[Federal Register Volume 83, Number 143 (Wednesday, July 25, 2018)]
[Proposed Rules]
[Pages 35178-35193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-15812]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 402
[Docket No. FWS-HQ-ES-2018-0009; FXES11140900000-189-FF09E300000;
Docket No. 180207140-8140-01; 4500090023]
RIN 1018-BC87; 0648-BH41
Endangered and Threatened Wildlife and Plants; Revision of
Regulations for Interagency Cooperation
AGENCY: U.S. Fish and Wildlife Service (FWS), Interior; National Marine
Fisheries Service (NMFS), National Oceanic and Atmospheric
Administration (NOAA), Commerce.
ACTION: Proposed rule.
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SUMMARY: We, FWS and NMFS (collectively referred to as the ``Services''
or ``we''), propose to amend portions of our regulations that implement
section 7 of the Endangered Species Act of 1973, as amended. The
Services are proposing these changes to improve and clarify the
interagency consultation processes and make them more efficient and
consistent.
DATES: We will accept comments from all interested parties until
September 24, 2018. 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:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-HQ-ES-2018-0009,
which is the docket number for this rulemaking. Then, in the Search
panel on the left side of the screen, under the Document Type heading,
click on the Proposed Rules link to locate this document. You may
submit a comment by clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-HQ-ES-2018-0009; U.S. Fish and Wildlife
Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803 or
National Marine Fisheries Service, Office of Protected Resources, 1315
East-West Highway, Silver Spring, MD 20910.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Request for Information below for more information).
FOR FURTHER INFORMATION CONTACT: Craig Aubrey, U.S. Fish and Wildlife
Service, Division of Environmental Review, 5275 Leesburg Pike, Falls
Church, VA 22041-3803, telephone 703/358-2442; or Cathy Tortorici, ESA
Interagency Cooperation Division, Office of Protected Resources, 1315
East-West Highway, Silver Spring, MD 20910, telephone 301/427-8495. If
you use a telecommunications device for the deaf (TDD), call the
Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
The purposes of the Endangered Species Act of 1973, as amended
(``ESA'' or ``Act''; 16 U.S.C. 1531 et seq.) are to provide a means to
conserve the ecosystems upon which listed species depend, to develop a
program for the conservation of listed species, and to achieve the
purposes of certain treaties and conventions. Moreover, the Act states
that it is the policy of Congress that the Federal Government will seek
to conserve threatened and endangered species, and use its authorities
in furtherance of the purposes of the Act.
The Secretaries of the Interior and Commerce share responsibilities
for implementing most of the provisions of the Act. Generally, marine
species are under the jurisdiction of the Secretary of Commerce, and
all other species are under the jurisdiction of the Secretary of the
Interior. Authority to administer the Act has been delegated by the
Secretary of the Interior to the Director of the U.S. Fish and Wildlife
Service (FWS) and by the Secretary of Commerce to the Assistant
Administrator for the National Marine Fisheries Service (NMFS).
References in this document to ``the Services'' mean FWS and NMFS.
There have been no comprehensive amendments to the Act since 1988,
and no comprehensive revisions to the implementing regulations since
1986. In the years since those changes took place, much has happened:
The Services have gained considerable experience in implementing the
Act, as have other Federal agencies, States, and property owners; there
have been numerous court decisions regarding almost every provision of
the Act and its implementing regulations; the Government Accountability
Office has completed reviews of the Act's implementation; there have
been many
[[Page 35179]]
scientific reviews, including review by the National Research Council;
multiple administrations have adopted various policy initiatives; and
non-governmental entities have issued reports and recommendations.
Title 50, part 402, of the Code of Federal Regulations establishes
the procedural regulations governing interagency cooperation under
section 7 of the Act, which requires Federal agencies, in consultation
with and with the assistance of the Secretaries of the Interior and
Commerce (the ``Secretaries''), to insure that any action authorized,
funded, or carried out by such agencies is 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. These proposed regulatory amendments are intended to address
the Services' collective experience of more than 40 years implementing
the Act and several court decisions.
In carrying out Executive Order 13777, ``Enforcing the Regulatory
Reform Agenda,'' the Department of the Interior (DOI) published a
document with the title ``Regulatory Reform'' in the Federal Register
of June 22, 2017 (82 FR 28429). The document requested public comment
on how DOI can improve implementation of regulatory reform initiatives
and policies and identify regulations for repeal, replacement, or
modification. This proposed rule addresses some of the comments that
DOI has received in response to the regulatory reform docket.
As part of implementing E.O. 13777, NOAA published a notice
entitled, ``Streamlining Regulatory Processes and Reducing Regulatory
Burden'' (82 FR 31576, July 7, 2017). The notice requested public
comments on how NOAA could continue to improve the efficiency and
effectiveness of current regulations and regulatory processes. This
proposed rule addresses some of the comments NOAA received from the
public.
This proposed rule is one of three related proposed rules that are
publishing in today's Federal Register. All of these documents propose
revisions to various regulations that implement the Act. Beyond the
specific revisions to the regulations highlighted in this proposed
rule, the Services are comprehensively reconsidering the processes and
interpretations of statutory language set out in part 402. Thus, this
rulemaking should be considered as applying to all of part 402, and as
part of the rulemaking initiated today, the Services will consider
whether additional modifications to the interagency cooperation
regulations would improve, clarify, or streamline the administration of
the Act. We seek public comments recommending, opposing, or providing
feedback on specific changes to any provisions in part 402 of the
regulations, including but not limited to revising or adopting as
regulations existing practices or policies, or interpreting terms or
phrases from the Act. Based on comments received and on our experience
in administering the Act, the final rule may include revisions to any
provisions in part 402 that are a logical outgrowth of this proposed
rule, consistent with the Administrative Procedure Act.
In proposing the specific changes to the regulations in this rule,
and setting out the accompanying clarifying discussion in this
preamble, the Services are proposing prospective standards only.
Nothing in these proposed revisions to the regulations is intended to
require that any previous consultations under section 7(a)(2) of the
Act be reevaluated on the basis of the final rule at such time that the
final rule becomes effective.
The Services anticipate that the proposed changes, if finalized,
will improve and clarify interagency consultation, and make it more
efficient and consistent, without compromising conservation of listed
species. Many of the changes should help reduce the costs of
consultation. For example, clarifying the definition of ``effects of
the action'' should decrease consultation timeframes (and costs) by
eliminating confusion regarding application of terms in the existing
definition, which has resulted in time being spent determining how to
categorize an effect, rather than simply determining what the effects
are regardless of category. As another example, codifying alternative
consultation methods and the ability to adopt portions of Federal
agencies' documents should reduce overall consultation times and costs.
Increased use of programmatic consultations will reduce the number of
single, project-by-project consultations, streamline the consultation
process, and increase predictability and consistency for action
agencies. Eliminating the need to reinitiate consultation in certain
situations will avoid impractical and disruptive burdens (and costs),
without compromising conservation of listed species. We seek comment on
(1) the extent to which the changes outlined in this proposed rule will
affect timeframes and resources needed to conduct consultation and (2)
anticipated cost savings resulting from the changes.
While not reflected in any proposed changes to our regulations at
this time, we also seek comment on the merit, authority, and means for
the Services to conduct a single consultation, resulting in a single
biological opinion, for Federal agency actions affecting species that
are under the jurisdiction of both FWS and NMFS.
Proposed Changes to 50 CFR Part 402
Section 402.02 Definitions
This section sets out definitions of terms that are used throughout
these proposed regulations. Some of these terms are further discussed
as they pertain to the consultation procedures in appropriate,
subsequent sections. Below we discuss those definitions that would be
revised or added by these proposed regulations.
Definition of Destruction or Adverse Modification
We propose to revise the definition of ``destruction or adverse
modification'' by adding the phrase ``as a whole'' to the first
sentence and removing the second sentence of the current definition.
The Act requires Federal agencies, in consultation with and with the
assistance of the Secretaries, 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. In 2016, we revised the definition,
in part in response to these court rulings. We now propose to further
clarify the definition, removing language that is redundant and has
caused confusion about the meaning of the regulation.
Background of the Definition of ``Destruction or Adverse Modification''
In 1978, the Services promulgated regulations governing interagency
cooperation under section 7 of the Act. (50 CFR part 402) (43 FR 870;
Jan. 4, 1978). 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
[[Page 35180]]
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) (51 FR 19926; June 3, 1986). The 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 or 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 the value of critical habitat for both survival
and recovery be appreciably 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 appreciably 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,
245 F.3d at 438. 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, 245 F.3d at 441. 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 Sierra Club, 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, 378 F.3d 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 Memorandum to Regional
Directors, ``Application of the `Destruction or Adverse Modification'
Standard under Section 7(a)(2) of the Endangered Species Act 2004''
(FWS 2004); NMFS Assistant Administrator William T. Hogarth Memorandum
to Regional Administrators, ``Application of the `Destruction or
Adverse Modification' Standard under Section 7(a)(2) of the Endangered
Species Act, 2005'' (NMFS 2005)). Specifically, in evaluating a
proposed 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 longer necessary.'' (16 U.S.C. 1532(3)) (i.e., the
species is recovered). See 50 CFR 424.02. Accordingly, after examining
the status of critical habitat, the environmental baseline, and the
effects of the proposed action, the Services began analyzing whether
the implementation of the proposed action, 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.'' See FWS 2004; NMFS 2005.
In 2016, we promulgated regulations to revise the regulatory
definition of ``destruction or adverse modification.'' We adopted the
following definition: ``Destruction or adverse modification means a
direct or indirect alteration that appreciably diminishes the value of
critical habitat for the conservation of a listed species. Such
alterations may include, but are not limited to, those that alter the
physical or biological features essential to the conservation of a
species or that preclude or significantly delay development of such
features.'' (81 FR 7214, February 11, 2016).
We explained in the 2016 rule that we did not intend for it to
alter the section 7(a)(2) consultation process from existing practice
and noted that previously completed biological opinions did not need to
be reevaluated in light of that rule. The 2016 definition, particularly
the first sentence, sought to clarify and preserve 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 as a whole for the conservation of threatened or endangered
species. The focus of the ``jeopardize the continued existence of''
definition, on the other hand, is whether a proposed action appreciably
reduces the likelihood of survival and recovery by reducing a species'
reproduction, numbers, and distribution.
The 2016 final rule's definition reflected several changes from
what the Services proposed in 2014. The changes to the first sentence
were relatively minor. In the 2014 proposed rule, the first sentence
read: ```Destruction or adverse modification' means a direct or
indirect alteration that appreciably diminishes the conservation value
of critical habitat for listed species.'' (79 FR 27060, 27066; May 12,
2014). In the final rule, we made a minor clarification of the first
sentence, by changing ``conservation value of critical habitat for
listed species'' to ``the value of critical habitat for the
conservation of a listed species.'' (81 FR at 7226, February 11, 2016).
Many commenters of the 2014 proposed rule expressed confusion or
concern regarding the scale at which the determination of destruction
or adverse modification of critical habitat is made. Some of these
commenters thought that the language, ``critical habitat, as a whole,''
should be included in the definition and not just the preamble. While
the Services declined to include the phrase ``as a whole'' in the 2016
final definition, we explained in the preamble that we make our
determination on the value of the critical habitat and its role in the
conservation of the species, and that the existing consultation process
already ensures that the determination is made at the appropriate
scale. We also explained that, while an action may result in adverse
effects to critical habitat within the action area, those effects may
not necessarily rise to the level of destruction or adverse
modification to the designated critical habitat. In adding the phrase
``as a whole'' to the proposed revised definition, we intend to clearly
indicate that the final destruction or adverse
[[Page 35181]]
modification determination is made at the scale of the entire critical
habitat designation. Smaller scales can be very important analysis
tools in determining how the impacts may translate to the entire
designated critical habitat, but the final determination is not made at
the action area, critical habitat unit, or other less extensive scale.
The analysis thus places an emphasis on the value of the designated
critical habitat as a whole for the conservation of a species, in light
of the role the action area serves with regard to the function of the
overall designation. Just as the determination of jeopardy under
section 7(a)(2) of the Act is made at the scale of the entire listed
entity, a determination of destruction or adverse modification is made
at the scale of the entire critical habitat designation. Even if a
particular project would cause adverse effects to a portion of critical
habitat, the Services must place those impacts in context of the
designation to determine if the overall value of the critical habitat
is likely to be reduced. This could occur where, for example, a smaller
affected area of habitat is particularly important in its ability to
support the conservation of a species (e.g., a primary breeding site).
Thus, the size or proportion of the affected area is not determinative;
impacts to a smaller area may in some cases result in a determination
of destruction or adverse modification, while impacts to a large
geographic area will not always result in such a finding. Therefore, we
are proposing to revise the first sentence of the definition by adding
the phrase ``as a whole'' to clarify the appropriate scale of the
destruction or adverse modification determination.
The second sentence proved more controversial. As proposed, the
second sentence of the definition read: ``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.'' (79 FR at 27066, May
12, 2014). Many commenters argued that the proposed second sentence
established a significant change in practice by appearing to focus the
definition on the preclusion or delay of the development of physical or
biological features, to the exclusion of the alteration of existing
features. A number of commenters believed these concepts were vague,
undefined, and allowed for arbitrary determinations. One commenter
asserted that focusing on effects that preclude or significantly delay
development of features was an expansion of authority that conflicted
with E.O. 13604 (Improving Performance of Federal Permitting and Review
of Infrastructure Projects).
In an attempt to clarify our intent, in finalizing the rule, we
revised the proposed second sentence to add reference to alterations
affecting the physical or biological features essential to the
conservation of a species, as well as those that preclude or
significantly delay development of such features: ``Such alterations
may include, but are not limited to, those that alter the physical or
biological features essential to the conservation of a species or that
preclude or significantly delay development of such features.'' (81 FR
at 7226, February 11, 2016).
The intended purpose of the language about precluding or delaying
``development of such features'' was to acknowledge ``that some
important physical or biological features may not be present or are
present in a sub-optimal quantity or quality. This could occur where,
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.''
(79 FR at 27061, May 12, 2014). Our intent was for such determinations
not to be based upon speculation.
However, the second sentence of the definition in the 2016 final
rule has continued to cause controversy among the public and many
stakeholders.
In this proposed rule, we seek to streamline and simplify the
definition of ``destruction or adverse modification'' by removing the
second sentence because the second sentence is unnecessary and has
caused confusion. The second sentence of the definition attempted to
elaborate upon meanings that are included within the first sentence,
without attempting to exhaust them (hence, the use of the phrase ``may
include, but are not limited to''). In all cases, the analysis of
destruction or adverse modification must address whether the proposed
action will result in an ``alteration that appreciably diminishes the
value of critical habitat as a whole for the conservation of a listed
species.''
Application of the Revised Definition
As with the 2016 rule, we do not intend our proposed change to
alter existing section 7(a)(2) consultation practice. The bar for
whether a proposed action is likely to result in destruction or adverse
modification of critical habitat is neither raised nor lowered by this
proposed rule, nor is the scope of analysis altered with respect to
evaluating the effects of a proposed action on critical habitat. This
proposed definition retains the key, operative first sentence of the
2016 regulation while adding the clarifying additional phrase of ``as a
whole'' (as discussed above). Further guidance on how to apply the
language in that sentence can be found in the 2016 rule.
It is not necessary, nor possible, for a concise regulatory
definition to list every way in which alterations may affect the value
of critical habitat for the conservation of a species. The value of
critical habitat for the conservation of a listed species is described
primarily through the critical habitat designation itself. That
designation, in accordance with the Act, will identify, in occupied
habitat, ``the specific areas within the geographical area occupied by
the species . . . on which are found those physical or biological
features (I) essential to the conservation of the species and (II)
which may require special management considerations or protection.''
(16 U.S.C. 1532(5)(a)(i)). Accordingly, the Act already makes clear
that, in occupied habitat, the value of critical habitat for the
conservation of the species is directly associated with designated
physical or biological features. Thus, destruction or adverse
modification determinations may be based on alterations that affect
such features, without needing to specify that fact in the regulatory
definition. The Act and regulations also already state that unoccupied
areas may be designated to the extent the Service determines they are
``essential for the conservation of the species.'' (16 U.S.C.
1532(5)(a)(ii)). Determining whether alterations in unoccupied critical
habitat may constitute destruction or adverse modification will
therefore need to consider the reasons for which the Service determined
that such unoccupied habitat is ``essential to the conservation of the
species.''
The Services have not changed their underlying view that it may be
necessary and consistent with the Act in some circumstances for the
destruction and adverse modification analysis to consider how
alterations to critical habitat could affect the ability of the habitat
to develop or support features essential to the conservation of the
species. For example, in some circumstances, recovery of the species
may depend upon retaining the ability of a designated area to maintain
or re-create the essential features, for instance through ecological
succession, fluvial processes, active management, or other dynamic
processes. This is a longstanding interpretation and agency practice,
as reflected in the 2016 rule and in the 2004 and 2005 FWS and NMFS
guidance documents regarding
[[Page 35182]]
application of the destruction or adverse modification standard. This
longstanding interpretation has never been meant to assert authority
beyond that provided by the Act, nor to allow the Services to designate
critical habitat or make adverse modification findings based merely on
speculation or desire about future changes to the critical habitat. As
required by the Act, such determinations must rely on the best
scientific and commercial data available. (16 U.S.C. 1536(a)(2)).
In the proposed definition, ``appreciably diminish'' remains a key
concept. This phrase has been part of the regulatory definition of
``destruction or adverse modification'' since 1978, and neither it nor
its interpretation would be altered by this proposed rule. As we noted
in the 2016 rule, with respect to ``diminish,'' the inquiry begins with
whether the relevant effects will reduce, lessen, or weaken the value
of the critical habitat for the conservation of the species. If so,
then the inquiry is whether that reduction or diminishment will be
``appreciable'' to the value of the critical habitat for the
conservation of the species.
As we also noted in 2016, the determination of ``appreciably
diminish'' is made based upon the proposed action's effect on the value
of the entire critical habitat to the conservation of the species. That
is, the question is whether the ``effects of the action'' will
appreciably diminish the value of the critical habitat as a whole to
the conservation of the species, not just in the area where the
proposed action takes place. In this respect, ``appreciably diminish''
is analogous to ``appreciably reduce'' in the context of determining
whether an action will ``jeopardize the continued existence'' of a
species, since that inquiry is similarly not merely addressing the
effects within the action area, but rather is concerned with whether
the effects ``appreciably reduce'' the likelihood of survival and
recovery of the listed entity, the species.
The 2016 rule discussed the reasons we concluded, and here continue
to conclude, that the phrase ``appreciably diminish'' does not need to
be modified. As we noted in 2016, the Services' joint Consultation
Handbook (FWS and NMFS, March 1998) uses the word ``considerably'' to
interpret this phrase. In the 2016 rule, we clarified that the phrase
``appreciably diminish,'' like the Consultation Handbook's term
``considerably,'' means `` `worthy of consideration' and is another way
of stating that we can recognize or grasp the quality, significance,
magnitude, or worth of the reduction in the value of critical
habitat.'' (81 FR 7218, February 11, 2016).
We also explained in 2016 that it is not correct to conclude that
every diminishment, however small, should constitute destruction or
adverse modification. It was necessary to qualify the word ``diminish''
to exclude those adverse effects on critical habitat that are so minor
in nature that they do not appreciably impact the value of designated
critical habitat to the conservation of a listed species.
We also note that the word ``appreciably'' is used in both the
Services' definition of ``jeopardize the continued existence of''
(``appreciably reduce'') and ``destruction or adverse modification''
(``appreciably diminish''). The meaning of the word ``appreciably'' is
similar in either context. In both contexts, it is appropriate for the
Services to consider the biological significance of effects when
conducting a section 7(a)(2) consultation. As required by the ESA, we
conduct formal consultation, and evaluate in detail the potential for
destruction or adverse modification of critical habitat (and/or whether
a proposed action is likely to jeopardize the continued existence of a
species) whenever there are likely to be adverse effects to critical
habitat or a listed species. In each of these analyses, we must
evaluate, based on the totality of the circumstances and the best
available scientific information, the nature and magnitude of the
proposed action's effects, to determine whether such effects of the
proposed action are consequential enough to rise to the level of
``appreciably diminish'' or ``appreciably reduce.'' See, e.g., Oceana,
Inc. v. Pritzker, 75 F. Supp. 3d 469, 483 (D.D.C. 2014) (discussing and
affirming a jeopardy analysis that considered whether a given reduction
was ``meaningful from a biological perspective''). Reductions in the
reproduction, numbers, or distribution of a species that are
inconsequential at the species level, or alterations to the features or
the extent of designated critical habitat that constitute only an
inconsequential impact on the conservation value of designated critical
habitat as a whole, would not be considered to rise to the level of
``reduce appreciably'' or ``appreciably diminish'' within the meaning
of the regulations. Nor do we interpret section 7(a)(2) and the
regulations thereunder to require that each proposed action improve or
increase the likelihood of survival and recovery of the species, or
improve the conservation value of critical habitat. Section 7(a)(2)
focuses on the ``continued existence'' of the species and the
``adverse'' modification of critical habitat.
It should also be noted that the analysis must always consider
whether such impacts are ``appreciable,'' even where a species already
faces severe threats prior to the action. It is sometimes mistakenly
asserted that a species may already be in a status of being ``in
jeopardy,'' ``in peril,'' or ``jeopardized'' by baseline conditions,
such that any additional adverse impacts must be found to meet the
regulatory standards for ``jeopardize the continued existence of'' or
``destruction or adverse modification.'' See, e.g., Nat'l Wildlife
Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917, 930 (9th Cir.
2008) (asserting that ``where baseline conditions already jeopardize a
species, an agency may not take action that deepens the jeopardy by
causing additional harm''); Turtle Island Restoration Network v. United
States Dep't of Commerce, 878 F.3d 725, 735 (9th Cir. 2017) (``Where a
species is already in peril, an agency may not take an action that will
cause an `active change of status' for the worse.'') (quoting Nat'l
Wildlife Fed'n, 524 F.3d at 930). That approach is inconsistent with
the statute and our regulations.
The terms ``jeopardize the continued existence of'' and
``destruction or adverse modification'' are, in the plain language of
section 7(a)(2), determinations that are made about the effects of
Federal agency actions. They are not determinations made about the
environmental baseline or about the pre-action condition of the
species. Under the ESA, a listed species will have the status of
``threatened'' or ``endangered,'' and all threatened and endangered
species by definition face threats to their continued existence. See 16
U.S.C. Sec. Sec. 1532(6), (20), 1533(a). But the ESA and our
regulations do not use the terms ``in jeopardy,'' ``in peril,'' or
``jeopardized'' to describe the environmental baseline or the pre-
action condition of a species; nor do the terms ``appreciably reduce''
or ``appreciably diminish'' have a different meaning where a species
already faces very serious threats. In each biological opinion, the
determination regarding destruction or adverse modification is made by
evaluating the effects of the proposed action on the species in light
of the overall status of the species, the baseline conditions within
the action area and any cumulative effects occurring within the action
area. While we acknowledge that for a species with a particularly dire
status, a smaller impact could cause an alteration that appreciably
diminishes the conservation value of critical habitat or appreciably
[[Page 35183]]
reduces the likelihood of survival and recovery of the species, there
is no ``baseline jeopardy'' status even for the most imperiled species.
A related question that has arisen is whether the Services are
required to identify a ``tipping point'' beyond which the species
cannot recover in making section 7(a)(2) determinations. For example,
the Ninth Circuit Court of Appeals has said that ``when a proposed
action will have significant negative effects on the species'
population or habitat, the duty to consider the recovery of the species
necessarily includes the calculation of the species' approximate
tipping point.'' Oceana, Inc. v. Nat'l Marine Fisheries Serv., 705 F.
App'x 577, 580 (9th Cir. 2017) (citing Nat'l Wildlife Fed'n v. Nat'l
Marine Fisheries Serv., 524 F.3d 917 (9th Cir. 2008)); see also Wild
Fish Conservancy v. Salazar, 628 F.3d 513, 527 (9th Cir. 2010)
(overturning jeopardy analysis based on purported NMFS failure to
determine ``when the tipping point precluding recovery . . . is likely
to be reached''). Neither the Act nor our regulations state any
requirement for the Services to identify a ``tipping point'' as a
necessary prerequisite for making section 7(a)(2) determinations.
Section 7(a)(2) provides the Services with discretion as to how it will
determine whether the statutory prohibition is exceeded. We have not
interpreted that statutory language as requiring the identification of
a tipping point. This interpretation is further supported by the fact
that the state of science often does not allow the Services to identify
a ``tipping point'' for many species. The Services have had success in
the recovery of several listed species which, despite very low
abundance, did not reach a ``tipping point.''
Definition of Director
We propose to amend the current definition of ``Director'' to
clarify and simplify it, in accordance with the Act and agency practice
of FWS and NMFS.
Definition of Effects of the Action
We propose to revise the definition of ``effects of the action'' in
a manner that simplifies the definition. Confusion regarding
application of terms has resulted in time being spent determining how
to categorize an effect, rather than simply determining what the
effects are regardless of category. By providing a simpler definition
that applies to the entire range of potential effects, Federal agencies
and the Services will be able to focus on better assessing the effects
of the proposed action. In addition, we propose to make the definition
of environmental baseline a stand-alone definition within Sec. 402.02.
Previously, this definition was articulated within the definition of
effects of the proposed action. Finally, we have moved the instruction
that the effects of the proposed action shall be added to the
environmental baseline into the regulations guiding the Services'
responsibilities in formal consultation in Sec. 402.14(g).
A few aspects of the revised definition of effects of the action
bear further discussion to understand our intent in the proposed
revision. We collapsed the various concepts of direct and indirect
effects, and the effects of interrelated and interdependent actions,
into the new definition that the effects of the action include all
effects caused by the proposed action. The revised definition notes
that these effects include ``the effects of other activities that are
caused by the proposed action.'' It includes a distinction between the
word ``action'' which refers to the action proposed to be authorized,
funded, or carried out, in whole or in part, by the Federal agency and
brought in for consultation with the Services, and ``activity'' or
``activities,'' which refer to those activities that are caused by the
proposed action but are not included in the proposed action. Under the
current definition, these activities would have been considered under
either ``indirect effects'' or ``interrelated'' or ``interdependent''
activities. An effect or activity is caused by the proposed action when
two tests are satisfied: First, the effect or activity would not occur
but for the proposed action, and second, the effect or activity is
reasonably certain to occur.
Under the first of these two tests, if an effect or activity would
occur regardless of whether the proposed action goes forward, then that
effect or activity would not satisfy the ``but for'' test and would not
be considered an effect of the action. The concepts of interrelated and
interdependent actions in the existing regulations are now captured by
the concept of effects of activities that are caused by the proposed
action, but are not part of that proposed action. It has long been our
practice that identification of direct and indirect effects as well as
interrelated and interdependent activities is governed by the ``but
for'' standard of causation. Our Consultation Handbook states . . .''In
determining whether the proposed action is reasonably likely to be the
direct or indirect cause of incidental take, the Services use the
simple causation principle: i.e., ``but for'' the implementation of the
proposed action. . . .'' (Consultation Handbook, page 4-47). A number
of courts have also adopted that position. Sierra Club v. Bureau of
Land Management, 786 F.3d 1219, 1225 (9th Cir. 2015) (``The test for
interrelatedness or interdependentness is `but for' causation'') citing
Sierra Club v. Marsh, 816 F.2d 1376, 1387 (9th Cir. 1987). This
standard, while applicable to analyzing the effects of the action under
section 7(a)(2), is not necessarily appropriate for other provisions of
the ESA; we therefore do not address in this rulemaking the causation
standards applying to other provisions of the Act, such as whether a
violation of section 9(a)(1)(B) (the take prohibition) has resulted for
purposes of a civil penalty or a criminal violation under the Act.
The second of the two tests speaks to the certainty of whether the
effect or activity will occur. The concept of reasonable certainty
already exists in our section 7 regulations and currently is explicitly
applied in the context of indirect effects, cumulative effects, and
incidental take. We propose to increase consistency and avoid confusion
and speculation by explicitly applying the concept to all effects of
the proposed action (not just indirect) and also to those other
activities previously identified as interrelated and interdependent.
This concept applies equally to evaluating the beneficial effects of a
proposed action (e.g., effects of any components proposed by the
Federal agency to avoid, minimize, or offset the effects of the agency
action, for example) and adverse effects of the proposed action. Our
proposed revision applies the reasonably-certain-to-occur standard to
the section 7 process in a consistent manner but does not change past
practice on the evaluation of direct and indirect effects of actions.
In practice, the Services have evaluated the direct effects of the
action using the best available scientific and commercial information
about the likelihood of an effect or activity and not on speculation
about what effects might occur. As a result, we do not anticipate the
revised language will change what types of effects or activities will
be considered within our consultations; rather, we expect it to
simplify and improve consistency in our effects analyses. For example,
our prior discussion in our 2015 rulemaking adopting revisions to the
incidental take statement portions of our section 7 regulations is
instructive in this regard:
As a practical matter, application of the ``reasonable
certainty'' standard is done in the following sequential manner in
light of the best available scientific and commercial data to
determine if incidental take is anticipated: (1) A determination is
made regarding whether a listed species is present within the area
affected by the proposed
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Federal action; (2) if so, then a determination is made regarding
whether the listed species would be exposed to stressors caused by
the proposed action (e.g., noise, light, ground disturbance); and
(3) if so, a determination is made regarding whether the listed
species' biological response to that exposure corresponds to the
statutory and regulatory definitions of take (i.e., kill, wound,
capture, harm, etc.). Applied in this way, the ``reasonable
certainty'' standard does not require a guarantee that a take will
result, rather, only that the Services establish a rational basis
for a finding of take. While relying on the best available
scientific and commercial data, the Services will necessarily apply
their professional judgment in reaching these determinations and
resolving uncertainties or information gaps. Application of the
Services' judgment in this manner is consistent with the
``reasonable certainty'' standard. (80 FR 26832, 26837; May 15,
2015).
The preamble to the 1986 regulation implementing section 7 also
discusses the Services' interpretation of the phrase ``reasonably
certain to occur.'' (51 FR 19926, 19932-19933; June 3, 1986--``For
State and private actions to be considered in the cumulative effects
analysis, there must exist more than a mere possibility that the action
may proceed. On the other hand, ``reasonably certain to occur'' does
not mean that there is a guarantee that an action will occur.'')
It is important to note that both prongs of the causation standard
must be met for the activity in question and the effects from that
activity. So, for example, if an activity is not reasonably certain to
occur, then the causation standard has not been met and neither the
activity nor any effects from that activity are considered an effect of
the proposed action.
In addition, for activities that are caused by the proposed action,
we have established at Sec. 402.17 a standard and set of factors to
consider in determining whether activities are reasonably certain to
occur. We believe that the combination of requiring that an effect be
both ``but for'' and ``reasonably certain to occur'' will reasonably
define the reach of the effects analysis and address concerns about
extending the analysis into an unreasonably wide arena. Finally, the
proposed provision includes a reminder that the effects of the action
may occur throughout the action area and on an ongoing, or even
delayed, timeframe after completion of the action that was the subject
of consultation. Thus, under the proposed rule, there would no longer
be a need for a separate definition of ``indirect effects,'' since the
intent of the new definition is that the effects covered by that term
are still included. And similarly, the new definition should not, in
practice, change the determination or scope of the ``action area'' in a
consultation.
As stated previously, the Services' intent is to simplify and
clarify the definition of effects of the action, without altering the
scope of what constitutes an effect. We seek comment on (1) the extent
to which the proposed revised definition simplifies and clarifies the
definition of ``effects of the action''; (2) whether the proposed
definition alters the scope of effects considered by the Services; (3)
the extent to which the scope of the proposed revised definition is
appropriate for the purposes of the Act; and (4) how the proposed
revised definition may be improved.
Definition of Environmental Baseline
We are proposing a stand-alone definition for ``environmental
baseline'' as referenced in the discussion above in the proposed
revised definition for ``effects of the action.'' The definition for
environmental baseline retains its current wording. Moving it to a
stand-alone definition clarifies that the environmental baseline is a
separate consideration that sets the stage for analyzing the effects of
the proposed action on the listed species and critical habitat within
the action area by providing the foundation upon which to build the
analysis of the effects of the action under consultation. The
environmental baseline does not include the effects of the action under
review in the consultation (See Consultation Handbook, at 4-22).
The Services are seeking public comment on potential revisions to
the definition of ``environmental baseline'' as it relates to ongoing
Federal actions. It has sometimes been challenging for the Services and
Federal agencies to determine the appropriate baseline for those
consultations involving ongoing agency actions. The complexities
presented in these consultations include issues such as: What
constitutes an ``ongoing'' action; if an ongoing action is changed, is
the incremental change in the ongoing action the only focus of the
consultation or is the entire action or some other subset reviewed; is
the effects analysis different if the ongoing action has never been the
subject of consultation as compared to if there is a current biological
opinion for the ongoing action; if a change is made to an ongoing
action that lessens, but does not eliminate, the harmful impact to
listed species or critical habitat, is that by definition a
``beneficial action''; and can a ``beneficial action'' ever jeopardize
listed species or destroy or adversely modify critical habitat.
Further, the Services request comments as to whether the following
language would address these issues: ``Environmental baseline is the
state of the world absent the action under review and includes the
past, present and ongoing impacts of all past and ongoing Federal,
State, or private actions and other human activities in the action
area, the anticipated impacts of all proposed Federal projects in the
action area that have already undergone formal or early section 7
consultation, and the impact of State or private actions in the action
area which are contemporaneous with the consultation in process.
Ongoing means impacts or actions that would continue in the absence of
the action under review.''
As indicated above, we propose to move the instruction that the
effects of the action shall be added to the environmental baseline from
the definition of ``effects of the action'' into Sec. 402.14(g) to
retain this important step of the analytical process.
Definition of Programmatic Consultation
We propose to add a definition of ``programmatic consultation.''
This term is included in revised Sec. 402.14(c)(4) to codify an
optional consultation technique that is being used with increasing
frequency and to promote the use of programmatic consultations as
effective tools that can improve both process efficiency and
conservation in consultations. Programmatic consultations can be
completed under informal and formal consultation processes. They can be
used to evaluate the effects of multiple actions anticipated within a
particular geographic area; or to evaluate Federal agency programs that
guide implementation of the agency's future actions by establishing
standards, guidelines, or governing criteria to which future actions
will adhere. By consulting on the program, plan, policy, regulation,
series, or suites of activities as a whole, the Services can reduce the
number of single, project-by-project consultations, streamline the
consultation process, and increase predictability and consistency for
action agencies. In addition, by looking across numerous individual
actions at the programmatic level, the Federal action agencies and
applicants can propose project design criteria, best management
practices, standard operating procedures, and/or standards and
guidelines that avoid, minimize, or offset the action's effects on
listed species and/or designated critical habitat. Federal agencies and
applicants often propose measures to avoid, minimize, and/or offset
effects to listed
[[Page 35185]]
species and/or designated critical habitat as part of their proposed
action when they consult with the Services. The Services consider these
measures as part of the proposed action when they evaluate the effects
of the proposed action.
Types of Programmatic Consultations
1. Programmatic consultations that address multiple similar,
frequently occurring, or routine actions expected to be implemented in
particular geographic areas. These are generally categories of actions
for which there is a good understanding of the likely effects on
resources listed under the Act, although the categories encompass
future site-specific actions of which the precise details are not yet
known. Many, but not all, of these types of programmatic consultations
have been referred to as ``batched'' consultations in the past. They do
not rely on, or specifically incorporate by reference, consultations on
a higher level of Federal action or plan. Examples of these types of
programmatic consultations would be consultations that involve a
variety of routine activities such as a regional road maintenance
program by State departments of transportation, or a U.S. Army Corps of
Engineers general permitting program at the regional level that covers
routine construction activities for in-and-over-water structures.
2. Programmatic consultations that address a proposed program,
plan, policy, or regulation providing a framework for future actions.
These programmatic consultations cover programs, plans, governing
policies, and/or regulations such as a national or regional program,
plan, policy, or regulation, where the Federal agency is generally not
able to provide detailed specificity about the number, location,
timing, frequency, precise methods and intensity of the activities
expected to be implemented, or to determine the site-specific adverse
effects the activities will have on listed species or critical habitat.
In these cases, the Service conducts a more generalized review of
effects and provides the appropriate section 7(a)(2) determination in a
letter of concurrence or biological opinion for the programmatic
consultation. In the future, when the site-specific information is
known, and it is determined the project ``may affect'' a listed species
or critical habitat, typically a subsequent consultation is completed.
That subsequent consultation may, not exclusively, be referred to as a
``step-down'' or ``tiered consultation.'' The subsequent consultation
commonly incorporates by reference portions of the previous
consultation on the program, plan, policy, or regulations. A typical
example of this type of programmatic action is a land management plan.
A land management agency may have a program addressing issuance of a
special use permit for various activities. The program, as a part of
land management planning, has certain standards and guidelines to which
each subsequent program action must adhere. A consultation on the
program would examine generally what types of effects would be caused
by the program and whether those effects were consistent with section
7(a)(2) of the Act. In the future, as issuance of specific permits are
anticipated, the Federal agency will return to the Service later for
consultation, and an additional consultation would take place on the
site-specific facts of that permit issuance. However, the subsequent or
``step-down'' or ``tiered'' consultation would benefit from the initial
program-level consultation, thus streamlining and reducing the amount
of analysis needed for each site-specific consultation.
The Services recently promulgated changes to the section 7(a)(2)
implementing regulations that define framework and mixed programmatic
actions that address certain types of policies, plans, regulations, and
programs (80 FR 26832, May 11, 2015). The types of programmatic
consultations described above align with the suite of activities
described in the 2015 rule.
The Services encourage Federal agencies to coordinate with us in
order to determine what programmatic approach would be applicable and
streamline the consultation process for their program or suite of
actions.
Section 402.03--Applicability
In order to increase efficiency in implementing section 7(a)(2)
consultations and capitalize upon the considerable experience the
Services have gained in implementing the Act, the Services seek comment
on the advisability of clarifying the circumstances upon which Federal
agencies are not required to consult. More specifically, the Services
seek comment regarding revising Sec. 402.03 to preclude the need to
consult when the Federal agency does not anticipate take and the
proposed action will: (1) Not affect listed species or critical
habitat; or (2) have effects that are manifested through global
processes and (i) cannot be reliably predicted or measured at the scale
of a listed species' current range, or (ii) would result at most in an
extremely small and insignificant impact on a listed species or
critical habitat, or (iii) are such that the potential risk of harm to
a listed species or critical habitat is remote, or (3) result in
effects to listed species or critical habitat that are either wholly
beneficial or are not capable of being measured or detected in a manner
that permits meaningful evaluation. The Services have learned through
time that such actions are far removed from any potential for jeopardy
or destruction or adverse modification of critical habitat, and that
consultation on these actions does little to accomplish the intent of
section 7(a)(2) of the Act--to ensure that any action authorized,
funded, or carried out by a Federal agency is not likely to jeopardize
the continued existence of listed species or result in the destruction
or adverse modification of critical habitat.
In prior consultations under section 7(a)(2), agencies with
regulatory authority have consulted on actions that include effects to
listed species or designated critical habitat that occur outside of the
specific area over which they have regulatory jurisdiction. We also
seek comment on whether the scope of a consultation under section
7(a)(2) should be limited to only the activities, areas, and effects
within the jurisdictional control and responsibility of the regulatory
agency.
Section 402.13--Deadline for Informal Consultation
Informal consultation is an optional process that includes all
discussions, correspondence, etc., between the Service and the Federal
agency to assist the Federal agency in determining whether formal
consultation or a conference is required. During informal consultation,
the Service may suggest modifications to the action that the Federal
agency and any applicant could implement to avoid the likelihood of
adverse effects to listed species or critical habitat. Finally, the
Services may issue a written concurrence with a Federal agency's
determination that the action is not likely to adversely affect the
listed species or critical habitat.
There is currently no deadline for the Services to complete an
informal consultation, unlike formal consultations, which by regulation
should be completed within 90 days unless extended under the terms at
Sec. 402.14(e). The Service's goal is to either complete the Letter of
Concurrence for the project, or request additional information that is
necessary to complete the consultation, within 30 days. NMFS completes
approximately
[[Page 35186]]
1,200-1,500 individual informal consultations per year. Of the informal
actions not under a programmatic Biological Opinion, 36 percent are
within their 30-day goal, and 61 percent are within 3 months. NMFS
currently has about 46 individual informal consultations that have been
open for greater than 200 days as of July 31, 2017, that the agency is
actively working to complete as soon as possible. Between fiscal years
2011 and 2017, FWS completed an average of 11,344 (ranging from 9,656
to 12,793) informal consultations per year. During those years, FWS
completed between 78 percent and 85 percent of the informal
consultations in less than 30 days, averaging between 26 and 39 days to
complete informal consultation.
The Services are considering whether to add a 60-day deadline,
subject to extension by mutual consent, for informal consultations. We
seek comment on (1) whether a deadline would be helpful in improving
the timeliness of review; (2) the appropriate length for a deadline (if
not 60 days); and (3) how to appropriately implement a deadline (e.g.,
which portions of informal consultation the deadline should apply to
[e.g., technical assistance, response to requests for concurrence,
etc.], when informal consultation begins, and the ability to extend or
``pause the clock'' in certain circumstances, etc.).
Section 402.14--Formal Consultation
Consistent with the Services' existing practice, we propose to
revise Sec. 402.14(c) to clarify what is necessary to initiate formal
consultation. Decades of experience have demonstrated valuable time is
lost due to lack of clarity in what information the Services need to
initiate consultation. This often results in an ongoing exchange of
documents (e.g., biological assessments, biological evaluations,
National Environmental Policy Act (NEPA) documents) in which the
Federal agencies and Services seek to compile the necessary
information, which results in significant inefficiencies and
frustrations on the part of both the Federal agencies and the Services.
The proposed revision is intended to eliminate the confusion and
misunderstanding existing in the current regulations and significantly
increase the efficiency of the process for both the Federal agencies
and the Services. It is important to note the Services are not
proposing to require more information than existing practice; instead,
we are proposing to clarify in the regulations what is needed to
initiate consultation in order to improve the consultation process.
The proposed revisions to Sec. 402.14(c) would further describe
the information from the Federal agency necessary to initiate
consultation. This set of information is commonly called the
``initiation package,'' and that term is also used in our proposed
regulations for alternative formal consultation procedures to refer to
the information required in Sec. 402.14(c). Consistent with Sec.
402.06 (Coordination with other environmental reviews), we also propose
at Sec. 402.14(c) to allow the Services to consider other documents as
initiation packages, such as: a document prepared for the sole purpose
of providing the Service with information relevant to an agency's
consultation, a document that has been prepared under NEPA or other
authority that contains the necessary information to initiate
consultation, or other such documents (e.g., grant application, State
of Washington Joint Aquatic Resources Permit Application, California
Environmental Quality Act Environmental Impact Report, etc.) that meet
the requirements for initiating consultation.
When such documents consider two or more alternative actions, the
request for consultation must describe the specific alternative or
action proposed for consultation and the specific locations in the
document where the relevant information is found. The Services evaluate
only the Federal agency's proposed alternative during the consultation
process. If the Federal agency either adopts another alternative as its
final agency action, or substantively modifies the proposed
alternative, reinitiation of consultation may be required.
The proposed regulations describe categories of information that
should be in an initiation package to initiate formal consultation.
Information must be provided in a sufficient level of detail consistent
with the nature and scope of the proposed action. Consistent with the
Service's existing practice, the requirement to include sufficient
detail ensures the Service has enough information to understand the
action as proposed and conduct an informed analysis of the effects of
the action, including with regard to those measures intended to avoid,
minimize, or offset effects. See Consultation Handbook, at B-54
(Description of the proposed action should be ``detailed enough so that
the reviewer can fully understand what the components of the action
include and how the project will affect the species.'') Such
information should include a description of the proposed action,
including any measures intended to avoid, minimize, or offset the
effects of the proposed action, a description of the area affected (the
action area), information about species or critical habitat in the
action area, a description of potential effects of the proposed action
on individuals of any listed species or critical habitat, a description
of the cumulative effects, a summary of information from the applicant,
if any, and any other relevant information.
Service Responsibilities
We propose to revise portions of Sec. 402.14(g) that describe the
Services' responsibilities during formal consultation. We propose to
clarify the analytical steps the Services undertake in formulating a
biological opinion. These changes are intended to better reflect the
Services' approach to analyzing jeopardy and adverse modification as
well as address revisions to the definition of ``effects of the
action.'' In summary, these analytical steps are: (1) Review all
relevant information, (2) evaluate current status of the species and
critical habitat and environmental baseline, (3) evaluate effects of
the proposed action and cumulative effects, (4) add effects of the
action and cumulative effects to the environmental baseline, and, in
light of the status of the species and critical habitat, determine if
the proposed action is likely to jeopardize listed species or result in
the destruction or adverse modification of critical habitat. While we
identify distinct steps in our analytical approach, each step is
related to the others and necessarily informs and influences our
analysis. For example, the condition of the environmental baseline is
relevant to the nature and extent of the effects of the action. Effects
of the action that in isolation would be of minor consequence may be
amplified and of greater consequence when analyzed in light of the
condition of the environmental baseline.
In Sec. 402.14(g)(2), we propose to move from the current
definition of ``effects of the action'' the instruction that the
effects of the action shall be added to the environmental baseline to
where this provision more logically fits with the rest of the
analytical process, and we retain this important step of that process.
In Sec. 402.14(g)(4), we propose revisions to better reflect the
manner in which the Services integrate and synthesize their analyses of
effects of the action with cumulative effects, the environmental
baseline, and status of the species and critical habitat to reach our
jeopardy and adverse modification
[[Page 35187]]
determinations. Again, this proposed change reflects the Service's
existing approach. See Consultation Handbook, at 4-33 (``The conclusion
section presents the Services' opinion regarding whether the aggregate
effects of the factors analyzed under ``environmental baseline,''
``effects of the action,'' and ``cumulative effects'' in the action
area--when viewed against the status of the species or critical habitat
as listed or designated--are likely to jeopardize the continued
existence of the species or result in destruction or adverse
modification of critical habitat.'')
We propose clarifications to Sec. 402.14(g)(8) regarding whether
and how the Service should consider measures included in a proposed
action that are intended to avoid, minimize, or offset adverse effects
to listed species or critical habitat. Federal agencies often include
these types of measures as part of the proposed action. However, the
Service's reliance on a Federal agency's commitment that the measures
will actually occur as proposed has been repeatedly questioned in
court. The resulting judicial decisions have created confusion
regarding what level of certainty is required to demonstrate that a
measure will in fact be implemented before the Service can consider it
in a biological opinion. In particular, the Ninth Circuit has held that
even an expressed sincere commitment by a Federal agency or applicant
to implement future improvements to benefit a species must be rejected
absent ``specific and binding plans'' with ``a clear, definite
commitment of resources for future improvements.'' Nat'l Wildlife Fed'n
v. Nat'l Marine Fisheries Serv., 524 F.3d 917, 935-36 (9th Cir. 2008).
This judicially created standard is not required by the Act or the
existing regulations. The Act requires Federal agencies to consult with
the Services, as appropriate, on ``any action authorized, funded or
carried out by such agency.'' When a Federal agency proposes to take an
action that it has the discretion and authority to implement, and where
that proposed action or parts thereof ``may affect'' a listed species
or its critical habitat, the section 7(a)(2) consultation process is
triggered. Where these conditions are met, the Service's role is to
assume that the action will be implemented as proposed and proceed to
analyze the effects of that proposed action on listed species and
critical habitat. Just as with the components of a proposed action with
adverse effects, there is no additional or heightened standard or
threshold requirement necessitating the Service to independently
evaluate whether the proposed measures to avoid, minimize, or offset
adverse effects will be implemented.
In some situations, a Federal agency may propose a suite or program
of measures that will be implemented over time. The future components
of the proposed action often have some uncertainty with regard to the
specific details of projects that will be implemented. Nevertheless, a
Federal agency or applicant may be fully capable of committing to
specific levels and types of actions (e.g., habitat restoration) and
specific populations or species that will be the focus of the effort.
If the Federal agency provides information in sufficient detail for the
Services to meaningfully evaluate the effects of measures proposed to
avoid, minimize, or offset adverse effects, the Services must consider
the proposed measures during a consultation, as the Act requires the
Services to issue their expert opinion on ``how the agency action
affects the species or its critical habitat,'' 16 U.S.C. 1536(b)(3)(A),
and thus, are entitled to rely on that information as proposed.
Therefore, we are proposing revisions to Sec. 402.14(c)(1) with
respect to the information a Federal agency must submit to initiate
formal consultation. Under this proposed rule and consistent with the
Service's existing approach, a Federal agency must submit a description
of the proposed action, including available information about any
measures intended to avoid, minimize, or offset effects of the proposed
action. As discussed above, the requirement for sufficient detail
regarding all aspects of the proposed action ensures the Services have
the information needed to conduct an informed analysis of the effects
of all activities included in the proposed action. Provided the Federal
agency submits the information required by Sec. 402.14(c), the
Services will take into consideration the effects of the action as
proposed, both beneficial and adverse.
By describing what is included in the proposed action, the Federal
agency has made a commitment and retains independent obligations to
insure that its action is not likely to jeopardize listed species or
destroy or adversely modify critical habitat. Should new information
arise or our assumptions set forth in the consultation change during
implementation--for instance, where the action or elements thereof are
not implemented as proposed--the Federal agency must continue to ensure
compliance with the Act and has several options to do so. This may
include reinitiating consultation with the Service(s) to evaluate the
changed circumstances. If an incidental take statement includes
reasonable and prudent measures and terms and conditions intended to
minimize the impact of incidental take, the Federal agency must carry
out those measures or risk losing the exemption afforded by the
incidental take statement. Ultimately, as consulting and action
agencies, the Act's statutory and regulatory provisions provide
distinct responsibilities such that there is no requirement for the
Service to independently evaluate whether the Federal agency is likely
to carry out its commitments. This is the Services' longstanding
position, as reflected in other provisions of the regulations (for
instance, those governing development of Reasonable and Prudent
Alternatives), and is consistent with the Act. Therefore, we propose
revisions to Sec. 402.14(g)(8) to clarify there is no requirement for
measures that avoid, minimize, or offset the adverse effects of an
action that are included in the proposed action to be accompanied by
``specific and binding plans,'' ``a clear, definite commitment of
resources'', or meet other such criteria.
Biological Opinions
We propose to add new paragraphs (h)(3) and (h)(4) to the current
Sec. 402.14(h) to allow the Services to adopt all or part of a Federal
agency's initiation package in its biological opinion. Additionally, we
propose to allow the Services to adopt all or part of their own
analyses and findings that are required to issue a permit under section
10(a) of the Act in its biological opinion.
The Services have more than 30 years of experience in conducting
consultation pursuant to section 7(a)(2) of the Act under the existing
regulations. Based upon that experience, we have determined that the
current regulations would be more efficient and clear if we were to
codify or create additional optional procedures within formal
consultation (Service adoption of all or part of a Federal agency's
initiation package and expedited consultations) and streamline
duplicative processes (consultation on permits issued under section 10
of the Act). We recognize that several factors, including the scope and
complexity of the proposed action, the magnitude and extent of the
effects that flow from the proposed action, and the expertise of
various Federal agencies, all warrant more than the two general types
of consultation provided for in the current regulations. In addition,
the experience of recent decades has led to significant improvements in
consultation efficiency and species conservation as a result of
[[Page 35188]]
the effective use of streamlined or programmatic approaches. We believe
that these alternative consultation procedures will promote flexibility
and efficiency for the action agencies, applicants, and the Services,
and can be implemented in compliance with the Act while not
compromising the conservation of listed species.
We propose that the Service may adopt all or part of a Federal
agency's initiation package or the Services' analyses and findings that
are required to issue a permit under section 10(a) of the Act in its
biological opinion. This provision would allow the Services to utilize
portions of these documents in the development of our biological
opinion to improve efficiency in the consultation process and reduce
duplicative efforts. Adoption or incorporation by reference is
typically done during consultations, and this provision codifies that
approach.
Further, the provision explicitly applies this approach to the
Service's issuance of permits under section 10 of the Act. The review
and analyses undertaken to develop a finding that various criteria have
been met for issuing a permit pursuant to section 10(a)(1)(A) or
10(a)(1)(B) contain many of the elements reviewed and analyzed in a
section 7 consultation. Therefore, we propose to adopt the analyses and
review that supports issuance of these permits as part of the
biological opinion required to meet the applicable provisions of the
part 402 consultation regulations. As a result, the section 7 analysis
and document can be streamlined to just those portions necessary to
present a complete finding under section 7(a)(2) and 7(b)(3). We note
also that the Service issuing the permit would have to ensure that its
determination regarding jeopardy and destruction or adverse
modification is not limited to the species for which the permit is
authorizing take, but that it covers all listed species and all
designated critical habitat under the Service's jurisdiction affected
by the proposed action. In cases where issuance of a section 10 permit
by one of the Services (e.g., FWS) may affect listed species or
critical habitat under the jurisdiction of the other Service (e.g.,
NMFS), the permitting agency will still need to consult with the other
Service, as well.
While it is the responsibility of the Federal agency to develop the
initiation package, we propose a collaborative process to facilitate
the Federal agency's development of an initiation package that could be
used as all or part of the Service's biological opinion. First, the
Federal agency and the Service must mutually agree that the adoption
process is appropriate for the proposed action. Subsequently, the
Services and the Federal agency may develop coordination procedures
that would facilitate adoption. This agreement must be explained in the
Federal agency's initiation package and acknowledged in the Services'
biological opinion. The purpose of the collaboration is to bring the
information and expertise of both the Federal agency and the Service
(and any applicant) into the resulting initiation package to facilitate
a more efficient and effective consultation process. The end result of
the adoption consultation process is expected to be the adoption of the
initiation package with any necessary supplementary analyses and
incidental take statement to be added by the Service as the Secretary's
biological opinion in fulfillment of section 7(b) of the Act.
Expedited Consultation
We propose to add a new provision titled ``Expedited
consultations'' at Sec. 402.14(l) to offer opportunities to streamline
consultation, particularly for actions that have minimal adverse
effects or predictable effects based on previous consultation
experience. This consultation process is proposed to provide an
efficient means to complete formal consultation on projects ranging
from those that have a minimal impact, to those projects with a
potentially broad range of effects that are known and predictable, but
that are unlikely to cause jeopardy or destruction or adverse
modification. The Services have developed a vast knowledge of projects,
and in the course of doing so, have concluded that some types of
projects can be consulted on in a more expeditious manner without
compromising the conservation of listed species or critical habitat.
For example, a habitat-restoration project that results in high
conservation value for the species but may have a small amount of
incidental take through construction or monitoring would likely lend
itself to this type of consultation (for Streamlined Consultation
Guidance for Restoration and Recovery Projects, see https://www.fws.gov/endangered/esa-library/index.html#consultations under
``Policies'' for guidance documents for consultations with the Fish and
Wildlife Service).
Two elements are important to the successful implementation of this
form of consultation. First is the mutual agreement between the Service
and the Federal agency that this form of consultation is appropriate
for the proposed action. Informal consultation has been an available
optional process for 30 years and is most often utilized to address
proposed actions that are not likely to adversely affect listed species
or critical habitat. In contrast, expedited consultations are a new
process and likely involve proposed actions that would otherwise go
through the regular formal consultation process and require an
incidental take statement. We make mutual agreement a required first
step in the expedited consultation process to avoid wasted effort if
Federal agencies propose actions for expedited consultation that would
not be suitable for expedited analysis by the Service. The second
important element is the development of a sufficient initiation package
(as described in Sec. 402.14(c) of the regulations) that provides all
the information needed to allow the Service to prepare a streamlined
consultation response within mutually agreed-upon expedited timeframes.
We expect that a combination of one-on-one collaboration with Federal
agency staff and the availability of guidance and templates will ensure
the most efficient process for development of initiation packages and
expedited biological opinions. For a NMFS example of a similar effort
for informal consultations through the development of guidance, see
https://www.greateratlantic.fisheries.noaa.gov/protected/section7/guidance/consultation/index.html#writing.
In Sec. 402.14, we propose to redesignate current paragraph (l) as
paragraph (m) to accommodate the addition of the proposed new paragraph
(l).
Section 402.16--Reinitiation of Consultation
We propose two changes to this section. First, we propose to remove
the term ``formal'' from the title and text of this section to
acknowledge that the requirement to reinitiate consultation applies to
all section 7(a)(2) consultations. By practice, action agencies have
reinitiated informal consultations when a trigger for reinitiation has
been met. Courts have also held that reinitiation is required in the
context of informal consultation. See Forest Guardians v. Johanns, 450
F.3d 455, 458 (9th Cir. 2006). Second, we propose to amend this section
to address issues arising under the Ninth Circuit's decision in
Cottonwood Environmental Law Center v. U.S. Forest Service, 789 F.3d
1075 (9th Cir. 2015), cert. denied, 137 S. Ct. 293 (2016). In
Cottonwood, the court held that the Forest Service was required to
reinitiate consultation on certain forest management plans due to the
designation of Canada lynx critical habitat. The court held that, even
if an
[[Page 35189]]
approved land management plan is considered to be a completed action,
the Forest Service nonetheless was obligated to reinitiate consultation
since it retained ``discretionary Federal involvement or control'' over
the plan. Cottonwood, 789 F.3d at 1084-85.
We propose to make non-substantive redesignations and then revise
Sec. 402.16 by adding a new paragraph (b) to clarify that the duty to
reinitiate does not apply to an existing programmatic land management
plan prepared pursuant to the Federal Land Policy Management Act
(FLPMA), 43 U.S.C. 1701 et seq., or the National Forest Management Act
(NFMA), 16 U.S.C. 1600 et seq. when a new species is listed or new
critical habitat is designated.
We reaffirm that only affirmative discretionary actions are subject
to reinitiation under our regulations, and the mere existence of a
programmatic land management plan is not affirmative discretionary
action. See generally Southern Utah Wilderness Alliance v. Norton, 542
U.S. 55 (2004). See also National Ass'n of Homebuilders v. Defenders of
Wildlife, 551 U.S. 644 (2007). While the Act does not expressly mandate
reinitiation on discretionary affirmative actions, in 1986 we
determined that the Act's legislative history and conservation goals
supported reinitiation if certain triggers are met. After decades of
experience cooperating with action agencies across the Federal
Government, we have gained the expertise of when reinitiation of
consultation is most effective to meeting the overall goals of the Act.
Reinitiating on a purely programmatic land management plan when new
species are listed or critical habitat designated does little to
further these goals. Both the Bureau of Land Management (BLM) and U.S.
Forest Service (USFS) are required to periodically update their land
management plans, at which time they would consult on any newly listed
species or designated critical habitat. BLM is required to periodically
evaluate and revise Resource Management Plans (see 43 CFR 1610); the
interval between reevaluations should not exceed 5 years (see BLM
Handbook H-1601-1 at p. 34). USFS is required to revise their land
management plans at least every 15 years (see 36 CFR 219.7). In
addition to being required to periodically revise their land management
plans, both BLM and USFS are required to consult on any specific on-
the-ground actions that implement the land management plans if those
actions may affect listed species or critical habitat. We are thus
exercising our discretion and narrowing Sec. 402.16 to exclude two
types of plans that have no immediate on-the-ground effects. Requiring
reinitiation on these completed plans based on newly listed species or
critical habitat often results in impractical and disruptive burdens.
Moreover, reinitiating consultation on a programmatic land
management plan results in little benefit to the newly listed species
or critical habitat because the plan's mere existence does not result
in any immediate effects upon either, thus rendering any reinitiation
under these conditions inefficient and ineffective. In contrast,
specific on-the-ground actions that implement the plan are subject to
their own section 7 consultations if those actions may affect listed
species or critical habitat. These on-the-ground, action-specific
consultations allow us to direct our limited resources to those actions
that actually cause effects and ensure that the USFS and the BLM
fulfill their obligations under section 7. Thus, this new proposed
regulation also restates our position that, while a completed
programmatic land management plan does not require reinitiation upon
the listing of new species or critical habitat, any on-the-ground
subsequent actions taken pursuant to the plan must be subject to a
separate section 7 consultation if those actions may affect the newly
listed species or critical habitat.
Rather than reinitiation of a section 7(a)(2) consultation at the
plan level, the Services recommend these agencies develop section
7(a)(1) conservation programs in consultation with the Services when a
new species is listed or critical habitat designated. This proactive,
conservation planning process will enable them to better synchronize
their actions and programs with the conservation and recovery needs of
listed and proposed species. Such planning can help Federal agencies
develop specific, pre-approved design criteria to ensure their actions
are consistent with the conservation and recovery needs of the species.
Additionally, these section 7(a)(1) programs will facilitate efficient
development of the next programmatic section 7(a)(2) consultations when
the land management plan is renewed.
In addition to seeking comment on the proposed revision to 50 CFR
402.16, we are seeking comments on whether to exempt other types of
programmatic land or water management plans in addition to those
prepared pursuant to FLPMA and NFMA from the requirement to reinitiate
consultation when a new species is listed or critical habitat
designated. We are also seeking comment on this proposed revision in
light of the recently enacted Wildfire Suppression Funding and Forest
Management Activities Act, H.R. 1625, Division O, which was included in
the Omnibus Appropriations bill for fiscal year 2018.
Section 402.17--Other Provisions
We propose to add a new Sec. 402.17 titled ``Other provisions.''
Within this new section, we propose a new provision titled ``Activities
that are reasonably certain to occur,'' in order to clarify the
application of the ``reasonably certain to occur'' standard referenced
in Sec. 402.02 (defining effects of the action and cumulative effects)
in two specific contexts. This new proposed provision applies only to
activities caused by but not included in the proposed action and
activities under cumulative effects. We propose to address reasonable
certainty in these two contexts due to the substantial confusion that
has sometimes resulted from determining when these sorts of activities
should be considered. The proposed text addresses the relative level of
certainty required and is intended to avoid inclusion of activities
whose occurrence would be considered speculative, but also to avoid
requiring an expectation that the activity is absolutely certain to
occur. We also identify a non-exclusive list of factors that inform the
determination of whether an activity should be considered reasonably
certain to occur. For example, one of the factors to consider is the
existence of any relevant plans (e.g., community plans, management
plans, transportation plans, etc.). We also specify that this provision
only applies to activities caused by but not included in the proposed
action and activities under cumulative effects. Consistent with the
Act, existing regulations, and agency practice, we do not propose to
apply the reasonable certainty standard to whether the proposed action
itself will be implemented, but again, only to the analysis of the
effects of the action to ensure that the effects analysis does not
focus on speculative impacts. This provision reflects the fundamental
nature of consultation under section 7(a)(2) in which the Services
consult on the action as proposed.
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
[[Page 35190]]
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 website. If
your submission is 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 Environmental
Review (see FOR FURTHER INFORMATION CONTACT).
Required Determinations
Regulatory Planning and Review--Executive Orders 12866 and 13563
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB)
will review all significant rules. OIRA has determined that this rule
is significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements. This proposed rule is consistent with
Executive Order 13563, and in particular with the requirement of
retrospective analysis of existing rules, designed ``to make the
agency's regulatory program more effective or less burdensome in
achieving the regulatory objectives.''
Executive Order 13771
This proposed rule is expected to be a deregulatory action under
E.O. 13771.
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, or his or her designee, certifies that the rule will not
have a significant economic impact on a substantial number of small
entities. SBREFA amended the Regulatory Flexibility Act to require
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 certify that, if adopted as
proposed, this proposed rule would not have a significant economic
effect on a substantial number of small entities. The following
discussion explains our rationale.
This rulemaking revises and 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. Moreover, this
proposed rulemaking action is not a major rule under SBREFA.
This proposed rule, if made final, would be applied in determining
whether a Federal agency has insured, in consultation with the
Services, that any action it would authorize, fund, or carry out is not
likely to jeopardize listed species or result in the destruction or
adverse modification of critical habitat. This proposed rule is
substantially unlikely to affect our determinations as to whether or
not proposed actions are likely to jeopardize listed species or result
in the destruction or adverse modification of critical habitat. The
proposed rule would serve to provide clarity to the standards 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) On the basis of information contained in the Regulatory
Flexibility Act section above, this proposed rule would not
``significantly or uniquely'' affect small governments. We have
determined and certify pursuant to the Unfunded Mandates Reform Act, 2
U.S.C. 1502, that this rule would 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
rule would not place additional requirements on any city, county, or
other local municipalities.
(b) This proposed rule would not produce a Federal mandate on
State, local, or tribal governments or the private sector of $100
million or greater in any year; that is, this proposed rule is not a
``significant regulatory action''' under the Unfunded Mandates Reform
Act. This proposed rule would impose no additional management or
protection requirements on State, local, or tribal governments.
Takings (E.O. 12630)
In accordance with Executive Order 12630, this proposed rule would
not have significant takings implications. This proposed rule would not
pertain to ``taking'' of private property interests, nor would it
directly affect private property. A takings implication assessment is
not required because this proposed rule (1) would not effectively
compel a property owner to suffer a physical invasion of property and
(2) would not deny all economically beneficial or productive use of the
land or aquatic resources. This proposed rule would substantially
advance a legitimate government interest (conservation and recovery of
endangered species and threatened 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 summary impact statement is not
required. This proposed rule pertains only to improving and clarifying
the interagency consultation processes under the Endangered Species
[[Page 35191]]
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 does 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 the interagency
consultation processes under the Endangered Species Act.
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.
Paperwork Reduction Act
This rule does not contain any new collections of information other
than those already approved under the Paperwork Reduction Act (44
U.S.C. 3501 et seq.). We may not conduct or sponsor and you are 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 this proposed regulation in accordance with the
criteria of NEPA, the Department of the Interior regulations on
implementation of NEPA (43 CFR 46.10-46.450), the Department of the
Interior Manual (516 DM 8), the NOAA Administrative Order 216-6A, and
the companion manual, ``Policy and Procedures for Compliance with the
National Environmental Policy Act and Related Authorities,'' which
became effective January 13, 2017. We invite the public to comment on
the extent to which this proposed regulation may have a significant
impact on the human environment, or fall within one of the categorical
exclusions for actions that have no individual or cumulative effect on
the quality of the human environment. We will complete our analysis, in
compliance with NEPA, before finalizing this regulation.
Energy Supply, Distribution or Use (E.O. 13211)
Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. The proposed revised
regulations are not expected to affect energy supplies, distribution,
and use. Therefore, this action is a not a significant energy action,
and no Statement of Energy Effects is required.
Clarity of the Rule
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 we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) 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 the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of 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 in Docket No.
FWS-HQ-ES-2018-0009 or upon request from the U.S. Fish and Wildlife
Service (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the Ecological Services Program, U.S. Fish and Wildlife Service, 5275
Leesburg Pike, Falls Church, VA 22041-3803, and the National Marine
Fisheries Service's Endangered Species Division, 1335 East-West
Highway, Silver Spring, MD 20910.
Authority
We issue this proposed rule under the authority of the Endangered
Species Act, 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 subparts A and B of part 402,
subchapter A of chapter IV, title 50 of the Code of Federal
Regulations, as set forth below:
PART 402--INTERAGENCY COOPERATION--ENDANGERED SPECIES ACT OF 1973,
AS AMENDED
0
1. The authority citation for part 402 continues to read as follows:
Authority: 16 U.S.C. 1531 et seq.
0
2. Amend Sec. 402.02 by revising the definitions of ``Destruction or
adverse modification,'' ``Director,'' and ``Effects of the action'' and
adding definitions for ``Environmental baseline'' and ``Programmatic
consultation'' in alphabetic order to read as follows:
Sec. 402.02 Definitions.
* * * * *
Destruction or adverse modification means a direct or indirect
alteration that appreciably diminishes the value of critical habitat as
a whole for the conservation of a listed species.
Director refers to the Assistant Administrator for Fisheries for
the National Marine Fisheries Service, or his or her authorized
representative; or the Director of the U.S. Fish and Wildlife Service,
or his or her authorized representative.
* * * * *
Effects of the action are all effects on the listed species or
critical habitat that are caused by the proposed action, including the
effects of other activities that are caused by the proposed action. An
effect or activity is caused by the proposed action if it would not
occur but for the proposed action and it is reasonably certain to
occur. Effects of the action may occur later in time and may include
effects occurring outside the immediate area involved in the action.
Environmental baseline includes the past and present impacts of all
Federal, State, or private actions and other human activities in the
action area, the anticipated impacts of all proposed Federal projects
in the action area that have already undergone formal or early section
7 consultation, and the impact of State or private actions which are
contemporaneous with the consultation in process.
* * * * *
Programmatic consultation is a consultation addressing an agency's
multiple actions on a program, region, or other basis. Programmatic
consultations allow the Services to
[[Page 35192]]
consult on the effects of programmatic actions such as:
(1) Multiple similar, frequently occurring or routine actions
expected to be implemented in particular geographic areas; and
(2) A proposed program, plan, policy, or regulation providing a
framework for future proposed actions.
* * * * *
0
3. Amend Sec. 402.14 by:
0
a. Revising paragraphs (c), (g)(2), (g)(4), (g)(8), and (h):
0
b. Redesignating paragraph (l) as paragraph (m); and
0
c. Adding a new paragraph (l).
The revisions and addition read as follows:
Sec. 402.14 Formal consultation.
* * * * *
(c) Initiation of formal consultation. (1) A written request to
initiate formal consultation shall be submitted to the Director and
shall include:
(i) A description of the proposed action, including any measures
intended to avoid, minimize, or offset effects of the action.
Consistent with the nature and scope of the proposed action, the
description shall provide sufficient detail to assess the effects of
the action on listed species and critical habitat, including:
(A) The purpose of the action;
(B) The duration and timing of the action;
(C) The location of the action;
(D) The specific components of the action and how they will be
carried out;
(E) Maps, drawings, blueprints, or similar schematics of the
action; and
(F) Any other available information related to the nature and scope
of the proposed action relevant to its effects on listed species or
designated critical habitat.
(ii) A map or description of all areas to be affected directly or
indirectly by the Federal action, and not merely the immediate area
involved in the action (i.e., the action area as defined at Sec.
402.02).
(iii) Information obtained by or in the possession of the Federal
agency and any applicant on the listed species and designated critical
habitat in the action area (as required by paragraph (c)(1)(ii) of this
section), including available information such as the presence,
abundance, density, or periodic occurrence of listed species and the
condition and location of species' habitat, including any critical
habitat.
(iv) A description of the effects of the action and an analysis of
any cumulative effects.
(v) A summary of any relevant information provided by the
applicant, if available.
(vi) Any other relevant available information on the effects of the
proposed action on listed species or designated critical habitat,
including any relevant reports such as environmental impact statements
and environmental assessments.
(2) A Federal agency may submit existing documents prepared for the
proposed action such as NEPA analyses or other reports in substitution
for the initiation package outlined in this paragraph (c). However, any
such substitution shall be accompanied by a written summary specifying
the location of the information that satisfies the elements above in
the submitted document(s).
(3) Formal consultation shall not be initiated by the Federal
agency until any required biological assessment has been completed and
submitted to the Director in accordance with Sec. 402.12.
(4) Any request for formal consultation may encompass, subject to
the approval of the Director, a number of similar individual actions
within a given geographical area, a programmatic consultation, or a
segment of a comprehensive plan. This provision does not relieve the
Federal agency of the requirements for considering the effects of the
action or actions as a whole.
* * * * *
(g) * * *
(2) Evaluate the current status and environmental baseline of the
listed species or critical habitat.
* * * * *
(4) Add the effects of the action and cumulative effects to the
environmental baseline and in light of the status of the species and
critical habitat, formulate the Service's opinion as to whether the
action is likely to jeopardize the continued existence of listed
species or result in the destruction or adverse modification of
critical habitat.
* * * * *
(8) In formulating its biological opinion, any reasonable and
prudent alternatives, and any reasonable and prudent measures, the
Service will use the best scientific and commercial data available and
will give appropriate consideration to any beneficial actions as
proposed or taken by the Federal agency or applicant, including any
actions taken prior to the initiation of consultation. Measures
included in the proposed action or a reasonable and prudent alternative
that are intended to avoid, minimize, or offset the effects of an
action are considered like other portions of the action and do not
require any additional demonstration of specific binding plans or a
clear, definite commitment of resources.
(h) Biological opinions.
(1) The biological opinion shall include:
(i) A summary of the information on which the opinion is based;
(ii) A detailed discussion of the effects of the action on listed
species or critical habitat; and
(iii) The Service's opinion on whether the action is:
(A) Likely to jeopardize the continued existence of a listed
species or result in the destruction or adverse modification of
critical habitat (a ``jeopardy'' biological opinion); or
(B) Not likely to jeopardize the continued existence of a listed
species or result in the destruction or adverse modification of
critical habitat (a ``no jeopardy'' biological opinion).
(2) A ``jeopardy'' biological opinion shall include reasonable and
prudent alternatives, if any. If the Service is unable to develop such
alternatives, the Service will indicate that to the best of its
knowledge there are no reasonable and prudent alternatives.
(3) The Service may adopt all or part of:
(i) A Federal agency's initiation package; or
(ii) The Service's analysis required to issue a permit under
section 10(a) of the Act in its biological opinion.
(4) A Federal agency and the Service may agree to follow an
optional collaborative process that would further the ability of the
Service to adopt the information and analysis provided by the Federal
agency during consultation in the development of the Service's
biological opinion to improve efficiency in the consultation process
and reduce duplicative efforts. The Federal agency and the Service
shall consider the nature, size, and scope of the action or its
anticipated effects on listed species or critical habitat, and other
relevant factors to determine whether an action or a class of actions
is appropriate for this process. The Federal agency and the Service may
develop coordination procedures that would facilitate adoption. The end
result of the adoption consultation process is expected to be the
adoption of the initiation package with any necessary supplementary
analyses and incidental take statement to be added by the Service, if
appropriate, as the Service's biological opinion in fulfillment of
section 7(b) of the Act.
* * * * *
(l) Expedited consultations. Expedited consultation is an optional
formal consultation process that a Federal
[[Page 35193]]
agency and the Service may enter into upon mutual agreement. To
determine whether an action or a class of actions is appropriate for
this type of consultation, the Federal agency and the Service shall
consider the nature, size, and scope of the action or its anticipated
effects on listed species or critical habitat and other relevant
factors. Conservation actions whose primary purpose is to have
beneficial effects on listed species will likely be considered
appropriate for expedited consultation.
(1) Upon agreement to use this expedited consultation process, the
Federal agency and the Service shall establish the expedited timelines
for the completion of this consultation process.
(2) Federal agency responsibilities: To request initiation of
expedited consultation, the Federal agency shall provide all the
information required to initiate consultation under paragraph (c) of
this section. To maximize efficiency and ensure that it develops the
appropriate level of information, the Federal agency is encouraged to
develop its initiation package in coordination with the Service.
(3) Service responsibilities: In addition to the Service's
responsibilities under the provisions of this section, the Service
will:
(i) Provide relevant species information to the Federal agency and
guidance to assist the Federal agency in completing its effects
analysis in the initiation package; and
(ii) Conclude the consultation and issue a biological opinion
within the agreed-upon timeframes.
* * * * *
0
4. Amend Sec. 402.16 by:
0
a. Revising the section heading;
0
b. Redesignating paragraphs (a) through (d) as paragraphs (a)(1)
through (a)(4);
0
c. Designating the introductory text as paragraph (a) and revising the
newly designated paragraph (a); and
0
d. Adding a new paragraph (b).
The revisions and addition read as follows:
Sec. 402.16 Reinitiation of consultation.
(a) Reinitiation of consultation is required and shall be requested
by the Federal agency or by the Service, where discretionary Federal
involvement or control over the action has been retained or is
authorized by law and:
* * * * *
(b) An agency shall not be required to reinitiate consultation
after the approval of a land management plan prepared pursuant to 43
U.S.C. 1712 or 16 U.S.C. 1604 upon listing of a new species or
designation of new critical habitat, provided that any authorized
actions that may affect the newly listed species or designated critical
habitat will be addressed through a separate action-specific
consultation.
0
5. Add Sec. 402.17 to read as follows:
Sec. 402.17 Other provisions.
(a) Activities that are reasonably certain to occur. To be
considered reasonably certain to occur, the activity cannot be
speculative but does not need to be guaranteed. Factors to consider
include, but are not limited to:
(1) Past relevant experiences;
(2) Any existing relevant plans; and
(3) Any remaining economic, administrative, and legal requirements
necessary for the activity to go forward.
(b) The provisions in paragraph (a) of this section apply only to
activities caused by but not included in the proposed action and
activities considered under cumulative effects.
Sec. 402.40 [Amended]
0
6. In Sec. 402.40, amend paragraph (b) by removing ``Sec.
402.14(c)(1)-(6)'' and in its place adding ``Sec. 402.14(c)''.
Dated: July 18, 2018.
Ryan K. Zinke,
Secretary, Department of the Interior.
Dated: July 16, 2018.
Wilbur Ross,
Secretary, Department of Commerce.
[FR Doc. 2018-15812 Filed 7-24-18; 8:45 am]
BILLING CODE 3510-22-P; 4333-15-P