Interagency Cooperation-Endangered Species Act of 1973, as Amended; Definition of Destruction or Adverse Modification of Critical Habitat, 27060-27066 [2014-10503]

Agencies

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

[Federal Register Volume 79, Number 91 (Monday, May 12, 2014)]
[Proposed Rules]
[Pages 27060-27066]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-10503]



Federal Register / Vol. 79 , No. 91 / Monday, May 12, 2014 / Proposed 
Rules

[[Page 27060]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 402

[Docket No. FWS-R9-ES-2011-0072]
RIN 1018-AX88

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 402

[Docket No. 120106026-3731-01: 92210-0-0009-B4]
RIN 0648-BB80


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

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

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (FWS) and the National 
Marine Fisheries Service (NMFS) (collectively referred to as the 
``Services'' or ``we'') propose to amend our regulations, which 
implements the Endangered Species Act of 1973, as amended (Act). Our 
regulation establishes the procedural regulations governing interagency 
cooperation under section 7 of the Act. The Act requires Federal 
agencies, in consultation with and with the assistance of the 
Secretaries of the Interior and Commerce, to insure that their actions 
are not likely to jeopardize the continued existence of endangered or 
threatened species or result in the destruction or adverse modification 
of critical habitat of such species. In 1986, the Services established 
a definition for ``destruction or adverse modification'' (Sec.  402.02) 
that was found to be invalid by the U.S. Court of Appeals for the Fifth 
(2001) and Ninth (2004) Circuits. We propose to amend our regulations 
to replace the invalidated definition with one that is consistent with 
the Act and the circuit court opinions. Finally, the proposed amendment 
is part of the Services' response to Section 6 of Executive Order 13563 
(January 18, 2011), which directs agencies to analyze their existing 
regulations and, among other things, modify or streamline them in 
accordance with what has been learned.

DATES: We will accept comments from all interested parties until July 
11, 2014. Please note that if you are using the Federal eRulemaking 
Portal (see ADDRESSES below), the deadline for submitting an electronic 
comment is 11:59 p.m. Eastern Standard Time on this date.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. In 
the box that reads ``Enter Keyword or ID,'' enter the Docket number for 
this proposed rule, which is FWS-R9-ES-2011-0072. Then, in the Search 
panel, under the Document Type heading, check the box next to Proposed 
Rules. You may enter a comment by clicking on ``Submit a Comment.'' 
Please ensure that you have found the correct rulemaking before 
submitting your comment.
     U.S. mail or hand delivery: Public Comments Processing, 
Attn: [Docket No. FWS-R9-ES-2011-0072]; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, Suite 222; Arlington, VA 22203.
    We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Request for Information section below for more 
information).

FOR FURTHER INFORMATION CONTACT: Patrice Ashfield, U.S. Fish and 
Wildlife Service, Division of Environmental Review, 4401 N Fairfax 
Drive, Suite 420, Arlington, VA, 22203, telephone 703/358-2171; 
facsimile 703/358-1735; or Cathryn E. Tortorici, National Marine 
Fisheries Service, Office of Protected Resources, Interagency 
Cooperation Division, 1315 East-West Highway, Silver Spring, MD 20910, 
telephone 301/427-8405; facsimile 301/713-0376. If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800/877-8339.

SUPPLEMENTARY INFORMATION: Today, we publish in the Federal Register 
three related documents that are now open for public comment. We invite 
the public to comment individually on these documents as instructed in 
their preambles. This document is one of the three, of which two are 
proposed rules and one is a draft policy:
     A proposed rule to amend the existing regulations 
governing section 7 consultation under the Endangered Species Act to 
revise the definition of ``destruction or adverse modification'' of 
critical habitat. The current regulatory definition has been 
invalidated by several courts for being inconsistent with the language 
of the Act. This proposed rule would revise title 50 of the Code of 
Federal Regulations (CFR) at part 402. The Regulatory Identifier Number 
(RIN) is 1018-AX88, and the proposed rule may be found on https://www.regulations.gov at Docket No. FWS-R9-ES-2011-0072.
     A proposed rule to amend existing regulations governing 
the designation of critical habitat under section 4 of the Act. A 
number of factors, including litigation and the Services' experience 
over the years in interpreting and applying the statutory definition of 
critical habitat, have highlighted the need to clarify or revise the 
current regulations. This proposed rule would revise 50 CFR part 424. 
It is published under RIN 1018-AX86 and may be found on https://www.regulations.gov at Docket No. FWS-HQ-ES-2012-0096.
     A draft policy pertaining to exclusions from critical 
habitat and how we consider partnerships and conservation plans, 
conservation plans permitted under section 10 of the Act, tribal lands, 
national security and homeland security impacts and military lands, 
Federal lands, and economic impacts in the exclusion process. This 
policy is meant to complement the proposed revisions to 50 CFR part 424 
and to provide for a simplified exclusion process. The policy is 
published under RIN 1018-AX87 and may be found on https://www.regulations.gov at Docket No. FWS-R9-ES-2011-0104.

Background

    The Act requires Federal agencies, in consultation with and with 
the assistance of the Secretaries of the Interior and Commerce, to 
insure that their actions are not likely to jeopardize the continued 
existence of endangered or threatened species or result in the 
destruction or adverse modification of critical habitat of such 
species. In 1978, the Services promulgated regulations governing 
interagency cooperation under section 7 of the Act. (50 CFR part 402). 
These regulations provided a definition for ``destruction or adverse 
modification'' of critical habitat, which was later updated in 1986 to 
conform with amendments made to the Act. The 1986 regulations defined 
``destruction or adverse modification'' as: ``a direct or indirect 
alteration that appreciably diminishes the value of critical habitat 
for both the survival and recovery of a listed species. Such 
alterations include, but are not limited to, alterations adversely 
modifying any of those physical or biological features that were the 
basis for determining the habitat to be critical.'' (50 CFR 402.02). 
The

[[Page 27061]]

preamble to the 1986 regulation contained relatively little discussion 
on the concept of ``destruction or adverse modification of critical 
habitat.''
    In 2001, the Fifth Circuit Court of Appeals reviewed the 1986 
regulatory definition of destruction and adverse modification and found 
it exceeded the Service's discretion. Sierra Club v. U.S. Fish and 
Wildlife Service, 245 F.3d 434 (5th Cir. 2001). Specifically, the court 
found the regulatory definition to be invalid on its face and 
inconsistent with the Act. The court reasoned that the regulatory 
definition set too high a threshold for triggering adverse modification 
by its requirement that both recovery and survival be diminished before 
adverse modification would be the appropriate conclusion. The court 
determined that the regulatory definition actually established a 
standard that would only trigger an adverse modification determination 
if the ``survival'' of the species was diminished, while ignoring the 
role critical habitat plays in the recovery of species. Citing 
legislative history and the Act itself, the court was persuaded that 
Congress intended the Act to ``enable listed species not merely to 
survive, but to recover from their endangered or threatened status.'' 
Sierra Club at 436. Noting the Act defines critical habitat as areas 
that are ``essential to the conservation'' of listed species, the court 
determined that ``conservation'' is a much ``broader concept than mere 
survival.'' Sierra Club at 436. The court concluded that the Act's 
definition of conservation ``speaks to the recovery'' of listed 
species.
    In 2004, the Ninth Circuit Court of Appeals also reviewed the 1986 
regulatory definition of destruction or adverse modification. Gifford 
Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 
(9th Cir. 2004). That court agreed with the Fifth Circuit's 
determination that the regulation was facially invalid. The Ninth 
Circuit, following similar reasoning set out in the Sierra Club 
decision, determined that Congress viewed conservation and survival as 
``distinct, though complementary, goals and the requirement to preserve 
critical habitat is designed to promote both conservation and 
survival.'' Specifically, the court found that ``the purpose of 
establishing `critical habitat' is for the government to designate 
habitat that is not only necessary for the species' survival but also 
essential for the species' recovery.'' Gifford Pinchot Task Force at 
1070.
    After the Ninth Circuit's decision, the Services each issued 
guidance to discontinue the use of the 1986 adverse modification 
regulation (FWS Acting Director Marshall Jones Memo to Regional 
Directors, ``Application of the `Destruction or Adverse Modification' 
Standard under Section 7(a)(2) of the Endangered Species Act 2004;'' 
NMFS Assistant Administrator William T. Hogarth Memo to Regional 
Administrators, ``Application of the `Destruction or Adverse 
Modification' Standard under Section 7(a)(2) of the Endangered Species 
Act, 2005''). Specifically, in evaluating an action's effects on 
critical habitat as part of interagency consultation, the Services 
began applying the definition of ``conservation'' as set out in the 
Act, which defines conservation (and conserve and conserving) to mean 
``to use and the use of all methods and procedures which are necessary 
to bring any endangered species or threatened species to the point at 
which the measures provided pursuant to this Act are no long 
necessary.'' 16 U.S.C. Sec.  1532(3). Further, after examining the 
baseline and the effects of the action, the Services began analyzing 
whether the implementation of the Federal action under consultation, 
together with any cumulative effects, would result in the critical 
habitat remaining ``functional (or retain the current ability for the 
primary constituent elements to be functionally established) to serve 
the intended conservation role for the species.''

Proposed Definition

    After considering relevant case law and our collective experience 
in applying the ``destruction or adverse modification'' standard over 
the last three decades, the Services propose to amend the definition of 
``destruction or adverse modification'' to (1) more explicitly tie the 
definition to the stated purpose of the Act; and, (2) more clearly 
contrast the definitions of ``destruction or adverse modification'' and 
``jeopardize the continued existence of.'' To achieve these purposes, 
the Services propose the following definition:

    ``Destruction or adverse modification'' means a direct or 
indirect alteration that appreciably diminishes the conservation 
value of critical habitat for listed species. Such alterations may 
include, but are not limited to, effects that preclude or 
significantly delay the development of the physical or biological 
features that support the life-history needs of the species for 
recovery.

    Use of the term ``conservation value'' is intended to align the 
definition of ``destruction or adverse modification'' with the 
conservation purposes of the Act and the Act's definition of ``critical 
habitat.'' Specifically, the term ``conservation value'' is intended to 
capture the role that critical habitat should play for the recovery of 
listed species. We believe by focusing on the conservation value of 
critical habitat, which also necessarily includes attributes critical 
to a species' survival, this definition will be consistent with the 
Fifth and Ninth Circuit Court of Appeals decisions referenced above. 
The Services note that ``value'' within ``conservation value'' refers 
to its utility or importance. It does not refer to a quantified value.
    The proposed definition also better clarifies and preserves the 
existing distinction between the definitions of ``destruction or 
adverse modification'' and ``jeopardize the continued existence of'' by 
focusing the analysis for ``destruction or adverse modification'' on 
how the effects of a proposed action affect the value of critical 
habitat for the recovery of threatened or endangered species. The focus 
of the ``jeopardize the continued existence of'' definition, on the 
other hand, is the status of the species, which concentrates on a 
species' reproduction, numbers, and distribution. The second sentence 
of the Services' proposed definition of ``destruction or adverse 
modification'' simply acknowledges that some important physical or 
biological features may not be present or are present in a sub-optimal 
quantity or quality. This could occur when, for example, the habitat 
has been degraded by human activity or is part of an ecosystem adapted 
to a particular natural disturbance (e.g., fire or flooding), which 
does not constantly occur but is likely to recur. The critical habitat 
area may either be unoccupied habitat, which is not required to have 
physical or biological features present, or may be an area within an 
occupied habitat that has only some but not all features. The area may 
have been designated because of its potential to support the physical 
or biological features that fulfill the species' life-history needs and 
its potential recovery. A species life-history needs may include, but 
are not limited to, food, water, light, shelter from predators, 
competitors, weather and physical space to carry out normal behaviors 
or provide dispersal or migratory corridors. Thus, an action that would 
preclude or significantly delay habitat regeneration or natural 
successional processes, to an extent that it appreciably diminishes the 
conservation value of critical habitat, would result in destruction or 
adverse modification.
    The Act defines critical habitat to include those specific areas 
within the

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geographical area occupied by the species, at the time it is listed, on 
which are found those physical or biological features essential to the 
conservation of species. Our use of the phrase ``physical or biological 
features'' is consistent with the recently proposed definition of 
``physical or biological features'' in 50 CFR 424.02 but is intended to 
apply more broadly than in defining specific areas of critical habitat 
within the geographic area occupied by the species at the time of 
listing. All habitats are comprised of physical or biological features. 
Consistent with current practice, we anticipate that our analyses of 
the effects of the action to critical habitat will necessarily 
consider, in part, effects to features irrespective of whether the 
specific area was designated within or outside of the geographic area 
occupied by the species at the time it was listed.
    In proposing a new definition for ``destruction or adverse 
modification,'' and setting out the accompanying clarifying discussion 
in this Preamble, the Services are establishing prospective standards 
only. Nothing in these proposed revised regulations is intended to 
require (now or at such time as these regulations may become final) 
that any previously completed biological opinions must be reevaluated 
on this basis.

Basis for Term ``Conservation Value''

    Our proposed definition of ``destruction or adverse modification'' 
of critical habitat is based on an understanding of the role that 
habitat--which includes the physical or biological features required 
for a species' life-history needs--generally plays for species. The 
size of species' populations will fluctuate with, among other things, 
the availability of the physical or biological features the species 
finds in its habitat (for more detailed definitions of habitat and 
reviews of the relationship between a species and its habitat, see 
Gilpin and Soule 1986; Hall et al. 1997; MacArthur and Wilson 1967; 
Odum 1971).
    Our proposed definition is further shaped by the purpose of 
designating critical habitat. Both for occupied and unoccupied habitat, 
Congress focused on what habitat was essential to the ``conservation'' 
of listed species when designating critical habitat. As discussed 
above, the courts have concluded that Congress intended that 
``conservation and survival be two different (though complementary) 
goals of the (Act).'' Gifford Pinchot at 1070. In light of 
congressional intent that critical habitat be established for 
conservation purposes, the courts concluded, and we agree, that the 
purpose of establishing ``critical habitat'' is for the government to 
designate habitat ``that is not only necessary for the species' 
survival but also essential for the species' recovery.'' Id. From these 
cases, it is clear that any definition of ``destruction or adverse 
modification'' must reflect the purpose for which the critical habitat 
was designated--the recovery of the species.
    After reviewing the court cases discussed above, the Act's 
definitions of ``conservation'' and ``critical habitat,'' and our 
understanding of the role habitat plays for species' conservation, we 
determined that ``conservation value'' embodies the intended recovery 
role of critical habitat and, therefore, is relevant in a determination 
as to whether an action is likely to destroy or adversely modify that 
habitat. ``Conservation value,'' as used in the definition, then, is 
the contribution the critical habitat provides, or has the ability to 
provide, to the recovery of the species.

Determination of ``Conservation Value'' of Critical Habitat

    Our determination of the conservation value of critical habitat for 
a particular species will be based on our current understanding of the 
life-history needs of that particular species, and how the features of 
the critical habitat provide or have the ability to provide for those 
life-history needs to continue the survival and promote the recovery of 
that species. As a practical matter, to determine the conservation 
value of critical habitat, we will need to consider several variables 
for the entire critical habitat, including for the specific areas (or 
units, as appropriate) designated. The variables include:
     Life-history needs of the species being provided for by 
critical habitat.
     Current condition of the critical habitat, which requires 
consideration of:
    [cir] The quantity of features and habitat necessary to support the 
life-history needs of the species for recovery.
    [cir] The quality of features and habitat necessary to support the 
life-history needs of the species for recovery.
    [cir] The ability (or likelihood) for the critical habitat to 
fulfill its role in the recovery of the species.
    In conducting a section 7 analysis under the Act on the impacts of 
an action on critical habitat, the Services will first consider the 
information set out in the final rule designating the critical habitat. 
In some cases, the final rules designating critical habitat contain 
sufficient information to characterize the ``conservation value'' of 
the critical habitat overall, and of any discrete areas that are 
designated. In other cases, the available information may be quite 
limited. With time, new information may become available and enable us 
to refine our determination of the conservation value of the critical 
habitat. For each section 7 consultation, we will rely upon the best 
scientific and commercial data available to describe the life-history 
needs of the species, and how the features or areas of the critical 
habitat provide or have the ability to provide for those life-history 
needs and the recovery of that species. In the future, an emphasis will 
be placed on preparing final critical habitat rules that explicitly 
describe the conservation value of critical habitat, both overall and 
at the scale of individual specific areas designated, if applicable.
    Our determination of conservation value is based not only on the 
current status of the critical habitat but also, in cases where it is 
degraded or depends on ongoing ecological processes, on the potential 
for the habitat to provide further recovery support for conserving the 
species. While occupied critical habitat would always contain at least 
one or more of the physical or biological features that provide for 
some life-history needs of the listed species, an area of critical 
habitat may be in a degraded condition or less than optimal 
successional stage and not contain all physical or biological features 
at the time it is designated or those features may be present but in a 
degraded or less than optimal condition. The area may have been 
designated as critical habitat, however, because of the potential for 
some of the features not already present or not yet fully functional to 
be developed, restored, or improved and contribute to the species' 
recovery. The condition of the critical habitat would be enhanced as 
the physical or biological features important to the species life-
history needs are developed, restored, or improved and the area is able 
to provide the recovery support for the species on which the 
designation is based. The conservation value of critical habitat also 
includes consideration of the likely capability, in the foreseeable 
future, of the critical habitat to support the species' recovery given 
the backdrop of past and present actions that may impede formation of 
the optimal successional stage or otherwise degrade the critical 
habitat. Therefore, an action that would preclude or significantly 
delay the development or restoration of the physical or biological 
features needed to achieve that capability, to an extent that it 
appreciably diminishes the conservation value of critical habitat 
relative to that which would occur without the action undergoing

[[Page 27063]]

consultation, is likely to result in destruction or adverse 
modification.
    We note that habitat suitability for any particular species will 
vary through time as a result of natural processes and, in a natural 
system, these habitats would not be considered ``degraded.'' For 
example, willow flycatchers generally nest in a specific age-class of 
willows. In a dynamic riverine system this age-class of willows is 
continually created and destroyed by periodic flooding, bank erosion, 
and deposition. An area of riverine habitat would not be considered 
``degraded'' during periods when the appropriate age-class of willows 
is not present. However, as with ``degraded'' habitat, an action that 
would preclude or significantly delay the development of those features 
that support the life-history needs of the species--the appropriate 
age-class of willows--is likely to result in destruction or adverse 
modification of critical habitat if it occurs to an extent that it 
appreciably diminishes the conservation value of critical habitat 
relative to that which would occur without the action undergoing 
consultation.
    We are cognizant that section 7(a)(2) only applies to discretionary 
agency actions. See 50 CFR 402.03. Further, while other parts of the 
Act create certain responsibilities for all Federal agencies (such as 
section 7(a)(1)), we recognize that section 7(a)(2) does not create an 
affirmative duty for action agencies to recover listed species. The 
consultation provision requires that agencies insure that any action 
they authorize, fund, or carry out is ``not likely to jeopardize the 
continued existence of any [listed] species or result in the 
destruction or adverse modification of [critical habitat].'' 16 U.S.C. 
1536(a)(2). This is a standard of prohibition rather than a mandate to 
further recovery. Thus, the Ninth Circuit has made it clear that for an 
action ``to jeopardize'' listed species, it has to cause ``some 
deterioration in the species' pre-action condition.'' National Wildlife 
Federation v. NMFS, 543 F.3d 917 (9th Cir. 2008).
    We think the same is true for a finding of adverse modification (or 
destruction) of critical habitat--that is, in order for an action to be 
found to adversely modify critical habitat, it must in some way cause 
the deterioration of the critical habitat's pre-action condition, which 
includes its ability to provide recovery support to the species based 
on ongoing ecological processes. For example, if one aspect of the 
conservation value of the critical habitat is the capacity to develop 
into a specific age-class of willows in a riverine system, an action 
agency is not required under section 7(a)(2) to affirmatively assist 
the transition of the habitat to that state. But, an adverse 
modification may occur if the action agency takes an action that would 
appreciably diminish the capacity of that habitat to complete that 
transition relative to the conditions which would occur without the 
action undergoing consultation. Conversely, if the proposed action does 
not preclude or significantly delay the ability for that habitat to 
develop through ecological processes into a specific age-class of 
willows, then the habitat has not been adversely modified.

Determination of ``Appreciably Diminish''

    Once the conservation value of the habitat is determined, then the 
question becomes whether the effects of the action (as defined in Sec.  
402.02) ``appreciably diminish'' that value of the critical habitat. 
The preamble to the 1986 regulations provides no guidance regarding the 
meaning of the words ``appreciably diminish.'' The Joint Consultation 
Handbook (Services 1998), however, defines ``appreciably diminish the 
value'' as ``to considerably reduce the capability of designated or 
proposed critical habitat to satisfy the requirements essential to both 
the survival and recovery of a listed species.''
    We find this definition to be no longer valid in light of the 
courts' rulings with regard to the regulatory definition of 
``destruction or adverse modification.'' That is, that portion of the 
definition that requires a reduction in the likelihood of ``both the 
survival and recovery'' of listed species is no longer valid. Further, 
we think the use of the term ``considerable'' to modify ``appreciably'' 
does not add any real value to help interpret what ``appreciably 
diminish'' means with regard to the modification of critical habitat, 
and may lead to disparate outcomes in consultations. For example, the 
word ``considerable'' can mean ``large in amount or extent'' but it can 
also mean ``worthy of consideration'' or ``significant.'' To further 
complicate matters, ``significant'' can mean ``measurable.'' So, some 
could interpret a ``considerable'' reduction to mean a massive 
reduction in the value of critical habitat and others could interpret 
it to mean a measurable reduction in the value of critical habitat. In 
light of the range of results various interpretations of 
``considerable'' could lead one to, we have set out below a more 
detailed interpretation of the phrase ``appreciably diminish the 
conservation value.''
    A determination that an action's effects will ``appreciably 
diminish'' the conservation value of critical habitat requires an 
understanding of both the words ``diminish'' and ``appreciable'' and 
how they relate to each other in the context of the definition. A 
review of the definition of (and the synonyms for) ``diminish'' 
establishes that to diminish is to reduce, lessen, or weaken. As 
applied to the definition of ``destruction or adverse modification,'' 
then, the inquiry is whether the relevant effects have reduced, 
lessened, or weakened the conservation value of the critical habitat. 
If so, then, the inquiry is whether that reduction or diminishment is 
``appreciable'' to the conservation value of the critical habitat.
    Appreciable is generally defined as ``noticeable'' or 
``measurable.'' In this context, however, that definition is too 
simplistic because, to determine a diminishment of the conservation 
value--or a reduction, lessening, or weakening of that value--one would 
have had to be able to notice or recognize the diminishment. Using this 
unhelpful meaning, the inclusion of the term ``appreciably'' would not 
add anything to the definition of ``destruction or adverse 
modification.'' To determine the appropriate meaning of the term 
``appreciably,'' we ultimately found it helpful to look at the 
definition of ``appreciate,'' which means to ``recognize the quality, 
significance, or magnitude'' or ``grasp the nature, worth, quality or 
significance.'' This usage makes more sense to us in the actual 
application of the phrase ``appreciably diminish.'' The relevant 
question, then, becomes whether we can recognize the quality, 
significance, or magnitude of the diminishment. In other words, is 
there a diminishment to the value of the critical habitat that has some 
relevance because we can recognize or grasp the quality, significance, 
magnitude, or worth of the diminishment in a way that affects the 
conservation value of the critical habitat.
    It is important to understand that the determination of 
``appreciably diminish'' will be based upon the effect to the 
conservation value of the designated critical habitat. That is, the 
question is whether the ``effects of the action'' will appreciably 
diminish the conservation value of the critical habitat as a whole, not 
just in the area where the action takes place. For example, an action 
may have an adverse effect to a portion of critical habitat. The 
question would be, then, whether the adverse effect in that one part of 
the critical habitat will diminish the conservation value of the 
critical habitat overall in such a manner that we can appreciate

[[Page 27064]]

the difference it will have to the recovery of the listed species. 
Specifically, some factors to be considered will be: will recovery be 
delayed, will recovery be more difficult, and will recovery be less 
likely. At the appropriate time after rulemaking, the Services plan to 
update guidance or handbook material to reflect any identified changes 
to the ``appreciably diminish'' definition in the March 1998 
Consultation Handbook. These considerations should be applied 
cautiously so the Services do not apply a standard that is either too 
sensitive in light of the particular circumstances, or not sensitive 
enough. In a biological opinion, the Services provide an accurate 
assessment of the status of critical habitat, (including threats and 
trends), the environmental baseline (describing all past and present 
impacts), and cumulative effects (i.e., future State or private 
activities). The effects of any particular action are evaluated in the 
context of the status, environmental baseline, and cumulative effects. 
This avoids situations where each individual action is viewed as 
causing only insignificant adverse effects but, over time, the 
aggregate effects of these actions would erode the conservation value 
of the critical habitat.
    Finally, we note that the term ``appreciably'' also appears in the 
regulatory definition of ``jeopardize the continued existence of,'' 
although in that definition it modifies ``to reduce.'' A similar 
interpretation of ``appreciably'' should be applied to the definition 
of ``jeopardize the continued existence of.'' In other words, is the 
reduction one we can recognize or grasp the quality, significance, 
magnitude, or worth of in a way that makes a difference to the likely 
survival and recovery of the listed species?

The Relationship Between the Standards of Section 7 of the Act

    The relationship between the ``jeopardize the continued existence 
of'' standard and the ``destruction or adverse modification'' standard 
reflects the ecological relationship between a species' population 
dynamics and the physical or biological features a species needs to 
grow and recover. To fulfill their responsibilities during interagency 
consultation, the Services conduct separate analyses for the two 
standards that are founded on this relationship. The difference between 
the outcomes of the ``jeopardize the continued existence of'' and 
``destruction or adverse modification'' analyses will depend on a 
variety of factors. The results from applying the ``jeopardize the 
continued existence of'' and ``destruction or adverse modification'' 
standards tend to converge and diverge depending on whether the area 
designated as critical habitat currently encompasses the physical or 
biological features that a species would need to be ``conserved,'' and 
whether the species' reproduction, numbers, or distribution will be 
affected. There is an inherent linkage, though, between a species and 
its habitat, and that linkage means those alterations to a species' 
habitat will in many cases cause alterations in the numbers, 
reproduction, or distribution of the species.
    The ``destruction or adverse modification'' standard focuses on how 
Federal actions affect the quantity and quality of the physical or 
biological features in the area that is designated as critical habitat 
for a listed species and, especially in the case of unoccupied habitat, 
on any impacts to the area itself. Specifically, as discussed above, 
the Services should first evaluate Federal actions against the 
``destruction or adverse modification'' definition standard by 
considering how the action affects the quantity and quality of the 
physical or biological features that determine the habitat's ability to 
support recovery of a listed species. If the effects of an action 
appreciably diminish the quantity and quality of those features to 
support the conservation value of critical habitat, then the Services 
generally conclude that the Federal action is likely to ``destroy or 
adversely modify'' the designated critical habitat.
    In addition, the Services may consider other kinds of impacts to 
the designated areas. For example, some areas that are currently in a 
degraded condition may have been designated as critical habitat for 
their potential to develop or improve habitat and eventually provide 
the needed ecological functions to support species' recovery. Under 
these circumstances, the Services generally conclude that an action is 
likely to ``destroy or adversely modify'' the designated critical 
habitat if the action will alter the ecology of the habitat in ways 
that prevent the habitat from improving over time relative to pre-
action condition. For example, by artificially maintaining an area of 
critical habitat in a relatively late successional stage, to the 
detriment of a species dependent upon periodic flooding or fire to 
establish early successional stages.
    Conversely, the ``jeopardize the continued existence of'' 
definition focuses on the effects of a Federal action on a listed 
species' likelihood of continuing to survive and recover in the wild. 
Specifically, the Services evaluate Federal actions against the 
``jeopardize the continued existence of'' definition by considering how 
the action affects a species' reproduction, numbers, or distribution. 
If the effects of an action would likely reduce the species' 
reproduction, numbers, or distribution in a manner or to a degree that 
would appreciably reduce the species' likelihood of surviving and 
recovering in the wild, the Services would conclude that the Federal 
action is likely to ``jeopardize'' the species' continued existence.
    The distribution and/or abundance of some species are not currently 
limited by the quantity or quality of their habitat (for example, 
population densities may be suppressed by other factors such as over-
exploitation, disease, or predators, and often persist well below 
population sizes that could be supported by the available habitat). In 
such circumstances where habitat modifications associated with a 
Federal action are not expected to reduce the species' reproduction, 
numbers, or distribution, the Services might conclude that a Federal 
action ``adversely modified'' designated critical habitat, but they 
would not conclude that the action ``jeopardized the continued 
existence of'' the species (unless the modifications were dramatic). 
Application of the two section 7 standards should produce different 
outcomes whenever a proposed Federal action affects a portion of 
designated critical habitat that will not result in an appreciable 
reduction of the species' reproduction, numbers, or distribution (for 
example, because the species exists as very small populations that do 
not fully occupy the designated critical habitat).

Request for Information

    We intend that a final regulation will consider information and 
recommendations from all interested parties. We therefore solicit 
comments, information, and recommendations from governmental agencies, 
Native American tribes, the scientific community, industry groups, 
environmental interest groups, and any other interested parties. All 
comments and materials received by the date listed in DATES above will 
be considered prior to the approval of a final document.
    You may submit your information concerning this proposed rule by 
one of the methods listed in ADDRESSES. If you submit information via 
https://www.regulations.gov, your entire submission--including any 
personal identifying information--will be posted on the Web site. If 
your submission is

[[Page 27065]]

made via a hardcopy that includes personal identifying information, you 
may request at the top of your document that we withhold this personal 
identifying information from public review. However, we cannot 
guarantee that we will be able to do so. We will post all hardcopy 
submissions on https://www.regulations.gov.
    Information and supporting documentation that we receive in 
response to this proposed rule will be available for you to review at 
https://www.regulations.gov, or by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Division of Conservation 
and Classification (see FOR FURTHER INFORMATION CONTACT).
    We are particularly interested in comments concerning whether the 
phrases ``conservation value'' and ``appreciably diminish'' are clear 
and can be applied consistently across consultations and we invite the 
public to suggest alternative phrases that might improve clarity and 
consistency in implementing the ``destruction or adverse modification'' 
provisions of the section 7(a)(2) of the Act.

Required Determinations

Regulatory Planning and Review (E.O. 12866)

    The Office of Management and Budget (OMB) has determined that this 
proposed rule is a significant regulatory action and has reviewed this 
proposed rule under Executive Order 12866 (E.O. 12866).

Regulatory Flexibility Act

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

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

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

Takings (E.O. 12630)

    In accordance with Executive Order 12630, we have determined the 
proposed rule does not have significant takings implications.
    A takings implication assessment is not required because this rule 
(1) will not effectively compel a property owner to suffer a physical 
invasion of property and (2) will not deny all economically beneficial 
or productive use of the land or aquatic resources. This rule would 
substantially advance a legitimate government interest (conservation 
and recovery of listed species) and would not present a barrier to all 
reasonable and expected beneficial use of private property.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, we have considered 
whether this proposed rule would have significant Federalism effects 
and have determined that a Federalism assessment is not required. This 
proposed rule pertains only to determinations of Federal agency 
compliance with section 7 of the Act, and would not have substantial 
direct effects on the States, on the relationship between the Federal 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government.

Civil Justice Reform (E.O. 12988)

    This proposed rule will not unduly burden the judicial system and 
meets the applicable standards provided in sections 3(a) and 3(b)(2) of 
Executive Order 12988. This proposed rule would clarify how the 
Services will make determinations whether a Federal agency has ensured 
that any action it would authorize, fund, or carry out is not likely to 
result in the destruction or adverse modification of critical habitat.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We cannot reasonably 
predict the species or particular locations where we would designate 
critical habitat in the future. Thus, we cannot predict whether tribal 
lands would be affected by a proposal to designate critical habitat. 
However, the Act requires that we give notice of and seek comment on 
any proposal to designate critical habitat prior to a final decision. 
Our proposed rules to designate critical habitat would indicate the 
types of activities that may be affected by resulting regulatory 
requirements of the Act. Any potentially affected federally recognized 
Indian tribes would be notified of a proposed determination and given 
the

[[Page 27066]]

opportunity to review and comment on the proposed rules.

Paperwork Reduction Act

    This proposed rule does not contain any new collections of 
information that require approval by the OMB under the Paperwork 
Reduction Act. This proposed rule would not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act

    We are analyzing these proposed regulations in accordance with the 
criteria of the National Environmental Policy Act (NEPA), the 
Department of the Interior regulations on Implementation of the 
National Environmental Policy Act (43 CFR 46.10-46.450), the Department 
of the Interior Manual (516 DM 1-6 and 8), and National Oceanographic 
and Atmospheric Administration (NOAA) Administrative Order 216-6. Our 
analysis includes evaluating whether the action is procedural, 
administrative, or legal in nature, and therefore a categorical 
exclusion applies. We invite the public to comment on whether, and if 
so, how this proposed regulation may have a significant effect upon the 
human environment, including any effects identified as extraordinary 
circumstances at 43 CFR 46.215. We will complete our analysis, in 
compliance with NEPA, before finalizing these proposed regulations.

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

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This proposed rule, if 
made final, is not expected to affect energy supplies, distribution, 
and use. Therefore, this action is not a significant energy action, and 
no Statement of Energy Effects is required.

Clarity of This Policy

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule or policy we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the regulation, your comments should be as specific as possible. 
For example, you should tell us the sections or paragraphs that are 
unclearly written, which sections or sentences are too long, the 
sections where you feel lists or tables would be useful, etc.

References Cited

    A complete list of all references cited in this document is 
available on the Internet at https://www.regulations.gov or upon request 
from the U.S. Fish and Wildlife Service (see FOR FURTHER INFORMATION 
CONTACT).

Authority

    We are taking this action under the authority of the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

List of Subjects in 50 CFR Part 402

    Endangered and threatened species.

Proposed Regulation Promulgation

    Accordingly, we propose to amend subpart A of part 402, subchapter 
A of chapter IV, title 50 of the Code of Federal Regulations, as set 
forth below:

PART 402--[AMENDED]

0
1. The authority citation for part 402 continues to read as follows:

    Authority: 16 U.S.C. 1531 et seq.

0
2. In Sec.  402.02, revise the definition for ``Destruction or adverse 
modification'' to read as follows:


Sec.  402.02  Definitions.

* * * * *
    Destruction or adverse modification means a direct or indirect 
alteration that appreciably diminishes the conservation value of 
critical habitat for listed species. Such alterations may include, but 
are not limited to, effects that preclude or significantly delay the 
development of physical or biological features that support the life-
history needs of the species for recovery.
* * * * *

    Dated: April 3, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks, 
U.S. Department of the Interior.

    Dated: April 4, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2014-10503 Filed 5-9-14; 8:45 am]
BILLING CODE 4310-55; 3510-22-P