Interagency Cooperation-Endangered Species Act of 1973, as Amended; Definition of Destruction or Adverse Modification of Critical Habitat, 7214-7226 [2016-02675]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration
• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 81, Number 28 (Thursday, February 11, 2016)]
[Rules and Regulations]
[Pages 7214-7226]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-02675]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 402

[Docket No. FWS-R9-ES-2011-0072; Docket No. 120106026-4999-03]
RIN 1018-AX88; 0648-BB80


Interagency Cooperation--Endangered Species Act of 1973, as 
Amended; Definition of Destruction or Adverse Modification of Critical 
Habitat

AGENCIES:  U.S. Fish and Wildlife Service, Interior; National Marine 
Fisheries Service, National Oceanic and Atmospheric Administration, 
Commerce.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Fish and Wildlife Service (FWS) and the National 
Marine Fisheries Service (NMFS), collectively referred to as the 
``Services'' or ``we,'' revise a regulatory definition that is

[[Page 7215]]

integral to our implementation of the Endangered Species Act of 1973, 
as amended (Act or ESA). The Act requires Federal agencies, in 
consultation with and with the assistance of the Services, 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. On May 12, 
2014, we proposed to revise the definition for ``destruction or adverse 
modification'' in our regulations as this definition had been found to 
be invalid by two circuit courts. In response to public comments 
received on our proposed rule, we have made minor revisions to the 
definition. This rule responds to section 6 of Executive Order 13563 
(January 18, 2011), which directs agencies to analyze their existing 
regulations and, among other things, modify or streamline them in 
accordance with what has been learned.

DATES: Effective March 14, 2016.

ADDRESSES: Supplementary information used in the development of this 
rule, including the public comments received and the environmental 
assessment may be viewed online at https://www.regulations.gov at Docket 
No. FWS-R9-ES-2011-0072 or at Docket No. NOAA-NMFS-2014-0093.

FOR FURTHER INFORMATION CONTACT: Jennifer Schultz, National Marine 
Fisheries Service, Office of Protected Resources, 1315 East-West 
Highway, Silver Spring, MD 20910; telephone 301/427-8443; facsimile 
301/713-0376; or Craig Aubrey, U.S. Fish and Wildlife Service, Division 
of Environmental Review, 5275 Leesburg Pike, Falls Church, VA 22041; 
telephone 703/358-2171; facsimile 703/358-1735. Persons who use a 
Telecommunications Device for the Deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 1-800-877-8339, 24 hours a day, and 
7 days a week.

SUPPLEMENTARY INFORMATION: 

Background

    Section 7(a)(2) of the Act requires Federal agencies, in 
consultation with and with the assistance of the Secretaries of the 
Interior and Commerce, to insure that their actions are not likely to 
jeopardize the continued existence of endangered or threatened species 
or result in the destruction or adverse modification of critical 
habitat of such species (16 U.S.C. 1536(a)(2)). The Act defines 
critical habitat as the specific areas within the geographical area 
occupied by the species, at the time it is listed in accordance with 
the provisions of section 4 of the Act, on which are found those 
physical or biological features (1) essential to the conservation of 
the species and (2) which may require special management considerations 
or protection, as well as specific areas outside the geographical area 
occupied by the species at the time it is listed in accordance with the 
provisions of section 4 of the Act, upon a determination by the 
Secretary that such areas are essential for the conservation of the 
species (16 U.S.C. 1532(5)(A)). Conservation means to use and the use 
of all methods and procedures that are necessary to bring any 
endangered species or threatened species to the point at which the 
measures provided pursuant to the Act are no longer necessary (16 
U.S.C. 1532(3)). The Act does not define ``destruction or adverse 
modification.'' The Services carry out the Act via regulations in title 
50 of the Code of Federal Regulations (CFR).
    In 1978, the Services promulgated regulations governing interagency 
cooperation under section 7(a)(2) of the Act that defined ``destruction 
or adverse modification'' in part as a ``direct or indirect alteration 
of critical habitat which appreciably diminishes the value of that 
habitat for survival and recovery of a listed species. Such alterations 
include but are not limited to those diminishing the requirements for 
survival and recovery . . . '' (43 FR 870, January 4, 1978). In 1986, 
the Services amended the definition to read ``a direct or indirect 
alteration that appreciably diminishes the value of critical habitat 
for both the survival and recovery of a listed species. Such 
alterations include, but are not limited to, alterations adversely 
modifying any of those physical or biological features that were the 
basis for determining the habitat to be critical'' (51 FR 19926, June 
3, 1986; codified at 50 CFR 402.02). In 1998, the Services provided a 
clarification of usage of the term ``appreciably diminish the value'' 
in the Endangered Species Consultation Handbook: Procedures for 
Conducting Consultation and Conference Activities Under Section 7 of 
the Act (i.e., the Handbook; https://https://www.fws.gov/endangered/esa-library/pdf/esa_section7_handbook.pdf) as follows: ``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.''
    In 2001, the Fifth Circuit Court of Appeals reviewed the 1986 
definition and found it exceeded the Service's discretion by requiring 
an action to appreciably diminish a species' survival and recovery to 
trigger a finding of ``destruction or adverse modification.'' Sierra 
Club v. U.S. Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 2001). 
As stated in the decision (Sierra Club, at 441-42 (citations omitted) 
(emphasis in original)):

The ESA defines `critical habitat' as areas which are `essential to 
the conservation' of listed species. `Conservation' is a much 
broader concept than mere survival. The ESA's definition of 
`conservation' speaks to the recovery of a threatened or endangered 
species. Indeed, in a different section of the ESA, the statute 
distinguishes between `conservation' and `survival.' Requiring 
consultation only where an action affects the value of critical 
habitat to both the recovery and survival of a species imposes a 
higher threshold than the statutory language permits.

    In 2004, the Ninth Circuit Court of Appeals also reviewed the 1986 
definition and found portions of the definition to be facially invalid. 
Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 
1059 (9th Cir. 2004). The Ninth Circuit, following similar reasoning 
set out in the Sierra Club decision, determined that Congress viewed 
conservation and survival as ``distinct, though complementary, goals, 
and the requirement to preserve critical habitat is designed to promote 
both conservation and survival.'' Gifford Pinchot Task Force, at 1070. 
Specifically, the court found that ``the purpose of establishing 
`critical habitat' is for the government to designate habitat that is 
not only necessary for the species' survival but also essential for the 
species' recovery.'' Id. ``Congress said that `destruction or adverse 
modification' could occur when sufficient critical habitat is lost so 
as to threaten a species' recovery even if there remains sufficient 
critical habitat for the species' survival.'' Id.
    After the Ninth Circuit's decision, the Services each issued 
guidance to discontinue the use of the 1986 definition (FWS Acting 
Director Marshall Jones Memo to Regional Directors, ``Application of 
the `Destruction or Adverse Modification' Standard under Section 
7(a)(2) of the Act, 2004;'' NMFS Assistant Administrator William T. 
Hogarth Memo to Regional Administrators, ``Application of the 
`Destruction or Adverse Modification' Standard under Section 7(a)(2) of 
the Act, 2005''). Specifically, in evaluating an action's effects on 
critical habitat as part of interagency consultation, the Services 
began directly applying the definition of ``conservation'' as set out 
in the Act. The guidance instructs the Services' biologists, after 
examining the baseline and the effects of the action, to determine 
whether critical habitat

[[Page 7216]]

would remain functional (or retain the current ability for the primary 
constituent elements to be functionally established) to serve the 
intended conservation role for the species, upon implementation of the 
Federal action under consultation. ``Primary constituent elements'' was 
a term introduced in the critical habitat designation regulations (50 
CFR 424.12) to describe aspects of ``physical or biological features,'' 
which are referenced in the statutory definition of ``critical 
habitat''; the Services have proposed to remove the term ``primary 
constituent elements'' and return to the statutory term ``physical or 
biological features.'' See 79 FR 27066, May 12, 2014.
    On May 12, 2014, the Services proposed the following regulatory 
definition to address the relevant case law and to formalize the 
Services' guidance: ``Destruction or adverse modification means a 
direct or indirect alteration that appreciably diminishes the 
conservation value of critical habitat for listed species. Such 
alterations may include, but are not limited to, effects that preclude 
or significantly delay the development of the physical or biological 
features that support the life-history needs of the species for 
recovery.'' See 79 FR 27060, May 12, 2014. In the preamble to the 
proposed rule, we explained that the proposed definition was intended 
to align with the conservation purposes of the Act. The first sentence 
captured the role that critical habitat should play for the recovery of 
listed species. The second sentence acknowledged that some physical or 
biological features may not be present or may be present in suboptimal 
quantity or quality at the time of designation.
    We solicited comments on the proposed rule for a total of 150 days. 
We received 176 comments.

Summary of Changes From the Proposed Definition

    This final rule aligns the regulatory definition of ``destruction 
or adverse modification'' with the conservation purposes of the Act and 
the Act's definition of ``critical habitat.'' It continues to focus on 
the role that critical habitat plays for the conservation of listed 
species and acknowledges that the development of physical and 
biological features may be necessary to enable the critical habitat to 
support the species' recovery. Though we made minor changes to clarify 
our intent, these changes do not alter the overall meaning of the 
proposed definition. We do not expect this final rule to alter the 
section 7(a)(2) consultation process from our current practice, and 
previously completed biological opinions do not need to be reevaluated 
in light of this rule.
    In our final definition, to avoid unnecessary confusion and more 
closely track the statutory definition of critical habitat, we replaced 
two ``terms of art'' introduced in the proposed definition with 
language that explained the intended meanings. In addition, we modified 
the second sentence of the definition to avoid unintentionally giving 
the impression that the proposed definition had a narrower focus than 
the 1986 definition.
    First, as described in detail under the Summary of Comments section 
below, many commenters suggested that we replace two terms, 
``conservation value'' and ``life-history needs,'' in the proposed 
definition with simpler language more clearly conveying their intended 
meanings. After reviewing the comments, we agreed that use of these 
terms was unnecessary and led to unintended confusion. We modified the 
proposed definition accordingly. Specifically, we replaced 
``conservation value of critical habitat for listed species'' with 
``the value of critical habitat for the conservation of a listed 
species.'' We also replaced ``physical or biological features that 
support life-history needs of the species for recovery'' in the second 
sentence with ``physical or biological features essential to the 
conservation of a listed species.'' These revisions avoid introducing 
previously undefined terms without changing the meaning of the proposed 
definition. Furthermore, these revisions better align with the 
conservation purposes of the Act, by using language from the statutory 
definition of ``critical habitat'' (i.e., ``physical or biological 
features essential to the conservation of the species'').
    Second, commenters also expressed concern that, in their 
perception, the Services proposed a significant change in practice by 
appearing to focus the definition on the preclusion or delay of the 
development of physical or biological features, to the exclusion of the 
alteration of existing features. We did not intend the proposed 
definition to signal such a shift in focus. Rather, we believed the 
first sentence of the proposed definition captured both types of 
alteration: those of existing features as well as those that would 
preclude or delay future development of such features. We intended the 
second sentence of the proposed definition to merely emphasize this 
latter type of alteration because of its less obvious nature. Because 
the second sentence of the 1986 definition expressly refers to 
alterations adversely modifying physical or biological features and to 
avoid any perceived shift in focus, we revised the proposed definition 
to explicitly reference alterations affecting the physical or 
biological features essential to the conservation of a species, as well 
as those that preclude or significantly delay development of such 
features.

Final Definition

    After considering public comments, Congressional intent, relevant 
case law, and the Services' collective experience in applying the 
``destruction or adverse modification'' standard over the last three 
decades, we finalize the following regulatory definition: Destruction 
or adverse modification means a direct or indirect alteration that 
appreciably diminishes the value of critical habitat for the 
conservation of a listed species. Such alterations may include, but are 
not limited to, those that alter the physical or biological features 
essential to the conservation of a species or that preclude or 
significantly delay development of such features.
    As described in the preamble to the proposed rule, the 
``destruction or adverse modification'' definition focuses on how 
Federal actions affect the quantity and quality of the physical or 
biological features in the designated critical habitat for a listed 
species and, especially in the case of unoccupied habitat, on any 
impacts to the critical habitat itself. Specifically, the Services will 
generally conclude that a Federal action is likely to ``destroy or 
adversely modify'' designated critical habitat if the action results in 
an alteration of the quantity or quality of the essential physical or 
biological features of designated critical habitat, or that precludes 
or significantly delays the capacity of that habitat to develop those 
features over time, and if the effect of the alteration is to 
appreciably diminish the value of critical habitat for the conservation 
of the species. If the Services make a destruction or adverse 
modification determination, they will develop reasonable and prudent 
alternatives on a case by case basis and based on the best scientific 
and commercial data available.
    As also described in the preamble to the proposed rule, the 
Services may consider other kinds of impacts to designated critical 
habitat. For example, some areas that are currently in a degraded 
condition may have been designated as critical habitat for their 
potential to develop or improve and eventually provide the needed 
ecological functions to support species' recovery. Under these 
circumstances, the Services generally conclude that an

[[Page 7217]]

action is likely to ``destroy or adversely modify'' the designated 
critical habitat if the action alters it to prevent it from improving 
over time relative to its pre-action condition. It is important to note 
that the ``destruction or adverse modification'' definition applies to 
all physical or biological features; as described in the proposed 
revision to the current definition of ``physical or biological 
features'' (50 CFR 424.12), ``[f]eatures may include habitat 
characteristics that support ephemeral or dynamic habitat conditions'' 
(79 FR 27066, May 12, 2014).

Summary of Comments

    In our proposed rule (79 FR 27060, May 12, 2014), we requested 
written comments from the public for 60 days, ending July 11, 2014. We 
received several requests to extend the public comment period, and we 
subsequently published a notice (79 FR 36284, June 26, 2014) extending 
the comment period by an additional 90 days, through October 9, 2014.
    During the public comment period, we received approximately 176 
comments. We received comments from Tribes, State and local 
governments, industry, conservation organizations, private citizens, 
and others.
    We considered all substantive information provided during the 
comment period and, as appropriate, incorporated suggested revisions 
into this final rule. Here, we summarize the comments, grouped by 
issue, and provide our responses.
    Comment on ``conservation'' versus ``recovery'': A few commenters 
suggested that conservation is not recovery. One commenter suggested 
that Congress intended critical habitat to mean areas that are 
essential to the continued existence of the species, i.e., its 
survival.
    Our Response: We disagree with the commenter that ``conservation'' 
means ``survival.'' Instead, we agree with the courts that Congress 
intended critical habitat to focus on conservation, which addresses 
more than mere survival. While we recognize the distinction between 
``conservation'' and ``recovery,'' we also acknowledge that the courts 
and the Services often use the terms synonymously.
    The statutory definition of critical habitat includes the phrase 
``essential to [or for] the conservation of the species'' twice; it 
does not include the word ``survival'' or the phrase, ``the continued 
existence of the species'' (16 U.S.C. 1532(5)(A)). Conservation means 
to use and the use of all methods and procedures that are necessary to 
bring any endangered species or threatened species to the point at 
which the measures provided pursuant to the Act are no longer necessary 
(16 U.S.C. 1532(3)). The statutory definition does not include the word 
``survival'' or the phrase, ``the continued existence of the species.'' 
This does not appear to be an oversight. Congress used the word 
``survival'' in other places in the Act; they also used the phrase 
``continued existence of a species'' elsewhere and specifically in 
reference to the jeopardy standard under section 7(a)(2) of the Act.
    In 2001, the Fifth Circuit concluded that `` `conservation' is a 
much broader concept than mere survival'' and ``speaks to the 
recovery'' of species: ``Indeed, in a different section of the ESA, the 
statute distinguishes between `conservation' and `survival.' '' Sierra 
Club, at 441-42. In 2004, the Ninth Circuit added, ``Congress said that 
`destruction or adverse modification' could occur when sufficient 
critical habitat is lost so as to threaten a species' recovery even if 
there remains sufficient critical habitat for the species' survival.'' 
Further, the Ninth Circuit indicated that the 1986 definition ``fails 
to provide protection of habitat when necessary only for species' 
recovery.'' Gifford Pinchot Task Force, at 1070. Throughout these 
decisions, the courts used the words ``recovery'' and ``conservation'' 
interchangeably.
    The Services view ``conservation'' as the process used to achieve 
``recovery,'' that is, the improvement in the status of listed species 
to the point at which listing is no longer appropriate under the 
criteria set out in section 4(a)(1) of the Act (50 CFR 402.02). In the 
proposed regulatory definition of ``conserve, conserving, and 
conservation,'' the Services included the phrase ``i.e., the species is 
recovered'' to clarify the link between conservation and recovery of 
the species. See 79 FR 27066, May 12, 2014 (proposing revisions to 50 
CFR 424.02). Despite the distinction between the two terms, we often 
use the terms interchangeably in practice. We believe that this is 
consistent with Congress's intent for ``conservation'' to encompass the 
procedures necessary to achieve ``recovery.''
    Comments on ``appreciably diminish'': We received 63 comments 
regarding our use and explanation of the term ``appreciably diminish.'' 
Many commenters considered the explanation of the term vague, 
confusing, and giving too much discretion to the Services. Some 
suggested that ``appreciably diminish'' should apply only to the 
reduction in quality, significance, magnitude, or worth of the physical 
or biological features that were the basis for determining the habitat 
to be critical. Others suggested alternatives to ``appreciably,'' 
including significantly, measurably, and considerably. Several 
commenters suggested simply removing the words ``both the survival 
and'' from the clarification of usage in the Services' Handbook. Some 
commenters believed the Services were ``lowering the bar,'' while 
others felt that the Services were ``raising the bar'' with the 
definition. Commenters disagreed on whether the Services should 
consider every perceptible diminishment to critical habitat to be 
destruction or adverse modification.
    Our Response: In the proposed rule, the Services requested comments 
on whether the phrase ``appreciably diminish'' is clear and can be 
applied consistently across consultations. Though this phrase has been 
part of the definition of ``destruction or adverse modification'' since 
1978, we invited the public to suggest any alternative phrases that 
might improve clarity and consistency. Though several commenters 
responded that phrase is unclear or unable to be consistently applied, 
they did not present clearer alternatives or examples of inconsistent 
application.
    The courts have not identified problems with the clarity or 
consistent application of the ``appreciably diminish'' standard. Though 
the Fifth (2001) and Ninth Circuits (2004) invalidated the existing 
regulatory definition because it included the phrase ``both the 
survival and recovery,'' they did not comment unfavorably on the word 
``appreciably'' or the term ``appreciably diminish.'' In 2010, the 
Ninth Circuit expressly noted that its decision in Gifford Pinchot 
``did not alter the rule that an `adverse modification' occurs only 
when there is `a direct or indirect alteration that appreciably 
diminishes the value of critical habitat.' '' Butte Environmental 
Council v. U.S. Army Corps of Engineers, 620 F.3d 936, 948 (9th Cir. 
2010) (emphasis in original).
    Commenters generally agreed that ``diminish'' means to reduce; 
however, several commenters disagreed with our use of the word 
``appreciably'' and suggested we use alternative qualifiers (i.e., 
significantly, measurably, or considerably). In the preamble of the 
proposed rule, we discussed the word ``appreciably,'' as well as the 
suggested alternatives, which are similar in meaning to the word 
``appreciably'' but also have multiple possible meanings. In light of 
all the comments received, our review of case law, and our previous 
experience with the term, we have

[[Page 7218]]

concluded that no alternative has a sufficiently clear meaning to 
warrant changing this longstanding term in the regulation. Without a 
clearly superior alternative, the Services retain the phrase 
``appreciably diminish'' in the definition of ``destruction or adverse 
modification.''
    In the preamble to the proposed rule, we further clarified the 
meaning of ``appreciably diminish'' by explaining that the relevant 
question is whether the reduction has some relevance because we can 
recognize or grasp its quality, significance, magnitude, or worth in a 
way that negatively affects the value of the critical habitat as a 
whole for the conservation of a listed species. Some commenters 
objected to this clarification and advocated for the retention of the 
Handbook language, with edits to remove the phrase ``both the survival 
and.''
    Courts have looked to the Handbook as guidance for interpreting the 
``appreciably diminish'' standard. In 2008, the U.S. District Court for 
the Eastern District of California held that the Handbook's definition 
of ``appreciably diminish'' is reasonable and therefore would be 
applied by the court as guidance. See Pacific Coast Federation of 
Fishermen's Associations v. Gutierrez, 606 F. Supp. 2d 1195, 1208-09 
(E.D. Cal. 2008) (according deference to the agencies' interpretation 
under the principles of Skidmore v. Swift & Co., 323 U.S. 134, 139-40 
(1944)). The court thus applied ``appreciably diminish'' as meaning 
``considerably reduce.'' Other district courts have similarly applied 
the ``considerably reduce'' language contained in the Handbook's 
definition of ``appreciably diminish the value.'' See Wild Equity 
Institute v. City and County of San Francisco, No. C 11-00958 SI, 2011 
WL 5975029, *7 (N.D. Cal. Nov. 29, 2011) (unreported) (noting that, in 
Gutierrez, ``The court accepted the FWS' definition of `appreciably 
diminish' to mean `considerably reduce'''); Forest Guardians v. 
Veneman, 392 F.Supp.2d 1082, 1092 (D. Ariz. 2005) (applying the 
handbook's definition of ``appreciably diminish'' as guidance for 
interpreting ``reduce appreciably'' as used in section 7(a)(2)'s 
jeopardy standard).
    In the preamble to the proposed rule, we acknowledged that the 
Handbook's language referring to ``both the survival and recovery'' as 
part of its definition of ``appreciably diminish the value'' is no 
longer valid. We also indicated that the term ``considerably,'' taken 
alone, may lead to disparate outcomes because it can mean ``large in 
amount or extent,'' ``worthy of consideration,'' or ``significant.'' In 
light of the comments urging the Services to retain the Handbook 
clarification, the Services take this opportunity to clarify that the 
term ``considerably,'' in this context, means ``worthy of 
consideration'' and is another way of stating that we can recognize or 
grasp the quality, significance, magnitude, or worth of the reduction 
in the value of critical habitat. We believe that this clarification 
will allow the Services to reach consistent outcomes, and we reiterate 
that the Handbook reference to ``both the survival and'' is no longer 
in effect.
    We disagree with commenters who suggest that every diminishment, 
however small, should constitute destruction or adverse modification. 
We find it necessary to qualify the word ``diminish'' to exclude those 
adverse effects on critical habitat that are so minor in nature that 
they do not impact the conservation of a listed species. It is 
appropriate for the Services to consider the biological significance of 
a reduction when conducting a section 7(a)(2) consultation. The U.S. 
District Court for the Eastern District of California rejected as 
``overly expansive'' the plaintiff's suggestion that ``appreciably'' 
means ``perceptible''. Gutierrez, 606 F.Supp.2d at 1208-09. The 
guidance issued by the Services in 2004 and 2005 directed the Services 
to discuss the ``significance of anticipated effects to critical 
habitat,'' which the U.S. District Court for the Northern District of 
California found appropriate and ``sufficient to implement an 
`appreciably diminish' standard.'' In re Consolidated Salmonid Cases, 
791 F. Supp.2d 802, 872 (E.D. Cal. 2011) (applying NMFS' 2005 
guidance), affirmed in part, reversed in part on other grounds, San 
Luis & Delta-Mendota Water Authority v. Locke, 776 F.3d 971 (9th Cir. 
2014). Similarly, in the context of applying the jeopardy standard from 
section 7(a)(2) of the Act, which also includes the term 
``appreciably'' (in the phrase ``appreciably reduce''), the U.S. 
District Court for the District of Columbia rejected the argument that 
the Services are required to recognize every reduction in the 
likelihood of survival or recovery that is capable of being perceived 
or measured; the court instead held that the Services have discretion 
to evaluate a reduction to determine if it is ``meaningful from a 
biological perspective.'' Oceana, Inc. v. Pritzker, F.Supp.3d, No. 08-
1881, 2014 WL 7174875, *8-9 (D.D.C. December 17, 2014).
    Thus, our explanation in this final rule of the meaning of 
``appreciably diminish'' is consistent with previous usage; ``the bar'' 
for determining whether a proposed action is likely to result in 
destruction or adverse modification of critical habitat is neither 
raised nor lowered by this rule. A Federal action may adversely affect 
critical habitat in an action area without appreciably diminishing the 
value of the critical habitat for the conservation of the species. In 
such cases, a conclusion of destruction or adverse modification would 
not be appropriate. Conversely, we would conclude that a Federal action 
would result in destruction or adverse modification if it appreciably 
diminishes the value of critical habitat for the conservation of the 
species, even if the size of the area affected by the Federal action is 
small.
    In summary, the Services have applied the term ``appreciably 
diminish'' from the definition of ``destruction or adverse 
modification'' for decades (43 FR 870, January 4, 1978). With the 
clarifications of usage in this rule, we find no basis in either the 
comments received or in court decisions to abandon this well-
established language.
    Comments on ``conservation value'': We received 68 comments on the 
term ``conservation value,'' suggesting that the term was vague, 
unnecessary, and confusing.
    Our Response: In the proposed rule, the Services requested comments 
on whether the phrase ``conservation value'' is clear and can be 
applied consistently across consultations. We invited the public to 
suggest alternatives that might improve clarity and consistency in 
implementing the ``destruction or adverse modification'' standard.
    Upon reviewing the comments, we agreed that inclusion of a new, 
undefined term, ``conservation value,'' was unnecessary. We wish to 
clarify that by introducing the term ``conservation value'' in the 
proposed definition, we did not intend to introduce a new concept but 
rather to reiterate that critical habitat is designated because it has 
been found to contribute to the conservation of the species, in keeping 
with the statutory definition of critical habitat. However, to avoid 
any confusion, we revised the first sentence of the final definition to 
replace the term ``conservation value'' with a phrase that conveys its 
intended meaning, i.e., ``the value of critical habitat for the 
conservation of a listed species.'' This minor revision retains the 
meaning of ``conservation value'' without introducing a new term. Like 
the statutory definition of critical habitat, it emphasizes the role of 
critical habitat in the conservation of a species.

[[Page 7219]]

    Comments on ``survival or recovery'': Several commenters suggested 
that the Services should simply substitute ``or'' for ``and'' in the 
phrase ``survival and recovery'' from the 1986 definition.
    Our Response: The Services find that simply changing ``and'' to 
``or'' in the existing regulatory definition would not go far enough to 
incorporate the refined understanding we now have regarding the role of 
critical habitat. The Services' regulations introduced the term 
``survival'' into the 1978 definition; the statutory definition of 
critical habitat focuses on conservation, which the courts have 
explained emphasizes recovery. (See Sierra Club, at 441: ``The ESA's 
definition of `conservation' speaks to the recovery of a threatened or 
endangered species.'') The Ninth Circuit further indicates that 
``Congress said that `destruction or adverse modification' could occur 
when sufficient critical habitat is lost so as to threaten a species' 
recovery even if there remains sufficient critical habitat for the 
species' survival'' (Gifford Pinchot Task Force, at 1070).
    In Gifford Pinchot, the Ninth Circuit supported the use of ``or'' 
in place of ``and''; however, this in no way limits our discretion to 
revise the definition to more clearly implement Congressional intent. 
In its definition of critical habitat, Congress uses the word 
``conservation'' and not ``survival''; therefore, it is appropriate for 
the Services to revise the definition to unambiguously emphasize the 
value of critical habitat for conservation. By doing so, we have 
produced a regulatory definition that is less confusing, less 
susceptible to misinterpretation, and more consistent with the intent 
of Congress than by merely substituting ``or'' for ``and.''
    Comments on linking the definition to existing physical and 
biological features: We received a few comments requesting that the 
definition explicitly include alterations of existing physical and 
biological features.
    Our Response: In the proposed definition, we did not intend to 
disregard the alteration of existing physical or biological features; 
rather, our goal was to highlight certain types of alterations that may 
not be as evident as direct alterations, specifically those that 
preclude or significantly delay development of features. We reiterate 
and reaffirm that the first sentence of our final definition 
(Destruction or adverse modification means a direct or indirect 
alteration that appreciably diminishes the value of critical habitat 
for the conservation of a listed species.) is meant to encompass all 
potential types of alterations if they reduce the value of the habitat 
for conservation, including alterations of existing features.
    In response to comments and to avoid further confusion, we revise 
the second sentence to specifically reference alterations of existing 
physical and biological features (as does the 1986 definition), in 
addition to those that preclude or significantly delay development of 
essential physical or biological features, as examples of effects that 
may constitute destruction or adverse modification of critical habitat. 
We believe that the revised sentence provides clarity and transparency 
to the definition and its implementation while retaining the core idea 
of the proposed definition.
    Comments on ``may include, but are not limited to'': We received 
three comments on the use of the phrase ``may include, but are not 
limited to.'' Commenters found this language ``overbroad'' and thought 
the definition should be less vague or narrowed or both. One commenter 
thought it allowed a ``catch-all provision'' too favorable to the 
Federal Government, against prospective good-faith challengers.
    Our Response: The phrase, ``may include, but are not limited to'' 
emphasizes that the types of direct or indirect alterations that 
appreciably diminish the value of critical habitat for listed species 
include not only those that affect physical or biological features, but 
also those that may affect the value of critical habitat itself. The 
concept of non-exhaustive inclusion is not new to the regulatory 
definition of ``destruction or adverse modification.'' Both 1978 and 
1986 definitions included the phrase. This language has not proven 
problematic in application. Indeed, this phrase is commonly used by the 
Services to account for the variation that occurs in biological 
entities and ecological systems, and to preserve the role of the 
inherent discretion and professional judgment the Services must use to 
evaluate all relevant factors when making determinations regarding such 
entities and systems.
    We retain the phrase in our final definition, as we believe its 
meaning is clear and that it serves an important function in the 
definition. It allows that there may be impacts to an area of critical 
habitat itself that are not impacts to features. This is particularly 
important for unoccupied habitat, for which no physical or biological 
features may have been identified (because physical or biological 
features are not required to be present in order to designate such an 
area as critical habitat under the second part of the statutory 
definition of ``critical habitat''). For occupied habitat, the Services 
must retain the flexibility to address impacts to the area itself, such 
as those that would impede access to or use of the habitat. As noted in 
the proposed rule, a destruction or adverse modification analysis 
begins with impacts to the features but does not end there (79 FR 
27060, May 12, 2014). For these reasons, we retain this phase in the 
final definition.
    Comments on ``life-history needs'': We received 12 comments 
regarding the phrase ``physical or biological features that support the 
life-history needs.'' The commenters considered the phrase to be vague 
and poorly defined. Some commenters felt that the phrase misinterpreted 
or ``lowered the bar'' from that intended by the statutory language 
``physical or biological features essential to the conservation of a 
species.'' Commenters recommended describing the physical and 
biological features as ``essential'' or ``necessary.''
    Our Response: We did not intend the phrase, ``physical or 
biological features that support the life-history needs'' to ``lower 
the bar'' for identifying physical and biological features, as 
established in the statutory definition of critical habitat. Rather, 
our intent was to explain that physical or biological features provide 
for the life-history needs, which are essential to the conservation of 
the species.
    However, based on review of the public comments on this issue, we 
recognized the confusion caused by introducing a new ``term of art'' in 
the proposed definition. To avoid confusion, we revised the second 
sentence of the definition to replace the phrase, ``support the life-
history needs,'' with its intended meaning, ``essential to the 
conservation of a species.'' In accordance with the statutory 
definition of critical habitat, the revision emphasizes our focus on 
those physical or biological features that are essential to the 
conservation of the species. We believe that the revised sentence, 
which aligns more closely to the statutory language, provides clarity 
and transparency to the definition and its implementation.
    Comments on ``preclude or significantly delay:'' We received many 
comments regarding the terms ``preclude or significantly delay'' in the 
proposed definition. Commenters believed these concepts are vague, 
undefined, and allow for arbitrary determinations. One commenter 
asserted that focusing on effects that preclude or significantly delay 
development of features was an expansion of authority that conflicted

[[Page 7220]]

with E.O. 13604 (Improving Performance of Federal Permitting and Review 
of Infrastructure Projects).
    Our Response: Our proposed definition of ``destruction or adverse 
modification'' expressly included effects that preclude or 
significantly delay the development of physical or biological features 
that support the life-history needs of the species for recovery. 
Although we have revised the definition in minor respects from the 
proposed rule (see Summary of Changes from the Proposed Definition, 
above), we retain its forward-looking aspect.
    Our determination of ``destruction or adverse modification'' is 
based not only on the current status of the critical habitat but also, 
in cases where it is degraded or depends on ongoing ecological 
processes, on the potential for the habitat to provide further support 
for the conservation of the species. While occupied critical habitat 
would always contain at least one or more of the physical or biological 
features essential to the conservation of the listed species, an area 
of critical habitat may be in a degraded condition or less than optimal 
successional stage and not contain all physical or biological features 
at the time it is designated or those features may be present but in a 
degraded or less than optimal condition. The area may have been 
designated as critical habitat, however, because of the potential for 
some of the features not already present or not yet fully functional to 
be developed, restored, or improved and contribute to the species' 
recovery. The condition of the critical habitat would be enhanced as 
the physical or biological features essential to the conservation of 
the species are developed, restored, or improved, and the area is able 
to provide the recovery support for the species on which the 
designation is based. The value of critical habitat also includes 
consideration of the likely capability of the critical habitat to 
support the species' recovery given the backdrop of past and present 
actions that may impede formation of the optimal successional stage or 
otherwise degrade the critical habitat. Therefore, a proposed action 
that alters habitat conditions to preclude or significantly delay the 
development or restoration of the physical or biological features 
needed to achieve that capability (relative to that which would occur 
without the proposed action undergoing consultation), where the change 
appreciably diminishes the value of critical habitat for the 
conservation of the species, would likely result in destruction or 
adverse modification.
    This is not a new concept or expansion of authority. The Services 
have previously recognized and articulated the need for this forward-
looking aspect in the analysis of destruction or adverse modification 
of critical habitat. As discussed in the Background section, each 
Service issued substantially identical guidance following the decisions 
of the Fifth and Ninth Circuits invalidating the current regulatory 
definition (FWS 2004; NMFS 2005). For the past 10 years, the Services 
have evaluated whether, with implementation of the proposed Federal 
action, critical habitat would remain functional (or retain the current 
ability for the primary constituent elements to be functionally 
established) to serve the intended conservation role for the species. 
As noted above, ``primary constituent elements'' was a term introduced 
in the critical habitat designation regulations (50 CFR 424.12) to 
describe aspects of ``physical or biological features.'' On May 12, 
2014, the Services proposed to revise these regulations to remove the 
use of the term ``primary constituent elements'' and replace it with 
the statutory term ``physical or biological features'' (79 FR 27066). 
However, the shift in terminology does not change the approach used in 
conducting a ``destruction or adverse modification'' analysis, which is 
the same regardless of whether the original designation identified 
primary constituent elements, physical or biological features, or both.
    Several commenters asserted that assessing the projected condition 
of the habitat and projected development of physical and biological 
features would be inconsistent with the Act. The Services disagree. The 
Act defines critical habitat to include both areas occupied at the time 
of listing that contain features ``essential to the conservation'' of 
the species, as well as unoccupied areas that are ``essential for the 
conservation'' of listed species. Unoccupied habitat by definition is 
not required to contain essential physical or biological features to 
qualify for designation, and even occupied habitat is not required to 
contain all features throughout the area designated. Yet, the 
obligation to preserve the value of critical habitat for the 
conservation of listed species applies to all designated critical 
habitat. At some point in the recovery process, habitat must supply 
features that are essential to the conservation of the species. It is 
thus important to recognize not only the features that are already 
present in the habitat, but the potential of the habitat to naturally 
develop the features over time. Therefore, the Services believe it is 
necessary (and consistent with the Act) to examine a project's effects 
on the natural development of physical and biological features 
essential to the conservation of a species.
    ``Preclusion'' prevents the features from becoming established. The 
phrase ``significantly delay'' requires more explanation. We intend 
this phrase to encompass a delay that interrupts the likely natural 
trajectory of the development of physical and biological features in 
the designated critical habitat to support the species' recovery. That 
trajectory is viewed in the context of the current status of the 
designated critical habitat and with respect to the conservation needs 
of the listed species.
    If the Services make a destruction or adverse modification 
determination, they will develop reasonable and prudent alternatives on 
a case by case basis and based on the best scientific and commercial 
data available.
    Comments on ``foreseeable future:'' We received many comments 
regarding the term ``foreseeable future,'' as used in the preamble to 
the proposed rule. Commenters believed this concept is vague and 
undefined, and requires speculation on the part of the Services.
    Our Response: In the preamble to the proposed rule (79 FR 27060, 
May 12, 2014), we used the term ``foreseeable future'' to explain and 
provide context for the forward-looking aspect of the destruction or 
adverse modification analysis; we explained that the conservation value 
of critical habitat also includes consideration of the likely 
capability, in the foreseeable future, of the critical habitat to 
support the species' recovery given the backdrop of past and present 
actions that may impede formation of the optimal successional stage or 
otherwise degrade the critical habitat. Therefore, an action that would 
preclude or significantly delay the development or restoration of the 
physical or biological features needed to achieve that capability, to 
an extent that it appreciably diminishes the value of critical habitat 
for the conservation of the species relative to that which would occur 
without the action undergoing consultation, is likely to result in 
destruction or adverse modification.
    In the proposed rule, we used the language ``foreseeable future'' 
not as specifically used in the definition of the term ``threatened 
species'' but as a generally understood concept; that is, in regards to 
critical habitat, we consider its future capabilities only so far as we 
are able to make reliable projections with reasonable confidence. The 
Services do not speculate when

[[Page 7221]]

evaluating whether a Federal action would preclude or significantly 
delay the development of features. As required by the Act, we rely on 
the best scientific and commercial data available to determine whether 
the action is likely to destroy or adversely modify critical habitat 
(16 U.S.C. 1536(a)(2)). This rule formalizes in regulation the forward-
looking aspect of the destruction or adverse modification analysis 
adopted in the 2004 and 2005 guidance.
    Additional comments relating to forward-looking aspect of 
definition: Several commenters felt that considerations regarding 
``precluding'' or ``significant delay'' and ``foreseeable future'' 
would result in more consultations and longer review times.
    Our Response: As noted above and in the proposed rule, the Services 
have applied these concepts since the 2004 and 2005 guidance documents, 
and no significant increase in the number of consultations or review 
times has occurred as a result. The Services do not believe that 
adopting this approach in our regulations will result in more or 
lengthier consultations.
    Comments on defining ``destruction or adverse modification'' 
instead of defining ``destruction'' and ``adverse modification'' 
separately: We received three comments requesting that we define 
``destruction'' and ``adverse modification'' independently.
    Our Response: ``Destruction or adverse modification of critical 
habitat'' was not defined in the statute. The Services defined the term 
in the 1978 regulations and amended the definition in 1986. The 
Services have thus applied the term as a singular concept for many 
years without difficulty.
    Independently defining ``destruction'' and ``adverse modification'' 
is unnecessary and would not alter the outcome of section 7(a)(2) 
consultations. If, through consultation, the Services determine that a 
proposed Federal action likely would result in the destruction or 
adverse modification of critical habitat, we would, if possible, 
provide a reasonable and prudent alternative to the action. Such 
alternative must not violate section 7(a)(2) of the Act, must be 
economically and technologically feasible, must be capable of being 
implemented in a manner consistent with the intended purpose of the 
action, and must be capable of being implemented consistent with the 
scope of the Federal agency's legal authority and jurisdiction (16 
U.S.C. 1536(b)(3)(A); 50 CFR 402.14(h); 50 CFR 402.02 (defining 
``reasonable and prudent alternatives'')).
    Independently defining ``destruction'' and ``adverse modification'' 
would unnecessarily complicate the process without improving it or 
changing the outcome. The key distinction is whether the action 
appreciably diminishes the value of critical habitat for the 
conservation of the species, not whether the action destroys critical 
habitat or adversely modifies it. The time and effort applied to 
determine whether the action destroyed or adversely modified critical 
habitat would be better spent on the identification of reasonable and 
prudent alternatives to the proposed action. Therefore, we do not 
independently define ``destruction'' and ``adverse modification.''
    Comments on the need for a quantitative definition: Eight 
commenters suggested the need for a quantitative definition that 
minimizes the Services' discretion.
    Our Response: We did not receive any examples of a quantitative 
definition. We are not able to provide such a definition because 
Federal actions, species, and critical habitat designations are complex 
and differ considerably. Our analyses of the actions and their effects 
on critical habitat require case-by-case consideration that does not 
fit neatly into a mathematical formula. Congress anticipated the need 
for the Services to use their professional judgment by requiring us to 
provide our opinion, detailing how the action affects species and 
critical habitat. This opinion must be based on the best available 
scientific and commercial information available for a particular action 
and species. The level of specificity and precision in available data 
will vary across actions and across species, and therefore a one-size-
fits-all standard would not be workable.
    Further, the U.S. Court of Appeals for the Ninth Circuit has 
specifically held that nothing in the Act or current regulations 
requires that the analysis of destruction or adverse modification be 
quantitative in nature. Butte Environmental Council, 620 F.3d at 948 
(agency not required to calculate rate of loss of habitat). See also 
San Luis & Delta-Mendota Water Authority v. Salazar, 760 F.Supp.2d 855, 
945 (E.D. Cal. 2010) (Services not required to set threshold for 
determining destruction or adverse modification), affirmed in part, 
reversed in part on other grounds sub nom. San Luis & Delta-Mendota 
Water Auth. v. Jewell, 747 F.3d 581 (9th Cir. 2014).
    Therefore, we find that attempting to specify a quantitative 
threshold is neither feasible nor required.
    Comments on the scale of analysis: Many commenters expressed 
confusion or concern regarding the scale at which the determination of 
destruction or adverse modification of critical habitat is made. Some 
commenters agreed with the Services' interpretation of the statute and 
the existing implementing regulations at 50 CFR 402.14, as described in 
the preamble to the proposed rule, that determinations on destruction 
or adverse modification are based on critical habitat as a whole, not 
just on the areas where the action takes place or has direct impacts. 
These commenters requested clarification of the process used to make 
such determinations or thought that the language, ``critical habitat, 
as a whole,'' should be included in the rule and not just the preamble. 
Other commenters disagreed with the Services' interpretation that the 
destruction or adverse modification determination should be based on 
critical habitat as a whole and recommended that the Services evaluate 
destruction or adverse modification at the smallest scale relevant to 
determining whether the species has met its recovery criteria.
    Our Response: As explained in the preambles to this rule and the 
proposed rule, the determination of ``destruction or adverse 
modification'' will be based on the effect to the value of critical 
habitat for the conservation of a listed species. In other words, the 
question is whether the action will appreciably diminish the value of 
the critical habitat as a whole, not just in the action area (i.e., all 
areas to be affected directly or indirectly by the Federal action and 
not merely the immediate area involved in the action; 50 CFR 402.02).
    The section 7 process involves multiple determinations, made by the 
action agency or the Services or both, regarding critical habitat. 
Where critical habitat has already been designated, section 7(a)(2) of 
the Act applies. Under the implementing regulations, the Federal agency 
first determines if its proposed action may affect critical habitat. If 
such a determination is made, formal consultation is required unless 
the Federal agency determines, with the written concurrence of the 
Services, that the action is not likely to adversely affect critical 
habitat. In accordance with the Act, our implementing regulations at 50 
CFR 402.14(g)(1) through (g)(4), and the 2004 and 2005 guidance 
documents issued by FWS and NMFS (see the Background section), the 
formal consultation process generally involves four components: (1) The 
status of critical habitat, which evaluates the condition of critical 
habitat that has been designated for the species in terms of physical 
or biological features, the factors responsible for that condition, and 
the intended conservation role of the

[[Page 7222]]

critical habitat overall; (2) the environmental baseline, which 
evaluates the current condition of the critical habitat in the action 
area, the factors responsible for that condition, and the relationship 
of the affected critical habitat in the action area to the entire 
critical habitat with respect to the conservation of the listed 
species; (3) the effects of the action, which includes the direct and 
indirect effects of the action (and the effects of any interrelated or 
interdependent activities) and describes how those effects alter the 
value of critical habitat within the action area; and (4) cumulative 
effects (as defined at 50 CFR 402.02), which evaluates the effects of 
future, non-Federal activities in the action area and describes how 
those effects are expected to alter the value of critical habitat 
within the action area. After synthesizing and integrating these four 
components, the Services make their final determination regarding the 
impact of the action on the overall value of the critical habitat 
designation. The Services conclude whether critical habitat would 
remain functional (or retain the current ability for the features to be 
functionally established in areas of currently unoccupied but capable 
habitat) to fulfill its value for the conservation of the species, or 
whether the action appreciably reduces the value of critical habitat 
for the conservation of the species.
    Where critical habitat has only been proposed for designation, a 
distinct but related process applies under section 7(a)(4) of the Act. 
The action agency must initiate a conference with the Services on the 
effects of its proposed action when the action is likely to result in 
destruction or adverse modification of the proposed critical habitat 
(50 CFR 402.10(b)). Although a conference generally will consist of 
informal discussions leading to advisory recommendations, action 
agencies have the option of conducting the conference under the same 
procedures that apply to formal consultations so that a conference 
opinion is produced (and later adopted as a biological opinion upon 
finalization of the critical habitat designation, provided certain 
conditions are met; 50 CFR 402.10(c) and (d)). While there are 
important differences between the consultation and conference 
processes, the same analytical steps as described in the paragraph 
above apply in the Services' evaluation of impacts to critical habitat.
    Adverse effects to critical habitat within the action area may not 
necessarily rise to the level of destruction or adverse modification to 
the designated critical habitat. The Handbook expressly provides that 
adverse effects to single elements or segments of critical habitat 
generally do not result in destruction or adverse modification unless 
that loss, when added to the environmental baseline, is likely to 
appreciably diminish the capability of the critical habitat to satisfy 
essential requirements of the species. Courts have concurred that a 
proposed action may result in destruction of some areas of critical 
habitat and still not necessarily result in a finding of ``destruction 
or adverse modification.'' See Conservation Congress v. U.S. Forest 
Service, 720 F.3d 1048, 1057 (9th Cir. 2013) (``Even completely 
destroying 22 acres of critical habitat does not necessarily 
appreciably diminish the value of the larger critical habitat area.''); 
Butte Environmental Council, 620 F.3d at 948 (applying the Handbook 
provision to support the conclusion that ``[a]n area of a species' 
critical habitat can be destroyed without appreciably diminishing the 
value of critical habitat for the species' survival or recovery.'').
    The analysis thus places an emphasis on the value of the designated 
critical habitat as a whole for the conservation of a species, in light 
of the role the action area serves with regard to the function of the 
overall designation. Just as the determination of jeopardy under 
section 7(a)(2) of the Act is made at the scale of the entire listed 
entity, a determination of destruction or adverse modification is made 
at the scale of the entire critical habitat designation. Even if a 
particular project would cause adverse effects to a portion of critical 
habitat, the Services must place those impacts in context of the 
designation to determine if the overall value of the critical habitat 
is likely to be reduced. This could occur where, for example, a small 
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 small 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.
    Because the existing consultation process already ensures that 
destruction or adverse modification of critical habitat is analyzed at 
the appropriate scale, the Services decline to include language 
referring to determinations based on critical habitat ``as a whole'' in 
the definition of ``destruction or adverse modification.''
    Comments on aggregate effects: Several commenters expressed concern 
that aggregate adverse impacts to critical habitat are not adequately 
addressed in the Services' analyses and that the proposed rule should 
be revised to expressly require the evaluation of aggregate effects to 
critical habitat that multiple actions will have on a species' 
recovery. One commenter urged the Services to develop a system to track 
the aggregate effects that destroy or degrade critical habitat.
    Our Response: The Services' biological opinion provides an 
assessment of the status of the critical habitat (including threats and 
trends), the environmental baseline of the action area (describing all 
past and present impacts), and cumulative effects. Under the 
implementing regulations of the Act, cumulative effects are defined as 
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 (50 CFR 
402.02). Following the definition, we only consider cumulative effects 
within the action area. The effects of any particular action are 
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 insignificant 
adverse effects but, over time, the aggregate effects of these actions 
would erode the conservation value of the critical habitat.
    Comments on the role of mitigation in ``destruction or adverse 
modification'' findings: Four commenters thought the ``net effects'' of 
an action, including consideration of ``mitigation and offsetting 
beneficial'' measures, should be considered in the revised regulatory 
definition. One commenter suggested that the Services should develop an 
explicit framework for allowing project proponents to avoid a 
destruction or adverse modification finding by restoring the same 
biological or physical feature of critical habitat that they degrade, 
provided there is evidence the restoration is likely to succeed.
    Our Response: As stated in the Services' 2004 and 2005 guidance, 
conservation activities (e.g., management, mitigation, etc.) outside of 
designated critical habitat should not be considered when evaluating 
effects to critical habitat. However, conservation activities within 
critical habitat, included as part of a proposed action to mitigate the 
adverse effects of the action on critical habitat, are considered by 
the Services' in formulating our biological opinion as to whether an 
action is likely to result in the destruction or adverse

[[Page 7223]]

modification of critical habitat. This consideration of beneficial 
actions is consistent with the implementing regulations at 50 CFR 
402.14(g)(8), which set forth that 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 taken by the Federal agency or applicant, 
including any actions taken prior to the initiation of consultation. 
The Services welcome the inclusion of beneficial conservation 
activities as part of proposed actions. However, because the question 
of whether beneficial actions can compensate for impacts to critical 
habitat is complicated and must be evaluated on a case-by-case basis, 
it would be advisable for Federal agencies and applicants to coordinate 
closely with the Services on such activities.
    Comments on continuation of current uses: Two commenters discussed 
current land practices and other uses on areas that may be designated 
as critical habitat. One commenter specifically requested that the 
final rule indicate that continuation of current uses does not 
constitute destruction or adverse modification.
    Our Response: There is nothing in the Act to suggest that 
previously ongoing activities are or may be exempted from analysis 
during section 7(a)(2) consultations. Accordingly, our longstanding 
regulatory framework does not distinguish between ongoing and other 
actions. ``Action'' is defined broadly at 50 CFR 402.02 to include all 
activities or programs of any kind authorized, funded, or carried out, 
in whole or in part, by Federal agencies in the United States or upon 
the high seas. The applicability provision of the regulations further 
explains that section 7(a)(2) obligations arise so long as there is 
discretionary Federal involvement or control (50 CFR 402.03). It would 
be unsupported and beyond the scope of the definition of ``destruction 
or adverse modification'' to change these well-established principles.
    Comments regarding the use of recovery documents as a basis for a 
destruction or adverse modification determination: We received three 
comments requesting that the Services clarify that criteria, goals, or 
programs established in recovery plans are not enforceable and may not 
be used as a basis for a destruction or adverse modification decision.
    Our Response: The Services agree that recovery plans convey 
guidance and are not regulatory documents that compel any action to 
occur. In addition, section 7(a)(2) of the Act describes a standard of 
prohibition rather than a mandate to further recovery. However, 
criteria, goals, and programs for recovery that are established in 
these plans may be used in our evaluation of whether, with 
implementation of the proposed action, critical habitat would retain 
its value for the conservation of the species. Recovery plans, in 
addition to critical habitat rules, may provide the best scientific and 
commercial information available on the value of critical habitat to 
the conservation of the species, thus assisting the Services with 
evaluating the effects of a proposed action on critical habitat.
    Comments on undue burden: We received 14 comments regarding the 
perceived potential for undue burden on Tribes, State and local 
governments, and various industries. The commenters suggested that the 
proposed definition would prevent the issuance of permits or impose 
unwarranted restrictions and requirements on permit applicants, 
resulting in additional costs for project redesign, reductions in 
productivity, and increases in the time and effort required to submit 
permit applications. Some commenters predicted an increase in the 
number of section 7(a)(2) consultations, especially formal 
consultations. Others predicted that the Services would conclude 
destruction or adverse modification of critical habitat more 
frequently.
    Our Response: Because the final regulatory definition largely 
formalizes existing guidance that FWS and NMFS have implemented since 
2004 and 2005, respectively, we conclude that the section 7(a)(2) 
consultation process will not significantly change. The final 
definition does not ``raise the bar'' in any way. We will not 
reinitiate consultations as a result of this rule. We will consult on 
ongoing actions in a similar manner as we have since the issuance of 
the guidance. Therefore, we do not anticipate changes in the costs 
related to section 7(a)(2) consultations or the frequency at which the 
Services conclude destruction or adverse modification of critical 
habitat. The decision to consult is made prior to and independent of 
our analysis of destruction or adverse modification of critical habitat 
(i.e., by a Federal agency applying the ``may affect'' standard of 50 
CFR 402.14(a) to determine whether their action may affect designated 
critical habitat). If a Federal agency determines, with the written 
concurrence of the Services, that the proposed action is not likely to 
adversely affect critical habitat, formal consultation is not required 
(50 CFR 402.14(b)), and the Services would not perform an analysis of 
destruction or adverse modification of critical habitat. Therefore, the 
number of section 7(a)(2) consultations, and formal consultations in 
particular, is not likely to be affected by this rule.
    Comments on Tribe, State, and local coordination: We received five 
comments from Tribes, State and local governments, and industry groups 
indicating that we should consult or coordinate with Tribes, States, 
and local governments to finalize the proposed rule.
    Our Response: The Services have undertaken numerous efforts to 
ensure that our State, Tribal, and other partners had full notice and 
opportunity to provide input into the development of this rule. We 
reached out to industry groups, environmental organizations, 
intergovernmental organizations, and Federal agencies. We worked with 
the Association of Fish and Wildlife Agencies and the Native American 
Fish and Wildlife Society to distribute information to Tribes, States, 
and local governments about the proposed rule. The Services notified 
their respective Tribal liaisons, who sent letters to Tribes regarding 
this rule. We also hosted a webinar for the States on May 23, 2014. We 
considered all submitted comments, which included comments from Tribes, 
States, and local governments, and, as warranted, applied suggestions 
to the final rule.
    Comments on NEPA: We received 11 comments suggesting that a 
categorical exclusion from the NEPA was not appropriate for the 
proposed rule and that the Services should analyze the environmental 
impacts of this action.
    Our Response: The Services believe this rule likely would qualify 
for one or more categorical exclusions adopted by the Department of the 
Interior and the National Oceanic and Atmospheric Administration, 
respectively. Nevertheless, in an abundance of caution, the Services 
have completed an environmental assessment, which is available at the 
Federal e-rulemaking portal: https://www.regulations.gov (see 
ADDRESSES).
    Comments on Energy Supply, Distribution, and Use (E.O. 13211), 
Takings (E.O. 12630), and Economic Analyses (E.O. 12866, the Regulatory 
Flexibility Act, and the Unfunded Mandates Reform Act): We received 
comments that the Services should prepare a Statement of Energy Effects 
(E.O. 13211, 1 comment), a regulatory flexibility analysis (2 
comments), and an economic analysis (2 comments).
    Our Response: This rule clarifies existing requirements for Federal 
agencies under the Act. Based on

[[Page 7224]]

procedures applied through existing agency guidance, the rule is 
substantially unlikely to lead to different conclusions in section 
7(a)(2) consultations. The rule clarifies the standard by which we will 
evaluate the effect of agency actions on critical habitat pursuant to 
section 7(a)(2) of the Act. For further information, please see the 
relevant sections under Required Determinations, below.
    Comments on extension of the comment period: Many commenters 
requested an extension of the public comment period announced in the 
draft policy. Additionally, we received requests to reopen the comment 
period that ended on October 9, 2014.
    Our Response: On June 26, 2014 (79 FR 36284), we extended the 
public comment period on the draft policy for an additional 90 days to 
accommodate this request and to allow for additional review and public 
comment. The comment period for the draft policy was therefore open for 
150 days, which provided adequate time for all interested parties to 
submit comments and information.
    Comments on the proposed rule being ``beyond the scope of the 
Act'': We received 25 comments stating that the proposed definition 
exceeded the authority of the Act. Some commenters wrote that it was 
beyond the scope of the Act. Some expressed concern that the proposed 
definition implied an affirmative conservation requirement or mandate 
for recovery.
    Our Response: As the agencies charged with administering the Act, 
it is within our authority to promulgate and amend regulations to 
ensure transparent and consistent implementation. Under general 
principles of administrative law, an agency may resolve ambiguities and 
define or clarify statutory language as long as the agency's 
interpretation is a permissible interpretation of the statute. The term 
``destruction or adverse modification'' was not defined by Congress. 
Consequently, the Services first promulgated a regulatory definition in 
1978, and then later in 1986. As previously mentioned, the ``survival 
and recovery'' standard of our earlier definitions was invalidated by 
courts. We believe that this revised definition comports with the 
language and purposes of the Act.
    As explained in the preamble to the proposed rule, section 7(a)(2) 
only applies to discretionary agency actions and does not create an 
affirmative duty for action agencies to recover listed species (79 FR 
27060, May 12, 2014). Similarly, the definition of ``destruction or 
adverse modification'' is a prohibitory standard only. The definition 
does not, and is not intended to, create an affirmative conservation 
requirement or a mandate for recovery. Consistent with the Ninth 
Circuit's opinion, in the context of describing an action that 
``jeopardizes'' a species, in National Wildlife Federation v. NMFS, 524 
F.3d 917 (9th Cir. 2008), the Services believe that an action that 
``destroys'' or ``adversely modifies'' critical habitat must cause a 
deterioration in the value of critical habitat, which includes its 
ability to provide recovery support to the species based on ongoing 
ecological processes. Section 7(a)(2) of the Act requires Federal 
agencies to insure that any action they authorize, fund, or carry out 
is not likely to result in the destruction or adverse modification of 
critical habitat. Under this section of the Act, Federal agencies are 
not required to recover species; however, they must insure that their 
actions are not likely to prevent or impede the recovery of the species 
through the destruction or adverse modification of critical habitat. To 
be clear, Federal actions are not required to improve critical habitat, 
but they must not reduce its existing capacity to conserve the species 
over time. Section 7(a)(2) and the definition of ``destruction or 
adverse modification'' are implemented independent of section 7(a)(1), 
which directs Federal agencies to utilize their authorities to carry 
out affirmative conservation programs for listed species.
    Comments suggesting revision or withdrawal of the rule: We received 
15 comments requesting that we revise or withdraw the proposed rule.
    Our Response: In order to administer the Act, the Services need a 
regulatory definition of ``destruction or adverse modification.'' The 
Fifth and Ninth Circuits found the current regulatory definition to be 
invalid over a decade ago because it required that both the survival 
and the recovery of listed species be impacted. As discussed 
previously, in 2004 and 2005, the Services issued internal guidance 
instructing their biologists to discontinue use of the regulatory 
definition and to instead consider whether critical habitat would 
continue to contribute (or have the potential to contribute) to the 
conservation of the species. After several years of implementation, the 
Services herein formalize this guidance by modifying the regulatory 
definition. In response to public comments, we have made minor 
revisions to the proposed definition; however, the meaning and 
implementation of the standard remains unchanged. The final definition 
is clear, implementable, and consistent with the Act.

Required Determinations

Regulatory Planning and Review (E.O. 12866)

    The Office of Management and Budget (OMB) has determined that this 
final rule is a significant regulatory action and has reviewed this 
rule under E.O. 12866 because it may raise novel legal or policy issues 
arising out of legal mandates, the President's priorities, or the 
principles set forth in this Executive order.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 
601 et seq.), whenever a Federal agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare, and make 
available for public comment, a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities. SBREFA requires 
Federal agencies to provide a statement of the factual basis for 
certifying that a rule will not have a significant economic impact on a 
substantial number of small entities. We certify that this rule will 
not have a significant economic effect on a substantial number of small 
entities. The following discussion explains our rationale.
    This rule clarifies existing requirements for Federal agencies 
under the Act. Federal agencies are the only entities that are directly 
affected by this rule, and they are not considered to be small entities 
under SBREFA's size standards. No other entities are directly affected 
by this rule.
    This rule will be applied in determining whether a Federal agency 
has ensured, in consultation with the Services, that any action it 
would authorize, fund, or carry out is not likely to result in the 
destruction or adverse modification of critical habitat. Based on 
procedures applied through existing agency guidance, this rule is 
unlikely to affect our determinations. The rule provides clarity to the 
standard with which we will evaluate agency actions pursuant to section 
7(a)(2) of the Act.

[[Page 7225]]

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) This rule will not ``significantly or uniquely'' affect small 
governments. We have determined and certify under the Unfunded Mandates 
Reform Act (2 U.S.C. 1502 et seq.) that this 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 would not be affected 
because the regulation will not place additional requirements on any 
city, county, or other local municipalities.
    (b) This rule will not produce a Federal mandate of $100 million or 
greater in any year (i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act). This regulation would 
not impose any additional management or protection requirements on the 
States or other entities.

Takings (E.O. 12630)

    In accordance with E.O. 12630, we have determined the rule does not 
have significant takings implications.
    A takings implication assessment is not required because this rule 
(1) will not effectively compel a property owner to suffer a physical 
invasion of property and (2) will not deny all economically beneficial 
or productive use of the land or aquatic resources. Indeed, this 
regulation provides broad program direction for the Services' 
application of section 7(a)(2) in consultations on future proposed 
Federal actions and does not itself result in any particular action 
concerning a specific property. Further, this rule substantially 
advances a legitimate government interest (conservation and recovery of 
listed species) and does not present a barrier to all reasonable and 
expected beneficial use of private property.

Federalism (E.O. 13132)

    In accordance with E.O. 13132, we have considered whether this rule 
will have significant Federalism effects and have determined that a 
federalism summary impact statement is not required. This rule pertains 
only to determinations of Federal agency compliance with section 
7(a)(2) of 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 rule will not unduly burden the judicial system and meets the 
applicable standards provided in sections 3(a) and 3(b)(2) of E.O. 
12988. This rule clarifies how the Services will make determinations on 
whether a Federal agency has ensured that any action it authorizes, 
funds, or carries out is not likely to result in the destruction or 
adverse modification of critical habitat.

Government-to-Government Relationship With Tribes

    In accordance with Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments'', November 6, 2000), the 
Department of the Interior Manual at 512 DM 2, 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. Following an exchange of information with tribal 
representatives, we have determined that this rule, which modifies the 
general framework for conducting consultations on Federal agency 
actions under section 7(a)(2) of the Act, does not have tribal 
implications as defined in Executive Order 13175. We will continue to 
collaborate and coordinate with Tribes on issues related to Federally 
listed species and their habitats and work with them as appropriate as 
we engage in individual section 7(a)(2) consultations. See Joint 
Secretarial Order 3206 (``American Indian Tribal Rights, Federal-Tribal 
Trust Responsibilities, and the Endangered Species Act'', June 5, 
1997).

Paperwork Reduction Act of 1994

    This rule does not contain any collections of information that 
require approval by the OMB under the Paperwork Reduction Act (44 
U.S.C. 3501 et seq.). This rule does not impose recordkeeping or 
reporting requirements on Tribes, State or local governments, 
individuals, businesses, or organizations. We may not conduct or 
sponsor and a person is not required to respond to a collection of 
information unless it displays a currently valid OMB control number.

National Environmental Policy Act (NEPA)

    In the proposed rule, we invited the public to comment on whether 
and how the regulation may have a significant effect upon the human 
environment, including any effects identified as extraordinary 
circumstances at 43 CFR 46.215. After considering the comments received 
and further evaluating whether there is any arguable basis to require 
preparation of an environmental assessment, we analyzed this rule in 
accordance with the criteria of the National Environmental Policy Act, 
the Department of the Interior regulations on Implementation of the 
NEPA (43 CFR 46.10-46.450), the Department of the Interior Manual (516 
DM 1-6 and 8), and National Oceanographic and Atmospheric 
Administration Administrative Order 216-6. This analysis was undertaken 
in an abundance of caution only, as we believe the rule would qualify 
for one or more categorical exclusions. Based on a review and 
evaluation of the information contained in the Environmental 
Assessment, we made a determination that the Final Definition for the 
phrase ``destruction or adverse modification'' of critical habitat will 
not have a significant effect on the quality of the human environment 
under the meaning of section 102(2)(c) of the National Environmental 
Policy Act of 1969 (as amended).

Energy Supply, Distribution or Use (E.O. 13211)

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This rule is 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 upon request from the U.S. Fish and Wildlife Service (see FOR 
FURTHER INFORMATION CONTACT).

List of Subjects in 50 CFR Part 402

    Endangered and threatened species.

Regulation Promulgation

    Accordingly, we amend 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. In Sec.  402.02, revise the definition for ``Destruction or adverse 
modification'' to read as follows:

[[Page 7226]]

Sec.  402.02  Definitions.

* * * * *
    Destruction or adverse modification means a direct or indirect 
alteration that appreciably diminishes the value of critical habitat 
for the conservation of a listed species. Such alterations may include, 
but are not limited to, those that alter the physical or biological 
features essential to the conservation of a species or that preclude or 
significantly delay development of such features.
* * * * *

    Dated: January 29, 2016.
Michael J. Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks, 
U.S. Department of the Interior.

    Dated: January 29, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2016-02675 Filed 2-10-16; 8:45 am]
 BILLING CODE 4333-15-P; 3510-22-P