expected beneficial use of private property.
Federalism (E.O. 13132)
In accordance with Executive Order 13132, we have considered
whether this proposed rule would have significant Federalism effects
and have determined that a Federalism assessment is not required. This
proposed rule pertains only to determinations of Federal agency
compliance with section 7 of the Act, and would not have substantial
direct effects on the States, on the relationship between the Federal
Government and the States, or on the distribution of power and
responsibilities among the various levels of government.
Civil Justice Reform (E.O. 12988)
This proposed rule will not unduly burden the judicial system and
meets the applicable standards provided in sections 3(a) and 3(b)(2) of
Executive Order 12988. This proposed rule would clarify how the
Services will make determinations whether a Federal agency has ensured
that any action it would authorize, fund, or carry out is not likely to
result in the destruction or adverse modification of critical habitat.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of the Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. We cannot reasonably
predict the species or particular locations where we would designate
critical habitat in the future. Thus, we cannot predict whether tribal
lands would be affected by a proposal to designate critical habitat.
However, the Act requires that we give notice of and seek comment on
any proposal to designate critical habitat prior to a final decision.
Our proposed rules to designate critical habitat would indicate the
types of activities that may be affected by resulting regulatory
requirements of the Act. Any potentially affected federally recognized
Indian tribes would be notified of a proposed determination and given
the
[[Page 27066]]
opportunity to review and comment on the proposed rules.
Paperwork Reduction Act
This proposed rule does not contain any new collections of
information that require approval by the OMB under the Paperwork
Reduction Act. This proposed rule would not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act
We are analyzing these proposed regulations in accordance with the
criteria of the National Environmental Policy Act (NEPA), the
Department of the Interior regulations on Implementation of the
National Environmental Policy Act (43 CFR 46.10-46.450), the Department
of the Interior Manual (516 DM 1-6 and 8), and National Oceanographic
and Atmospheric Administration (NOAA) Administrative Order 216-6. Our
analysis includes evaluating whether the action is procedural,
administrative, or legal in nature, and therefore a categorical
exclusion applies. We invite the public to comment on whether, and if
so, how this proposed regulation may have a significant effect upon the
human environment, including any effects identified as extraordinary
circumstances at 43 CFR 46.215. We will complete our analysis, in
compliance with NEPA, before finalizing these proposed regulations.
Energy Supply, Distribution or Use (E.O. 13211)
Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. This proposed rule, if
made final, is not expected to affect energy supplies, distribution,
and use. Therefore, this action is not a significant energy action, and
no Statement of Energy Effects is required.
Clarity of This Policy
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule or policy we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the regulation, your comments should be as specific as possible.
For example, you should tell us the sections or paragraphs that are
unclearly written, which sections or sentences are too long, the
sections where you feel lists or tables would be useful, etc.
References Cited
A complete list of all references cited in this document is
available on the Internet at http://www.regulations.gov or upon request
from the U.S. Fish and Wildlife Service (see FOR FURTHER INFORMATION
CONTACT).
Authority
We are taking this action under the authority of the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).
List of Subjects in 50 CFR Part 402
Endangered and threatened species.
Proposed Regulation Promulgation
Accordingly, we propose to amend subpart A of part 402, subchapter
A of chapter IV, title 50 of the Code of Federal Regulations, as set
forth below:
PART 402--[AMENDED]
0
1. The authority citation for part 402 continues to read as follows:
Authority: 16 U.S.C. 1531 et seq.
0
2. In Sec. 402.02, revise the definition for ``Destruction or adverse
modification'' to read as follows:
Sec. 402.02 Definitions.
* * * * *
Destruction or adverse modification means a direct or indirect
alteration that appreciably diminishes the conservation value of
critical habitat for listed species. Such alterations may include, but
are not limited to, effects that preclude or significantly delay the
development of physical or biological features that support the life-
history needs of the species for recovery.
* * * * *
Dated: April 3, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks,
U.S. Department of the Interior.
Dated: April 4, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2014-10503 Filed 5-9-14; 8:45 am]
BILLING CODE 4310-55; 3510-22-P