[Federal Register Volume 84, Number 166 (Tuesday, August 27, 2019)]
[Rules and Regulations]
[Pages 44976-45018]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17517]
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Vol. 84
Tuesday,
No. 166
August 27, 2019
Part II
Department of the Interior
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Fish and Wildlife Service
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 402
Endangered and Threatened Wildlife and Plants; Regulations for
Interagency Cooperation; Final Rule
Federal Register / Vol. 84 , No. 166 / Tuesday, August 27, 2019 /
Rules and Regulations
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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; Regulations for
Interagency Cooperation
AGENCY: U.S. Fish and Wildlife Service (FWS), Interior; National Marine
Fisheries Service (NMFS), National Oceanic and Atmospheric
Administration, Commerce.
ACTION: Final rule.
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SUMMARY: FWS and NMFS (collectively referred to as the ``Services'' or
``we'') revise portions of our regulations that implement section 7 of
the Endangered Species Act of 1973, as amended (``Act''). The revisions
to the regulations clarify, interpret, and implement portions of the
Act concerning the interagency cooperation procedures.
DATES: This final rule is effective on September 26, 2019.
ADDRESSES: This final rule is available on the internet at http://www.regulations.gov at Docket No. FWS-HQ-ES-2018-0009. Comments and
materials we received on the proposed rule, as well as supporting
documentation we used in preparing this rule, are available for public
inspection at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Gary Frazer, U.S. Fish and Wildlife
Service, Department of the Interior, Washington, DC 20240, telephone
202/208-4646; or Samuel D. Rauch, III, National Marine Fisheries
Service, Department of Commerce, 1315 East-West Highway, Silver Spring,
MD 20910, telephone 301/427-8000. If you use a telecommunications
device for the deaf (TDD), call the Federal Relay Service at 800-877-
8339.
SUPPLEMENTARY INFORMATION:
Background
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.
On July 25, 2018, the Services published a proposed rule to amend
our regulations that implement section 7 of the Act (83 FR 35178). The
proposed rule addressed alternative consultation mechanisms; the
definitions of ``destruction or adverse modification'' and ``effects of
the action''; certainty of measures proposed by action agencies to
avoid, minimize, or offset adverse effects; and other improvements to
the consultation process. The proposed rule also sought comment on: The
advisability of addressing several other issues related to implementing
section 7 of the Act; the extent to which the proposed changes outlined
would affect timeframes and resources needed to conduct consultation;
anticipated cost savings resulting from the proposed changes; and any
other specific changes to any provisions in part 402 of the
regulations. The proposed rule requested that all interested parties
submit written comments on the proposal by September 24, 2018. The
Services also contacted Federal and State agencies, certain industries
regularly involved in Act section 7(a)(2) consultation, Tribes,
nongovernmental organizations, and other interested parties and invited
them to comment on the proposal.
In this final rule, we focus our discussion on changes from the
proposed regulation revisions, including changes based on comments we
received during the comment period. For background relevant to these
regulations, we refer the reader to the proposed rule (83 FR 35178,
July 25, 2018).
This final rule is one of three related final rules that the
agencies are publishing in this issue of the Federal Register. All of
these documents finalize revisions to various regulations that
implement the Act. The revisions to the regulations in this rule are
prospective; they are not intended to require that any previous
consultations under section 7(a)(2) of the Act be reevaluated at the
time this final rule becomes effective (see DATES, above).
Final Regulatory Revisions
Discussion of Changes From Proposed Rule
Below, we discuss the changes between the proposed regulatory text
and regulatory text that we are finalizing with this rule. We did not
revise the regulatory text between the proposed and final rules for the
definitions of ``Destruction or adverse modification,'' ``Director,''
and ``Programmatic consultation''. Therefore, we do not address those
definitions within this portion of the preamble.
Section 402.02--Definitions
Definition of ``Effects of the Action''
The Services proposed to revise the definition of ``effects of the
action'' in a manner that simplified the definition by collapsing the
terms ``direct, ``indirect,'' interrelated,'' and ``interdependent''
and by applying a two-part test of ``but for'' and ``reasonably certain
to occur.''
Effects of the action was proposed to be defined as 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.
The Services requested comments on (1) the extent to which the
proposed revised definition simplified and clarified the definition of
``effects of the action''; (2) whether the proposed definition altered
the scope of effects considered by the Services; (3) the extent to
which the scope of the proposed revised definition was appropriate for
the purposes of the Act; and (4) how the proposed revised definition
may be improved. We received numerous comments regarding the proposed
revision to the definition of ``effects of the action,'' including the
two-part test, and the scope of the definition as proposed. Some
commenters felt that the proposed two-part test for both effects and
activities caused by the proposed action was either inappropriate or
still subject to misapplication and misinterpretation. Others were
concerned that the changed definition would narrow the scope of effects
of the action, resulting in unaddressed negative effects to listed
species and critical habitat. As stated in the proposed rule, the
Services' intended purpose of the revised definition of effects of the
action was to
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simplify the definition while still retaining the scope of the
assessment required to ensure a complete analysis of the effects of
proposed actions. Further, we stated that by revising the definition,
consultations between the Services and action agencies, including
consultations involving applicants, can focus on identifying the
effects and not on categorizing them. The two-part test was included to
provide a transparent description of how the Services identify effects
of the proposed action. A summary of the comments and our responses are
below at Summary of Comments and Recommendations.
In response to comments and upon further consideration, the
Services are adopting a revised, final definition of ``effects of the
action'' to further clarify that effects of the action include all
consequences of a proposed action, including consequences of any
activities caused by the proposed action. We revised the definition to
read as set out in the regulatory text at the end of the document.
The principal changes we have made in this final rule include: (1)
Introducing the term ``consequences'' to help define what we mean by an
effect; and (2) emphasizing that to be considered the effect of the
action under consultation, the consequences caused by the action would
not occur but for the proposed action and must be reasonably certain to
occur.
The Services believe that the definition of ``effects of the
action'' contained in this final rule will reduce confusion and
streamline the process by which the Services identify the relevant
effects caused by a proposed action. The Services do not intend for
these regulatory changes to alter how we analyze the effects of a
proposed action. We will continue to review all relevant effects of a
proposed action as we have in past decades, but we determined it was
not necessary to attach labels to various types of effects through
regulatory text. That is, we intend to capture those effects
(consequences) previously listed in the regulatory definition of
effects of the action--direct, indirect, and the effects from
interrelated and interdependent activities--in the new definition.
These effects are captured in the new regulatory definition by the term
``all consequences'' to listed species and critical habitat.
We introduced the term ``consequences,'' in part, to avoid using
the term ``effects'' to define ``effects of the action''. Consequences
are a result or effect of an action, and we apply the two-part test to
determine whether a given consequence should be considered an effect of
the proposed action that is under consultation. Requiring evaluation of
all consequences caused by the proposed action allows the Services to
focus on the impact of the proposed action to the listed species and
critical habitat, while being less concerned about parsing what label
to apply to each effect (e.g., direct or indirect effect, or
interdependent or interrelated activity).
As discussed in the proposed rule, the Services have applied the
``but for'' test to determine causation for decades. That is, we have
looked at the consequences of an action and used the causation standard
of ``but for'' plus an element of foreseeability (i.e., reasonably
certain to occur) to determine whether the consequence was caused by
the action under consultation. In this final rule, we have added
regulatory text to confirm that, by definition, ``but for'' causation
means that the consequence in question would not occur if the proposed
action did not go forward. This added regulatory language does not add
a more stringent standard than what was applied already under our
current ``but for'' causation, but is meant to clarify and reinforce
the standard we currently implement and will do so in the future.
Additionally, there are several relevant considerations where the
proposed action is not the ``but for'' cause of another activity (not
included in the proposed action) because the other activity would
proceed in the absence of the proposed action due to the prospect of an
alternative approach (e.g., if a Federal right-of-way (proposed action)
is not granted, a private wind farm on non-federal lands (other
activity) would still be developed through the building of a road on
private lands (alternative approach)). In particular, the Services
consider case-specific information including, but not limited to, the
independent utility of the other activity and proposed action, the
feasibility of the alternative approach and likelihood the alternative
approach would be undertaken, the existence of plans relating to the
activity and whether the plans indicate that an activity will move
forward irrespective of the action agency's proposed action, and
whether the same effects would occur as a result of the other activity
in the absence of the proposed action. In other words, if the agency
fails to take the proposed action and the activity would still occur,
there is no ``but for'' causation. In that event, the activity would
not be considered an effect of the action under consultation.
Consequences to the species or critical habitat caused by the
proposed action must also be reasonably certain to occur. The term
``reasonably certain to occur'' is not a new or heightened standard,
but it was not clearly defined or given any parameters in previous
regulations. Experience has taught us that the failure to provide a
definition and any parameters to the term ``reasonably certain to
occur'' left the concept vague and occasionally produced determinations
that were inconsistent or had the appearance of being too subjective.
As such, there were sometimes disagreements between the Services and
action agencies as to what constituted ``reasonably certain to occur.''
Our intention in these regulations is to provide a solid framework,
with specific factors for both action agencies and the Services to
evaluate, in order to determine whether a consequence is ``reasonably
certain to occur.'' In addition, we added a regulatory requirement that
this framework be reviewed and followed by both the action agency and
the Services. See Sec. 402.17(c). When the Services write an
incidental take statement for a biological opinion, under section
7(b)(4)(iv) of the Act they can assign responsibility of specific terms
and conditions of the incidental take statement to the Federal action
agency, the applicant, or both taking into account their respective
roles, authorities, and responsibilities. The Services have worked with
Federal action agencies in the past, and will continue to do so into
the future, to ensure that a reasonable and prudent measure assigned to
a Federal action agency does not exceed the scope of a Federal action
agency's authority.
As discussed below in our discussion of changes to Sec. 402.17, we
have clarified that for a consequence or an activity to be considered
reasonably certain to occur, the determination must be based on clear
and substantial information. The term ``clear and substantial'' is used
to describe the nature of information needed to determine that a
consequence or activity is reasonably certain to occur. By clear and
substantial, we mean that there must be a firm basis to support a
conclusion that a consequence of an action is reasonably certain to
occur. The determination of a consequence to be reasonably certain to
occur must be based on solid information and should not be based on
speculation or conjecture. This added term also does not mean the
nature of the information must support that a consequence must be
guaranteed to occur, but rather, that it must have a degree of
certitude.
We revised Sec. 402.17 to help guide the determination of
``reasonably certain to occur.'' The ``reasonably certain to occur''
determination applies to other
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activities caused by (but not part of) the proposed action, activities
considered under cumulative effects (as defined at Sec. 402.02), and
to the consequences caused by the proposed action. However, it does not
apply to the proposed action itself, which is presumed to occur as
described. First, in Sec. 402.17(a), we discuss factors to consider
when determining whether an activity is reasonably certain to occur for
purposes of determining the effects of the action or which activities
to include under Cumulative Effects. Second, we describe considerations
for evaluating whether a consequence is reasonably certain to occur in
Sec. 402.17(b). For further explanation, please see our discussion of
Sec. 402.17, below.
We also continue to emphasize that effects may occur beyond the
proposed action's footprint. This concept was reflected in the proposed
rule and the final definition states that effects may include
consequences occurring outside the immediate area involved in the
action.
As discussed above, we articulated a two-part test for effects of
the action that is consistent with our existing practice and prior
interpretations. This test for determining effects includes effects
resulting from actions previously referred to as ``interrelated or
interdependent'' activities. In order for consequences of other
activities caused by the proposed action to be considered effects of
the action, both those activities and the consequences of those
activities must satisfy the two-part test: They would not occur but for
the proposed action and are reasonably certain to occur. As a result,
when we discuss effects or effects of the action throughout the rest of
this rule, we are referring only to those effects that satisfy the two-
part test. For further discussion of the application of the
``reasonably certain to occur'' test to activities included within the
definition of effects of the action, see our discussion of changes to
proposed Sec. 402.17, below.
Definition of Environmental Baseline
We proposed a stand-alone definition for ``environmental baseline''
as referenced in the discussion above in the proposed revised
definition for effects of the action.
Environmental baseline was proposed to be defined to include 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.
In the proposed rule, we also sought comment on potential revisions
to the definition of ``environmental baseline'' as it relates to
ongoing Federal actions. The Services received numerous comments
regarding the proposed definition of ``environmental baseline'' and the
consideration of ongoing Federal actions.
In response to these comments and upon further consideration,
through this final rule, we are revising the definition of
``environmental baseline'' to read as set out in the regulatory text at
the end of this document.
We revised the definition of environmental baseline to make it
clear that ``environmental baseline'' is a separate consideration from
the effects of the action. In practice, the environmental baseline
should be used to compare the condition of the species and the
designated critical habitat in the action area with and without the
effects of the proposed action, which can inform the detailed
evaluation of the effects of the action described in Sec. 402.14(g)(3)
upon which the Services formulate their biological opinion.
In addition, we added a sentence to clarify that the consequences
of ongoing agency activities or existing agency facilities that are not
within the agency's discretion to modify are included in the
environmental baseline. This third sentence is specifically intended to
help clarify environmental baseline issues that have caused confusion
in the past, particularly with regard to impacts from ongoing agency
activities or existing agency facilities that are not within the
agency's discretion to modify.
We added this third sentence because we concluded that it was
necessary to explicitly answer the question as to whether ongoing
consequences of past or ongoing activities or facilities should be
attributed to the environmental baseline or to the effects of the
action under consultation when the agency has no discretion to modify
either those activities or facilities. The Courts and the Services have
concluded that, in general, ongoing consequences attributable to
ongoing activities and the existence of agency facilities are part of
the environmental baseline when the action agency has no discretion to
modify them. With respect to existing facilities, such as a dam, courts
have recognized that effects from the existence of the dam can properly
be considered a past and present impact included in the environmental
baseline, particularly when the Federal agency lacks discretion to
modify the dam. See, e.g., Friends of River v. Nat'l Marine Fisheries
Serv., 293 F. Supp. 3d 1151, 1166 (E.D. Cal. 2018). Having the
environmental baseline include the consequences from ongoing agency
activities or existing agency facilities that are not within the
agency's discretion to modify is supported by the Supreme Court's
conclusion in National Ass'n of Home Builders v. Defenders of Wildlife,
551 U.S. 644, 667-71 (U.S. 2007) (``Home Builders''). In that case, the
Court held that it was reasonable for the Services to narrow the
application of section 7 to a Federal agency's discretionary actions
because it made no sense to consult on actions over which the Federal
agency has no discretionary involvement or control. It follows, then,
that when a Federal agency has authority for managing or operating a
dam, but lacks discretion to remove or modify the physical structure of
the dam, the consequences from the physical presence of the dam in the
river are appropriately placed in the environmental baseline and are
not considered an effect of the action under consultation.
We distinguish here between activities and facilities where the
Federal agency has no discretion to modify and those discretionary
activities, operations, or facilities that are part of the proposed
action but for which no change is proposed. For example, a Federal
agency in their proposed action may modify some of their ongoing,
discretionary operations of a water project and keep other ongoing,
discretionary operations the same. The resulting consultation on future
operations analyzes the effects of all of the discretionary operations
of the water project on the species and designated critical habitat as
part of the effects of the action, even those operations that the
Federal agency proposes to keep the same. We also note that the
obligation is on the Federal action agency to propose actions for
consultation and while they should not improperly piecemeal or segment
portions of related actions, a request for consultation on one aspect
of a Federal agency's exercise of discretion does not de facto pull in
all of the possible discretionary actions or authorities of the Federal
agency. This is a case-by-case specific analysis undertaken by the
Services and the Federal action agency as needed during consultation.
Attributing to the environmental baseline the ongoing consequences
from activities or facilities that are not within the agency's
discretion to modify does not mean that those consequences are ignored.
As discussed in more detail below, the environmental baseline is a
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description of the condition of the species or the designated critical
habitat in the action area. To the extent ongoing consequences are
beneficial or adverse to a species, the environmental baseline
evaluations of the species or designated critical habitat will reflect
the impact of those consequences and the effects of the action must be
added to those impacts in the Services' jeopardy and adverse
modification analysis.
Section 402.13--Deadline for Informal Consultation
The Services sought comment on potentially establishing a 60-day
deadline, subject to extension by mutual consent, for informal
consultations. More specifically, we sought 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., to which portions of informal
consultation the deadline should apply [e.g., technical assistance,
response to requests for concurrence, etc.], when informal consultation
begins, the ability to extend or ``pause the clock'' in certain
circumstances, etc.).
The Services received numerous comments regarding the establishment
of a deadline for informal consultation. A summary of those comments
and our responses are below at Summary of Comments and Recommendations.
In response to these comments and upon further consideration, through
this final rule, we are revising Sec. 402.13, Informal consultation,
to read as set out in the regulatory text at the end of this document.
These changes institute a new Sec. 402.13(c), which is a process
framework for the Federal agency's written request for concurrence and
the Service's response. The changes to the informal consultation
process are limited to only the written request for concurrence and the
Service's response. This preserves the flexibility in discussions and
timing inherent in the portion of the informal consultation process
that is intended to assist the Federal agency in determining whether
formal consultation is required. In the new framework, we require in
Sec. 402.13(c)(1) that the written request for our concurrence should
contain information similar to that required in Sec. 402.14(c)(1) for
formal consultation, but only at a level of detail sufficient for the
Services to determine whether or not it concurs. Consistent with past
practice, the Services determine whether the information provided by
the Federal agency provides sufficient information upon which to make
its determination whether to concur with Federal agency's request for
concurrence. We anticipate that this level of detail will often be less
than that required for the initiation of formal consultation and the
evaluation of adverse effects to species and designated critical
habitat. Second, we establish in Sec. 402.13(c)(2) a timeline for the
written request and concurrence process. As stated in the new Sec.
402.13(c)(2), upon receipt of an adequate request for concurrence from
a Federal agency, the Services shall provide their written response
within 60 days. The 60-day response period may be extended, with the
mutual consent of the Federal agency (or its designated representative)
and any applicant, for up to an additional 60 days, bringing the total
potential timeframe for this written request and response process to
120 days. The intent of the 60-day, and no more than 120-day, deadline
is to increase regulatory certainty and timeliness for Federal agencies
and applicants.
The changes at Sec. 402.13(c) do not alter or apply to the
Services' review of and response to biological assessments prepared for
major construction activities, as outlined at Sec. 402.12. For those
consultations, the response would be required within 30 days, as
outlined at Sec. 402.12(j) and (k).
Section 402.14--Formal Consultation
The Services proposed several amendments to Sec. 402.14.
Consistent with the Services' existing practice, we proposed to revise
Sec. 402.14(c) to clarify what is necessary to initiate formal
consultation and to allow the Services to consider documents such as
those prepared pursuant to the National Environmental Policy Act (NEPA;
42 U.S.C. 4321 et seq.) to be considered as initiation packages, as
long as they meet the requirements for initiating consultation. We also
proposed to: (1) Revise portions of Sec. 402.14(g) that describe the
Services' responsibilities during formal consultation; (2) revise Sec.
402.14(h) to allow the Services to adopt all or part of a Federal
agency's initiation package, or all or part of the Services' own
analyses and findings that are required to issue a permit under section
10(a) of the Act, in its biological opinion; and (3) 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.
The Services received numerous comments related to our proposed
amendments to Sec. 402.14, Formal consultation, as set forth at 83 FR
35192, July 25, 2018. A summary of those comments and our responses are
below at Summary of Comments and Recommendations.
In response to these comments and upon further consideration, in
this final rule, we are finalizing the proposed revisions to Sec.
402.14(g)(2) and (4) and (l), and we are amending Sec. 402.14(c),
(g)(8), and (h) to read as set out in the regulatory text at the end of
this document.
The Services are making a non-substantive edit to the proposed
regulatory text at Sec. 402.14(c)(1)(iii). This non-substantive edit
clarifies that the Services are referring to information about both the
species and its habitat, including any designated critical habitat.
The Services are also making edits to the proposed regulatory text
at Sec. 402.14(g)(8) to simplify the text while maintaining the intent
of the proposed regulatory revisions. More specifically, we are
striking the proposed text that referenced ``specific'' plans and ``a
clear, definite commitment of resources'' with respect to measures
intended to avoid, minimize or, or offset the effects of an action.
Instead, the Services are simplifying the regulatory text to indicate
that such measures are considered like other portions of the action and
do not require any additional demonstration of binding plans.
The simplified regulatory text avoids potential confusion between
the need to sufficiently describe measures a Federal agency is
committing to implement as part of a proposed action to avoid,
minimize, or offset effects pursuant to Sec. 402.14(c)(1), and how
those measures are taken into consideration after consultation is
initiated. Any type of action proposed by a Federal agency receives a
presumption that it will occur, but it must also be described in
sufficient detail that the Services can both understand the action and
evaluate its adverse and beneficial effects. By eliminating the word
``specific'' in Sec. 402.14(g)(8), we reinforce that an appropriate
level of specificity regarding the description of measures included in
the proposed action may be necessary to provide sufficient detail to
assess the effects of the action on listed species and critical
habitat. However, inclusion of measures to avoid, minimize, or offset
adverse effects as part of the proposed action does not result in a
requirement for an additional demonstration of binding plans. To
simplify the regulatory text and improve clarity, we also eliminated
the reference to ``a clear, definite commitment of resources.'' That
change is not meant to imply that an
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additional demonstration of a clear and definite commitment of
resources, beyond the commitment to implement such measures as part of
the proposed action, is required before the Services can take them into
consideration. Rather, we intend the phrase ``do not require any
additional demonstration of binding plans'' that is retained in Sec.
402.14(g)(8) to reflect that demonstrations of resource commitments and
other elements are not required before allowing the Services to take
into account measures included in a proposed action to avoid, minimize,
or offset adverse effects. Therefore, this final rule maintains the
intent of the proposed revisions to Sec. 402.14(g)(8).
The Services are also revising the proposed regulatory text at
Sec. 402.14(h) by adding a new paragraph (h)(1)(ii); redesignating the
existing (h)(1)(ii) and (iii) as (h)(1)(iii) and (iv), respectively;
and making a non-substantive edit at Sec. 402.14(h)(4). New Sec.
402.14(h)(1)(ii) clarifies that the biological opinion will also
include a detailed discussion of the environmental baseline because a
proper understanding of the environmental baseline is critical to our
analysis of the effects of the action, as well as our determination as
to whether a proposed action is likely to jeopardize the continued
existence of a listed species or destroy or adversely modify its
critical habitat. Inclusion of a detailed description of the
environmental baseline is consistent with existing practice (see
Services' 1998 Consultation Handbook at pp. 4-13 and 4-15) and,
therefore, this requirement will not change how the Services prepare
biological opinions.
Section 402.16--Reinitiation of Consultation
We proposed two changes to this section. First, we proposed 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. Second, we proposed 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), by making
non-substantive redesignations and then revising 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 and 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. In addition to seeking comment on the proposed
revision to 50 CFR 402.16, we sought comment on whether to exempt other
types of programmatic land or water management plans in addition to
those prepared pursuant to FLPMA and NFMA, and on the 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
(``2018 Omnibus Act'').
In the proposed revisions to Sec. 402.16, reinitiation of
consultation would be required and would need to be requested by the
Federal agency or by the Service. Moreover, an agency would 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.
The Services received numerous comments related to our proposed
amendments to this section. Comments were generally evenly divided in
support of and in opposition to the proposed Sec. 402.16(b), including
whether we are precluded from expanding relief from reinitiation due to
the 2018 Omnibus Act as well as to whether to extend the exemption to
other types of plans. A summary of those comments and our responses are
below at Summary of Comments and Recommendations.
In response to these comments and upon further consideration, we
revised Sec. 402.16, Reinitiation of consultation, to read as set out
in the regulatory text at the end of this document.
We modified the language at Sec. 402.16(a)(3) to correct the
inadvertent failure of our proposed rule to reference the written
concurrence process in this criterion for reinitiation of consultation.
This criterion references the information and analysis the Services
considered, including information submitted by the Federal agency and
applicant, in the development of our biological opinion or written
concurrence and not just the information contained within the
biological opinion or written concurrence documents. The remaining
three reinitiation criteria at Sec. 402.16(a)(1), (2), and (4) were
unchanged. We also took this opportunity to clarify the meaning of the
reference to the Service in the current and adopted, final version of
Sec. 402.16(a) that reads, ``Reinitiation of consultation is required
and shall be requested by the Federal agency or by the Service, . .
.''. The reference to the Service in this language does not impose an
affirmative obligation on the Service to reinitiate consultation if any
of the criteria have been met. Rather, the reference here has always
been interpreted by the Services to allow us to recommend reinitiation
of consultation to the relevant Federal action agency if we have
information that indicates reinitiation is warranted. It is ultimately
the responsibility of the Federal action agency to reinitiate
consultation with the relevant Service when warranted. The same holds
true for initiation of consultation in the first instance. While the
Services may recommend consultation, it is the Federal agency that must
request initiation of consultation. See 50 CFR 402.14(a).
In addition, we clarified that initiation of consultation shall not
be required for land management plans 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, in certain specific circumstances, 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. This exception to reinitiation of
consultation shall not apply to those land management plans prepared
pursuant to 16 U.S.C. 1604 if 15 years have passed since the date the
agency adopted the land management plan and 5 years have passed since
the enactment of Public Law 115-141 [March 23, 2018], or the date of
the listing of a species or the designation of critical habitat,
whichever is later.
The language at Sec. 402.16(b) is revised from the proposed
amendment to follow the time limitations imposed by Congress for the
relief from reinitiation when a new species is listed or critical
habitat designated for forest management plans prepared pursuant to
NFMA. Because Congress did not address land management plans prepared
pursuant to FLPMA in the 2018 Omnibus Act, the Services have determined
that we may exempt any land management plan prepared pursuant to FLPMA
from reinitiation when a new species is listed or critical habitat is
designated as long as any action taken pursuant to the plan will be
subject to its own section 7 consultation.
[[Page 44981]]
Section 402.17--Other Provisions
We proposed to add a new Sec. 402.17 titled ``Other provisions.''
Within this new section, we proposed 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). The proposed revisions are set out at 83 FR 35193,
July 25, 2018.
The Services received numerous comments related to the proposed
provision, many of which stated the Services should further clarify the
language of the provision. In response to these comments and upon
further consideration, we revised Sec. 402.17 to read as set out in
the regulatory text at the end of this document.
The revisions to the language in Sec. 402.17 are intended to
clarify several aspects of the process of determining whether an
activity or consequence is ``reasonably certain to occur.''
First, we clarified that for a consequence or an activity to be
considered reasonably certain to occur, the determination must be based
on clear and substantial information. The term ``clear and
substantial'' is used to describe the nature of information needed to
determine that a consequence or activity is reasonably certain to
occur. We do not intend to change the statutory requirement that
determinations under the Act are made based on ``best scientific and
commercial data available.'' By clear and substantial, we mean that
there must be a firm basis to support a conclusion that a consequence
of an action is reasonably certain to occur. This term is not intended
to require a certain numerical amount of data; rather, it is simply to
illustrate that the determination of a consequence to be reasonably
certain to occur must be based on solid information. This added term
also does not mean the nature of the information must support that a
consequence is guaranteed to occur, but must have a degree of
certitude.
To be clear, these regulations do not amend a Federal agency's
obligation under the Act's section 7(a)(2); nor do they change the
regulatory standard that action agencies must ``insure'' that their
actions are not likely to jeopardize listed species or destroy or
adversely modify critical habitat. See H.R. Conference Report 96-697
(1979) (confirming section 7(a)(2) requires all federal agencies to
ensure that their actions are not likely to jeopardize endangered or
threatened species or result in the adverse modification of critical
habitat).
Second, in response to requests made in public comments for
clarification of the factors to consider, we revised Sec. 402.17(a)(1)
and (2) to further elaborate what we meant in the original proposed
versions of those factors. In particular, we revised Sec. 402.17(a)(1)
to describe that the Services would include past experience with
``activities that have resulted from actions that are similar in scope,
nature, and magnitude to the proposed action'' when considering whether
an activity might be reasonably certain to occur as a result of the
proposed action under consultation. This is intended to capture the
important knowledge developed by the action agencies and Services over
their decades of consultation experience. We also made minor revisions
to clarify Sec. 402.17(a)(2). The proposed language used the phrase
``any existing relevant plans'' but did not reference to the activity
itself. We recognize that this language may have been confusing and
vague for readers and therefore have modified the text to clarify that
we are referencing plans specific to that activity, not general plans
that may contemplate a variety of activities or uses in an area.
Finally, we added a new paragraph to Sec. 402.17 to emphasize
other considerations that are important and relevant when reviewing
whether a consequence is also reasonably certain to occur. These are
not exhaustive, new, or more stringent factors than what we have used
in the past to determine the likelihood of a consequence occurring nor
are they meant to imply that time, distance, or multiple steps
inherently make a consequence not reasonably certain to occur. See
Riverside Irrigation v. Andrews, 758 F2d 508 (10th Cir. 1985)
(upholding the U.S. Army Corps of Engineers' determination that it
properly reviewed an effect downstream from the footprint of the
action).
Each consultation will have its own set of evaluations and will
depend on the underlying factors unique to that consultation. For
example, a Federal agency is consulting on the permitting of
installation of an outfall pipe. A secondary, connecting pipe owned by
a third party is to be installed and would not occur ``but for'' the
proposed outfall pipe, and existing plans for the connecting pipe make
it reasonably certain to occur. Under our revised definition for
effects of the action, any consequences to listed species or critical
habitat caused by the secondary pipe would be considered to fall within
the effects of the agency action. As the rule recognizes, however,
there are situations, such as when consequences are so remote in time
or location, or are only reached following a lengthy causal chain of
events, that the consequences would not be considered reasonably
certain to occur.
Summary of Comments and Recommendations
Section 402.02--Definitions
Definition of Destruction or Adverse Modification
We revised 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 prior 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'' (51 FR 19926,
June 3, 1986, codified at 50 CFR 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 (81 FR 7214; February 11, 2016).
In this final rule, we have further clarified the definition. The
addition of the phrase ``as a whole'' to the first sentence reflects
existing practice and the Services' longstanding interpretation that
the final destruction or adverse modification determination is made at
the scale of the entire critical habitat designation. The deletion of
the second sentence removes language that is redundant and has caused
confusion about the meaning of the regulation. These revisions are
unchanged from the proposed rule, and further explanation of their
background and rationale is provided in the preamble text of the
proposed rule.
Comments on the Destruction and Adverse Modification Definition
Comment: Several commenters disagreed with defining ``destruction
or adverse modification'' at all, saying that such a definition was
unnecessary and that we should rely only on the statutory language.
Others suggested creating separate definitions for ``destruction'' and
``adverse modification,'' and suggested that not doing so is an
impermissible interpretation of the Act.
Response: The term ``destruction or adverse modification'' has been
defined by regulation since 1978. We continue to believe it is
appropriate and within
[[Page 44982]]
the Services' authority to define this term and believe that this
revision to that definition will improve the clarity and consistency in
the application of these concepts. Furthermore, the Services have
discretion to issue a regulatory interpretation of the statutory phrase
``destruction or adverse modification'' and are not required to break
such a phrase into separate definitions of its individual words. The
Services believe that the inquiry is most usefully and appropriately
defined by the general standard in our definition, and that ultimately
the determination focuses on how the agency action affects the value of
the critical habitat for the conservation of the species, regardless of
whether the contemplated effects constitute ``destruction'' or
``adverse modification'' of critical habitat.
Comment: One commenter asserted that the definition should not
include the phrase ``or indirect'' because it would allow for
``speculative actions to be used as determining factors.''
Response: The final rule does not alter the use of the phrase ``or
indirect'' which has been in all prior versions of this definition. In
addition, we note that the phrase has long been included in, and
continues to be used in, the definitions of ``jeopardize the continued
existence of'' and ``action area.'' We continue to believe its
inclusion is appropriate in this context and takes into account that
some actions may affect critical habitat indirectly. The Services use
the best scientific and commercial data available and do not rely upon
speculation in determining the effects of a proposed action or in
section 7(a)(2) ``destruction or adverse modification'' determinations.
The standards for determining effects of a proposed action are further
discussed above under Definition of ``Effects of the Action''.
Comment: One commenter said that a lead agency should defer to
cooperating agencies in evaluating potential impacts on critical
habitat when the cooperating agencies have jurisdiction over the area
being analyzed.
Response: The term ``cooperating agency'' arises in the NEPA
context. Generally speaking, the lead agency under NEPA may also be a
section 7 action agency under the Act. Cooperating agencies can be a
valuable source of scientific and other information relevant to a
consultation and may play a role in section 7 consultation. The Federal
action agency, however, remains ultimately responsible for its action
under section 7. Under 50 CFR 402.07, where there are multiple Federal
agencies involved in a particular action, a lead agency may be
designated to fulfill the consultation and conference responsibilities.
The other Federal agencies can assist the lead Federal agency in
gathering relevant information and analyzing effects. The determination
of the appropriate lead agency can take into account factors including
their relative expertise with respect to the environmental effects of
the action.
Comment: Some commenters said that the revised definition creates
uncertainty and potential lack of consistency regarding when formal or
informal consultation is required, or that it revised the triggers for
initiating consultation.
Response: The revisions to this definition should not create any
additional uncertainty about when formal or informal consultation is
required, because these revisions do not change the obligations of
action agencies to consult or the circumstances in which consultation
must be initiated.
Comment: Several commenters offered their own, alternative re-
definitions of the phrase ``destruction or adverse modification.'' For
example, one commenter suggested the phrase should be defined to mean
``a direct or indirect alteration caused by the proposed action that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species.''
Response: We recognize that there could be more than one
permissible, reasonable interpretation of this phrase. The definition
we have adopted is an incremental change that incorporates longstanding
approaches, modified from the 2016 definition (81 FR 7214; February 11,
2016) to improve clarity and consistency of application. Our adopted
definition also has the value of being succinct. We do not view the
proposed alternative definitions as improving upon clarity, and they
may also contain unnecessary provisions or incorporate additional
terminology that could itself be subject to multiple or inappropriate
meanings.
Comment: Several commenters suggested that the definition should
clarify that the only valid consideration in making a ``destruction or
adverse modification'' determination is the impact of an action on the
continued survival of the species, and that it should not take into
consideration the ability of the species to recover. Conversely, some
commenters said the definition improperly devalues or neglects
recovery.
Response: Our definition focuses on the value of the affected
habitat for ``conservation,'' a term that is defined by statute as
implicating recovery (see 16 U.S.C. 1532(3)). ``Conservation'' is the
appropriate focus because critical habitat designations are focused by
statute on areas or features ``essential to the conservation of the
species'' (16 U.S.C. 1532(5); see also 50 CFR 402.02 (defining
``recovery'')).
Comment: Several commenters said that the Services should do more
to identify how they assess the value of critical habitat for the
conservation of a species. They recommend measures such as identifying
specific metrics of conservation value, providing guidance on the use
of recovery or planning tools to identify targets for preservation or
restoration, and defining de minimis thresholds or standardized project
modifications that could be applied to recurring categories of projects
in order to avoid triggering a ``destruction or adverse modification''
determination.
Response: As noted in the proposed rule preamble, the value of
critical habitat for the conservation of a listed species is described
primarily through the critical habitat designation itself. That
designation itself will identify and describe, in occupied habitat,
``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)). Similarly,
designations of any unoccupied habitat will describe the reasons that
such areas have been determined to be ``essential for the conservation
of the species'' (16 U.S.C. 1532(5)(A)(ii)). Critical habitat
designations, recovery plans, and related information often provide
additional and specific discussions regarding the role and quality of
the physical or biological features and their distribution across the
critical habitat in supporting the recovery of the listed species.
Regarding concepts such as defining metrics of value or pre-defined
de minimis standards, the Services often assist action agencies in
developing conservation measures during consultation that would work to
reduce or minimize project impacts to critical habitat. The final rule
contains provisions on programmatic consultations that could facilitate
establishing and applying broadly applicable standards or guidelines
based on recurring categories of actions whose effects can be
understood and anticipated in advance. However, predefined metrics,
standards, and thresholds for categories of action in many instances
are not feasible, given variations in the actions, their circumstances
and setting, and evolving scientific knowledge.
[[Page 44983]]
Comments on the Addition of the Phrase ``As a Whole''
Comment: Some comments supported the change, saying that the
addition of this phrase was consistent with existing Services practice
and guidance, or said the addition improved the definition and
clarified the appropriate scale at which the ``destruction or adverse
modification'' determination applies. Some commenters noted that the
addition helps place the inquiry in its proper functional context and
observed that alteration of critical habitat is not necessarily a per
se adverse modification.
Response: We agree that the addition of ``as a whole'' helps
clarify the application of the definition, without changing its meaning
or altering current policy and practice.
Comment: One commenter said that the addition of ``as a whole''
could cause confusion as to whether it referred to the critical habitat
or the species.
Response: The phrase ``as a whole'' is intended to apply to the
critical habitat designation, not to the phrase ``a species.''
Comment: Some commenters asserted that adding ``as a whole'' to the
definition meant that small losses would no longer be considered
``destruction or adverse modification'' because they would be viewed as
small compared to the ``whole'' designation. Some of these comments
asserted that under this definition, ``destruction or adverse
modification'' would only be found if an action impacted the entire
critical habitat designation or a large area of it. Some also noted
that effects in small areas can have biological significance (e.g., a
migration corridor), and that impacts in a small area could be
significant to a small, local population or important local habitat
features.
Response: The addition of ``as a whole'' clarifies but does not
change the Services' approach to assessing critical habitat impacts, as
explained in the preamble to the proposed rule and in the 2016 final
rule on destruction and adverse modification (81 FR 7214; February 11,
2016). In that 2016 rule, we elected not to add this phrase, but made
clear that the phrase did describe and reflect the appropriate scale of
``destruction or adverse modification'' determinations. Consistent with
longstanding practice and guidance, the Services must place impacts to
critical habitat into the context of the overall designation to
determine if the overall value of the critical habitat is likely to be
appreciably reduced. The Services agree that it would not be
appropriate to mask the significance of localized effects of the action
by only considering the larger scale of the whole designation and not
considering the significance of any effects that are occurring at
smaller scales (see, e.g., Gifford Pinchot, 378 F.3d at 1075). The
revision to the definition does not imply, require, or recommend
discounting or ignoring the potential significance of more local
impacts. Such local impacts could be significant, for instance, where a
smaller affected area of the overall habitat is 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.
Comment: Some comments expressed concern that the ``as a whole''
language, along with the preamble interpretation of ``appreciably
diminish,'' undermined conservation because it would allow more
piecemeal, incremental losses that over time would add up cumulatively
to significant losses or fragmentation (referred to by many comments as
``death by a thousand cuts''). One commenter further expressed concern
that such accumulated losses would add to the regulatory burden faced
by private landowners with habitat on their lands. Some commenters
asserted that the ``as a whole'' language would be difficult or
burdensome to implement, because the Services lacked sufficient
capacity to track or aggregate losses over time and space.
Response: As already noted, the revisions to the definition will
not reduce or alter how the Services consider the aggregated effects of
smaller changes to critical habitat. It should be emphasized that the
revisions to this definition also do not alter or impose any additional
burdens on action agencies or applicants to provide information on the
nature of the proposed action or that action's effects on critical
habitat or listed species. The regulations require the Services'
biological opinion to assess the status of the critical habitat
(including threats and trends), the environmental baseline of the
action area, and cumulative effects. The Services' summary of the
status of the affected species or critical habitat considers the
historical and past impacts of activities across time and space. The
effects of any particular action are thus evaluated in the context of
this assessment, which incorporates the effects of all current and
previous actions. This avoids situations where each individual action
is viewed as causing only relatively minor adverse effects but, over
time, the aggregated effects of these actions would erode the
conservation value of the critical habitat.
In this final rule, we are also clarifying the text at Sec.
402.14(g)(4) regarding status of the species and critical habitat to
better articulate how the Services formulate their opinion as to
whether an action is likely to jeopardize the continued existence of
listed species or result in the destruction or adverse modification of
critical habitat. This clarification will help ensure the ``incremental
losses'' described by the commenters are appropriately considered in
our jeopardy and destruction or adverse modification determinations.
The Services also make use of tracking mechanisms and tools to help
track the effects of multiple agency actions. The Services have long
recognized that tracking the effects of successive activities and
projects is a significant challenge and continue to prioritize
improvement of the methods for doing so. We also note that the use of
programmatic consultations, as addressed elsewhere in this rule, can
help with this challenge by encouraging consultation at a broad scale
across geographic regions and programs encompassing multiple activities
and actions. Finally, in response to concerns that this change would
impose additional burdens on private landowners, the Services remind
the public that critical habitat designation creates no
responsibilities for the landowner unless the landowner proposes an
activity that includes Federal funding or authorization of a type that
triggers consultation. Otherwise, the designation of critical habitat
requires no changes to the landowner's use or management of their land.
Comment: Some commenters said that adding the phrase ``as a whole''
would make application of the definition more subjective and less
consistent.
Response: The comment appears to be motivated by the belief that
any adverse effect to critical habitat should be considered, per se,
``destruction or adverse modification,'' and that the change introduces
a new element of subjectivity. We do not agree. As with under the prior
definition, the Services are always required to exercise judgment and
apply scientific expertise when making the ultimate determination as to
whether adverse effects rise to the level of ``destruction or adverse
modification.''
[[Page 44984]]
Comment: Some commenters said that this change would impermissibly
render the definition of ``destruction or adverse modification'' too
similar or the same as the definition of ``jeopardize the continued
existence of,'' while the statute intends them to have different
meanings. Some also said that this addition conflicted with case law
stating that the two phrases have distinct meanings.
Response: The Services do not agree that the addition of ``as a
whole'' leads to improper conflation of the meanings of ``jeopardize
the continued existence of'' and ``destruction or adverse
modification.'' The terms ``destruction or adverse modification'' and
``jeopardize the continued existence of'' have long been recognized to
have distinct meanings yet implicate overlapping considerations in
their application. See, e.g., Sierra Club v. U.S. Fish & Wildlife
Service, 245 F.3d 434, 441 (5th Cir. 2001); Greenpeace v. National
Marine Fisheries Serv., 55 F.Supp.2d 1248, 1265 (W.D. Wash.1999);
Conservation Council for Hawai`i v. Babbitt, 2 F.Supp.2d 1280, 1287 (D.
Haw. 1998). The phrase ``jeopardize the continued existence of''
focuses directly on the species' survival and recovery, while the
definition of ``destruction or adverse modification'' is focused first
on the critical habitat itself, and then considers how alteration of
that habitat affects the ``conservation'' value of critical habitat.
Thus, the terms ``jeopardize the continued existence of'' and
``destruction or adverse modification'' involve overlapping but
distinct considerations. See Sierra Club v. U.S. Fish & Wildlife Serv.,
245 F.3d 434, 441 (5th Cir. 2001) (noting that the critical habitat
analysis is more directly focused on the effects on the designated
habitat and has a ``more attenuated'' relationship to the survival and
recovery of the species than the ``jeopardize'' analysis).
Comment: Several commenters provided arguments or recommendations
regarding the geographic scale at which ``destruction or adverse
modification'' determinations should focus and asserted that the ``as a
whole'' was not necessarily the right scale. One commenter said the
appropriate scale was the critical habitat unit or larger, especially
for wide-ranging species. Some commenters said that the ``as a whole''
language was inappropriate because the appropriate geographic scale for
assessing ``destruction or adverse modification'' was a scientific
question. Similarly, one comment asserted the Services must use a
``biologically meaningful'' scale. A group of State governors
questioned how scale would be treated when there was a portion of
critical habitat in one State that was geographically unconnected to
critical habitat in other States.
Response: The use of the phrase ``as a whole'' is not solely meant
to establish a geographic scale for ``destruction or adverse
modification'' determinations. The phrase applies to assessing the
value of the whole designation for conservation of the species. Effects
at a smaller scale that could be significant to the value of the
critical habitat designation will be considered. As the preamble to the
proposed rule notes, ``the Services must [then] place those impacts in
context of the designation to determine if the overall value of the
critical habitat is likely to be reduced'' (83 FR 35178, July 25, 2018,
p. 83 FR 35180). Thus, while the destruction or adverse modification
analysis will consider the nature and significance of effects that
occur at a smaller scale than the whole designation, the ultimate
determination applies to the value of the critical habitat designation
as a whole.
Comment: One commenter said that the addition of ``as a whole'' was
inconsistent with the following language in the 1998 Consultation
Handbook: ``The consultation or conference focuses on the entire
critical habitat area designated unless the critical habitat rule
identifies another basis for analysis, such as discrete units and/or
groups of units necessary for different life cycle phases, units
representing distinctive habitat characteristics or gene pools, or
units fulfilling essential geographic distribution requirements.'' See
1998 Consultation Handbook at p. 4-42.
Response: The revised definition is not inconsistent with the
quoted 1998 Consultation Handbook guidance. As we stated in our
preamble to the proposed rule, under the revised definition, ``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'' (83 FR
35178, July 25, 2018, p. 83 FR 35180). In other words, it may be
appropriate to focus on a unit of analysis that is smaller than the
entire designation, but it would not be appropriate to conclude the
analysis without relating the result of the alterations at that scale
back to the listed entity, which is the designation ``as a whole,'' in
order to assess whether the value of that designation to the
conservation of a listed species is appreciably diminished.
Comment: Some commenters disagreed with the addition of ``as a
whole'' because they said it conflicted with the plain language of the
statute. In particular, some asserted that, by statute, critical
habitat is ``essential to the conservation of the species.'' They
reason that, accordingly, any adverse effect is therefore per se
``destruction or adverse modification'' since it is the loss or
reduction of something that is ``essential.'' Some of these commenters
also focused similar criticism on the preamble discussion of the phrase
``appreciably diminish,'' as discussed further below.
Response: The Services do not agree that any adverse effect to
critical habitat is per se ``destruction or adverse modification,'' a
subject further discussed in the discussion of ``appreciably diminish''
in the preamble to the proposed rule and the discussion of comments on
that preamble provided below. Nor do the Services agree that the use of
the term ``essential to the conservation of the species'' in the Act's
definition of critical habitat requires such an interpretation. The
phrase ``essential to the conservation of the species'' guides which
areas will be designated but does not require that every alteration of
the designated critical habitat is prohibited by the statute. 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 must ultimately consider the
diminishment to the value for conservation at the scale of the entire
critical habitat designation. As the 1998 Consultation Handbook states,
adverse effects on elements or segments of critical habitat ``generally
do not result in jeopardy or adverse modification determinations unless
that loss, when added to the environmental baseline, is likely to
result in significant adverse effects throughout the species' range, or
appreciably diminish the ability of the critical habitat to satisfy
essential requirements of the species.'' See 1998 Consultation Handbook
at p. 4-36. Accordingly, the Ninth Circuit Court of Appeals has held
that ``a determination that critical habitat would be destroyed was
thus not inconsistent with [a]
[[Page 44985]]
finding of no `adverse modification.' '' See also Butte Envir. Council
v. U.S. Army Corps of Eng'rs, 620 F.3d 936, 947-48 (9th Cir. 2010).
Deletion of the Second Sentence
Comment: Some commenters claimed that removal of the sentence was
unnecessary, and that doing so would eliminate important guidance
embedded in the definition for appropriate factors to consider in the
destruction or adverse modification analysis. Some suggested removing
the provision about ``preclusion or delay'' of features, while keeping
the remainder. One commenter suggested keeping the second sentence and
expanding it to include additional language about cumulative loss of
habitat required for recruitment. However, other commenters agreed with
removing the second sentence, saying it was duplicative of the content
of the first sentence, was vague and confusing, or that it contained
provisions that overstepped the Services' authority. One commenter
stated that removal of the second sentence will help place the focus on
whether or not a project would ``appreciably diminish'' the value of
critical habitat as a whole for the conservation of the species.
Response: This revision was made because the second sentence of the
definition adopted in the 2016 final rule (81 FR 7214; February 11,
2016) has caused controversy among the public and many stakeholders.
The revised definition streamlines and simplifies the definition. We
agree with the commenters who stated that the second sentence was
unnecessary--it had attempted to elaborate upon meanings that are
already included within the first sentence. We also agree with the
commenters who said that removing the second sentence will
appropriately focus attention on the operative first sentence, which
states that 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.''
Comment: Some commenters were concerned that removal of the second
sentence meant that the Services were stating that a destruction or
adverse modification determination must always focus only on existing
features, or that the Services intended to downplay the fact that some
designated habitat may be governed by dynamic natural processes or be
degraded and in need of improvement or restoration to recover a
species. Such commenters also pointed out that species' habitat use and
distribution can also be dynamic and change over time. Some commenters
similarly asserted that this change improperly downgraded the
importance of unoccupied critical habitat for recovery or asserted that
the revision showed the Services were lessening their commitment to
habitat improvement and recovery efforts.
Response: As already noted, the deletion of the second sentence was
meant to clarify and simplify the definition, but not to change the
Services' current practice and interpretation regarding the
applicability of the definition. Nor does the change mean that the
recovery role of unoccupied critical habitat will not be considered in
destruction or adverse modification determinations. As noted in the
preamble to the proposed rule, 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.'' See also 79 FR 27060, May 12, 2014, p.
27061. Nor do the revisions mean that the Services are lessening their
commitment to programs and efforts designed to bring about improvements
to critical habitat.
Comment: In contrast to commenters who opposed removing the second
sentence, some commenters favored the removal of the second sentence
because it would remove the phrase ``preclude or significantly delay
development of such features.'' Some asserted this phrase was confusing
or could lead to inconsistent or speculative application of the
definition; others said that this phrase overstepped the Services'
statutory authority and that ``destruction or adverse modification''
had to focus on existing features and could not be based on the
conclusion that an action would ``preclude or significantly delay'' the
development of such features. Some of these commenters also disputed
language in the preamble of the proposed rule that they said indicated
that the Services would improperly consider potential changes to
critical habitat in making ``destruction or adverse modification''
determinations, rather than focusing solely on existing features.
Response: The Services agree that the second sentence was
unnecessary and that its removal will simplify and clarify the
definition. The Services agree that it is important in any destruction
or adverse modification assessment to focus on adverse effects to
features that are currently present in the habitat, particularly where
those features were the basis for its designation. However, as noted in
the preamble to the proposed rule, there may also be circumstances
where, within some areas of designated critical habitat at the time of
consultation, ``some important physical or biological features may not
be present or are present in a sub-optimal quantity or quality. This
could occur when, for example, the habitat has been degraded by human
activity or is part of an ecosystem adapted to a particular natural
disturbance (e.g., fire or flooding), which does not constantly occur
but is likely to recur'' (79 FR 27060, May 12, 2014, p. 27061). The
extent to which the proposed action is anticipated to impact the
development of such features is a relevant consideration for the
Services' critical habitat analysis. The Services reaffirm their
longstanding practice that any destruction or adverse modification
determination must be grounded in the best scientific and commercial
data available and should not be based upon speculation.
Appreciably Diminish
In order to further clarify application of the definition of
``destruction or adverse modification,'' the preamble to the proposed
rule discussed the term ``appreciably diminish.'' The proposed rule did
not contain any revisions to regulatory text defining this phrase or
changing how it is used in the regulations. The preamble discussion was
thus not intended to provide a new or changed interpretation of the
Act's requirements, but instead was intended to help clarify how the
Services apply the term ``appreciably diminish'' and to discuss some
alternative interpretations that the Services do not believe correctly
reflect the requirements of the statute or the Services' regulations.
Below is discussion of comments received on this proposed rule preamble
discussion of ``appreciably diminish,'' as well as related comments on
the preamble discussion of associated topics of ``baseline jeopardy''
and ``tipping point.''
Comment: A number of commenters expressed agreement with this
section of the preamble, and the Services' interpretation that not
every adverse effect to critical habitat constitutes ``destruction or
adverse modification'' (and relatedly, that not every adverse effect to
a species ``jeopardizes the continued existence of'' a listed species).
Some commenters noted that this interpretation comports with case
[[Page 44986]]
law holding that a finding of adverse effects on critical habitat do
not automatically require a determination of ``destruction or adverse
modification,'' such as Butte Env. Council, 620 F.3d 936, 948 (9th Cir.
2010).
Response: We appreciate that these commenters found this preamble
discussion helpful.
Comment: Some commenters criticized the preamble language as
creating too broad of a standard. Those commenters asserted that the
preamble language implied that any effect, as long as it could be
measured, could trigger an adverse modification opinion. For example,
one commenter asserted that the Services were lowering the standard so
that ``any measurable or recognizable effect'' on critical habitat
would be considered destruction or adverse modification.
Response: It was not our intention to imply, or state in any
manner, that any effect on critical habitat that can be measured would
amount to adverse modification of critical habitat. To the contrary,
our experience with consultations has demonstrated that the vast
majority of consultations that involved an action with adverse effects
do not amount to a determination of adverse modification of critical
habitat.
We believe some of the confusion expressed by these comments can be
alleviated by providing more explanation of where in the consultation
process the ``appreciably diminish'' concept comes into play. The
consultation process sets up a multiple-stage evaluation process of
effects to critical habitat. The first inquiry--even before
consultation begins--is whether any effect of an action ``may affect''
critical habitat. In order to determine if there is an effect, of
course, it would have to be something that can be described or
detected. The second consideration, then, would be whether that effect
has an adverse effect on the critical habitat within the action area.
To make that determination, the effect would need to be capable of
being evaluated, in addition to being detected or described (see 1998
Consultation Handbook at pp. 3-12-3-13 (noting that ``insignificant''
effects will not even trigger formal consultation, and that at this
step, the evaluation is made of whether a person would ``be able to
meaningfully measure, detect, or evaluate'' the effects)). The finding
that an effect is adverse at the action-area scale does not mean that
it has met the section 7(a)(2) threshold of ``destruction or adverse
modification''; rather, that is a determination that simply informs
whether formal consultation is required at all. Therefore, an adverse
effect is not, by definition, the equivalent of ``destruction or
adverse modification,'' and further examination of the effect is
necessary. As noted above, courts have also endorsed this view; see,
e.g., Butte Envtl. Council v. U.S. Army Corps of Eng'rs, 620 F.3d 936,
947-48 (9th Cir. 2010) (holding that ``a determination that critical
habitat would be destroyed was thus not inconsistent with [a] finding
of no `adverse modification' '').
After effects are determined to be adverse at the action-area
scale, they are analyzed with regard to the critical habitat as a
whole. That is, the Services look at the adverse effects and evaluate
their impacts when added to the environmental baseline and cumulative
effects on the value of the critical habitat for the conservation of
the species, taking into account the total and full extent as described
in the designation, not just in the action area. It is at this point
that the Services look to whether the effects diminish the role of the
entire critical habitat designation. As discussed further above in our
discussion of the phrase ``as a whole,'' the Services must place
impacts to critical habitat into the context of the overall designation
to determine if the overall value of the critical habitat is likely to
be reduced.
Even if it is determined that the effects appear likely to diminish
the value of the critical habitat, a determination of ``destruction or
adverse modification'' requires more than adverse effects that can be
measured and described. At this stage in the consultation's multi-
staged evaluations, the Services will need to evaluate the adverse
effects to determine if the adverse effects when added to the
environmental baseline and cumulative effects will diminish the
conservation value of the critical habitat in such a considerable way
that the overall value of the entire critical habitat designation to
the conservation of the species is appreciably diminished. It is only
when adverse effects from a proposed action rise to this considerable
level that the ultimate conclusion of ``destruction or adverse
modification'' of critical habitat can be reached.
Comment: Several commenters suggest that in addition to defining
``destruction or adverse modification,'' the Services should adopt a
new regulatory definition of ``appreciably diminish.'' For example, one
comment suggests the definition should read ``means to cause a
reasonably certain reduction or diminishment, beyond baseline
conditions, that constitutes a considerable or material reduction in
the likelihood of survival and recovery.''
Response: The Services believe our revised definition of
``destruction or adverse modification'' will be clearer than before,
while retaining continuity by keeping important language from prior
versions of the definition. We do not think the various proposed
definitions for ``appreciably diminish'' would improve upon the
``destruction or adverse modification'' definition, and we conclude
they would themselves introduce additional undefined, ambiguous
terminology that would not likely improve the clarity of the definition
or the consistency of its application.
Comment: Some commenters suggest the Services state in rule text or
preamble that ``appreciably diminish'' should be defined as it was in
the 1998 Consultation Handbook: ``to considerably reduce the capability
of designated or proposed critical habitat to satisfy requirements
essential to both the survival and recovery of a listed species.'' Some
commenters further assert that the Services should disavow language in
the 2016 final rule preamble (81 FR 7214; February 11, 2016) to the
effect that ``considerably'' means ``worthy of consideration'' and that
it applies where the Services ``can recognize or grasp the quality,
significance, magnitude, or worth of the reduction in the value of''
critical habitat. They assert this language is too broad and gives the
Services too much discretion or will cause the Services to find
``destruction or adverse modification'' in inappropriate circumstances.
One commenter notes that some courts have affirmed the 1998
Consultation Handbook definition and held the term ``appreciably''
means ``considerable'' or ``material.'' See, e.g., Pac. Coast Feds. of
Fishermen's Assn's v. Gutierrez, 606 F. Supp. 2d 1195, 1209 (E.D. Cal.
2008); Forest Guardians v. Veneman, 392 F. Supp. 2d 1082, 1092 (D.
Ariz. 2005).
Response: We believe the interpretation provided in our proposed
rule preamble and as described above in detail is consistent with the
guidance provided in the 1998 Consultation Handbook and the language
used in the 2016 final rule (81 FR 7214; February 11, 2016). The
preamble language in the draft rule did not seek to raise or lower the
bar for making a finding of destruction or adverse modification. As
with the 2016 definition and prior practice on the part of the
Services, and as discussed above, destruction or adverse modification
is more than a noticeable or measurable change. As we have detailed
above, in order to trigger adverse modification, there must be an
alteration that appreciably diminishes
[[Page 44987]]
the value of critical habitat as a whole for the conservation of a
listed species.
Comment: Some comments sought for the Services to develop a more
exact or quantifiable method of determining destruction or adverse
modification. One commenter requested that the Services develop
regulations setting forth quantifiable ``statistical tools appropriate
for the attribute of interest'' to guide such determinations, based on
``defensible science that leads to reliable knowledge in quantifying
the impacts of proposed or extant alterations related to habitat or
populations of listed species.''
Response: Where appropriate, the Services use statistical and
quantifiable methods to support determinations of ``destruction or
adverse modification'' under the ``appreciably diminish'' standard, but
the best scientific and commercial data available often does not
support this degree of precision. As such, the Services are required to
apply the statute and regulations, and reach a conclusion even where
such data and methods are not available.
Comment: Some commenters asserted that the preamble discussion of
``appreciably diminish'' stated an interpretation that was inconsistent
with the statute, insufficiently protective of critical habitat, and
would make the bar too high for making findings of ``destruction or
adverse modification.'' Many of these comments linked the ``appreciably
diminish'' language in the preamble with the ``as a whole'' change to
the first sentence of the definition and concluded that these operated
together to raise the tolerance for incremental and cumulative losses
that would over time degrade critical habitat and undermine
conservation. Thus, some of these comments are also addressed above in
the discussion of ``as a whole.'' These comments often also raise
issues about the concepts of ``tipping point'' and ``baseline
jeopardy'' addressed further below.
Response: Our preamble discussion does not raise or lower the bar
for finding ``destruction or adverse modification.'' The Services
believe that this discussion of ``appreciably diminish'' comports with
prior guidance and with the statute.
Baseline Jeopardy and Tipping Point
As discussed in our proposed rule's preamble, the definitions of
``destruction or adverse modification'' and ``jeopardize the continued
existence of'' both use the term ``appreciably,'' and the analysis must
always consider whether impacts are ``appreciable,'' even where
critical habitat or a species already faces severe threats prior to the
action. We thus noted that the statute and regulations do not contain
any provisions under which a species should be found to be already
(pre-action) in an existing 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.'' As we explained, 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 actions. They
are not determinations made about the environmental baseline for the
proposed action or about the pre-action condition of the species.
The proposed rule's preamble also explains the Services' view that,
contrary to the implications of some court opinions and commenters,
they are not, in making section 7(a)(2) determinations, required to
identify a ``tipping point'' beyond which the species cannot recover
from any additional adverse effect. Neither the Act nor our regulations
state any requirement for the Services to identify a ``tipping point''
or recovery benchmark 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 on jeopardy or destruction
or adverse modification is exceeded. We also noted that the state of
science often does not allow the Services to identify a ``tipping
point'' for many species.
Comment: Some commenters stated opposition to the Services'
interpretation and said it would undermine conservation. In particular,
many commenters asserted that some species are so imperiled or rare
that they are in fact in a state of ``baseline jeopardy'' and cannot
sustain any additional adverse effects. Such species, they asserted,
should be considered to be in a state of ``baseline jeopardy'' or
``baseline peril.''
Response: The Services do not dispute that some listed species are
more imperiled than others, and that for some very rare or very
imperiled species, the amount of adverse effects to critical habitat or
to the species itself that can occur without triggering a
``jeopardize'' or ``destruction or adverse modification'' determination
may be small. However, the statute and regulations do not contain the
phrase ``baseline jeopardy.'' Nor does the statute or its regulations
recognize any state or status of ``baseline jeopardy.'' While the term
``jeopardy'' is sometimes used as a shorthand, the statutory language
is ``jeopardize the continued existence,'' and it applies prospectively
to the effects of Federal actions, not to the pre-action status of the
species. As we stated in our proposed rule preamble, ``[t]he 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
[Act], 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'' (83 FR 35178, July 25,
2018, p. 83 FR at 35182). For the ``jeopardize'' determinations, as
with the ``destruction or adverse modification'' determinations, a
determination that there are likely to be adverse effects of a Federal
action is the starting point of formal consultation. The Services are
then obliged to consider the magnitude and significance of the effects
they cause, when added to the environmental baseline and cumulative
effects, and the status of the species or critical habitat, before
making our section 7(a)(2) determination.
Comment: Some commenters asserted that it is not possible to
rationally analyze whether an action jeopardizes a species without
identifying a ``tipping point.''
Response: Different commenters, as well as prior court opinions,
have offered varying interpretations of what the term ``tipping point''
means. For example, one commenter on the proposed rule says that
``[t]ipping points for species are when the environment degrades itself
to where the population growth is too low to support a viable
population.'' The Ninth Circuit Court of Appeals has described the
concept as ``a tipping point beyond which the species cannot recover.''
See Oceana, Inc. v. Nat'l Marine Fisheries Serv., 705 F. App'x 577, 580
(9th Cir. 2017); see also Wild Fish Conservancy v. Salazar, 628 F.3d
513, 527 (9th Cir. 2010) (referring to a ``tipping point precluding
recovery''). Another Ninth Circuit case described the issue as one of
determining ``at what point survival and recovery will be placed at
risk'' (Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d
917, 936 (9th Cir. 2008)), in order to avoid ``tipping a listed species
too far into danger.'' Id. We disagree that a rational analysis of
whether an action is likely to jeopardize a species necessarily
requires identification of such a ``tipping point.''
[[Page 44988]]
The state of the science regarding the trends and population dynamics
of a species may often not be robust enough to establish such tipping
points with sufficient certainty or confidence, and the Services have
successfully increased the abundance of some species from a very small
population size (e.g., California condor). In addition, there are
myriad variables that affect species viability, and it would not likely
be the case that one could reduce the inquiry to a single ``tipping
point.'' For example, species viability may be closely tied to
abundance, reproductive rate or success, genetic diversity, immunity,
food availability or food web changes, competition, habitat quality or
quantity, mate availability, etc. In those cases, the attempt to define
a tipping point could undermine the rationality of the determination,
bind the Services to base their judgment on overly rigid criteria that
give a misleading sense of exactitude, and unduly limit the ability to
exercise best professional judgment and factor in the actual scientific
uncertainties. The Services do not dispute that, in some cases, there
could be a species that is so rare or imperiled that it reaches a point
where there is little if any room left for it to tolerate additional
adverse effects without being jeopardized by the action. But even in
those cases, the Services would apply the necessary ``reduce
appreciably'' standard to the ``jeopardize'' determination. The
Services' final determination should be judged according to whether it
reasonably applied the governing statutory and regulatory standards and
used the best scientific and commercial data available. There is no de
facto or automatic requirement that a reasonable conclusion must
include an artificial requirement, ungrounded in the statute, to
identify a ``tipping point.''
Comment: Some commenters asserted that the preamble, particularly
with respect to ``tipping point'' and ``baseline jeopardy,'' was
inconsistent with the interpretation stated in a 1981 ``Solicitor's
opinion'' referenced as Appendix D to the 1998 Consultation Handbook.
The commenters call attention to a statement in that memorandum
describing how, when a succession of Federal actions may affect a
species, ``the authorization of Federal projects may proceed until it
is determined that further actions are likely to jeopardize the
continued existence of a listed species or adversely modify its
critical habitat.'' That memo further states that ``[i]t is this
`cushion' of natural resources which is available for allocation to
[Federal] projects until the utilization is such that any future use
may be likely to jeopardize a listed species or adversely modify or
destroy its critical habitat. At this point, any additional Federal
activity in the area requiring a further consumption of resources would
be precluded under section 7.'' Commenters assert that this language
recognizes the existence of ``baseline jeopardy'' and/or recognizes
that the Services must utilize the tipping point concept in performing
a section 7(a)(2) analysis.
Response: The subject matter of the referenced memorandum was the
treatment of cumulative effects. In any case, the guidance provided in
that memorandum is not in conflict with the preamble discussion
provided in the proposed rule on ``appreciably diminish,'' ``tipping
point,'' and ``baseline jeopardy,'' or in conflict with the Services'
long-standing interpretations stated in the recent proposed rule's
preamble. The position of the Services is that there is nothing in the
Act or its regulations, or necessitated under the standards of the
Administrative Procedure Act, requiring that a section 7(a)(2) analysis
quantify or identify a ``tipping point.''
Definition of Director
Comment: Some commenters agreed with the proposed revised
definition. One commenter expressed concern that revising the
definition would require consultations to be finalized at the Services'
Headquarters offices and result in delays. Another commenter suggested
the definition make clear that any ``authorized representative'' of the
Director meet the respective eligibility requirements for political
appointment to the position of Assistant Administrator for Fisheries
for NMFS and Director of FWS.
Response: While we understand the commenter's observation regarding
occasional lapses in Senate-confirmed agency leadership, we are unaware
of any actual issues related to either the existing or revised
definition; therefore, we decline to make any additional changes. As
stated in the proposed rule, the purpose of revising the definition is
to clarify and simplify it, in accordance with the Act and the
Services' current practice. The revised definition designates the head
of both FWS and NMFS as the definitional Director under the Act section
7 interagency cooperation regulations. The change does not revise the
current signature delegations of the Services in place that allow for
signature of specified section 7 documents (e.g., biological opinions
and concurrence letters) at the regional and field levels and will not
increase the completion time for consultation.
Definition of Effects of the Action
The Services proposed to revise the definition of ``effects of the
action'' in a manner that simplified the definition by collapsing the
terms ``direct, ``indirect,'' interrelated,'' and ``interdependent''
and by applying a two-part test of ``but for'' and ``reasonably certain
to occur.'' Related to this revised definition, we also proposed to
make the definition of environmental baseline a stand-alone definition
within Sec. 402.02 and 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). In addition, we proposed to add a new
Sec. 402.17 titled ``Other provisions'' and, within that new section,
add 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 two specific contexts: activities
caused by but not included as part of the proposed action, and
activities under ``cumulative effects.'' As discussed above under
Discussion of Changes from Proposed Rule, the Services received
numerous comments on the proposed definition of ``effects of the
action'' and the new provision at Sec. 402.17(a) ``Activities that are
reasonably certain to occur.'' We have adopted a final, revised
definition of ``effects of the action'' and revised text at Sec.
402.17(a) in response to those comments. Below, we summarize other
comments received on the scope of the ``effects of the action'' and the
proposed two-part test for effects of the action of ``but for'' and
``reasonably certain to occur'' and present our responses. We address
changes to the environmental baseline definition in a separate
discussion below.
Scope of Effects of the Action
Comment: Some commenters were concerned that removal of the terms
``direct,'' ``indirect,'' ``interrelated,'' and ``interdependent''
would hamper discussions because those terms could no longer be used.
Response: The terms are not prohibited from use in discussion, as
they can be useful when discussing the mode or pathway of the effects
of an action or activity. However, as discussed above, elimination of
these terms simplifies the definition of ``effects of the action'' and
causes fewer concerns about parsing what label applies to each
consequence. Now consequences caused by the proposed
[[Page 44989]]
action encompass all effects of the proposed action, including effects
from what used to be referred to as ``direct'' and ``indirect'' effects
and ``interrelated'' or ``interdependent'' activities.
Comment: A commenter questioned the ability of the proposed two-
part test to capture the risks of low probability but high consequence
impacts such as an oil spill and welcomed an explanation of this
scenario.
Response: As discussed throughout this rule and in the proposed
rule, the Service's overall approach to ``effects of the action'' has
been retained. During consultation, the consequences of the Federal
agency action are reviewed in light of specific facts and circumstances
related to the proposed action. If appropriate, those effects are then
considered in the effects of the action analysis. Therefore, the
Services expect that scenarios such as that mentioned by the commenter
will be subject to review just as they have been in current
consultation practice.
Comment: One commenter believed that it is critical to clarify that
consultation is focused on the actual effects of the agency action on
listed species and designated critical habitat, and that those effects
are to be differentiated from the environmental baseline. They
recommended adding ``[e]ffects of the action shall be clearly
differentiated from the environmental baseline'' to the definition of
``effects of the action.''
Response: The Services decline to make the suggested addition to
the definition of ``effects of the action.'' In the proposed rule, the
Services made clear that the ``environmental baseline'' is a separate
consideration from the effects of the proposed Federal action by both
proposing to separate the definition of the term into a standalone
definition and by clarifying the instruction to add the effects of the
action to the environmental baseline as part of amendments to the
language at Sec. 402.14(g). As discussed above, the Services also have
added an additional sentence to the definition of environmental
baseline to help further clarify when the consequences of certain
ongoing agency facilities and activities fall within the environmental
baseline and would therefore not be considered in ``effects of the
action.''
Comment: A few commenters requested that if the distinction between
non-Federal ``activities'' and ``effects'' is maintained, the
background to the final rule should more clearly explain the purpose
and meaning of the distinction, and that the Services should clarify
that discretionary Federal actions currently characterized as
``interrelated and interdependent'' remain subject to the consultation
requirement.
Response: The Services are adopting a revised definition of effects
of the action, as described above. The distinction between activities
and effects (now ``consequences'') in this definition is intended to
capture two aspects of the analysis of the ``effects of the action.''
First, a proposed Federal action may cause other associated or
connected actions, which are referred to as other activities caused by
the proposed action in the definition to differentiate them from the
proposed Federal ``action.'' These activities would have been called
``interrelated'' or ``interdependent'' actions or ``indirect effects''
under the prior definition codified at Sec. 402.02. In large part due
to the three possible categories these activities could have fallen
into, and the debates that regularly ensued while attempting to
categorize them, we chose to collapse those three possible categories
and ``direct effects'' into ``all consequences'' caused by the proposed
action. Second, both the proposed action and the other activities
caused by the proposed action may have physical, chemical, or biotic
consequences on the listed species and critical habitat. Both the
proposed action and other activities caused by the proposed action must
be investigated to determine the physical, chemical, and biotic
consequences. In the case of an activity that is caused by (but not
part of) the proposed action, the two-part test must be examined
twice--once for the activity and then again for the consequences of
that activity. Additionally, if Federal activities caused by the
Federal agency action under consultation are identified, those
additional activities should be ``combined in the consultation and a
lead agency . . . determined for the overall consultation'' (1998
Consultation Handbook at p. 4-28).
Comment: One commenter argued that, by eliminating the language
directing the Services to consider direct and indirect effects together
with interrelated or interdependent actions, the Services have revised
the language to account only for direct effects. They argue that this
proposed revision is inconsistent with the intent of the Act and its
scientific underpinnings, as it ignores the fact that many imperiled
species face multiple threats that compound one another.
Response: The proposed definition of ``effects of the action''
neither ignored the multiple threats facing listed species and critical
habitats nor did it reduce all effects analysis only to the
consideration of direct effects. The Services have adopted a revised,
final definition of ``effects of the action'' that clarifies that all
of the consequences of a proposed action must be evaluated, and that
the causation tests are applied to all effects of the proposed action.
Contrary to the commenter's assertion, a complete assessment of the
``effects of the action'' would require, where appropriate, the
consideration of multiple stressors and consequences resulting from any
synergistic, or compounding factors. These consequences would then be
added to the environmental baseline and cumulative effects per the
provisions now found at Sec. 402.14(g)(4).
Comment: One commenter suggested the final regulations explicitly
recognize an obligation to consider ``spillover effects'': ``In some
contexts, efforts to modify or condition an action in order to reduce
the impacts of the activity may result in `spillover effects' that,
ultimately, result in more adverse impacts to the species. A `spillover
effect' is the unintended consequence that occurs when an action in one
market results in a corollary effect in another market. For example, a
closure of the Hawaii-based shallow-set longline fishery in the early
2000s was demonstrated to result in thousands of additional sea turtle
interactions due to the replacement of market share by foreign
fisheries that do not implement the same protected species measures as
the U.S. fishery and consequently interact with many more turtles.''
Response: The purpose and obligation of section 7(a)(2) of the Act
is that Federal agencies are required to insure their proposed actions
are not likely to jeopardize listed species or destroy or adversely
modify critical habitat. This obligation is directed solely at the
Federal action and may not be abrogated because of the potential
response of other agencies or entities engaged in the same or similar
actions. In the case of proposed Federal actions, the consequences of
the proposed action, such as the incidental capture of sea turtles in
Hawaii-based longline fishing gear from the commenter's example, must
be evaluated. Other consequences could possibly include such
``spillover effects'' if they meet the ``but for'' and ``reasonably
certain to occur'' causation tests applied to consequences caused by
the proposed action under the revised, final definition of effects of
the action, but this would have to be determined on a case-by-case
basis. Further, the effects of other actions such as those described in
the example may already be included in the overall jeopardy analysis as
part of the status of the species, environmental baseline, and/or
cumulative effects.
[[Page 44990]]
Comment: A few commenters were concerned that we were proposing a
different standard when evaluating the effects of ``harmful'' or
``beneficial'' actions or activities, or conversely, that we were not
proposing a different standard when we should hold ``beneficial
actions'' to a higher certainty standard given their importance in
minimizing or offsetting the adverse effects of proposed actions.
Response: Commenters pointed to examples in case law or past
projects where actions or measures to avoid, minimize, or offset the
effects of agency actions were held to an expectation of ``specific or
binding plans.'' While the Services appreciate the concern raised, the
Services do not intend to hold beneficial activities or measures
offsetting adverse effects to either a higher or lower standard than
any other type of action or measure proposed by a Federal agency. Any
type of action proposed by a Federal agency first receives a
presumption that it will occur, but it must also be described in
sufficient detail that FWS or NMFS can both understand the action and
evaluate the effects of the action. Similarly, whether considered
beneficial or adverse, the consequences of the various components of
the Federal agency's action are governed by the same causation standard
set forth in the definition of ``effects of the action.''
Comment: A few commenters suggested that the ``effects'' of the
action should not include ``effects'' that an agency lacks the legal
authority to lessen, offset, or prevent in taking the action.
Response: As we further discuss below under Sec. 402.03,
Applicability, the Services decline to limit the ``effects of the
action'' to only those effects or activities over which the Federal
agency exerts legal authority or control. As an initial matter, section
7 applies to actions in which there is discretionary Federal
involvement or control (50 CFR 402.03). Once in consultation, all
consequences caused by the proposed action, including the consequences
of activities caused by the proposed action, must be considered under
the Services' definition of ``effects of the action.'' These may
include the consequences to the listed species or designated critical
habitat from the activities of some party other than the Federal agency
seeking consultation, provided those activities would not occur but for
the proposed action under consultation, and both the activities and the
consequences to the listed species or designated critical habitat are
reasonably certain to occur. Where this causation standard is met, the
action agency has a substantive duty under the statute to ensure the
effects of its discretionary action are not likely to jeopardize a
listed species or destroy or adversely modify its critical habitat. We
recognize that the Services and action agencies sometimes struggle with
the concept of reviewing the consequences from other activities not
under the action agency's control in a consultation. However, including
all relevant consequences is not a fault assessment procedure; rather,
it is the required analysis necessary for a Federal agency to comply
with its substantive duties under section 7(a)(2). When the Services
write an incidental take statement for a biological opinion, under
section 7(b)(4)(iv) of the Act they can assign responsibility of
specific terms and conditions of the incidental take statement to the
federal agency, the applicant, or both. As the Supreme Court noted in
Home Builders, ``TVA v. Hill thus supports the position . . . that the
[Act]'s no-jeopardy mandate applies to every discretionary agency
action--regardless of the expense or burden its application might
impose'' (551 U.S. at 671 [emphasis added]).
The legislative history of section 7 of the Act confirms the
Services' position. In particular, National Wildlife Federation v.
Coleman, 529 F.2d 359 (1976) is a case often cited to support the
proposition that indirect effects outside the authority and
jurisdiction of an action agency are a relevant consideration in
determining if the agency action is likely to jeopardize a listed
species or destroy or adversely modify its critical habitat. The Act's
legislative history from 1979 indicates that Congress was fully aware
of the Coleman decision when they changed the definition from ``does
not jeopardize'' to ``is not likely to jeopardize.'' In fact, the House
Conference Report 96-697 to the 1979 amendments specifically references
the case. In referencing the relevant amendments to section 7, the
Conference Report says, ``The conference report adopts the language of
the house amendment to section 7(a) pertaining to consultation by
federal agencies with the Fish and Wildlife Service and the National
Marine Fisheries Service. The amendment, which would require all
federal agencies to ensure that their actions are not likely to
jeopardize endangered or threatened species or result in the adverse
modification of critical habitat, brings the language of the statute
into conformity with existing agency practice, and judicial decisions,
such as the opinion in National Wildlife Federation v. Coleman. H.R.
Conference Report 96-697 (1979).''
``But for'' Causation
Comment: Several commenters expressed concern that the proposed
application of the ``but for'' test to the effects of the proposed
action would result in a simplistic evaluation of effects that would
miss important considerations of the consequences of multiple effects,
synergistic effects, or other more complex pathways by which an action
may affect listed species or critical habitat.
Response: As noted elsewhere, the Services have revised the
definition of ``effects of the action'' to indicate that all
consequences of the proposed action must be considered and to apply the
two-part test of ``but for'' and ``reasonably certain to occur'' to all
effects. This approach is, in application, consistent with the prior
regulatory definition, and the Services accordingly anticipate the
scope of their effects analyses will stay the same.
As with current practice, the Services intend to evaluate the
appropriate pathways of causation specific to the action and its
effects for the purposes of the assessment of impacts to the species
and critical habitat. This is not a liability test but an assessment of
the expected consequences of an action using, for example, well-
founded, physical, chemical, and biotic principles that are relevant to
Act consultations. For a consequence to be considered an effect of the
action, it must have a causal relationship with the action or activity.
``But for'' causation does not impair the Services' inquiry into other
complex scenarios. As we noted above, a complete assessment of the
``effects of the action'' would require, where appropriate, the
consideration of multiple stressors and overlapping, synergistic, or
contributing factors. All of these considerations are important in
ecology, sufficiently captured in the application of the ``but for''
test, and routinely serve as the foundation for section 7(a)(2)
analyses. In addition, these consequences would then be added to the
environmental baseline, which along with cumulative effects, status of
the species and critical habitat, are used to complete our section
7(a)(2) assessment.
Comment: A few commenters urged the Services to adopt a ``proximate
cause'' standard as the appropriate standard for determining the
effects of the action.
Response: Although the term ``proximate cause'' was used by several
commenters, the term itself and its application to the determination of
the
[[Page 44991]]
effects of the action in the context of the Act generally was not
defined by the commenters. There is no Federal standard definition for
``proximate cause,'' a term that developed through judicial decisions.
Further, proximate cause can differ if used for assigning liability in
criminal action as compared to civil tort matters, neither of which
consideration is directly relevant in the section 7(a)(2) context of
evaluating the anticipated effects of proposed Federal actions on
listed species and critical habitat. With regard to use of proximate
cause in an environmental context, in Babbitt v. Sweet Home Chapter of
Communities for a Great Oregon, 515 U.S. 687 (1995), Justice O'Connor
described proximate cause as ``introducing notions of foreseeability.''
Id. at 709. As set out below, the ``reasonably certain to occur'' test
in our definition of ``effects of the action'' imparts similar
limitations on causation as an explicit foreseeability test.
Additionally, the ``but for'' causation standard is in essence a
factual causation standard. The Services' test to determine the effects
of the action, therefore, adopts analogous principles to those
identified by courts for proximate causation.
Comment: Several commenters cited to National Environmental Policy
Act (NEPA) case law, such as Department of Transp. v. Public Citizen,
541 U.S. 752 (2004) (``Public Citizen'') in support of their view of
the proper scope of the analysis of the effects of the action and the
use of proximate causation to determine those effects.
Response: The Services decline to adopt the sort of ``proximate
cause'' standard in the context of section 7 of the Act that has been
applied by courts in the NEPA context. A ``proximate cause'' standard
has been invoked by courts in the NEPA context (for example, see Public
Citizen, 541 U.S. at 767). We reviewed the relevant NEPA case law,
including Public Citizen, and do not think it is determinative in the
context of section 7(a)(2) of the Act. The Services concluded that the
cases cited were focused on a different issue than what is required
when determining the ``effects of the action.'' As the Eleventh Circuit
noted in Florida Key Deer v. Paulison, 522 F.3d 1133 (11th Cir. 2008),
Public Citizen ``stands for nothing more than the intuitive proposition
that an agency cannot be held accountable for the effects of actions it
has no discretion not to take.'' Id. at 1144. In addition, many of
these cases emphasized that the NEPA and Act are not similar statutes
and have different underlying policies and purposes. For example, in
Public Citizen, the Supreme Court emphasized that NEPA's two purposes
(to inform the decision-maker and engage the public) would not be
served by analyzing those actions over which the action agency had no
discretion. Id. at 767-68. We agree that the same is true for actions
under the Act; that is, by regulation, the Act only applies to actions
in which there is ``discretionary Federal involvement or control'' (50
CFR 402.03). See National Ass'n of Home Builders v. Defenders of
Wildlife, 551 U.S. 644, 667 (U.S. 2007) (holding section 7(a)(2)
applies to only discretionary Federal actions but distinguishing Public
Citizen on the grounds that Act ``imposes a substantive (and not just a
procedural) statutory requirement'').
With regard to that distinction, the cited cases point to the
underlying policy differences between NEPA and the Act, with an
emphasis on the affirmative burden on Federal action agencies with
regard to endangered species. This is a significant distinction as the
Supreme Court noted in Metro. Edison Co. v. People Against Nuclear
Energy, 460 U.S. 766 (1983), ``courts must look to the underlying
policies or legislative intent in order to draw a manageable line
between those causal changes that may make an actor responsible for an
effect and those that do not.'' Id. at 774 n. 7. The underlying policy
of a statute and legislative intent must shape the causation nexus. In
that regard, section 7(a)(2) of the Act imposes an affirmative and
substantive duty on Federal agencies to avoid actions that are likely
to jeopardize listed species or adversely modify/destroy critical
habitat. See Home Builders, 551 U.S. at 671 (``the [Act]'s no-jeopardy
mandate applies to every discretionary agency action--regardless of the
expense or burden its application might impose''). In light of the
above, and the related reasons the Services discussed in rejecting a
``jurisdiction or control'' limit to the effects of discretionary
agency actions, the Services decline to impose an additional proximate
causation requirement applicable in the NEPA context for effects of the
action under section 7(a)(2).
Comment: One commenter requested that the Services explain how the
``effects of the action'' assessment changes the consideration of
``indirect effects,'' which does not currently use ``but for''
causation.
Response: The original definition of ``indirect effects'' in
regulation at Sec. 402.02 refers to effects that are ``caused by'' the
proposed action whereas the Services' 1998 Consultation Handbook
includes the phrase ``caused by or results from,'' both of which
require an assessment of a causal connection between an action and an
effect. The ``but for'' causation test in the revised, final definition
of ``effects of the action'' is similar to ``caused by'' or ``caused by
or results from'' in that both tests speak to a connection between the
proposed action and the consequent results of that action, whether they
be physical, chemical, or biotic consequences to the environment, the
species, or critical habitat, or activities that would not occur but
for the proposed action. Both tests require a determination of factual
causation, and we do not anticipate a change in the Services' practice
in applying ``but for'' causation to consequences once termed
``indirect effects'' compared to the regulatory term ``caused by.'' As
we noted in the preamble of the proposed rule, ``[i]t 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 [1998] 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. . . .' ([1998] Consultation Handbook, page 4-47)'' (83
FR 35178, July 25, 2018, p. 83 FR 35183).
Comment: One commenter expressed concerns that the use of the ``but
for'' test could result in a determination of ``effects'' that is over
inclusive. They supported the retention of the current rules governing
the ``effects of the action'' and advocated their application in
conjunction with the multi-factor test for effects described in the
1998 Consultation Handbook. Conversely, one other commenter felt that
the test was narrowing the scope and we should retain the term
originally used in ``indirect effects,'' ``or result from'' in our 1998
Consultation Handbook definition--in other words ``effects or
activities that are caused by or result from.''
Response: The Services requested comment whether the proposed
definition altered the scope of the effects of the action. With the
revisions we are making in this final rule and as discussed elsewhere
in this rule, there will not be a shift in the scope of the effects we
consider under our new definition of ``effects of the action,'' and,
therefore, our analyses will be neither over nor under inclusive. Some
of the commenters expressing concerns about over-inclusivity refer to a
multi-factor
[[Page 44992]]
test (pages 4-23 through 4-26 of the 1998 Consultation Handbook) for
determining the effects of the action, but those factors are important
to the consideration of the impact those effects will have on the
species or critical habitat and not whether the effects or activity
will occur. Those remain important considerations for the analysis of
the effects of the action on listed species and critical habitat.
Section 7(a)(2) consultation is required for all Federal actions with
discretionary involvement or control that may affect listed species or
critical habitat. Our assessment of the proposed and revised, final
definition of ``effects of the action'' is that, generally, all of the
effects previously considered will still be included in the scope of
the ``effects of the action'' and that no other effects or activities
not a direct or indirect effect of the proposed Federal action will be
included. The improvements to the definition of ``effects of the
action,'' including the explicit establishment of the two-part test for
effects, is that the underlying support for the consequences and
activities considered by the Services in the analysis will be guided by
a clearer standard and, therefore, be more consistent and transparent.
Nor do the Services find that the proposed or revised, final definition
of ``effects of the action'' narrows the scope of the effects that
would be considered. We have explicitly retained the same full range of
effects to listed species or critical habitat from the proposed action
as under our prior definition through the inclusion of ``all
consequences'' of the proposed action in the revised, final definition.
``Reasonably Certain to Occur''
Comment: Several commenters requested that we articulate a set of
factors to apply in determining what effects are reasonably certain to
occur from a proposed action.
Response: We agree with the commenters' suggestion. Please see our
discussion of changes to Sec. 402.17 under Section 402.17--Other
Provisions, above.
Comment: Some commenters suggested that the test for effects of the
action should also include ``reasonably foreseeable'' as a means of
further avoiding speculation or over inflation of the effects of an
action or activities.
Response: The Services responded to similar comments in the
preambles to the 1986 regulation (51 FR 19926, June 3, 1986, p. 51 FR
19932) and the 2008 regulation (73 FR 76272, December 16, 2008, p. 73
FR 76277). Again in this rule, we decline to make this change. The
Services view ``reasonably certain to occur'' to be a higher threshold
than ``reasonably foreseeable,'' a term that is more in line with the
scope of effects analysis under NEPA. As stated in the 1986 preamble,
``NEPA is procedural in nature, rather than substantive, which would
warrant a more expanded review of . . . effects'' than the Act, which
imposes ``a substantive prohibition'' (51 FR 19926, June 3, 1986, p. 51
FR 19933). The Act's prohibitions against Federal actions that are
likely to jeopardize the continued existence of listed species or
destroy or adversely modify critical habitat calls for a stricter
standard than ``reasonably foreseeable.''
Comment: Some commenters requested that the Services elaborate on
the factors to consider when determining whether an activity is
reasonably certain to occur as part of the two-part test for effects of
the action. Others provided proposals of appropriate factors or
specificity that should be contained in such an assessment. These
included: (1) The extent to which a prior action that is similar in
scope, nature, magnitude, and location has caused a consequent action
or activity to occur; (2) any existing plans for the initiation of an
action or activity by the consulting action agency, the permit or
license applicant or another related entity that is directly connected
to, and dependent upon, implementation of the proposed action; and (3)
the extent to which a potential action or activity has intervening or
necessary economic, administrative, and legal requirements that are
prerequisites for the action to be initiated and the level of certainty
that can be attributed to the completion of such intervening or
necessary steps. A few commenters suggested that the only factor should
be whether the activity was ``definitely planned and concretely
identifiable,'' while others suggested the only factor should be the
use of the best scientific and commercial data available.
Response: Identifying activities that are ``reasonably certain to
occur'' is one part of the two-part test when evaluating the
consequences of a proposed Federal action. As discussed in the proposed
rule, this two-part test identifies activities previously captured
under ``indirect effects'' and ``interrelated and interdependent
actions'' that are now included within ``all consequences'' caused by
the proposed action. ``Reasonably certain to occur'' is also the
current test in the identification of non-Federal activities that
should be included as cumulative effects. Our intent with the proposed
factors to consider was to provide a general, but not limiting,
guideline to inform the assessment. However, upon consideration of the
comments and suggestions, the Services have revised the factors under
Sec. 402.17(a) to further elaborate on the factors related to the
Service's past experience with identifying activities that are
reasonably certain to occur as a result of a proposed action and the
type of plans that would be indicative of an activity that is
reasonably certain to occur. Suggestions to limit the consideration of
activities that are reasonably certain to occur to only those that are
``definitely planned and concretely identifiable'' would
inappropriately narrow the scope of our consideration of the effects of
a proposed Federal action. For the factors we have identified, we also
note that this list of factors is neither exhaustive nor a required
minimum set of considerations.
Additionally, the Services have specified that the conclusion that
an activity is reasonably certain to occur must be based on clear and
substantial information, using the best scientific and commercial data
available. We believe these revisions help clarify the potentially
relevant factors and the standard the Services will apply to such
queries, leading to more consistent and predictable administration of
the Services' section 7(a)(2) responsibilities.
Further, nothing in the language of the Sec. 402.17(a) provision
conflicts with or prevents the Services from using the best scientific
and commercial data available as we are required to do for section
7(a)(2) analyses. This information is quite relevant to our
consideration of the factors as both scientific and commercial
information can be the sources we draw upon for ``past experience,''
``existing plans for that activity,'' and ``any remaining . . .
requirements.'' In all instances, we will draw upon the best scientific
and commercial data available to determine if, in light of the relevant
factors and based on clear and substantial information, an activity is
reasonably certain to occur.
Comment: A few commenters questioned how ``activities that are
reasonably certain to occur'' are defined when the consultation is on
national or large regional programs.
Response: Oftentimes, when a section 7(a)(2) consultation is
performed at the level of a regional or national program, it is
referred to as a programmatic consultation, as defined by the Services
in the proposed rule, and the proposed action is referred to as a
framework programmatic action from our 2015 rule revising incidental
take statement regulations (80 FR 26832, May 11, 2015). In these
instances, the ``but for''
[[Page 44993]]
and ``reasonably certain to occur'' parts of the test extend to the
consequences that would be expected to occur under the program
generally, but not to the specifics of actual projects that may receive
future authorization under the program. Effects analyses at this more
generalized level are necessary because the Federal agency often does
not have specific information about the number, location, timing,
frequency, precise methods, and intensity of the site-specific actions
or activities for their program.
We can expect that a program that authorizes bank stabilization,
for example, will result in actions that stabilize riverbanks,
streambanks, or even the banks of lakes and estuaries. However, we
cannot, within those same bounds, reasonably describe the exact nature
of the yet-to-be-permitted bank stabilization, its location, or timing.
We are able to provide an informed effects analysis at the more
generalized level, however, by analyzing the project design criteria,
best management practices, standards and guidelines, and other
provisions the program adopts to minimize the impact of future actions
under the program. For example, best management practices such as
required sediment control methods or stabilization material
requirements provide the Services with an understanding of the possible
scope of materials and methods that would be expected in any given
project even if the specific timing, location, or extent of future
unauthorized projects is unknown.
Alternatively, some Federal agencies may be able to provide
somewhat more specific information on the numbers, timing, and location
of activities under their plan or program. In those instances, we may
have sufficient information not only to address the generalized nature
of the program's effects but also the specific anticipated consequences
that are reasonably certain to occur from specific actions that will be
subsequently authorized under the program.
Comment: Several commenters questioned how ``reasonably certain to
occur'' relates to the direct effects of a proposed action.
Response: As discussed above, we have revised the definition of
``effects of the action'' so that the reasonably certain to occur
standard applies to all consequences caused by the proposed action,
which include the effects formerly captured by ``direct'' and
``indirect'' effects and ``interrelated'' and ``interdependent''
activities.
Comment: Several commenters offered suggestions about the ``not
speculative but does not have to be guaranteed'' range described by the
Services when discussing the range of probability that could encompass
``reasonably certain to occur.'' Some suggested that the determination
should settle on whether the effect or activity is ``probable'' or
``likely'' rather than merely ``possible,'' or whether there was
``clear and convincing evidence.'' However, other commenters felt the
spectrum was not broad enough because we should consider effects or
activities that were possible even if not likely in order to give the
benefit of the doubt to the species.
Response: As discussed above, we have revised the regulatory text
related to ``reasonably certain to occur'' in the definition of
``effects of the action'' and at Sec. 402.17(a) and (b). Both for
activities caused by the action under consultation and cumulative
effects, the ``reasonably certain to occur'' determination must be
based on clear and substantial information, using the best scientific
and commercial data available. The information need not be dispositive,
free from all uncertainty, or immune from disagreement to meet this
standard. By clear and substantial, we mean that there must be a firm
basis to support a conclusion that a consequence of an action is
reasonably certain to occur. This term is not intended to require a
certain numerical amount of data; rather, it is simply to illustrate
that the determination of a consequence or activity to be reasonably
certain to occur must be based on solid information and should not be
based on speculation or conjecture. This added term also does not mean
the nature of the information must support that a consequence or
activity is guaranteed to occur.
The Services expect adopting this standard will allow for more
predictable and consistent identification of activities that are
considered reasonably certain and is consistent with the Act generally
and section 7(a)(2) in particular. For similar reasons to those
discussed below, we do not read the legislative history from the 1979
amendments to section 7 that included the phrase ``benefit of the doubt
to the species'' to require a different outcome.
Definition of Environmental Baseline
The Services proposed to create a standalone definition of
``environmental baseline'' and move the instruction that the ``effects
of the action'' are added to the ``environmental baseline'' into the
regulations guiding the Services' responsibilities in formal
consultation in Sec. 402.14(g). In addition, we requested comment on
potential revisions to the definition of ``environmental baseline'' as
it relates to ongoing Federal actions, including a suggested revised
definition of ``environmental baseline.''
As discussed above in Discussion of Changes from Proposed Rule, the
Services received numerous comments on ``environmental baseline'' as it
relates to the suggested definition and the treatment of ongoing
Federal actions. As a result of the comments received and after further
consideration, we have adopted a final, revised definition of
``environmental baseline.'' Below, we summarize the comments received
on the definition of ``environmental baseline'' and the revisions to
Sec. 402.14(g), and we present our responses.
Comments on the Environmental Baseline Definition
Comment: Many commenters supported the proposal to retain the
existing wording of the definition of the environmental baseline,
establishing it as a standalone definition under Sec. 402.02, and
including the instruction to add the effects of the action and the
cumulative effects to the baseline in Sec. 402.14(g)(4). They noted
that this would preserve the environmental baseline as a separate and
important consideration in the overall section 7(a)(2) analysis. A few
commenters felt that this should result in less confusion about what
aspects of an ongoing action or a continuation of what could be
considered an ongoing action should be in the baseline or the effects
of the action.
Response: The Services agree that these proposals would preserve
the environmental baseline as a separate and important consideration in
the overall section 7(a)(2) analysis and have adopted these proposals
in the final rule. Further, although many commenters supported adoption
of the existing language, other comments and the Services' experience
with implementing the environmental baseline led us to add language to
the final, adopted definition to clarify that the focus of the
environmental baseline is on the condition of the species and critical
habitat in the action area absent the consequences of the action under
consultation. In addition, the adopted final, revised definition of the
``environmental baseline'' includes the following clarifying sentence:
``The consequences to listed species or designated critical habitat
from ongoing agency activities or existing agency facilities that are
not within the agency's discretion to modify are part of the
environmental baseline.''
Comment: Several commenters provided their views on the role the
[[Page 44994]]
separate assessments of the environmental baseline and the status of
the species and critical habitat play in the overall jeopardy and
adverse modification analysis and thereby argued that the environmental
baseline was too narrow a construct. For example, one commenter
suggested the Services eliminate the references to ``action area'' in
the definitions of ``environmental baseline'' and ``cumulative
effects.'' They stated that, by continuing to limit these definitions
to effects in the action area, the Services call into question the
validity of their jeopardy and destruction or adverse modification
findings.
Response: The commenters appear to misunderstand how the various
regulatory provisions (e.g., environmental baseline, status of the
species and critical habitat, etc.) guide the Services' section 7(a)(2)
analyses. The purpose of our section 7(a)(2) analyses is to determine
if the action proposed to be authorized, funded, or carried out by a
Federal agency is not likely to jeopardize the listed species and also
not likely to destroy or adversely modify critical habitat designated
for the conservation of listed species. In section 7(a)(2) analyses, we
first consider the status of the species and critical habitat in order
to describe the antecedent or preceding likelihood of survival and
recovery of the listed species and value of critical habitat that may
be affected by the proposed action. For a listed species, for example,
this may be expressed in terms of the species' chances of survival and
recovery or through discussion of the species' abundance, distribution,
diversity, productivity, and factors influencing those characteristics.
Following on the status assessment, the purpose of the environmental
baseline is to describe, for the action area of the consultation, the
condition of the portion of the listed species and critical habitat
that will be exposed to the effects of the action. A significant body
of scientific literature has established that, without understanding
this antecedent condition, we cannot predict the expected responses of
the species (at the individual or population level) or critical habitat
(at the feature or area level) to the proposed action.
Ultimately, the environmental baseline is used to understand the
consequences of an action by providing the context or background
against which the action's effects will occur. Comparing alternative
courses of action is not the purpose of the environmental baseline--the
task is to determine only what is anticipated to occur as a result of
what has been proposed. When establishing the environmental baseline,
the focus is on the past and present impacts that human activities and
other factors (e.g., environmental conditions, predators, prey
availability) have had on the fitness of individuals and populations of
the species and features or areas of critical habitat in the action
area. For example, if we were to consult on pile-driving activities
(e.g., the installation of piles or poles into a substrate to support a
structure such as a dock by hammering or vibrating the piles into
place), the baseline is intended to describe the physiological and
behavioral condition of an animal that will be exposed to the sound
waves produced by pile driving. This condition is the product of that
animal's life history, physiology, and environment and which
predisposes the animal to a set reaction or range of reactions to the
sound and pressure waves. Animals in good physiological condition may
not be perturbed by the action, whereas animals in poor health or
stressed by other natural or anthropogenic factors, may leave the area,
stop feeding, or fail to reproduce. Numerous case studies in the
scientific literature have examined the varying physiological and
behavioral responses of individuals to perturbations given the animal's
antecedent condition. Similarly, populations of animals respond
differently given their abundance, distribution, productivity, and
diversity in the action area. The effects of the action and cumulative
effects are added to the environmental baseline to determine how (or
if) the proposed action affects the fitness of individuals and
populations or the function, quantity, or quality of critical habitat
features and areas that are exposed to the action given that antecedent
condition. Because action areas are often just a small portion of the
overall critical habitat designation or contain only some of the
individuals or populations that comprise the listed species, the
Services must then evaluate whether these action area effects translate
into meaningful changes in the numbers, reproduction, or distribution
of the listed species or reductions in the functional value or role the
affected critical habitat plays in the overall designated critical
habitat. This information is then considered with the overall viability
of the listed species and value of designated critical habitat to
determine if the consequences of the proposed action are likely to
appreciably reduce the species' likelihood of survival and recovery and
appreciably diminish the value of critical habitat for the conservation
of the species. As we noted in the responses to comments on the revised
definition of ``destruction or adverse modification,'' the size or
proportion of the affected area of critical habitat 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.
Similarly, when considering the effects of the action on the likelihood
of survival and recovery of listed species, the key consideration is
the antecedent status of the species and its vulnerability to further
perturbation, not simply a measure of whether the number of individuals
affected by the proposed action is ``small'' or ``large.''
Comment: Several commenters requested clarification of the term
``aggregate effects'' and how the Services conduct this analysis, given
the proposal to revise ``effects of the action'' and Sec. 402.14(g)(2)
and (4) and existing language in the 1998 Consultation Handbook at p.
4-33. This language states, ``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.'' Commenters were concerned that our proposed revisions would
result in only assessing the additional effects of the proposed action
and not the ``aggregate effects'' as they are presented in the 1998
Consultation Handbook.
Response: As we noted in the preamble to the proposed rule, our
proposed revisions to Sec. 402.14(g)(2) and (4) are intended to
clarify the analytical steps the Services undertake in formulating its
biological opinion: ``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'' (83 FR 35178, July 25, 2018, p. 83 FR 35186). These steps
encompass the ``aggregate effects'' of adding the effects of the action
to the
[[Page 44995]]
environmental baseline, and then taken together with cumulative
effects, considering those results in light of the status of the
species and critical habitat. There is no change from current Service
practice or the ``aggregate effects'' guidance in the 1998 Consultation
Handbook.
Comment: One commenter noted that often there is not enough
information available to quantify impacts in the baseline and that
sometimes that quantification is needed to do the effects analysis.
Another commenter argued for a scientific defensibility standard before
putting effects into the environmental baseline for a species to avoid
speculation about past impacts.
Response: The Services acknowledge that sometimes information about
the impacts of the environmental baseline in a particular action area
is sparse or lacking and that this can complicate our ability to
analyze the effects of a proposed Federal action. Nevertheless, we are
required to use the best scientific and commercial data available, or
that can be obtained during consultation, in our assessments. The use
of the ``best scientific and commercial data available'' is the
required standard which both the Services and the Federal agency must
meet.
Comment: Tribal commenters suggested adding the concept of tribal
water rights to the definition of environmental baseline to ensure that
effects are added to the Tribe's existing right rather than the other
way around and also suggested that the baseline should be set to
describe the time when the species and habitat were abundant to provide
the context of the harms humans have caused and also include an
assessment of the coming harms of climate change.
Response: Tribal water rights are important and may be relevant in
determination of the environmental baseline. We are not changing the
basic concept of the environmental baseline--it will continue to be
used as a tool to determine whether the effects of an action under
consultation are or are not likely to jeopardize the continued
existence of a species or destroy or adversely modify designated
critical habitat. We will determine the appropriate baseline at the
time of consultation and include those factors relevant to that
particular consultation.
Comment: A few commenters questioned whether natural factors would
be considered in the environmental baseline as those may also play a
role in the status of the species and critical habitat, and also
whether impacts to species and habitat due to climate change within and
outside of the action area would be considered.
Response: Although the definition of ``environmental baseline''
captures the impacts of anthropogenic activities in the past, the
present, and future Federal projects that have already undergone
consultation, a true discussion of the environmental baseline would be
incomplete without a discussion of relevant natural factors or
processes that inform the condition of the species or critical habitat
in the action area. For example, natural processes such as fire and
flood, or the natural erosion of sediments may play a key role in
species productivity, or certain geographic features in an action area
may affect the viability and connectedness of the individuals,
populations, or habitat features.
Nothing in these regulations changes the manner in which the
Services may consider climate change in our consultations. The depth of
consideration of the effects of climate change on the species and
critical habitat will vary from consultation to consultation based on
the best scientific and commercial data available. The effects of
climate change on the species or critical habitat (not related to
effects of the action) within and outside the action area will be
addressed, as appropriate, in the environmental baseline or status of
the species, respectively.
Comment: Some commenters supported the suggested revised definition
of ``environmental baseline'' that was presented in the preamble of the
proposed rule. Those in support agreed with different treatment for
ongoing (or pre-existing) actions or effects and felt that this would
avoid overstatement or analysis of the effects of ongoing actions under
consultation.
Response: As discussed above, the Services have revised the
definition of environmental baseline, emphasizing that the baseline is
the condition of the species and critical habitat in the action area
without the consequences of the proposed action and adding a third
sentence to explain that the consequences from ongoing agency
activities or existing agency facilities that are not within the
agency's discretion to modify will be included in the environmental
baseline. The Services believe these revisions address the comments
received and are consistent with the existing case law and the
Services' current approach to this issue.
Comment: Some commenters suggested adopting the NEPA ``cumulative
effects'' approach to capture the baseline instead of either the
current definition or the proposed revision.
Response: The Services decline to adopt the NEPA definition because
the NEPA term captures a different set of concepts.
Comment: Most commenters opposed to the alternative definition
described in the preamble of the proposed rule were opposed on three
bases: (1) That the ``state of the world'' is overly broad and
ambiguous and should be replaced by ``action area'' or similar; (2)
that the proposed approach was unlawful and contrary to established
case law, and invites speculation about the conditions that would exist
absent an action; and (3) that the proposed treatment of ``ongoing
activities'' could have the effect of narrowing the appropriate scope
of the effects analysis (and contrary to case law) while also
``grandfathering'' in harmful operations or activities that should be
subject to section 7 analysis (for example, the U.S. Supreme Court has
held that ``it is clear Congress foresaw that [section] 7 would, on
occasion, require agencies to alter ongoing projects in order to
fulfill the goals of the Act'' (Tennessee Valley Authority v. Hill, 437
U.S. 153, 186 (1978))).
Response: The Services agree that the phrase ``state of the world''
is broad. As discussed above, the Services have declined to include
that wording, and we confirm that the scale of the environmental
baseline is the action area. The concern by one commenter that harmful
impacts would be grandfathered into the environmental baseline is
addressed by clarification in the third sentence. That sentence
clarifies that in circumstances where there are consequences to listed
species or critical habitat from ongoing agency activities or existing
agency facilities that are not within the agency's discretion to
modify, those would be included and considered in the environmental
baseline and as part of the overall aggregation of effects described in
Sec. 402.14(g). Regarding the reference to TVA v. Hill, the ongoing
project in question was within the discretion of the action agency to
modify, and thus our definition is consistent with the court's holding.
Comment: Several commenters suggested that creation of specific
language or guidance in regulation to address those complex cases of
ongoing actions would be a better approach rather than trying to apply
one definition to all actions that undergo consultation.
Response: We have revised the definition of environmental baseline
to address ongoing actions. Additionally,
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the Services provide some basic discussion of the treatment of this
issue earlier in this rule. In most instances, the resolution of
ongoing agency activities or existing agency facilities will be a fact-
based inquiry that turns on the circumstances of a particular
consultation.
Comment: Some commenters argued against viewing any improvements in
ongoing activities as ``beneficial'' and that they should be evaluated
appropriately as ongoing adverse (albeit reduced) effects of an action
and not through improper comparative or incremental analyses.
Response: The definition of environmental baseline does not alter
the manner in which the effects of the action are characterized. As
discussed earlier, per Sec. 402.03, all discretionary actions are
examined against the section 7(a)(2) standard, including beneficial and
adverse effects. Consultation under the Act is conducted on the effects
of the entire proposed action (all consequences caused by the proposed
action). To further clarify, proposed actions for ongoing activities
that incrementally improve conditions but still have adverse effects
(i.e., are not wholly beneficial) require formal consultation. As noted
in the preceding response, the analysis of an action's effects is a
fact-based, consultation-specific analysis.
Comment: Some commenters argued that ongoing operations or
infrastructure should not be considered as part of the effects of the
action even in the case of a new license or permit if those operations
or infrastructure are unchanged and that only changes in operations or
infrastructure would undergo effects analysis. In contrast, other
commenters noted that operations are only considered ``ongoing'' until
the valid permit period terminates.
Response: As discussed earlier, the new definition clarifies how to
correctly differentiate between consequences belonging in the
environmental baseline and of those of the proposed action in effects
of the action for the situations described by the commenters.
Comment: A few commenters noted that the purpose of the
environmental baseline is not to create a hypothetical environment in
which certain features, projects, or events have, or have not,
occurred. Those commenters assert that, in establishing the
environmental baseline, the action agency and the Services are not
picking and choosing facts, they are observing and recording data on
the present conditions. They further assert that the environmental
baseline should include both past and present effects of existing
structures that the Federal action agency has no discretion to modify
and any impacts from their continued physical existence are not part of
the proposed action, which is properly focused on future project
operations.
Response: As discussed earlier, there are certain consequences from
ongoing activities or existing facilities that, in and of themselves,
would not be subject to the consultation on a particular proposed
action. They are not ignored, however, as they may appropriately be
included in discussions of baseline or status of the species or
critical habitat. The Services' definition gives appropriate direction
on recognizing those circumstances and identifying their consequences.
Comment: Several commenters expressed concern that it was difficult
to provide informed public input absent any examples of the types of
ongoing actions that the Services were intending to address with the
suggested definition or the accompanying questions posed regarding the
treatment of these challenging cases.
Response: As discussed earlier, the Services have added a third
sentence to better clarify the issue of capturing the consequences of
ongoing activities in the environmental baseline. This third sentence
and our supporting example of the Federal dam and water operations
provides the type of ``challenging case'' to which we referred in the
preamble of the proposed rule.
Definition of Programmatic Consultation
We proposed to add a definition for the term ``programmatic
consultation'' to codify a 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. We received numerous
comments on the proposed definition, several of which requested further
clarification of the definition terms, scope, and geographic extent of
activities and process for programmatic consultations. The discussion
below contains the Services' responses to these comments.
Comment: Some commenters recommended the Services clarify the scope
of activities, geographic extent, and coverage for multiple species
that can be addressed in a programmatic consultation. Other commenters
requested clarification that programmatic consultations are optional
processes that can undergo both formal and informal consultations. A
few commenters also provided suggestions regarding participation of
applicants, multiple Federal agencies, and information that can be used
in the development of the program.
Response: Section 7 of the Act provides significant flexibility for
Federal agency compliance with the Act, and various forms of
programmatic consultations have been successfully implemented for many
years now. This final regulation codifies that general practice and
provides a definition that is not intended to identify every type of
program or set of activities that may be consulted on programmatically.
The programmatic consultation process offers great flexibility and can
be strategically developed to address multiple listed species and
multiple Federal agencies, including applicants as appropriate, for
both informal and formal consultations.
While action agencies do have a duty to consult on programs that
are considered agency actions that may affect a listed species or
critical habitat, many types of programmatic consultation would be
considered an optional form of section 7 compliance to, for example,
address a collection of agency actions that would otherwise be subject
to individual consultation. These optional types of programmatic
consultation may be appropriate for a wide range of activities or a
suite of programs.
Comment: Several commenters expressed concern about the scale at
which programmatic consultations would occur. Some wanted to clarify
that site-specific ``tiered'' evaluations were required to insure the
same level of review for standard consultations, while another was
concerned that only site-specific consultations would be completed
without an overall ``holistic'' evaluation at the program level.
Response: As described in the proposed rule, and in the 2015
incidental take statement final rule (80 FR 26832, May 11, 2015),
programmatic consultations may require section 7(a)(2) analyses at both
the program level as well as at the tiered or step-down, site-specific
level to insure compliance with section 7(a)(2) of the Act. Regardless
of the exact process required to complete the consultation for the
proposed program activities, all consultations are required to fully
satisfy section 7(a)(2) of the Act. Programmatic consultations can be
used to assess the effects of a program, plan, or set of activities as
a whole. Depending on the type of programmatic consultation, site-
specific consultations would be completed using the overarching
analysis provided for in the programmatic consultation.
Comment: One commenter suggested the Services more clearly explain
in the
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preamble to the final rule how the terms ``framework programmatic
action'' and ``mixed programmatic action'' relate to ``programmatic
consultation.''
Response: As defined at Sec. 402.02, ``framework programmatic
action'' and ``mixed programmatic action'' refer to the way in which an
agency's programmatic actions are structured. These definitions are
applied specifically in the context of incidental take statements. The
definition of ``programmatic consultation'' refers to a consultation
addressing an action agency's multiple actions carried out through a
program, region, or other basis. A consultation on either a mixed or
framework programmatic action would be characterized as a programmatic
consultation. As explained in the 2015 incidental take statement final
rule (80 FR 26832, May 11, 2015), a framework programmatic action
establishes a framework for the development of specific future actions
but does not authorize any future actions and often does not have
sufficient site-specific information relating to the project-specific
actions that will proceed under the program, but still requires a
programmatic consultation to meet the requirements of section 7(a)(2).
As specific projects are developed in the future, they are subject to
site-specific stepped-down, or tiered consultations where incidental
take is addressed. Mixed programmatic actions generally are actions
that have a mix of both a framework-level proposed action as well as
site-specific proposed actions. Again, the entire mixed programmatic
action requires a programmatic consultation, but in this situation,
incidental take is addressed ``up front'' for the parts of those site-
specific actions that are authorized in the mixed programmatic
consultation, and stepped-down or tiered consultations are required for
the future projects that are under the framework part of the proposed
action.
Section 402.13--Deadline for Informal Consultation
In the proposed rule, we requested public comment on several
questions related to the need for and imposition of a deadline on the
informal consultation process described within Sec. 402.13.
Specifically we asked: (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.).
Based upon the comments received and upon further consideration,
the Services have revised the language within Sec. 402.13 to provide a
framework and timeline on a portion of informal consultation. The
revised regulatory text for Sec. 402.13 is described earlier in this
final rule. Here we provide a summary of the comments we received and
our responses.
Comment: Those commenters who supported the imposition of a
deadline generally supported: (1) That the deadline applies to the
concurrence request and response aspect of informal consultation, (2)
that 60 days seems reasonable (and some suggested an internal or prior
time period of 15-30 days for sufficiency review), and (3) that the
deadline should be extendable by mutual agreement with the Federal
agency and applicant (as appropriate). One commenter was concerned that
a 60-day deadline would have the adverse consequence of making 60 days
the new norm for concurrence responses rather than the current
condition of generally 30 to 45 days.
Response: As described at Sec. 402.13, informal consultation is an
optional process that includes all discussions, correspondence, etc.,
between the Services and the Federal agency or the designated non-
Federal representative, designed to assist the Federal agency in
determining whether formal consultation or a conference is required.
One aspect of the informal consultation process is the further option
that, if a Federal agency has determined that their proposed action is
not likely to adversely affect listed species or critical habitat, they
may conclude their section 7(a)(2) consultation responsibility for that
action with the written concurrence of the Services. It is this final
aspect of the informal consultation process that has received the most
scrutiny and concerns about timeliness and the ability of Federal
agencies to proceed with actions that are not likely to adversely
affect listed species or critical habitat. The Services specifically
requested comment on this issue in the proposed rule, including whether
to add a 60-day deadline, subject to extension by mutual consent, for
informal consultations.
The Services have considered the comments provided on all sides of
this issue. We have developed regulatory text that addresses many of
the recommendations; others are addressed in these responses to
comments but not within the regulatory text. In summary, the regulatory
text applies a 60-day deadline to the ``request for concurrence and
Service's written response'' aspect of the overall informal
consultation process originally described at Sec. 402.13(a) and now
moved to Sec. 402.13(c). This new section has been revised to include
the deadline for the concurrence process and the requirement on the
Federal agency to provide sufficient information in their request for
concurrence to support their determination of ``may affect, not likely
to adversely affect'' for listed species and critical habitat in order
to start the 60-day clock on the Service's written response. The new
Sec. 402.13(c)(2) also provides for the Service's ability to extend
the timeline upon mutual agreement with the Federal agency and any
applicant for up to an additional 60 days. As a result, the entire
written request and concurrence process is allowed a total of 120 days
from the Service's receipt of an adequate request for concurrence as
described in Sec. 402.13(c)(1).
The Services note that our ability to provide a written response is
hampered if we do not receive an adequate request for concurrence.
Ideally, the Services should be able to concur in the Federal action
agency's well-supported conclusion without having to create unique
supplemental substantive analyses. The more that the Services have to
supplement the Federal action agencies' own analyses, the more time it
will take the Services to determine whether they concur.
The revised regulation points to the types of information required
to initiate formal consultation under Sec. 402.14(c)(1) as indicative
of the type of information that should be included in a request for
concurrence. We also note in the preamble that the level of detail is
likely less than that required to initiate formal consultation. Federal
agencies, designated non-Federal representatives, and applicants
preparing the request for concurrence should draw upon any technical
assistance provided by the Services during informal consultation and
provide the amount and type of information that is commensurate with
the scope, scale, and complexity of the proposed action and its
potential effects on listed species and critical habitat. The Services
hope to gain efficiencies in avoiding unnecessary back and forth
between the Services and Federal agency by describing the information
required to obtain the Services' concurrence in the revised regulation.
Federal agencies submitting requests for concurrence that contain this
information allow the Services to adequately evaluate whether the
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concurrence is appropriate and readily meet the 60-day deadline.
Comments regarding a time period for ``sufficiency review'' are
referring to the Service's review of the request for concurrence. This
review is to determine if the information provided is sufficient for
the Services to understand the Federal agency's action and analysis and
to evaluate whether we can prepare a written response. Consistent with
the approach for initiation of formal consultation, the Services have
not included a specific regulatory timeline on any sufficiency review
of the request for concurrence. Similar to some formal consultation
initiation packages, some requests for concurrence may not initially
meet the requirements. The Services are committed to providing review
of these requests in a timely fashion to alert the Federal agency if
more information is required to constitute an adequate request for
concurrence. For formal consultations, the Services typically provide
this type of sufficiency review within 30 days of receipt of the
request for formal consultation and an accompanying initiation package.
A similar timeframe will guide the Services' review of requests for
concurrence as well.
Finally, while the revised regulation includes a 60-day deadline
for the Service's written response to a request for concurrence, we
allow this much time (and the option to extend) to accommodate the wide
range in the type of Federal actions for which we receive requests for
concurrence. We anticipate that those actions that can be responded to
in less time than 60 days will still receive those quicker concurrence
responses. We do not expect the revised regulation to result in an
increase in numbers of concurrence requests such that our ability to
respond within 60 days will be hindered. In those limited instances in
which the Services need to extend the deadline for up to 60 additional
days, the regulation requires the mutual consent of the Federal agency
and any applicant involved in the consultation.
Comment: Those commenters opposed to the imposition of a deadline
generally did so on one of two bases: (1) The data we present indicates
that we generally complete concurrence requests in a timely fashion and
so no deadline was necessary, or (2) a deadline could have the effect
of truncating or hampering the ability of Federal agencies and the
Services to conduct effective informal consultations generally.
Response: We have applied the timeline only to the request for
concurrence aspect of the informal consultation process. This preserves
the ability of Federal agencies, applicants, non-Federal
representatives, and the Services to conduct those discussions that
form the heart of this optional process without a time constraint.
Although the Services generally provide our response to requests for
concurrence in a timely fashion, it seems prudent to include both a
general timeline for concurrence request responses and an option for
extending that timeline to provide certainty and consistency for
Federal agencies and applicants planning and proposing actions.
Additionally, as discussed above, by specifying the information to be
included in a concurrence request, the Services also anticipate gaining
additional efficiencies in the informal consultation process.
Comment: A few commenters were concerned that failure to achieve
mutual consent for time extensions could force the Services to complete
their response to a request for concurrence with limited or poor
information on the action and its effects.
Response: The Services do not believe this concern will result in
the outcome predicted by the commenters. Under the new Sec.
402.13(c)(1), the timeframe for the Services' concurrence response only
commences once the Services have the information necessary to evaluate
the Federal agency's request for concurrence.
Comment: A few commenters advocated that a failure by the Services
to respond to a request for concurrence within the established deadline
should result in an assumed concurrence, so the Federal agency may
proceed with their action.
Response: The Services decline to make this change. As adopted, the
regulation requires the Services to provide their response within the
specified timeframe. Additionally, the concurrence of the Services
assures the Federal agency that it has appropriately complied with its
responsibilities under section 7(a)(2).
Comment: Some commenters questioned the consequence of a non-
concurrence response from the Service--would formal consultation be
automatically initiated? Others proposed that automatic initiation of
formal consultation would be the preferred outcome.
Response: Formal consultation would not automatically be initiated.
Typically, the next step if the Service does not concur with the
Federal agency's determination of ``may affect, not likely to adversely
affect'' would be either the Federal agency requesting formal
consultation or the continuation of informal consultation. Upon receipt
of the Service's non-concurrence, there is still an opportunity for the
Federal agency to further modify either their action or their
supporting analysis in response to information outlined in the
Service's response. Such modification could then result in a written
concurrence from the Service. Further, the Services cannot
automatically initiate formal consultation if we have not already
received the information required at Sec. 402.14(c)(1) in the Federal
agency's request for concurrence at the level of detail necessary to
initiate formal consultation. While the information provided by the
Federal agency will have satisfied the requirements of Sec.
402.13(c)(1) for informal consultation, which generally requires the
same types of information as Sec. 402.14(c)(1) for formal
consultation, the Services decline to require that formal consultation
be automatically initiated upon our non-concurrence, since we cannot
assume that the information required to initiate formal consultation
will have been received or even that formal consultation will be
necessary.
Comment: A few commenters stated that imposition of a deadline for
any aspect of informal consultation would increase the workload and
time constraints on Service staff and that any imposed deadline should
come with a commensurate increase in Service staff resources to meet
such obligations.
Response: The Services do not anticipate either an increase in
requests for concurrence or time constraints on staff. Currently, the
Services are generally delivering concurrence request responses in a
timely fashion, and the adopted regulation would allow for time
extension requests for actions that require more time to review and
respond.
Section 402.14--Formal Consultation--General--Including What
Information is Needed To Initiate Formal Consultation and Considering
Other Documents as Initiation Packages
We proposed to revise Sec. 402.14(c) to clarify what is necessary
to initiate formal consultation. We also proposed to allow the Services
to consider other documents as initiation packages, when they meet the
requirements for initiating consultation. It is important to note the
Services did not propose to require more information than existing
practice; instead, we clarify in the regulations what is needed to
initiate consultation in order to improve the consultation process. The
Services adopt these proposed changes, and one non-substantive edit, in
this final rule. We
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summarize the comments received on these topics and our responses
below.
Comment: Some commenters supported clarifying what is necessary to
initiate the formal consultation process and the description of what is
required in the initiation package. Those commenters said the proposed
revisions, if implemented, could streamline the consultation process
and reduce the need for extensive communications between the Federal
agency and the Services to start the consultation process.
Response: The Services agree that clarifying what is necessary to
initiate the formal consultation process and the description of what is
required in the initiation package will help create efficiencies in the
section 7 consultation process.
Comment: Commenters suggested clarifying the information to be
submitted by an applicant to initiate formal consultation (e.g.,
listing the categories of information required, increasing the use of
data sources like GIS that meet appropriate standards, NEPA analyses,
conservation work by landowners and agencies, Natural Resource Damage
Assessment and Restoration Plans to support the initiation package).
Response: Applicants and designated non-Federal representatives may
prepare or supply information required as part of the initiation
package outlined at Sec. 402.14(c)(1). These are the required elements
necessary to initiate consultation. To be clear, this package is
submitted to the Services by the Federal agency proposing the action
and should also include the Federal agency's information and supporting
analyses for the initiation package. As the Services stated in the
proposed rule's preamble, in order to initiate formal consultation we
will consider whatever appropriate information is provided as long as
the information satisfies the requirements set forth in Sec.
402.14(c)(1), including the types of information described by the
commenters.
Comment: One commenter also suggested that the Services should
include language in the final rule specifying that we can request
additional information or documentation if an agency's initial
submission is deemed inadequate.
Response: This proposed change is unnecessary. The Services already
request Federal agencies and applicants provide information necessary
to initiate consultation when it has not been provided or is unclear in
the original initiation package. As discussed for informal consultation
above, the Services typically provide this type of sufficiency review
within 30 days of receipt of the request for formal consultation and an
accompanying initiation package. No further regulatory language is
required to specify that we can request this information because
initiation of formal consultation is predicated on provision of the
required information as per Sec. 402.14(c)(1). Further, as already
provided by Sec. 402.14(d) and (f), additional information may be
needed or requested by the Services during the formal consultation,
once it is initiated.
Comment: One commenter suggested that the Federal Energy Regulatory
Commission's decision not to require a study under the Federal Power
Act should not be construed as a failure to meet the information
requirements to initiate consultation under the Act.
Response: In general, 50 CFR 402.14(d) provides that the Federal
agency requesting formal consultation is required to provide the
Service with the best scientific and commercial data available or which
can be obtained during the consultation for an adequate review of the
effects that an action may have upon listed species or critical
habitat. The Federal Energy Regulatory Commission's decision whether or
not to require a study under the Federal Power Act will generally occur
before that Federal agency would request initiation of formal
consultation. The requirements for information that the Federal agency
must submit to the Service to initiate formal consultation are
described at Sec. 402.14(c)(1). The Service's determination of whether
or not the Federal agency has provided sufficient information to meet
the requirements to initiate formal consultation under Sec.
402.14(c)(1) will depend on the specific information that the Federal
agency submits and the specific circumstances for each request.
After formal consultation has been initiated, Sec. 402.14(f)
provides that the Service may request an extension of formal
consultation and request that the Federal agency obtain additional data
to determine how or to what extent the action may affect listed species
or critical habitat. The Service's request for additional data after
initiation of formal consultation is not to be construed as the
Service's opinion that the Federal agency has failed to satisfy the
information standard of section 7(a)(2) of the Act (or Sec.
402.14(c)(1)). If the Federal agency does not agree to the request for
extension of formal consultation, the Service will issue a biological
opinion using the best scientific and commercial data available.
Comment: Commenters suggested that the Services should clarify
that, upon the submittal of such information, formal consultation is
initiated for purposes of starting the clock by which the deadline for
completing consultation will be measured.
Response: The prior regulations at Sec. 402.14(c) and (d), and the
revision to Sec. 402.14(c) in this rule, are clear that a request to
initiate consultation shall include the list of information provided at
Sec. 402.14(c)(1) and use the best scientific and commercial data
available. Requests received that meet these criteria constitute an
``initiation package'' and thus start the consultation ``clock.''
Incomplete requests do not constitute an ``initiation package'' and
therefore the consultation ``clock'' does not begin until the
information is received. No further regulatory language is needed.
Comment: One commenter suggested striking language implying that an
additional information request by the Service under Sec. 402.14(f) may
impose a study-funding mandate or obligation upon an applicant or non-
Federal party.
Response: The Services decline to change the language in Sec.
402.14(f). This language provides that the Service may request
additional information necessary to formulate the Service's biological
opinion once formal consultation has been initiated. Section 402.14(f)
further states that the responsibility for conducting and funding any
studies belongs to the Federal agency and the applicant, not the
Service. Because the ultimate responsibility to comply with section
7(a)(2) lies with the Federal agency and not the Service, this language
clarifies that the Service is not responsible for conducting or funding
the requested studies.
Comment: One commenter stated that the contents of recovery plans
do not dictate the outcome of the section 7 consultation process.
Response: We agree that recovery plans do not dictate the outcome
of a section 7 consultation. However, the Services believe it is
appropriate to use relevant information and recommended actions and
strategies found in recovery plans along with other identified best
scientific and commercial data available as we consult with Federal
agencies and applicants. We encourage Federal agencies and applicants
to become familiar with recovery plans for species they may affect, as
this can assist them in developing proposed actions that avoid, reduce,
or offset adverse effects or propose actions that address recommended
recovery actions.
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Comment: One commenter suggested support for the proposed
definition of programmatic consultation and the use of programmatic
consultations and the addition to Sec. 402.14(c)(4).
Response: As discussed above, the Services agree that increasing
the use of programmatic consultations will increase efficiency, reduce
costs, and still fulfill section 7(a)(2) responsibilities.
Comment: One commenter suggested that the Services should commit to
a set timeframe for notifying the Federal agencies if the initiation
package is complete for non-major construction activities (e.g., 30 to
45 days should be sufficient).
Response: The 1998 Consultation Handbook already specifies that for
formal consultation leading to the development of a biological opinion
the Services should, within 30 days, acknowledge the receipt of the
consultation package and advise if additional information necessary to
initiate consultation is required. This is the same timeframe for the
Services to respond to a Federal agency's biological assessment
prepared for a major construction activity under Sec. 402.12(j). For
biological assessments, Sec. 402.12(f) provides that ``the contents of
a biological assessment are at the discretion of the Federal agency.''
This regulation continues to govern the Federal agency's
responsibilities for the contents of a biological assessment; however,
for purposes of initiation of formal consultation under Sec.
402.14(c)(1), the Federal agency also is required to provide the
specified information in Sec. 402.14(c)(1) consistent with the nature
and scope of the action. Although Sec. 402.12(j) allows that ``at the
option of the Federal agency, formal consultation may be initiated
under Sec. 402.14(c) concurrently with the submission of the
assessment,'' this language does not relieve the Federal agency of the
requirement to submit a complete initiation package per Sec.
402.14(c)(1), but does give the Federal agency the option to include
such information along with the contents of their biological
assessment.
Comment: One commenter stated that the Services have proposed a
massive rewrite of Sec. 402.14(c) without explaining to the public the
underlying rationale for any of the changes in any detail. Thus, the
proposal fails to meet the basic requirements of the Administrative
Procedure Act, is not rational, and is arbitrary and capricious.
Response: The Services disagree that the revisions to Sec.
402.14(c) are a massive rewrite of the section. As discussed in the
preamble to the proposed rule, the Services are not requiring more
information than existing practice. The Services adopt the changes to
Sec. 402.14(c) based on years of experience implementing section 7 of
the Act and believe that the revisions will provide clarity to the
consultation process, increase efficiencies in the process, and meet
Administrative Procedure Act requirements. The revisions to the
language are based on the experiences of the Services and are intended
to better describe the types of information required and the level of
detail sufficient to initiate formal consultation. This rationale is
explained in the preamble to the proposed regulations at 83 FR at 35186
(July 25, 2018).
Comment: One commenter suggested the Services not include Sec.
402.14(c)(1)(i)(A) (the purpose of the action) because they do not
believe the purpose of the action is relevant to the consultation.
Response: The Services decline to remove the requirement for a
description of the purpose of the action from the initiation package at
Sec. 402.14(c)(1). The purpose of the action is important for the
Services to understand and most effectively consult with Federal
agencies and applicants in a variety of ways. During consultation, an
understanding of the intended purpose of the action assists the
Services in shaping recommendations they may make to avoid, minimize,
or offset the adverse effects of proposed actions. Further, the purpose
of the action is an important consideration when determining what
activities may be caused by the proposed Federal actions and for
determining what effects may result in take of listed species that is
incidental to the purpose of the proposed action. Finally, the
definition of reasonable and prudent alternative at Sec. 402.02
includes the requirement that the alternative ``can be implemented in a
manner consistent with the intended purpose of the action.''
Section 402.14--Service Responsibilities--General
We proposed to revise portions of Sec. 402.14(g) that describe the
Services' responsibilities during formal consultation. We proposed to
clarify the analytical steps the Services undertake in formulating a
biological opinion. In Sec. 402.14(g)(4), we proposed to move the
instruction that the effects of the action shall be added to the
environmental baseline from the current definition of ``effects of the
action'' to where this provision more logically fits with the rest of
the analytical process. We have adopted these proposed changes in this
final rule and provide the comments received on these changes and our
responses below.
Comment: One commenter requested that the Services revise Sec.
402.14(g)(4) to add text to reiterate the appropriate test for jeopardy
as follows: ``Formulate its biological opinion as to whether the
action, taken together with cumulative effects, is likely to jeopardize
the continued existence of listed species by appreciably reducing the
likelihood of both survival and recovery of the species, and not
recovery alone, or result in the destruction or adverse modification of
critical habitat.''
Response: The term ``jeopardize the continued existence'' is
already defined in regulations at Sec. 402.02. All subsequent uses of
this terminology are referenced to that definition and thus no further
clarification is needed in Sec. 402.14(g)(4).
Comment: A couple of commenters suggested the Services clarify that
nothing in the Act requires Service staff to utilize worst-case
scenarios or unduly conservative modeling or assumptions.
Response: The commenters are correct that nothing in the Act
specifically requires the Services to utilize a ``worst-case scenario''
or make unduly conservative modeling assumptions. The Act does require
the use of the best scientific and commercial data available by all
parties and obligates Federal agencies to insure their actions are not
likely to jeopardize listed species or adversely modify critical
habitat. The best scientific and commercial data available is not
limited to peer-reviewed, empirical, or quantitative data but may
include the knowledge and expertise of Service staff, Federal action
agency staff, applicants, and other experts, as appropriate, applied to
the questions posed by the section 7(a)(2) analysis when information
specific to an action's consequences or specific to species response or
extinction risk is unavailable. Methods such as conceptual or
quantitative models informed by the best available information and
appropriate assumptions may be required to bridge information gaps in
order to render the Services' opinion regarding the likelihood of
jeopardy or adverse modification. Expert elicitation and structured
decision-making approaches are other examples of approaches that may
also be appropriate to address information gaps. In all instances,
chosen scenarios or assumptions should be appropriate to assist the
Federal agency in their obligation to insure their action is not likely
to jeopardize listed species or adversely modify critical habitat.
[[Page 45001]]
Comment: Commenters support expanded opportunities for
participation by States, applicants, and designated non-Federal
representatives in the section 7(a)(2) consultation process, including
the review of the underlying data and scientific analyses being
considered and greater input into any potential jeopardy or adverse
modification finding, the development of reasonable and prudent
alternatives and minimization measures, and all parts of the draft
biological opinion.
Response: The Services already involve designated non-Federal
representatives and applicants during key points of the consultation
development process and will continue to do so as appropriate. Federal
action agencies are best positioned to engage and encourage the
involvement of applicants and designated non-Federal representatives in
the review of draft biological opinions. The consultation process is
intended to assist the Federal action agency in meeting its section
7(a)(2) obligations under the Act. Applicants and designated non-
Federal representatives play an important role in this process. States
may be engaged by Federal action agencies and applicants during the
development of the proposed actions and supporting analyses.
Comment: One commenter suggested that the Federal agency or
applicants be involved in the development of ``Reasonable Prudent
Measures'' and/or ``Terms and Conditions'' as needed to ensure they are
implementable and do not require major alterations of the proposed
action of a plan or project in terms of design, location, scope, and
results.
Response: The Services already involve Federal action agencies and
applicants during key points of the consultation development process
and will continue to do so as appropriate. Federal action agencies are
best positioned to engage and encourage the involvement of applicants
and designated non-Federal representatives in the review of draft
biological opinions, including draft incidental take statements.
Comment: One commenter requested that when proposed actions have
the potential to affect tribal rights or interests, formal consultation
section pursuant to Sec. 402.14(l)(3) should require disclosure of all
information to affected tribes, adherence to policies regarding
consultation with Native American governments, and an analysis of how
the action or reasonable and prudent alternatives comport with the
conservation necessity standards embodied in Secretarial Order 3206,
NOAA Procedures for Government-to-Government Consultation with
Federally Recognized Indian Tribes and Alaska Native Corporations, and
the FWS Native American Policy.
Response: As discussed above, the Services will continue to comply
with Secretarial Order 3206, NOAA Procedures, and the FWS Native
American Policy and other applicable tribal policies as we implement
our section 7 responsibilities.
Comment: One commenter supports the codification that the Services
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 the consultation.''
Response: Most of the quoted language, with the exception of ``as
proposed,'' is already included in Sec. 402.14(g)(8) and has been
retained in the revisions to that provision. This final rule codifies
the language the commenter supported.
Comment: One commenter suggested that the definition of a
programmatic consultation should be modified to ``clarify that the
Services may utilize programmatic consultations and initiate concurrent
consultations for multiple similar agency actions.''
Response: The adopted definition of programmatic consultation
already encompasses the commenters' request, making the proposed change
unnecessary. As discussed above, programmatic consultations are
flexible consultation tools that may be developed based on the
circumstances of the proposed action and the Federal agency(ies)
involved.
Comment: One commenter suggested that the consultation ``clock''
should start at the point the submission of a written request for
formal consultation is transmitted to the Service with a certification
that it has transmitted to the Service all of the relevant and
available information upon which the action agency's request for
consultation and opinion has been made.
Response: The Federal agency is obligated to provide the
information necessary to initiate formal consultation. It is the
Services' responsibility to determine that we have sufficient
information to initiate formal consultation. The adopted language at
Sec. 402.14(c)(1) defines the information necessary to initiate formal
consultation. We adopt this list to clarify and reduce confusion about
the necessary information and create greater efficiencies in the
section 7 consultation process. Starting the ``clock'' at the point
suggested by the commenter truncates the time necessary to obtain
needed information if it was not in fact provided, reduces the ability
of the Services to adequately coordinate with the Federal agency, non-
Federal representative and/or applicant, and could actually lengthen
the consultation process because of the need on the part of the
Services to request additional information during consultation.
Comment: One commenter suggested that the Services have not
clarified the language pursuant to formal consultations (Sec. 402.14)
and that measures intended to avoid, minimize, or offset effects of an
action are not required elements of an ``initiation package'' submitted
by a Federal agency for the consultation.
Response: Consistent with the Services' existing consultation
approaches, we are adopting revisions to Sec. 402.14(c) to ensure that
a Federal agency submits an adequate description of the proposed
action, including available information about any measures intended to
avoid, minimize, or offset effects of the proposed action. The request
for a description of measures to avoid, minimize, or offset project
impacts applies in those cases where these types of measures are
included by the Federal agency or applicant as part of the proposed
action and is not intended to require these types of measures for all
proposed actions. Provided the Federal agency submits the information
required by Sec. 402.14(c)(1), the Services will take into
consideration the effects of the action as proposed, both beneficial
and adverse.
Section 402.14(g)(4)--Service Responsibilities--Clarifying the
Analytical Steps by Which the Services Integrate and Synthesize Their
Analyses To Reach Jeopardy and Adverse Modification Determinations
In Sec. 402.14(g)(4), we proposed 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 determinations. This proposed change
reflects the Services' existing approach, and we adopt those proposed
changes in this final rule. The comments and our responses on those
changes are below.
Comment: Some commenters supported the proposed language at Sec.
402.14(g)(4) because it allows other agencies and the public to
understand the process, and the expectations, when biological opinions
are being developed.
Response: The Services agree that the proposed language at Sec.
402.14(g)(4) will
[[Page 45002]]
clarify and support gains in efficiencies in the section 7 consultation
process.
Comment: Commenters stated that Sec. 402.14(g) does not explain
the meaning of the phrase ``current status of the listed species or
critical habitat'' in relationship to how we assess jeopardy and
destruction/adverse modification of critical habitat.
Response: The adopted regulations are not intended to change the
manner in which the Services use the status of the listed species or
critical habitat when completing its jeopardy and destruction/adverse
modification analyses. Further discussion on how we use the current
status of listed species and critical habitat can be found in the
Services' 1998 Consultation Handbook, especially Chapter 4--Formal
Consultation.
Comment: One commenter urges the Services to clarify that the final
rule does not require any increase in the level of detail provided in
the initiation package.
Response: The Services' adopted regulatory text at Sec.
402.14(c)(1) clarifies what type of information is necessary to
initiate the formal consultation process. Although we have added
language to describe the level of detail needed to initiate
consultation, this level of detail has not changed from the
expectations of the preceding Sec. 402.14(c) regulations and should be
commensurate with the scope of the proposed action and the effects of
the action.
Comment: One commenter suggested that Sec. 402.14(g) should
include consideration and deference to tribal management plans to
protect listed species.
Response: Consistent with Secretarial Order 3206, including
Appendix Section 3(c), the Services provide timely notification to
affected tribes when the Services are aware that a proposed Federal
agency action subject to formal consultation may affect tribal
interests. Among other things, the Services facilitate the use of the
best scientific and commercial data available by soliciting
information, traditional knowledge, and comments from, and utilize the
expertise of, affected Tribes. The Services also encourage the Federal
agency to involve affected Tribes in the consultation process, which
may involve consideration of tribal management plans to protect listed
species and to consider such plans in the formulation of reasonable and
prudent alternatives.
Comment: One commenter believed that Sec. 402.14(g)(4) should be
clarified to reflect that it is the responsibility of a project
proponent under section 7(a)(2) of the Act to avoid or offset
prohibited effects associated with the incremental impact of the
proposed action that is the subject of consultation.
Response: Section 402.14(g)(4) describes the final step in the
Services' analytical approach in evaluating a proposed action.
Requiring every proposed action to avoid or offset the incremental
impact of the proposed action would be inconsistent with the applicable
standards for determining jeopardy and destruction or adverse
modification under the Act.
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
We proposed clarifications to Sec. 402.14(g)(8) regarding whether
and how the Services 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
Services' 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 Services 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).
To address this issue, we are proceeding with the revisions to Sec.
402.14(g)(8), including the changes described in Discussion of Changes
from Proposed Rule, above. We summarize the comments and provide our
responses on the changes to Sec. 402.14(g)(8) below.
Comment: Some commenters opposed the changes and recommended that
the text be modified in the final rule to specify that the action
agency and/or applicant must establish specific plans and/or resource
commitments to ensure that the conservation measures are implemented.
In their view, if the proponent agency expects credit for proposing
beneficial actions, then there must be additional assurance that those
actions will take place. Some commenters stated the proposal was
irrational and inconsistent with case law, including Ninth Circuit
precedent in Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524
F.3d 917 (9th Cir. 2008), and will add further confusion to the case
law on the issue.
Response: We disagree with the commenters' recommendation to create
a heightened standard of documentation, such as requiring binding plans
or clear resource commitments, before the Services can consider the
effects of measures included in a proposed action to avoid, minimize,
or offset adverse effects. The revisions to Sec. 402.14(g)(8) are
intended to address situations where a Federal agency includes measures
to avoid, minimize, or offset adverse effects to species and/or
critical habitat as part of the proposed action they submit to the
Services for consultation, or where such measures are included as part
of a reasonable and prudent alternative.
Section 7 of the Act places obligations on Federal agencies to
insure that any action they authorize, fund, or carry out is not likely
to jeopardize the continued existence of a listed species or result in
the destruction or adverse modification of critical habitat. A Federal
agency fulfils this substantive obligation ``in consultation with'' and
``with the assistance of'' the Services. In situations where an adverse
effect to listed species or critical habitat is likely, the
consultation with the Services results in a biological opinion that
sets forth the Services' opinion detailing how the agency action
affects the species or its critical habitat. Ultimately, after the
Services render an opinion, the Federal agency must still determine how
to proceed with its action in a manner that is consistent with avoiding
jeopardy and destruction or adverse modification. Thus, the Act leaves
the final responsibility for compliance with section 7(a)(2)'s
substantive requirements with the Federal action agencies, not the
Services.
Our regulatory revisions are consistent with the statutory scheme
by recognizing that the Federal agencies authorizing, funding, and
carrying out the action are in the best position to determine whether
measures they propose to undertake, or adopt as part of a reasonable
and prudent alternative, are sufficiently certain to occur. Put simply,
if the commitment to implement a measure is clearly presented to the
Services as part of the proposed action consistent with Sec.
[thinsp]402.14(c)(1), then the Services will provide our opinion on the
effects of the action if implemented as proposed.
[[Page 45003]]
We do not interpret the statutory phrases ``in consultation with''
and ``with the assistance of'' to require the Services to ignore
beneficial effects of measures included in the proposed action to
avoid, minimize, or offset adverse effects unless action agencies meet
some heightened bar of documentation regarding their commitment. To the
contrary, we interpret the Act as requiring the Services to consider
the effects of the proposed action in its entirety, including aspects
of the proposed action with adverse or beneficial effects.
Some courts have inappropriately conflated the Services' role with
that of the action agency by concluding the Services cannot lawfully
consider measures proposed to avoid, minimize, or offset adverse
effects unless we second guess the intent and veracity of an action
agency's commitments. The resulting case law has led to confusion. For
instance, 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). More recently
the Ninth Circuit held that its ``precedents require an agency to
identify and guarantee'' measures to avoid, minimize, or offset adverse
effects only to the extent the measures ``target certain or existing
negative effects'' of the proposed action. Defs. of Wildlife v. Zinke,
856 F.3d 1248, 1258 (9th Cir. 2017). In some cases, courts have also
stated that ``mitigation measures supporting a biological opinion's no-
jeopardy conclusion must be `reasonably specific, certain to occur, and
capable of implementation; they must be subject to deadlines or
otherwise-enforceable obligations; and most important, they must
address the threats to the species in a way that satisfies the jeopardy
and adverse modification standards.' Ctr. for Biological Diversity v.
Rumsfeld, 198 F.Supp.2d 1139, 1152 (D.Ariz. 2002) (citing Sierra Club
v. Marsh, 816 F.2d 1376 (9th Cir. 1987)).'' Klamath-Siskiyou Wildlands
Ctr. v. Nat'l Oceanic & Atmospheric Admin., 99 F. Supp. 3d 1033, 1055
(N.D. Cal. 2015). However, the Ninth Circuit has also indicated that
the question of whether measures to avoid, minimize, or offset adverse
effects are sufficiently enforceable turns on whether or not the
measures are included in the proposed action, concluding that ``[i]f
[the measures] are part of the project design, the [Act]'s sequential,
interlocking procedural provisions ensure recourse if the parties do
not honor or enforce the agreement, and so ensure the protection of
listed species.'' Ctr. for Biological Diversity v. U.S. Bureau of Land
Mgmt., 698 F.3d 1101, 1115 (9th Cir. 2012). We disagree with the
commenter that the regulatory revisions to Sec. 402.14(g)(8) will add
to the confusion of the current case law on the subject. Instead, we
believe it will resolve confusion by explaining our interpretation of
the statute.
The regulatory change to Sec. 402.14(g)(8) is to make it clear
that, just like aspects of the proposed action with adverse effects,
the Services are not required to obtain binding plans or other such
documentation prior to being able to lawfully evaluate the effects of
an action as proposed, including any measures included in the proposed
action that would avoid, minimize, or offset adverse effects. However,
the Services are also moving forward with revisions to Sec.
[thinsp]402.14(c)(1). Those revisions require a Federal agency seeking
to initiate formal consultation to provide a description of the
proposed action, including any measures intended to avoid, minimize, or
offset effects of the proposed action. If the description of proposed
measures fails to include the level of detail necessary for the
Services to understand the action and evaluate its effects to listed
species or critical habitat, then the Services will be unable to take
into account those effects when developing our biological opinion. To
avoid confusion and reinforce that an appropriate level of specificity
regarding the description of measures included in the proposed action
may be necessary to provide sufficient detail to assess the effects of
the action on listed species and critical habitat, the Services
eliminated the reference to ``specific'' plans in our final revisions
to Sec. 402.14(g)(8). The Services do not intend to hold these actions
to either a higher or lower standard than any other type of action or
measure proposed by a Federal agency. Any type of action proposed by a
Federal agency receives a presumption that it will occur, but it must
also be described in sufficient detail that the Services can both
understand the action and evaluate its adverse effects and beneficial
effects.
The Services also retain the discretion to advise Federal agencies
about all aspects of measures proposed to avoid, minimize, or offset
adverse effects to assist them in making an informed determination
regarding compliance with section 7 and to assist in achieving the
greatest conservation benefit. Moreover, the Services retain the
discretion to develop reasonable and prudent measures and associated
terms and conditions related to implementation of the proposed action,
including the proposed conservation measures, if appropriate (e.g.,
minimizes the impact of the incidental take and is consistent with
Sec. 402.14(i)(2)). Therefore, the revisions to Sec. 402.14(g)(8) in
this final rule do not undermine the Services' ability to provide
consultation and assistance to Federal agencies related to measures
proposed to avoid, minimize, or offset adverse effects. Rather, the
revisions merely clarify that Federal agencies seeking to engage in
section 7 consultation with the Services are in the best position to
define the action being proposed and ultimately comply with section 7's
substantive mandate to avoid jeopardy and destruction or adverse
modification.
Comment: Some commenters stated that there are examples of projects
where resource impacts occurred, but that years later, measures to
offset those adverse effects had not been implemented. According to
some commenters, history provides numerous examples of action agencies
(or the Services themselves in the development of reasonable and
prudent alternatives): (1) Promising more than they could deliver in
order to alleviate the harmful effects of a proposed action; and/or (2)
making optimistic assumptions about the efficacy of the measures that
fall far short of what's needed to avoid jeopardy. Therefore, some
commenters believed the Services should require that all measures
proposed to avoid, minimize, or offset adverse effects demonstrate
clear and binding plans with financial assurances.
Response: As described above, the regulatory revisions in Sec.
402.14(g)(8) are consistent with the statutory text and retain the
Federal action agencies' substantive duty to insure that their actions
are not likely to jeopardize the continued existence of listed species
or result in destruction or adverse modification of designated critical
habitat. An action agency that fails to implement the measures proposed
to avoid, minimize, or offset adverse effects risks violating the
substantive provisions of the Act, engaging in conduct prohibited by
section 9, and increasing its vulnerability to enforcement action by
the Services or citizen suits under section 11(g) of the Act. This is
particularly true if reinitiation of consultation was required based on
the failure to implement a proposed measure and the Federal agency
fails to reinitiate consultation. For instance, our regulations at
Sec. 402.16
[[Page 45004]]
require reinitiation of consultation if the amount or extent of take
specified in the incidental take statement is exceeded, if new
information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered, and if the action is subsequently modified in a manner that
causes an effect to listed species or critical habitat that was not
considered in the biological opinion. Failure to implement a measure
proposed to avoid, minimize, or offset adverse effects could implicate
those reinitiation triggers. Accordingly, we do not believe the
revisions will encourage promises of implementing measures to avoid,
minimize, or offset adverse effects that are unrealistic or
unachievable.
Regarding the potential for overly optimistic assumptions about the
efficacy of measures included in the proposed action to avoid,
minimize, or offset adverse effects, nothing in this rule alters the
requirement under the Act to use the best scientific and commercial
data available when the Services evaluate the effects of a proposed
action, including measures proposed to avoid, minimize, or offset
adverse effects. This rule also requires Federal agencies to submit
information about the measures being proposed to avoid, minimize, or
offset adverse effects (Sec. 402.14(c)(1)) at a level of detail
sufficient for the Services to understand the action and evaluate the
effects of the action. Thus, we anticipate that, if anything, this rule
will improve the availability and quality of information that the
Services can use to evaluate the efficacy of proposed actions,
including measures proposed to avoid, minimize, or offset adverse
effects.
Comment: Some commenters stated support for the proposed changes
and said the proposed text would incentivize Federal agencies and
project proponents to develop measures to avoid, minimize, or offset
adverse effects and may result in greater conservation. Other
commenters noted that the applicant and Federal action agency are in
the best position to determine the scope of the proposed action and
what avoidance, minimization, or other measures can be implemented
during the duration of the project, and those measures will be
supported by the ``best scientific and commercial data available.''
Some commenters agreed that the proposed changes help to clarify that
the Services are not required seek ``binding'' plans or a clear and
definite commitment of resources before measures included in a proposed
action can be considered by the Services.
Response: The Services appreciate the comments. We believe the
regulatory changes will, under certain circumstances, encourage Federal
agencies and applicants to commit to implementing measures intended to
avoid, minimize, or offset adverse effects. We also agree that the
applicant and Federal action agency are in the best position to
evaluate what commitments can be made as part of the proposed action.
Section 7 consultations will continue to be based upon the best
scientific and commercial data available.
Comment: Some commenters asserted that the Services should require
specific steps of Federal agencies before considering the effects of
measures proposed to avoid, minimize, or offset adverse effects,
including: (1) Having those actions included in the actual project
description in NEPA documents or the biological assessment; (2) having
the Federal agency determine the actions are within their authority;
(3) requiring signed agreements between the agency and other
cooperators if there is off-site restoration; and (4) having a
reinitiation of consultation clause if the actions are not implemented.
Other commenters felt that the Services should determine that the plan
to avoid, minimize or offset the effects of a proposed action is
credible, that the plan for funding such measures is reasonable, and
that there are no known obstacles that may keep the measures from being
carried out. Some stated that measures to offset adverse effects should
outline the amount and type of measures that will be carried out and
what mechanism will be used to satisfy the commitment (e.g.,
conservation bank). If applicants will be undertaking the measure
directly, one commenter believed the Services should approve the final
plan, and it should be attached or included by reference. One commenter
also stated that all plans should take into account established agency
guidance on the use of conservation banks and offsetting losses of
aquatic resources.
Response: We decline to alter our proposed regulatory text in the
manner suggested on these issues for a variety of reasons. First, this
rule modifies Sec. 402.14(c) to require information about measures
included in a proposed action to avoid, minimize, or offset adverse
effects as a prerequisite to initiating formal consultation. Therefore,
there is no need to specify that the description of those measures also
be included in the project design description in a NEPA document or
biological assessment, although we anticipate such measures would also
be described in those documents. Similarly, the information required by
Sec. 402.14(c) will be sufficient to address the commenter's point
about needing information about the type, amount, and mechanisms by
which measures will be carried out. In our experience, a Federal agency
also would not include a measure as part of its proposed action if it
lacked authority to do so, and we do not need additional regulatory
provisions to address that concern. Regarding signed agreements with
cooperators if off-site measures are involved, the Federal agency
proposing the action is responsible for determining the appropriate
nature and timing of agreements with cooperators. Finally, our
regulations already specify the triggers for reinitiation. Those
triggers are adequate to require reinitiation in circumstances where
measures are not implemented as proposed and where the failure to
implement would alter the effects to listed species or critical
habitat. As described elsewhere in our responses to comments, the
Services decline to add additional steps, such as the need for a
Service-approved plan or additional documentation prior to the
Services' evaluation of the action as proposed. We acknowledge agency
guidance on measures intended to avoid, minimize, or offset adverse
effects can be useful for numerous reasons and could help inform a
Federal agency or applicant regarding best practices for ensuring the
success of proposed measures, but we decline to require the use of
specific agency guidance on measures to avoid, minimize, or offset
adverse effects, which can vary over time.
Comment: Some commenters were concerned that the Services have few
resources dedicated to compliance monitoring and that a Federal
agency's failure to complete the action as proposed cannot adequately
be considered through reinitiation of consultation. Reinitiation would
not ensure that implementation of the action up until the point at
which the agency determines it will not implement a measure avoids
jeopardy. The second option mentioned, complying with an incidental
take statement, would provide no assurance that the measure is
implemented, unless it is actually included as a reasonable and prudent
measure as part of the incidental take statement. Another commenter
stated the proposal in essence means the Services are not required to
police the Federal agency, which could provoke conflict among and
between the Services and agencies and require the expenditure of
additional resources by agencies apart from the Service.
[[Page 45005]]
Response: Nothing in this final rule reduces the Services'
resources available for compliance monitoring or reduces the Services'
ability to require monitoring and reporting requirements as part of an
incidental take statement. The Services regularly impose monitoring and
implementation reporting requirements to validate that the effects of a
proposed action are consistent with what was analyzed in the biological
opinion, and we intend for that practice to continue. Therefore, the
final rule will not interject new elements that might provoke conflict
among and between the Services and Federal agencies.
As described above, an action agency that fails to implement the
measures proposed to avoid, minimize, or offset adverse effects risks
violating the substantive provisions of the Act, engaging in conduct
prohibited by section 9, and increasing its vulnerability to
enforcement action by the Services or citizen suits under section 11(g)
of the Act. This is particularly true if reinitiation of consultation
was required based on the failure to implement a proposed measure and
the Federal agency fails to reinitiate consultation.
We disagree with the commenter that reinitiation of consultation
fails to ensure that implementation of the action avoids jeopardy up
until the point at which the agency determines it will be unable to
implement a measure intended to avoid, minimize, or offset adverse
effects. When the Services consider the effects of proposed actions on
listed species and critical habitat, that process includes a
consideration of the timing and scope of activities that will be
implemented. If a proposed action later changes due to measures not
being carried out, the adverse effects up until that point must still
avoid jeopardy and destruction or adverse modification. Therefore, we
believe reinitiation is an appropriate response in the event an action
is subsequently modified in a manner that has effects to species or
critical habitat that were not previously considered. Once consultation
is reinitiated, an action agency must not make irreversible or
irretrievable commitments of resources that will foreclose the
formulation of reasonable and prudent alternatives, and the substantive
duty to avoid jeopardizing listed species and destroying or adversely
modifying critical habitat remains. If adverse effects have occurred,
those will be taken into account in the reinitiated consultation and
the formulation of reasonable and prudent alternatives if necessary.
Given the action agencies' substantive obligations under section 7, we
do not anticipate our proposed changes to Sec. 402.14(g)(8) will
result in measures intended to avoid, minimize, or offset adverse
effects being proposed with deceptive intentions.
With regard to the incidental take statement, the Services must
make a determination on what reasonable and prudent measures are
necessary or appropriate to minimize the impact of take on a case-by-
case basis. It would be inappropriate to determine what reasonable and
prudent measures and implementing terms and conditions are necessary or
appropriate, including reporting requirements to monitor progress,
before the Services evaluate the effects of a particular proposed
action.
Comment: One commenter stated that if the Services are not required
to obtain proof of ``specific and binding plans'' for implementation of
minimization measures it would undermine the credibility of effects
determinations and complicate the identification of the environmental
baseline in future consultations, to the potential disadvantage of
future project proponents. Other commenters felt that as a result of
this proposed change, there will likely be situations in which the
Services make decisions about the adverse impacts of an agency action
based on incomplete information with no assurance the beneficial action
will occur or create any benefit to species or habitat to offset
adverse impacts.
Response: We disagree that the regulatory revisions will undermine
the credibility of effects determinations. These regulations do not
alter the requirement for Federal agencies and the Services to use the
best scientific and commercial data available. As described above, the
information needed to initiate consultation now includes a requirement
to describe any measures included to avoid, minimize, or offset adverse
effects. Thus, the Services will not be evaluating the effects of
proposed actions with insufficient information. We do not interpret the
Act as requiring a heightened standard of assurances, beyond a sincere
commitment and inclusion of a proposed measure as part of the action
under consultation, before the Services can lawfully evaluate the
effects of the action.
The revisions to Sec. 402.14(g)(8) also will not complicate the
identification of the environmental baseline to the disadvantage of
future project proponents. The relevant portions of the environmental
baseline definition are unchanged in this final rule and will continue
to take into account 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 that are
contemporaneous with the consultation in process. In any circumstance
where a proposed action is subsequently modified and results in effects
not previously considered, reinitiation of consultation would likely be
required and would be accounted for in the environmental baseline of
future consultations as appropriate.
Comment: One commenter remained concerned that, even with the
proposed clarification, the Services may continue to exclude from
consideration conservation measures that are funded by the applicant
but undertaken by another entity or conducted by a related party. The
commenter therefore requested that the proposed regulatory text in 50
CFR 402.14(g)(8) be further modified to state that ``. . . the Service
will use the best scientific and commercial data available and will
give appropriate consideration to any beneficial actions as proposed,
or taken, funded or otherwise sponsored by the Federal agency,
applicant, or related party, 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 regardless of their geographic proximity to the
proposed action, and do not require any additional demonstration of
specific binding plans or a clear, definite commitment of resources.''
Response: We appreciate the comment but decline to adopt regulatory
language that would categorically expand the scope of beneficial
actions due ``appropriate consideration'' under Sec. 402.14(g)(8) to
include actions by ``related parties.'' Such a regulatory change is
unnecessary. Beneficial actions taken or proposed in consultation by
any entity are considered by the Services when developing its
biological opinion by being included in the environmental baseline,
cumulative effects, or the effects of the action under consultation, as
appropriate.
We also decline to categorically include revisions that would
expand the scope of measures that would be ``considered like other
portions of the action'' to include those actions ``regardless of their
geographic
[[Page 45006]]
proximity to the proposed action.'' If a proposed measure is not within
the geographic proximity of the other components of the proposed
action, but would nonetheless have effects to listed species or
critical habitat, then the action area would include the area affected
by the proposed offsite measures and the effects to listed species and
critical habitat would be considered during consultation to the extent
they are relevant. No regulatory change is needed for that to occur.
In addition, from a critical habitat perspective, insertion of the
phrase ``regardless of their geographic proximity to the proposed
action'' would be inappropriate because measures implemented outside
critical habitat would often not offset the effects of the Federal
action on that critical habitat. This is because critical habitat is a
specifically designated area that identifies those areas of habitat
believed to be essential to the species' conservation.
Comment: One commenter stated concerns about requiring the
information necessary to initiate formal consultation to include ``the
specific components of the action and how they will be carried out.''
With respect to beneficial actions, this provision is likely too
restrictive.
Response: We appreciate the commenter's concern but decline to
alter the scope of information necessary to initial formal consultation
pursuant to Sec. [thinsp]402.14(c)(1). We continue to acknowledge,
like we stated in the proposed rule, that there may be situations where
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 will consider the
effects of the proposed measures as part of the action during a
consultation. We believe the information requirements contained in
Sec. [thinsp]402.14(c)(1) will help provide the necessary detail to
evaluate the effects of measures proposed to avoid, minimize, or offset
adverse effects.
Comment: Some commenters stated that the Act requires all Federal
agencies to ``insure'' their actions will avoid jeopardy and
destruction or adverse modification of critical habitat. Mere promises
of future benefits to species and their habitat in order to offset
present adverse impacts does not meet this ``insure'' standard, which
Congress characterized as the ``institutionalization of caution.''
Response: As described in the responses to comments above, this
final rule does not alter the obligation for Federal agencies to
``insure'' their actions are not likely to jeopardize listed species or
destroy or adversely modify critical habitat. The Services will
continue to consult with, and provide assistance to, Federal agencies
in their compliance with their requirements under section 7, but the
Services are not required by the Act to obtain a specific demonstration
of the binding nature of a Federal agencies' commitments prior to
evaluating the effect of those commitments and providing our biological
opinion. If a measure proposed to avoid, minimize, or offset adverse
effects is essential for avoiding jeopardy or destruction or adverse
modification, then implementation of that measure must occur at a time
when the biological benefits to the species and/or habitat are
occurring in a temporal sequence such that adverse effects cannot first
result in jeopardy, but then subsequently be remediated to avoid
jeopardy. Accordingly, the Services do not rely on promises of future
actions to offset present adverse effects in a manner that would be
inconsistent with Federal agencies ensuring that their actions are
consistent with the substantive requirements of section 7.
Comment: One commenter stated the proposed change is a confusing
false equivalency that reduces the ability of the Services to evaluate
the likely impact of the action by obscuring whether measures will in
fact take place. A preferable alternative would be to clarify, when
some action ambiguity is warranted, that consultation can still be
completed as long as avoidance, minimization, and offsetting
commitments are made for each contingency.
Response: We disagree that allowing for ambiguity and creating
alternative contingency requirements is a preferable way for the
Services to evaluate the effects of a proposed action. We consult on
the action as proposed by the Federal agency and will only consider the
effects of measures intended to avoid, minimize, or offset adverse
effects if presented with sufficient information to meaningfully
evaluate the effects of the action.
Comment: One commenter stated that measures to avoid, minimize, or
offset adverse effects impose additional costs and burdens on an agency
or applicant undertaking a project. Whereas the project proponent wants
to engage in the main action, it is undertaking the other measures only
to avoid a jeopardy conclusion for the main action. In the commenter's
view, the Services cannot rationally ignore this plain difference in
the motivations for the main action and those intended to offset the
harms of that action.
Response: If a Federal agency or applicant proposes measures to
avoid, minimize, or offset adverse effects as part of its proposed
action because it is necessary to avoid jeopardy, we believe the
motivations for undertaking the measure, such as the need to avoid
violations of the Act, are clear. We decline to probe the subjective
motivations and second guess the commitments contained in an action
under consultation, because doing so is unnecessary to fulfill the
Services' role under the Act.
Comment: One commenter stated the Services' proposed changes would
render the Services unable to even raise concerns about the likelihood
of implementation of beneficial effects of measures proposed to avoid,
minimize, or offset adverse effects when they evaluate a proposed
action to determine whether it will jeopardize the continued existence
of a species or destroy or adversely modify critical habitat. Some
commenters asserted the proposed rule provides the ``benefit of the
doubt'' to Federal action agencies' promises to implement beneficial
measures as part of the action and creates an irrational double
standard for evaluating the effects of the action such that Federal
beneficial proposals enjoy a favorable presumption in the Services'
analysis, but harmful effects and activities must meet a more rigorous
test before they will be considered.
Response: We disagree that the changes would render the Services
unable to raise concerns with Federal agencies with respect to measures
proposed to avoid, minimize, or offset adverse effects. As described
above, the Services retain the discretion to advise Federal agencies
about all aspects of their proposed action to assist them in making an
informed determination regarding compliance with section 7 and in
achieving the greatest conservation benefit. However, the Federal
agency is ultimately responsible for describing its proposed action and
providing the information required by Sec. 402.14(c)(1). If the
Federal agency provides information in sufficient detail
[[Page 45007]]
for the Services to meaningfully evaluate the effects of measures
proposed to avoid, minimize, or offset adverse effects, the Services
will consider the effects of the proposed measures during a
consultation. Once consultation is initiated, the Services apply the
same definition of ``effects of the action'' adopted in this final rule
both to the portions of the action with adverse effects and those
portions of the proposed action intended to avoid, minimize, or offset
adverse effects. Accordingly, the Services will evaluate all
consequences of all portions of the proposed action that would not
occur ``but for'' the proposed action and are reasonably certain to
occur as effects of the action. Therefore, the changes to Sec.
402.14(g)(8) do not create an irrational double standard. To the
contrary, the changes eliminate a double standard such that all aspects
of the proposed action are treated the same by assuming the action will
be implemented as proposed in its entirety. In other words, the
proposed avoidance, minimization or offsetting measures will not be
forced to meet a heightened threshold but will instead be held to the
same standard as the portions of the proposed action likely to result
in adverse effects.
We disagree that the changes adopted in this final rule are
inconsistent with the Act because they fail to provide the ``benefit of
the doubt to the species.'' That phrase originated in a Conference
Report that accompanied the 1979 amendments to the Act. Relevant to
section 7, those amendments changed the statutory text at section
7(a)(2) from ``will not jeopardize'' to the current wording of ``is not
likely to jeopardize.'' The Conference Report explained that the change
in the statutory language was necessary to prevent the Services from
having to issue jeopardy determinations whenever an action agency could
not ``guarantee with certainty'' that their action would not jeopardize
listed species. The Conference Report sought to explain that this
change in language would not have a negative impact on species: ``This
language continues to give the benefit of the doubt to the species, and
it would continue to place the burden on the action agency to
demonstrate to the consulting agency that its action will not violate
Section 7(a)(2).'' H. Conf. Rep. No. 96-697, 96th Cong., 1st. Sess. 12,
reprinted in [1979] U.S. Code Cong. & Ad. News, 2572, 2576. The use of
the words ``benefit of the doubt to the species'' in the Conference
Report appears intended to provide reassurance that the statutory
language, as amended, would remain protective of the species. At most,
the language seems to indicate that the statutory language ``is not
likely to jeopardize'' continues to provide protections to listed
species by requiring action agencies to insure that their actions are
not likely to jeopardize listed species. We do not believe that the
Conference Report language or the Act requires the Services to
establish a more demanding standard of documentation to demonstrate
that measures included in a proposed action to avoid, minimize, or
offset adverse effects will in fact be implemented. This rule does not
change any statutory requirements found in section 7(a)(2) of the Act,
and the Services will continue to utilize the best scientific and
commercial data available when evaluating the efficacy of measures
proposed to avoid, minimize, or offset adverse effects.
Comment: One commenter stated that, if the determination that an
action's impacts will not jeopardize a species relies on the
implementation of conservation measures, those measures must be planned
and funded.
Response: We agree that if the Services determine that a measure
intended to avoid, minimize, or offset adverse effects is necessary to
avoid jeopardy, then it is critical for the measure to be achievable
and be carried out if the adverse effects of the action are also
occurring. Ultimately, however, the Federal agency proposing to take
the action is in the best position to determine what planning and
funding is necessary to ensure that their substantive duties under
section 7 are satisfied. As discussed above, the Services retain the
discretion during consultation to assist the action agencies in
developing or improving the effectiveness of measures proposed to
avoid, minimize, or offset adverse effects and ensuring the greatest
chance of success. Moreover, the Services retain the discretion to
develop reasonable and prudent alternatives or reasonable and prudent
measures and associated terms and conditions if doing so would be
appropriate.
Section 402.14(h)--Biological Opinions
We proposed to add new paragraphs (h)(3) and (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
proposed 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. We are proceeding with
those proposed changes, as well as the changes described under
Discussion of Changes from Proposed Rule above. We summarize the
comments and provide our responses on this topic below related to
revisions to Sec. 402.14(h) below.
Comment: We received numerous comments supporting the ability of
the Services to adopt various internal or other Federal agency
documents including their initiation package or the documents
associated with the Services' section 10 documents because they believe
this proposal would avoid unnecessary duplication of documents,
streamline the consultation process, and codify existing practice.
Other commenters were supportive but also recommended that an
applicant's documents prepared pursuant to section 10 of the Act and
tribal documents should be able to be adopted in the Service's
biological opinion.
Response: We believe that this proposal will codify existing
practice and further encourage a collaborative process between the
Services, Federal agencies, and applicants that will streamline the
consultation process by eliminating duplication of analyses or
documents whenever appropriate. We agree with commenters that
appropriate analyses and documents from both tribes (e.g., tribal
wildlife management plans or resource management plan) and applicants'
section 10 Habitat Conservation Plans are eligible for adoption by the
Services into their biological opinion.
Comment: Some commenters raised concern that adopting section 10
Habitat Conservation Plan analyses or documents was inappropriate
because there are different standards in the two sections of the Act.
Response: The intent of the proposed rule is to provide flexibility
to adopt in a biological opinion, after appropriate review, relevant
parts of internal analyses or documents prepared to support issuance of
a section 10 permit. This could include the project description, site-
specific species information and environmental baseline data, proposed
conservation measures, analyses of effects, etc., all of which may be
appropriate for use in Service determinations pursuant to both sections
7 and 10 of the Act.
Comment: Several commenters were critical of the proposed rule,
asserting that adoption of non-Service analyses or documents in a
biological opinion would be an abdication of our responsibilities to
conduct independent, science-based analyses and that only the Services
possessed the requisite expertise to perform these analyses.
Response: The Services' proposal is not to indiscriminately adopt
analyses or documents from non-Service sources, but to adopt these
analyses only after
[[Page 45008]]
our independent, science-based evaluation of existing analyses or
documents that meet our regulatory and scientific standards. The intent
is to avoid needless duplication of analyses and documents that meet
our standards, including the use of the best scientific and commercial
data available. In some situations, the analyses or documents may need
to be revised to merit inclusion in our biological opinions, but even
those situations will make the consultation process more efficient and
streamlined. For example, it is a common practice for the Services to
adopt portions of biological assessments and initiation packages in
their biological opinions. The codification of this practice creates a
more collaborative process and incentive for Federal agencies and
section 10 applicants to produce high-quality analyses and documents
that are suitable for inclusion in biological opinions, which
streamlines the timeframe for completion of the consultation process.
Comment: One commenter expressed concern that the proposed adoption
process might shift the burden to the Federal agency and extend the
timeline for completion of consultation.
Response: The Services disagree. Federal agencies currently have
the responsibility under Sec. 402.14(c) to provide the information
required to initiate consultation and to use the best scientific and
commercial data available. The adoption process does not affect that
responsibility. The Services' adoption of internal and non-Service
analyses and documents is intended to streamline and reduce the overall
consultation timeline.
Section 402.14(l)--Expedited Consultation
We proposed 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. We adopt the new Sec. 402.14(l) in this final rule and
summarize the comments received and our responses below.
Comment: Several commenters supported the proposed process for
expedited consultations as it would promote conservation and recovery,
increase efficiencies, reduce permitting delays, and generally
streamline the consultation process.
Response: The Services agree with these comments that the proposed
expedited consultation provision will benefit species and habitats by
promoting conservation and recovery through improved efficiencies in
the section 7 consultation process.
Comment: Several commenters were concerned that consultations
undergoing the expedited process would have reduced oversight and not
allow for a thorough analysis of the potential effects of a Federal
agency's proposed action and therefore may not meet the standards
required under section 7(a)(2) of the Act. Another commenter indicated
that the proposed expedited consultation process could provide some
benefits. However, the commenter raised concerns that the ability to
evaluate a project on a specific basis would be missed, and this
provision would open the door for blanket permissions to proceed on
particular projects that could be detrimental to species, especially if
there are new or specific impacts to species in time and place despite
the project being similar to others.
Response: The expedited consultation provision is an optional
process that is intended to streamline the consultation process for
those projects that have minimal adverse impact but still require a
biological opinion and incidental take statement and for projects where
the effects are either known or are predictable and unlikely to cause
jeopardy or destruction or adverse modification. Many of these projects
historically have been completed under the routine formal consultation
process and statutory timeframes. This provision is intended to
expedite the timelines of the formal consultation process for Federal
actions while still requiring the same information and analysis
standards as the normal process. Based upon the nature and scope of the
projects expected to undergo this expedited process, expedited
timelines will still allow for the appropriate level of review and
oversight by the Services that meet the standards and requirements of
the section 7 consultation process under the Act.
Comment: Several commenters indicated they support this provision
for an expedited consultation process. However, they requested
additional clarification on when this type of consultation would be
appropriate or examples of specific parameters such as time required
for a proposed Federal action to undergo this expedited consultation
process. A few commenters also asked for clarification on how this
process differs from the programmatic consultation process.
Response: A key element for successful implementation of this
process is mutual agreement between the Service and Federal agency (and
applicant when applicable). The mutual agreement will contain the
specific parameters necessary to complete each step of the process,
such as the completion of a biological opinion. Discussions between the
Service and Federal agency (and applicant when applicable) will
identify what projects could undergo this process. An example of an
expedited consultation process that has been utilized by Services and
land management agencies for many years is the streamlining agreement
for western Federal lands (https://www.fs.fed.us/r6/icbemp/esa/TrainingTools.htm). The streamlining agreement adopts an interagency
team process that frontloads much of the consultation and leads to the
issuance of biological opinions within 60 days. The streamlining
agreement illustrates the types of efficiencies the Services hope to
gain with the adoption of the expedited consultation provision. The
expedited consultation provision is an optional process that is
intended to streamline the consultation process, similar to other
mechanisms such as programmatic consultations. However, this process
differs from programmatic consultations primarily because it is
expected to be completed entirely in an expedited timeframe resulting
from familiarity with the type of project being proposed and its known
or predictable effects on species. Additionally, this process may
differ from a programmatic consultation in that many programmatic
consultations often require lengthy time for technical assistance,
agreements on conservation measures, and completion of the biological
opinion in the initial phases of the consultation process, with
efficiencies and streamlining achieved later on once individual
projects are reviewed and appended or covered under the completed
programmatic biological opinion. The Services nevertheless anticipate
that, if appropriate, a programmatic consultation could proceed under
the expedited consultation process.
Comment: A few commenters indicated the proposed revisions for an
expedited consultation approach may be unnecessary and unrealistic
given current staffing and funding constraints of the Service(s),
reducing their ability to meet expedited timelines. Additionally, one
of these commenters also was concerned that the proposed changes to the
definition of Director could cause additional delays if these types of
consultations would all have to be signed at the U.S. Fish and Wildlife
Service headquarters in Washington, DC, defeating the purpose of
completion
[[Page 45009]]
of formal consultation under an expedited timeline.
Response: The Services do not anticipate an increase in constraints
on staff or resources. The expedited consultation provision is
anticipated to improve efficiencies by reducing the amount of time
staff would need to spend completing consultations for projects
undergoing this process. By decreasing the amount of time spent on
these types of consultations, it is anticipated more staff time and
resources would be available for completion of projects undergoing more
complex or lengthy consultation processes.
As discussed above, the revision to the definition for Director is
intended to designate the head of both FWS and NMFS as the definitional
Director under the section 7(a)(2) interagency cooperation regulations.
The change does not revise the current signature delegations of the
Services in place that allow for signature of specified section 7
documents (e.g., biological opinions and concurrence letters) at the
regional level and will not increase the completion time for
consultation.
Comment: One commenter recommended that this expedited consultation
process only be undertaken for projects that are entirely beneficial to
species and habitats.
Response: The Services agree that many projects that are beneficial
for species and habitats could undergo an expedited consultation
process. Such projects may have some anticipated temporary adverse
effects to listed species and their habitat, but often are predictable,
and, therefore, these projects could be good candidates for the
expedited consultation process. However, the Services do not agree that
the expedited consultation provision should be limited to only these
types of beneficial actions. Other actions that meet the requirements
of the provision could also benefit from an expedited process while
still ensuring full compliance with the Act.
Comment: A few commenters opposed the proposed provision for
expedited consultations since the Services generally complete
consultations within the established statutory deadlines.
Response: The Services strive to complete consultations within the
established statutory deadlines, but continue to identify ways to
improve efficiencies. The proposed new provision for expedited
consultations is another streamlining mechanism intended to improve
efficiencies in the section 7(a)(2) consultation process for the
Services, Federal agencies, and their applicants while ensuring full
compliance with the responsibilities of section 7.
Section 402.16--Reinitiation of Consultation
The Services proposed to revise the title of section 402.16 to
remove the term ``formal'' in order to recognize long standing practice
between the Services and Federal agencies that reinitiation of section
7(a)(2) consultation also applies to the written concurrences that
complete the section 7(a)(2) process under Sec. 402.13 Informal
Consultation. We are proceeding with that revision to Sec. 402.16 and
also further revising the text at Sec. 402.16(c) to clarify the
connection of the reinitiation criteria to the written concurrence
process. This latter revision is described above in this final rule. We
received several comments on this section, and those comments and our
responses to the public comment received on the proposal to codify that
reinitiation of consultation applies to the informal consultation
written concurrence process are here provided.
The Services also proposed to amend Sec. 402.16 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. 20016) cert.
denied, 137 S. Ct. 293 (2016). We proposed to add a new paragraph (b)
to clarify that the duty to reinitiate consultation does not apply to
an existing programmatic land plan prepared pursuant to FLPMA, 43
U.S.C. 1701 et seq., or NFMA, 16 U.S.C. 1600 et seq., when a new
species is listed or new critical habitat is designated. We proposed to
narrow Sec. 402.16 to exclude those two types of plans that have no
immediate on-the-ground effects. This exclusion is in contrast to
specific on-the-ground actions that implement the plan and that are
subject to their own section 7 consultations if those actions may
affect listed species or critical habitat. Thus, the proposed
regulation also restated our position that, while a completed land
management plan prepared pursuant to FLPMA or NFMA 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 newly designated critical habitat.
In addition to seeking comment on the proposed revision to Sec.
402.16, we sought 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 also requested comment on the 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.
Comment: Some commenters agreed that the proposed changes would
align our regulations with current practice and court decisions. Some
commenters expressed concern that we were expanding the requirements
for reinitiation or expanding the circumstances in which reinitiation
is required. One commenter suggested we clarify when reinitiation is
needed by establishing ``clear standards for determining what project
changes warrant a re-evaluation of previously approved environmental
documentation (i.e., what constitutes a material change).''
Response: The proposed changes do not alter the requirement that
the Federal agency retain discretionary involvement and control for
reinitiation to apply. Nor does the proposal change or expand the scope
of reinitiation triggers for section 7(a)(2) consultation. A material
change relevant to section 7(a)(2) consultations on an action is
captured in the reinitiation trigger at Sec. 402.16(c): ``[i]f the
identified action is subsequently modified in a manner that causes an
effect to the listed species or critical habitat that was not
considered. . . .'' These standards for reinitiation of consultation
are straightforward, and the Services do not plan further clarification
in the regulatory text on this point. However, the Services are further
revising Sec. 402.16(c) to make clear that this trigger for
reinitiation of consultation applies to the written request for
concurrence and our response.
Informal consultation is an optional process in which a Federal
agency may determine, with the Services' concurrence, that formal
consultation is not necessary because the action is not likely to
adversely affect listed species and critical habitat. In these cases,
the relevant reinitiation triggers still apply to the action as long as
the agency retains discretionary involvement or control over the
action. For example, if the action is changed or new information
reveals effects to listed species or critical habitat may occur in a
manner not previously considered, then reinitiation of consultation is
warranted. This could occur where a permitted activity proceeds in a
manner different than originally proposed, or if
[[Page 45010]]
new scientific or commercial information indicates that the permitted
activities or effects flowing from those activities have different or
greater impacts on the critical habitat or species than originally
evaluated during the informal consultation process.
Comment: Several commenters urged the Services to extend the
exemption from reinitiation when a new species is listed or critical
habitat designated to all programmatic plans, including water
management plans, other types of programmatic land management plans
such as comprehensive conservation plans prepared for National Wildlife
Refuges, and other types of integrated activity plans.
Response: At this time, we have decided to limit only those
approved land management plans prepared pursuant to FLPMA or NFMA from
reinitiation when a new species is listed or critical habitat
designated.
Comment: One commenter was concerned the reinitiation exemption
would apply to other U.S. Forest Service (USFS) plans, such as travel
management plans.
Response: Only approved USFS programmatic land management plans
prepared pursuant to NFMA are temporarily relieved from the
reinitiation of consultation when a new species is listed or critical
habitat designated. Other types of plans are still subject to
reinitiation if one of the triggers is met under Sec. 402.16(a) and
the agency retains discretionary authorization or control over the
plan.
Comment: Many commenters believed that our proposed regulation is
in contravention to controlling case law, including Cottonwood, Forest
Guardians v. Forsgren, 478 F.3d 1149 (10th Cir. 2007), and Pacific
Rivers Council v. Thomas, 30 F. 3d 1050 (9th Cir. 1994). Likewise, a
few comments criticized the proposed regulation because the duty to
reinitiate derives from the action agency's substantive and procedural
duties under section 7, which would be undermined.
Response: We agree that Congress intended to enact a broad
definition of ``action'' in the Act. We also agree that management
plans may have long-lasting effects; however, those effects were
addressed in a consultation when the plan was adopted. Any effects that
were not considered in the original consultation may still be subject
to reinitiation if certain triggers are met, including whether the
agency retains discretionary authorization or control over the action.
Any actions taken pursuant to the plan will be subject to its own
consultation if it may affect listed species or critical habitat. We
disagree with Cottonwood's holding that the mere existence of a land
management plan is an affirmative discretionary action subject to
reinitiation. 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). This amendment to Sec.
402.16 reaffirms that only affirmative discretionary actions are
subject to reinitiation under our regulations when any of the triggers
at Sec. 402.16(a)(1) through (4) are met.
Comment: Several commenters believed that the proposed Sec.
402.16(b) violated the Wildlife Suppression Funding and Forest
Management Activities Act, H.R. 1625, Division O, which was included in
the Omnibus Appropriations bill for fiscal year 2018.
Response: After further review, the Services have revised the final
regulation to include timeframes for forest land management plans
prepared pursuant to NFMA to align with the temporary relief from
reinitiation when a new species is listed or critical habitat
designated set forth by Congress in section 208 of the Wildfire
Suppression Funding and Forest Management Activities Act included in
the 2018 Omnibus bill. In addition, in section 209, Congress excluded
those grant lands under the Oregon and California Revested Lands Act,
39 Stat. 218, and the Coos Bay Wagon Road Reconveyed Lands Act, 40
Stat. 1179, from reinitiation of consultation when a new species is
listed or critical habitat designated. Congress set no time limit for
this exemption. However, a separate consultation must still occur for
these particular Bureau of Land Management (BLM) lands for any actions
taken pursuant to the plan, with respect to the development of a new
land use plan, or the revision or significant change to an existing
land use plan. See Wildfire Suppression Funding and Forest Management
Activities Act at section 209(b).
Congress did not address in the Wildfire Suppression Funding and
Forest Management Activities Act other BLM land managed pursuant to
FLPMA. Thus, we are exercising our discretion and excluding from
reinitiation those programmatic land management plans prepared pursuant
to FLPMA when a new species is listed or critical habitat designated,
provided that any specific action taken pursuant to the plan is subject
to a separate section 7 consultation if the action may affect listed
species or critical habitat.
Comment: A few commenters did not want a regulation relieving BLM
and the USFS from reinitiation on its land management plans if a new
species is listed or critical habitat designated. They believed a case-
by-case approach would make more sense, especially when a new listing
under the Act might call for significant changes to the plan.
Response: If a new listing or new critical habitat designation
would require significant changes to a land management plan, those
changes would have to be accomplished through a plan amendment or plan
revision. A plan amendment or revision would be a separate action
subject to consultation if it may affect listed species or critical
habitat.
Comment: Some commenters argued that BLM and the USFS retain
sufficient discretionary involvement or control over their land
management plans to require reinitiation if certain triggers are met.
Response: The Services may recommend reinitiation of consultation,
but it is within the action agency's purview, and not the Services', to
determine whether it retains discretionary involvement or control over
their plans for purposes of reinitiation.
Comment: A few commenters supported Sec. 406.16(b) because
developers of a land management plan should have considered how to
manage for healthy ecosystems when the plan was adopted and thus should
not always be required to reinitiate consultation. This direction
shifts management away from a species-by-species focus and towards
healthy landscapes and habitats.
Response: We agree with this approach and note this type of focus
is best achieved through a section 7(a)(1) conservation program in
consultation with the Services when a new species is listed or critical
habitat designated. As we noted in the proposed rule's preamble, this
proactive, conservation planning process will enable an action agency
to better synchronize its 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.
Comment: Many commenters expressed concern with the relief from
reinitiation provision applying to a forest or land management plan
that is out of date. A few suggested that we revise the regulation to
require only up-
[[Page 45011]]
to-date land management plans be subject to the exemption provided in
Sec. 402.16(b) so as to ensure the science and public input are not
stale.
Response: As noted in the proposed rule preamble, BLM and the USFS
are required to periodically update their land management plans, at
which time they would consult on any newly listed species or critical
habitat. BLM is required to periodically evaluate and revise its
Resource Management Plans (43 CFR part 1610), and reevaluations should
not exceed 5 years (see BLM Handbook H-1601-1 at p. 34). Our proposed
rule anticipated that BLM Resource Management Plans will be kept up to
date in accordance with this agency directive and so did not place any
limitation on the relief from reinitiation. Our final rule also does
not place any limitation on the relief from reinitiation for approved
BLM plans. For any BLM land management plan, we note that any separate
action taken pursuant to such plans will be subject to a separate
consultation, which will take into account effects upon newly listed
species and designated critical habitat.
USFS is required to revise their land management plans at least
every 15 years (see 36 CFR 219.7). Congress, in the Wildfire
Suppression Funding and Forest Management Activities Act, limited the
relief from reinitiation with respect to plans prepared pursuant to
NFMA to only those plans that are up to date, and that Congressional
limitation is now also reflected in our revised final regulation.
Comment: A few comments suggested adding text to the regulation not
to require reinitiation on the approval of a land management plan when
a new species is listed or critical habitat designated ``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 limited in scope to the specific action.''
(emphasis added).
Response: We respectfully decline to add this text because we do
not think it is necessary.
Comment: A few commented that Sec. 404.16(b) violates the
Services' duty to consider cumulative effects.
Response: We respectfully disagree. Cumulative effects are those
effects of future State or private activities, not involving Federal
activities, that are reasonably certain to occur within the action area
of the Federal action subject to consultation. In other words, a land
management plan's effects within the action area does not include
cumulative effects, but cumulative effects within the action area are
taken into account when determining jeopardy or adverse modification.
Comment: One commenter believed the final regulation violates
section 7(d) of the Act because failure to reinitiate on a completed
land management plan results in the irretrievable commitment of
resources in a manner that forecloses reasonable and prudent
alternatives to the plan that could avoid jeopardy.
Response: Programmatic land management plans have no immediate-on-
the-ground effects. Thus, making a section 7(d) determination on the
mere existence of a completed land management plan that is subject to
step-down, action-specific consultations does little to further the
conservation goals of the Act.
Comment: One comment suggested that ``reinitiation'' does not
require the completion of consultation and may not require a ``full-
blown'' consultation.
Response: The Services agree that the scope and requirements of a
reinitiation of consultation and documents for completion will depend
on the particular facts of a given situation. We decline to issue
regulations addressing this issue at this time, however. This comment
also requested adding text that is already addressed under existing
reinitiation triggers.
Comment: One comment suggested that, if the species proposed for
listing were already included in the consultation on the programmatic
land management plan, such plans should not have to be reinitiated when
the species becomes listed.
Response: We agree with this comment. Also, this type of situation
also lends itself well to a section 7(a)(1) program. Please see our
response above.
Section 402.17--Other Provisions
For responses related to this section, please see response to
comments for ``effects of the action'' above.
Miscellaneous
This section captures comments received and our responses for other
aspects of the Services' proposed rule.
Comment: In our proposed rule, the Services sought comment
regarding revising Sec. 402.03 (applicability) to potentially preclude
the need to consult under certain circumstances. We described this as
``. . . 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.''
Response: The Services appreciate the wide variety of thoughtful
comments and suggestions we received on these concepts. While many
commenters supported the potential revisions, many did not. Though not
an exhaustive list, the majority of the comments covered topics such as
a belief that the concepts would streamline the consultation process
and allow more time for consultation on projects with greater harm and
risk to listed species, potential legal risks to action agencies if we
were to revise the regulations to address these circumstances, unclear
legal authority to adopt such regulations, concern regarding reduced
opportunity for cooperation between the Services and Federal agencies,
lack of adequate expertise in Federal agencies to correctly make the
needed determinations, delays in consultation completion, complication
of the consultation process, and failure to examine larger
environmental phenomena. While such input may inform the future
development of additional regulatory amendments, policies, or guidance,
we have determined at this time, in the interests of efficiency, to
defer action on this issue, which we may address at a later time.
Because the Services are required only to respond to those ``comments
which, if true, . . . would require a change in [the] proposed rule,''
Am. Mining Cong. v. United States EPA, 907 F.2d 1179, 1188 (D.C. Cir.
1990) (quoting ACLU v. FCC, 823 F.2d 1554, 1581 (D.C. Cir. 1987)),
those that were not specifically addressed in our proposed regulatory
amendments are not ``significant'' in context of the proposed rule. See
also Home Box Office, Inc. v. FCC, 567 F.2d 9, 35 n. 58 (D.C. Cir.
1977), cert. denied, 485 U.S. 959, 108 S.Ct. 1220, 99 L.Ed.2d 421
(1988). Therefore, we will not respond further to these comments at
this time.
Comment: We received many comments related to topics that were not
specifically addressed in our proposed regulatory amendments, such as
defining or revising definitions, clarifying emergency consultation,
including economic considerations into the consultation process,
revising the 1998 Consultation Handbook, and
[[Page 45012]]
revising the regulations implementing other sections of the Act.
Response: The Services appreciate the many insightful comments and
suggestions we received on section 7 and the consultation process.
While such input may inform the future development of additional
regulatory amendments, policies, or guidance, we have determined at
this time, in the interests of efficiency, to go forward with the scope
of the originally proposed regulatory revisions and defer action on
other issues until a later time. Because the Services are required only
to respond to those ``comments which, if true, . . . would require a
change in [the] proposed rule,'' Am. Mining Cong. v. United States EPA,
907 F.2d 1179, 1188 (D.C. Cir. 1990) (quoting ACLU v. FCC, 823 F.2d
1554, 1581 (D.C. Cir. 1987)), those that were not specifically
addressed in our proposed regulatory amendments are not ``significant''
in context of the proposed rule. See also Home Box Office, Inc. v. FCC,
567 F.2d 9, 35 n. 58 (D.C. Cir. 1977), cert. denied, 485 U.S. 959, 108
S.Ct. 1220, 99 L.Ed.2d 421 (1988). Therefore, we will not respond to
these ``miscellaneous'' comments at this time.
Comment: Several commenters were concerned that the Services
effectively failed to provide adequate notice and opportunity for
public comment, particularly because the three draft rules were posted
simultaneously. Several commenters requested additional time for
review, while others asserted we should withdraw our proposal,
republish it with a more accurate and clear summary of the changes to
the regulations and their implications, and provide further opportunity
for public comment.
Response: We provided a 60-day public comment period on the
proposed rule. Following publication of our proposed rule, we held
numerous webinars providing an opportunity for States, tribes, non-
governmental organizations, and industry groups to ask questions and
provide input directly to the Services. This satisfies the Services'
obligation to provide notice and comment under the Act and the
Administrative Procedure Act (APA).
Comment: The Services received several comments that raised concern
over whether we would finalize a rule without the opportunity for
additional public notice and comment based upon our representation that
the rulemaking should be considered as applying to all of part 402 and
that we would consider whether additional modifications to the
interagency cooperation regulations would improve, clarify, or
streamline the administration of the Act.
Response: We did seek public comments recommending, opposing, or
providing feedback on specific changes to any provision in part 402.
Based upon comments received and our experience in administering the
Act, we represented that a final rule may include revisions that are a
logical outgrowth of the proposed rule, consistent with the APA. Some
believed that these representations would allow us to amend any of part
402 without sufficient public notice in violation of the APA. We
reiterate that any final changes to part 402 not specifically proposed
would have to be a logical outgrowth of the proposal and fairly apprise
interested persons of the issues. The Services have satisfied that
standard here with regard to the changes adopted in this final rule
compared to the proposed rule. As such, there are no substantial
additional revisions that were not part of the proposed rule which
would not be considered a logical outgrowth of the proposed rule.
Comment: Some commenters requested a hearing on the proposed rule.
Response: As this is an informal rulemaking under APA section 553,
a hearing is not required.
Comment: Several Tribes commented they should have greater
involvement in consultations affecting their resources and that
traditional ecological knowledge should constitute the best scientific
and commercial data available and be used by the Services.
Response: Tribes provide significant benefits to the consultation
process. The Services will continue to work with tribes to meet our
trust responsibilities and to comply with applicable tribal engagement
policies, including Executive Order 13175, Secretarial Order 3206, NOAA
Procedures for Government-to-Government Consultation With Federally
Recognized Indian Tribes and Alaska Native Corporations, and the FWS
Native American Policy, as part of the formal consultation process.
Traditional ecological knowledge (TEK) is important and useful
information that can inform us as to the status of a species,
historical and current trends, and threats that may be acting on it or
its habitat. The Act requires that we use the best scientific and
commercial data available to inform the section 7(a)(2) consultation
process. Although in some cases TEK may be the best data available, the
Services cannot determine, as a general rule, that TEK will be the best
available data in every circumstance. However, we will consider TEK
along with other available data, weighing all data appropriately during
our section 7(a)(2) analysis.
National Environmental Policy Act
In the proposed regulation's Required Determinations section, we
represented that the Services would analyze the proposed regulation in
accordance with criteria of the National Environmental Policy Act
(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 NOAA Companion
Manual, ``Policy and Procedures for Compliance with the National
Environmental Policy Act and Related Authorities,'' which became
effective January 13, 2017. We requested public comment on the extent
to which the proposed regulation may have a significant impact on the
human environment or fall within one of the categorical exclusions for
action that have no individual or cumulative effect on the quality of
the human environment.
Comment: We received comments arguing that these proposed
amendments to the section 7 regulations are significant under NEPA and
thus require the preparation of an environmental impact statement or,
at least, an environmental analysis. Other commenters believed these
amendments qualify for a categorical exclusion (CE) under NEPA.
Response: The Services believe that these rules will improve and
clarify interagency consultation without compromising the conservation
of listed species. We have not raised or lowered the bar for what is
required under the regulations. For the reasons stated in the Required
Determinations section of this final rule, we have determined that
these amendments, to the extent they would result in foreseeable
environmental effects, qualify for a CE from further NEPA review and
that no extraordinary circumstances apply.
Comment: Other commenters remarked upon inadequate funding for the
Council on Environmental Quality and inefficiencies surrounding the
implementation of NEPA.
Response: These comments are outside the scope of these
regulations.
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
In the proposed rule, we sought comment on ``the merit, authority,
and
[[Page 45013]]
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.'' We received a
variety of comments in response to our request. Some of them
interpreted the Services' request to mean that we were requesting
comment on our ability to conduct a joint consultation, resulting in a
single biological opinion, when both Services have species that require
consultation (e.g., both Services participate in the consultation and
then prepare a single biological opinion in which each agency addresses
the species for which it has responsibility). One commenter interpreted
our request to be that one Service could conduct a consultation and
prepare a biological opinion for a species for which the other agency
has responsibility (e.g., FWS could consult and prepare a biological
opinion for a listed chinook salmon, which is listed under NMFS'
authority).
Comment: Some commenters supported the Services conducting a single
consultation, resulting in a single biological opinion. Examples of
supporting comments include, but are not limited to: Joint
consultations and biological opinions could improve the Services'
process and outcomes through early collaboration on species under joint
jurisdiction; there would be better alignment with the 1998
Consultation Handbook's language regarding coordination, and more
consistent interpretation and application of information between the
Services. Concerns raised focused on issues such as: The potential for
significant delays due to the additional coordination required between
the Federal agency and the Services; and the potential for an increased
burden on the Federal agency to negotiate consultation schedules with
the Services to accommodate a joint consultation, especially when the
proposed action is time sensitive. A few commenters proposed process
improvements, such as the development of guidance, for when and how the
Services conduct joint consultations and prepare joint biological
opinions.
Response: The Services acknowledge that there can be challenges
with completing joint biological opinions in cases where the Services
have joint jurisdiction (e.g., sea turtles), as well as in cases where
the species addressed by the two agencies are different but both
Services are engaged in consultation on the same project. Joint
consultations require additional coordination, which often adds to
complexity in scheduling meetings, preparing the biological opinion,
etc. However, in some circumstances (e.g., where the Services'
respective reasonable and prudent measures and terms and conditions
have the potential to contradict one another), the additional
coordination can be beneficial. Joint biological opinions are often the
most efficient way to implement the Services' authorities and provide
clarity to the action agencies and applicants. For these reasons, the
decision to conduct a joint biological opinion is best made on a case-
by-case basis.
In this rule, we are not proposing any changes to how we conduct
joint consultations or prepare joint biological opinions. In a few
circumstances (e.g., listed sea turtles), the Services will continue to
implement existing Memoranda of Understanding (MOUs) that help define
our respective responsibilities. Otherwise, in accordance with our
current practices, we will continue to involve the Federal agency and
the applicant (working through the Federal agency) in the decision-
making process on the need for, and means to, conduct joint
consultations and prepare joint biological opinions.
Comment: One commenter suggested that it would be illegal for one
Service to conduct a consultation and prepare a biological opinion
evaluating effects to a species for which the other agency has
responsibility.
Response: The Secretary of the Interior and Secretary of Commerce
have specific jurisdictional authority for species listed under the Act
that have been assigned to them by Congress. The Act defines
``Secretary'' as ``the Secretary of the Interior or the Secretary of
Commerce as program responsibilities are vested pursuant to the
provision of Reorganization Plan Numbered 4 of 1970.''
Reorganization Plan Number 4 (Title 5. Appendix Reorganization Plan
No. 4 of 1970, page 208) established the National Oceanic and
Atmospheric Administration and Assistant Administrator for Fisheries
and transferred certain responsibilities from the Secretary of the
Interior to the Secretary of Commerce. Reorganization Plan Number 4 was
amended in 1977 to state, ``The Assistant Administrator for Fisheries
shall be responsible for all matters related to living marine resources
which may arise in connection with the conduct of the functions of the
Administration. [As amended Pub. L. 95-219, 3(a)(1), Dec. 28, 1977, 91
Stat. 1613.].''
These regulations do not address the underlying particular
circumstance raised by this comment; therefore, we decline to respond
to the legal question posed by the commenter.
Role of Applicants and Designated Non-Federal Representatives in
Section 7(a)(2) Consultations
Comment: The Services received many comments regarding the role of
applicants in the consultation process, including those encouraging an
active role for applicants during consultation.
Response: The Services appreciate these comments and agree that
applicants play a significant role in the consultation process. The
Act, the regulations, and the 1998 Consultation Handbook all provide
for a role of an applicant in several stages of the consultation
process. With regard to informal consultation, an applicant can act as
the non-Federal representative and, under the guidance of the action
agency, write any biological evaluations or assessments. With regard to
formal consultation, as delineated in the regulations and 1998
Consultation Handbook, an applicant: (1) Is provided an opportunity to
submit information through the action agency; (2) must be informed by
the action agency of the estimated length of time for an extension for
preparing a biological assessment beyond the 180-day timeframe and the
reason for the extension; (3) must be provided an explanation if the
formal consultation timeframe is extended and must consent to any
extension of more than 60 days; (4) may request to review a final draft
biological opinion through the Federal agency and provide comments
through the Federal agency; (5) have discussions with the Services for
the basis of their biological determinations and provide input to the
Services for any reasonable and prudent alternatives if necessary; and
(6) be provided a copy of the final biological opinion.
Our implementing regulations and 1998 Consultation Handbook assign
to the Federal agency the responsibility for determining whether and
how an applicant will be engaged in a consultation along with that
agency. In order to facilitate involvement from applicants, if any
applicant reaches out to the Service, we will notify the Federal agency
immediately, advise the Federal agency of the opportunities for
applicant involvement in the consultation process provided by the Act,
the regulations, and the 1998 Consultation Handbook, and encourage the
Federal agency to afford those opportunities to the applicant
throughout the consultation process.
Comment: Some commenters requested full participation by
[[Page 45014]]
designated non-Federal representatives in the consultation process.
Response: Participation by designated non-Federal representatives
is addressed at Sec. 402.08. This includes allowing the designated
non-Federal representative to conduct the informal consultation and
prepare biological assessments for formal consultations. The ultimate
responsibility for complying with section 7(a)(2) of the Act lies with
the consulting agency and, as such, they are best situated to determine
when to designate non-Federal representatives, consistent with the
regulations. As such, further regulation regarding non-Federal
representatives in the consultation process is unnecessary.
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 final rule in a manner
consistent with these requirements. This final 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 rule is an Executive Order 13771 deregulatory action.
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 certified at the proposed rule
stage that this action will 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 Act. It will primarily affect the Federal
agencies that carry out the section 7 consultation process. To the
extent the rule may affect applicants, this rulemaking is intended to
make the interagency consultation process more efficient and
consistent, without substantively altering applicants' obligations.
Moreover, this final rule is not a major rule under SBREFA.
This final rule will determine 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 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 rule serves to provide clarity to
the standards with which we will evaluate agency actions pursuant to
section 7 of the Act.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(a) On the basis of information contained under Regulatory
Flexibility Act, above, this final rule will 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 will not impose a cost of $100 million or more in any given year
on local or State governments or private entities. A Small Government
Agency Plan is not required. As explained above, small governments will
not be affected because this final rule will not place additional
requirements on any city, county, or other local municipalities.
(b) This final rule will 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 final rule is not a ``significant
regulatory action'' under the Unfunded Mandates Reform Act. This final
rule will impose no additional management or protection requirements on
State, local, or tribal governments.
Takings (E.O. 12630)
In accordance with Executive Order 12630, this final rule will not
have significant takings implications. This rule will not pertain to
``taking'' of private property interests, nor will it directly affect
private property. A takings implication assessment is not required
because this final rule (1) will not effectively compel a property
owner to suffer a physical invasion of property and (2) will not deny
all economically beneficial or productive use of the land or aquatic
resources. This final rule will substantially advance a legitimate
government interest (conservation and recovery of endangered species
and threatened species) and will not present a barrier to all
reasonable and expected beneficial use of private property.
Federalism
In accordance with Executive Order 13132, we have considered
whether this final rule would have significant effects on federalism
and have determined that a federalism summary impact statement is not
required. This final rule pertains only to improving and clarifying the
interagency consultation processes under the Act and will 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 final 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 final rule will clarify the interagency
consultation processes under the Act.
[[Page 45015]]
Government-to-Government Relationship With Tribes
In accordance with Executive Order 13175 ``Consultation and
Coordination with Indian Tribal Governments,'' the Department of the
Interior's manual at 512 DM 2, and the Department of Commerce (DOC)
Tribal Consultation and Coordination Policy (May 21, 2013), DOC
Departmental Administrative Order (DAO) 218-8, and NOAA Administrative
Order (NAO) 218-8 (April 2012), we have considered possible effects of
this final rule on federally recognized Indian Tribes. Two
informational webinars were held on July 31 and August 7, 2018, to
provide additional information to interested Tribes regarding the
proposed regulations. After the opening of the public comment period,
we received multiple requests for coordination or government-to-
government consultation from multiple tribes: Cowlitz Indian Tribe;
Swinomish Indian Tribal Community; The Confederated Tribes of the Grand
Ronde Community of Oregon; Confederated Tribes of Warm Springs, Oregon;
Quinault Indian Nation; Makah Tribe; Confederated Tribes of the
Umatilla Indian Reservation; and the Suquamish Tribe. We subsequently
hosted a conference call on November 15, 2018, to listen to Tribal
concerns and answer questions about the proposed regulations. On March
6, 2019, FWS representatives attended the Natural Resources Committee
Meeting of the United and South and Eastern Tribes' Impact Week
conference in Arlington (Crystal City), VA. At this meeting, we
presented information, answered questions, and held discussion
regarding the regulatory changes.
The Services conclude that this rule makes general changes the
Act's implementing regulations and does not directly affect specific
species or Tribal lands or interests. The primary purpose of the rule
is to streamline and clarify the steps the Services undertake in
completing section 7 consultations with Federal agencies. Therefore,
the Departments of the Interior and Commerce conclude that these
regulations do not have ``tribal implications'' under section 1(a) of
E.O. 13175 and that formal government-to-government consultation is not
required by E.O. 13175 and related polices of the Departments. We will
continue to collaborate with Tribes on issues related to federally
listed species and work with them as we implement the provisions of the
Act. See Joint Secretarial Order 3206 (``American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species
Act,'' June 5, 1997).
Paperwork Reduction Act
This final 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 analyzed this final rule 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 its Companion Manual,
``Policy and Procedures for Compliance with the National Environmental
Policy Act and Related Authorities,'' which became effective January
13, 2017. We have determined that, to the extent that the proposed
action would result in reasonably foreseeable effects to the human
environment, the final regulation is categorically excluded from
further NEPA review and that no extraordinary circumstances are
present. The rule qualifies for the substantially similar categorical
exclusions set forth at 43 CFR 46.210(i) and NOAA Administrative Order
216-6A and Companion Manual at Appendix E (Exclusion G7). The
amendments are of a legal, technical, or procedural nature. The rule
only serves to clarify and streamline existing interagency consultation
practices.
This final rule does not lower or raise the bar on section 7
consultations, and it does not alter what is required or analyzed
during a consultation. Instead, it improves clarity and consistency,
streamlines consultations, and codifies existing practice. For example,
the change in the definition of ``effects of the action'' simplifies
the definition while still retaining the scope of the assessment
required to ensure a complete analysis of the effects of the proposed
Federal action. The two-part test articulates the practice by which the
Services identify effects of the proposed action. Likewise, the
causation standard to analyze effects provides additional explanation
on how we analyze activities that are reasonably certain to occur.
Other changes to 50 CFR part 402 are to aid in clarity and
consistency. For example, we have separated out the definition of
``environmental baseline'' from effects of the action and added a
second sentence to the definition to avoid confusion over ``ongoing
actions.'' A regulatory deadline for informal consultation, as well as
requiring reinitiation of informal consultation when certain triggers
are met, are legal and procedural in nature. Our additional changes to
50 CFR 402.16 governing reinitiation of land management plans are also
legal in nature and do not alter the review process for actions that
cause ground-disturbing activities, and thus do not reduce procedural
protection for listed species.
We also considered whether any ``extraordinary circumstances''
apply to this situation, such that the DOI and NOAA categorical
exclusions would not apply. See 43 CFR 42.215 (DOI regulations on
``extraordinary circumstances''); NOAA Companion Manual to NAO 216-6,
Section 4.A.
FWS completed an environmental action statement, which NOAA adopts,
explaining the basis for invoking the agencies' substantially similar
categorical exclusions for the revised regulations.
Energy Supply, Distribution or Use (E.O. 13211)
Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. The final revised
regulations are not expected to affect energy supplies, distribution,
or use. Therefore, this action is a not a significant energy action,
and no Statement of Energy Effects is required.
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 final 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 final rule under the authority of the Act, as amended
(16 U.S.C. 1531 et seq.).
List of Subjects in 50 CFR Part 402
Endangered and threatened species.
[[Page 45016]]
Regulation Promulgation
Accordingly, we 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 consequences to listed species or
critical habitat that are caused by the proposed action, including the
consequences of other activities that are caused by the proposed
action. A consequence 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
consequences occurring outside the immediate area involved in the
action. (See Sec. 402.17).
Environmental baseline refers to the condition of the listed
species or its designated critical habitat in the action area, without
the consequences to the listed species or designated critical habitat
caused by the proposed action. The 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. The consequences to listed species or
designated critical habitat from ongoing agency activities or existing
agency facilities that are not within the agency's discretion to modify
are part of the environmental baseline.
* * * * *
Programmatic consultation is a consultation addressing an agency's
multiple actions on a program, region, or other basis. Programmatic
consultations allow the Services to 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. 402.13 by revising paragraph (a) and adding paragraph
(c) to read as follows:
Sec. 402.13 Informal consultation.
(a) Informal consultation is an optional process that includes all
discussions, correspondence, etc., between the Service and the Federal
agency or the designated non-Federal representative, designed to assist
the Federal agency in determining whether formal consultation or a
conference is required.
* * * * *
(c) If during informal consultation it is determined by the Federal
agency, with the written concurrence of the Service, that the action is
not likely to adversely affect listed species or critical habitat, the
consultation process is terminated, and no further action is necessary.
(1) A written request for concurrence with a Federal agency's not
likely to adversely affect determination shall include information
similar to the types of information described for formal consultation
at Sec. 402.14(c)(1) sufficient for the Service to determine if it
concurs.
(2) Upon receipt of a written request consistent with paragraph
(c)(1) of this section, the Service shall provide written concurrence
or non-concurrence with the Federal agency's determination within 60
days. The 60-day timeframe may be extended upon mutual consent of the
Service, the Federal agency, and the applicant (if involved), but shall
not exceed 120 days total from the date of receipt of the Federal
agency's written request consistent with paragraph (c)(1) of this
section.
0
4. Amend Sec. 402.14 by:
0
a. Revising paragraph (c);
0
b. Removing the undesignated paragraph following paragraph (c);
0
c. Revising paragraphs (g)(2), (4), and (8) and (h);
0
d. Redesignating paragraph (l) as paragraph (m); and
0
e. 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 the 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
[[Page 45017]]
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. The provision in this paragraph (c)(4)
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 binding plans.
(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 environmental baseline of the
listed species and critical habitat;
(iii) A detailed discussion of the effects of the action on listed
species or critical habitat; and
(iv) 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 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 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) Expedited timelines. 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
5. Amend Sec. 402.16 by:
0
a. Revising the section heading;
0
b. Redesignating paragraphs (a) through (d) as paragraphs (a)(1)
through (4);
0
c. Designating the introductory text as paragraph (a);
0
d. Revising the newly designated paragraphs (a) introductory text and
(a)(3); and
0
e. 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:
* * * * *
(3) If the identified action is subsequently modified in a manner
that causes an effect to the listed species or critical habitat that
was not considered in the biological opinion or written concurrence; or
* * * * *
(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 if the land management plan has
been adopted by the agency as of the date of listing or designation,
provided that any
[[Page 45018]]
authorized actions that may affect the newly listed species or
designated critical habitat will be addressed through a separate
action-specific consultation. This exception to reinitiation of
consultation shall not apply to those land management plans prepared
pursuant to 16 U.S.C. 1604 if:
(1) Fifteen years have passed since the date the agency adopted the
land management plan prepared pursuant to 16 U.S.C. 1604; and
(2) Five years have passed since the enactment of Public Law 115-
141 [March 23, 2018] or the date of the listing of a species or the
designation of critical habitat, whichever is later.
0
6. Add Sec. 402.17 to read as follows:
Sec. 402.17 Other provisions.
(a) Activities that are reasonably certain to occur. A conclusion
of reasonably certain to occur must be based on clear and substantial
information, using the best scientific and commercial data available.
Factors to consider when evaluating whether activities caused by the
proposed action (but not part of the proposed action) or activities
reviewed under cumulative effects are reasonably certain to occur
include, but are not limited to:
(1) Past experiences with activities that have resulted from
actions that are similar in scope, nature, and magnitude to the
proposed action;
(2) Existing plans for the activity; and
(3) Any remaining economic, administrative, and legal requirements
necessary for the activity to go forward.
(b) Consequences caused by the proposed action. To be considered an
effect of a proposed action, a consequence must be caused by the
proposed action (i.e., the consequence would not occur but for the
proposed action and is reasonably certain to occur). A conclusion of
reasonably certain to occur must be based on clear and substantial
information, using the best scientific and commercial data available.
Considerations for determining that a consequence to the species or
critical habitat is not caused by the proposed action include, but are
not limited to:
(1) The consequence is so remote in time from the action under
consultation that it is not reasonably certain to occur; or
(2) The consequence is so geographically remote from the immediate
area involved in the action that it is not reasonably certain to occur;
or
(3) The consequence is only reached through a lengthy causal chain
that involves so many steps as to make the consequence not reasonably
certain to occur.
(c) Required consideration. The provisions in paragraphs (a) and
(b) of this section must be considered by the action agency and the
Services.
Sec. 402.40 [Amended]
0
7. Amend Sec. 402.40, in paragraph (b), by removing ``Sec.
402.14(c)(1)-(6)'' and in its place adding ``Sec. 402.14(c)''.
Dated: August 12, 2019.
David L. Bernhardt,
Secretary, Department of the Interior.
Dated: August 9, 2019.
Wilbur Ross,
Secretary, Department of Commerce.
[FR Doc. 2019-17517 Filed 8-26-19; 8:45 am]
BILLING CODE 4333-15-P 3510-22-P