Endangered and Threatened Wildlife and Plants; Regulations for Interagency Cooperation, 24268-24298 [2024-06902]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 402
[Docket No. FWS–HQ–ES–2021–0104;
FXES1114090FEDR–245–FF09E300000;
Docket No. NMFS–240325–0087]
RIN 1018–BF96; 0648–BK48
Endangered and Threatened Wildlife
and Plants; Regulations for
Interagency Cooperation
U.S. Fish and Wildlife Service
(FWS), Interior; National Marine
Fisheries Service (NMFS), National
Oceanic and Atmospheric
Administration (NOAA), Commerce.
ACTION: Final rule.
AGENCY:
FWS and NMFS (collectively
referred to as the ‘‘Services’’ or ‘‘we’’)
finalize revisions to portions of our
regulations that implement section 7 of
the Endangered Species Act of 1973, as
amended (‘‘Act’’). The revisions to the
regulations clarify, interpret, and
implement portions of the Act
concerning the interagency cooperation
procedures.
DATES: This final rule is effective May 6,
2024.
ADDRESSES: Public comments and
materials received, as well as supporting
documentation used in the preparation
of this final rule, are available online at
https://www.regulations.gov at Docket
No. FWS–HQ–ES–2021–0104.
FOR FURTHER INFORMATION CONTACT:
Craig Aubrey, Ecological Services, U.S.
Fish and Wildlife Service, 5275
Leesburg Pike, Falls Church, VA 22041–
3803; telephone 703/358–2442; or
Tanya Dobrzynski, Chief, Office of
Protected Resources, National Marine
Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910,
telephone 301/427–8400. Individuals in
the United States who are deaf,
deafblind, hard of hearing, or have a
speech disability may dial 711 (TTY,
TDD, or TeleBraille) to access
telecommunications relay services.
Individuals outside the United States
should use the relay services offered
within their country to make
international calls to the point-ofcontact in the United States.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
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Background
The Secretaries of the Interior and
Commerce (the ‘‘Secretaries’’) share
responsibilities for implementing most
of the provisions of the Endangered
Species Act, as amended (hereafter
referred to as ‘‘ESA’’ or ‘‘the Act;’’ 16
U.S.C. 1531 et seq.), and authority to
administer the Act has been delegated
by the respective Secretaries to the
Director of FWS and the Assistant
Administrator for NMFS. Together, the
Services have promulgated procedural
regulations governing interagency
cooperation under section 7 of the Act,
which requires Federal agencies, in
consultation with and with the
assistance of the Secretaries of the
Interior and Commerce, to ensure that
any action authorized, funded, or
carried out by such agencies is not
likely to jeopardize the continued
existence of endangered or threatened
species or result in the destruction or
adverse modification of critical habitat
of such species. These joint regulations,
which are codified in the Code of
Federal Regulations at 50 CFR part 402,
were most recently revised in 2019 (84
FR 44976, August 27, 2019; hereafter
referred to as ‘‘the 2019 rule’’). Those
revised regulations became effective
October 28, 2019 (84 FR 50333,
September 25, 2019).
Executive Order 13990 (hereafter,
‘‘E.O. 13990’’), which was entitled
‘‘Protecting Public Health and the
Environment and Restoring Science To
Tackle the Climate Crisis,’’ was issued
January 20, 2021, and directed all
departments and agencies to
immediately review agency actions
taken between January 20, 2017, and
January 20, 2021, and, as appropriate
and consistent with applicable law,
consider suspending, revising, or
rescinding agency actions that conflict
with important national objectives,
including promoting and protecting our
public health and the environment, and
to immediately commence work to
confront the climate crisis. A ‘‘Fact
Sheet’’ that accompanied E.O. 13990
identified a non-exhaustive list of
particular regulations requiring such a
review and included the 2019 rule (see
www.whitehouse.gov/briefing-room/
statementsreleases/2021/01/20/factsheet-list-of-agency-actions-for-review/).
In response to E.O. 13990 and in light
of litigation over the 2019 rule, the
Services proposed revisions to portions
of the ESA implementing regulations at
50 CFR part 402.
On June 22, 2023, we published in the
Federal Register (88 FR 40753) a
proposed rule to amend portions of our
regulations that implement section 7 of
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the Act. We accepted public comments
on the June 22, 2023, proposed rule for
60 days, ending August 21, 2023. The
proposed rule included clarifying the
definitions of ‘‘effects of the action,’’
‘‘environmental baseline,’’ and
‘‘reasonable and prudent measures’’;
removing § 402.17, ‘‘Other provisions,’’
which had been promulgated with the
intent of clarifying several aspects of the
process of determining whether an
activity or consequence is reasonably
certain to occur; clarifying the
responsibilities of the Federal agency
and the Services regarding the
requirement to reinitiate consultation;
and revising the regulations at 50 CFR
402.02 and 402.14 regarding the scope
of reasonable and prudent measures
(RPMs) in an incidental take statement
(ITS). The proposed rule also sought
comment on all aspects of the 2019 rule,
including whether any of those
provisions should be rescinded in their
entirety (restoring the prior regulatory
provision) or revised in a different way.
The Services also conducted outreach to
Federal and State agencies, industries
regularly involved in section 7(a)(2)
consultation, Tribes, nongovernmental
organizations, and other interested
parties and invited their comment on
the proposal.
Following consideration of all public
comments received in response to our
proposed rule, we are proceeding to
finalize revisions to our implementing
regulations at 50 CFR part 402 as
proposed, with no changes. The basis
and purpose for this final rule are
reflected in our explanation in the June
2023 proposed rule, the responses to
comments below, as well as the 2019
final rule for those aspects of the 2019
final rule we are not changing here.
These revisions will further improve
and clarify interagency consultation.
With the exception of the revisions at 50
CFR 402.02 and 402.14 regarding the
RPMs in an incidental take statement
(ITS), the revisions do not make any
changes to existing practice of the
Services in implementing section 7(a)(2)
of the Act.
In the event any provision is
invalidated or held to be impermissible
as a result of a legal challenge, the
‘‘remainder of the regulations could
function sensibly without the stricken
provision.’’ Belmont Mun. Light Dep’t v.
FERC, 38 F.4th 173, 187 (D.C. Cir. 2022)
(quoting MD/DC/DE Broad. Ass’n v.
FCC, 236 F.3d 13, 22 (D.C. Cir. 2001)).
Because each of the revisions stands on
its own, the Services view each revision
as operating independently from the
other revisions. Should a reviewing
court invalidate any particular
revision(s) of this rulemaking, the
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remaining portions would still allow the
Services to issue biological opinions
and incidental take statements that
comprehensively evaluate the effects of
federal actions on listed species and
critical habitat and adequately address
the impacts of incidental take that are
reasonably certain to occur. Specifically,
these distinct provisions include: (1)
revisions to the definition of
‘‘environmental baseline,’’ (2) removal
of section § 402.17 and conforming
revisions to the definition of ‘‘effects of
the action,’’ (3) revisions to § 402.16,
and (4) revisions to the regulatory
provisions regarding the scope of
reasonable and prudent measures in
incidental take statements (§§ 402.02
and 402.14(i)). To illustrate this with
one possible example, in the event that
a reviewing court were to find the
revision adopted in 2019 that described
expedited consultations at § 402.14(l) is
invalid, that finding would not affect
the current revisions to the provisions
for reinitiation of consultation at
Section § 402.16.
The revisions to the regulations in
this final rule are prospective; they are
not intended to require that any
previous consultations under section
7(a)(2) of the Act be reevaluated at the
time this final rule becomes effective
(see DATES, above).
This rule is one of three rules
publishing in today’s Federal Register
that make changes to the regulations
that implement the ESA. Two of these
final rules, including this one, are joint
between the Services, and one final rule
is specific to FWS.
Summary of Comments and Responses
In our June 22, 2023, proposed rule
(88 FR 40753), we requested public
comments by August 21, 2023. We
received more than 140,000 comments
by that date from individual members of
the public, States, Tribes, industry
organizations, legal foundations and
firms, and environmental organizations.
We received several requests for
extensions of the public comment
period. However, we elected not to
extend the public comment period
because we found the 60-day comment
period provided sufficient time for a
thorough review of the proposed
revisions. The majority of the proposed
revisions are to portions of the
regulations that were previously revised
in 2019, and we jointly announced in a
public press release and on a Service
website our intention to revise these
regulations in June of 2021. The number
of comments received indicated that
members of the public were aware of the
proposed rule and had adequate time to
review it. In addition, we provided six
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informational sessions for a wide variety
of audiences. Over 500 attendees
participated in these sessions, and we
addressed questions from the
participants during each session.
Finally, on our website, we provided
additional information about the
proposed regulations, such as frequently
asked questions and a prerecorded
presentation on the proposed revisions.
Most of the comments we received
were non-substantive, expressing either
general support for, or opposition to, the
proposed rule with no supporting
information or analysis. Other
comments expressed opinions beyond
the scope of this rulemaking. We do not,
however, respond to comments that are
beyond the scope of this rulemaking
action or that were not related to the
2019 rule. The vast majority of the
comments received were nearly
identical statements from individuals
indicating their general support for the
proposed revisions to the 2019 rule and
concern for not including more
revisions to the 2019 rule, but not
containing substantive content. We also
received approximately 95 letters with
detailed substantive comments with
specific rationales for support of or
opposition to specific portions of the
proposed rule.
Before addressing each of the
comments, we reiterate the Services’
intention to provide additional guidance
in an updated ESA Section 7
Consultation Handbook (Consultation
Handbook) that we anticipate making
available for public comment after the
publication of this final rule. Related to
topics addressed in this final rule, the
additional guidance will address
application of the definition of ‘‘effects
of the action’’ and ‘‘environmental
baseline,’’ examples for defining when
an activity is reasonably certain to occur
and guidance on application of the twopart causation test, additional
information on consulting
programmatically, guidance on
implementation of section 7(a)(1) of the
Act, and implementation of the
expanded scope of RPMs.
Recognizing that the revisions to the
regulatory provisions expanding the
scope of RPMs represent a change to the
Services’ practice, we would also like to
highlight some of the key aspects of that
amendment, which are discussed in
more detail in the response to comments
below. First, the Services find that the
revision allowing for the use of offsets
as RPMs will more fully effectuate the
conservation goals of the ESA by
addressing impacts of incidental take
that may not have been sufficiently
minimized through measures confined
to avoiding or reducing incidental take
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levels. In that regard, our prior
approach, which restricted RPMs to
measures that avoid or reduce
incidental take, has led to the continued
deterioration of the condition of listed
species and their critical habitat through
the accumulation of impacts from
incidental take over time. Further, those
impacts from incidental take may have
been more adequately addressed
through offsetting measures.
Second, as explained in our response
to comments below, the respective
revisions to § 402.02 and § 402.14(i),
which recognize the use of offsets as
RPMs, are supported by the plain
language of the ESA. The relevant
language at ESA section 7(b)(4)(C)(ii)
plainly states that RPMs are to include
measures that minimize the ‘‘impacts’’
of incidental take, not just incidental
take itself. Like measures that avoid or
reduce incidental take, offsetting
measures also ‘‘minimize’’ the impacts
of incidental take on the species. The
legislative history of the 1982
amendments of the ESA also confirms
that Congress did not intend to preclude
the Services from specifying offsets as
RPMs that minimize the impacts of
incidental take. Lastly, the Services do
not expect offsetting measures that
occur outside the action area to violate
the ‘‘minor change rule.’’ In most
instances, offsetting measures operate as
additional measures to minimize
impacts of incidental take that would
not prevent the action subject to
consultation from proceeding
essentially as proposed. Accordingly,
text was added at 50 CFR 402.14(i)(2) to
expressly recognize that offsets may
occur within or outside the action area,
consistent with the ‘‘minor change rule’’
(i.e., the requirement that RPMs specify
only minor changes that do not alter the
basic design, location, duration, or
timing of the action).
In addition, the Services would like to
address a particular issue at the outset
of this portion of the preamble. Several
commenters asserted that a recent
decision from the D.C. Circuit Court of
Appeals, Maine Lobstermen’s
Association v. NMFS, 70 F.4th 582 (D.C.
Cir. 2023) (‘‘MLA’’), weighs against the
Services removing § 402.17 from the
section 7 regulations, especially the
‘‘clear and substantial information’’
standard that applies in determining if
a consequence is reasonably certain to
occur. We explain here our
understanding of the decision and why
it does not undermine our regulatory
revision to remove § 402.17. Because the
subject consultation in the MLA
litigation required NMFS to grapple
with scientific uncertainties, we also
offer additional explanation of how the
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Services address such uncertainties, in
general, consistent with the holding in
MLA and section 7(a)(2) of the Act. We
respond to some of the more specific
comments in the responses section
below.
In MLA, lobster fishermen challenged
a NMFS no-jeopardy biological opinion
that analyzed the effects of authorizing
the Federal lobster and Jonah crab
fisheries in the Northeast on the highly
endangered North Atlantic right whale.
In developing the biological opinion,
NMFS faced uncertainties in
determining the anticipated level of
right whale entanglements and any
subsequent deaths the fishery was
anticipated to cause over the next 50
years. The D.C. Circuit Court of Appeals
found that NMFS impermissibly
resolved these uncertainties by asserting
the legislative history of the ESA
required NMFS to apply worst case
scenarios. See 70 F.4th at 597 (‘‘When
answering public comments the Service
blamed the Congress, insisting that . . .
the legislative history required it to deal
in worst-case scenarios because ‘we
need to give the benefit of the doubt to
the species.’ ’’). The MLA court held that
legislative history cannot ‘‘compel a
presumption in favor of the species not
required by the statute’’ and that, under
the ESA, the Services facing scientific
uncertainty may not simply resort to
‘‘worst-case scenarios or pessimistic
assumptions,’’ but must instead ‘‘strive
to resolve or characterize the
uncertainty through accepted scientific
techniques.’’ Id. at 586, 598, 600.
That decision does not address the
Services’ discretion to resolve
ambiguities in the best available
scientific data generally, or the Services’
decision to remove § 402.17 from the
section 7 regulations. First, the court
invalidated only the particular way in
which NMFS resolved uncertainties in
MLA—namely that the agency, in the
court’s view, made a legal determination
that it had to give the benefit of the
doubt to an endangered species, rather
than making a scientific judgment based
on the best available scientific data. The
court stated, for example, that agencies
may not ‘‘jump to a substantive
presumption [in favor of the endangered
species] that distorts the analysis of
effects and creates false positives.’’
MLA, 70 F.4th at 600. But the court also
made clear that when agencies make ‘‘a
scientifically defensible decision’’ by,
for instance, ‘‘striv[ing] to resolve or
characterize the uncertainty through
accepted scientific techniques,’’ their
‘‘predictions will be entitled to
deference.’’ Id. The court further
anticipated that NMFS ‘‘will be able to
make’’ such scientifically defensible
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decisions ‘‘[i]n most realistic cases’’ and
thereby avoid the specific issues the
court found problematic in MLA. Id.
The Services historically have resolved
ambiguities or uncertainties in the data
based on such ‘‘accepted scientific
techniques.’’ As a result, the Services
anticipate that the MLA decision will
have limited implications for the
Services’ overall implementation of
section 7(a)(2).
Second, MLA does not constrain the
Services’ decision to remove § 402.17,
contrary to some commenters’
assertions. As discussed more fully
below, the Services are removing the
‘‘clear and substantial information’’
requirement because it could be read as
inappropriately restricting the scope of
‘‘the best available scientific and
commercial data’’ by demanding a
degree of certitude and quantification.
The best available data are not always
free of ambiguities and thus ‘‘clear,’’ nor
are they invariably quantifiable or
‘‘substantial’’ in quantity. As the
Services explained in the 2019 section
7 final rule: The best scientific and
commercial data available is not limited
to peer-reviewed, empirical, or
quantitative data but may include the
knowledge and expertise of Service
staff, Federal action agency staff,
applicants, and other experts, as
appropriate, applied to the questions
posed by the section 7(a)(2) analysis
when information specific to an action’s
consequences or specific to species
response or extinction risk is
unavailable. Methods such as
conceptual or quantitative models
informed by the best available
information and appropriate
assumptions may be required to bridge
information gaps in order to render the
Services’ opinion regarding the
likelihood of jeopardy or adverse
modification. Expert elicitation and
structured decision-making approaches
are other examples of approaches that
may also be appropriate to address
information gaps. (84 FR 45000)
MLA does not require a different
view. In interpreting section 7(a) of the
ESA, the court held that agencies must
use ‘‘the best available scientific data,
not the most pessimistic.’’ MLA, 70
F.4th at 599. The court did not hold
that, within the best available scientific
data, the statute permits reliance only
on clear data that lack uncertainties or
a substantial amount of such data. And
while the court made a passing
reference to § 402.17, it did so to
support the proposition that, even under
the Services’ own ‘‘interpretive rules,’’
NMFS’s approach in that case fell short
because, in the court’s view, it lacked a
clear and substantial basis for predicting
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reasonably certain effects. The court did
not indicate the statute demands ‘‘clear
and substantial information.’’
That understanding is consistent with
the statutory text, which provides that
each federal agency shall ‘‘insure that
any action authorized, funded, or
carried out by such agency . . . is not
likely to jeopardize the continued
existence of any endangered species or
threatened species.’’ 16 U.S.C.
1536(a)(2) (emphases added). As the
Supreme Court has explained, ‘‘insure’’
in section 7(a)(2) means ‘‘[t]o make
certain, to secure, to guarantee.’’
National Association of Home Builders
v. Defenders of Wildlife, 551 U.S. 644,
667 (2008) (quotation marks omitted).
Thus, agencies do not determine the
effects of an action using ‘‘the best
scientific and commercial data
available’’ in a vacuum. Rather, the ESA
envisions that agencies would make any
such scientific judgments in service of
their overarching responsibility to
‘‘make certain’’ their actions are ‘‘not
likely’’ to jeopardize protected species.
Accordingly, a regulation that impairs
agencies’ ability to carry out that duty
by requiring them to disregard any
reasonably certain effects that have
ambiguities in the underlying
information or that may be based on less
than substantial information could be
inconsistent with the statute.
We note that even with the removal
of § 402.17, the two-part causation test
(i.e., the ‘‘but for’’ and ‘‘reasonably
certain to occur’’ standards) for
determining whether a particular
activity or consequence falls under the
definition of ‘‘effects of the action’’
remains in place. As the Services
explained in the 2019 rule, the
‘‘reasonably certain to occur’’ standard
adds an element of foreseeability and a
limitation to our causation standard for
determining ‘‘effects of the action.’’ 84
FR at 44991. That standard prevents the
Services from engaging in speculative
analyses, though it does not require a
guarantee that an effect will occur. See
51 FR 19926 at 19932–19933; June 3,
1986 (1986 section 7 regulations final
rule); 80 FR 26832 at 26837; May 11,
2015 (incidental take statement final
rule); 83 FR 35178 at 35183; July 25,
2018 (2018 proposed rule to update
section 7 regulations). These safeguards
ensure that when faced with scientific
uncertainties, the Services will not
automatically rely on ‘‘worst-case
scenarios.’’ See 84 FR 44967 at 45000;
August 27, 2019. Instead, consistent
with the statute and our regulations, the
Services will continue to evaluate the
best available evidence to arrive at
principled scientific determinations in
rendering our opinion under section 7
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of the Act. Similarly, in rendering our
opinion and resolving uncertainties, we
will continue to be mindful of the
fundamental duty—required by the text
of section 7(a)(2)—to ‘‘insure’’ the
agency action is not likely to jeopardize
species protected under the Act.
Below, we summarize and respond to
substantive and other relevant
comments we received during the
public comment period; we combined
similar comments where appropriate.
Section 402.02—Definitions
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Definition of ‘‘Effects of the Action’’
As proposed, we are revising the
definition of ‘‘effects of the action’’ by
adding ‘‘but that are not part of the
action’’ to the end of the first sentence
and removing the parenthetical
reference to § 402.17. The first sentence
now reads: Effects of the action are all
consequences to listed species or critical
habitat that are caused by the proposed
action, including the consequences of
other activities that are caused by the
proposed action but that are not part of
the action. The Services received a wide
variety of comments on our proposed
revisions to the definition of ‘‘effects of
the action.’’ These comments ranged
from support of the proposed revisions,
requests to revert to the pre-2019
definition, and recommendations for
modifications to the proposed
definition, largely to incorporate
portions of § 402.17 in the ‘‘effects of the
action’’ definition if that section is
removed as had been proposed.
Commenters in support of the revisions
to the 2019 definition generally agreed
with the reasoning of the Services but
many requested additional guidance on
the application of the definition. The
Services intend to provide additional
guidance in an updated Consultation
Handbook, which we anticipate
publishing in the Federal Register for
public comment after issuance of this
final rule.
Commenters who requested the
Services return to the pre-2019
definition of ‘‘effects of the action’’
generally pointed to the removal of the
terms ‘‘direct,’’ ‘‘indirect,’’ interrelated,’’
and ‘‘interdependent’’ and the use of the
terms ‘‘consequences’’ and ‘‘other
activities,’’ as well as the two-part
causation test as being a change in
practice that narrows the scope of the
‘‘effects of the action.’’ The Services
respectfully decline to return to the pre2019 definition of ‘‘effects of the
action.’’ We reassert our position that
the retained changes in the 2019 rule
and the revisions adopted from the 2023
proposed rule maintain the pre-2019
scope of the effects analysis. These
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changes provide further clarity in the
application of the longstanding practice
of determining the full range of effects
of a proposed action under consultation,
including those that result from other
activities that would not occur but for
the proposed action. Under the pre-2019
definition, there was undue focus on
categorizing the specific type of effect
analyzed as part of the ‘‘effects of the
action’’ (i.e., assigning effects to the
categories of direct, indirect,
interrelated, or interdependent). The
changes promulgated in 2019 to the
definition avoided that exercise of
categorizing the effects, but all these
effects are, nevertheless, still analyzed
as part of the ‘‘effects of the action.’’
Many commenters requested the
Services retain the reference to § 402.17
in the ‘‘effects of the action’’ definition
and the content of § 402.17. The
comments related to § 402.17 and the
‘‘effects of the action’’ definition
centered on the two-part causation test,
particularly the framework provided for
determining whether an activity or
consequence is reasonably certain to
occur. Those comments that focused on
§ 402.17 are addressed below in the
preamble to this final rule.
Comment 1: One commenter
recommended adding the word ‘‘likely’’
to the definition of ‘‘effects of the
action’’ to assist in distinguishing that
consequences of the action must be
likely to occur in order to result in
effects.
Response: The current definition and
the ‘‘but for’’ and ‘‘reasonably certain to
occur’’ causation provide a clear test of
what constitutes an effect of the action,
including for other activities caused by
the action. Adding the term ‘‘likely’’
would add ambiguity rather than
clarifying the test for an effect of the
action. The Services respectfully decline
this requested change to the definition
of ‘‘effects of the action.’’
Comment 2: Several commenters
proposed incorporating the statutory
requirement to use the best available
scientific and commercial data into the
‘‘effects of the action’’ definition to
support the two-part causation test.
Response: The last sentence of section
7(a)(2) of the Act requires both the
Federal action agencies and the Services
to use ‘‘the best scientific and
commercial data available.’’ This
requirement applies to all aspects of the
Services’ application of section 7(a)(2)
consultation, including determining
what activities or consequences are
considered reasonably certain to occur
when analyzing the ‘‘effects of the
action’’ and any ‘‘cumulative effects.’’
Therefore, we respectfully decline the
suggestion to add ‘‘using the best
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scientific and commercial data
available’’ to the ‘‘effects of the action’’
definition because using the best
scientific and commercial data available
is already an explicit requirement of the
Act for agencies and incorporated into
our formulation of the biological
opinion under the regulations. See 16
U.S.C. 1536(a)(2), 50 CFR 402.14(g)(8).
Comment 3: Commenters
recommended modifications to the
definition of ‘‘effects of the action’’ to
distinguish ‘‘activities’’ from the
proposed action in order to apply the
two-part causation test to both
‘‘activities’’ and ‘‘consequences.’’
Response: The modification of the
definition in the 2023 proposed rule to
add ‘‘but that are not part of the action’’
addresses this recommendation so the
Services did not further modify the
‘‘effects of the action’’ definition. The
reference to ‘‘activities’’ in the first
sentence of the 2019 ‘‘effects of the
action’’ definition and in the revised
version of the definition in this final
rule is to those activities that are caused
by, but are not part of, the proposed
action. Under the pre-2019 definition, as
described in the 2018 preamble for the
proposed rule to the 2019 rule, the
intent in changing the definition to
‘‘other activities’’ that would have been
considered ‘‘indirect effects’’ or
‘‘interrelated’’ or ‘‘interdependent’’
actions was for consultations to focus on
identifying the full range of the
consequences rather than categorizing
them (84 FR 44976–44977, August 27,
2019; 83 FR 35178 at 35183, July 25,
2018). The two-part causation test is
used to determine when a consequence
of these other activities is caused by the
proposed action because the other
activities (and the consequences of
them) would not occur ‘‘but for’’ the
proposed action and are ‘‘reasonably
certain to occur.’’
Comment 4: Several commenters
suggested returning to the 1986 ‘‘effects
of the action’’ definition to use the terms
‘‘direct,’’ ‘‘indirect,’’ ‘‘interrelated,’’ and
‘‘interdependent.’’ They believe the
2019 definition narrows the scope of
‘‘effects of the action’’ and argue that
collapsing direct and indirect effects
into a single ‘‘consequences’’
requirement changes past practice
because indirect effects did not require
‘‘but for’’ causation prior to 2019.
Commenters noted that the 1998
Consultation Handbook required ‘‘but
for’’ only in analyzing ‘‘take’’ resulting
from the action, as well as interrelated
and interdependent actions.
Response: The 1986 definition of
‘‘indirect effects’’ referred to effects that
are ‘‘caused by’’ the proposed action
whereas the Services’ 1998 Consultation
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Handbook includes the phrase ‘‘caused
by or results from,’’ both of which
require an assessment of a causal
connection between an action and an
effect. The ‘‘but for’’ causation test in
the 2019 revised definition of ‘‘effects of
the action’’ and as modified in this final
rule is similar to ‘‘caused by’’ or
‘‘caused by or results from’’ in that both
tests speak to a connection between the
proposed action and the consequent
results of that action, whether they be
(1) physical, chemical, or biotic
consequences to the environment, the
species or critical habitat, or (2)
activities that would not occur but for
the proposed action. Both tests require
a determination of factual causation,
and since 2019 we have not observed a
change in the Services’ practice in
applying ‘‘but for’’ causation to
consequences once termed ‘‘indirect
effects’’ compared to the regulatory term
‘‘caused by.’’ As we noted in the
preamble of the 2018 proposed rule,
‘‘[i]t has long been our practice that
identification of direct and indirect
effects as well as interrelated and
interdependent actions is governed by
the ‘but for’ standard of causation.’’
Similarly, as defined in § 402.02,
‘‘incidental take refers to takings that
result from . . . an otherwise lawful
activity.’’ 50 CFR 402.02 (emphasis
added). Moreover, our 1998
Consultation Handbook states: ‘‘In
determining whether the proposed
action is reasonably likely to be the
direct or indirect cause of incidental
take, the Services use the simple
causation principle: i.e., ‘but for’ the
implementation of the proposed action.
. . .’’ (1998 Consultation Handbook,
page 4–47). For these reasons, the
Services continue to maintain that the
‘‘but for’’ test reflects the Services’ longstanding practice and has not changed
the scope of our analyses. Therefore, we
decline the commenters’ request.
Comment 5: Commenters
recommended that consideration of
effects of ongoing agency actions not be
moved to the ‘‘environmental baseline.’’
They argued that, if ongoing agency
actions are moved to the
‘‘environmental baseline,’’ it will be
difficult for the Services to determine
whether a species already exists in a
state of baseline jeopardy because of
these previously authorized ongoing
Federal actions.
Response: The concept of ‘‘baseline
jeopardy’’ originates from cases like
Nat’l Wildlife Fed. v. NMFS, 524 F.3d
917, 930 (9th Cir. 2008) (‘‘[l]ikewise,
even where baseline conditions already
jeopardize a species, an agency may not
take action that deepens the jeopardy by
causing additional harm’’). As we noted
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in our responses to comments in the
2019 rule and re-affirm here, the
Services’ position on ‘‘baseline
jeopardy’’ remains that the statute and
regulations do not contain any
provisions under which a species
should be found to be already (preaction) in an existing status of ‘‘baseline
jeopardy,’’ such that any additional
adverse impacts must be found
automatically to meet the regulatory
standards for ‘‘jeopardize the continued
existence of’’ or ‘‘destruction or adverse
modification.’’ See 84 FR 44976 at
44987; August 27, 2019. Please see the
responses to comments on the definition
of ‘‘environmental baseline’’ below for
more details.
Comment 6: Commenters noted that,
while the 2019 definition may reflect
the Services’ longstanding practice,
codifying the two-pronged test affects
agencies’ ability to fulfill their duties
under section 7. Many commenters
reiterated concerns raised during
rulemaking on the 2019 rule that
moving ongoing actions and their effects
from the ‘‘effects of the action’’ to the
‘‘environmental baseline’’ undermines
the Services’ ability to conduct a
thorough jeopardy analysis.
Commenters argue that moving ongoing
activities to the ‘‘environmental
baseline’’ will exclude them from the
jeopardy analysis.
Response: The Services respectfully
disagree with the comments that use of
the two-part causation test affects the
ability of agencies to fulfill their section
7(a)(2) responsibilities. As we stated in
2019 and in the preamble to the 2023
proposed rule, the use of the two-part
causation test has been part of our
practice since the 1986 final rule on
interagency cooperation (51 FR 19926 at
19933; June 3, 1986) (the Services did
not define ‘‘effects of the action’’ in the
original 1978 section 7 regulations (43
FR 870; January 4, 1978)). Consultation
under the Act is conducted on the
effects of the entire proposed action (all
consequences caused by the proposed
action). To further clarify, proposed
actions for ongoing activities, even those
that incrementally improve conditions
may still have adverse effects (i.e., are
not wholly beneficial), and require
formal consultation. The analysis of an
action’s effects is fact-based and
consultation-specific. In terms of the
jeopardy and destruction-or-adversemodification analyses, the Services
consider the effects of the action added
to the ‘‘environmental baseline’’ and
cumulative effects in light of the status
of the species and critical habitat.
Therefore, removing the ‘‘environmental
baseline’’ definition from the definition
of ‘‘effects of the action’’ does not affect
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either jeopardy or destruction-oradverse-modification analyses, and the
Services decline the suggestion to retain
‘‘environmental baseline’’ in the ‘‘effects
of the action’’ definition. We provide
additional discussion of how ‘‘ongoing
activities’’ are considered for purposes
of the ‘‘environmental baseline’’ in the
‘‘environmental baseline’’ section of this
preamble below.
Comment 7: Other commenters
asserted that the ‘‘effects of the action’’
definition is overly broad and will
unnecessarily restrict future projects
requiring section 7 consultation because
of the need for the Services and Federal
action agencies to analyze an array of
effects that are unrelated or only
tangentially related to the proposed
action. Conversely, several commenters
asserted the proposed changes to the
definition specific to the two-part
causation test raise the bar for any
future review of the effects of a
proposed action without supporting
rationale as to why a higher bar is
needed. These commenters argue that
the ‘‘but for’’ and ‘‘reasonably certain to
occur’’ requirements of the two-part
causation test are too high given that
‘‘may affect’’ is the trigger for
consultation.
Response: The revisions made in the
2019 rule and the further minor
revisions in this final rule will not shift
the scope of effects we consider under
our revised definition of ‘‘effects of the
action.’’ Therefore, as explained in the
2019 rule, our analyses will neither
raise nor lower the bar for the scope of
analysis of effects that has been in place
since 1986. All the effects of the action
considered since the 1986 revisions to
the definition are still included in the
scope of ‘‘effects of the action,’’ and no
other effects or activities that are not
caused by the proposed Federal action
will be included. To the extent that
commenters are asserting we should
further restrict the definition of ‘‘effects
of the action’’ to only those effects
within the jurisdiction or control of the
Federal agency, we decline this request
for the same reasons discussed in 2019.
See 84 FR 44991, August 27, 2019. The
revisions to the definition and the
changes made in 2019 did not change
existing practice in determining the
effects of the action, which includes
what were referred to as direct, indirect,
interrelated, and interdependent in the
1986 definition of ‘‘effects of the
action.’’ The improvements to the
definition in the 2019 rule and in this
revision include the explicit
establishment of the two-part test for
effects, which codifies the Services’
longstanding analysis in a clear
standard in order to be more consistent
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and transparent. The Services do not
find that the 2019 definition or the
revised definition in this rule narrows
or broadens the scope of the effects that
would be considered in a section 7(a)(2)
consultation. Similar comments were
made relating to § 402.17; please see our
responses pertaining to comments on
that section of the proposed rule below
in this preamble.
Comment 8: One commenter argued
that removing the definition of
‘‘reasonably certain to occur’’ while
leaving in the concept that effects are
not bound by time or space will create
an unworkable burden on the consulting
agency because an agency will not be
able to evaluate all possible effects.
Eliminating the definition of
‘‘reasonably certain’’ removes the twotier system for identifying effects.
Response: The Services are retaining
‘‘reasonably certain to occur’’ in the
revisions to the ‘‘effects of the action’’
definition as part of the two-part
causation test. As discussed above, the
revisions to the definition in this final
rule will not shift the scope of effects we
consider in section 7(a)(2) consultations.
In addition, while we provided
guidance on the factors to consider
when determining whether other
activities are ‘‘reasonably certain to
occur,’’ the Services did not define the
term and do not intend to define it
because we are not setting limits on the
types of activities that are reasonably
certain to occur. We intend to provide
further guidance in an updated
Consultation Handbook. See also our
response to comments related to
§ 402.17.
Comment 9: Several commenters
recommended retaining § 402.17 and
the reference to it in the ‘‘effects of the
action’’ definition or incorporating the
content of § 402.17 in the definition if
the section is removed from the
regulations. Commenters also
recommended examples for defining
when an activity is reasonably certain to
occur and guidance for action agencies
and the Services to ensure consistency
in the application of the test. In
addition, commenters suggested
regulatory language that considers
additional factors such as the proximity
of the action in relation to the effect,
geographical distribution of effects,
timing of the effect in relation to
sensitive periods of a species’ life cycle,
the nature and duration of the effect,
and disturbance frequency as described
in the 1998 Consultation Handbook
discussion on the multi-factor tests to
analyze the effects of a proposed action
and related activities on species and
critical habitat. Conversely, another
commenter supported the removal of
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§ 402.17 but encouraged the Services to
work towards a stricter, quantifiable
definition of ‘‘reasonably certain to
occur.’’
Response: The Services support the
recommendation to provide examples
for defining when an activity is
reasonably certain to occur and
guidance on application of the two-part
causation test. We believe this
information is more appropriately
addressed in an update to the
Consultation Handbook rather than
regulatory text. The Services update to
the Consultation Handbook will
incorporate changes to the regulations
since the handbook was issued in 1998.
For comments related to § 402.17, please
see that section of the preamble below.
Comment 10: Some commenters
indicated that the proposed changes to
the ‘‘effects of the action’’ definition
will cause greater uncertainty in terms
of what to include in the effects of the
action. Several also noted that the
addition of the phrase ‘‘but that are not
part of the action’’ to the definition is
unclear and recommended that
guidance be created by the Services to
ensure the interpretation of ‘‘not part of
the action’’ is consistent across offices
and to clarify the scope or extent of
activities outside the proposed action
that will be analyzed. Conversely, other
commenters believe the addition of ‘‘but
that are not part of the action’’ is a
helpful clarification and recommend
further modification of the definition to
clarify that the two-part causation test
does not apply to the proposed action
itself (as opposed to other activities
caused by, but that are not part of, the
proposed action).
Response: As discussed previously,
the Services believe the minor revisions
to the definition in this final rule will
not shift the scope of effects considered
in section 7(a)(2) consultations. The
addition of ‘‘but that are not part of the
action’’ to the definition is meant to
maintain the scope of the analysis of the
effects by clarifying that it includes
other activities caused by the proposed
action that are reasonably certain to
occur. The Services respectfully decline
the suggestion to further refine the
definition to explicitly state that the
two-part causation test does not apply to
the proposed action itself but agree that
guidance on the application of the twopart causation test is warranted and
anticipate including this information in
the updated Consultation Handbook.
Comment 11: One commenter argued
that the ‘‘but for’’ causation standard
casts a wider net than a ‘‘proximate
cause’’ standard. The commenter
maintains that a proximate cause is a
cause that directly produces an event
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and without which the event would not
have occurred. ‘‘But for’’ causation
treats the effects of an action as a series
of events and circumstances that can be
traced to a particular action but without
regard to whether either the agency
action is responsible for or the agency
has jurisdiction or authority to control
those events and circumstances. The
Services should revise the proposed
‘‘effects of the action’’ definition to
eliminate the ‘‘but for’’ causation
language and adopt a proximate cause
standard.
Response: There is no Federal
standard definition for ‘‘proximate
cause,’’ a term that developed through
judicial decisions. Proximate cause can
differ if used for assigning liability in
criminal action as compared to civil
matters, neither of which is directly
relevant in the section 7(a)(2) context of
evaluating the anticipated effects of
proposed Federal actions on listed
species and critical habitat. We declined
to include a proximate cause element in
our definition of ‘‘effects of the action’’
in 2019 and do so again here. See 84 FR
at 44990–44991, August 27, 2019. As
discussed above, the ‘‘but for’’ causation
standard is, in essence, a factual
causation standard. As part of regular
practice in conducting a complete
analysis of the effects of proposed
Federal actions, the Services’ practice is
to apply the concepts of ‘‘but for’’
causation and ‘‘reasonably certain to
occur’’ when identifying the effects of
the action. The changes to the ‘‘effects
of the action’’ definition in our 2019
rule merely made them explicit. The
Services’ scope of the effects analysis
did not change with the 2019 change to
the ‘‘effects of the action’’ definition,
and we do not anticipate a change in
scope because of the minor changes to
the ‘‘effects of the action’’ in this final
rule.
Comment 12: Several commenters
stated that the ‘‘reasonably certain to
occur’’ limitation applied only to
‘‘indirect effects’’ and ‘‘cumulative
effects’’ prior to the 2019 rule’s ‘‘effects
of the action’’ definition. They noted
that this situation leads to exclusion of
effects, but that uncertainty or data gaps
should not be used to limit
consideration of effects of a proposed
agency action. They further argue that
the reasonable certainty standard could
conflict with the requirement to use the
best available scientific and commercial
data, particularly where there may be
incomplete information or emerging
science.
Response: We reaffirm what we stated
in the 2019 rule, that the two-part
effects test adopted at that time does not
alter the scope of the Services’ analysis.
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The Services also agree that, in applying
our two-part effects test, we must use
the best available scientific and
commercial data, which is expressly
required by the statute and as part of our
regulations at 50 CFR 402.14(g)(8).
Consistent with considering the best
available information, we will
necessarily be required to exercise
scientific judgment to resolve
uncertainties and information gaps in
applying our effects test. This process
does not ignore effects but instead
ensures that we adequately consider the
range of effects caused by the proposed
action. For further discussion relevant
to this comment, please see the
responses to comments regarding
§ 402.17.
Comment 13: Several commenters
noted that the proposed change to the
‘‘effects of the action’’ definition will
remove the framework for determining
whether an activity or consequence is
‘‘reasonably certain to occur’’ that is
critical for determining what to include
in an agency’s effects analysis,
including when applying the standard
to larger scales such as a program.
Response: The Services respectfully
disagree with these comments; the
definition and current practice
adequately capture the ‘‘reasonably
certain to occur’’ standard. As described
in the 2019 rule, a section 7(a)(2)
consultation performed at the level of a
regional or national program is often
referred to as a programmatic
consultation, and often the proposed
action falls into the category referred to
as a framework programmatic action
described in our 2015 rule revising
incidental take statement regulations (80
FR 26832, May 11, 2015). In these
instances, the ‘‘but for’’ and ‘‘reasonably
certain to occur’’ parts of the test extend
to the consequences that would be
expected to occur under the program
generally, but not to the specifics of
actual projects that may receive future
authorization under the program. Effects
analyses at this more generalized level
are necessary because the Federal
agency often does not have specific
information about the number, location,
timing, frequency, precise methods, and
intensity of the site-specific actions or
activities for their program. We are able
to provide an informed effects analysis
at a more generalized level by analyzing
the project design criteria, best
management practices, standards and
guidelines, and other provisions the
program adopts to minimize the impact
of future actions under the program.
Alternatively, some Federal agencies
may be able to provide somewhat more
specific information on, e.g., the
numbers, timing, and location of
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activities under their plan or program.
In those instances, we may have
sufficient information to address not
only the generalized nature of the
program’s effects but also the specific
anticipated consequences that are
reasonably certain to occur from specific
actions that will be subsequently
authorized under the program.
Additional guidance regarding
application of the two-part causation
test (‘‘but for’’ and ‘‘reasonably certain
to occur’’) and programmatic
consultation will be included in the
updated Consultation Handbook. For
more general discussion of the removal
of the ‘‘reasonably certain to occur’’
framework provided by § 402.17, please
see the responses to comments on that
section in the preamble below.
Comment 14: Several commenters
noted that the requirement that a
‘‘reasonably certain to occur’’ finding be
based on ‘‘clear and substantial
information’’ has created confusion and
conflicts with the statutory requirement
to use the ‘‘best scientific and
commercial data available’’ and agreed
with the removal of § 402.17 in its
entirety. Another commenter supported
retaining all of § 402.17, including the
requirement to use ‘‘clear and
substantial information,’’ noting that
this language supports the requirement
to use the ‘‘best scientific and
commercial data available.’’
Response: The Services are removing
§ 402.17 via this final rule. The use of
the terms ‘‘clear and substantial
information’’ creates confusion with the
statutory requirement to use the ‘‘best
scientific and commercial data
available.’’ We disagree with the
comment that retaining the ‘‘clear and
substantial’’ language in § 402.17
supports the required use of the ‘‘best
scientific and commercial data
available.’’ Please see the discussion of
the term ‘‘clear and substantial’’
provided in response to comments on
§ 402.17.
Definition of ‘‘Environmental Baseline’’
As proposed, we are revising the third
sentence of the definition of
‘‘environmental baseline’’ by replacing
the term ‘‘consequences’’ with the word
‘‘impacts,’’ removing the term
‘‘ongoing,’’ and adding the term
‘‘Federal’’ in two locations. The third
sentence now reads: The impacts to
listed species or designated critical
habitat from Federal agency activities or
existing Federal agency facilities that
are not within the agency’s discretion to
modify are part of the environmental
baseline. The changes to the definition
of ‘‘environmental baseline’’ in this rule
are narrow and serve to clarify the
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intended application and scope of the
final sentence that was added in 2019.
The Services received a wide variety of
comments on our proposed revisions to
the definition of ‘‘environmental
baseline,’’ most of which were focused
on the original change in the 2019 rule.
These comments ranged from support of
the 2023 proposed revisions, requests to
retain the original final sentence of the
2019 definition, and requests to remove
the entire 2019 definition and revert to
the definition as it stood prior to the
2019 rule. Commenters in support of the
proposed revisions to the 2019
definition generally agreed with the
reasoning of the Services and in some
cases requested additional guidance on
the application of the definition. The
comments in opposition to the proposed
revisions to the 2019 definition
generally fell under two main themes of
comments—both generally focused on
the final sentence of the 2019 definition.
One group focused specifically on the
Services’ revisions to the final sentence
of the 2019 definition and whether and
how the role of Federal agency
discretion should be considered during
a section 7 consultation. The second
group focused on the proposed language
changes to the final sentence, with most
attention on opposition to the removal
of the word ‘‘ongoing.’’ With regard to
the request for additional guidance, the
Services intend to provide additional
guidance and examples in an updated
Consultation Handbook.
Comment 1: Several commenters
requested the Services revert entirely to
the definition of ‘‘environmental
baseline’’ as it stood prior to the 2019
regulations by either (1) pointing to
other issues as described in other
comments below or (2) attributing the
entire definition to an earlier
Presidential administration despite
much of the text of the definition
stemming from the pre-2019 regulations.
Response: The Services decline to
return to the pre-2019 ‘‘environmental
baseline’’ definition for several reasons.
First, the 2019 definition retained much
of the language of the pre-2019
definition, while also making the
definition a stand-alone definition
within the § 402.02 regulations. This
regulatory change did not change the
role of the ‘‘environmental baseline’’ in
the section 7 consultation analysis, and
the Services also reaffirmed in
§ 402.14(g)(4) that the analysis
presented in the biological opinion must
add the ‘‘effects of the action’’ to the
‘‘environmental baseline’’ and
‘‘cumulative effects.’’ This regulatory
revision also removed a circular
reference that occurred when the
‘‘environmental baseline’’ definition
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was previously embedded within the
‘‘effects of the action’’ definition. By
creating two separate definitions of
‘‘effects of the action’’ and
‘‘environmental baseline,’’ we are
underscoring the separate nature of the
analyses which are then to be combined
into an aggregate assessment.
Second, by clarifying that those
portions of a Federal activity or facility
that are outside the control of the
Federal agency to modify are included
in the ‘‘environmental baseline,’’ the
Services highlighted that the effects of
discretionary activities or facilities
contained in the proposed action would
be evaluated within the context of
(added to) the baseline and ‘‘cumulative
effects’’ in order to determine whether
those added effects were or were not
‘‘likely to jeopardize’’ a species. Third,
in the 2019 ‘‘environmental baseline’’
definition, the Services clarified that the
primary purpose of the ‘‘environmental
baseline’’ is to present the condition of
the listed species and critical habitat in
the action area as impacted by the
various factors of the ‘‘environmental
baseline.’’ Prior interpretations of the
pre-2019 definition could indicate that
the baseline was simply a description of
the impacts of those factors on the
action area—missing the important
connection to the condition of the
species and critical habitat that may be
further affected by the effects of a
Federal action. With the 2019 rule, the
Services highlighted two important
elements: (1) That the purpose of the
baseline was to assess the condition of
the species and critical habitat and (2)
that this condition assessment was
taken into consideration prior to adding
the consequences of the proposed action
(which in some instances might be the
future continued, discretionary
operations of a facility such as a dam).
These two elements provide the
foundation to which the Services add
the effects of the proposed action.
Comment 2: Some commenters
reiterated their 2019 comments that the
2019 revised definition of
‘‘environmental baseline’’ hides or
ignores the significant impacts of past
and present activities and facilities,
some of which may have played a
significant role in the present status of
the species and its critical habitat,
asserting that the species is thus in
‘‘baseline jeopardy.’’ Further,
commenters seem to imply that only
large actions could then likely
jeopardize listed species or destroy or
adversely modify critical habitat.
Response: The Services disagree and
have revised the definition’s final
sentence to clarify those aspects of a
Federal action involving Federal
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facilities and activities that are in the
‘‘environmental baseline’’ and those that
will be considered as ‘‘effects of the
action.’’ As required by the regulations,
the ‘‘effects of the action’’ will be added
to the ‘‘environmental baseline,’’ thus
the effects to a listed species or critical
habitat already impacted by the
‘‘environmental baseline’’ will be
considered in full light of the condition
of that species and critical habitat. In
addition to the overall status of the
species, the relative health and viability
of the species absent the proposed
action in the action area is the starting
point for the assessment and that
condition informs the ability of the
species to withstand further
perturbations to its numbers,
reproduction, and distribution. As we
noted in our responses to comments in
the 2019 rule and re-affirm here, the
statute and regulations do not contain
any provisions under which a species
should be found to be already (preaction) ‘‘in baseline jeopardy,’’ such that
any additional adverse impacts must be
found to meet the regulatory standards
for ‘‘jeopardize the continued existence
of’’ or ‘‘destruction or adverse
modification.’’ As we further noted in
2019, and reaffirm here, the Services do
not dispute that some listed species are
more imperiled than others, and that for
some very rare or very imperiled
species, the amount of adverse effects to
the species or its critical habitat that can
occur without triggering a jeopardy or
‘‘destruction or adverse modification’’
determination may be small. See 84 FR
44976 at 44987, August 27, 2019.
Comment 3: A few commenters
focused on the issue of Federal agency
discretion and whether it was
appropriate to further consider whether
a Federal agency had discretion over
some or all of its proposed action once
consultation was initiated.
Response: Consultation under section
7(a)(2) is required when a discretionary
Federal action may affect a listed
species or designated critical habitat. As
part of that process, it is important that
the Federal action agency and the
Services correctly identify the Federal
action. Following this step, it is then
also important to assess the ‘‘effects of
the action,’’ which include the activities
caused by (but are not part of) the
proposed action and the effects of those
activities. As the Services noted in the
2019 rule, and re-affirm here, the courts
and the Services have concluded that, in
general, the effects on listed species and
critical habitat attributable to Federal
agency activities and existing Federal
agency facilities are part of the
‘‘environmental baseline’’ when the
action agency has no discretion to
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modify them. For example, with respect
to existing Federal facilities, such as a
dam, courts have recognized that effects
from the existence of the dam can
properly be considered a past and
present impact included in the
‘‘environmental baseline’’ when the
Federal agency lacks discretion to
modify the dam. See, e.g., Friends of
River v. NMFS, 293 F. Supp. 3d 1151,
1166 (E.D. Cal. 2018). Under these lines
of cases involving dams, when a Federal
agency has authority for managing or
operating a dam, but lacks discretion to
remove or modify the physical structure
of the dam, any impacts from the
physical presence of the dam in the
river are appropriately placed in the
‘‘environmental baseline’’ and are not
considered an ‘‘effect of the action’’
under consultation. Thus, it is
important to note that the above
analytical process for determining the
‘‘effects of the action’’ does not include
consideration of the discretion of the
Federal action agency over the activities
or facilities of another Federal agency or
any other third party. To the extent that
any effects are caused by the proposed
Federal action, per the ‘‘but for’’ and
‘‘reasonably certain to occur’’ standards
of the ‘‘effects of the action’’ definition,
they would be considered as ‘‘effects of
the action’’ in the consultation analyses.
Those effects that are not caused by the
Federal action would be included in the
‘‘environmental baseline’’ or
‘‘cumulative effects’’ as appropriate.
Comment 4: Several commenters
advocated that the question of
discretion should also apply to third
party actions or the activities or
facilities that are the subject of a Federal
action, such as permitting or funding,
with some commenters providing sitespecific examples.
Response: As we noted above in this
preamble and in the proposed rule, this
determination is made on a case-by-case
basis as determined by discussions
between the Services and the
appropriate Federal agency on the basis
of the information and evidence
available at the time. In most section 7
consultations, the question of discretion
is not a factor and, indeed, several
examples raised by commenters were on
large-scale Federal activities such as
water operations or land management,
which make up a relatively small
portion of ESA section 7 consultations.
Many of the location-, activity-, or
facility-specific concerns raised by some
commenters are beyond the scope of
this rule and best handled through sitespecific consultations.
To answer some of the general
questions or points of confusion, the
Services note that the current revisions
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are minor in scope to further clarify the
intent of the final sentence added to the
‘‘environmental baseline’’ definition in
2019 and retained in this rule. These
revisions do not modify current practice
related to how past and present nonFederal actions are represented in the
summary of impacts of the
‘‘environmental baseline’’ on the
condition of listed species and critical
habitat. In addition, the revisions do not
alter current practice related to the
analysis of the effects of a proposed
discretionary Federal action that
involves the authorization or funding of
an action taken by a non-Federal entity
such as a private landowner. The
Services decline to speculate or
generalize in a response to public
comments as to the breadth of scope of
agency discretion in all of these actions
as these are case-specific
determinations.
Comment 5: Some commenters
requested additional discussion or
guidance on how the determination of
discretion would proceed. Another
commenter argued that if discretion
continues to be a factor when
determining the ‘‘environmental
baseline’’ the Services should retain the
authority to make the determination on
their own.
Response: As we noted in the
proposed rule, we will work closely
with the Federal action agency to
understand the scope of their discretion
in a particular case to inform those
aspects of a Federal agency activity or
facility that are a part of the
‘‘environmental baseline.’’ See 88 FR
40753 at 40756, June 22, 203. Typically,
Federal discretion over an action or
facility is defined within all the laws
and regulations under which the action
will be taken. Where questions
regarding discretion arise during a
consultation, the supporting record of
the consultation should include the
documentation upon which the
separation between discretionary
Federal agency action and those nondiscretionary activities or facilities was
made. While the Services ultimately
determine the content and scope of the
analyses in our biological opinions,
generally we would defer to the Federal
action agency’s supported interpretation
of their authorities for purposes of
identifying what non-discretionary
Federal facilities and activities are
included in the ‘‘environmental
baseline.’’ See id. As a general matter,
the Services and an action agency can
come to a specific understanding about
the nature of an action agency’s
discretion and how to treat both effects
of past and future actions stemming
from the action agency’s decisions.
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Comment 6: One commenter objected
to the definitions of ‘‘environmental
baseline’’ and ‘‘effects of the action’’
because the commenter asserts that the
effects of the action would include even
those consequences of the Federal
action that have occurred in the past
and that the action agency and any
proponent do not intend to change
going forward and that the approach
does not allow for adaptation due to
climate change. The commenter also
requested that the Services define the
parameters of actions and effects for
ongoing Federal project operations such
that: (1) the proposed action should be
the future discretionary actions related
to the operation of the existing facilities
in the existing environment; (2) the
effects of the action should focus on the
manner in which the current status of
the species and existing condition of its
habitat will be affected by the proposed
future discretionary actions; and (3) the
examination of effects of the
discretionary proposed action does not
include the baseline effects of or from
the original construction of the facilities
or the past operations and maintenance
activities that have occurred.
Response: The Services decline to
define the parameters of the
‘‘environmental baseline’’ and ‘‘effects
of the action’’ as the commenter
requests. The Services’ definitions of
‘‘effects of the action’’ and
‘‘environmental baseline’’ are crafted to
distinguish between those impacts that
are properly considered as the
‘‘environmental baseline’’ and those
consequences of a proposed
discretionary Federal action that would
be considered the ‘‘effects of the
action.’’ Further, the baseline includes
the original construction of facilities
and past operations and maintenance
that have occurred. However, the
proposed future discretionary actions
are all of the discretionary actions that
will occur—even those ongoing
discretionary actions for which no
changes are envisioned. As we noted in
the proposed rule, ‘‘the Federal agency
may propose to continue the operations
of the dam’s flow regime with no
changes from past practices, or with
only minor changes. Regardless of their
‘‘ongoing’’ nature, all the consequences
of the proposed discretionary operations
of the structure are ‘‘effects of the
action’’ (88 FR 40753 at 40756, June 22,
2023). In other words, those future
consequences of discretionary
operations are properly considered
‘‘effects of the action’’ even if those
similar operations that occurred in the
past are included in the ‘‘environmental
baseline.’’ A full assessment of the
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proposed Federal action will ultimately
include the ‘‘effects of the action’’ added
to the ‘‘environmental baseline’’ and
any anticipated ‘‘cumulative effects.’’
Regarding the comment about
consideration of climate change and the
consideration of action effects and the
‘‘environmental baseline,’’ the Services
note that climate change is considered
as appropriate in all ESA section 7
consultations, including how past,
present, and future conditions are
impacted and the resulting ‘‘effects of
the action’’ in context with those
impacts.
Comment 7: One commenter
requested information regarding future
planned revisions to the ‘‘environmental
baseline’’ definition.
Response: The Services note that the
commenter may have misread the
proposed rule. We do not anticipate
further refining the definition of
‘‘environmental baseline.’’
Comment 8: Several commenters
raised the issue of existing structures
and how they would be considered
under these regulations. Commenters
inquired whether the 2019 regulations
and the regulations in this rule allow for
all existing structures to be included in
the ‘‘environmental baseline.’’ Some
commenters requested that the Services
explicitly include that direction in the
regulations. In other instances,
commenters were concerned that the
definition allows for past harms to the
species and habitat to be ignored.
Response: The Services note that
neither the 2019 definition of
‘‘environmental baseline,’’ nor the
minor revisions adopted in this final
rule, change current or past practice and
thus do not treat existing structures
differently than under the prior
regulations. The final sentence of the
definition in the 2019 rule was intended
to clarify current practice and how the
discretionary and non-discretionary
portions of a Federal activity or facility
are considered in the baseline and
‘‘effects of the action.’’ The Services
decline to state that all existing
structures are included in the
‘‘environmental baseline’’; existing
structures may be included in the
analysis of the ‘‘effects of the action’’
depending on the Federal action under
consultation. Whether an existing
structure is in the baseline is a casespecific determination that includes
discretion, prior consultations, and
temporal considerations.
Regarding concerns that the current
definition allows for past impacts to be
ignored by residing in the baseline, the
Services restate that the 2019 baseline
definition revision, which primarily
made the definition a stand-alone
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definition versus an embedded
definition within the ‘‘effects of the
action,’’ along with current regulations
as amended, clarifies longstanding past
and current practice in the treatment of
those impacts that are a part of the
‘‘environmental baseline.’’ Importantly,
by accounting for these past and present
impacts in the baseline and then adding
the effects of the proposed action to the
‘‘environmental baseline,’’ the Services
do not ‘‘let Federal agencies off the
hook,’’ as suggested by some
commenters, but instead consider the
consequences of a Federal action in the
context of the past and present impacts
to listed species and critical habitat in
the action area.
The ESA section 7(a)(2) consultation
process applies only when a Federal
agency proposes to authorize, fund, or
carry out a discretionary action that may
affect a listed species or designated
critical habitat. At that time, the effects
of the proposed Federal action are
analyzed and added to the impacts of
the ‘‘environmental baseline,’’ which
includes the past impacts raised by
commenters. However, the section
7(a)(2) consultation process is not
intended to ‘‘right the wrongs of the
past’’ but to ensure that proposed
Federal actions are ‘‘not likely to
jeopardize the continued existence of a
listed species or result in the
destruction or adverse modification of
critical habitat.’’ As noted elsewhere,
the health and viability of the species
absent the proposed action is the
starting point for the assessment and
that condition informs the ability of the
species to withstand further
perturbations to its numbers,
reproduction, or distribution. Thus, past
impacts and the resulting condition of
the listed species and critical habitat are
crucial to the overall analysis in the
section 7 consultation.
Comment 9: A few commenters
requested deletion of the final sentence
of the ‘‘environmental baseline’’
definition given the purported
confusion it creates or perceived
inappropriate narrowing or expansion of
the scope of the definition. Others
suggested different revisions from the
Services’ proposed minor amendments
to the language.
Response: As noted previously, the
sentence was added to distinguish those
cases where an existing Federal facility
or activity must be considered as part of
the ‘‘effects of the action’’ versus past
argued interpretations or confusion that
all existing facilities and activities were
de facto in the baseline. By evaluating
the effects of discretionary actions
against the backdrop of the
‘‘environmental baseline’’ and
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‘‘cumulative effects’’ (future nonFederal activities that are reasonably
certain to occur), the Services are able
to assess whether the proposed action is
‘‘likely to jeopardize a listed species’’ or
destroy or adversely modify critical
habitat. This evaluation applies whether
the proposed action is a novel action
upon the landscape or a proposed action
that includes another 10 years of the
same types of consequences that have
already led to species declines and
habitat degradation.
The Services appreciate the suggested
revisions to the final sentence of the
‘‘environmental baseline’’ definition,
which some commenters offered in the
event that their requests to delete the
sentence were declined. However, the
suggested revisions unintentionally
resulted in the very concerns raised by
the commenters, and in one case, would
have inappropriately narrowed the
scope of the ‘‘environmental baseline.’’
In that case, a commenter suggested not
including in the ‘‘environmental
baseline’’ past or completed Federal
actions that have not undergone and
completed section 7 consultation. The
Services decline to accept this proposed
revision, as it could have an unintended
and significant negative effect on listed
species and critical habitat. By removing
from the ‘‘environmental baseline’’ the
impacts of those past or completed
Federal actions (some of which pre-date
the ESA itself and have no discretionary
Federal action to trigger consultation),
the Services would be restricted to
looking at an incomplete
‘‘environmental baseline,’’ and thus an
incomplete jeopardy analysis.
Comment 10: The Services have
revised the final sentence of the
‘‘environmental baseline’’ definition to
replace the term ‘‘consequences’’ with
‘‘impacts.’’ We received comments both
supporting and opposing this revision.
While most understood the Services’
intent to distinguish between those two
terms, further explanation of the
revision and the terms was requested.
Response: The Services appreciate the
support for this revision to the final
sentence of the ‘‘environmental
baseline’’ definition. The Services
understand the concern about the initial
confusion with use of the term
‘‘consequences’’ to refer to those effects
of a Federal action that were caused by
the Federal action. The Services
proposed to change the word
‘‘consequences’’ to ‘‘impacts’’ in the
final sentence of the ‘‘environmental
baseline’’ definition to address this
confusion. More specifically, the
‘‘environmental baseline’’ and the
‘‘effects of the action’’ are two distinct
assessments. Both are ultimately
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aggregated when the ‘‘effects of the
action’’ are added to the ‘‘environmental
baseline.’’ However, the Services sought
to reduce confusion and overlap
between the two definitions by retaining
the use of ‘‘consequences’’ when
discussing the effects of the proposed
Federal action and using ‘‘impacts’’
when discussing the ‘‘environmental
baseline,’’ even though we consider
‘‘consequences,’’ ‘‘impacts,’’ and
‘‘effects’’ to be equivalent terms.
Comment 11: One commenter
requested that the ‘‘environmental
baseline’’ not be limited to Federal
projects, but instead include all projects
that pre-date the ESA and all projects
that have previously undergone ESA
section 7 consultation. Further, the
commenter requested clarification
regarding the treatment of existing nonFederal projects (e.g., residential or
commercial piers and floats and private
bulkheads), including the concept of
‘‘useful life’’ for both Federal and nonFederal actions.
Response: The Services affirm that the
current definition of ‘‘environmental
baseline’’ is not limited to just Federal
projects, but we decline to state that ‘‘all
projects’’ are automatically included in
the ‘‘environmental baseline.’’ The
definition includes (in relevant part,)
‘‘the past and present impacts of all
Federal, State, or private actions and
other human activities in the action
area, the anticipated impacts of all
proposed Federal projects in the action
area that have already undergone formal
or early section 7 consultation, and the
impact of State or private actions which
are contemporaneous with the
consultation process’’ (50 CFR 402.02).
The ‘‘Federal projects’’ in this excerpt
refers to all actions proposed to be
authorized, funded, or carried out by a
Federal agency that have undergone
consultation, which includes Federal
permits for private or commercial
actions. Because the definition of
‘‘environmental baseline,’’ including the
minor revisions in this rule, does not
change current practice, existing
structures would be treated the same as
they are under both current and prior
practice (i.e., before the 2019 regulation
revisions). The Services decline to speak
to the ‘‘useful life’’ of structures and
how that issue would be treated
nationwide as both are beyond the
scope of this rule and would be
addressed on a case-specific basis.
Comment 12: The Services received a
wide range of comments on the
proposed revision to the final sentence
of ‘‘environmental baseline’’ to remove
the word ‘‘ongoing,’’ and to insert the
word ‘‘Federal’’ in two places. Some
commenters opposed the revision
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because they opposed application of the
standard to only Federal activities or
facilities. A few commenters requested
that ‘‘ongoing’’ be retained because they
assert that all activities or facilities that
are ‘‘ongoing’’ should be included in the
‘‘environmental baseline.’’ Some
commenters opposed the revision
because the result would be either that
more activities and facilities would be
‘‘hidden’’ in the ‘‘environmental
baseline’’ and not in the ‘‘effects of the
action’’ or fewer would be in the
‘‘environmental baseline’’ and included
within the ‘‘effects of the action.’’
Response: Both the 2019 regulations
and the regulations in this rule clarify
existing practice related to the
‘‘environmental baseline.’’ While we
cannot comment on the fact or sitespecific circumstances that some
commenters raise, every ESA section
7(a)(2) consultation is unique and based
on what has been proposed by a Federal
agency to authorize, fund, or carry out
and the nature of the Federal agency’s
discretion and authority. Some of the
examples raised may have included
consultations that appropriately
identified the Federal action and
‘‘effects of the action’’ based upon
specific facts, applicable laws or other
authorities, and prior consultation
history. Thus, the conclusions in those
examples do not necessarily apply in
other instances, and it is incumbent on
the Services and the Federal action
agency to carefully describe and discuss
what the Federal action may be in any
particular case.
Several commenters were focused on
the ‘‘ongoing’’ nature of an activity for
determining whether that activity is
evaluated in the environmental
baseline. The Services proposed to
remove the term ‘‘ongoing’’ and insert
the term ‘‘Federal’’ because our
experience implementing the 2019 rule
echoes this same unintended focus on
‘‘ongoing’’ and not on the relevant
portions of the sentence (i.e., the scope
of the Federal agency’s discretion). As
explained in our proposed rulemaking,
we found that removal of the term
‘‘ongoing’’ from the relevant portion of
the regulatory definition of
‘‘environmental baseline’’ would,
instead, shift the focus to the
appropriate factor for determining
whether an activity is part of the
‘‘environmental baseline’’—whether or
not the action agency has discretion to
modify that activity. The Services
decline to reinstate the term ‘‘ongoing’’
or remove the term ‘‘Federal’’ to avoid
this improper focus in the future.
The Services also re-affirm that the
pre-2019 definition, the 2019 definition,
and the minor revisions in this rule
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maintain the same standards for the
Federal, State, private, and other human
activities that are considered in the
‘‘environmental baseline’’ and the scope
of the effects of proposed Federal
actions that will be analyzed as ‘‘effects
of the action.’’ Existing non-Federal
structures and activities occurring
within an ‘‘action area’’ are a part of the
‘‘environmental baseline,’’ unless a
Federal agency proposes to authorize,
fund, or carry out an action related to
the structure or activity. At that time,
the non-Federal structure or activity
may be subject to an ESA consultation
if the proposed Federal action ‘‘may
affect’’ listed species or designated
critical habitat. Nothing in the revised
‘‘environmental baseline’’ definition
changes this requirement of the statute.
Despite the assertion of some
commenters, if a Federal agency is
proposing to authorize, fund, or carry
out a repair or modification to a nonFederal structure, the consultation must
evaluate the effects of the action,
including all consequences to listed
species or critical habitat caused by the
proposed action.
Although commenters cite an
example from the 1998 Consultation
Handbook, that example fails to account
for the wide variety of Federal actions
that may occur related to an existing
Federal facility, and thus one approach
does not fit all situations. The Services
again decline to universally state that all
‘‘ongoing’’ facilities or activities are in
the ‘‘environmental baseline.’’ First, the
term ‘‘ongoing’’ itself creates confusion
when a longstanding operation that is
within the discretionary authority of a
Federal agency is being proposed for
renewal. The prior operations are within
the ‘‘environmental baseline,’’ but the
future operations, which are part of the
discretionary proposed action, are
properly considered as effects of the
action. In addition, the Services and
Federal action agencies should work
closely to examine and understand the
consequences of a proposed Federal
action. In some instances, the nature of
the action may indeed result in a similar
finding as the turbine example cited
from the 1998 Consultation Handbook
(See 1998 ESA Consultation Handbook,
Chapter 4, Interrelated and
Interdependent Actions p. 4–27). In
other instances, the nature of the action
may encompass more of the operations
or even structure of the facility itself. It
is beyond the scope of this rule to
provide examples that cover all such
possibilities. Case-specific
circumstances must be considered and
should be done in collaboration
between the Services and the Federal
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action agency as discussed in the 2019
rule and the 2023 proposed rule.
The Services also clarify that the 2019
regulatory amendments, and the minor
revisions in this final rule, do not
remove existing structures and
operations from the baseline as some
commenters suggested. Similarly, the
2019 and 2023 revisions do not move
most structures and operations to the
proposed action if they are not either
the proposed action itself or activities
caused by the proposed action. The full
definition of the ‘‘environmental
baseline’’ includes those past impacts or
Federal, State, and private actions in the
action area. The final sentence is
intended to address questions that have
arisen regarding the consideration of the
non-discretionary aspects of Federal
facilities or activities. In general,
Federal permitting and authorization of
existing non-Federal facilities and
activities is a discretionary action and
requires section 7(a)(2) consultation if
the proposed action may affect listed
species or critical habitat. The past
impacts of non-Federal facilities or nonFederal activities would be included in
the ‘‘environmental baseline’’ whereas
future consequences of the proposed
Federal authorization action for that
facility or activity would be the subject
of the consultation and ‘‘effects of the
action’’ analysis. In some instances, an
effects analysis may need to assess the
future and extended life of a structure,
yet the past existence and impacts of the
structure are included in the
‘‘environmental baseline.’’
The 2019 and current revisions to the
‘‘environmental baseline’’ definition do
not prescribe particular assumptions
that would be applied to all repair,
maintenance, or modification activities
proposed for authorization, funding, or
implementation by a Federal agency.
The consequences of such activities,
including whether a proposed action
extends the life of a structure or
operation, would be reviewed per the
standards of the ‘‘effects of the action’’
definition and may differ significantly
from case to case. Further, what was or
was not considered in prior
consultations, if any, may also vary. The
definition also does not prescribe how
the effects of structures past their useful
life would be analyzed as part of the
‘‘environmental baseline.’’ If those
structures are not the subject of the
consultation and are causing impacts to
the condition of listed species and
critical habitat in the action area, they
would be included in the baseline, but
it is beyond the scope of this rule to
further describe or prescribe how that
analysis would be done.
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Comment 13: The Services received
several comments specific to
consultations on projects in the Salish
Sea of Washington, an existing
programmatic consultation, a NMFS
2018 internal guidance document, and
the Puget Sound Nearshore Habitat
Conservation Calculator.
Response: Generally, these comments
are outside the scope of this rulemaking
action, and given that the regulations do
not alter current practice, the
regulations are not expected to alter the
consultations and tools raised by the
commenters. Regarding the National
Marine Fisheries Service, West Coast
Region, Internal Guidance on Assessing
the Effects of Structures in Endangered
Species Act Section 7 Consultation
(April 18, 2018), NMFS withdrew this
guidance after issuance of the January
2022, Department of the Army (Civil
Works) and the National Oceanic and
Atmospheric Administration
Memorandum. The 2022 Memorandum,
which is based on existing legal
requirements, is national in scope and
clarifies potential differences between
the U.S. Army Corps of Engineers Civil
Works projects and Regulatory Program
projects based on agency discretion. The
2022 memorandum is fully consistent
with the Services’ section 7 regulations,
including the definitions of ‘‘effects of
the action’’ and ‘‘environmental
baseline’’ as revised in this final rule.
The memorandum does not impose any
new or additional requirements on
action agencies, applicants, or NMFS,
and does not alter the existing
requirements relative to section 7
consultations. Commenters are correct
that future Federal actions related to
Federal or non-Federal facilities may
trigger an ESA consultation on the
proposed Federal action, but it is
beyond the scope of this rule to
speculate whether that consultation
would require mitigation under existing
programmatics or RPM offsetting
measures, costly or otherwise.
Comment 14: One commenter
questioned whether the modification to
the final sentence of the ‘‘environmental
baseline’’ definition forecloses the
consideration of what used to be
considered ‘‘interrelated’’ and
‘‘interdependent’’ actions as ‘‘effects of
the action.’’
Response: The Services appreciate the
commenter’s perspective on the possible
interpretation of the revised sentence. If
the activities of other Federal agencies
would be caused by the proposed
Federal action that is subject to
consultation, then they would properly
be considered as ‘‘effects of the action’’
and those Federal agencies should be
action agencies in the section 7(a)(2)
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consultation. Further, in situations
where there are multiple Federal
agencies taking actions (authorizing and
funding, for example) on the same nonFederal action, an efficient consultation
process could include all of these
agencies (even if one is designated as
the lead agency). Our interpretation and
application of the ‘‘environmental
baseline’’ and ‘‘effects of the action’’
definitions would not be a change in
practice. In most cases, other Federal
agency activities or facilities that are not
caused by the proposed Federal action
would be included within the
‘‘environmental baseline’’ (or subject to
their own ESA consultation as needed).
The Services decline to further revise
the final sentence but note the
commenter’s concern for potential
inclusion in further guidance.
Comment 15: One commenter was
concerned that the addition of
‘‘Federal’’ in the final sentence of the
‘‘environmental baseline’’ definition
restricted the ‘‘effects of the action’’ to
only the consequences where the
Federal action agency has the discretion
to modify the activity or facility.
Response: Commenters misconstrue
the effect of this revision. The Services
are clarifying that the scope of
application in the final sentence of
‘‘environmental baseline’’ is to Federal
action agency (or agencies) activities
and facilities. The inclusion of the word
‘‘Federal’’ does not alter the scope of the
definition of ‘‘effects of the action.’’ As
discussed in the ‘‘effects of the action’’
section above, if an activity or
consequence meets the two-part test for
an effect, then it is considered an ‘‘effect
of the action’’ regardless of whether that
activity or consequence is within the
control of the Federal agency.
Comment 16: One commenter was
concerned that the revision to the final
sentence of ‘‘environmental baseline’’
implies that facilities such as irrigation,
diking, and drainage infrastructure are
not within the ‘‘environmental
baseline,’’ and any future Federal
permitting, even for maintenance and
repair of existing infrastructure, would
require costly mitigation.
Response: Existing Federal and nonFederal facilities and their operations
are a part of the ‘‘environmental
baseline,’ as described in the definition
(in relevant part): ‘‘The environmental
baseline includes the past and present
impacts of all Federal, State, or private
actions and other human activities in
the action area’’ (50 CFR 402.02).
Commenters are correct that future
Federal actions related to Federal or
non-Federal facilities may require
consultation under section 7(a)(2) of the
ESA on the proposed Federal action,
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including a full analysis of the
consequences of the Federal actions and
activities caused by the Federal action.
If consultation is required under section
7(a)(2) of the Act, it would be subject to
the revisions of the implementing
regulations at 50 CFR part 402 by this
final rule, including revisions to the
scope of RPMs. However, it is beyond
the scope of this rule to speculate
whether that consultation would require
RPMs with offsetting measures that are
costly or otherwise.
Comment 17: One commenter
suggested a revision to the final
sentence for ‘‘environmental baseline.’’
The commenter recommended changing
‘‘The impacts to listed species or
designated critical habitat from Federal
agency activities or existing Federal
agency facilities that are not within the
agency’s discretion to modify are part of
the environmental baseline.’’ to ‘‘The
ongoing impacts to listed species or
designated critical habitat from existing
facilities or activities that are not caused
by the proposed action or that are not
within the Federal action agency’s
discretion to modify are part of the
environmental baseline.’’
Response: The Services decline to
accept the suggested edits to the third
sentence of the ‘‘environmental
baseline’’ definition. As we described in
the proposed rule, the original sentence
inadvertently caused confusion and a
focus on the term ‘‘ongoing’’ instead of
the Federal agency’s discretion to
modify their own facilities and
activities. However, the commenter’s
suggested language would inadvertently
include in the ‘‘environmental baseline’’
those facilities and activities that are
caused by the proposed action if the
Federal agency has no discretion to
modify them. Further, the language
suggested by the commenter could be
read also to include all or portions of
the very activities or facilities that are
the subject of the proposed Federal
action of funding or permitting. Both
results would improperly limit the
scope of the jeopardy or adverse
modification analysis. The Services’
definition clarifies that the past and
present impacts of existing activities
and facilities entirely unrelated to the
Federal action in the action area would
be in the ‘‘environmental baseline’’
whether they are Federal, State, private,
or other human activities.
Section 402.16—Reinitiation of
Consultation
As proposed, we are revising the text
at § 402.16(a) by deleting the words ‘‘or
by the Service’’ to clarify that the
responsibility and obligation to
reinitiate consultation lies with the
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Federal agency that retains discretionary
involvement or control over its action.
The text at § 402.16(a) now reads:
Reinitiation of consultation is required
and shall be requested by the Federal
agency, where discretionary Federal
involvement or control over the action
has been retained or is authorized by
law and . . . This revision will not
prevent the Services from notifying the
Federal agency if we conclude that
circumstances appear to warrant a
reinitiation of consultation.
Comment 1: Multiple commenters
opposed the deletion of the phrase ‘‘or
by the Service,’’ multiple other
commenters supported the removal of
‘‘or by the Service,’’ and others noted
that the Services are able to provide
technical assistance to Federal action
agencies when reinitiation is
appropriate and requested that the
regulations clarify the roles of the
Services and action agencies in the
‘‘Reinitiation of Consultation’’ section
(50 CFR 402.16(a)).
Response: We are removing the
language ‘‘or by the Service’’ because
the sentence as written creates
confusion as to the scope of the
authorities and roles of the Services
relative to the Federal action agency. As
explained in our 2019 rule and 2023
proposed rule, only the Federal action
agency has the authority and
responsibility to initiate or reinitiate
consultation when warranted. The
Services do not have the power to order
other agencies to initiate or reinitiate
consultation (Sierra Club v. Marsh, 816
F.2d 1376, 1386 (9th Cir. 1987); Defs. of
Wildlife v. Flowers, 414 F.3d 1066, 1070
(9th Cir. 2005); 51 FR 19949, June 3,
1986); instead, we are able to
recommend that the Federal action
agency reinitiate consultation. Because
the act of reinitiating consultation is
solely the responsibility of the Federal
action agency, removing ‘‘or by the
Service’’ in this portion of the
regulations clarifies that responsibility.
As noted in the 2023 proposed rule, the
Services may still notify the Federal
agency if circumstances warrant a
reinitiation of consultation. The
Services conclude that no additional
regulatory language is needed to address
this ability.
Comment 2: Two commenters
suggested that it would be appropriate
to delete § 402.16(b): One believes that
the regulations in that paragraph exceed
the Services’ authority to choose when
to reinitiate, and the other believes that
identifying only these exceptions is
arbitrary. Both stated that § 402.16(b) is
‘‘bad conservation policy.’’
Response: Section 402.16(b) was
added in the 2019 rule to address issues
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arising under Cottonwood
Environmental Law Center v. U.S. Forest
Service, 789 F.3d 1075 (9th Cir. 2015),
and to comport with the Wildfire
Suppression Funding and Forest
Management Activities Act, H.R. 1625,
Division O, which was included in the
Omnibus Appropriations bill for fiscal
year 2018. The 2018 statute exempted
land management plans prepared
pursuant to the Federal Land Policy
Management Act (FLPMA), 43 U.S.C.
1701 et seq., and the National Forest
Management Act (NFMA), 16 U.S.C.
1600 et seq., from reinitiation of
consultation when a new species is
listed or new critical habitat is
designated provided that any authorized
actions under the plan that may affect
listed species or critical habitat are
subject to their own site-specific
consultations. We respectfully disagree
that § 402.16(b) is ‘‘bad conservation
policy’’ because the regulations in that
paragraph allow the Services to focus
our limited resources on those sitespecific actions that may cause effects to
listed species and designated critical
habitat. As we noted in the 2019 rule,
the Bureau of Land Management and the
U.S. Forest Service (USFS) are required
to periodically update their land
management plans, at which time they
would consult on any newly listed
species or critical habitat.
Comment 3: One commenter
recommended that reinitiation of
consultation because of a new species
listing or critical habitat designation be
limited to that species or critical habitat,
unless one of the other conditions for
triggering reinitiation has been met.
Response: Informal or formal
consultations that are reinitiated on the
basis that the action may affect newly
listed species or newly designated
critical habitat are, in fact, limited to
evaluating the effects of the action on
that species or critical habitat, unless
another regulatory condition requiring
reinitiation applies.
Comment 4: The Services received
several comments urging us to make
changes to the 2019 regulatory revision
clarifying that the duty to reinitiate
consultation does not apply to certain
existing programmatic land
management plans prepared pursuant to
the FLPMA or the NFMA when a new
species is listed or new critical habitat
is designated that may be affected by the
plan. Some of the comments maintained
that the revision exceeded our authority
under the Act and did not support the
conservation purposes of the Act.
Response: The Services decline to
make changes to the 2019 regulatory
revision exempting certain land
management plans from the requirement
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to reinitiate consultation. The 2019
regulatory revision essentially
incorporates the exemption (and the
statutory conditions for applying that
exemption) enacted by Congress in the
2018 Wildfire Suppression Funding and
Forest Management Activities Act as
part of the 2018 Omnibus
Appropriations Act. Although the 2019
regulatory revision extended the
exemption to land management plans
issued under FLPMA, which were not
addressed in the 2018 Omnibus
Appropriations Act, the Services
disagree that we lack authority to
exempt these plans from the reinitiation
requirement established by our
regulations, not by statute. Because our
regulations clarify that the exemption
applies only if any action taken under
a FLPMA or NFMA land management
plan that may affect a newly listed
species or newly designated critical
habitat can be evaluated in a separate
section 7 consultation, we find that this
regulatory provision is consistent with
ESA section 7 and the overarching
conservation purposes of the ESA.
Section 402.17—Other Provisions
As proposed, in this final rule, we are
removing § 402.17 in its entirety. This
regulatory revision simplifies the
regulations and eliminates the need for
any reader to consult multiple sections
of the regulations to discern what is
considered an ‘‘effect of the action.’’ The
previously articulated basis for § 402.17
will be addressed in an updated
Consultation Handbook.
Comment 1: Several commenters
disagreed with removal of § 402.17.
They supported retaining the
requirement that for an activity or
consequence to be considered
reasonably certain to occur it ‘‘must be
based on clear and substantial
information.’’ The commenters asserted
that removing § 402.17 would lead to
less clarity and more confusion.
Response: In the proposed rule, the
Services articulated several reasons why
removing § 402.17 is preferable,
including unnecessary confusion and
regulatory complexity and potential
inconsistency with the statutory
requirement to use ‘‘the best scientific
and commercial data available.’’. These
reasons adequately explain why
removal of § 402.17 is warranted. First,
removing § 402.17 simplifies the
structural complexity of the ‘‘effects of
the action’’ definition. Currently, the
term ‘‘effects of action’’ is defined in
§ 402.02, but that definition crossreferences § 402.17. Removing § 402.17
would make the ‘‘effects of the action’’
definition self-contained within
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§ 402.02 without requiring reference to
a separate regulatory provision.
Second, section 7(a)(2) of the Act
requires both the Federal action
agencies and the Services to use ‘‘the
best scientific and commercial data
available.’’ This requirement applies to
all aspects of section 7(a)(2), including
determining what activities or
consequences are considered reasonably
certain to occur when analyzing the
‘‘effects of the action’’ and any
‘‘cumulative effects.’’ The requirement
that such analysis must also be based on
‘‘clear and substantial information’’
creates an additional standard that
could be read to limit what ‘‘best
scientific and commercial data
available’’ the Services may consider.
Rather than focusing on the ‘‘best
available’’ data, the ‘‘clear and
substantial information’’ requirement
would appear to circumscribe that data
to only that which meets those
heightened requirements.
Third, when read in combination with
the preamble discussion in the 2019
final rule that emphasized a need for a
‘‘degree of certitude’’ in determining
effects of the action that are reasonably
certain to occur, § 402.17 could be
construed as narrowing the scope of
what constitutes the ‘‘best available
scientific and commercial data.’’ In
other words, in light of the ‘‘degree of
certitude’’ discussion in the preamble of
the 2019 rule, § 402.17’s ‘‘clear and
substantial information’’ standard could
be read to suggest that even if particular
data were considered the best available,
they potentially should not be relied
upon if they lacked a heightened degree
of certitude. The best available data will
not always be free of uncertainty and
often may be qualitative in nature, and,
under the requirements of section
7(a)(2), are to be used by the Services in
fulfilling their consultative role under
the Act. For these reasons and also as
discussed further below, we are
removing 50 CFR 402.17 from the
section 7 regulations.
Comment 2: Some commenters
supported removing § 402.17,
particularly the ‘‘clear and substantial
information’’ standard, asserting that it
conflicts with the statute, including the
‘‘best scientific and commercial data
available’’ requirement, and
inappropriately limits the effects
analysis.
Response: The Services agree that
removing § 402.17 is appropriate for the
reasons discussed in this final rule.
Comment 3: Some commenters
asserted the Services had not adequately
explained how § 402.17 creates the
potential for confusion.
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Response: The Services’ response
above and in the preamble of our
proposed rule (88 FR 40753, June 22,
2023) explains why § 402.17 has the
potential to create confusion. As
explained, § 402.17 creates potentially
competing requirements between its
‘‘clear and substantial information’’
standard and the statutory requirement
to use the best scientific and
commercial data available. Such
competing mandates necessarily
contribute to confusion on the part of
agencies and applicants who are forced
to reconcile them in carrying out their
obligations under section 7(a)(2).
Additionally, as discussed more fully
below, the factors identified in § 402.17,
particularly § 402.17(b), are circular in
nature, making them potentially
unhelpful or confusing as to when an
activity is or is not reasonably certain to
occur.
Comment 4: As mentioned above,
several commenters asserted that the
recent MLA decision, weighs against the
Services removing § 402.17 from the
section 7 regulations. They contend that
the decision supports the following: the
notion that effects must be ‘‘likely’’ to
occur, the requirement of ‘‘clear and
substantial information,’’ and
limitations on engaging in speculation.
They also asserted that the Services
should look to the MLA decision for
direction in any guidance documents
the Services develop.
Response: For the reasons discussed
above, the MLA decision does not
undermine the Services’ decision to
remove § 402.17. To the extent the MLA
decision raises questions about how the
Services resolve uncertainty, the
Services reiterate that we will continue
to follow accepted scientific methods
and evaluate all lines of best available
evidence to arrive at principled
scientific determinations, including as
to what consequences are or are not
reasonably certain to occur. This is our
longstanding approach to performing
the section 7(a)(2) inquiry, and the MLA
court did not reject this approach. The
narrow adverse holding of MLA did not
speak to the Services’ ability to remove
§ 402.17 from the section 7 regulations
for all the reasons stated in the
preamble. As with other court decisions,
the Services will give appropriate
consideration to MLA as applicable
when developing future guidance.
Comment 5: Some commenters
asserted that removing § 402.17 and the
requirement of ‘‘clear and substantial
information’’ is inconsistent with the
Act and the best available science
standard and would be problematic for
consultations that involve assumptions
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and projections in areas of scientific
uncertainty.
Response: As stated above, removing
§ 402.17 and the ‘‘clear and substantial
information’’ standard does not change
the fundamental ‘‘reasonably certain to
occur’’ test, which will continue to be
applied by the Services in our analyses,
including those involving scientific
uncertainty. Moreover, the 2019 rule
specifically stated that the regulatory
changes made in that rule were
clarifications and did not ‘‘lower or
raise the bar on section 7
consultations,’’ and did not ‘‘alter what
is required or analyzed during a
consultation.’’ 84 FR 44976 at 45015,
August 27, 2019. While that was the
intent of the 2019 rule, for the reasons
discussed above, there are concerns that
the ‘‘clear and substantial information’’
standard itself can cause confusion and
could be read to be in tension with the
Act’s ‘‘best available scientific and
commercial data’’ requirement. For all
these reasons and as discussed
throughout, removing § 402.17 is
consistent with the Act.
Comment 6: Some commenters urged
the Services to retain the factors set
forth in § 402.17(a) and (b), rather than
address them in a future guidance
document.
Response: As stated in the proposed
rule, the § 402.17(a) and (b) factors are
a non-exclusive list of relevant
considerations for determining whether
an activity (§ 402.17(a)) or a
consequence (§ 402.17(b)) is reasonably
certain to occur. Because they are nonexclusive, general in nature, and read
more as suggestions than regulatory
requirements, they are more
appropriately addressed in an update to
the Services’ Consultation Handbook
than in regulatory text. A discussion in
the updated Consultation Handbook
will lend itself to a more appropriate
treatment of these factors and their
relevance to identifying activities and
consequences that are reasonably
certain to occur. Moreover, factors
similar to those in § 402.17(a) are
already set forth in the Services’ original
1998 Consultation Handbook. See
Services’ 1998 Consultation Handbook
at 4–32. And while the § 402.17(b)
factors (remoteness in time, remoteness
in geographic location, and lengthy
causal chain) were not specifically
discussed in the 1998 Consultation
Handbook, the factors themselves are
tautological or circular in nature, i.e.,
each falls back on the concept of what
is not reasonably certain to occur to
satisfy the factor (e.g., a consequence is
too remote in time if it is not reasonably
certain to occur). At the same time, this
portion of § 402.17 has the potential to
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create the misperception that the
presence of any of the factors alone
indicate that a consequence is not
reasonably certain to occur, but the fact
that a consequence may be remote in
time, for instance, is not dispositive of
whether it is not reasonably certain to
occur. These potential problems with
§ 402.17(b) raise the question of whether
the factors, in fact, provide much in the
way of effective guidance. A more
detailed discussion in the updated
Consultation Handbook can remedy this
potential deficiency.
An additional reason to remove the
identified factors is how each set of
factors is introduced in the regulatory
text. For both § 402.17(a) and (b), they
are described as factors to evaluate
whether ‘‘activities’’ or ‘‘consequences’’
are ‘‘caused by the proposed action,’’
which is governed by the two-part test
of ‘‘but for’’ causation and reasonably
certain to occur. Yet the factors
themselves speak only to what may be
considered reasonably certain and
ignore what may be relevant for
evaluating the ‘‘but for’’ prong of the
test. While this potential shortcoming
might be addressed through further
regulatory revision, we believe removal
of § 402.17 is the preferred solution for
all the reasons stated.
Comment 7: Some commenters
supported removing the factors set forth
in § 402.17. They asserted that the
factors like those found in § 402.17(b)
are one-sided and lean only toward
negating consideration of certain effects
as opposed to also including factors that
weigh in favor of considering effects.
They assert that such an approach risks
inappropriately limiting the effects
analysis and species protections, which
they consider at odds with the purpose
of the ESA. They also question the
utility of guidance that might repeat the
identified deficiencies.
Response: The Services agree that the
removal of § 402.17 is advisable for the
reasons stated elsewhere in this final
rule. We will take into consideration the
commenter’s suggestion to potentially
broaden the scope of any guidance on
factors relevant to what activities or
consequences are considered
‘‘reasonably certain to occur’’ in
developing our updated Consultation
Handbook.
Comment 8: Some commenters
recommended adding the factors listed
in § 402.17(b) as part of the definition of
‘‘effects of the action.’’
Response: The Services respectfully
decline this suggestion. For the reasons
discussed above, we are removing the
non-exclusive list of factors in
§ 402.17(b) from the regulations.
Additionally, including these non-
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exclusive, general factors in the
definition of ‘‘effects of the action’’
would add unnecessary complexity to
the definition.
Comment 9: Some commenters
asserted that removing § 402.17 will
lead to delays, increased costs for
stakeholders, less efficient consultation
processes, increased regulatory burdens,
and inconsistent outcomes. They also
assert that, without § 402.17, the
Services would be free to presume
consequences regardless of their
likelihood or ‘‘degree of certitude.’’
Response: We respectfully disagree
with the commenters. For the various
reasons discussed in this preamble, the
Services conclude that removing
§ 402.17 overall will be more consistent
with the Act, resolve potential
confusion, and remove regulatory text
that is better addressed in an updated
Consultation Handbook. As referenced
in the preamble of the 2019 rule, the
2019 regulatory changes to the section 7
regulations did not lower or raise the
bar on section 7 consultations or alter
the scope of analysis. The fundamental
test of ‘‘reasonably certain to occur’’
remains, which places limitations on
the scope of our causation analysis and
avoids speculation. To the extent that
some commenters are suggesting that
one may read § 402.17 to heighten the
requirements for determining what
activities or consequences are
reasonably certain to occur, such
heightened requirements (as discussed
above) may well be inconsistent with
the statutory mandate to use the ‘‘best
scientific and commercial data
available.’’ In particular, the agencies
have a fundamental duty to ‘‘insure that
any action authorized, funded, or
carried out by [an action] agency is not
likely to jeopardize the continued
existence of a list species.’’ 16 U.S.C.
1536(a)(2). Unduly limiting the scope of
‘‘the best scientific and commercial data
available’’ that an agency may consider
could undermine the agency’s duty to
‘‘insure’’—i.e., ‘‘to make certain,’’ Home
Builders, 551 U.S. at 667—that an action
is not likely to jeopardize. Because the
fundamental causation test remains,
removal of the ‘‘clear and substantial
information’’ standard will reduce, not
increase, confusion. And, we expect the
non-exclusive factors set forth in
§ 402.17 will be addressed and
expanded upon in the updated
Consultation Handbook. As a result, we
do not anticipate removal of § 402.17
will lead to delays, increased costs or
regulatory burdens for stakeholders, or
less consistent outcomes.
Comment 10: Some commenters
expressed a preference for the factors
identified in § 402.17(a) and (b) to be
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addressed in rulemaking rather than
guidance. These commenters claimed
that rulemaking affords the public with
opportunities to comment and requires
additional process to revise the
regulatory text compared to non-binding
guidance. One commenter also asserted
the Services should not remove § 402.17
until after public comment on any
updated draft Consultation Handbook.
Commenters also expressed a concern
about how long it will take the Services
to issue any updated guidance.
Response: The Services intend to
provide an opportunity for public
comment on any updated Consultation
Handbook, which we anticipate making
available after this final rule. Therefore,
the public will have an opportunity to
review and comment on guidance
developed based on the factors
identified in § 402.17. While any future
Consultation Handbook is not expected
to be binding, the non-exclusive, general
nature of the factors found in § 402.17
make their regulatory effect to be of, at
most, limited import. As for timing, the
reasons discussed above explain why it
is appropriate to remove § 402.17 now,
including the factors of § 402.17(a) and
(b). The Services therefore respectfully
decline the request to delay their
removal.
Comment 11: One commenter
opposed the 2019 rule’s expansion of
the ‘‘reasonably certain to occur’’
standard beyond indirect effects and
relatedly urged the Services not to adopt
guidance perpetuating the expansion. If
guidance is necessary on an analytical
framework for how to reasonably
predict future effects, the commenter
urged the Services to adopt an approach
similar to the Department of the Interior
Solicitor’s M-Opinion (Department of
the Interior, Office of the Solicitor,
Opinion M–37021 (Jan. 16, 2009))
regarding the term ‘‘foreseeable future’’
in the context of species listing.
Response: For the reasons discussed
in the 2019 rule and elsewhere in this
rule, we choose to keep our two-part
causation test including ‘‘reasonably
certain to occur’’ (which collapsed the
concepts of direct effects, indirect
effects, and interrelated and
interdependent activities). Because we
are keeping our two-part test, we expect
to provide guidance in an updated
Consultation Handbook on appropriate
considerations. We will consider all
credible sources, including the 2009
Solicitor M-Opinion, as we prepare
helpful guidance on what is ‘‘reasonably
certain to occur.’’
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Sections 402.02 and 402.14—Scope of
RPMs
As proposed, we are revising the
definition of ‘‘reasonable and prudent
measures’’ to adhere more closely to the
statute by replacing the term ‘‘believes’’
with ‘‘considers’’ and replacing the
clause ‘‘impacts, i.e., amount or extent,
of incidental take’’ with ‘‘impact of the
incidental take on the species.’’ The
definition now reads: Reasonable and
prudent measures refer to those actions
the Director considers necessary or
appropriate to minimize the impact of
the incidental take on the species. We
are also revising § 402.14(i)(1)(i) and (ii)
to reflect the above change. To recognize
that RPMs are not limited solely to
reducing incidental take and may occur
outside of the action area, we are also
adding the following language to the
end of § 402.14(i)(2): ‘‘and may include
measures implemented inside or outside
of the action area that avoid, reduce, or
offset the impact of incidental take.’’
Further, we are adding to § 402.14 a new
paragraph at (i)(3) to clarify that offsets
within or outside the action area can be
required to minimize the impact of
incidental taking on the species: Priority
should be given to developing
reasonable and prudent measures and
terms and conditions that avoid or
reduce the amount or extent of
incidental taking anticipated to occur
within the action area. To the extent it
is anticipated that the action will cause
incidental take that cannot feasibly be
avoided or reduced in the action area,
the Services may set forth additional
reasonable and prudent measures and
terms and conditions that serve to
minimize the impact of such taking on
the species inside or outside the action
area.
Comments were received on a variety
of aspects of the above changes that
expand the scope of RPMs but can be
grouped under the following two
general categories: authority and
application.
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Authority
Comment 1: Some commenters
contended that the Services’ proposal
allowing for the use of offsets as RPMs
conflicts with the plain language of ESA
section 7(b)(4)(C)(ii). Specifically, these
commenters asserted that ESA section
7(b)(4)(C)(ii) requires RPMs to
‘‘minimize’’ the impacts of incidental
take rather than to compensate for or
eliminate those impacts through
offsetting measures.
Response: The Services disagree that
the RPM regulatory revision conflicts
with the plain language of ESA section
7(b)(4)(C)(ii), and, in fact, assert the
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opposite. As discussed more fully
below, the plain language of section
7(b)(4)(C)(ii) supports the use of offsets
as RPMs. The relevant language plainly
states that RPMs are to include
measures that minimize the impacts of
incidental take, not incidental take
itself. Like measures that avoid or
reduce incidental take, offsetting
measures also minimize the impacts of
incidental take on the species.
Regarding these commenters’ specific
assertion that ESA section 7(b)(4)(C)(ii)
used the term ‘‘minimize’’ rather than
‘‘eliminate’’ or ‘‘compensate for,’’ these
commenters appear to view the use of
‘‘minimize’’ as reflecting congressional
intent to preclude the Services from
using offsets that minimize the impact
of incidental taking to the degree that it
is eliminated or compensated for. We
note, however, that the ordinary
meaning of ‘‘minimize’’ found in
dictionary definitions does not refer to
any specific quantum that may be
reduced. Some definitions, in fact,
indicate that the term means ‘‘[t]o
reduce (esp. something unwanted or
unpleasant) to the smallest possible
amount, extent, or degree.’’ Minimize,
Oxford English Dictionary, https://
www.oed.com/search/dictionary/
?scope=Entries&q=minimize (last
accessed on October 26, 2023). The
ESA, similarly, does not specify the
extent to which impacts are to be
minimized. Accordingly, offsets may
minimize the impacts of incidental take
on the species through measures that
counterbalance the loss of individuals
taken as a result of the action subject to
consultation (e.g., through restoration of
habitat anticipated to result in the
replacement of the individuals that were
taken). Such offsetting measures must
be proportional to the impact of
incidental take that cannot be avoided
or reduced, with the amount or extent
of the taking (as described in the
incidental take statement) representing
the upper limit on the scale of any
offsetting measures.
Comment 2: Many commenters
maintained that Congress intended
offsetting measures to address impacts
from incidental take under ESA section
10, not ESA section 7. ESA section
10(a)(2)(B)(ii) authorizes the Services to
issue incidental take permits if, among
other things, applicants’ conservation
plans ‘‘minimize and mitigate’’ impacts
from incidental take. Because ESA
section 7(b)(4)(C)(ii), unlike ESA section
10(a)(2)(B)(ii), specifies that RPMs are to
‘‘minimize’’ impacts of incidental take,
these commenters asserted that
Congress did not intend for RPMs to
also ‘‘mitigate’’ impacts through
offsetting measures. These commenters
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further argued that the proposal
allowing for the use of offsets under
ESA section 7 impermissibly conflated
‘‘minimize’’ with ‘‘mitigate.’’
Response: The Services disagree that
the statutory criteria for issuing
incidental take permits under ESA
section 10 indicates that Congress
intended to require mitigation from
private applicants in the context of
section 10, but specifically limited the
use of such measures when addressing
the same impacts in the context of
section 7. The plain language of the ESA
indicates that Congress considered the
terms ‘‘minimize’’ and ‘‘mitigate’’ to
have overlapping meaning when those
terms were added as part of the 1982
ESA amendments.
In 1982, when Congress added the
provisions for reasonable and prudent
measures and ESA section 10 incidental
take permits, Congress also revised the
process by which a Federal agency,
State, or applicant may seek an
exemption from the requirement in ESA
Section 7(a)(2) to ensure against the
likelihood of jeopardy or adverse
modification. See H.R. Rep. No. 97–56,
at 28 (May 17, 1982) and S. Rep. No. 97–
418, at 19 (May 26, 1982). Included in
the amendments adopted by Congress
were additional criteria to be considered
by the Endangered Species Committee
in granting an exemption. See 16 U.S.C.
1536(h)(1) (ESA section 7(h)(1)).
Specifically, these amendments
provided that the Endangered Species
Committee can issue an exemption if,
among other things, it ‘‘establishes such
reasonable mitigation and enhancement
measures, including, but not limited to,
live propagation, transplantation, and
habitat acquisition and improvement, as
are necessary and appropriate to
minimize the adverse effects of the
agency action.’’ 16 U.S.C. 1536(h)(1)(B)
(ESA section 7(h)(1)) (emphasis added).
Thus, in the same section of the Act as
the RPMs provision, Congress
specifically described mitigation
measures that offset adverse effects as
measures that minimize such effects.
This provision provides strong support
that Congress considered the terms
‘‘minimize’’ and ‘‘mitigate’’ to have
overlapping meaning and that mitigative
measures also encompass measures that
minimize the impacts of incidental take
and vice versa.
This reading of the 1982 ESA
amendments is also supported by the
ordinary meaning of the terms
‘‘minimize’’ and ‘‘mitigate,’’ which have
a substantial degree of overlap. For
example, as mentioned above, the
Oxford English Dictionary defines the
term ‘‘minimize’’ as ‘‘[t]o reduce (esp.
something unwanted or unpleasant) to
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the smallest possible amount, extent, or
degree.’’ Minimize, Oxford English
Dictionary, https://www.oed.com/
search/dictionary/?scope=Entries&q=
minimize (last assessed on October 26,
2023). Similarly, the term ‘‘mitigate’’
means ‘‘[t]o alleviate or give relief from
(an illness or symptom, pain, suffering,
sorrow, etc.); to lessen the trouble
caused by (an evil or difficulty).’’
Mitigate, Oxford English Dictionary,
https://www.oed.com/dictionary/
mitigate_v?tab=meaning_and_
use#36427497 (last accessed on October
26, 2023).
The Services’ view of the proper
interpretation of section 10 and section
7 is longstanding. For instance, the
Services’ position that Congress did not
intend for section 10 to establish more
rigorous criteria for addressing the same
impacts of incidental take than section
7 is found in the preamble to the 1989
rule that finalized revisions to the
implementing regulations for addressing
incidental take of marine mammals
under the Marine Mammal Protection
Act and the ESA. See Incidental Take of
Endangered, Threatened, or Other
Depleted Marine Mammals, Final Rule,
54 FR 40338 at 40346, September 29,
1989. In the response to public
comments, the Services specifically
rejected a comment suggesting that ESA
section 10(a)(1)(B) provided for
heightened requirements over section
7(a)(2). See id. The Services stated the
two sections were intended to provide
‘‘the same level of protection for
endangered and threatened species.’’ Id.
According to the Services, these
comments ‘‘misconstrued the purpose
and effect of section 10 provisions
relating to private actions’’ because they
implied that ‘‘private activities are
subject to stricter protection standards
than activities with Federal
involvement.’’ Id. As the Services
further explained, there was ‘‘no
indication in the ESA or its legislative
history that Congress intended to set up
substantially different or stricter
protection standards for private
activities by requiring a conservation
plan.’’ Id.
For these reasons, section 10’s
reference to measures that ‘‘minimize
and mitigate’’ impacts from incidental
take should not be read to limit the
Services’ ability to specify offsets as
RPMs to minimize the same impacts in
the context of section 7.
Comment 3: We received some
comments indicating the Services’
current approach that confines RPMs to
measures that avoid and reduce
incidental take levels proposed is
consistent with the legislative history of
the 1982 amendments to the ESA.
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Response: The Services disagree with
these comments. Review of the
legislative history of the 1982 ESA
amendments demonstrates that
Congress considered, but rejected,
competing bill language to amend the
ESA that would have required
reasonable and prudent measures under
section 7 and habitat conservation plans
under section 10 to minimize
‘‘incidental take,’’ rather than minimize
the ‘‘impacts’’ from incidental take. S.
2309, 97th Cong. section 6(2) (May 26,
1982). As alluded to above, the 1982
ESA amendments changed section 7(b)
to include provisions concerning
incidental taking of listed species. The
new provisions included in sections
7(b)(4) and 7(o)(2) were aimed at
addressing a situation in which the
Service’s biological opinion advises a
Federal agency and an applicant (if any)
that the proposed action, or the
adoption of reasonable and prudent
alternatives, will not violate ESA
section 7(a)(2), but is still likely to result
in taking individuals in violation of ESA
section 9. See H.R. Conf. Rep. No. 97–
835, (1982), reprinted in 1982
U.S.C.C.A.N. 2860, 2868 (Federal
agencies receiving a favorable biological
opinion still may be subjected to citizen
suits or civil or criminal penalties for
violating section 9 of the Act). To
remedy this potential conflict, the 1982
ESA amendments contained an
exemption to the ESA’s prohibition on
‘‘take’’ of listed species for takings that
comply with any terms and conditions
specified in the incidental take
statement to carry out the reasonable
and prudent measures required by the
Service. See 16 U.S.C. 1536(b)(4) (ESA
section 7(b)(4)) and 16 U.S.C. 1536(o)(2)
(ESA section 7(o)(2)).
The two bills under consideration by
Congress in reauthorizing and amending
the ESA in 1982 were H.R. 6133 and S.
2309. Both bills were reported out of the
respective committees to the full House
and Senate with important differences
in defining the scope of reasonable and
prudent measures. See H.R. Rep. No.
97–567 (May 17, 1982) and S. Rep. No.
97–418 (May 26, 1982). As reported out
of the House Committee on Merchant
Marine and Fisheries, H.R. 6133
contained the language that Congress
ultimately adopted in the ESA to
describe the scope of reasonable and
prudent measures intended to address
the impact of the taking on the species:
‘‘those reasonable and prudent measures
that the Secretary considers necessary or
appropriate to minimize such impact.’’
H.R. 6133, 97th Cong. section 3(2) (May
17, 1982) (emphasis added).
In contrast, S. 2309, as reported out of
the Committee on the Environment and
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Public Works, explicitly directed that
these measures be confined to reducing
incidental take. S. 2309, in relevant part,
provided ‘‘those reasonable and prudent
measures that must be followed to
minimize such takings of such species.’’
S. 2309, 97th Cong. section 6(2) (May
26, 1982) (emphasis added). Unlike H.R.
6133, this Senate bill was explicitly
directed at the incidental take itself,
rather than the impacts on the species.
In resolving the differences between
the House and Senate, the Conference
Committee chose the House provisions
requiring reasonable and prudent
measures to minimize the impact of the
take on the species, rather than the
Senate amendments that restricted the
measures to minimizing the levels of
take. See H.R. Conf. Rep. No. 97–835,
(1982), reprinted in 1982 U.S.C.C.A.N.
2860, 2868. On September 20, 1982, and
September 30, 1982, the Senate and
House, respectively, agreed to the
Conference Report on H.R. 6133. See
128 Cong. Rec. S 11822–24 (September
20, 1982) and 128 Cong. Rec. H 8040–
42 (September 30, 1982). H.R. 6133 was
subsequently signed by the President
and became law on October 13, 1982.
See Endangered Species Act
Amendments of 1982, Pub. L. 97–307,
96 Stat, 1411 (October 13, 1982).
Given that Congress considered and
rejected specific language that would
have restricted reasonable and prudent
measures to activities aimed at reducing
incidental take, the legislative history
reveals a purposeful choice of Congress
in favor of the authority of the Services
to select measures that address ‘‘impacts
to the species’’ from incidental take,
rather than confining these measures to
reducing incidental take levels only.
Consistent with this legislative history,
all incidental take statements will
continue to retain the requirement to
describe the amount or extent of
incidental take for the purpose of
establishing a clear and transparent
measure for re-initiating consultation.
Thus, impacts on the species, expressed
in terms of the amount or extent of
incidental take, may be minimized by
measures that not only avoid or reduce
incidental take levels, but that also
offset any residual impacts that cannot
be feasibly avoided or reduced. For
example, if an incidental take statement
quantified the amount or extent of take
as the death of 10 individuals of the
species and the take of those individuals
cannot be avoided or reduced, the
Services may minimize the loss of those
individuals by specifying offsetting
RPMs such as habitat improvements
that would result in the anticipated
addition of up to 10 individuals
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(provided other regulatory requirements
are satisfied).
Comment 4: Some commenters
questioned why the Services were
proposing to change their longestablished position that section 7
requires minimization of the level of
incidental take and that it is not
appropriate to require mitigation for
impacts from incidental take. Other
commenters noted, however, that no
rationale has previously been provided
to support restricting RPMs to measures
that solely avoid or reduce incidental
take levels.
Response: We agree with the
comments that observed the sparse
rationale underpinning our prior
approach in restricting RPMs to
avoiding or reducing incidental take
within the action area. With this
rulemaking, however, the Services take
this opportunity to explain why a
change is justified.
In over 30 years of practice, we have
found that there have been instances in
which impacts from incidental take
could not be feasibly minimized
through measures that avoid or reduce
impacts within the action area. In some
of those instances, the impacts
potentially could have been minimized
through offsetting measures, providing a
better conservation outcome for the
species. Overall, our prior approach of
focusing solely on reducing the amount
or extent of incidental take within the
action area has led to the continued
deterioration of the condition of listed
species and their habitats and has not
sufficiently minimized the impact of
incidental take. In recognition that our
prior approach was unnecessarily
restrictive in carrying out ESA Section
7(b)(4)(ii)’s direction to specify those
measures that are ‘‘necessary or
appropriate’’ to minimize the impacts of
incidental take on the species, the
Services are, therefore, revising the
section 7 implementing regulations to
expand the scope of RPMs to allow for
the use of offsetting measures. These
measures will further minimize the
impacts of incidental take caused by the
action that cannot be feasibly avoided or
reduced. Under this regulatory change,
the amount or extent of take described
in the incidental take statement will be
the maximum level of impacts to
minimize.
As explained above, this regulatory
revision is based upon a careful review
of the Act’s text, the purposes and
policies of the ESA, and the 1982 ESA
legislative history. Based upon that
review, we find that this change more
fully effectuates the intent of Congress
and better serves the conservation goals
of the ESA. See, e.g., 16 U.S.C. 1531(b)
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(describing the conservation purposes of
the Act). This regulatory revision will
allow the Services to specify measures
to offset residual impacts of incidental
take that cannot otherwise be feasibly
addressed through avoidance and
reduction measures. In allowing for
residual impacts to be addressed, this
revision may reduce the accumulation
of adverse impacts to the species that is
often referred to as ‘‘death by a
thousand cuts,’’ which can undermine
the Act’s overarching goal of providing
for the conservation of listed species.
As explained in the proposed rule,
this approach for identifying RPMs will
also allow the Services to adhere more
effectively to the preferred sequence or
hierarchy in the development of
mitigation. That preferred sequence or
hierarchy aims to avoid or reduce
impacts to the species first, and then
potentially minimize residual impact to
the species through offsets.
Comment 5: Several commenters
maintained that the proposal allowing
for use of offsetting measures as RPMs
violates the ‘‘minor change rule,’’ which
requires RPMs to specify only minor
changes that do not alter the basic
design, location, duration, or timing of
the action. For example, some noted
that offsets occurring outside of the
action area would necessarily violate
the ‘‘minor change rule.’’
Response: The Services disagree that
the revision allowing for RPMs to
consist of offsets violates the ‘‘minor
change rule.’’ Because, in most
instances, they operate as additional
measures to minimize impacts of
incidental take that cannot be avoided,
offsets (regardless of whether they occur
within or outside of the action area)
would not be expected to result in any
modifications that would prevent the
action subject to consultation from
proceeding as essentially proposed. For
example, a consultation on a residential
development may include RPMs that
offset the take of members of a listed
species through contributions to a
conservation bank established to repair
habitat for that species outside of the
action area. In this example, the offset
would not result in any changes to the
development, including its location, and
the development would be able to
proceed as planned. On the other hand,
RPMs that include measures designed to
avoid and reduce incidental take may
result in direct changes to the subject
action. In the example involving the
residential development, for instance,
RPMs that specify re-routing an access
road to skirt the edge of wetland habitat
for a listed species would result in less
incidental take. Because the measure
directly modifies the design of the
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residential development, the Services
would need to consider whether this
change would be ‘‘minor,’’ in
compliance with the ‘‘minor change
rule.’’ If the measure would not alter the
fundamental design of the development
project, the action would go forward as
essentially planned, and the change in
design would not violate the ‘‘minor
change rule.’’
Because we do not expect offsetting
measures that occur outside of the
action area to violate the ‘‘minor change
rule,’’ we are adopting clarifying
language at 50 CFR 402.14(i)(2), which
expressly recognizes that offsets may
occur within or outside of the action
area.
Comment 6: The Services received
comments asserting that the proposal
relating to RPMs should be carried out
under section 7(a)(1), not section 7(a)(2),
of the Act. Additionally, one commenter
sought specific regulatory changes
withholding issuance of an incidental
take statement unless the relevant action
agency has an ESA section 7(a)(1)
conservation program in place for
species covered under the subject
incidental take statement.
Response: Although section 7(a)(1)
and section 7(a)(2) have complementary
roles in fulfilling the ESA’s conservation
goal (see ESA section 2(b)), section
7(a)(1) is not the preferred statutory
mechanism to carry out the Services’
revision relating to the use of offsets to
minimize impacts of incidental take.
The regulatory changes we are
adopting in this final rule relating to
offsetting RPMs are based on statutory
language arising from the process set
forth in section 7 for the issuance of
biological opinions and incidental take
statements, especially section 7(b).
Section 7(a)(1) provides separate
authority not directly related to these
changes. We, therefore, decline the
commenters’ request.
In addition, the ESA provides no
authority for the Services to require
Federal action agencies to have a
conservation program under ESA
section 7(a)(1) as a condition of an
incidental take statement. See 16 U.S.C.
1536(b)(4) (setting forth the conditions
for issuance of incidental take
statements). Therefore, we decline to
adopt the commenter’s
recommendation, as it conflicts with the
plain language of section 7(b)(4) of the
Act.
Comment 7: The Services received
comments that claimed the proposal
recognizing the use of offsets as RPMs
could violate the Takings Clause of the
Fifth Amendment of the United States
Constitution. Some of these comments
urged the Services to withdraw the
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proposal based upon the same concerns
raised in the 2018 notice announcing
the withdrawal of the 2016 FWS
Endangered Species Act Compensatory
Mitigation Policy (83 FR 36469, July 30,
2018).
Response: In light of the statutory and
regulatory requirements in place for
issuing RPMs, the concerns that the use
of offsets as RPMs may lead to
unconstitutional takings are misplaced.
The grounds for withdrawing the 2016
FWS Endangered Species Act
Compensatory Mitigation Policy
centered on the notion that offsite
mitigation raises concerns of whether a
sufficient ‘‘nexus’’ exists establishing
that the relevant impact caused by the
specific project proponent (rather than
some other actor) is being addressed
through the requested mitigation. See 83
FR 36469, July 30, 2018. In addition,
according to the withdrawal notice,
mitigation that adhered to the FWS’s
policy goal of achieving a ‘‘net
conservation benefit’’ (which is no
longer in effect) could potentially run
afoul of Supreme Court precedent
requiring ‘‘rough proportionality’’
between the government’s requested
mitigation and the impact being
remedied.
Under this revision, however, any
offsetting measures, regardless of
whether they are applied within or
outside of the action area, must be
‘‘necessary or appropriate’’ to minimize
the impacts of incidental take on the
species caused by the action that is
subject to consultation. To be in
accordance with this statutory
requirement, all RPMs (including
offsets) must have the requisite nexus
between the impacts of incidental take
caused by the action and measures that
minimize those impacts. In other words,
any offsetting measures that are
‘‘necessary or appropriate’’ would
necessarily target the impacts of
incidental take caused by the proposed
Federal action, though such offsets may
occur in locations that have been subject
to impacts from other activities. As
previously explained, the Services may
minimize the impacts of incidental take
by specifying offsetting measures (such
as habitat improvements) that would
result in the anticipated addition of
individuals estimated in the incidental
take statement to be taken by the
proposed action.
With regard to the concern that
mitigation (particularly mitigation with
the goal of achieving a ‘‘net
conservation gain’’) will fail to be
proportional to the harm, offsets
specified as RPMs must be
commensurate with the impact of the
incidental taking caused by the action.
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As explained in the preamble of the
proposed rule (88 FR 40753, June 22,
2023), the scale of the impacts from
incidental take will serve as the upper
limit for the scale of the offset.
Importantly, the Services are not
specifying RPMs with the goal of
achieving ‘‘net conservation gain,’’
which was the planning goal referenced
in the 2016 FWS Endangered Species
Act Compensatory Mitigation Policy but
is no longer the goal used by FWS.
Comment 8: Some commenters
suggested that the proposal to consider
offsetting measures to minimize the
impacts of incidental take exceeds the
agencies’ authority under the ESA.
Quoting the decision in Maine
Lobstermen’s Association v. NMFS, 70
F.4th 582, 596 (D.C. Cir. 2023), these
commenters maintain that Congress
intended the Services to have a more
limited role under section 7 that
involves providing expert assistance to
the Federal action agency, rendering an
opinion, and if the conclusion is no
jeopardy, issuing the incidental take
statement.
Response: The Services disagree that
the revision recognizing that RPMs may
include offsetting measures to minimize
impacts of incidental take caused by the
action subject to consultation represents
a broad expansion of power in
contravention of the ESA. The Act
plainly authorizes the Services to issue
measures that are necessary or
appropriate to ‘‘minimize’’ the impacts
of incidental take. As explained above,
offsetting measures, like measures that
avoid and reduce incidental take, also
minimize the impacts of incidental take
on the species.
Under many circumstances, measures
that avoid and reduce incidental take
will be all that is necessary or
appropriate to minimize the impacts of
incidental take. However, in those
circumstances when impacts from
incidental take cannot feasibly be
minimized through measures that avoid
and reduce incidental take, this revision
would allow the Services to consider
offsetting measures for inclusion as
RPMs. This approach is fully consistent
with the Services’ statutory authority,
and the MLA case (which did not
address the Services’ authority with
regard to RPMs) does not stand for a
contrary position. For additional
discussion of the MLA case and the
requirements of section 7, please see the
discussion of the case at the beginning
of the ‘‘Summary of Comments and
Responses’’ section and the specific
discussion relating to the removal of
§ 402.17 above.
For all the reasons mentioned above,
we find that the revision recognizing the
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use of offsets as RPMs is consistent with
the plain language of the Act, a better
reflection of Congressional intent, and
better serves the conservation goals of
the Act.
Comment 9: We received several
comments questioning the relationship
between the ‘‘minor change rule,’’ the
Services’ mitigation policies, and costs
of offsets as RPMs.
Response: Please see our response to
comment 5 above regarding the
relationship between the ‘‘minor change
rule’’ and the use of offsets as RPMs. As
a matter of practice, when offsetting
measures are applicable to a specific
formal consultation, the Services will
identify potential offsetting measures
and work with the action agency (and
applicant, if applicable) when
developing RPMs (including offsets) to
determine, among things, the economic
feasibility of these measures. Thus, any
costs associated with the offsetting
measures would be considered during
development of the measure, in
coordination with the Federal action
agency (and applicant, if applicable), to
ensure that the offsetting measure is
reasonable and prudent. Measures that
are cost-prohibitive in view of the
nature of the action may not be
considered reasonable and prudent.
With respect to the Services’
consideration of their respective
mitigation policies, these policies will
help inform the development of
offsetting measures but will not change
the statutory or regulatory requirements
that apply to all RPMs. Offsetting
measures will be proportionate to the
impact of the taking. In addition,
monitoring and reporting requirements,
as part of the terms and conditions, will
continue to be used to verify
implementation and efficacy of RPMs,
including offsets.
Application
Comment 1: Several commenters
questioned how offsets would be
developed and state that the
relationship of habitat and critical
habitat to offsetting measures is unclear.
Some commenters asked whether the
Services would use habitat types and
ratios to determine appropriate offsets.
Response: RPMs that include
offsetting measures will be speciesspecific and will depend upon the
factual circumstances surrounding the
consultation. Implementing the offsets
specified by the Services would be the
responsibility of the action agency or
applicant. In specifying offsetting
measures to minimize the impacts of
incidental take, the Services may
identify offsetting measures that are
implemented through various types of
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mechanisms such as conservation
banks, in-lieu fee programs, and other
kinds of mitigation devices established
previously by project proponents.
However, any offsetting measures
included as RPMs would be designed to
minimize the impact of the incidental
take resulting from the proposed action
to the subject species, and there are
scientifically recognized techniques and
methodologies that have been used to
determine the appropriate level of
offsets for species commensurate with
the impact of the take to the species.
Offsetting measures may consist of
purchasing, preserving, or restoring the
habitat of the applicable species
impacted by incidental take caused by
the action. However, offsets do not
necessarily have to be applied within
critical habitat designated for the
relevant species. In addition, RPMs that
include offsetting measures may be
directed at improving the habitat of the
relevant species, regardless of whether
the proposed action resulted in impacts
to that species’ habitat. Offsets may be
based on habitat ratios, equivalency
modeling, or one-to one replacement,
for example. Consistent with the ESA
and its implementing regulations,
offsets will be necessary or appropriate
for minimizing the impacts of incidental
take. In all cases, the impact of the take
caused by the action, as expressed in the
ITS as the amount or extent of
incidental take, would provide an upper
limit on the scale of any offsetting
measures.
Comment 2: Several comments
requested information on what specific
mechanisms may be used to deliver
offsets, and whether these mechanisms
may be sponsored by third parties or
undertaken by the project proponent.
Response: Some potential
mechanisms that could be used to
deliver offsets include conservation
banks, in-lieu fee programs, and
restoration programs. Other mechanisms
that may be considered are described in
the Services’ mitigation policies.
Mechanisms that may be considered by
the Services could be sponsored by
third parties or be the responsibility of
the project-proponent. In addition to the
Services’ mitigation policies that
provide guidance in the selection of
mechanisms to deliver offsets, the FWS,
pursuant to the 2021 National Defense
Authorization Act (Pub. L. 116–283), is
preparing a rule regarding conservation
banking and other mechanisms that, if
finalized, will address specific criteria
and requirements of those mechanisms
to receive FWS approval.
Comment 3: Several commenters
expressed concern regarding the lack of
existing mitigation banks or in-lieu fee
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programs for various species or parts of
the country, which they contend may
result in a delay in completing
consultation and implementing their
project.
Response: The Services do not
anticipate that the lack of available
offsetting mechanisms would result in
delays to completing consultations in a
timely manner or within the statutory or
regulatory time frames. The Services
understand the current availability of
third-party offset mechanisms (e.g.,
conservation banks and in lieu fee
programs) varies greatly across the
country and by species, and we will
consider the availability of these
mechanisms when identifying RPMs. If
these mechanisms to deliver offsets are
not available, the Services anticipate
that such measures would generally not
be identified as an RPM. However, more
banks and in-lieu fee programs are being
established each year as identified in
the Regulatory In-lieu Fee and Bank
Information Tracking System (U.S.
Army Corps of Engineers, RIBITS:
Regulatory In-lieu Fee and Bank
Information Tracking System, last
accessed November 8, 2023. https://
ribits.ops.usace.army.mil/ords/
f?p=107:2:5966340072209). Again, the
availability of existing mechanisms is
one important factor the Services will
consider when determining whether
measures are necessary or appropriate to
minimize the impact of incidental take.
Comment 4: Some commenters
recommended avoiding redundant,
additional layers of regulation and
multiple mitigation mandates.
Response: The Services disagree that
the regulatory change to the scope of
RPMs will create redundant regulation
and additional mitigation mandates. On
the contrary, this regulatory change is in
alignment with our initiatives to
develop efficiencies and holistic
approaches to conserving federally
listed species. This regulatory change
was developed in consideration of
existing regulatory frameworks (e.g.,
Clean Water Act Section 404(b)(1)
Guidelines) used by permitting agencies
with whom the Services have routinely
worked in the conservation of listed
species. Mitigation associated with
other existing regulatory frameworks is
often included in the proposed action
by the action agency requesting
consultation. The effect of these
mitigation measures is considered in the
jeopardy analysis and can also minimize
the impacts of incidental take caused by
the proposed action. When the proposed
action includes mitigation measures,
there may be no need to include
additional offsets as RPMs. As part of
the Services’ initiatives aimed at
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leveraging other conservation efforts
and building consistency and
efficiencies in planning and
implementing resource offsets, this
regulatory revision promotes
conservation at a landscape scale to
help achieve the conservation purposes
of the ESA. In promoting these
purposes, the revision would provide
flexibility to the Services to specify
measures to address impacts from
incidental take that cannot be feasibly
addressed through measures that avoid
or reduce incidental take. As mentioned
in the preamble of the proposed rule (88
FR 40753, June 22, 2023), impacts from
incidental take that are not addressed
can accumulate over time, potentially
leading to more severe impacts on the
species (sometimes referenced as ‘‘death
by a thousand cuts’’). In addition, to the
extent that RPMs may not be feasible
within the action area, this revision
provides the flexibility to specify
measures within locations outside of the
action area that serve as important
corridors for species survival,
reproduction, or distribution, providing
benefits to the species on a landscape
scale.
Comment 5: A few commenters asked
for clarification or a definition of the
term ‘‘feasibly’’ proposed in the RPM
regulatory revisions at 50 CFR
402.14(i)(3): To the extent it is
anticipated that the action will cause
incidental take that cannot feasibly be
avoided or reduced in the action area,
the Services may set forth additional
reasonable and prudent measures and
terms and conditions that serve to
minimize the impact of such taking on
the species inside or outside the action
area.
These commenters requested the
Services describe the circumstances
under which the Services will
determine that the impacts of the agency
action ‘‘cannot feasibly’’ be ‘‘avoided or
reduced’’ within the action area.
Response: The term ‘‘feasibly’’ should
be understood to have the same
ordinary meaning found in the
dictionary definition of that term. For
instance, ‘‘feasibly’’ is the adverb form
of the term ‘‘feasible,’’ which means
‘‘[o]f a design, project, etc.: [c]apable of
being done, accomplished or carried
out; possible, practicable’’. Feasible,
Oxford English Dictionary, https://
www.oed.com/search/dictionary/
?scope=Entries&q=feasible (last
accessed on November 5, 2023). We,
therefore, do not find that a regulatory
definition is needed. The Services may
find measures that avoid or reduce
incidental take cannot feasibly
minimize the impacts of incidental take
when such measures would violate the
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‘‘minor change rule.’’ Or, in some cases,
the Services may determine that
specifying measures that avoid or
reduce incidental take within the action
area as RPMs would not be feasible
because the degraded condition of the
area would require cost prohibitive
measures that are not reasonable and
prudent. Under these types of limited
circumstances, the Services may
consider minimizing the impacts from
incidental take caused by the proposed
action through offsetting measures that
occur within or outside of the action
area.
Comment 6: We received several
comments related to the preferred order
of RPMs and a request for clarification
of the term ‘‘priority.’’ Many
commenters supported a preferred
order/hierarchy, while others wanted
more flexibility.
Response: Under this regulatory
change expanding the scope of RPMs,
the Services will place a priority on
measures that avoid or reduce
incidental take over offsetting measures.
In recognition of the Services’
preference to specify measures that
prevent incidental take from occurring
in the first instance, we will first
consider measures that avoid or reduce
incidental take in the action area. See 88
FR 40753, June 22, 2023. If impacts from
incidental take cannot be feasibly
minimized through measures that avoid
or reduce incidental take, the Services
will then consider offsetting measures to
minimize the residual impacts of
incidental take in the action area. After
considering whether offsetting measures
can feasibly be applied within the
action area, the Services may then
consider specifying offsets outside of
the action area to minimize the impacts
of incidental take caused by the action
subject to consultation. In summary, the
steps are as follows:
1. Avoid or reduce, within the action
area, the impact of incidental taking on
the species.
2. Offset, within the action area, the
impact of incidental taking on the
species.
3. Offset, outside the action area, the
impact of incidental taking on the
species.
Comment 7: One commenter stated
that the determination of whether
offsetting RPMs are or are not
reasonably available in the action area
may depend in part on whether the
action area is broadly or narrowly
defined and how well the site-specific
effects of the proposed Federal action
are identified and analyzed in the
biological opinion. The commenter
asked the Services to clarify how they
will ensure that an action area is
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properly drawn and keyed to the actual
impacts of the agency action and that
the effects of the action are properly
analyzed at a site-specific level, to
minimize the potential for arbitrary
determinations that off-site mitigation is
necessary.
Response: The Services do not define
the action area broadly or narrowly for
the purpose of ensuring that RPMs are
available in the action area. In
accordance with the regulatory
definition of ‘‘action area,’’ the action
area must be based upon the specific
action subject to the consultation and
must consist of ‘‘all areas to be affected
directly or indirectly by the Federal
action and are not merely the immediate
area involved in the action.’’ 50 CFR
402.02. The Services did not propose
any changes to the definition of ‘‘action
area’’ or the process of defining it. Thus,
the Services will continue to ensure that
an action area is properly drawn and
keyed to the actual impacts of the
agency action and that the effects of the
action are properly analyzed within the
defined action area. Regarding
application of offsetting measures, the
Services clarify that offsetting measures
could be included as RPMs inside and
outside the action area. As previously
explained in comment 6 above, the
Services will follow a preferred
sequence for developing RPMs that is
set forth in § 402.14(i)(3) of the
implementing regulations. Under this
preferred order for specifying RPMs, we
anticipate that offsetting measures
outside of the action area will be
specified under limited circumstances
when, for instance, RPMs within the
action area would violate the ‘‘minor
change rule’’ or would not be
economically or technologically
feasible.
Comment 8: Several commenters
requested additional detailed
information on the specific timing for
implementing offsetting measures to
minimize the impacts of incidental take.
Response: Ideally, offsetting measures
would be implemented in advance of
the impact from the action occurring in
order to reduce risk and uncertainty and
reduce the temporal impacts from
incidental take. However, the timing of
implementation will be determined on a
case-by-case basis and will depend
upon various factors such as the
availability of existing mechanisms to
offset impacts from incidental take (e.g.,
conservation banks) and the best
scientific and commercial data
available.
Comment 9: Several commenters
requested additional detailed
information on the location of offsetting
measures outside of the action area.
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Response: As stated above, the
specific location of offsetting measures
will be determined on a case-by-case
basis and will depend upon various
factors such as the availability of
existing mechanisms to offset impacts
from incidental take and the best
scientific and commercial data
available.
Comment 10: Many commenters
supported the application of RPMs
outside the action area when such
application would create efficiencies
and be beneficial.
Response: The Services appreciate the
commenters’ support, and we agree that
the regulatory change allowing for the
application of RPMs outside the action
area will provide additional
conservation benefits to affected species
and create efficiencies in extending
these benefits. For example, additional
benefits would be provided to the
affected species when measures that
avoid or reduce incidental take could
not feasibly be applied. The regulation
can also create efficiencies by using
established mechanisms to deliver
offsets, such as specifying the purchase
of an offsetting credit from a
conservation bank already established
and approved in connection with a
habitat conservation plan (HCP).
Comment 11: One commenter
expressed concern that allowing RPMs
to go outside the action area may be in
conflict with County, State, and Tribal
mitigation programs that require offsets
to be implemented locally.
Response: As stated previously, all
RPMs must be reasonable and prudent
and within the authority of the action
agency to implement. If there are laws
that apply to the proposed action that
require all mitigative measures to be
located within a specific geographic
area (locally) and offsetting measures
outside of that area would violate those
legal restrictions, then the offsets would
not be within the action agency’s (or
applicant’s) authority to implement.
Comment 12: One commenter
contends that offsetting measures
should not be required for biological
opinions that use surrogates to express
the amount or extent of anticipated take
because it is hard to determine if take
even occurs since the ‘‘reasonable
certainty’’ standard does not require a
guarantee that take will occur.
Response: The Services decline to
adopt the commenter’s suggestion to
exclude the use of offsetting measures
when a surrogate is used to express the
amount or extent of the taking caused by
the action. This suggestion conflicts
with the ESA’s requirement to specify
RPMs that are necessary or appropriate
to minimize the impacts of incidental
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take on the species. The implementing
regulations governing the use of
surrogates in estimating the amount or
extent of incidental take is found at
§ 402.14(i)(1)(i). When using surrogates,
the Services are required to ensure they
establish a clear standard for
determining when the level of
anticipated take has been exceeded.
Because many offsetting measures are
likely to be habitat-based and the
Services often use impacts to habitat as
a surrogate for estimating the amount or
extent of incidental take, the metrics
used to identify a surrogate can be
useful and appropriate for establishing
offsetting measures as RPMs. For
example, if a surrogate for take of a
cryptic listed insect is identified by the
number of host trees lost that the
species uses for reproduction and
survival, measures to conserve the
amount of host trees lost due to the
action could also serve as offsetting
RPMs.
Comment 13: Some commenters
stated that monitoring and reporting on
the implementation of the offsetting
measures is needed.
Response: As with all incidental take
statements, monitoring and reporting
are required parts of the terms and
conditions to implement RPMs,
pursuant to ESA section 7(b)(4)(iv) and
its implementing regulations. This
statutory and regulatory requirement
would still apply to the terms and
conditions to carry out offsetting
measures, and this rulemaking does not
make any changes to that requirement.
Regardless of whether third-party
mitigation arrangements or project
proponent mitigation is used, these
mechanisms for delivering offsets must
satisfy any monitoring and reporting
requirements contained in the terms and
conditions of the incidental take
statement.
Comment 14: Some commenters
requested that specific actions be
excluded from the Services’ ability to
impose additional RPMs that offset
impacts. One example mentioned by
commenters as warranting exclusion
from imposition of additional RPMs
involves consultations on habitat
restoration projects that have net
benefits to habitat functions or services.
Response: Identifying specific types of
actions for exclusion in this rulemaking
may be in conflict with the
requirements of section 7 and cannot be
predicted in advance. Thus, we decline
to specify such actions. However, in
practice, the Services have found that
project proponents of these types of
specific actions often voluntarily
include measures that minimize the
impacts of incidental take, potentially
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eliminating the need for additional
RPMs.
Comment 15: One commenter stated
they ‘‘oppose perpetual offsets in
situations where a species is not
meeting recovery goals and there is not
a clear or quantifiable link to pesticides
as a stressor.’’
Response: We interpret that this
commenter intended to oppose offsets
that are perpetual in nature for species
in decline and offsets that are not
directly linked to the amount or extent
of incidental take identified in the
incidental take statement. However, it is
important to note that RPMs are
required to be ‘‘necessary or
appropriate’’ to minimize the impacts of
incidental take that is reasonably likely
to occur from the proposed action. To be
in accordance with these statutory and
regulatory requirements, all RPMs
(including offsets) must have the
requisite nexus between the impacts of
incidental take caused by the action and
the measures that minimize those
impacts. Thus, offsetting measures, as
with all RPMs, would not address
impacts caused by other activities that
are not the subject of the consultation.
RPMs, including offsets (if appropriate),
whether perpetual or not, will be
determined on a case-by-case basis.
Comment 16: Several commenters
asked for sideboards that limit the
extent of offsetting measures and how
the Services will minimize uncertainty,
prevent inconsistency, and ensure that
offsetting RPMs are not arbitrary. Other
commenters stated that offsets should
achieve a ‘‘no net loss,’’ or even a net
gain, with no upper limit.
Response: As explained in the
preamble of the proposed rule (88 FR
40753, June 22, 2023) and elsewhere in
this final rulemaking, there are several
statutory and regulatory standards that
will govern the application of offsetting
measures. First, only after fully
considering measures that will avoid or,
reduce incidental take would the
Services consider specifying measures
that offset the residual impacts of
incidental take that cannot feasibly be
avoided. In most cases, measures that
avoid or reduce incidental take within
the action area will be preferred in
minimizing the impacts of incidental
take, consistent with the preferred
sequence at 50 CFR 402.14(i)(3) and as
further described in the response to
comment number 6 above.
Second, the Services will coordinate
as appropriate with the action agency
and applicant, if any, on development of
offsetting measures. As always, this
coordination is essential to ensure that
RPMs are within a Federal action
agency’s, and applicant’s (if any),
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authority or discretion to implement.
All RPMs, including offsetting
measures, must be reasonable and
prudent; any RPMs, including those
consisting of offsetting measures, that
are not within a Federal action agency’s,
and applicant’s (if any), authority or
discretion to implement would not be
reasonable and prudent. Measures that
are cost-prohibitive may also not be
reasonable and prudent to minimize the
impacts of incidental take.
Third, the impact of the incidental
take on the species caused by the action
will provide the upper limit on the scale
of any offsetting measures. Only
offsetting measures that are necessary or
appropriate to minimize the impacts of
incidental take will be specified as
RPMs. Thus, RPMs, including those
consisting of offsetting measures, will be
proportional to the impacts of incidental
take caused by the action and not be
required to provide a net benefit to the
species.
Fourth, as with all RPMs, monitoring
and reporting requirements will be
required as part of the terms and
conditions of the ITS.
Lastly, this revision to the scope of
RPMs does not change the Services’
long-standing practice of working with
Federal action agencies and applicants
in developing ‘‘conservation measures,’’
as defined in the 1998 Consultation
Handbook, that may be voluntarily
incorporated as part of the ‘‘action’’ to
minimize adverse effects. In fact, the
Services have a long history of working
with Federal action agencies and
applicants to develop these voluntary
measures, some of which include
offsets, to produce strong conservation
outcomes. The Services’ expertise
gained in developing offsetting
measures that may be incorporated as
part of the action will be used in the
development of offsets included as
RPMs.
Comment 17: We received comments
questioning whether offsetting RPMs
would be applied to consultations on
listed plant species and critical habitat.
Response: As with all RPMs, RPMs
that consist of offsets, are specified to
minimize the impacts of incidental take
of wildlife (not plants or critical habitat)
caused by the action. Because incidental
take statements are issued only for
incidental take of wildlife, this
regulatory revision allowing for
offsetting measures as RPMs would not
apply to plants or critical habitat.
Comment 18: Several commenters
shared concerns regarding the costs of
offsetting measures. Some stated the
costs would be significant to the
regulated community and some stated
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the cost is unpredictable, but the range
of potential costs is substantial.
Response: Offsetting measures, as
with all RPMs, do have an associated
cost. However, we anticipate offsetting
measures will be used in limited
circumstances. For example, most
consultations are completed informally,
and this regulation would apply only to
formal consultations that require an ITS
containing RPMs. Even among formal
consultations that require an ITS
containing RPMs, some of these
consultations will be able to address
impacts of incidental take through
measures that avoid or reduce
incidental take within the action area,
and offsets would be considered only if
measures that avoid or reduce
incidental take cannot feasibly
minimize the impacts of incidental take
caused by the proposed action.
Although we anticipate that offsetting
measures will be used under limited
circumstances when measures that
avoid or reduce incidental take cannot
feasibly be applied, it is not possible to
know how many formal consultations
will include offsetting measures as
RPMs due to the tremendous variation
in Federal actions subject to formal
consultation, the specific impacts from
these actions, and the affected species
that may be analyzed.
Although we cannot predict the costs
of the RPM proposal due to these
variable factors associated with formal
consultations, any costs would be
constrained by the statutory and
regulatory requirements that RPMs are
‘‘necessary or appropriate,’’
commensurate with the residual
impacts of incidental take caused by the
proposed action. In addition, as
previously mentioned, the Services
consider the economic feasibility of any
RPMs.
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All Other Aspects of the 2019 Rule
As stated earlier, the proposed rule
also sought comment on all aspects of
the 2019 rule. Although the vast
majority of the comments received on
all other aspects of the 2019 rule were
non-substantive, we did receive
substantive comments and other
relevant comments warranting response
on the topics of the definition of
‘‘destruction or adverse modification,’’
programmatic consultations, nonFederal representatives, § 402.13(c)(2)
informal consultation timelines,
§ 402.14(h)(3) and (4) adoption of
analysis, section 7(a)(1) (programs for
the conservation of listed species),
project modifications, the geographic
scope of section 7(a)(2), and ‘‘small
Federal handle.’’ Our responses to the
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comments on these topics and others are
provided below.
Destruction or Adverse Modification
Comment 1: Commenters request the
removal of the phrase ‘‘as a whole’’ from
the definition of destruction or adverse
modification. These commenters assert
that the phrase undermines
conservation and recovery of species
because it would allow more piecemeal,
incremental losses of critical habitat
over time that would add up
cumulatively to significant losses or
fragmentation (referred to by many
comments as ‘‘death by a thousand
cuts’’). Furthermore, they contend the
phrase ‘‘as a whole’’ limits the Services’
ability to analyze impacts and lacks
scientific justification.
Response: As discussed in the 2019
rule (see 84 FR 44976 at 44983–44985,
August 27, 2019), the Services again
decline to remove the phrase ‘‘as a
whole’’ from the definition of
destruction or adverse modification.
The definition of ‘‘destruction or
adverse modification’’ is focused first on
the critical habitat itself, and then
considers how alteration of that habitat
affects the ‘‘conservation’’ value of
critical habitat. The phrase ‘‘as a whole’’
will not reduce or alter how the Services
consider the effects of small changes to
critical habitat. This approach is fully
consistent with the nature of critical
habitat and the duty to avoid
destruction or adverse modification of
critical habitat under the Act, as well as
the scientific principles underlying
those provisions.
Additionally, this approach does not
limit our ability to analyze impacts to
critical habitat using the best available
scientific and commercial information.
As discussed in the 2019 rule,
consistent with longstanding practice
and guidance, the Services must place
impacts to critical habitat into the
context of the entire designation to
determine if the overall value of the
critical habitat is likely to be
appreciably reduced, but this
consideration does not mean that the
entirety of the designated critical habitat
must be affected by the proposed action.
This situation could occur where, for
example, a smaller affected area of
habitat is particularly important for the
conservation of a species (e.g., a primary
breeding site). Thus, the size or
proportion of the affected area is not
determinative; impacts to a smaller area
may in some cases result in a
determination of destruction or adverse
modification, while impacts to a large
geographic area will not always result in
such a finding.
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Moreover, with regard to concerns of
‘‘death by a thousand cuts,’’ the
regulations require the Services’
biological opinion to assess the status of
the critical habitat (including threats
and trends), the ‘‘environmental
baseline’’ of the action area, and
cumulative effects. The Services’
summary of the status of the affected
species or critical habitat considers the
historical and past impacts of activities
across time and space for the entire
listed entity and critical habitat
designation. In this context, the effects
of any particular action and
‘‘cumulative effects’’ are added to those
impacts identified in the
‘‘environmental baseline.’’ This
analytical process avoids situations
where each individual action, when
viewed in isolation, may cause only
relatively minor adverse effects but,
over time, accumulated effects of these
actions would erode the conservation
value of the critical habitat. In the 2019
rule, we clarified the text in
§ 402.14(g)(4) regarding status of the
species and critical habitat to better
articulate the analytical process used to
determine whether an action is likely to
jeopardize the continued existence of
listed species or result in the
destruction or adverse modification of
critical habitat. The clarification helped
to ensure the ‘‘incremental losses’’
described by the commenters are
appropriately considered in our
jeopardy and ‘‘destruction or adverse
modification’’ determinations.
Comment 2: Some commenters
asserted that inclusion of ‘‘as a whole’’
in the definition of destruction or
adverse modification is inconsistent
with case law.
Response: None of the cases cited
favorably by commenters directly
address the issue of the appropriate
scale of the ‘‘destruction or adverse
modification’’ analysis. And while
commenters may disagree with the
holding, the Ninth Circuit Court of
Appeals has specifically endorsed the
approach of analyzing the impacts to
critical habitat at the scale of the entire
designation. See Butte Envtl Council v.
U.S. Army Corps of Eng’rs, 620 F.3d
936, 947–48 (9th Cir. 2010) (citing the
Services’ 1998 Consultation Handbook
at 4–34).
Comment 3: Some commenters
asserted that inclusion of ‘‘as a whole’’
does not adequately afford protection to
critical habitat of species that are wideranging and migratory.
Response: As discussed above, the
Services’ approach to analyzing impacts
to portions of a critical habitat provides
a full assessment of individual actions
by relying on the jeopardy and
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destruction/adverse modification
framework. That framework considers
the overall status of the critical habitat,
and in that context, adds the effects of
any particular action and any
‘‘cumulative effects’’ to those impacts
identified in the ‘‘environmental
baseline.’’ Thus, under this analytical
framework, incremental impacts from
prior actions are not ignored, and the
overall conservation value of critical
habitat is appropriately preserved for
the benefit of the listed species. This
same framework applies to species with
expansive critical habitat designations
and ensures any impacts to particular
areas are appropriately considered
within the context of the respective
critical habitat designation as a whole.
Programmatic Consultation
Comment 1: One commenter
requested revision of the definition of
‘‘programmatic action’’ to clarify
whether programmatic consultations are
required, how programmatic
consultations can be used, and the roles
of multiple Federal agencies, and of
non-Federal applicants.
Response: Given the nature of
programmatic consultation and the
significant flexibilities provided by
section 7 of the ESA, additional details
regarding the specifics and scope of
programmatic consultation are better
addressed through updates to the
Consultation Handbook rather than
additional regulatory text. The current
definition of ‘‘programmatic
consultation’’ is quite broad and covers
a broad suite of actions that could
constitute a program, plan, policy, or
regulation providing a framework for
future proposed actions. See 50 CFR
402.02. Although broad, the examples of
actions included in the definition are
not intended to identify every type of
program or set of activities that may be
consulted on programmatically. The
programmatic consultation process
offers great flexibility and can be
strategically developed to address
multiple listed species and multiple
Federal agencies, including applicants
as appropriate, for both informal and
formal consultations. We encourage
Federal agencies and applicants to reach
out to the Services to discuss the
potential ways to structure a
consultation (such as the use of
programmatic consultations) to
streamline the consultation process.
Non-Federal Representative
Comment 1: One commenter
suggested agencies allow the developer
to be designated as a ‘‘non-federal
representative’’ for purposes of
consultation to prepare the biological
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assessment and hold pre-application
meetings. The commenter also
suggested that NMFS help with
communication and resolving
fundamental questions.
Response: Regulations at 50 CFR
402.08 allow a Federal agency to
designate a non-Federal representative
for conducting informal consultation or
preparing a biological assessment. The
Services may provide technical
assistance to the non-Federal
representative, in coordination with the
Federal action agency, to address
questions regarding the consultation
process, but the section 7(a)(2)
consultation responsibility ultimately
lies with the Federal action agency.
Section 402.13(c)(2)—Informal
Consultation Timelines
Comment 1: Some commenters
advocated for the removal of the 60-day
timeline in § 402.13(c)(2). Those
commenters stated that according to
information included in the preamble to
the 2018 draft revisions, only 3 percent
of informal consultations take more than
3 months to complete, and therefore
there is no rational justification to adopt
a timeline to address this low number
of informal consultations, nor is there
reason to believe that this small number
of informal consultations lasting longer
than 3 months causes a problem for
action agencies. The commenters ask
the Services to focus on addressing the
small number of lengthier informal
consultations rather than imposing an
across-the-board timeline.
Response: The Services are retaining
the 60-day timeline for issuing a
concurrence or non-concurrence for
informal consultations. The Services’
intention with this timeline is to
increase regulatory certainty and
timeliness for Federal agencies and
applicants. Based upon more than 3
years of implementing this provision,
the Services find that the 60-day
timeline is justified to promote the goals
of increasing regulatory certainty and
timeliness. As stated in the preamble
and response to comments in the 2019
rule, the 60-day timeline begins only
after receipt of information sufficient for
the Services to determine whether to
concur. See § 402.13(c)(2) (requiring
information similar to the types of
information needed to initiate formal
consultation). The Services typically
review all initiation request packages
within 30 days. In addition, should
more time be required for the Services’
determination, § 402.13(c)(2) provides
for a 60-day extension upon mutual
consent. We anticipate that this
provision will continue to provide
greater certainty for Federal agencies
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and applicants, while ensuring that the
Services have sufficient information and
time to reach an informed decision.
Finally, we have not experienced
problems in practice with § 402.13(c)(2)
under the 2019 rule; this provision’s
assurances for regulatory certainty and
timeliness outweigh any concerns with
implementation.
Section 402.14(h)—Adoption of
Analysis
Comment 1: Some commenters
expressed concern that the 2023
proposed regulations make no change to
the 2019 revisions at 50 CFR
402.14(h)(3)(i) allowing the Services to
adopt, as part of their biological
opinions, all or part of a Federal action
agency’s consultation initiation package.
These commenters claim that in doing
so the Services abdicate their statutory
consultation duty in violation of ESA
section 7(b)(3)(A) (requiring the Services
to issue an opinion to the action
agency).
Response: The Services disagree that
adoption of part or all of the information
in an action agency’s initiation package,
including biological analyses, violates
the ESA. Furthermore, under the
provision, the Services will not
indiscriminately adopt analyses or
documents from non-Service sources.
Rather, the Services perform their
statutory consultative function,
adopting analyses provided in the
initiation package only after we have
conducted an independent evaluation to
determine whether the analyses meet
statutory and regulatory requirements,
including the requirement to use the
best scientific and commercial data
available. As we expressed in our
response to comments on the proposed
rule to the 2019 rule, the intent of this
provision is to avoid needless
duplication of analyses and documents
that already meet applicable statutory
and regulatory standards. In some
situations, the Services may supplement
or revise these analyses or documents to
merit inclusion in our letters of
concurrence or biological opinions, but
even in those situations, adopting useful
existing information makes the
consultation process more efficient and
streamlined.
In the 2019 rule, we explained that it
was already common practice for the
Services to adopt portions of biological
analyses and initiation packages in our
biological opinions. The codification of
that practice created a more
collaborative process and incentive for
Federal agencies to produce highquality analyses and documents suitable
for inclusion in biological opinions,
which streamlines the timeframe for
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completion of the consultation. The
Services continue to exercise their
independent judgment and biological
expertise in reaching conclusions under
the ESA.
Comment 2: Commenters representing
the pesticide manufacturing and end
user communities remained supportive
of those provisions of § 402.14(h)(3) and
(4) allowing for a collaborative process
and the adoption of biological analyses
provided by action agencies, explaining
that adoption of such analyses produced
by the Environmental Protection Agency
(EPA) would further increase
collaboration between the Services and
Federal action agencies, consistent with
the commenters’ long-standing
advocacy for greater coordination in this
vein.
Response: We agree that § 402.14(h)(3)
and (4) continue to add value by
promoting increased collaboration and
allowing for the adoption of biological
analyses provided by a Federal agency,
where appropriate and in line with the
Services’ scientific standards. The
Services are maintaining these
provisions, as they further expediency,
collaboration, and the use of sound
science.
Section 402.14(l)—Expedited
Consultation
Comment 1: Some commenters
advocated for the removal of 50 CFR
402.14(l), which provides for the
Services to enter into expedited
consultation upon mutual agreement
with a Federal agency. Commenters
argued that the Services provided no
evidence to support the claim in the
2019 rule that the new expedited
process ‘‘will benefit species and
habitats by promoting conservation and
recovery through improved efficiencies
in the section 7 consultation process,’’
or ‘‘will still allow for the appropriate
level of review.’’ 84 FR 44976 at 45008,
August 27, 2019. Commenters noted
that the Services provided only one
example of an action that could benefit
from expedited consultation and
included no qualifying criteria for such
projects. The commenters express
concern that a lack of guidelines on
when to apply this provision will cause
confusion and arbitrary application of
the regulation.
Response: The Services’ intention in
retaining § 402.14(l) is to allow for an
optional process that is intended to
streamline the consultation process for
those projects that have minimal
adverse impact but still require a
biological opinion and incidental take
statement and for projects where the
effects are either known or are
predictable and unlikely to cause
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jeopardy or destruction or adverse
modification. As we explained in our
response to comments in the 2019 rule,
many of these projects historically have
been completed under the routine
formal consultation process and
statutory timeframes, and this provision
will expedite the timelines of the formal
consultation process for Federal actions
while still requiring the same
information and analysis standards.
While less time may be necessary to
analyze projects that fit under the
provision due to their primarily
beneficial nature or their known and
predictable effects, the Services must
still apply all required analysis to the
actions under consideration. We simply
expect that given the nature of the
actions, a streamlined process would
allow for a better use of our limited
resources, yet still be consistent with
section 7 of the ESA.
The Services have not included
specific qualifying criteria for expedited
consultations because there is a range of
different actions or classes of actions
that may qualify. Acceptance into
expedited consultation will require the
exercise of independent judgment and
discretion on the part of the Services for
each such request. We also note, as we
expressed in our response to comments
on the 2019 rule, that a key element for
successful implementation of this
process is mutual agreement between
the Services and Federal agency (and
applicant when applicable). The mutual
agreement will contain the specific
parameters necessary to complete each
step of the process, such as the
completion of a biological opinion.
The Services strive to complete
consultations within the established
regulatory deadlines and continue to
identify ways to improve efficiencies.
Section 402.14(l) provides one such
streamlining mechanism intended to
improve efficiencies in the section
7(a)(2) consultation process for the
Services, Federal agencies, and their
applicants while ensuring full
compliance with the responsibilities of
section 7. One example of an expedited
formal consultation process agreed to by
the FWS and the USFS is the
programmatic consultation for the
Rangewide Conservation Activities
Supporting Whitebark Pine Recovery
Project (Project). The Project includes
ongoing and future activities proposed
by the USFS to support the conservation
of federally threatened whitebark pine
(Pinus albicaulis) across its range,
specifically cone collection, scion
collection, pollen collection, operational
seedling production, genetic white pine
blister rust screening, planting, insect
prevention and control, selection and
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care of mature trees with white pine
blister rust resistance, protection of
healthy and unsuppressed regenerating
stands, clone banks, seed and breeding
orchards, genetic evaluation plantations,
development of seed production areas,
surveys, and research, monitoring, and
education. While these activities are
intended to be beneficial to whitebark
pine, some adverse effects are
anticipated to occur because of the
Project. This expedited consultation
process reduced the consultation
timeline allowing beneficial actions to
move forward more quickly.
Comment 2: Commenters representing
the pesticide manufacturing and end
user communities remained supportive
of those provisions of § 402.14(l)
allowing for expedited consultation and
encourage the Services to work with
Federal agencies to streamline initiation
packages by using templates and
guidance. Commenters also requested
the Services reconsider and repromulgate 50 CFR part 402, subpart D,
regarding pesticide consultations,
following adverse litigation.
Response: The Services agree that the
expedited consultation provisions of
§ 402.14(l) are a potentially valuable
tool for creating efficiency in the
consultation process, including
efficiencies that could potentially be
applied in pesticide consultations. We
will continue to work with Federal
action agencies and applicants to help
them develop strong biological analyses
that can allow for expedited
consultation. We acknowledge the
commenters’ request for reconsideration
of subpart D, which was not the subject
of any regulatory changes in the 2019
rule and thus outside the scope of this
rulemaking. Any such changes would
require a separate rulemaking process,
which would first require careful
consideration and consultation with the
EPA and others.
Section 7(a)(1) of the ESA
Comment 1: Some commenters
requested that the Services develop and
finalize implementing regulations for
section 7(a)(1), which requires Federal
agencies in consultation with the
Services to utilize their authorities to
establish programs for the conservation
of listed species.
Response: At this time, because there
are no implementing regulations for
section 7(a)(1), the Services expect to
include guidance on section 7(a)(1) in
an updated Consultation Handbook and
develop additional guidance as
necessary. We recognize there are
opportunities for Federal action
agencies to proactively support species
conservation, consistent with their
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authorities, and we anticipate that
providing additional guidance regarding
section 7(a)(1) will help further those
efforts.
Project Modifications
Comment 1: One commenter raised
issues related to project modifications
that happen during a consultation, as
well as once consultation has been
completed and a biological opinion or
letter of concurrence has been issued.
The commenter requested that
consultation continue even if a
proposed action has been modified and
that changes in the action could be
reflected in future consultations as part
of the ‘‘environmental baseline.’’ The
commenter also requested that the
Services indicate that no further
consultation would be needed if an
action was subsequently modified in
such a way that does not increase the
amount or extent of incidental take.
Response: The Services note that the
commenter’s request relates to the
existing regulations regarding
reinitiation of consultation at § 402.16.
As the commenter noted, criteria exist
for the reinitiation of completed
consultations with issued biological
opinions or letters of concurrence:
These include whether incidental take
is exceeded; if new information reveals
effects of the action that may affect
listed species or critical habitat in a
manner or to an extent not previously
considered; if the identified action is
subsequently modified in a manner that
causes an effect to the listed species or
critical habitat that was not considered
in the biological opinion or written
concurrence; or if a new species is listed
or critical habitat designated that may
be affected by the identified action.
These criteria are independent of one
another; thus, modification of the action
may trigger reinitiation of an already
completed consultation if the manner of
effects changes, even when the extent of
those effects is not greater. This
determination is case-specific, and it is
beyond the scope of this rule to state
that only those cases where anticipated
incidental take is exceeded would
trigger reinitiation.
The commenters also provide an
example of a consultation that was
restarted due to modification of the
proposed action as a result of ‘‘new’’
information. With regard to changes to
the action or new information that arises
during a pending consultation, the
Services typically coordinate with the
action agency and any applicant to
determine the significance of any
change or new information and the
needed response. Although case
specific, the responses range from minor
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supplements to the existing initiation
package to withdrawal and resubmittal
of the entire package. This practice
ensures the final concurrence letter or
biological opinion is based on up-todate information, including a correct
description of the proposed action.
Geographic Scope of Section 7(a)(2)
Comment 1: One commenter
suggested the Services revise 50 CFR
part 402 to restore the full geographic
scope of the Services’ implementation of
the ESA with respect to consultations
under section 7 of the Act.
Response: This request is beyond the
scope of the proposed rule and would
require a new rulemaking process. The
current geographic scope of the section
7 regulations as reflected in the
definition of ‘‘action’’ is appropriate,
and the Services do not anticipate
revisiting this issue. See 50 CFR 402.02;
51 FR 19926 at 19930–31, June 3, 1986
(discussing geographic scope of section
7 of the ESA).
Small Federal Handle
Comment 1: One commenter
suggested that the Services promulgate
regulations clarifying the scope of
‘‘small Federal handle’’ projects
affording project proponents input into
whether to become part of a
consultation where the Federal agency
has only limited authority over
significant aspects of a larger project.
Response: The Services decline to
adopt regulations clarifying the scope of
‘‘small federal handle’’ projects. As
discussed in the 2019 rule, when the
Services write an incidental take
statement for a biological opinion under
section 7(b)(4)(iv) of the Act, they can
assign responsibility for specific terms
and conditions of the incidental take
statement to the Federal action agency,
the applicant, or both, taking into
account their respective roles,
authorities, and responsibilities. The
Services have worked with Federal
action agencies in the past, and will
continue to do so into the future, to
ensure that a reasonable and prudent
measure assigned to a Federal action
agency does not exceed the scope of a
Federal action agency’s authority.
Other Comments
Comment 1: One commenter
suggested changing the regulatory
threshold for consulting on federally
listed plant species to only situations
where the project is likely to jeopardize
the listed plant.
Response: The commenter
misconstrues the consultation
regulations, and no regulatory change is
needed. The purpose of consultation is
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for the Services to assist the Federal
agency in meeting their obligation to
ensure their action is not likely to
jeopardize the continued existence of
listed species or destroy or adversely
modify designated critical habitat.
Consultation is the process by which the
Services determine whether the action
is likely to jeopardize the listed plant.
Comment 2: One commenter
suggested revisions that would allow
applicants to choose their method of
ESA compliance through a
programmatic HCP to take advantage of
the streamlining opportunity it provides
rather than being directed into
programmatic consultations.
Response: The Services’ existing
regulations and practice allow for this
approach and, in many situations, an
applicant’s compliance with ESA
section 7(a)(2) requirements through an
existing incidental take permit under an
ESA section 10 HCP can be achieved. In
these cases, Federal agencies can meet
their separate section 7(a)(2)
responsibilities using a simple
expedited process. Thus, no regulatory
changes are necessary.
Comment 3: One commenter
suggested that the Services align ESA
terms similar to terminology in the
National Environmental Policy Act
(NEPA), e.g., ‘‘mitigation,’’ and that we
use consistent language in regulations
and not switch between the terms
‘‘effects’’ and ‘‘impacts.’’
Response: The Services decline to
undertake the action recommended by
this commenter. ESA section 7(a)(2) and
its implementing regulations include
specific terms of art that are not
interchangeable with terms used in
other statutory contexts such as NEPA.
See above in the ‘‘environmental
baseline’’ section for discussion of the
Services’ use of the terms ‘‘effects’’ and
‘‘impacts.’’
Comment 4: A couple of commenters
stated the ESA Compensatory Mitigation
Policy was issued without opportunity
for public notice and comment.
Response: The FWS ESA
Compensatory Mitigation Policy
(Appendix 1, 501 FW 3 https://
www.fws.gov/policy-library/a1501fw3)
provides internal, non-binding guidance
and does not establish legally binding
rules. Because the policy is guidance
rather than a rule, there are no
requirements for public review and
comment. Nonetheless, the FWS
solicited public comment during three
separate public comment periods
related to the 2016 FWS mitigation
policies. The initial public comment
periods solicited input on the proposed
revisions to the Mitigation Policy (81 FR
12380, March 8, 2016), and on the draft
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ESA Compensatory Mitigation Policy
(81 FR 61031, September 2, 2016). The
FWS later requested additional public
comment on the mitigation planning
goal within both mitigation policies that
had already been finalized (82 FR
51382, November 6, 2017). The
documents, comments, and process
related to prior revisions may be viewed
within docket number FWS–HQ–ES–
2015–0126 (mitigation) and docket
number FWS–HQ–ES–2015–0165
(compensatory mitigation) on https://
www.regulations.gov. The final ESA
Compensatory Mitigation Policy is
substantively similar to the 2016 policy
and reflects input from those previous
public-comment opportunities.
Comments on Determinations
Comment 1: One commenter asserted
the need to complete intra-service
consultation pursuant to section 7 of the
Act on the issuance of the final
regulations.
Response: We have addressed this
issue in our Required Determinations
section of the preamble to this final rule.
Comment 2: Several commenters
requested additional economic analyses
pursuant to Executive Order (E.O.)
12866 and related E.O.s. Some
commenters suggested that the Services
characterize the rulemaking as a
‘‘significant regulatory action’’ and that
we must include an economic analysis
as specified in Office of Management
and Budget (OMB) Circular A–4. Several
commenters expressed concern with
potential costs associated with the RPM
revisions.
Response: Although OMB determined
that the proposed revisions to 50 CFR
part 402 were a significant regulatory
action pursuant to E.O. 12866, OMB
agreed with the Services’ assessment
that the expected effects of the proposed
rule did not fall within the scope of E.O.
12866 section 3(f)(1) and did not
warrant an analysis as specified in OMB
Circular A–4. We do not anticipate the
revisions to result in any substantial
change in our determinations as to
whether proposed actions are likely to
jeopardize listed species or result in the
destruction or adverse modification of
critical habitat. None of these changes
are expected to result in delays to
completing consultations in a timely
manner or within the statutory or
regulatory timeframes. And, although
offsetting measures as RPMs can be
associated with costs, those measures
must be constrained by the statutory
and regulatory requirements of RPMs, as
we have noted in response to previous
comments. It is worth noting that any
economic analysis of the revisions to
RPMs would be limited by substantial
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uncertainty about how many formal
consultations will include offsetting
measures as RPMs due to the
tremendous variation in Federal actions
subject to formal consultation, the
specific impacts from these actions, and
the affected species that may be
analyzed. Although we cannot predict
the costs of the RPM proposal due to
these variable factors associated with
formal consultations, any costs would
be constrained by the statutory and
regulatory requirements of RPMs as
described above and in the proposed
rule. Thus, because consultations under
section 7(a)(2) are so highly factspecific, it is also not possible to specify
future benefits or costs stemming from
this rulemaking.
Comment 3: Several commenters
believed the Services’ findings under
the Regulatory Flexibility Act (RFA) and
consideration of responsibilities under
Executive Order (E.O.) 13132
(Federalism) and E.O. 13211 (Effects on
the Energy Supply) were insufficient or
incorrect. Commenters claimed that
modifying existing consultation
requirements will likely result in
increased compliance costs and delays
for projects involving small entities. The
commenters also disagreed with our
finding for E.O. 12630 (Takings) that the
proposed rule would not have
significant takings implications and that
a takings implication assessment is not
warranted. They urged us to conduct
additional assessments before finalizing
the rule.
Response: Regarding all required
determinations for the rulemaking, all
the revisions provide transparency and
clarity to the consultation process under
section 7(a)(2) of the Act and align the
regulations with the plain language of
the statute. As a result, we do not
anticipate any substantial change in our
determinations as to whether proposed
actions are likely to jeopardize listed
species or result in the destruction or
adverse modification of critical habitat.
Regarding the revisions to RPMs, most
consultations under section 7(a)(2) will
not be affected since most consultations
are completed informally, and this
change would apply only to formal
consultations that require an ITS
containing RPMs. Even among formal
consultations that require an ITS
containing RPMs, some of these
consultations will be able to address
impacts of incidental take through
measures that avoid or reduce
incidental take within the action area,
and the change would not apply to
those consultations.
Regarding the RFA and E.O. 13211,
this final rule which contains revisions
that provide transparency, clarity, and
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more closely comport with the text of
the ESA, will not have a significant
economic impact on a substantial
number of small entities or any other
entities and is unlikely to cause any
adverse effects on energy supply,
distribution, or use (including a
shortfall in supply, price increases, and
increased use of foreign supplies). An
analysis of small entity impacts is
required when a rule directly affects
small entities. However, Federal
agencies are the only entities directly
affected by this rule, and they are not
considered to be small entities under
SBA’s size standards. No other entities
will be directly affected by this
rulemaking action. While some
commenters suggested that the rule may
impact small entities indirectly as
applicants to Federal actions subject to
ESA section 7(a)(2), we are unaware of
any significant economic effect on a
substantial number of small entities.
Although we received comments raising
generalized concerns about alleged
potential effects on small entities, none
of these comments described direct,
concrete economic effects on small
entities, much less ‘‘significant’’
economic effects on a ‘‘substantial’’
number of small entities.
Regarding E.O. 13132, ‘‘Policies that
have federalism implications,’’ that
Executive Order includes federalism
implications from regulations,
legislative comments or proposed
legislation, and other policy statements
or actions that have substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government. This
rulemaking has no such federalism
implications. Federal agencies are the
only entities that are directly affected by
this rule, as a Federal nexus is necessary
for requiring consultation under section
7(a)(2) of the ESA. In addition, as stated
for E.O. 13132 in the Required
Determinations section of this preamble,
this rule pertains only to improving and
clarifying the interagency consultation
processes under the ESA 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.
Regarding E.O. 12630, as discussed in
the proposed rule, this rulemaking will
not directly affect private property, nor
will it cause a physical or regulatory
taking. It will not result in a physical
taking because it will not effectively
compel a property owner to suffer a
physical invasion of property. Further,
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the rulemaking will not result in a
regulatory taking because it will not
deny all economically beneficial or
productive use of the land or aquatic
resources. This rule will substantially
advance a legitimate government
interest (conservation and recovery of
endangered species and threatened
species) and will not present a barrier to
all reasonable and expected beneficial
use of private property.
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Required Determinations
Regulatory Planning and Review—
Executive Orders 12866, 13563, and
14094
Executive Order 12866 provides that
the Office of Information and Regulatory
Affairs (OIRA) in the Office of
Management and Budget (OMB) will
review all significant rules. OIRA has
determined that this rule is significant.
Executive Order 14094 amends E.O.
12866 and reaffirms the principles of
E.O. 12866 and E.O 13563 and states
that regulatory analysis should facilitate
agency efforts to develop regulations
that serve the public interest, advance
statutory objectives, and be consistent
with E.O. 12866, E.O. 13563, and the
Presidential Memorandum of January
20, 2021 (Modernizing Regulatory
Review). Regulatory analysis, as
practicable and appropriate, shall
recognize distributive impacts and
equity, to the extent permitted by law.
E.O. 13563 emphasizes further that
regulations must be based on the best
available science and that the
rulemaking process must allow for
public participation and an open
exchange of ideas. We have developed
this final rule in a manner consistent
with these requirements.
Revisions to 50 CFR part 402.
Specifically, the Services are revising
the implementing regulations at: (1)
§ 402.02, definitions; (2) § 402.16,
reinitiation of consultation; (3) § 402.17,
other provisions; and (4) § 402.14(i)(1),
formal consultation. The preamble to
the proposed rule explains in detail why
we anticipate that the regulatory
changes we are proposing will improve
the implementation of the Act (88 FR
40753, June 22, 2023).
When we made changes to §§ 402.02,
402.16, and 402.17 in 2019, we
compiled historical data for a variety of
metrics associated with the consultation
process in an effort to describe for OMB
and the public the effects of those
regulations (on https://
www.regulations.gov, see Supporting
Document No. FWS–HQ–ES–2018–
0009–64309 of Docket No. FWS–HQ–
ES–2018–0009; Docket No. 180207140–
8140–01). We presented various metrics
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related to the regulation revisions, as
well as historical data supporting the
metrics.
For the 2019 regulations, we
concluded that because those revisions
served to clarify rather than alter the
standards for consultation under section
7(a)(2) of the Act, the 2019 regulation
revisions were substantially unlikely to
affect our determinations as to whether
proposed Federal actions are likely to
jeopardize listed species or result in the
destruction or adverse modification of
critical habitat.
As with the 2019 regulations, the
revisions in this rule, as described
above, are intended to provide
transparency and clarity and align more
closely with the statute. As a result, we
do not anticipate any substantial change
in our determinations as to whether
proposed actions are likely to jeopardize
listed species or result in the
destruction or adverse modification of
critical habitat.
Similarly, although the revisions to
the regulatory provisions relating to
RPMs in this final rule are amendments
that were not considered in the 2019
rulemaking, this final rule will align the
regulations with the plain language of
the statute. These changes will not affect
most consultations under section 7(a)(2)
of the Act because most consultations
are completed informally, and this
regulation will apply only to formal
consultations that require an ITS
containing RPMs. Even among formal
consultations that require an ITS
containing RPMs, some of these
consultations will be able to address
impacts of incidental take through
measures that avoid or reduce
incidental take within the action area,
and offsets would be considered only if
measures that avoid or reduce
incidental take cannot feasibly
minimize the impacts of incidental take
caused by the proposed action. As
explained in the preamble language
above, the use of offsetting measures in
RPMs will not be required in every
consultation. As with all RPMs, these
offsetting measures must be
commensurate with the scale of the
impact, subject to the existing ‘‘minor
change rule,’’ be reasonable and
prudent, and be necessary or
appropriate to minimize the impact of
the incidental taking on the species.
Lastly, several different action
agencies in various locations throughout
the country readily include offsetting
measures as part of their project
descriptions. This practice of including
offsets as part of the proposed action
being evaluated in a consultation is not
uncommon. The Services may find that
offsets included in the proposed action
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adequately minimize impacts of
incidental take, thus obviating the need
to specify additional offsets as RPMs.
Examples of these types of consultations
that incorporate offsetting measures into
the proposed action include
programmatic consultations, certain
consultations regarding transportation
projects, and activities authorized by the
U.S. Army Corps of Engineers under
Section 404 of the Clean Water Act (33
U.S.C. 1344).
It is not possible to know how many
formal consultations will include
offsetting measures as RPMs due to the
tremendous variation in Federal actions
subject to formal consultation, the
specific impacts from these actions, and
the affected species that may be
analyzed. Although we cannot predict
the costs of the RPM regulation due to
these variable factors associated with
formal consultations, any costs would
be constrained by the statutory and
regulatory requirements that RPMs are
‘‘reasonable and prudent,’’
commensurate with the residual
impacts of incidental take caused by the
proposed action, and subject to the
‘‘minor change rule.’’
Similarly, while we cannot quantify
the benefits from this rule, some of the
benefits include further minimization of
the impacts of incidental take caused by
the proposed action, which, in turn,
further mitigates some of the
environmental ‘‘costs’’ associated with
that action. In allowing for residual
impacts to be addressed, the rule may
also reduce the accumulation of adverse
impacts to the species that is often
referred to as ‘‘death by a thousand
cuts.’’ Sources of offsetting measures,
such as conservation banks and in-lieu
fee programs, have proven in other
analogous contexts to be a cost-effective
means of mitigating environmental
impacts and may have the potential to
enhance mitigative measures directed at
the loss of endangered and threatened
species when they are applied
strategically. See, e.g., U.S. Fish and
Wildlife Service Mitigation Policy and
Endangered Species Act Compensatory
Mitigation Policy, Appendix 1, 501 FW
3 (May 15, 2023) or NOAA Mitigation
Policy for Trust Resources, NOA 216–
123 (July 22, 2022).
The regulatory changes in this rule
provide transparency, clarity, and more
closely comport with the text of the
ESA. We, therefore, do not anticipate
any material effects such that the rule
would have an annual effect that would
reach or exceed $200 million or would
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
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State, local, territorial, or Tribal
governments or communities.
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) directly
affected by the rule. However, no
regulatory flexibility analysis is required
if the head of an agency, or that person’s
designee, certifies that the rule will not
have a significant economic impact on
a substantial number of small entities.
SBREFA amended the Regulatory
Flexibility Act to require Federal
agencies to provide a statement of the
factual basis for certifying that a rule
will not have a significant economic
impact on a substantial number of small
entities. We certified at the proposed
rule stage that this rule would not have
a significant economic impact on a
substantial number of small entities (88
FR 40761). We received no information
that changes the factual basis of this
certification.
This rulemaking revises and clarifies
existing requirements for Federal
agencies, including the Services, under
section 7 of the ESA. Federal agencies
are the only entities directly affected by
this rule, and they are not considered to
be small entities under SBA’s size
standards. No other entities would be
directly affected by this rulemaking
action. While some commenters
suggested that the rule may impact
small entities indirectly as applicants to
Federal actions subject to ESA section
7(a)(2), we are unaware of any
significant economic effect on a
substantial number of small entities.
Although we received comments raising
generalized concerns about alleged
potential effects on small entities, none
of these comments described direct,
concrete economic effects on small
entities, much less ‘‘significant’’
economic effects on a ‘‘substantial’’
number of small entities.
This rulemaking applies to
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 jeopardize listed species or result in
the destruction or adverse modification
of critical habitat. This rulemaking will
not result in any additional change in
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our determination as to whether
proposed actions are likely to jeopardize
listed species or result in the
destruction or adverse modification of
critical habitat. This rulemaking serves
to provide clarity to the standards with
which we will evaluate agency actions
pursuant to section 7 of the ESA.
interagency consultation processes
under the ESA 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.
Unfunded Mandates Reform Act (2
U.S.C. 1501 et seq.)
In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1501 et
seq.):
(a) On the basis of information
presented under Regulatory Flexibility
Act above, this rule will not
‘‘significantly or uniquely’’ affect small
governments. We have determined and
certify pursuant to the Unfunded
Mandates Reform Act, 2 U.S.C. 1502,
that this rule will not impose a cost of
$100 million or more in any given year
on local or State governments or private
entities. A small government agency
plan is not required. As explained
above, small governments will not be
affected because the rule will not place
additional requirements on any city,
county, or other local municipalities.
(b) This rule will not produce a
Federal mandate on State, local, or
Tribal governments or the private sector
of $100 million or greater in any year;
that is, this rule is not a ‘‘significant
regulatory action’’ under the Unfunded
Mandates Reform Act. This rule will
impose no obligations on State, local, or
Tribal governments.
Civil Justice Reform (E.O. 12988)
This rule does 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 revises
the Service’s regulations for protecting
species pursuant to the Act.
Takings (E.O. 12630)
In accordance with E.O. 12630, this
rule will not have significant takings
implications. This rule will not directly
affect private property, nor will it cause
a physical or regulatory taking. It will
not result in a physical taking because
it will not effectively compel a property
owner to suffer a physical invasion of
property. Further, the rule will not
result in a regulatory taking because it
will not deny all economically
beneficial or productive use of the land
or aquatic resources, and it will
substantially advance a legitimate
government interest (conservation and
recovery of endangered species and
threatened species) and will not present
a barrier to all reasonable and expected
beneficial use of private property.
Federalism (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
improving and clarifying the
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Government-to-Government
Relationship With Tribes
In accordance with E.O. 13175,
‘‘Consultation and Coordination with
Indian Tribal Governments,’’ and the
Department of the Interior’s manual at
512 DM 2, we have considered possible
effects of this rule on federally
recognized Indian Tribes and Alaska
Native Corporations. We held three
informational webinars for federally
recognized Tribes in January 2023,
before the June 22, 2023, proposed rule
published, to provide a general
overview of, and information on how to
provide input on, a series of
rulemakings related to implementation
of the Act that the Services were
developing, including the June 22, 2023,
proposed rule to revise our regulations
at 50 CFR part 402. In July 2023, we also
held six informational webinars after
the proposed rule published, to provide
additional information to interested
parties, including Tribes, regarding the
proposed regulations. Over 500
attendees, including representatives
from federally recognized Tribes and
Alaska Native Corporations,
participated in these sessions, and we
addressed questions from the
participants as part of the sessions. We
received written comments from Tribal
organizations; however, we did not
receive any requests for coordination or
government-to-government consultation
from any federally recognized Tribes.
This rule is general in nature and does
not directly affect any specific Tribal
lands, treaty rights, or Tribal trust
resources. Therefore, we conclude that
this rule does not have Tribal
implications under section 1(a) of E.O.
13175. Thus, formal government-togovernment consultation is not required
by E.O. 13175 and related DOI policies.
This rule revises regulations for
protecting endangered and threatened
species pursuant to the Act. These
regulations will not have substantial
direct effects on one or more Indian
Tribes, on the relationship between the
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Federal Government and Indian Tribes,
or on the distribution of power and
responsibilities between the Federal
Government and Indian Tribes.
We will continue to collaborate with
Tribes and Alaska Native Corporations
on issues related to federally listed
species and their habitats and work with
them as we implement the provisions of
the Act. See Secretaries’ Order 3206
(‘‘American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities,
and the Endangered Species Act,’’ June
5, 1997) and Secretaries’ Order 3225
(‘‘Endangered Species Act and
Subsistence Uses in Alaska
(Supplement to Secretarial Order
3206),’’ January 19, 2001).
Paperwork Reduction Act
This rule does not contain any new
collection of information that requires
approval by the Office of Management
and Budget (OMB) under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et seq.). 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.
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National Environmental Policy Act
In the proposed rule we invited the
public to comment on whether and how
the regulation may have a significant
impact on the human environment,
including any effects identified as
extraordinary circumstances at 43 CFR
46.25 or fall within one of the
categorical exclusions for actions that
have no individual or cumulative effect
on the quality of the human
environment. After considering the
comments received, the Services
analyzed this rule in accordance with
the criteria of the National
Environmental Policy Act (NEPA; 42
U.S.C. 4321 et seq.), the Council on
Environmental Quality NEPA
regulations (40 CFR parts 1500–1508),
the Department of the Interior (DOI)
NEPA regulations (43 CFR part 46), the
DOI 516 Departmental Manual Chapters
1–4 and 8, and the National Oceanic
and Atmospheric Administration
(NOAA) Policy and Procedures for
Compliance with the National
Environmental Policy Act and Related
Authorities (NOAA Administrative
Order (NAO) 216–6A and Companion
Manual for NAO 216–6A. This analysis
was undertaken in an abundance of
caution only, as we maintain that one or
more categorical exclusions apply to
this rule. Documentation of our
compliance under NEPA is available
online at https://www.regulations.gov at
Docket No. FWS–HQ–ES–2021–0104.
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Endangered Species Act
In developing this final rule, the
Services are acting in their unique
statutory role as administrators of the
Act and are engaged in a legal exercise
of interpreting the standards of the Act.
The Services’ promulgation of
interpretive rules that govern their
implementation of the Act is not an
action that is in itself subject to the
Act’s provisions, including section
7(a)(2). The Services have a historical
practice of issuing their general
implementing regulations under the
ESA without undertaking section 7
consultation. Given the plain language,
structure, and purposes of the ESA, we
find that Congress never intended to
place a consultation obligation on the
Services’ promulgation of implementing
regulations under the Act. In contrast to
actions in which we have acted
principally as an ‘‘action agency’’ in
implementing the Act to propose or take
a specific action (e.g., issuance of
section 10 permits and actions under
statutory authorities other than the
ESA), with this document, the Services
are carrying out an action that is at the
very core of their unique statutory role
as administrators—promulgating general
implementing regulations or revisions to
those regulations that interpret the
terms and standards of the statute.
Energy Supply, Distribution or Use (E.O.
13211)
Executive Order 13211 requires
agencies to prepare statements of energy
effects when undertaking certain
actions. The revised regulations are 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.
Authority
We issue this final rule under the
authority of the Endangered Species
Act, as amended (16 U.S.C. 1531 et
seq.).
List of Subjects in 50 CFR Part 402
Endangered and threatened species.
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
1. The authority citation for part 402
continues to read as follows:
■
Authority: 16 U.S.C. 1531 et seq.
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Subpart A—General
2. Amend § 402.02 by revising the
definitions of ‘‘Effects of the action’’,
‘‘Environmental baseline’’, and
‘‘Reasonable and prudent measures’’ to
read as follows:
■
§ 402.02
Definitions.
*
*
*
*
*
Effects of the action are all
consequences to listed species or critical
habitat that are caused by the proposed
action, including the consequences of
other activities that are caused by the
proposed action but that are not part of
the action. A consequence is caused by
the proposed action if it would not
occur but for the proposed action and it
is reasonably certain to occur. Effects of
the action may occur later in time and
may include consequences occurring
outside the immediate area involved in
the action.
Environmental baseline refers to the
condition of the listed species or its
designated critical habitat in the action
area, without the consequences to the
listed species or designated critical
habitat caused by the proposed action.
The environmental baseline includes
the past and present impacts of all
Federal, State, or private actions and
other human activities in the action
area, the anticipated impacts of all
proposed Federal projects in the action
area that have already undergone formal
or early section 7 consultation, and the
impact of State or private actions which
are contemporaneous with the
consultation in process. The impacts to
listed species or designated critical
habitat from Federal agency activities or
existing Federal agency facilities that
are not within the agency’s discretion to
modify are part of the environmental
baseline.
*
*
*
*
*
Reasonable and prudent measures
refer to those actions the Director
considers necessary or appropriate to
minimize the impact of the incidental
take on the species.
*
*
*
*
*
Subpart B—Consultation Procedures
3. Amend § 402.14 by revising
paragraph (i) to read as follows:
■
§ 402.14
Formal consultation.
*
*
*
*
*
(i) Incidental take. (1) In those cases
where the Service concludes that an
action (or the implementation of any
reasonable and prudent alternatives)
and the resultant incidental take of
listed species will not violate section
7(a)(2), and, in the case of marine
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mammals, where the taking is
authorized pursuant to section 101(a)(5)
of the Marine Mammal Protection Act of
1972, the Service will provide with the
biological opinion a statement
concerning incidental take that:
(i) Specifies the impact of incidental
taking as the amount or extent of such
taking. A surrogate (e.g., similarly
affected species or habitat or ecological
conditions) may be used to express the
amount or extent of anticipated take,
provided that the biological opinion or
incidental take statement: Describes the
causal link between the surrogate and
take of the listed species, explains why
it is not practical to express the amount
or extent of anticipated take or to
monitor take-related impacts in terms of
individuals of the listed species, and
sets a clear standard for determining
when the level of anticipated take has
been exceeded;
(ii) Specifies those reasonable and
prudent measures that the Director
considers necessary or appropriate to
minimize such impact of incidental
taking on the species;
(iii) In the case of marine mammals,
specifies those measures that are
necessary to comply with section
101(a)(5) of the Marine Mammal
Protection Act of 1972 and applicable
regulations with regard to such taking;
(iv) Sets forth the terms and
conditions (including, but not limited
to, reporting requirements) that must be
complied with by the Federal agency or
any applicant to implement the
measures specified under paragraphs
(i)(1)(ii) and (iii) of this section; and
(v) Specifies the procedures to be
used to handle or dispose of any
individuals of a species actually taken.
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17:36 Apr 04, 2024
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(2) Reasonable and prudent measures,
along with the terms and conditions that
implement them, cannot alter the basic
design, location, scope, duration, or
timing of the action, may involve only
minor changes, and may include
measures implemented inside or outside
of the action area that avoid, reduce, or
offset the impact of incidental take.
(3) Priority should be given to
developing reasonable and prudent
measures and terms and conditions that
avoid or reduce the amount or extent of
incidental taking anticipated to occur
within the action area. To the extent it
is anticipated that the action will cause
incidental take that cannot feasibly be
avoided or reduced in the action area,
the Services may set forth additional
reasonable and prudent measures and
terms and conditions that serve to
minimize the impact of such taking on
the species inside or outside the action
area.
(4) In order to monitor the impacts of
incidental take, the Federal agency or
any applicant must report the progress
of the action and its impact on the
species to the Service as specified in the
incidental take statement. The reporting
requirements will be established in
accordance with 50 CFR 13.45 and
18.27 for FWS and 50 CFR 216.105 and
222.301(h) for NMFS.
(5) If during the course of the action
the amount or extent of incidental
taking, as specified under paragraph
(i)(1)(i) of this section, is exceeded, the
Federal agency must reinitiate
consultation immediately.
(6) Any taking that is subject to a
statement as specified in paragraph
(i)(1) of this section and that is in
compliance with the terms and
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Fmt 4701
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conditions of that statement is not a
prohibited taking under the Act, and no
other authorization or permit under the
Act is required.
(7) For a framework programmatic
action, an incidental take statement is
not required at the programmatic level;
any incidental take resulting from any
action subsequently authorized, funded,
or carried out under the program will be
addressed in subsequent section 7
consultation, as appropriate. For a
mixed programmatic action, an
incidental take statement is required at
the programmatic level only for those
program actions that are reasonably
certain to cause take and are not subject
to further section 7 consultation.
*
*
*
*
*
■ 4. Amend § 402.16 by revising the
introductory text of paragraph (a) to
read as follows:
§ 402.16
Reinitiation of consultation.
(a) Reinitiation of consultation is
required and shall be requested by the
Federal agency, where discretionary
Federal involvement or control over the
action has been retained or is authorized
by law and:
*
*
*
*
*
§ 402.17
■
[Removed]
5. Remove § 402.17.
Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and
Parks, Department of the Interior.
Richard Spinrad,
Under Secretary of Commerce for Oceans and
Atmosphere, NOAA Administrator, National
Oceanic and Atmospheric Administration.
[FR Doc. 2024–06902 Filed 4–2–24; 8:45 am]
BILLING CODE 4333–15–P
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]]>Agencies
[Federal Register Volume 89, Number 67 (Friday, April 5, 2024)]
[Rules and Regulations]
[Pages 24268-24298]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06902]
[[Page 24267]]
Vol. 89
Friday,
No. 67
April 5, 2024
Part IV
Department of the Interior
-----------------------------------------------------------------------
Fish and Wildlife Service
Department of Commerce
-----------------------------------------------------------------------
National Oceanic and Atmospheric Administration
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50 CFR Part 402
Endangered and Threatened Wildlife and Plants; Regulations for
Interagency Cooperation; Final Rule
Federal Register / Vol. 89 , No. 67 / Friday, April 5, 2024 / Rules
and Regulations
[[Page 24268]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 402
[Docket No. FWS-HQ-ES-2021-0104; FXES1114090FEDR-245-FF09E300000;
Docket No. NMFS-240325-0087]
RIN 1018-BF96; 0648-BK48
Endangered and Threatened Wildlife and Plants; Regulations for
Interagency Cooperation
AGENCY: U.S. Fish and Wildlife Service (FWS), Interior; National Marine
Fisheries Service (NMFS), National Oceanic and Atmospheric
Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: FWS and NMFS (collectively referred to as the ``Services'' or
``we'') finalize revisions to portions of our regulations that
implement section 7 of the Endangered Species Act of 1973, as amended
(``Act''). The revisions to the regulations clarify, interpret, and
implement portions of the Act concerning the interagency cooperation
procedures.
DATES: This final rule is effective May 6, 2024.
ADDRESSES: Public comments and materials received, as well as
supporting documentation used in the preparation of this final rule,
are available online at https://www.regulations.gov at Docket No. FWS-
HQ-ES-2021-0104.
FOR FURTHER INFORMATION CONTACT: Craig Aubrey, Ecological Services,
U.S. Fish and Wildlife Service, 5275 Leesburg Pike, Falls Church, VA
22041-3803; telephone 703/358-2442; or Tanya Dobrzynski, Chief, Office
of Protected Resources, National Marine Fisheries Service, 1315 East-
West Highway, Silver Spring, MD 20910, telephone 301/427-8400.
Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States.
SUPPLEMENTARY INFORMATION:
Background
The Secretaries of the Interior and Commerce (the ``Secretaries'')
share responsibilities for implementing most of the provisions of the
Endangered Species Act, as amended (hereafter referred to as ``ESA'' or
``the Act;'' 16 U.S.C. 1531 et seq.), and authority to administer the
Act has been delegated by the respective Secretaries to the Director of
FWS and the Assistant Administrator for NMFS. Together, the Services
have promulgated procedural regulations governing interagency
cooperation under section 7 of the Act, which requires Federal
agencies, in consultation with and with the assistance of the
Secretaries of the Interior and Commerce, to ensure that any action
authorized, funded, or carried out by such agencies is not likely to
jeopardize the continued existence of endangered or threatened species
or result in the destruction or adverse modification of critical
habitat of such species. These joint regulations, which are codified in
the Code of Federal Regulations at 50 CFR part 402, were most recently
revised in 2019 (84 FR 44976, August 27, 2019; hereafter referred to as
``the 2019 rule''). Those revised regulations became effective October
28, 2019 (84 FR 50333, September 25, 2019).
Executive Order 13990 (hereafter, ``E.O. 13990''), which was
entitled ``Protecting Public Health and the Environment and Restoring
Science To Tackle the Climate Crisis,'' was issued January 20, 2021,
and directed all departments and agencies to immediately review agency
actions taken between January 20, 2017, and January 20, 2021, and, as
appropriate and consistent with applicable law, consider suspending,
revising, or rescinding agency actions that conflict with important
national objectives, including promoting and protecting our public
health and the environment, and to immediately commence work to
confront the climate crisis. A ``Fact Sheet'' that accompanied E.O.
13990 identified a non-exhaustive list of particular regulations
requiring such a review and included the 2019 rule (see
www.whitehouse.gov/briefing-room/statementsreleases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/). In response to E.O. 13990
and in light of litigation over the 2019 rule, the Services proposed
revisions to portions of the ESA implementing regulations at 50 CFR
part 402.
On June 22, 2023, we published in the Federal Register (88 FR
40753) a proposed rule to amend portions of our regulations that
implement section 7 of the Act. We accepted public comments on the June
22, 2023, proposed rule for 60 days, ending August 21, 2023. The
proposed rule included clarifying the definitions of ``effects of the
action,'' ``environmental baseline,'' and ``reasonable and prudent
measures''; removing Sec. 402.17, ``Other provisions,'' which had been
promulgated with the intent of clarifying several aspects of the
process of determining whether an activity or consequence is reasonably
certain to occur; clarifying the responsibilities of the Federal agency
and the Services regarding the requirement to reinitiate consultation;
and revising the regulations at 50 CFR 402.02 and 402.14 regarding the
scope of reasonable and prudent measures (RPMs) in an incidental take
statement (ITS). The proposed rule also sought comment on all aspects
of the 2019 rule, including whether any of those provisions should be
rescinded in their entirety (restoring the prior regulatory provision)
or revised in a different way. The Services also conducted outreach to
Federal and State agencies, industries regularly involved in section
7(a)(2) consultation, Tribes, nongovernmental organizations, and other
interested parties and invited their comment on the proposal.
Following consideration of all public comments received in response
to our proposed rule, we are proceeding to finalize revisions to our
implementing regulations at 50 CFR part 402 as proposed, with no
changes. The basis and purpose for this final rule are reflected in our
explanation in the June 2023 proposed rule, the responses to comments
below, as well as the 2019 final rule for those aspects of the 2019
final rule we are not changing here. These revisions will further
improve and clarify interagency consultation. With the exception of the
revisions at 50 CFR 402.02 and 402.14 regarding the RPMs in an
incidental take statement (ITS), the revisions do not make any changes
to existing practice of the Services in implementing section 7(a)(2) of
the Act.
In the event any provision is invalidated or held to be
impermissible as a result of a legal challenge, the ``remainder of the
regulations could function sensibly without the stricken provision.''
Belmont Mun. Light Dep't v. FERC, 38 F.4th 173, 187 (D.C. Cir. 2022)
(quoting MD/DC/DE Broad. Ass'n v. FCC, 236 F.3d 13, 22 (D.C. Cir.
2001)). Because each of the revisions stands on its own, the Services
view each revision as operating independently from the other revisions.
Should a reviewing court invalidate any particular revision(s) of this
rulemaking, the
[[Page 24269]]
remaining portions would still allow the Services to issue biological
opinions and incidental take statements that comprehensively evaluate
the effects of federal actions on listed species and critical habitat
and adequately address the impacts of incidental take that are
reasonably certain to occur. Specifically, these distinct provisions
include: (1) revisions to the definition of ``environmental baseline,''
(2) removal of section Sec. 402.17 and conforming revisions to the
definition of ``effects of the action,'' (3) revisions to Sec. 402.16,
and (4) revisions to the regulatory provisions regarding the scope of
reasonable and prudent measures in incidental take statements
(Sec. Sec. 402.02 and 402.14(i)). To illustrate this with one possible
example, in the event that a reviewing court were to find the revision
adopted in 2019 that described expedited consultations at Sec.
402.14(l) is invalid, that finding would not affect the current
revisions to the provisions for reinitiation of consultation at Section
Sec. 402.16.
The revisions to the regulations in this final rule are
prospective; they are not intended to require that any previous
consultations under section 7(a)(2) of the Act be reevaluated at the
time this final rule becomes effective (see DATES, above).
This rule is one of three rules publishing in today's Federal
Register that make changes to the regulations that implement the ESA.
Two of these final rules, including this one, are joint between the
Services, and one final rule is specific to FWS.
Summary of Comments and Responses
In our June 22, 2023, proposed rule (88 FR 40753), we requested
public comments by August 21, 2023. We received more than 140,000
comments by that date from individual members of the public, States,
Tribes, industry organizations, legal foundations and firms, and
environmental organizations. We received several requests for
extensions of the public comment period. However, we elected not to
extend the public comment period because we found the 60-day comment
period provided sufficient time for a thorough review of the proposed
revisions. The majority of the proposed revisions are to portions of
the regulations that were previously revised in 2019, and we jointly
announced in a public press release and on a Service website our
intention to revise these regulations in June of 2021. The number of
comments received indicated that members of the public were aware of
the proposed rule and had adequate time to review it. In addition, we
provided six informational sessions for a wide variety of audiences.
Over 500 attendees participated in these sessions, and we addressed
questions from the participants during each session. Finally, on our
website, we provided additional information about the proposed
regulations, such as frequently asked questions and a prerecorded
presentation on the proposed revisions.
Most of the comments we received were non-substantive, expressing
either general support for, or opposition to, the proposed rule with no
supporting information or analysis. Other comments expressed opinions
beyond the scope of this rulemaking. We do not, however, respond to
comments that are beyond the scope of this rulemaking action or that
were not related to the 2019 rule. The vast majority of the comments
received were nearly identical statements from individuals indicating
their general support for the proposed revisions to the 2019 rule and
concern for not including more revisions to the 2019 rule, but not
containing substantive content. We also received approximately 95
letters with detailed substantive comments with specific rationales for
support of or opposition to specific portions of the proposed rule.
Before addressing each of the comments, we reiterate the Services'
intention to provide additional guidance in an updated ESA Section 7
Consultation Handbook (Consultation Handbook) that we anticipate making
available for public comment after the publication of this final rule.
Related to topics addressed in this final rule, the additional guidance
will address application of the definition of ``effects of the action''
and ``environmental baseline,'' examples for defining when an activity
is reasonably certain to occur and guidance on application of the two-
part causation test, additional information on consulting
programmatically, guidance on implementation of section 7(a)(1) of the
Act, and implementation of the expanded scope of RPMs.
Recognizing that the revisions to the regulatory provisions
expanding the scope of RPMs represent a change to the Services'
practice, we would also like to highlight some of the key aspects of
that amendment, which are discussed in more detail in the response to
comments below. First, the Services find that the revision allowing for
the use of offsets as RPMs will more fully effectuate the conservation
goals of the ESA by addressing impacts of incidental take that may not
have been sufficiently minimized through measures confined to avoiding
or reducing incidental take levels. In that regard, our prior approach,
which restricted RPMs to measures that avoid or reduce incidental take,
has led to the continued deterioration of the condition of listed
species and their critical habitat through the accumulation of impacts
from incidental take over time. Further, those impacts from incidental
take may have been more adequately addressed through offsetting
measures.
Second, as explained in our response to comments below, the
respective revisions to Sec. 402.02 and Sec. 402.14(i), which
recognize the use of offsets as RPMs, are supported by the plain
language of the ESA. The relevant language at ESA section
7(b)(4)(C)(ii) plainly states that RPMs are to include measures that
minimize the ``impacts'' of incidental take, not just incidental take
itself. Like measures that avoid or reduce incidental take, offsetting
measures also ``minimize'' the impacts of incidental take on the
species. The legislative history of the 1982 amendments of the ESA also
confirms that Congress did not intend to preclude the Services from
specifying offsets as RPMs that minimize the impacts of incidental
take. Lastly, the Services do not expect offsetting measures that occur
outside the action area to violate the ``minor change rule.'' In most
instances, offsetting measures operate as additional measures to
minimize impacts of incidental take that would not prevent the action
subject to consultation from proceeding essentially as proposed.
Accordingly, text was added at 50 CFR 402.14(i)(2) to expressly
recognize that offsets may occur within or outside the action area,
consistent with the ``minor change rule'' (i.e., the requirement that
RPMs specify only minor changes that do not alter the basic design,
location, duration, or timing of the action).
In addition, the Services would like to address a particular issue
at the outset of this portion of the preamble. Several commenters
asserted that a recent decision from the D.C. Circuit Court of Appeals,
Maine Lobstermen's Association v. NMFS, 70 F.4th 582 (D.C. Cir. 2023)
(``MLA''), weighs against the Services removing Sec. 402.17 from the
section 7 regulations, especially the ``clear and substantial
information'' standard that applies in determining if a consequence is
reasonably certain to occur. We explain here our understanding of the
decision and why it does not undermine our regulatory revision to
remove Sec. 402.17. Because the subject consultation in the MLA
litigation required NMFS to grapple with scientific uncertainties, we
also offer additional explanation of how the
[[Page 24270]]
Services address such uncertainties, in general, consistent with the
holding in MLA and section 7(a)(2) of the Act. We respond to some of
the more specific comments in the responses section below.
In MLA, lobster fishermen challenged a NMFS no-jeopardy biological
opinion that analyzed the effects of authorizing the Federal lobster
and Jonah crab fisheries in the Northeast on the highly endangered
North Atlantic right whale. In developing the biological opinion, NMFS
faced uncertainties in determining the anticipated level of right whale
entanglements and any subsequent deaths the fishery was anticipated to
cause over the next 50 years. The D.C. Circuit Court of Appeals found
that NMFS impermissibly resolved these uncertainties by asserting the
legislative history of the ESA required NMFS to apply worst case
scenarios. See 70 F.4th at 597 (``When answering public comments the
Service blamed the Congress, insisting that . . . the legislative
history required it to deal in worst-case scenarios because `we need to
give the benefit of the doubt to the species.' ''). The MLA court held
that legislative history cannot ``compel a presumption in favor of the
species not required by the statute'' and that, under the ESA, the
Services facing scientific uncertainty may not simply resort to
``worst-case scenarios or pessimistic assumptions,'' but must instead
``strive to resolve or characterize the uncertainty through accepted
scientific techniques.'' Id. at 586, 598, 600.
That decision does not address the Services' discretion to resolve
ambiguities in the best available scientific data generally, or the
Services' decision to remove Sec. 402.17 from the section 7
regulations. First, the court invalidated only the particular way in
which NMFS resolved uncertainties in MLA--namely that the agency, in
the court's view, made a legal determination that it had to give the
benefit of the doubt to an endangered species, rather than making a
scientific judgment based on the best available scientific data. The
court stated, for example, that agencies may not ``jump to a
substantive presumption [in favor of the endangered species] that
distorts the analysis of effects and creates false positives.'' MLA, 70
F.4th at 600. But the court also made clear that when agencies make ``a
scientifically defensible decision'' by, for instance, ``striv[ing] to
resolve or characterize the uncertainty through accepted scientific
techniques,'' their ``predictions will be entitled to deference.'' Id.
The court further anticipated that NMFS ``will be able to make'' such
scientifically defensible decisions ``[i]n most realistic cases'' and
thereby avoid the specific issues the court found problematic in MLA.
Id. The Services historically have resolved ambiguities or
uncertainties in the data based on such ``accepted scientific
techniques.'' As a result, the Services anticipate that the MLA
decision will have limited implications for the Services' overall
implementation of section 7(a)(2).
Second, MLA does not constrain the Services' decision to remove
Sec. 402.17, contrary to some commenters' assertions. As discussed
more fully below, the Services are removing the ``clear and substantial
information'' requirement because it could be read as inappropriately
restricting the scope of ``the best available scientific and commercial
data'' by demanding a degree of certitude and quantification. The best
available data are not always free of ambiguities and thus ``clear,''
nor are they invariably quantifiable or ``substantial'' in quantity. As
the Services explained in the 2019 section 7 final rule: The best
scientific and commercial data available is not limited to peer-
reviewed, empirical, or quantitative data but may include the knowledge
and expertise of Service staff, Federal action agency staff,
applicants, and other experts, as appropriate, applied to the questions
posed by the section 7(a)(2) analysis when information specific to an
action's consequences or specific to species response or extinction
risk is unavailable. Methods such as conceptual or quantitative models
informed by the best available information and appropriate assumptions
may be required to bridge information gaps in order to render the
Services' opinion regarding the likelihood of jeopardy or adverse
modification. Expert elicitation and structured decision-making
approaches are other examples of approaches that may also be
appropriate to address information gaps. (84 FR 45000)
MLA does not require a different view. In interpreting section 7(a)
of the ESA, the court held that agencies must use ``the best available
scientific data, not the most pessimistic.'' MLA, 70 F.4th at 599. The
court did not hold that, within the best available scientific data, the
statute permits reliance only on clear data that lack uncertainties or
a substantial amount of such data. And while the court made a passing
reference to Sec. 402.17, it did so to support the proposition that,
even under the Services' own ``interpretive rules,'' NMFS's approach in
that case fell short because, in the court's view, it lacked a clear
and substantial basis for predicting reasonably certain effects. The
court did not indicate the statute demands ``clear and substantial
information.''
That understanding is consistent with the statutory text, which
provides that each federal agency shall ``insure that any action
authorized, funded, or carried out by such agency . . . is not likely
to jeopardize the continued existence of any endangered species or
threatened species.'' 16 U.S.C. 1536(a)(2) (emphases added). As the
Supreme Court has explained, ``insure'' in section 7(a)(2) means ``[t]o
make certain, to secure, to guarantee.'' National Association of Home
Builders v. Defenders of Wildlife, 551 U.S. 644, 667 (2008) (quotation
marks omitted). Thus, agencies do not determine the effects of an
action using ``the best scientific and commercial data available'' in a
vacuum. Rather, the ESA envisions that agencies would make any such
scientific judgments in service of their overarching responsibility to
``make certain'' their actions are ``not likely'' to jeopardize
protected species. Accordingly, a regulation that impairs agencies'
ability to carry out that duty by requiring them to disregard any
reasonably certain effects that have ambiguities in the underlying
information or that may be based on less than substantial information
could be inconsistent with the statute.
We note that even with the removal of Sec. 402.17, the two-part
causation test (i.e., the ``but for'' and ``reasonably certain to
occur'' standards) for determining whether a particular activity or
consequence falls under the definition of ``effects of the action''
remains in place. As the Services explained in the 2019 rule, the
``reasonably certain to occur'' standard adds an element of
foreseeability and a limitation to our causation standard for
determining ``effects of the action.'' 84 FR at 44991. That standard
prevents the Services from engaging in speculative analyses, though it
does not require a guarantee that an effect will occur. See 51 FR 19926
at 19932-19933; June 3, 1986 (1986 section 7 regulations final rule);
80 FR 26832 at 26837; May 11, 2015 (incidental take statement final
rule); 83 FR 35178 at 35183; July 25, 2018 (2018 proposed rule to
update section 7 regulations). These safeguards ensure that when faced
with scientific uncertainties, the Services will not automatically rely
on ``worst-case scenarios.'' See 84 FR 44967 at 45000; August 27, 2019.
Instead, consistent with the statute and our regulations, the Services
will continue to evaluate the best available evidence to arrive at
principled scientific determinations in rendering our opinion under
section 7
[[Page 24271]]
of the Act. Similarly, in rendering our opinion and resolving
uncertainties, we will continue to be mindful of the fundamental duty--
required by the text of section 7(a)(2)--to ``insure'' the agency
action is not likely to jeopardize species protected under the Act.
Below, we summarize and respond to substantive and other relevant
comments we received during the public comment period; we combined
similar comments where appropriate.
Section 402.02--Definitions
Definition of ``Effects of the Action''
As proposed, we are revising the definition of ``effects of the
action'' by adding ``but that are not part of the action'' to the end
of the first sentence and removing the parenthetical reference to Sec.
402.17. The first sentence now reads: Effects of the action are all
consequences to listed species or critical habitat that are caused by
the proposed action, including the consequences of other activities
that are caused by the proposed action but that are not part of the
action. The Services received a wide variety of comments on our
proposed revisions to the definition of ``effects of the action.''
These comments ranged from support of the proposed revisions, requests
to revert to the pre-2019 definition, and recommendations for
modifications to the proposed definition, largely to incorporate
portions of Sec. 402.17 in the ``effects of the action'' definition if
that section is removed as had been proposed. Commenters in support of
the revisions to the 2019 definition generally agreed with the
reasoning of the Services but many requested additional guidance on the
application of the definition. The Services intend to provide
additional guidance in an updated Consultation Handbook, which we
anticipate publishing in the Federal Register for public comment after
issuance of this final rule.
Commenters who requested the Services return to the pre-2019
definition of ``effects of the action'' generally pointed to the
removal of the terms ``direct,'' ``indirect,'' interrelated,'' and
``interdependent'' and the use of the terms ``consequences'' and
``other activities,'' as well as the two-part causation test as being a
change in practice that narrows the scope of the ``effects of the
action.'' The Services respectfully decline to return to the pre-2019
definition of ``effects of the action.'' We reassert our position that
the retained changes in the 2019 rule and the revisions adopted from
the 2023 proposed rule maintain the pre-2019 scope of the effects
analysis. These changes provide further clarity in the application of
the longstanding practice of determining the full range of effects of a
proposed action under consultation, including those that result from
other activities that would not occur but for the proposed action.
Under the pre-2019 definition, there was undue focus on categorizing
the specific type of effect analyzed as part of the ``effects of the
action'' (i.e., assigning effects to the categories of direct,
indirect, interrelated, or interdependent). The changes promulgated in
2019 to the definition avoided that exercise of categorizing the
effects, but all these effects are, nevertheless, still analyzed as
part of the ``effects of the action.'' Many commenters requested the
Services retain the reference to Sec. 402.17 in the ``effects of the
action'' definition and the content of Sec. 402.17. The comments
related to Sec. 402.17 and the ``effects of the action'' definition
centered on the two-part causation test, particularly the framework
provided for determining whether an activity or consequence is
reasonably certain to occur. Those comments that focused on Sec.
402.17 are addressed below in the preamble to this final rule.
Comment 1: One commenter recommended adding the word ``likely'' to
the definition of ``effects of the action'' to assist in distinguishing
that consequences of the action must be likely to occur in order to
result in effects.
Response: The current definition and the ``but for'' and
``reasonably certain to occur'' causation provide a clear test of what
constitutes an effect of the action, including for other activities
caused by the action. Adding the term ``likely'' would add ambiguity
rather than clarifying the test for an effect of the action. The
Services respectfully decline this requested change to the definition
of ``effects of the action.''
Comment 2: Several commenters proposed incorporating the statutory
requirement to use the best available scientific and commercial data
into the ``effects of the action'' definition to support the two-part
causation test.
Response: The last sentence of section 7(a)(2) of the Act requires
both the Federal action agencies and the Services to use ``the best
scientific and commercial data available.'' This requirement applies to
all aspects of the Services' application of section 7(a)(2)
consultation, including determining what activities or consequences are
considered reasonably certain to occur when analyzing the ``effects of
the action'' and any ``cumulative effects.'' Therefore, we respectfully
decline the suggestion to add ``using the best scientific and
commercial data available'' to the ``effects of the action'' definition
because using the best scientific and commercial data available is
already an explicit requirement of the Act for agencies and
incorporated into our formulation of the biological opinion under the
regulations. See 16 U.S.C. 1536(a)(2), 50 CFR 402.14(g)(8).
Comment 3: Commenters recommended modifications to the definition
of ``effects of the action'' to distinguish ``activities'' from the
proposed action in order to apply the two-part causation test to both
``activities'' and ``consequences.''
Response: The modification of the definition in the 2023 proposed
rule to add ``but that are not part of the action'' addresses this
recommendation so the Services did not further modify the ``effects of
the action'' definition. The reference to ``activities'' in the first
sentence of the 2019 ``effects of the action'' definition and in the
revised version of the definition in this final rule is to those
activities that are caused by, but are not part of, the proposed
action. Under the pre-2019 definition, as described in the 2018
preamble for the proposed rule to the 2019 rule, the intent in changing
the definition to ``other activities'' that would have been considered
``indirect effects'' or ``interrelated'' or ``interdependent'' actions
was for consultations to focus on identifying the full range of the
consequences rather than categorizing them (84 FR 44976-44977, August
27, 2019; 83 FR 35178 at 35183, July 25, 2018). The two-part causation
test is used to determine when a consequence of these other activities
is caused by the proposed action because the other activities (and the
consequences of them) would not occur ``but for'' the proposed action
and are ``reasonably certain to occur.''
Comment 4: Several commenters suggested returning to the 1986
``effects of the action'' definition to use the terms ``direct,''
``indirect,'' ``interrelated,'' and ``interdependent.'' They believe
the 2019 definition narrows the scope of ``effects of the action'' and
argue that collapsing direct and indirect effects into a single
``consequences'' requirement changes past practice because indirect
effects did not require ``but for'' causation prior to 2019. Commenters
noted that the 1998 Consultation Handbook required ``but for'' only in
analyzing ``take'' resulting from the action, as well as interrelated
and interdependent actions.
Response: The 1986 definition of ``indirect effects'' referred to
effects that are ``caused by'' the proposed action whereas the
Services' 1998 Consultation
[[Page 24272]]
Handbook includes the phrase ``caused by or results from,'' both of
which require an assessment of a causal connection between an action
and an effect. The ``but for'' causation test in the 2019 revised
definition of ``effects of the action'' and as modified in this final
rule is similar to ``caused by'' or ``caused by or results from'' in
that both tests speak to a connection between the proposed action and
the consequent results of that action, whether they be (1) physical,
chemical, or biotic consequences to the environment, the species or
critical habitat, or (2) activities that would not occur but for the
proposed action. Both tests require a determination of factual
causation, and since 2019 we have not observed a change in the
Services' practice in applying ``but for'' causation to consequences
once termed ``indirect effects'' compared to the regulatory term
``caused by.'' As we noted in the preamble of the 2018 proposed rule,
``[i]t has long been our practice that identification of direct and
indirect effects as well as interrelated and interdependent actions is
governed by the `but for' standard of causation.'' Similarly, as
defined in Sec. 402.02, ``incidental take refers to takings that
result from . . . an otherwise lawful activity.'' 50 CFR 402.02
(emphasis added). Moreover, our 1998 Consultation Handbook states: ``In
determining whether the proposed action is reasonably likely to be the
direct or indirect cause of incidental take, the Services use the
simple causation principle: i.e., `but for' the implementation of the
proposed action. . . .'' (1998 Consultation Handbook, page 4-47). For
these reasons, the Services continue to maintain that the ``but for''
test reflects the Services' long-standing practice and has not changed
the scope of our analyses. Therefore, we decline the commenters'
request.
Comment 5: Commenters recommended that consideration of effects of
ongoing agency actions not be moved to the ``environmental baseline.''
They argued that, if ongoing agency actions are moved to the
``environmental baseline,'' it will be difficult for the Services to
determine whether a species already exists in a state of baseline
jeopardy because of these previously authorized ongoing Federal
actions.
Response: The concept of ``baseline jeopardy'' originates from
cases like Nat'l Wildlife Fed. v. NMFS, 524 F.3d 917, 930 (9th Cir.
2008) (``[l]ikewise, even where baseline conditions already jeopardize
a species, an agency may not take action that deepens the jeopardy by
causing additional harm''). As we noted in our responses to comments in
the 2019 rule and re-affirm here, the Services' position on ``baseline
jeopardy'' remains that the statute and regulations do not contain any
provisions under which a species should be found to be already (pre-
action) in an existing status of ``baseline jeopardy,'' such that any
additional adverse impacts must be found automatically to meet the
regulatory standards for ``jeopardize the continued existence of'' or
``destruction or adverse modification.'' See 84 FR 44976 at 44987;
August 27, 2019. Please see the responses to comments on the definition
of ``environmental baseline'' below for more details.
Comment 6: Commenters noted that, while the 2019 definition may
reflect the Services' longstanding practice, codifying the two-pronged
test affects agencies' ability to fulfill their duties under section 7.
Many commenters reiterated concerns raised during rulemaking on the
2019 rule that moving ongoing actions and their effects from the
``effects of the action'' to the ``environmental baseline'' undermines
the Services' ability to conduct a thorough jeopardy analysis.
Commenters argue that moving ongoing activities to the ``environmental
baseline'' will exclude them from the jeopardy analysis.
Response: The Services respectfully disagree with the comments that
use of the two-part causation test affects the ability of agencies to
fulfill their section 7(a)(2) responsibilities. As we stated in 2019
and in the preamble to the 2023 proposed rule, the use of the two-part
causation test has been part of our practice since the 1986 final rule
on interagency cooperation (51 FR 19926 at 19933; June 3, 1986) (the
Services did not define ``effects of the action'' in the original 1978
section 7 regulations (43 FR 870; January 4, 1978)). Consultation under
the Act is conducted on the effects of the entire proposed action (all
consequences caused by the proposed action). To further clarify,
proposed actions for ongoing activities, even those that incrementally
improve conditions may still have adverse effects (i.e., are not wholly
beneficial), and require formal consultation. The analysis of an
action's effects is fact-based and consultation-specific. In terms of
the jeopardy and destruction-or-adverse-modification analyses, the
Services consider the effects of the action added to the
``environmental baseline'' and cumulative effects in light of the
status of the species and critical habitat. Therefore, removing the
``environmental baseline'' definition from the definition of ``effects
of the action'' does not affect either jeopardy or destruction-or-
adverse-modification analyses, and the Services decline the suggestion
to retain ``environmental baseline'' in the ``effects of the action''
definition. We provide additional discussion of how ``ongoing
activities'' are considered for purposes of the ``environmental
baseline'' in the ``environmental baseline'' section of this preamble
below.
Comment 7: Other commenters asserted that the ``effects of the
action'' definition is overly broad and will unnecessarily restrict
future projects requiring section 7 consultation because of the need
for the Services and Federal action agencies to analyze an array of
effects that are unrelated or only tangentially related to the proposed
action. Conversely, several commenters asserted the proposed changes to
the definition specific to the two-part causation test raise the bar
for any future review of the effects of a proposed action without
supporting rationale as to why a higher bar is needed. These commenters
argue that the ``but for'' and ``reasonably certain to occur''
requirements of the two-part causation test are too high given that
``may affect'' is the trigger for consultation.
Response: The revisions made in the 2019 rule and the further minor
revisions in this final rule will not shift the scope of effects we
consider under our revised definition of ``effects of the action.''
Therefore, as explained in the 2019 rule, our analyses will neither
raise nor lower the bar for the scope of analysis of effects that has
been in place since 1986. All the effects of the action considered
since the 1986 revisions to the definition are still included in the
scope of ``effects of the action,'' and no other effects or activities
that are not caused by the proposed Federal action will be included. To
the extent that commenters are asserting we should further restrict the
definition of ``effects of the action'' to only those effects within
the jurisdiction or control of the Federal agency, we decline this
request for the same reasons discussed in 2019. See 84 FR 44991, August
27, 2019. The revisions to the definition and the changes made in 2019
did not change existing practice in determining the effects of the
action, which includes what were referred to as direct, indirect,
interrelated, and interdependent in the 1986 definition of ``effects of
the action.'' The improvements to the definition in the 2019 rule and
in this revision include the explicit establishment of the two-part
test for effects, which codifies the Services' longstanding analysis in
a clear standard in order to be more consistent
[[Page 24273]]
and transparent. The Services do not find that the 2019 definition or
the revised definition in this rule narrows or broadens the scope of
the effects that would be considered in a section 7(a)(2) consultation.
Similar comments were made relating to Sec. 402.17; please see our
responses pertaining to comments on that section of the proposed rule
below in this preamble.
Comment 8: One commenter argued that removing the definition of
``reasonably certain to occur'' while leaving in the concept that
effects are not bound by time or space will create an unworkable burden
on the consulting agency because an agency will not be able to evaluate
all possible effects. Eliminating the definition of ``reasonably
certain'' removes the two-tier system for identifying effects.
Response: The Services are retaining ``reasonably certain to
occur'' in the revisions to the ``effects of the action'' definition as
part of the two-part causation test. As discussed above, the revisions
to the definition in this final rule will not shift the scope of
effects we consider in section 7(a)(2) consultations. In addition,
while we provided guidance on the factors to consider when determining
whether other activities are ``reasonably certain to occur,'' the
Services did not define the term and do not intend to define it because
we are not setting limits on the types of activities that are
reasonably certain to occur. We intend to provide further guidance in
an updated Consultation Handbook. See also our response to comments
related to Sec. 402.17.
Comment 9: Several commenters recommended retaining Sec. 402.17
and the reference to it in the ``effects of the action'' definition or
incorporating the content of Sec. 402.17 in the definition if the
section is removed from the regulations. Commenters also recommended
examples for defining when an activity is reasonably certain to occur
and guidance for action agencies and the Services to ensure consistency
in the application of the test. In addition, commenters suggested
regulatory language that considers additional factors such as the
proximity of the action in relation to the effect, geographical
distribution of effects, timing of the effect in relation to sensitive
periods of a species' life cycle, the nature and duration of the
effect, and disturbance frequency as described in the 1998 Consultation
Handbook discussion on the multi-factor tests to analyze the effects of
a proposed action and related activities on species and critical
habitat. Conversely, another commenter supported the removal of Sec.
402.17 but encouraged the Services to work towards a stricter,
quantifiable definition of ``reasonably certain to occur.''
Response: The Services support the recommendation to provide
examples for defining when an activity is reasonably certain to occur
and guidance on application of the two-part causation test. We believe
this information is more appropriately addressed in an update to the
Consultation Handbook rather than regulatory text. The Services update
to the Consultation Handbook will incorporate changes to the
regulations since the handbook was issued in 1998. For comments related
to Sec. 402.17, please see that section of the preamble below.
Comment 10: Some commenters indicated that the proposed changes to
the ``effects of the action'' definition will cause greater uncertainty
in terms of what to include in the effects of the action. Several also
noted that the addition of the phrase ``but that are not part of the
action'' to the definition is unclear and recommended that guidance be
created by the Services to ensure the interpretation of ``not part of
the action'' is consistent across offices and to clarify the scope or
extent of activities outside the proposed action that will be analyzed.
Conversely, other commenters believe the addition of ``but that are not
part of the action'' is a helpful clarification and recommend further
modification of the definition to clarify that the two-part causation
test does not apply to the proposed action itself (as opposed to other
activities caused by, but that are not part of, the proposed action).
Response: As discussed previously, the Services believe the minor
revisions to the definition in this final rule will not shift the scope
of effects considered in section 7(a)(2) consultations. The addition of
``but that are not part of the action'' to the definition is meant to
maintain the scope of the analysis of the effects by clarifying that it
includes other activities caused by the proposed action that are
reasonably certain to occur. The Services respectfully decline the
suggestion to further refine the definition to explicitly state that
the two-part causation test does not apply to the proposed action
itself but agree that guidance on the application of the two-part
causation test is warranted and anticipate including this information
in the updated Consultation Handbook.
Comment 11: One commenter argued that the ``but for'' causation
standard casts a wider net than a ``proximate cause'' standard. The
commenter maintains that a proximate cause is a cause that directly
produces an event and without which the event would not have occurred.
``But for'' causation treats the effects of an action as a series of
events and circumstances that can be traced to a particular action but
without regard to whether either the agency action is responsible for
or the agency has jurisdiction or authority to control those events and
circumstances. The Services should revise the proposed ``effects of the
action'' definition to eliminate the ``but for'' causation language and
adopt a proximate cause standard.
Response: There is no Federal standard definition for ``proximate
cause,'' a term that developed through judicial decisions. Proximate
cause can differ if used for assigning liability in criminal action as
compared to civil matters, neither of which is directly relevant in the
section 7(a)(2) context of evaluating the anticipated effects of
proposed Federal actions on listed species and critical habitat. We
declined to include a proximate cause element in our definition of
``effects of the action'' in 2019 and do so again here. See 84 FR at
44990-44991, August 27, 2019. As discussed above, the ``but for''
causation standard is, in essence, a factual causation standard. As
part of regular practice in conducting a complete analysis of the
effects of proposed Federal actions, the Services' practice is to apply
the concepts of ``but for'' causation and ``reasonably certain to
occur'' when identifying the effects of the action. The changes to the
``effects of the action'' definition in our 2019 rule merely made them
explicit. The Services' scope of the effects analysis did not change
with the 2019 change to the ``effects of the action'' definition, and
we do not anticipate a change in scope because of the minor changes to
the ``effects of the action'' in this final rule.
Comment 12: Several commenters stated that the ``reasonably certain
to occur'' limitation applied only to ``indirect effects'' and
``cumulative effects'' prior to the 2019 rule's ``effects of the
action'' definition. They noted that this situation leads to exclusion
of effects, but that uncertainty or data gaps should not be used to
limit consideration of effects of a proposed agency action. They
further argue that the reasonable certainty standard could conflict
with the requirement to use the best available scientific and
commercial data, particularly where there may be incomplete information
or emerging science.
Response: We reaffirm what we stated in the 2019 rule, that the
two-part effects test adopted at that time does not alter the scope of
the Services' analysis.
[[Page 24274]]
The Services also agree that, in applying our two-part effects test, we
must use the best available scientific and commercial data, which is
expressly required by the statute and as part of our regulations at 50
CFR 402.14(g)(8). Consistent with considering the best available
information, we will necessarily be required to exercise scientific
judgment to resolve uncertainties and information gaps in applying our
effects test. This process does not ignore effects but instead ensures
that we adequately consider the range of effects caused by the proposed
action. For further discussion relevant to this comment, please see the
responses to comments regarding Sec. 402.17.
Comment 13: Several commenters noted that the proposed change to
the ``effects of the action'' definition will remove the framework for
determining whether an activity or consequence is ``reasonably certain
to occur'' that is critical for determining what to include in an
agency's effects analysis, including when applying the standard to
larger scales such as a program.
Response: The Services respectfully disagree with these comments;
the definition and current practice adequately capture the ``reasonably
certain to occur'' standard. As described in the 2019 rule, a section
7(a)(2) consultation performed at the level of a regional or national
program is often referred to as a programmatic consultation, and often
the proposed action falls into the category referred to as a framework
programmatic action described in our 2015 rule revising incidental take
statement regulations (80 FR 26832, May 11, 2015). In these instances,
the ``but for'' and ``reasonably certain to occur'' parts of the test
extend to the consequences that would be expected to occur under the
program generally, but not to the specifics of actual projects that may
receive future authorization under the program. Effects analyses at
this more generalized level are necessary because the Federal agency
often does not have specific information about the number, location,
timing, frequency, precise methods, and intensity of the site-specific
actions or activities for their program. We are able to provide an
informed effects analysis at a more generalized level by analyzing the
project design criteria, best management practices, standards and
guidelines, and other provisions the program adopts to minimize the
impact of future actions under the program.
Alternatively, some Federal agencies may be able to provide
somewhat more specific information on, e.g., the numbers, timing, and
location of activities under their plan or program. In those instances,
we may have sufficient information to address not only the generalized
nature of the program's effects but also the specific anticipated
consequences that are reasonably certain to occur from specific actions
that will be subsequently authorized under the program. Additional
guidance regarding application of the two-part causation test (``but
for'' and ``reasonably certain to occur'') and programmatic
consultation will be included in the updated Consultation Handbook. For
more general discussion of the removal of the ``reasonably certain to
occur'' framework provided by Sec. 402.17, please see the responses to
comments on that section in the preamble below.
Comment 14: Several commenters noted that the requirement that a
``reasonably certain to occur'' finding be based on ``clear and
substantial information'' has created confusion and conflicts with the
statutory requirement to use the ``best scientific and commercial data
available'' and agreed with the removal of Sec. 402.17 in its
entirety. Another commenter supported retaining all of Sec. 402.17,
including the requirement to use ``clear and substantial information,''
noting that this language supports the requirement to use the ``best
scientific and commercial data available.''
Response: The Services are removing Sec. 402.17 via this final
rule. The use of the terms ``clear and substantial information''
creates confusion with the statutory requirement to use the ``best
scientific and commercial data available.'' We disagree with the
comment that retaining the ``clear and substantial'' language in Sec.
402.17 supports the required use of the ``best scientific and
commercial data available.'' Please see the discussion of the term
``clear and substantial'' provided in response to comments on Sec.
402.17.
Definition of ``Environmental Baseline''
As proposed, we are revising the third sentence of the definition
of ``environmental baseline'' by replacing the term ``consequences''
with the word ``impacts,'' removing the term ``ongoing,'' and adding
the term ``Federal'' in two locations. The third sentence now reads:
The impacts to listed species or designated critical habitat from
Federal agency activities or existing Federal agency facilities that
are not within the agency's discretion to modify are part of the
environmental baseline. The changes to the definition of
``environmental baseline'' in this rule are narrow and serve to clarify
the intended application and scope of the final sentence that was added
in 2019. The Services received a wide variety of comments on our
proposed revisions to the definition of ``environmental baseline,''
most of which were focused on the original change in the 2019 rule.
These comments ranged from support of the 2023 proposed revisions,
requests to retain the original final sentence of the 2019 definition,
and requests to remove the entire 2019 definition and revert to the
definition as it stood prior to the 2019 rule. Commenters in support of
the proposed revisions to the 2019 definition generally agreed with the
reasoning of the Services and in some cases requested additional
guidance on the application of the definition. The comments in
opposition to the proposed revisions to the 2019 definition generally
fell under two main themes of comments--both generally focused on the
final sentence of the 2019 definition. One group focused specifically
on the Services' revisions to the final sentence of the 2019 definition
and whether and how the role of Federal agency discretion should be
considered during a section 7 consultation. The second group focused on
the proposed language changes to the final sentence, with most
attention on opposition to the removal of the word ``ongoing.'' With
regard to the request for additional guidance, the Services intend to
provide additional guidance and examples in an updated Consultation
Handbook.
Comment 1: Several commenters requested the Services revert
entirely to the definition of ``environmental baseline'' as it stood
prior to the 2019 regulations by either (1) pointing to other issues as
described in other comments below or (2) attributing the entire
definition to an earlier Presidential administration despite much of
the text of the definition stemming from the pre-2019 regulations.
Response: The Services decline to return to the pre-2019
``environmental baseline'' definition for several reasons. First, the
2019 definition retained much of the language of the pre-2019
definition, while also making the definition a stand-alone definition
within the Sec. 402.02 regulations. This regulatory change did not
change the role of the ``environmental baseline'' in the section 7
consultation analysis, and the Services also reaffirmed in Sec.
402.14(g)(4) that the analysis presented in the biological opinion must
add the ``effects of the action'' to the ``environmental baseline'' and
``cumulative effects.'' This regulatory revision also removed a
circular reference that occurred when the ``environmental baseline''
definition
[[Page 24275]]
was previously embedded within the ``effects of the action''
definition. By creating two separate definitions of ``effects of the
action'' and ``environmental baseline,'' we are underscoring the
separate nature of the analyses which are then to be combined into an
aggregate assessment.
Second, by clarifying that those portions of a Federal activity or
facility that are outside the control of the Federal agency to modify
are included in the ``environmental baseline,'' the Services
highlighted that the effects of discretionary activities or facilities
contained in the proposed action would be evaluated within the context
of (added to) the baseline and ``cumulative effects'' in order to
determine whether those added effects were or were not ``likely to
jeopardize'' a species. Third, in the 2019 ``environmental baseline''
definition, the Services clarified that the primary purpose of the
``environmental baseline'' is to present the condition of the listed
species and critical habitat in the action area as impacted by the
various factors of the ``environmental baseline.'' Prior
interpretations of the pre-2019 definition could indicate that the
baseline was simply a description of the impacts of those factors on
the action area--missing the important connection to the condition of
the species and critical habitat that may be further affected by the
effects of a Federal action. With the 2019 rule, the Services
highlighted two important elements: (1) That the purpose of the
baseline was to assess the condition of the species and critical
habitat and (2) that this condition assessment was taken into
consideration prior to adding the consequences of the proposed action
(which in some instances might be the future continued, discretionary
operations of a facility such as a dam). These two elements provide the
foundation to which the Services add the effects of the proposed
action.
Comment 2: Some commenters reiterated their 2019 comments that the
2019 revised definition of ``environmental baseline'' hides or ignores
the significant impacts of past and present activities and facilities,
some of which may have played a significant role in the present status
of the species and its critical habitat, asserting that the species is
thus in ``baseline jeopardy.'' Further, commenters seem to imply that
only large actions could then likely jeopardize listed species or
destroy or adversely modify critical habitat.
Response: The Services disagree and have revised the definition's
final sentence to clarify those aspects of a Federal action involving
Federal facilities and activities that are in the ``environmental
baseline'' and those that will be considered as ``effects of the
action.'' As required by the regulations, the ``effects of the action''
will be added to the ``environmental baseline,'' thus the effects to a
listed species or critical habitat already impacted by the
``environmental baseline'' will be considered in full light of the
condition of that species and critical habitat. In addition to the
overall status of the species, the relative health and viability of the
species absent the proposed action in the action area is the starting
point for the assessment and that condition informs the ability of the
species to withstand further perturbations to its numbers,
reproduction, and distribution. As we noted in our responses to
comments in the 2019 rule and re-affirm here, the statute and
regulations do not contain any provisions under which a species should
be found to be already (pre-action) ``in baseline jeopardy,'' such that
any additional adverse impacts must be found to meet the regulatory
standards for ``jeopardize the continued existence of'' or
``destruction or adverse modification.'' As we further noted in 2019,
and reaffirm here, the Services do not dispute that some listed species
are more imperiled than others, and that for some very rare or very
imperiled species, the amount of adverse effects to the species or its
critical habitat that can occur without triggering a jeopardy or
``destruction or adverse modification'' determination may be small. See
84 FR 44976 at 44987, August 27, 2019.
Comment 3: A few commenters focused on the issue of Federal agency
discretion and whether it was appropriate to further consider whether a
Federal agency had discretion over some or all of its proposed action
once consultation was initiated.
Response: Consultation under section 7(a)(2) is required when a
discretionary Federal action may affect a listed species or designated
critical habitat. As part of that process, it is important that the
Federal action agency and the Services correctly identify the Federal
action. Following this step, it is then also important to assess the
``effects of the action,'' which include the activities caused by (but
are not part of) the proposed action and the effects of those
activities. As the Services noted in the 2019 rule, and re-affirm here,
the courts and the Services have concluded that, in general, the
effects on listed species and critical habitat attributable to Federal
agency activities and existing Federal agency facilities are part of
the ``environmental baseline'' when the action agency has no discretion
to modify them. For example, with respect to existing Federal
facilities, such as a dam, courts have recognized that effects from the
existence of the dam can properly be considered a past and present
impact included in the ``environmental baseline'' when the Federal
agency lacks discretion to modify the dam. See, e.g., Friends of River
v. NMFS, 293 F. Supp. 3d 1151, 1166 (E.D. Cal. 2018). Under these lines
of cases involving dams, when a Federal agency has authority for
managing or operating a dam, but lacks discretion to remove or modify
the physical structure of the dam, any impacts from the physical
presence of the dam in the river are appropriately placed in the
``environmental baseline'' and are not considered an ``effect of the
action'' under consultation. Thus, it is important to note that the
above analytical process for determining the ``effects of the action''
does not include consideration of the discretion of the Federal action
agency over the activities or facilities of another Federal agency or
any other third party. To the extent that any effects are caused by the
proposed Federal action, per the ``but for'' and ``reasonably certain
to occur'' standards of the ``effects of the action'' definition, they
would be considered as ``effects of the action'' in the consultation
analyses. Those effects that are not caused by the Federal action would
be included in the ``environmental baseline'' or ``cumulative effects''
as appropriate.
Comment 4: Several commenters advocated that the question of
discretion should also apply to third party actions or the activities
or facilities that are the subject of a Federal action, such as
permitting or funding, with some commenters providing site-specific
examples.
Response: As we noted above in this preamble and in the proposed
rule, this determination is made on a case-by-case basis as determined
by discussions between the Services and the appropriate Federal agency
on the basis of the information and evidence available at the time. In
most section 7 consultations, the question of discretion is not a
factor and, indeed, several examples raised by commenters were on
large-scale Federal activities such as water operations or land
management, which make up a relatively small portion of ESA section 7
consultations. Many of the location-, activity-, or facility-specific
concerns raised by some commenters are beyond the scope of this rule
and best handled through site-specific consultations.
To answer some of the general questions or points of confusion, the
Services note that the current revisions
[[Page 24276]]
are minor in scope to further clarify the intent of the final sentence
added to the ``environmental baseline'' definition in 2019 and retained
in this rule. These revisions do not modify current practice related to
how past and present non-Federal actions are represented in the summary
of impacts of the ``environmental baseline'' on the condition of listed
species and critical habitat. In addition, the revisions do not alter
current practice related to the analysis of the effects of a proposed
discretionary Federal action that involves the authorization or funding
of an action taken by a non-Federal entity such as a private landowner.
The Services decline to speculate or generalize in a response to public
comments as to the breadth of scope of agency discretion in all of
these actions as these are case-specific determinations.
Comment 5: Some commenters requested additional discussion or
guidance on how the determination of discretion would proceed. Another
commenter argued that if discretion continues to be a factor when
determining the ``environmental baseline'' the Services should retain
the authority to make the determination on their own.
Response: As we noted in the proposed rule, we will work closely
with the Federal action agency to understand the scope of their
discretion in a particular case to inform those aspects of a Federal
agency activity or facility that are a part of the ``environmental
baseline.'' See 88 FR 40753 at 40756, June 22, 203. Typically, Federal
discretion over an action or facility is defined within all the laws
and regulations under which the action will be taken. Where questions
regarding discretion arise during a consultation, the supporting record
of the consultation should include the documentation upon which the
separation between discretionary Federal agency action and those non-
discretionary activities or facilities was made. While the Services
ultimately determine the content and scope of the analyses in our
biological opinions, generally we would defer to the Federal action
agency's supported interpretation of their authorities for purposes of
identifying what non-discretionary Federal facilities and activities
are included in the ``environmental baseline.'' See id. As a general
matter, the Services and an action agency can come to a specific
understanding about the nature of an action agency's discretion and how
to treat both effects of past and future actions stemming from the
action agency's decisions.
Comment 6: One commenter objected to the definitions of
``environmental baseline'' and ``effects of the action'' because the
commenter asserts that the effects of the action would include even
those consequences of the Federal action that have occurred in the past
and that the action agency and any proponent do not intend to change
going forward and that the approach does not allow for adaptation due
to climate change. The commenter also requested that the Services
define the parameters of actions and effects for ongoing Federal
project operations such that: (1) the proposed action should be the
future discretionary actions related to the operation of the existing
facilities in the existing environment; (2) the effects of the action
should focus on the manner in which the current status of the species
and existing condition of its habitat will be affected by the proposed
future discretionary actions; and (3) the examination of effects of the
discretionary proposed action does not include the baseline effects of
or from the original construction of the facilities or the past
operations and maintenance activities that have occurred.
Response: The Services decline to define the parameters of the
``environmental baseline'' and ``effects of the action'' as the
commenter requests. The Services' definitions of ``effects of the
action'' and ``environmental baseline'' are crafted to distinguish
between those impacts that are properly considered as the
``environmental baseline'' and those consequences of a proposed
discretionary Federal action that would be considered the ``effects of
the action.'' Further, the baseline includes the original construction
of facilities and past operations and maintenance that have occurred.
However, the proposed future discretionary actions are all of the
discretionary actions that will occur--even those ongoing discretionary
actions for which no changes are envisioned. As we noted in the
proposed rule, ``the Federal agency may propose to continue the
operations of the dam's flow regime with no changes from past
practices, or with only minor changes. Regardless of their ``ongoing''
nature, all the consequences of the proposed discretionary operations
of the structure are ``effects of the action'' (88 FR 40753 at 40756,
June 22, 2023). In other words, those future consequences of
discretionary operations are properly considered ``effects of the
action'' even if those similar operations that occurred in the past are
included in the ``environmental baseline.'' A full assessment of the
proposed Federal action will ultimately include the ``effects of the
action'' added to the ``environmental baseline'' and any anticipated
``cumulative effects.'' Regarding the comment about consideration of
climate change and the consideration of action effects and the
``environmental baseline,'' the Services note that climate change is
considered as appropriate in all ESA section 7 consultations, including
how past, present, and future conditions are impacted and the resulting
``effects of the action'' in context with those impacts.
Comment 7: One commenter requested information regarding future
planned revisions to the ``environmental baseline'' definition.
Response: The Services note that the commenter may have misread the
proposed rule. We do not anticipate further refining the definition of
``environmental baseline.''
Comment 8: Several commenters raised the issue of existing
structures and how they would be considered under these regulations.
Commenters inquired whether the 2019 regulations and the regulations in
this rule allow for all existing structures to be included in the
``environmental baseline.'' Some commenters requested that the Services
explicitly include that direction in the regulations. In other
instances, commenters were concerned that the definition allows for
past harms to the species and habitat to be ignored.
Response: The Services note that neither the 2019 definition of
``environmental baseline,'' nor the minor revisions adopted in this
final rule, change current or past practice and thus do not treat
existing structures differently than under the prior regulations. The
final sentence of the definition in the 2019 rule was intended to
clarify current practice and how the discretionary and non-
discretionary portions of a Federal activity or facility are considered
in the baseline and ``effects of the action.'' The Services decline to
state that all existing structures are included in the ``environmental
baseline''; existing structures may be included in the analysis of the
``effects of the action'' depending on the Federal action under
consultation. Whether an existing structure is in the baseline is a
case-specific determination that includes discretion, prior
consultations, and temporal considerations.
Regarding concerns that the current definition allows for past
impacts to be ignored by residing in the baseline, the Services restate
that the 2019 baseline definition revision, which primarily made the
definition a stand-alone
[[Page 24277]]
definition versus an embedded definition within the ``effects of the
action,'' along with current regulations as amended, clarifies
longstanding past and current practice in the treatment of those
impacts that are a part of the ``environmental baseline.'' Importantly,
by accounting for these past and present impacts in the baseline and
then adding the effects of the proposed action to the ``environmental
baseline,'' the Services do not ``let Federal agencies off the hook,''
as suggested by some commenters, but instead consider the consequences
of a Federal action in the context of the past and present impacts to
listed species and critical habitat in the action area.
The ESA section 7(a)(2) consultation process applies only when a
Federal agency proposes to authorize, fund, or carry out a
discretionary action that may affect a listed species or designated
critical habitat. At that time, the effects of the proposed Federal
action are analyzed and added to the impacts of the ``environmental
baseline,'' which includes the past impacts raised by commenters.
However, the section 7(a)(2) consultation process is not intended to
``right the wrongs of the past'' but to ensure that proposed Federal
actions are ``not likely to jeopardize the continued existence of a
listed species or result in the destruction or adverse modification of
critical habitat.'' As noted elsewhere, the health and viability of the
species absent the proposed action is the starting point for the
assessment and that condition informs the ability of the species to
withstand further perturbations to its numbers, reproduction, or
distribution. Thus, past impacts and the resulting condition of the
listed species and critical habitat are crucial to the overall analysis
in the section 7 consultation.
Comment 9: A few commenters requested deletion of the final
sentence of the ``environmental baseline'' definition given the
purported confusion it creates or perceived inappropriate narrowing or
expansion of the scope of the definition. Others suggested different
revisions from the Services' proposed minor amendments to the language.
Response: As noted previously, the sentence was added to
distinguish those cases where an existing Federal facility or activity
must be considered as part of the ``effects of the action'' versus past
argued interpretations or confusion that all existing facilities and
activities were de facto in the baseline. By evaluating the effects of
discretionary actions against the backdrop of the ``environmental
baseline'' and ``cumulative effects'' (future non-Federal activities
that are reasonably certain to occur), the Services are able to assess
whether the proposed action is ``likely to jeopardize a listed
species'' or destroy or adversely modify critical habitat. This
evaluation applies whether the proposed action is a novel action upon
the landscape or a proposed action that includes another 10 years of
the same types of consequences that have already led to species
declines and habitat degradation.
The Services appreciate the suggested revisions to the final
sentence of the ``environmental baseline'' definition, which some
commenters offered in the event that their requests to delete the
sentence were declined. However, the suggested revisions
unintentionally resulted in the very concerns raised by the commenters,
and in one case, would have inappropriately narrowed the scope of the
``environmental baseline.'' In that case, a commenter suggested not
including in the ``environmental baseline'' past or completed Federal
actions that have not undergone and completed section 7 consultation.
The Services decline to accept this proposed revision, as it could have
an unintended and significant negative effect on listed species and
critical habitat. By removing from the ``environmental baseline'' the
impacts of those past or completed Federal actions (some of which pre-
date the ESA itself and have no discretionary Federal action to trigger
consultation), the Services would be restricted to looking at an
incomplete ``environmental baseline,'' and thus an incomplete jeopardy
analysis.
Comment 10: The Services have revised the final sentence of the
``environmental baseline'' definition to replace the term
``consequences'' with ``impacts.'' We received comments both supporting
and opposing this revision. While most understood the Services' intent
to distinguish between those two terms, further explanation of the
revision and the terms was requested.
Response: The Services appreciate the support for this revision to
the final sentence of the ``environmental baseline'' definition. The
Services understand the concern about the initial confusion with use of
the term ``consequences'' to refer to those effects of a Federal action
that were caused by the Federal action. The Services proposed to change
the word ``consequences'' to ``impacts'' in the final sentence of the
``environmental baseline'' definition to address this confusion. More
specifically, the ``environmental baseline'' and the ``effects of the
action'' are two distinct assessments. Both are ultimately aggregated
when the ``effects of the action'' are added to the ``environmental
baseline.'' However, the Services sought to reduce confusion and
overlap between the two definitions by retaining the use of
``consequences'' when discussing the effects of the proposed Federal
action and using ``impacts'' when discussing the ``environmental
baseline,'' even though we consider ``consequences,'' ``impacts,'' and
``effects'' to be equivalent terms.
Comment 11: One commenter requested that the ``environmental
baseline'' not be limited to Federal projects, but instead include all
projects that pre-date the ESA and all projects that have previously
undergone ESA section 7 consultation. Further, the commenter requested
clarification regarding the treatment of existing non-Federal projects
(e.g., residential or commercial piers and floats and private
bulkheads), including the concept of ``useful life'' for both Federal
and non-Federal actions.
Response: The Services affirm that the current definition of
``environmental baseline'' is not limited to just Federal projects, but
we decline to state that ``all projects'' are automatically included in
the ``environmental baseline.'' The definition includes (in relevant
part,) ``the past and present impacts of all Federal, State, or private
actions and other human activities in the action area, the anticipated
impacts of all proposed Federal projects in the action area that have
already undergone formal or early section 7 consultation, and the
impact of State or private actions which are contemporaneous with the
consultation process'' (50 CFR 402.02). The ``Federal projects'' in
this excerpt refers to all actions proposed to be authorized, funded,
or carried out by a Federal agency that have undergone consultation,
which includes Federal permits for private or commercial actions.
Because the definition of ``environmental baseline,'' including the
minor revisions in this rule, does not change current practice,
existing structures would be treated the same as they are under both
current and prior practice (i.e., before the 2019 regulation
revisions). The Services decline to speak to the ``useful life'' of
structures and how that issue would be treated nationwide as both are
beyond the scope of this rule and would be addressed on a case-specific
basis.
Comment 12: The Services received a wide range of comments on the
proposed revision to the final sentence of ``environmental baseline''
to remove the word ``ongoing,'' and to insert the word ``Federal'' in
two places. Some commenters opposed the revision
[[Page 24278]]
because they opposed application of the standard to only Federal
activities or facilities. A few commenters requested that ``ongoing''
be retained because they assert that all activities or facilities that
are ``ongoing'' should be included in the ``environmental baseline.''
Some commenters opposed the revision because the result would be either
that more activities and facilities would be ``hidden'' in the
``environmental baseline'' and not in the ``effects of the action'' or
fewer would be in the ``environmental baseline'' and included within
the ``effects of the action.''
Response: Both the 2019 regulations and the regulations in this
rule clarify existing practice related to the ``environmental
baseline.'' While we cannot comment on the fact or site-specific
circumstances that some commenters raise, every ESA section 7(a)(2)
consultation is unique and based on what has been proposed by a Federal
agency to authorize, fund, or carry out and the nature of the Federal
agency's discretion and authority. Some of the examples raised may have
included consultations that appropriately identified the Federal action
and ``effects of the action'' based upon specific facts, applicable
laws or other authorities, and prior consultation history. Thus, the
conclusions in those examples do not necessarily apply in other
instances, and it is incumbent on the Services and the Federal action
agency to carefully describe and discuss what the Federal action may be
in any particular case.
Several commenters were focused on the ``ongoing'' nature of an
activity for determining whether that activity is evaluated in the
environmental baseline. The Services proposed to remove the term
``ongoing'' and insert the term ``Federal'' because our experience
implementing the 2019 rule echoes this same unintended focus on
``ongoing'' and not on the relevant portions of the sentence (i.e., the
scope of the Federal agency's discretion). As explained in our proposed
rulemaking, we found that removal of the term ``ongoing'' from the
relevant portion of the regulatory definition of ``environmental
baseline'' would, instead, shift the focus to the appropriate factor
for determining whether an activity is part of the ``environmental
baseline''--whether or not the action agency has discretion to modify
that activity. The Services decline to reinstate the term ``ongoing''
or remove the term ``Federal'' to avoid this improper focus in the
future.
The Services also re-affirm that the pre-2019 definition, the 2019
definition, and the minor revisions in this rule maintain the same
standards for the Federal, State, private, and other human activities
that are considered in the ``environmental baseline'' and the scope of
the effects of proposed Federal actions that will be analyzed as
``effects of the action.'' Existing non-Federal structures and
activities occurring within an ``action area'' are a part of the
``environmental baseline,'' unless a Federal agency proposes to
authorize, fund, or carry out an action related to the structure or
activity. At that time, the non-Federal structure or activity may be
subject to an ESA consultation if the proposed Federal action ``may
affect'' listed species or designated critical habitat. Nothing in the
revised ``environmental baseline'' definition changes this requirement
of the statute. Despite the assertion of some commenters, if a Federal
agency is proposing to authorize, fund, or carry out a repair or
modification to a non-Federal structure, the consultation must evaluate
the effects of the action, including all consequences to listed species
or critical habitat caused by the proposed action.
Although commenters cite an example from the 1998 Consultation
Handbook, that example fails to account for the wide variety of Federal
actions that may occur related to an existing Federal facility, and
thus one approach does not fit all situations. The Services again
decline to universally state that all ``ongoing'' facilities or
activities are in the ``environmental baseline.'' First, the term
``ongoing'' itself creates confusion when a longstanding operation that
is within the discretionary authority of a Federal agency is being
proposed for renewal. The prior operations are within the
``environmental baseline,'' but the future operations, which are part
of the discretionary proposed action, are properly considered as
effects of the action. In addition, the Services and Federal action
agencies should work closely to examine and understand the consequences
of a proposed Federal action. In some instances, the nature of the
action may indeed result in a similar finding as the turbine example
cited from the 1998 Consultation Handbook (See 1998 ESA Consultation
Handbook, Chapter 4, Interrelated and Interdependent Actions p. 4-27).
In other instances, the nature of the action may encompass more of the
operations or even structure of the facility itself. It is beyond the
scope of this rule to provide examples that cover all such
possibilities. Case-specific circumstances must be considered and
should be done in collaboration between the Services and the Federal
action agency as discussed in the 2019 rule and the 2023 proposed rule.
The Services also clarify that the 2019 regulatory amendments, and
the minor revisions in this final rule, do not remove existing
structures and operations from the baseline as some commenters
suggested. Similarly, the 2019 and 2023 revisions do not move most
structures and operations to the proposed action if they are not either
the proposed action itself or activities caused by the proposed action.
The full definition of the ``environmental baseline'' includes those
past impacts or Federal, State, and private actions in the action area.
The final sentence is intended to address questions that have arisen
regarding the consideration of the non-discretionary aspects of Federal
facilities or activities. In general, Federal permitting and
authorization of existing non-Federal facilities and activities is a
discretionary action and requires section 7(a)(2) consultation if the
proposed action may affect listed species or critical habitat. The past
impacts of non-Federal facilities or non-Federal activities would be
included in the ``environmental baseline'' whereas future consequences
of the proposed Federal authorization action for that facility or
activity would be the subject of the consultation and ``effects of the
action'' analysis. In some instances, an effects analysis may need to
assess the future and extended life of a structure, yet the past
existence and impacts of the structure are included in the
``environmental baseline.''
The 2019 and current revisions to the ``environmental baseline''
definition do not prescribe particular assumptions that would be
applied to all repair, maintenance, or modification activities proposed
for authorization, funding, or implementation by a Federal agency. The
consequences of such activities, including whether a proposed action
extends the life of a structure or operation, would be reviewed per the
standards of the ``effects of the action'' definition and may differ
significantly from case to case. Further, what was or was not
considered in prior consultations, if any, may also vary. The
definition also does not prescribe how the effects of structures past
their useful life would be analyzed as part of the ``environmental
baseline.'' If those structures are not the subject of the consultation
and are causing impacts to the condition of listed species and critical
habitat in the action area, they would be included in the baseline, but
it is beyond the scope of this rule to further describe or prescribe
how that analysis would be done.
[[Page 24279]]
Comment 13: The Services received several comments specific to
consultations on projects in the Salish Sea of Washington, an existing
programmatic consultation, a NMFS 2018 internal guidance document, and
the Puget Sound Nearshore Habitat Conservation Calculator.
Response: Generally, these comments are outside the scope of this
rulemaking action, and given that the regulations do not alter current
practice, the regulations are not expected to alter the consultations
and tools raised by the commenters. Regarding the National Marine
Fisheries Service, West Coast Region, Internal Guidance on Assessing
the Effects of Structures in Endangered Species Act Section 7
Consultation (April 18, 2018), NMFS withdrew this guidance after
issuance of the January 2022, Department of the Army (Civil Works) and
the National Oceanic and Atmospheric Administration Memorandum. The
2022 Memorandum, which is based on existing legal requirements, is
national in scope and clarifies potential differences between the U.S.
Army Corps of Engineers Civil Works projects and Regulatory Program
projects based on agency discretion. The 2022 memorandum is fully
consistent with the Services' section 7 regulations, including the
definitions of ``effects of the action'' and ``environmental baseline''
as revised in this final rule. The memorandum does not impose any new
or additional requirements on action agencies, applicants, or NMFS, and
does not alter the existing requirements relative to section 7
consultations. Commenters are correct that future Federal actions
related to Federal or non-Federal facilities may trigger an ESA
consultation on the proposed Federal action, but it is beyond the scope
of this rule to speculate whether that consultation would require
mitigation under existing programmatics or RPM offsetting measures,
costly or otherwise.
Comment 14: One commenter questioned whether the modification to
the final sentence of the ``environmental baseline'' definition
forecloses the consideration of what used to be considered
``interrelated'' and ``interdependent'' actions as ``effects of the
action.''
Response: The Services appreciate the commenter's perspective on
the possible interpretation of the revised sentence. If the activities
of other Federal agencies would be caused by the proposed Federal
action that is subject to consultation, then they would properly be
considered as ``effects of the action'' and those Federal agencies
should be action agencies in the section 7(a)(2) consultation. Further,
in situations where there are multiple Federal agencies taking actions
(authorizing and funding, for example) on the same non-Federal action,
an efficient consultation process could include all of these agencies
(even if one is designated as the lead agency). Our interpretation and
application of the ``environmental baseline'' and ``effects of the
action'' definitions would not be a change in practice. In most cases,
other Federal agency activities or facilities that are not caused by
the proposed Federal action would be included within the
``environmental baseline'' (or subject to their own ESA consultation as
needed). The Services decline to further revise the final sentence but
note the commenter's concern for potential inclusion in further
guidance.
Comment 15: One commenter was concerned that the addition of
``Federal'' in the final sentence of the ``environmental baseline''
definition restricted the ``effects of the action'' to only the
consequences where the Federal action agency has the discretion to
modify the activity or facility.
Response: Commenters misconstrue the effect of this revision. The
Services are clarifying that the scope of application in the final
sentence of ``environmental baseline'' is to Federal action agency (or
agencies) activities and facilities. The inclusion of the word
``Federal'' does not alter the scope of the definition of ``effects of
the action.'' As discussed in the ``effects of the action'' section
above, if an activity or consequence meets the two-part test for an
effect, then it is considered an ``effect of the action'' regardless of
whether that activity or consequence is within the control of the
Federal agency.
Comment 16: One commenter was concerned that the revision to the
final sentence of ``environmental baseline'' implies that facilities
such as irrigation, diking, and drainage infrastructure are not within
the ``environmental baseline,'' and any future Federal permitting, even
for maintenance and repair of existing infrastructure, would require
costly mitigation.
Response: Existing Federal and non-Federal facilities and their
operations are a part of the ``environmental baseline,' as described in
the definition (in relevant part): ``The environmental baseline
includes the past and present impacts of all Federal, State, or private
actions and other human activities in the action area'' (50 CFR
402.02). Commenters are correct that future Federal actions related to
Federal or non-Federal facilities may require consultation under
section 7(a)(2) of the ESA on the proposed Federal action, including a
full analysis of the consequences of the Federal actions and activities
caused by the Federal action. If consultation is required under section
7(a)(2) of the Act, it would be subject to the revisions of the
implementing regulations at 50 CFR part 402 by this final rule,
including revisions to the scope of RPMs. However, it is beyond the
scope of this rule to speculate whether that consultation would require
RPMs with offsetting measures that are costly or otherwise.
Comment 17: One commenter suggested a revision to the final
sentence for ``environmental baseline.'' The commenter recommended
changing ``The impacts to listed species or designated critical habitat
from Federal agency activities or existing Federal agency facilities
that are not within the agency's discretion to modify are part of the
environmental baseline.'' to ``The ongoing impacts to listed species or
designated critical habitat from existing facilities or activities that
are not caused by the proposed action or that are not within the
Federal action agency's discretion to modify are part of the
environmental baseline.''
Response: The Services decline to accept the suggested edits to the
third sentence of the ``environmental baseline'' definition. As we
described in the proposed rule, the original sentence inadvertently
caused confusion and a focus on the term ``ongoing'' instead of the
Federal agency's discretion to modify their own facilities and
activities. However, the commenter's suggested language would
inadvertently include in the ``environmental baseline'' those
facilities and activities that are caused by the proposed action if the
Federal agency has no discretion to modify them. Further, the language
suggested by the commenter could be read also to include all or
portions of the very activities or facilities that are the subject of
the proposed Federal action of funding or permitting. Both results
would improperly limit the scope of the jeopardy or adverse
modification analysis. The Services' definition clarifies that the past
and present impacts of existing activities and facilities entirely
unrelated to the Federal action in the action area would be in the
``environmental baseline'' whether they are Federal, State, private, or
other human activities.
Section 402.16--Reinitiation of Consultation
As proposed, we are revising the text at Sec. 402.16(a) by
deleting the words ``or by the Service'' to clarify that the
responsibility and obligation to reinitiate consultation lies with the
[[Page 24280]]
Federal agency that retains discretionary involvement or control over
its action. The text at Sec. 402.16(a) now reads: Reinitiation of
consultation is required and shall be requested by the Federal agency,
where discretionary Federal involvement or control over the action has
been retained or is authorized by law and . . . This revision will not
prevent the Services from notifying the Federal agency if we conclude
that circumstances appear to warrant a reinitiation of consultation.
Comment 1: Multiple commenters opposed the deletion of the phrase
``or by the Service,'' multiple other commenters supported the removal
of ``or by the Service,'' and others noted that the Services are able
to provide technical assistance to Federal action agencies when
reinitiation is appropriate and requested that the regulations clarify
the roles of the Services and action agencies in the ``Reinitiation of
Consultation'' section (50 CFR 402.16(a)).
Response: We are removing the language ``or by the Service''
because the sentence as written creates confusion as to the scope of
the authorities and roles of the Services relative to the Federal
action agency. As explained in our 2019 rule and 2023 proposed rule,
only the Federal action agency has the authority and responsibility to
initiate or reinitiate consultation when warranted. The Services do not
have the power to order other agencies to initiate or reinitiate
consultation (Sierra Club v. Marsh, 816 F.2d 1376, 1386 (9th Cir.
1987); Defs. of Wildlife v. Flowers, 414 F.3d 1066, 1070 (9th Cir.
2005); 51 FR 19949, June 3, 1986); instead, we are able to recommend
that the Federal action agency reinitiate consultation. Because the act
of reinitiating consultation is solely the responsibility of the
Federal action agency, removing ``or by the Service'' in this portion
of the regulations clarifies that responsibility. As noted in the 2023
proposed rule, the Services may still notify the Federal agency if
circumstances warrant a reinitiation of consultation. The Services
conclude that no additional regulatory language is needed to address
this ability.
Comment 2: Two commenters suggested that it would be appropriate to
delete Sec. 402.16(b): One believes that the regulations in that
paragraph exceed the Services' authority to choose when to reinitiate,
and the other believes that identifying only these exceptions is
arbitrary. Both stated that Sec. 402.16(b) is ``bad conservation
policy.''
Response: Section 402.16(b) was added in the 2019 rule to address
issues arising under Cottonwood Environmental Law Center v. U.S. Forest
Service, 789 F.3d 1075 (9th Cir. 2015), and to comport with the
Wildfire Suppression Funding and Forest Management Activities Act, H.R.
1625, Division O, which was included in the Omnibus Appropriations bill
for fiscal year 2018. The 2018 statute exempted land management plans
prepared pursuant to the Federal Land Policy Management Act (FLPMA), 43
U.S.C. 1701 et seq., and the National Forest Management Act (NFMA), 16
U.S.C. 1600 et seq., from reinitiation of consultation when a new
species is listed or new critical habitat is designated provided that
any authorized actions under the plan that may affect listed species or
critical habitat are subject to their own site-specific consultations.
We respectfully disagree that Sec. 402.16(b) is ``bad conservation
policy'' because the regulations in that paragraph allow the Services
to focus our limited resources on those site-specific actions that may
cause effects to listed species and designated critical habitat. As we
noted in the 2019 rule, the Bureau of Land Management and the U.S.
Forest Service (USFS) are required to periodically update their land
management plans, at which time they would consult on any newly listed
species or critical habitat.
Comment 3: One commenter recommended that reinitiation of
consultation because of a new species listing or critical habitat
designation be limited to that species or critical habitat, unless one
of the other conditions for triggering reinitiation has been met.
Response: Informal or formal consultations that are reinitiated on
the basis that the action may affect newly listed species or newly
designated critical habitat are, in fact, limited to evaluating the
effects of the action on that species or critical habitat, unless
another regulatory condition requiring reinitiation applies.
Comment 4: The Services received several comments urging us to make
changes to the 2019 regulatory revision clarifying that the duty to
reinitiate consultation does not apply to certain existing programmatic
land management plans prepared pursuant to the FLPMA or the NFMA when a
new species is listed or new critical habitat is designated that may be
affected by the plan. Some of the comments maintained that the revision
exceeded our authority under the Act and did not support the
conservation purposes of the Act.
Response: The Services decline to make changes to the 2019
regulatory revision exempting certain land management plans from the
requirement to reinitiate consultation. The 2019 regulatory revision
essentially incorporates the exemption (and the statutory conditions
for applying that exemption) enacted by Congress in the 2018 Wildfire
Suppression Funding and Forest Management Activities Act as part of the
2018 Omnibus Appropriations Act. Although the 2019 regulatory revision
extended the exemption to land management plans issued under FLPMA,
which were not addressed in the 2018 Omnibus Appropriations Act, the
Services disagree that we lack authority to exempt these plans from the
reinitiation requirement established by our regulations, not by
statute. Because our regulations clarify that the exemption applies
only if any action taken under a FLPMA or NFMA land management plan
that may affect a newly listed species or newly designated critical
habitat can be evaluated in a separate section 7 consultation, we find
that this regulatory provision is consistent with ESA section 7 and the
overarching conservation purposes of the ESA.
Section 402.17--Other Provisions
As proposed, in this final rule, we are removing Sec. 402.17 in
its entirety. This regulatory revision simplifies the regulations and
eliminates the need for any reader to consult multiple sections of the
regulations to discern what is considered an ``effect of the action.''
The previously articulated basis for Sec. 402.17 will be addressed in
an updated Consultation Handbook.
Comment 1: Several commenters disagreed with removal of Sec.
402.17. They supported retaining the requirement that for an activity
or consequence to be considered reasonably certain to occur it ``must
be based on clear and substantial information.'' The commenters
asserted that removing Sec. 402.17 would lead to less clarity and more
confusion.
Response: In the proposed rule, the Services articulated several
reasons why removing Sec. 402.17 is preferable, including unnecessary
confusion and regulatory complexity and potential inconsistency with
the statutory requirement to use ``the best scientific and commercial
data available.''. These reasons adequately explain why removal of
Sec. 402.17 is warranted. First, removing Sec. 402.17 simplifies the
structural complexity of the ``effects of the action'' definition.
Currently, the term ``effects of action'' is defined in Sec. 402.02,
but that definition cross-references Sec. 402.17. Removing Sec.
402.17 would make the ``effects of the action'' definition self-
contained within
[[Page 24281]]
Sec. 402.02 without requiring reference to a separate regulatory
provision.
Second, section 7(a)(2) of the Act requires both the Federal action
agencies and the Services to use ``the best scientific and commercial
data available.'' This requirement applies to all aspects of section
7(a)(2), including determining what activities or consequences are
considered reasonably certain to occur when analyzing the ``effects of
the action'' and any ``cumulative effects.'' The requirement that such
analysis must also be based on ``clear and substantial information''
creates an additional standard that could be read to limit what ``best
scientific and commercial data available'' the Services may consider.
Rather than focusing on the ``best available'' data, the ``clear and
substantial information'' requirement would appear to circumscribe that
data to only that which meets those heightened requirements.
Third, when read in combination with the preamble discussion in the
2019 final rule that emphasized a need for a ``degree of certitude'' in
determining effects of the action that are reasonably certain to occur,
Sec. 402.17 could be construed as narrowing the scope of what
constitutes the ``best available scientific and commercial data.'' In
other words, in light of the ``degree of certitude'' discussion in the
preamble of the 2019 rule, Sec. 402.17's ``clear and substantial
information'' standard could be read to suggest that even if particular
data were considered the best available, they potentially should not be
relied upon if they lacked a heightened degree of certitude. The best
available data will not always be free of uncertainty and often may be
qualitative in nature, and, under the requirements of section 7(a)(2),
are to be used by the Services in fulfilling their consultative role
under the Act. For these reasons and also as discussed further below,
we are removing 50 CFR 402.17 from the section 7 regulations.
Comment 2: Some commenters supported removing Sec. 402.17,
particularly the ``clear and substantial information'' standard,
asserting that it conflicts with the statute, including the ``best
scientific and commercial data available'' requirement, and
inappropriately limits the effects analysis.
Response: The Services agree that removing Sec. 402.17 is
appropriate for the reasons discussed in this final rule.
Comment 3: Some commenters asserted the Services had not adequately
explained how Sec. 402.17 creates the potential for confusion.
Response: The Services' response above and in the preamble of our
proposed rule (88 FR 40753, June 22, 2023) explains why Sec. 402.17
has the potential to create confusion. As explained, Sec. 402.17
creates potentially competing requirements between its ``clear and
substantial information'' standard and the statutory requirement to use
the best scientific and commercial data available. Such competing
mandates necessarily contribute to confusion on the part of agencies
and applicants who are forced to reconcile them in carrying out their
obligations under section 7(a)(2). Additionally, as discussed more
fully below, the factors identified in Sec. 402.17, particularly Sec.
402.17(b), are circular in nature, making them potentially unhelpful or
confusing as to when an activity is or is not reasonably certain to
occur.
Comment 4: As mentioned above, several commenters asserted that the
recent MLA decision, weighs against the Services removing Sec. 402.17
from the section 7 regulations. They contend that the decision supports
the following: the notion that effects must be ``likely'' to occur, the
requirement of ``clear and substantial information,'' and limitations
on engaging in speculation. They also asserted that the Services should
look to the MLA decision for direction in any guidance documents the
Services develop.
Response: For the reasons discussed above, the MLA decision does
not undermine the Services' decision to remove Sec. 402.17. To the
extent the MLA decision raises questions about how the Services resolve
uncertainty, the Services reiterate that we will continue to follow
accepted scientific methods and evaluate all lines of best available
evidence to arrive at principled scientific determinations, including
as to what consequences are or are not reasonably certain to occur.
This is our longstanding approach to performing the section 7(a)(2)
inquiry, and the MLA court did not reject this approach. The narrow
adverse holding of MLA did not speak to the Services' ability to remove
Sec. 402.17 from the section 7 regulations for all the reasons stated
in the preamble. As with other court decisions, the Services will give
appropriate consideration to MLA as applicable when developing future
guidance.
Comment 5: Some commenters asserted that removing Sec. 402.17 and
the requirement of ``clear and substantial information'' is
inconsistent with the Act and the best available science standard and
would be problematic for consultations that involve assumptions and
projections in areas of scientific uncertainty.
Response: As stated above, removing Sec. 402.17 and the ``clear
and substantial information'' standard does not change the fundamental
``reasonably certain to occur'' test, which will continue to be applied
by the Services in our analyses, including those involving scientific
uncertainty. Moreover, the 2019 rule specifically stated that the
regulatory changes made in that rule were clarifications and did not
``lower or raise the bar on section 7 consultations,'' and did not
``alter what is required or analyzed during a consultation.'' 84 FR
44976 at 45015, August 27, 2019. While that was the intent of the 2019
rule, for the reasons discussed above, there are concerns that the
``clear and substantial information'' standard itself can cause
confusion and could be read to be in tension with the Act's ``best
available scientific and commercial data'' requirement. For all these
reasons and as discussed throughout, removing Sec. 402.17 is
consistent with the Act.
Comment 6: Some commenters urged the Services to retain the factors
set forth in Sec. 402.17(a) and (b), rather than address them in a
future guidance document.
Response: As stated in the proposed rule, the Sec. 402.17(a) and
(b) factors are a non-exclusive list of relevant considerations for
determining whether an activity (Sec. 402.17(a)) or a consequence
(Sec. 402.17(b)) is reasonably certain to occur. Because they are non-
exclusive, general in nature, and read more as suggestions than
regulatory requirements, they are more appropriately addressed in an
update to the Services' Consultation Handbook than in regulatory text.
A discussion in the updated Consultation Handbook will lend itself to a
more appropriate treatment of these factors and their relevance to
identifying activities and consequences that are reasonably certain to
occur. Moreover, factors similar to those in Sec. 402.17(a) are
already set forth in the Services' original 1998 Consultation Handbook.
See Services' 1998 Consultation Handbook at 4-32. And while the Sec.
402.17(b) factors (remoteness in time, remoteness in geographic
location, and lengthy causal chain) were not specifically discussed in
the 1998 Consultation Handbook, the factors themselves are tautological
or circular in nature, i.e., each falls back on the concept of what is
not reasonably certain to occur to satisfy the factor (e.g., a
consequence is too remote in time if it is not reasonably certain to
occur). At the same time, this portion of Sec. 402.17 has the
potential to
[[Page 24282]]
create the misperception that the presence of any of the factors alone
indicate that a consequence is not reasonably certain to occur, but the
fact that a consequence may be remote in time, for instance, is not
dispositive of whether it is not reasonably certain to occur. These
potential problems with Sec. 402.17(b) raise the question of whether
the factors, in fact, provide much in the way of effective guidance. A
more detailed discussion in the updated Consultation Handbook can
remedy this potential deficiency.
An additional reason to remove the identified factors is how each
set of factors is introduced in the regulatory text. For both Sec.
402.17(a) and (b), they are described as factors to evaluate whether
``activities'' or ``consequences'' are ``caused by the proposed
action,'' which is governed by the two-part test of ``but for''
causation and reasonably certain to occur. Yet the factors themselves
speak only to what may be considered reasonably certain and ignore what
may be relevant for evaluating the ``but for'' prong of the test. While
this potential shortcoming might be addressed through further
regulatory revision, we believe removal of Sec. 402.17 is the
preferred solution for all the reasons stated.
Comment 7: Some commenters supported removing the factors set forth
in Sec. 402.17. They asserted that the factors like those found in
Sec. 402.17(b) are one-sided and lean only toward negating
consideration of certain effects as opposed to also including factors
that weigh in favor of considering effects. They assert that such an
approach risks inappropriately limiting the effects analysis and
species protections, which they consider at odds with the purpose of
the ESA. They also question the utility of guidance that might repeat
the identified deficiencies.
Response: The Services agree that the removal of Sec. 402.17 is
advisable for the reasons stated elsewhere in this final rule. We will
take into consideration the commenter's suggestion to potentially
broaden the scope of any guidance on factors relevant to what
activities or consequences are considered ``reasonably certain to
occur'' in developing our updated Consultation Handbook.
Comment 8: Some commenters recommended adding the factors listed in
Sec. 402.17(b) as part of the definition of ``effects of the action.''
Response: The Services respectfully decline this suggestion. For
the reasons discussed above, we are removing the non-exclusive list of
factors in Sec. 402.17(b) from the regulations. Additionally,
including these non-exclusive, general factors in the definition of
``effects of the action'' would add unnecessary complexity to the
definition.
Comment 9: Some commenters asserted that removing Sec. 402.17 will
lead to delays, increased costs for stakeholders, less efficient
consultation processes, increased regulatory burdens, and inconsistent
outcomes. They also assert that, without Sec. 402.17, the Services
would be free to presume consequences regardless of their likelihood or
``degree of certitude.''
Response: We respectfully disagree with the commenters. For the
various reasons discussed in this preamble, the Services conclude that
removing Sec. 402.17 overall will be more consistent with the Act,
resolve potential confusion, and remove regulatory text that is better
addressed in an updated Consultation Handbook. As referenced in the
preamble of the 2019 rule, the 2019 regulatory changes to the section 7
regulations did not lower or raise the bar on section 7 consultations
or alter the scope of analysis. The fundamental test of ``reasonably
certain to occur'' remains, which places limitations on the scope of
our causation analysis and avoids speculation. To the extent that some
commenters are suggesting that one may read Sec. 402.17 to heighten
the requirements for determining what activities or consequences are
reasonably certain to occur, such heightened requirements (as discussed
above) may well be inconsistent with the statutory mandate to use the
``best scientific and commercial data available.'' In particular, the
agencies have a fundamental duty to ``insure that any action
authorized, funded, or carried out by [an action] agency is not likely
to jeopardize the continued existence of a list species.'' 16 U.S.C.
1536(a)(2). Unduly limiting the scope of ``the best scientific and
commercial data available'' that an agency may consider could undermine
the agency's duty to ``insure''--i.e., ``to make certain,'' Home
Builders, 551 U.S. at 667--that an action is not likely to jeopardize.
Because the fundamental causation test remains, removal of the ``clear
and substantial information'' standard will reduce, not increase,
confusion. And, we expect the non-exclusive factors set forth in Sec.
402.17 will be addressed and expanded upon in the updated Consultation
Handbook. As a result, we do not anticipate removal of Sec. 402.17
will lead to delays, increased costs or regulatory burdens for
stakeholders, or less consistent outcomes.
Comment 10: Some commenters expressed a preference for the factors
identified in Sec. 402.17(a) and (b) to be addressed in rulemaking
rather than guidance. These commenters claimed that rulemaking affords
the public with opportunities to comment and requires additional
process to revise the regulatory text compared to non-binding guidance.
One commenter also asserted the Services should not remove Sec. 402.17
until after public comment on any updated draft Consultation Handbook.
Commenters also expressed a concern about how long it will take the
Services to issue any updated guidance.
Response: The Services intend to provide an opportunity for public
comment on any updated Consultation Handbook, which we anticipate
making available after this final rule. Therefore, the public will have
an opportunity to review and comment on guidance developed based on the
factors identified in Sec. 402.17. While any future Consultation
Handbook is not expected to be binding, the non-exclusive, general
nature of the factors found in Sec. 402.17 make their regulatory
effect to be of, at most, limited import. As for timing, the reasons
discussed above explain why it is appropriate to remove Sec. 402.17
now, including the factors of Sec. 402.17(a) and (b). The Services
therefore respectfully decline the request to delay their removal.
Comment 11: One commenter opposed the 2019 rule's expansion of the
``reasonably certain to occur'' standard beyond indirect effects and
relatedly urged the Services not to adopt guidance perpetuating the
expansion. If guidance is necessary on an analytical framework for how
to reasonably predict future effects, the commenter urged the Services
to adopt an approach similar to the Department of the Interior
Solicitor's M-Opinion (Department of the Interior, Office of the
Solicitor, Opinion M-37021 (Jan. 16, 2009)) regarding the term
``foreseeable future'' in the context of species listing.
Response: For the reasons discussed in the 2019 rule and elsewhere
in this rule, we choose to keep our two-part causation test including
``reasonably certain to occur'' (which collapsed the concepts of direct
effects, indirect effects, and interrelated and interdependent
activities). Because we are keeping our two-part test, we expect to
provide guidance in an updated Consultation Handbook on appropriate
considerations. We will consider all credible sources, including the
2009 Solicitor M-Opinion, as we prepare helpful guidance on what is
``reasonably certain to occur.''
[[Page 24283]]
Sections 402.02 and 402.14--Scope of RPMs
As proposed, we are revising the definition of ``reasonable and
prudent measures'' to adhere more closely to the statute by replacing
the term ``believes'' with ``considers'' and replacing the clause
``impacts, i.e., amount or extent, of incidental take'' with ``impact
of the incidental take on the species.'' The definition now reads:
Reasonable and prudent measures refer to those actions the Director
considers necessary or appropriate to minimize the impact of the
incidental take on the species. We are also revising Sec.
402.14(i)(1)(i) and (ii) to reflect the above change. To recognize that
RPMs are not limited solely to reducing incidental take and may occur
outside of the action area, we are also adding the following language
to the end of Sec. 402.14(i)(2): ``and may include measures
implemented inside or outside of the action area that avoid, reduce, or
offset the impact of incidental take.'' Further, we are adding to Sec.
402.14 a new paragraph at (i)(3) to clarify that offsets within or
outside the action area can be required to minimize the impact of
incidental taking on the species: Priority should be given to
developing reasonable and prudent measures and terms and conditions
that avoid or reduce the amount or extent of incidental taking
anticipated to occur within the action area. To the extent it is
anticipated that the action will cause incidental take that cannot
feasibly be avoided or reduced in the action area, the Services may set
forth additional reasonable and prudent measures and terms and
conditions that serve to minimize the impact of such taking on the
species inside or outside the action area.
Comments were received on a variety of aspects of the above changes
that expand the scope of RPMs but can be grouped under the following
two general categories: authority and application.
Authority
Comment 1: Some commenters contended that the Services' proposal
allowing for the use of offsets as RPMs conflicts with the plain
language of ESA section 7(b)(4)(C)(ii). Specifically, these commenters
asserted that ESA section 7(b)(4)(C)(ii) requires RPMs to ``minimize''
the impacts of incidental take rather than to compensate for or
eliminate those impacts through offsetting measures.
Response: The Services disagree that the RPM regulatory revision
conflicts with the plain language of ESA section 7(b)(4)(C)(ii), and,
in fact, assert the opposite. As discussed more fully below, the plain
language of section 7(b)(4)(C)(ii) supports the use of offsets as RPMs.
The relevant language plainly states that RPMs are to include measures
that minimize the impacts of incidental take, not incidental take
itself. Like measures that avoid or reduce incidental take, offsetting
measures also minimize the impacts of incidental take on the species.
Regarding these commenters' specific assertion that ESA section
7(b)(4)(C)(ii) used the term ``minimize'' rather than ``eliminate'' or
``compensate for,'' these commenters appear to view the use of
``minimize'' as reflecting congressional intent to preclude the
Services from using offsets that minimize the impact of incidental
taking to the degree that it is eliminated or compensated for. We note,
however, that the ordinary meaning of ``minimize'' found in dictionary
definitions does not refer to any specific quantum that may be reduced.
Some definitions, in fact, indicate that the term means ``[t]o reduce
(esp. something unwanted or unpleasant) to the smallest possible
amount, extent, or degree.'' Minimize, Oxford English Dictionary,
https://www.oed.com/search/dictionary/?scope=Entries&q=minimize (last
accessed on October 26, 2023). The ESA, similarly, does not specify the
extent to which impacts are to be minimized. Accordingly, offsets may
minimize the impacts of incidental take on the species through measures
that counterbalance the loss of individuals taken as a result of the
action subject to consultation (e.g., through restoration of habitat
anticipated to result in the replacement of the individuals that were
taken). Such offsetting measures must be proportional to the impact of
incidental take that cannot be avoided or reduced, with the amount or
extent of the taking (as described in the incidental take statement)
representing the upper limit on the scale of any offsetting measures.
Comment 2: Many commenters maintained that Congress intended
offsetting measures to address impacts from incidental take under ESA
section 10, not ESA section 7. ESA section 10(a)(2)(B)(ii) authorizes
the Services to issue incidental take permits if, among other things,
applicants' conservation plans ``minimize and mitigate'' impacts from
incidental take. Because ESA section 7(b)(4)(C)(ii), unlike ESA section
10(a)(2)(B)(ii), specifies that RPMs are to ``minimize'' impacts of
incidental take, these commenters asserted that Congress did not intend
for RPMs to also ``mitigate'' impacts through offsetting measures.
These commenters further argued that the proposal allowing for the use
of offsets under ESA section 7 impermissibly conflated ``minimize''
with ``mitigate.''
Response: The Services disagree that the statutory criteria for
issuing incidental take permits under ESA section 10 indicates that
Congress intended to require mitigation from private applicants in the
context of section 10, but specifically limited the use of such
measures when addressing the same impacts in the context of section 7.
The plain language of the ESA indicates that Congress considered the
terms ``minimize'' and ``mitigate'' to have overlapping meaning when
those terms were added as part of the 1982 ESA amendments.
In 1982, when Congress added the provisions for reasonable and
prudent measures and ESA section 10 incidental take permits, Congress
also revised the process by which a Federal agency, State, or applicant
may seek an exemption from the requirement in ESA Section 7(a)(2) to
ensure against the likelihood of jeopardy or adverse modification. See
H.R. Rep. No. 97-56, at 28 (May 17, 1982) and S. Rep. No. 97-418, at 19
(May 26, 1982). Included in the amendments adopted by Congress were
additional criteria to be considered by the Endangered Species
Committee in granting an exemption. See 16 U.S.C. 1536(h)(1) (ESA
section 7(h)(1)). Specifically, these amendments provided that the
Endangered Species Committee can issue an exemption if, among other
things, it ``establishes such reasonable mitigation and enhancement
measures, including, but not limited to, live propagation,
transplantation, and habitat acquisition and improvement, as are
necessary and appropriate to minimize the adverse effects of the agency
action.'' 16 U.S.C. 1536(h)(1)(B) (ESA section 7(h)(1)) (emphasis
added). Thus, in the same section of the Act as the RPMs provision,
Congress specifically described mitigation measures that offset adverse
effects as measures that minimize such effects. This provision provides
strong support that Congress considered the terms ``minimize'' and
``mitigate'' to have overlapping meaning and that mitigative measures
also encompass measures that minimize the impacts of incidental take
and vice versa.
This reading of the 1982 ESA amendments is also supported by the
ordinary meaning of the terms ``minimize'' and ``mitigate,'' which have
a substantial degree of overlap. For example, as mentioned above, the
Oxford English Dictionary defines the term ``minimize'' as ``[t]o
reduce (esp. something unwanted or unpleasant) to
[[Page 24284]]
the smallest possible amount, extent, or degree.'' Minimize, Oxford
English Dictionary, https://www.oed.com/search/dictionary/?scope=Entries&q=minimize (last assessed on October 26, 2023).
Similarly, the term ``mitigate'' means ``[t]o alleviate or give relief
from (an illness or symptom, pain, suffering, sorrow, etc.); to lessen
the trouble caused by (an evil or difficulty).'' Mitigate, Oxford
English Dictionary, https://www.oed.com/dictionary/mitigate_v?tab=meaning_and_use#36427497 (last accessed on October 26,
2023).
The Services' view of the proper interpretation of section 10 and
section 7 is longstanding. For instance, the Services' position that
Congress did not intend for section 10 to establish more rigorous
criteria for addressing the same impacts of incidental take than
section 7 is found in the preamble to the 1989 rule that finalized
revisions to the implementing regulations for addressing incidental
take of marine mammals under the Marine Mammal Protection Act and the
ESA. See Incidental Take of Endangered, Threatened, or Other Depleted
Marine Mammals, Final Rule, 54 FR 40338 at 40346, September 29, 1989.
In the response to public comments, the Services specifically rejected
a comment suggesting that ESA section 10(a)(1)(B) provided for
heightened requirements over section 7(a)(2). See id. The Services
stated the two sections were intended to provide ``the same level of
protection for endangered and threatened species.'' Id. According to
the Services, these comments ``misconstrued the purpose and effect of
section 10 provisions relating to private actions'' because they
implied that ``private activities are subject to stricter protection
standards than activities with Federal involvement.'' Id. As the
Services further explained, there was ``no indication in the ESA or its
legislative history that Congress intended to set up substantially
different or stricter protection standards for private activities by
requiring a conservation plan.'' Id.
For these reasons, section 10's reference to measures that
``minimize and mitigate'' impacts from incidental take should not be
read to limit the Services' ability to specify offsets as RPMs to
minimize the same impacts in the context of section 7.
Comment 3: We received some comments indicating the Services'
current approach that confines RPMs to measures that avoid and reduce
incidental take levels proposed is consistent with the legislative
history of the 1982 amendments to the ESA.
Response: The Services disagree with these comments. Review of the
legislative history of the 1982 ESA amendments demonstrates that
Congress considered, but rejected, competing bill language to amend the
ESA that would have required reasonable and prudent measures under
section 7 and habitat conservation plans under section 10 to minimize
``incidental take,'' rather than minimize the ``impacts'' from
incidental take. S. 2309, 97th Cong. section 6(2) (May 26, 1982). As
alluded to above, the 1982 ESA amendments changed section 7(b) to
include provisions concerning incidental taking of listed species. The
new provisions included in sections 7(b)(4) and 7(o)(2) were aimed at
addressing a situation in which the Service's biological opinion
advises a Federal agency and an applicant (if any) that the proposed
action, or the adoption of reasonable and prudent alternatives, will
not violate ESA section 7(a)(2), but is still likely to result in
taking individuals in violation of ESA section 9. See H.R. Conf. Rep.
No. 97-835, (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2868 (Federal
agencies receiving a favorable biological opinion still may be
subjected to citizen suits or civil or criminal penalties for violating
section 9 of the Act). To remedy this potential conflict, the 1982 ESA
amendments contained an exemption to the ESA's prohibition on ``take''
of listed species for takings that comply with any terms and conditions
specified in the incidental take statement to carry out the reasonable
and prudent measures required by the Service. See 16 U.S.C. 1536(b)(4)
(ESA section 7(b)(4)) and 16 U.S.C. 1536(o)(2) (ESA section 7(o)(2)).
The two bills under consideration by Congress in reauthorizing and
amending the ESA in 1982 were H.R. 6133 and S. 2309. Both bills were
reported out of the respective committees to the full House and Senate
with important differences in defining the scope of reasonable and
prudent measures. See H.R. Rep. No. 97-567 (May 17, 1982) and S. Rep.
No. 97-418 (May 26, 1982). As reported out of the House Committee on
Merchant Marine and Fisheries, H.R. 6133 contained the language that
Congress ultimately adopted in the ESA to describe the scope of
reasonable and prudent measures intended to address the impact of the
taking on the species: ``those reasonable and prudent measures that the
Secretary considers necessary or appropriate to minimize such impact.''
H.R. 6133, 97th Cong. section 3(2) (May 17, 1982) (emphasis added).
In contrast, S. 2309, as reported out of the Committee on the
Environment and Public Works, explicitly directed that these measures
be confined to reducing incidental take. S. 2309, in relevant part,
provided ``those reasonable and prudent measures that must be followed
to minimize such takings of such species.'' S. 2309, 97th Cong. section
6(2) (May 26, 1982) (emphasis added). Unlike H.R. 6133, this Senate
bill was explicitly directed at the incidental take itself, rather than
the impacts on the species.
In resolving the differences between the House and Senate, the
Conference Committee chose the House provisions requiring reasonable
and prudent measures to minimize the impact of the take on the species,
rather than the Senate amendments that restricted the measures to
minimizing the levels of take. See H.R. Conf. Rep. No. 97-835, (1982),
reprinted in 1982 U.S.C.C.A.N. 2860, 2868. On September 20, 1982, and
September 30, 1982, the Senate and House, respectively, agreed to the
Conference Report on H.R. 6133. See 128 Cong. Rec. S 11822-24
(September 20, 1982) and 128 Cong. Rec. H 8040-42 (September 30, 1982).
H.R. 6133 was subsequently signed by the President and became law on
October 13, 1982. See Endangered Species Act Amendments of 1982, Pub.
L. 97-307, 96 Stat, 1411 (October 13, 1982).
Given that Congress considered and rejected specific language that
would have restricted reasonable and prudent measures to activities
aimed at reducing incidental take, the legislative history reveals a
purposeful choice of Congress in favor of the authority of the Services
to select measures that address ``impacts to the species'' from
incidental take, rather than confining these measures to reducing
incidental take levels only. Consistent with this legislative history,
all incidental take statements will continue to retain the requirement
to describe the amount or extent of incidental take for the purpose of
establishing a clear and transparent measure for re-initiating
consultation. Thus, impacts on the species, expressed in terms of the
amount or extent of incidental take, may be minimized by measures that
not only avoid or reduce incidental take levels, but that also offset
any residual impacts that cannot be feasibly avoided or reduced. For
example, if an incidental take statement quantified the amount or
extent of take as the death of 10 individuals of the species and the
take of those individuals cannot be avoided or reduced, the Services
may minimize the loss of those individuals by specifying offsetting
RPMs such as habitat improvements that would result in the anticipated
addition of up to 10 individuals
[[Page 24285]]
(provided other regulatory requirements are satisfied).
Comment 4: Some commenters questioned why the Services were
proposing to change their long-established position that section 7
requires minimization of the level of incidental take and that it is
not appropriate to require mitigation for impacts from incidental take.
Other commenters noted, however, that no rationale has previously been
provided to support restricting RPMs to measures that solely avoid or
reduce incidental take levels.
Response: We agree with the comments that observed the sparse
rationale underpinning our prior approach in restricting RPMs to
avoiding or reducing incidental take within the action area. With this
rulemaking, however, the Services take this opportunity to explain why
a change is justified.
In over 30 years of practice, we have found that there have been
instances in which impacts from incidental take could not be feasibly
minimized through measures that avoid or reduce impacts within the
action area. In some of those instances, the impacts potentially could
have been minimized through offsetting measures, providing a better
conservation outcome for the species. Overall, our prior approach of
focusing solely on reducing the amount or extent of incidental take
within the action area has led to the continued deterioration of the
condition of listed species and their habitats and has not sufficiently
minimized the impact of incidental take. In recognition that our prior
approach was unnecessarily restrictive in carrying out ESA Section
7(b)(4)(ii)'s direction to specify those measures that are ``necessary
or appropriate'' to minimize the impacts of incidental take on the
species, the Services are, therefore, revising the section 7
implementing regulations to expand the scope of RPMs to allow for the
use of offsetting measures. These measures will further minimize the
impacts of incidental take caused by the action that cannot be feasibly
avoided or reduced. Under this regulatory change, the amount or extent
of take described in the incidental take statement will be the maximum
level of impacts to minimize.
As explained above, this regulatory revision is based upon a
careful review of the Act's text, the purposes and policies of the ESA,
and the 1982 ESA legislative history. Based upon that review, we find
that this change more fully effectuates the intent of Congress and
better serves the conservation goals of the ESA. See, e.g., 16 U.S.C.
1531(b) (describing the conservation purposes of the Act). This
regulatory revision will allow the Services to specify measures to
offset residual impacts of incidental take that cannot otherwise be
feasibly addressed through avoidance and reduction measures. In
allowing for residual impacts to be addressed, this revision may reduce
the accumulation of adverse impacts to the species that is often
referred to as ``death by a thousand cuts,'' which can undermine the
Act's overarching goal of providing for the conservation of listed
species.
As explained in the proposed rule, this approach for identifying
RPMs will also allow the Services to adhere more effectively to the
preferred sequence or hierarchy in the development of mitigation. That
preferred sequence or hierarchy aims to avoid or reduce impacts to the
species first, and then potentially minimize residual impact to the
species through offsets.
Comment 5: Several commenters maintained that the proposal allowing
for use of offsetting measures as RPMs violates the ``minor change
rule,'' which requires RPMs to specify only minor changes that do not
alter the basic design, location, duration, or timing of the action.
For example, some noted that offsets occurring outside of the action
area would necessarily violate the ``minor change rule.''
Response: The Services disagree that the revision allowing for RPMs
to consist of offsets violates the ``minor change rule.'' Because, in
most instances, they operate as additional measures to minimize impacts
of incidental take that cannot be avoided, offsets (regardless of
whether they occur within or outside of the action area) would not be
expected to result in any modifications that would prevent the action
subject to consultation from proceeding as essentially proposed. For
example, a consultation on a residential development may include RPMs
that offset the take of members of a listed species through
contributions to a conservation bank established to repair habitat for
that species outside of the action area. In this example, the offset
would not result in any changes to the development, including its
location, and the development would be able to proceed as planned. On
the other hand, RPMs that include measures designed to avoid and reduce
incidental take may result in direct changes to the subject action. In
the example involving the residential development, for instance, RPMs
that specify re-routing an access road to skirt the edge of wetland
habitat for a listed species would result in less incidental take.
Because the measure directly modifies the design of the residential
development, the Services would need to consider whether this change
would be ``minor,'' in compliance with the ``minor change rule.'' If
the measure would not alter the fundamental design of the development
project, the action would go forward as essentially planned, and the
change in design would not violate the ``minor change rule.''
Because we do not expect offsetting measures that occur outside of
the action area to violate the ``minor change rule,'' we are adopting
clarifying language at 50 CFR 402.14(i)(2), which expressly recognizes
that offsets may occur within or outside of the action area.
Comment 6: The Services received comments asserting that the
proposal relating to RPMs should be carried out under section 7(a)(1),
not section 7(a)(2), of the Act. Additionally, one commenter sought
specific regulatory changes withholding issuance of an incidental take
statement unless the relevant action agency has an ESA section 7(a)(1)
conservation program in place for species covered under the subject
incidental take statement.
Response: Although section 7(a)(1) and section 7(a)(2) have
complementary roles in fulfilling the ESA's conservation goal (see ESA
section 2(b)), section 7(a)(1) is not the preferred statutory mechanism
to carry out the Services' revision relating to the use of offsets to
minimize impacts of incidental take.
The regulatory changes we are adopting in this final rule relating
to offsetting RPMs are based on statutory language arising from the
process set forth in section 7 for the issuance of biological opinions
and incidental take statements, especially section 7(b). Section
7(a)(1) provides separate authority not directly related to these
changes. We, therefore, decline the commenters' request.
In addition, the ESA provides no authority for the Services to
require Federal action agencies to have a conservation program under
ESA section 7(a)(1) as a condition of an incidental take statement. See
16 U.S.C. 1536(b)(4) (setting forth the conditions for issuance of
incidental take statements). Therefore, we decline to adopt the
commenter's recommendation, as it conflicts with the plain language of
section 7(b)(4) of the Act.
Comment 7: The Services received comments that claimed the proposal
recognizing the use of offsets as RPMs could violate the Takings Clause
of the Fifth Amendment of the United States Constitution. Some of these
comments urged the Services to withdraw the
[[Page 24286]]
proposal based upon the same concerns raised in the 2018 notice
announcing the withdrawal of the 2016 FWS Endangered Species Act
Compensatory Mitigation Policy (83 FR 36469, July 30, 2018).
Response: In light of the statutory and regulatory requirements in
place for issuing RPMs, the concerns that the use of offsets as RPMs
may lead to unconstitutional takings are misplaced. The grounds for
withdrawing the 2016 FWS Endangered Species Act Compensatory Mitigation
Policy centered on the notion that offsite mitigation raises concerns
of whether a sufficient ``nexus'' exists establishing that the relevant
impact caused by the specific project proponent (rather than some other
actor) is being addressed through the requested mitigation. See 83 FR
36469, July 30, 2018. In addition, according to the withdrawal notice,
mitigation that adhered to the FWS's policy goal of achieving a ``net
conservation benefit'' (which is no longer in effect) could potentially
run afoul of Supreme Court precedent requiring ``rough
proportionality'' between the government's requested mitigation and the
impact being remedied.
Under this revision, however, any offsetting measures, regardless
of whether they are applied within or outside of the action area, must
be ``necessary or appropriate'' to minimize the impacts of incidental
take on the species caused by the action that is subject to
consultation. To be in accordance with this statutory requirement, all
RPMs (including offsets) must have the requisite nexus between the
impacts of incidental take caused by the action and measures that
minimize those impacts. In other words, any offsetting measures that
are ``necessary or appropriate'' would necessarily target the impacts
of incidental take caused by the proposed Federal action, though such
offsets may occur in locations that have been subject to impacts from
other activities. As previously explained, the Services may minimize
the impacts of incidental take by specifying offsetting measures (such
as habitat improvements) that would result in the anticipated addition
of individuals estimated in the incidental take statement to be taken
by the proposed action.
With regard to the concern that mitigation (particularly mitigation
with the goal of achieving a ``net conservation gain'') will fail to be
proportional to the harm, offsets specified as RPMs must be
commensurate with the impact of the incidental taking caused by the
action. As explained in the preamble of the proposed rule (88 FR 40753,
June 22, 2023), the scale of the impacts from incidental take will
serve as the upper limit for the scale of the offset. Importantly, the
Services are not specifying RPMs with the goal of achieving ``net
conservation gain,'' which was the planning goal referenced in the 2016
FWS Endangered Species Act Compensatory Mitigation Policy but is no
longer the goal used by FWS.
Comment 8: Some commenters suggested that the proposal to consider
offsetting measures to minimize the impacts of incidental take exceeds
the agencies' authority under the ESA. Quoting the decision in Maine
Lobstermen's Association v. NMFS, 70 F.4th 582, 596 (D.C. Cir. 2023),
these commenters maintain that Congress intended the Services to have a
more limited role under section 7 that involves providing expert
assistance to the Federal action agency, rendering an opinion, and if
the conclusion is no jeopardy, issuing the incidental take statement.
Response: The Services disagree that the revision recognizing that
RPMs may include offsetting measures to minimize impacts of incidental
take caused by the action subject to consultation represents a broad
expansion of power in contravention of the ESA. The Act plainly
authorizes the Services to issue measures that are necessary or
appropriate to ``minimize'' the impacts of incidental take. As
explained above, offsetting measures, like measures that avoid and
reduce incidental take, also minimize the impacts of incidental take on
the species.
Under many circumstances, measures that avoid and reduce incidental
take will be all that is necessary or appropriate to minimize the
impacts of incidental take. However, in those circumstances when
impacts from incidental take cannot feasibly be minimized through
measures that avoid and reduce incidental take, this revision would
allow the Services to consider offsetting measures for inclusion as
RPMs. This approach is fully consistent with the Services' statutory
authority, and the MLA case (which did not address the Services'
authority with regard to RPMs) does not stand for a contrary position.
For additional discussion of the MLA case and the requirements of
section 7, please see the discussion of the case at the beginning of
the ``Summary of Comments and Responses'' section and the specific
discussion relating to the removal of Sec. 402.17 above.
For all the reasons mentioned above, we find that the revision
recognizing the use of offsets as RPMs is consistent with the plain
language of the Act, a better reflection of Congressional intent, and
better serves the conservation goals of the Act.
Comment 9: We received several comments questioning the
relationship between the ``minor change rule,'' the Services'
mitigation policies, and costs of offsets as RPMs.
Response: Please see our response to comment 5 above regarding the
relationship between the ``minor change rule'' and the use of offsets
as RPMs. As a matter of practice, when offsetting measures are
applicable to a specific formal consultation, the Services will
identify potential offsetting measures and work with the action agency
(and applicant, if applicable) when developing RPMs (including offsets)
to determine, among things, the economic feasibility of these measures.
Thus, any costs associated with the offsetting measures would be
considered during development of the measure, in coordination with the
Federal action agency (and applicant, if applicable), to ensure that
the offsetting measure is reasonable and prudent. Measures that are
cost-prohibitive in view of the nature of the action may not be
considered reasonable and prudent.
With respect to the Services' consideration of their respective
mitigation policies, these policies will help inform the development of
offsetting measures but will not change the statutory or regulatory
requirements that apply to all RPMs. Offsetting measures will be
proportionate to the impact of the taking. In addition, monitoring and
reporting requirements, as part of the terms and conditions, will
continue to be used to verify implementation and efficacy of RPMs,
including offsets.
Application
Comment 1: Several commenters questioned how offsets would be
developed and state that the relationship of habitat and critical
habitat to offsetting measures is unclear. Some commenters asked
whether the Services would use habitat types and ratios to determine
appropriate offsets.
Response: RPMs that include offsetting measures will be species-
specific and will depend upon the factual circumstances surrounding the
consultation. Implementing the offsets specified by the Services would
be the responsibility of the action agency or applicant. In specifying
offsetting measures to minimize the impacts of incidental take, the
Services may identify offsetting measures that are implemented through
various types of
[[Page 24287]]
mechanisms such as conservation banks, in-lieu fee programs, and other
kinds of mitigation devices established previously by project
proponents. However, any offsetting measures included as RPMs would be
designed to minimize the impact of the incidental take resulting from
the proposed action to the subject species, and there are
scientifically recognized techniques and methodologies that have been
used to determine the appropriate level of offsets for species
commensurate with the impact of the take to the species. Offsetting
measures may consist of purchasing, preserving, or restoring the
habitat of the applicable species impacted by incidental take caused by
the action. However, offsets do not necessarily have to be applied
within critical habitat designated for the relevant species. In
addition, RPMs that include offsetting measures may be directed at
improving the habitat of the relevant species, regardless of whether
the proposed action resulted in impacts to that species' habitat.
Offsets may be based on habitat ratios, equivalency modeling, or one-to
one replacement, for example. Consistent with the ESA and its
implementing regulations, offsets will be necessary or appropriate for
minimizing the impacts of incidental take. In all cases, the impact of
the take caused by the action, as expressed in the ITS as the amount or
extent of incidental take, would provide an upper limit on the scale of
any offsetting measures.
Comment 2: Several comments requested information on what specific
mechanisms may be used to deliver offsets, and whether these mechanisms
may be sponsored by third parties or undertaken by the project
proponent.
Response: Some potential mechanisms that could be used to deliver
offsets include conservation banks, in-lieu fee programs, and
restoration programs. Other mechanisms that may be considered are
described in the Services' mitigation policies. Mechanisms that may be
considered by the Services could be sponsored by third parties or be
the responsibility of the project-proponent. In addition to the
Services' mitigation policies that provide guidance in the selection of
mechanisms to deliver offsets, the FWS, pursuant to the 2021 National
Defense Authorization Act (Pub. L. 116-283), is preparing a rule
regarding conservation banking and other mechanisms that, if finalized,
will address specific criteria and requirements of those mechanisms to
receive FWS approval.
Comment 3: Several commenters expressed concern regarding the lack
of existing mitigation banks or in-lieu fee programs for various
species or parts of the country, which they contend may result in a
delay in completing consultation and implementing their project.
Response: The Services do not anticipate that the lack of available
offsetting mechanisms would result in delays to completing
consultations in a timely manner or within the statutory or regulatory
time frames. The Services understand the current availability of third-
party offset mechanisms (e.g., conservation banks and in lieu fee
programs) varies greatly across the country and by species, and we will
consider the availability of these mechanisms when identifying RPMs. If
these mechanisms to deliver offsets are not available, the Services
anticipate that such measures would generally not be identified as an
RPM. However, more banks and in-lieu fee programs are being established
each year as identified in the Regulatory In-lieu Fee and Bank
Information Tracking System (U.S. Army Corps of Engineers, RIBITS:
Regulatory In-lieu Fee and Bank Information Tracking System, last
accessed November 8, 2023. https://ribits.ops.usace.army.mil/ords/f?p=107:2:5966340072209). Again, the availability of existing
mechanisms is one important factor the Services will consider when
determining whether measures are necessary or appropriate to minimize
the impact of incidental take.
Comment 4: Some commenters recommended avoiding redundant,
additional layers of regulation and multiple mitigation mandates.
Response: The Services disagree that the regulatory change to the
scope of RPMs will create redundant regulation and additional
mitigation mandates. On the contrary, this regulatory change is in
alignment with our initiatives to develop efficiencies and holistic
approaches to conserving federally listed species. This regulatory
change was developed in consideration of existing regulatory frameworks
(e.g., Clean Water Act Section 404(b)(1) Guidelines) used by permitting
agencies with whom the Services have routinely worked in the
conservation of listed species. Mitigation associated with other
existing regulatory frameworks is often included in the proposed action
by the action agency requesting consultation. The effect of these
mitigation measures is considered in the jeopardy analysis and can also
minimize the impacts of incidental take caused by the proposed action.
When the proposed action includes mitigation measures, there may be no
need to include additional offsets as RPMs. As part of the Services'
initiatives aimed at leveraging other conservation efforts and building
consistency and efficiencies in planning and implementing resource
offsets, this regulatory revision promotes conservation at a landscape
scale to help achieve the conservation purposes of the ESA. In
promoting these purposes, the revision would provide flexibility to the
Services to specify measures to address impacts from incidental take
that cannot be feasibly addressed through measures that avoid or reduce
incidental take. As mentioned in the preamble of the proposed rule (88
FR 40753, June 22, 2023), impacts from incidental take that are not
addressed can accumulate over time, potentially leading to more severe
impacts on the species (sometimes referenced as ``death by a thousand
cuts''). In addition, to the extent that RPMs may not be feasible
within the action area, this revision provides the flexibility to
specify measures within locations outside of the action area that serve
as important corridors for species survival, reproduction, or
distribution, providing benefits to the species on a landscape scale.
Comment 5: A few commenters asked for clarification or a definition
of the term ``feasibly'' proposed in the RPM regulatory revisions at 50
CFR 402.14(i)(3): To the extent it is anticipated that the action will
cause incidental take that cannot feasibly be avoided or reduced in the
action area, the Services may set forth additional reasonable and
prudent measures and terms and conditions that serve to minimize the
impact of such taking on the species inside or outside the action area.
These commenters requested the Services describe the circumstances
under which the Services will determine that the impacts of the agency
action ``cannot feasibly'' be ``avoided or reduced'' within the action
area.
Response: The term ``feasibly'' should be understood to have the
same ordinary meaning found in the dictionary definition of that term.
For instance, ``feasibly'' is the adverb form of the term ``feasible,''
which means ``[o]f a design, project, etc.: [c]apable of being done,
accomplished or carried out; possible, practicable''. Feasible, Oxford
English Dictionary, https://www.oed.com/search/dictionary/?scope=Entries&q=feasible (last accessed on November 5, 2023). We,
therefore, do not find that a regulatory definition is needed. The
Services may find measures that avoid or reduce incidental take cannot
feasibly minimize the impacts of incidental take when such measures
would violate the
[[Page 24288]]
``minor change rule.'' Or, in some cases, the Services may determine
that specifying measures that avoid or reduce incidental take within
the action area as RPMs would not be feasible because the degraded
condition of the area would require cost prohibitive measures that are
not reasonable and prudent. Under these types of limited circumstances,
the Services may consider minimizing the impacts from incidental take
caused by the proposed action through offsetting measures that occur
within or outside of the action area.
Comment 6: We received several comments related to the preferred
order of RPMs and a request for clarification of the term ``priority.''
Many commenters supported a preferred order/hierarchy, while others
wanted more flexibility.
Response: Under this regulatory change expanding the scope of RPMs,
the Services will place a priority on measures that avoid or reduce
incidental take over offsetting measures. In recognition of the
Services' preference to specify measures that prevent incidental take
from occurring in the first instance, we will first consider measures
that avoid or reduce incidental take in the action area. See 88 FR
40753, June 22, 2023. If impacts from incidental take cannot be
feasibly minimized through measures that avoid or reduce incidental
take, the Services will then consider offsetting measures to minimize
the residual impacts of incidental take in the action area. After
considering whether offsetting measures can feasibly be applied within
the action area, the Services may then consider specifying offsets
outside of the action area to minimize the impacts of incidental take
caused by the action subject to consultation. In summary, the steps are
as follows:
1. Avoid or reduce, within the action area, the impact of
incidental taking on the species.
2. Offset, within the action area, the impact of incidental taking
on the species.
3. Offset, outside the action area, the impact of incidental taking
on the species.
Comment 7: One commenter stated that the determination of whether
offsetting RPMs are or are not reasonably available in the action area
may depend in part on whether the action area is broadly or narrowly
defined and how well the site-specific effects of the proposed Federal
action are identified and analyzed in the biological opinion. The
commenter asked the Services to clarify how they will ensure that an
action area is properly drawn and keyed to the actual impacts of the
agency action and that the effects of the action are properly analyzed
at a site-specific level, to minimize the potential for arbitrary
determinations that off-site mitigation is necessary.
Response: The Services do not define the action area broadly or
narrowly for the purpose of ensuring that RPMs are available in the
action area. In accordance with the regulatory definition of ``action
area,'' the action area must be based upon the specific action subject
to the consultation and must consist of ``all areas to be affected
directly or indirectly by the Federal action and are not merely the
immediate area involved in the action.'' 50 CFR 402.02. The Services
did not propose any changes to the definition of ``action area'' or the
process of defining it. Thus, the Services will continue to ensure that
an action area is properly drawn and keyed to the actual impacts of the
agency action and that the effects of the action are properly analyzed
within the defined action area. Regarding application of offsetting
measures, the Services clarify that offsetting measures could be
included as RPMs inside and outside the action area. As previously
explained in comment 6 above, the Services will follow a preferred
sequence for developing RPMs that is set forth in Sec. 402.14(i)(3) of
the implementing regulations. Under this preferred order for specifying
RPMs, we anticipate that offsetting measures outside of the action area
will be specified under limited circumstances when, for instance, RPMs
within the action area would violate the ``minor change rule'' or would
not be economically or technologically feasible.
Comment 8: Several commenters requested additional detailed
information on the specific timing for implementing offsetting measures
to minimize the impacts of incidental take.
Response: Ideally, offsetting measures would be implemented in
advance of the impact from the action occurring in order to reduce risk
and uncertainty and reduce the temporal impacts from incidental take.
However, the timing of implementation will be determined on a case-by-
case basis and will depend upon various factors such as the
availability of existing mechanisms to offset impacts from incidental
take (e.g., conservation banks) and the best scientific and commercial
data available.
Comment 9: Several commenters requested additional detailed
information on the location of offsetting measures outside of the
action area.
Response: As stated above, the specific location of offsetting
measures will be determined on a case-by-case basis and will depend
upon various factors such as the availability of existing mechanisms to
offset impacts from incidental take and the best scientific and
commercial data available.
Comment 10: Many commenters supported the application of RPMs
outside the action area when such application would create efficiencies
and be beneficial.
Response: The Services appreciate the commenters' support, and we
agree that the regulatory change allowing for the application of RPMs
outside the action area will provide additional conservation benefits
to affected species and create efficiencies in extending these
benefits. For example, additional benefits would be provided to the
affected species when measures that avoid or reduce incidental take
could not feasibly be applied. The regulation can also create
efficiencies by using established mechanisms to deliver offsets, such
as specifying the purchase of an offsetting credit from a conservation
bank already established and approved in connection with a habitat
conservation plan (HCP).
Comment 11: One commenter expressed concern that allowing RPMs to
go outside the action area may be in conflict with County, State, and
Tribal mitigation programs that require offsets to be implemented
locally.
Response: As stated previously, all RPMs must be reasonable and
prudent and within the authority of the action agency to implement. If
there are laws that apply to the proposed action that require all
mitigative measures to be located within a specific geographic area
(locally) and offsetting measures outside of that area would violate
those legal restrictions, then the offsets would not be within the
action agency's (or applicant's) authority to implement.
Comment 12: One commenter contends that offsetting measures should
not be required for biological opinions that use surrogates to express
the amount or extent of anticipated take because it is hard to
determine if take even occurs since the ``reasonable certainty''
standard does not require a guarantee that take will occur.
Response: The Services decline to adopt the commenter's suggestion
to exclude the use of offsetting measures when a surrogate is used to
express the amount or extent of the taking caused by the action. This
suggestion conflicts with the ESA's requirement to specify RPMs that
are necessary or appropriate to minimize the impacts of incidental
[[Page 24289]]
take on the species. The implementing regulations governing the use of
surrogates in estimating the amount or extent of incidental take is
found at Sec. 402.14(i)(1)(i). When using surrogates, the Services are
required to ensure they establish a clear standard for determining when
the level of anticipated take has been exceeded. Because many
offsetting measures are likely to be habitat-based and the Services
often use impacts to habitat as a surrogate for estimating the amount
or extent of incidental take, the metrics used to identify a surrogate
can be useful and appropriate for establishing offsetting measures as
RPMs. For example, if a surrogate for take of a cryptic listed insect
is identified by the number of host trees lost that the species uses
for reproduction and survival, measures to conserve the amount of host
trees lost due to the action could also serve as offsetting RPMs.
Comment 13: Some commenters stated that monitoring and reporting on
the implementation of the offsetting measures is needed.
Response: As with all incidental take statements, monitoring and
reporting are required parts of the terms and conditions to implement
RPMs, pursuant to ESA section 7(b)(4)(iv) and its implementing
regulations. This statutory and regulatory requirement would still
apply to the terms and conditions to carry out offsetting measures, and
this rulemaking does not make any changes to that requirement.
Regardless of whether third-party mitigation arrangements or project
proponent mitigation is used, these mechanisms for delivering offsets
must satisfy any monitoring and reporting requirements contained in the
terms and conditions of the incidental take statement.
Comment 14: Some commenters requested that specific actions be
excluded from the Services' ability to impose additional RPMs that
offset impacts. One example mentioned by commenters as warranting
exclusion from imposition of additional RPMs involves consultations on
habitat restoration projects that have net benefits to habitat
functions or services.
Response: Identifying specific types of actions for exclusion in
this rulemaking may be in conflict with the requirements of section 7
and cannot be predicted in advance. Thus, we decline to specify such
actions. However, in practice, the Services have found that project
proponents of these types of specific actions often voluntarily include
measures that minimize the impacts of incidental take, potentially
eliminating the need for additional RPMs.
Comment 15: One commenter stated they ``oppose perpetual offsets in
situations where a species is not meeting recovery goals and there is
not a clear or quantifiable link to pesticides as a stressor.''
Response: We interpret that this commenter intended to oppose
offsets that are perpetual in nature for species in decline and offsets
that are not directly linked to the amount or extent of incidental take
identified in the incidental take statement. However, it is important
to note that RPMs are required to be ``necessary or appropriate'' to
minimize the impacts of incidental take that is reasonably likely to
occur from the proposed action. To be in accordance with these
statutory and regulatory requirements, all RPMs (including offsets)
must have the requisite nexus between the impacts of incidental take
caused by the action and the measures that minimize those impacts.
Thus, offsetting measures, as with all RPMs, would not address impacts
caused by other activities that are not the subject of the
consultation. RPMs, including offsets (if appropriate), whether
perpetual or not, will be determined on a case-by-case basis.
Comment 16: Several commenters asked for sideboards that limit the
extent of offsetting measures and how the Services will minimize
uncertainty, prevent inconsistency, and ensure that offsetting RPMs are
not arbitrary. Other commenters stated that offsets should achieve a
``no net loss,'' or even a net gain, with no upper limit.
Response: As explained in the preamble of the proposed rule (88 FR
40753, June 22, 2023) and elsewhere in this final rulemaking, there are
several statutory and regulatory standards that will govern the
application of offsetting measures. First, only after fully considering
measures that will avoid or, reduce incidental take would the Services
consider specifying measures that offset the residual impacts of
incidental take that cannot feasibly be avoided. In most cases,
measures that avoid or reduce incidental take within the action area
will be preferred in minimizing the impacts of incidental take,
consistent with the preferred sequence at 50 CFR 402.14(i)(3) and as
further described in the response to comment number 6 above.
Second, the Services will coordinate as appropriate with the action
agency and applicant, if any, on development of offsetting measures. As
always, this coordination is essential to ensure that RPMs are within a
Federal action agency's, and applicant's (if any), authority or
discretion to implement. All RPMs, including offsetting measures, must
be reasonable and prudent; any RPMs, including those consisting of
offsetting measures, that are not within a Federal action agency's, and
applicant's (if any), authority or discretion to implement would not be
reasonable and prudent. Measures that are cost-prohibitive may also not
be reasonable and prudent to minimize the impacts of incidental take.
Third, the impact of the incidental take on the species caused by
the action will provide the upper limit on the scale of any offsetting
measures. Only offsetting measures that are necessary or appropriate to
minimize the impacts of incidental take will be specified as RPMs.
Thus, RPMs, including those consisting of offsetting measures, will be
proportional to the impacts of incidental take caused by the action and
not be required to provide a net benefit to the species.
Fourth, as with all RPMs, monitoring and reporting requirements
will be required as part of the terms and conditions of the ITS.
Lastly, this revision to the scope of RPMs does not change the
Services' long-standing practice of working with Federal action
agencies and applicants in developing ``conservation measures,'' as
defined in the 1998 Consultation Handbook, that may be voluntarily
incorporated as part of the ``action'' to minimize adverse effects. In
fact, the Services have a long history of working with Federal action
agencies and applicants to develop these voluntary measures, some of
which include offsets, to produce strong conservation outcomes. The
Services' expertise gained in developing offsetting measures that may
be incorporated as part of the action will be used in the development
of offsets included as RPMs.
Comment 17: We received comments questioning whether offsetting
RPMs would be applied to consultations on listed plant species and
critical habitat.
Response: As with all RPMs, RPMs that consist of offsets, are
specified to minimize the impacts of incidental take of wildlife (not
plants or critical habitat) caused by the action. Because incidental
take statements are issued only for incidental take of wildlife, this
regulatory revision allowing for offsetting measures as RPMs would not
apply to plants or critical habitat.
Comment 18: Several commenters shared concerns regarding the costs
of offsetting measures. Some stated the costs would be significant to
the regulated community and some stated
[[Page 24290]]
the cost is unpredictable, but the range of potential costs is
substantial.
Response: Offsetting measures, as with all RPMs, do have an
associated cost. However, we anticipate offsetting measures will be
used in limited circumstances. For example, most consultations are
completed informally, and this regulation would apply only to formal
consultations that require an ITS containing RPMs. Even among formal
consultations that require an ITS containing RPMs, some of these
consultations will be able to address impacts of incidental take
through measures that avoid or reduce incidental take within the action
area, and offsets would be considered only if measures that avoid or
reduce incidental take cannot feasibly minimize the impacts of
incidental take caused by the proposed action. Although we anticipate
that offsetting measures will be used under limited circumstances when
measures that avoid or reduce incidental take cannot feasibly be
applied, it is not possible to know how many formal consultations will
include offsetting measures as RPMs due to the tremendous variation in
Federal actions subject to formal consultation, the specific impacts
from these actions, and the affected species that may be analyzed.
Although we cannot predict the costs of the RPM proposal due to
these variable factors associated with formal consultations, any costs
would be constrained by the statutory and regulatory requirements that
RPMs are ``necessary or appropriate,'' commensurate with the residual
impacts of incidental take caused by the proposed action. In addition,
as previously mentioned, the Services consider the economic feasibility
of any RPMs.
All Other Aspects of the 2019 Rule
As stated earlier, the proposed rule also sought comment on all
aspects of the 2019 rule. Although the vast majority of the comments
received on all other aspects of the 2019 rule were non-substantive, we
did receive substantive comments and other relevant comments warranting
response on the topics of the definition of ``destruction or adverse
modification,'' programmatic consultations, non-Federal
representatives, Sec. 402.13(c)(2) informal consultation timelines,
Sec. 402.14(h)(3) and (4) adoption of analysis, section 7(a)(1)
(programs for the conservation of listed species), project
modifications, the geographic scope of section 7(a)(2), and ``small
Federal handle.'' Our responses to the comments on these topics and
others are provided below.
Destruction or Adverse Modification
Comment 1: Commenters request the removal of the phrase ``as a
whole'' from the definition of destruction or adverse modification.
These commenters assert that the phrase undermines conservation and
recovery of species because it would allow more piecemeal, incremental
losses of critical habitat over time that would add up cumulatively to
significant losses or fragmentation (referred to by many comments as
``death by a thousand cuts''). Furthermore, they contend the phrase
``as a whole'' limits the Services' ability to analyze impacts and
lacks scientific justification.
Response: As discussed in the 2019 rule (see 84 FR 44976 at 44983-
44985, August 27, 2019), the Services again decline to remove the
phrase ``as a whole'' from the definition of destruction or adverse
modification. The definition of ``destruction or adverse modification''
is focused first on the critical habitat itself, and then considers how
alteration of that habitat affects the ``conservation'' value of
critical habitat. The phrase ``as a whole'' will not reduce or alter
how the Services consider the effects of small changes to critical
habitat. This approach is fully consistent with the nature of critical
habitat and the duty to avoid destruction or adverse modification of
critical habitat under the Act, as well as the scientific principles
underlying those provisions.
Additionally, this approach does not limit our ability to analyze
impacts to critical habitat using the best available scientific and
commercial information. As discussed in the 2019 rule, consistent with
longstanding practice and guidance, the Services must place impacts to
critical habitat into the context of the entire designation to
determine if the overall value of the critical habitat is likely to be
appreciably reduced, but this consideration does not mean that the
entirety of the designated critical habitat must be affected by the
proposed action. This situation could occur where, for example, a
smaller affected area of habitat is particularly important for the
conservation of a species (e.g., a primary breeding site). Thus, the
size or proportion of the affected area is not determinative; impacts
to a smaller area may in some cases result in a determination of
destruction or adverse modification, while impacts to a large
geographic area will not always result in such a finding.
Moreover, with regard to concerns of ``death by a thousand cuts,''
the regulations require the Services' biological opinion to assess the
status of the critical habitat (including threats and trends), the
``environmental baseline'' of the action area, and cumulative effects.
The Services' summary of the status of the affected species or critical
habitat considers the historical and past impacts of activities across
time and space for the entire listed entity and critical habitat
designation. In this context, the effects of any particular action and
``cumulative effects'' are added to those impacts identified in the
``environmental baseline.'' This analytical process avoids situations
where each individual action, when viewed in isolation, may cause only
relatively minor adverse effects but, over time, accumulated effects of
these actions would erode the conservation value of the critical
habitat. In the 2019 rule, we clarified the text in Sec. 402.14(g)(4)
regarding status of the species and critical habitat to better
articulate the analytical process used to determine whether an action
is likely to jeopardize the continued existence of listed species or
result in the destruction or adverse modification of critical habitat.
The clarification helped to ensure the ``incremental losses'' described
by the commenters are appropriately considered in our jeopardy and
``destruction or adverse modification'' determinations.
Comment 2: Some commenters asserted that inclusion of ``as a
whole'' in the definition of destruction or adverse modification is
inconsistent with case law.
Response: None of the cases cited favorably by commenters directly
address the issue of the appropriate scale of the ``destruction or
adverse modification'' analysis. And while commenters may disagree with
the holding, the Ninth Circuit Court of Appeals has specifically
endorsed the approach of analyzing the impacts to critical habitat at
the scale of the entire designation. See Butte Envtl Council v. U.S.
Army Corps of Eng'rs, 620 F.3d 936, 947-48 (9th Cir. 2010) (citing the
Services' 1998 Consultation Handbook at 4-34).
Comment 3: Some commenters asserted that inclusion of ``as a
whole'' does not adequately afford protection to critical habitat of
species that are wide-ranging and migratory.
Response: As discussed above, the Services' approach to analyzing
impacts to portions of a critical habitat provides a full assessment of
individual actions by relying on the jeopardy and
[[Page 24291]]
destruction/adverse modification framework. That framework considers
the overall status of the critical habitat, and in that context, adds
the effects of any particular action and any ``cumulative effects'' to
those impacts identified in the ``environmental baseline.'' Thus, under
this analytical framework, incremental impacts from prior actions are
not ignored, and the overall conservation value of critical habitat is
appropriately preserved for the benefit of the listed species. This
same framework applies to species with expansive critical habitat
designations and ensures any impacts to particular areas are
appropriately considered within the context of the respective critical
habitat designation as a whole.
Programmatic Consultation
Comment 1: One commenter requested revision of the definition of
``programmatic action'' to clarify whether programmatic consultations
are required, how programmatic consultations can be used, and the roles
of multiple Federal agencies, and of non-Federal applicants.
Response: Given the nature of programmatic consultation and the
significant flexibilities provided by section 7 of the ESA, additional
details regarding the specifics and scope of programmatic consultation
are better addressed through updates to the Consultation Handbook
rather than additional regulatory text. The current definition of
``programmatic consultation'' is quite broad and covers a broad suite
of actions that could constitute a program, plan, policy, or regulation
providing a framework for future proposed actions. See 50 CFR 402.02.
Although broad, the examples of actions included in the definition are
not intended to identify every type of program or set of activities
that may be consulted on programmatically. The programmatic
consultation process offers great flexibility and can be strategically
developed to address multiple listed species and multiple Federal
agencies, including applicants as appropriate, for both informal and
formal consultations. We encourage Federal agencies and applicants to
reach out to the Services to discuss the potential ways to structure a
consultation (such as the use of programmatic consultations) to
streamline the consultation process.
Non-Federal Representative
Comment 1: One commenter suggested agencies allow the developer to
be designated as a ``non-federal representative'' for purposes of
consultation to prepare the biological assessment and hold pre-
application meetings. The commenter also suggested that NMFS help with
communication and resolving fundamental questions.
Response: Regulations at 50 CFR 402.08 allow a Federal agency to
designate a non-Federal representative for conducting informal
consultation or preparing a biological assessment. The Services may
provide technical assistance to the non-Federal representative, in
coordination with the Federal action agency, to address questions
regarding the consultation process, but the section 7(a)(2)
consultation responsibility ultimately lies with the Federal action
agency.
Section 402.13(c)(2)--Informal Consultation Timelines
Comment 1: Some commenters advocated for the removal of the 60-day
timeline in Sec. 402.13(c)(2). Those commenters stated that according
to information included in the preamble to the 2018 draft revisions,
only 3 percent of informal consultations take more than 3 months to
complete, and therefore there is no rational justification to adopt a
timeline to address this low number of informal consultations, nor is
there reason to believe that this small number of informal
consultations lasting longer than 3 months causes a problem for action
agencies. The commenters ask the Services to focus on addressing the
small number of lengthier informal consultations rather than imposing
an across-the-board timeline.
Response: The Services are retaining the 60-day timeline for
issuing a concurrence or non-concurrence for informal consultations.
The Services' intention with this timeline is to increase regulatory
certainty and timeliness for Federal agencies and applicants. Based
upon more than 3 years of implementing this provision, the Services
find that the 60-day timeline is justified to promote the goals of
increasing regulatory certainty and timeliness. As stated in the
preamble and response to comments in the 2019 rule, the 60-day timeline
begins only after receipt of information sufficient for the Services to
determine whether to concur. See Sec. 402.13(c)(2) (requiring
information similar to the types of information needed to initiate
formal consultation). The Services typically review all initiation
request packages within 30 days. In addition, should more time be
required for the Services' determination, Sec. 402.13(c)(2) provides
for a 60-day extension upon mutual consent. We anticipate that this
provision will continue to provide greater certainty for Federal
agencies and applicants, while ensuring that the Services have
sufficient information and time to reach an informed decision. Finally,
we have not experienced problems in practice with Sec. 402.13(c)(2)
under the 2019 rule; this provision's assurances for regulatory
certainty and timeliness outweigh any concerns with implementation.
Section 402.14(h)--Adoption of Analysis
Comment 1: Some commenters expressed concern that the 2023 proposed
regulations make no change to the 2019 revisions at 50 CFR
402.14(h)(3)(i) allowing the Services to adopt, as part of their
biological opinions, all or part of a Federal action agency's
consultation initiation package. These commenters claim that in doing
so the Services abdicate their statutory consultation duty in violation
of ESA section 7(b)(3)(A) (requiring the Services to issue an opinion
to the action agency).
Response: The Services disagree that adoption of part or all of the
information in an action agency's initiation package, including
biological analyses, violates the ESA. Furthermore, under the
provision, the Services will not indiscriminately adopt analyses or
documents from non-Service sources. Rather, the Services perform their
statutory consultative function, adopting analyses provided in the
initiation package only after we have conducted an independent
evaluation to determine whether the analyses meet statutory and
regulatory requirements, including the requirement to use the best
scientific and commercial data available. As we expressed in our
response to comments on the proposed rule to the 2019 rule, the intent
of this provision is to avoid needless duplication of analyses and
documents that already meet applicable statutory and regulatory
standards. In some situations, the Services may supplement or revise
these analyses or documents to merit inclusion in our letters of
concurrence or biological opinions, but even in those situations,
adopting useful existing information makes the consultation process
more efficient and streamlined.
In the 2019 rule, we explained that it was already common practice
for the Services to adopt portions of biological analyses and
initiation packages in our biological opinions. The codification of
that practice created a more collaborative process and incentive for
Federal agencies to produce high-quality analyses and documents
suitable for inclusion in biological opinions, which streamlines the
timeframe for
[[Page 24292]]
completion of the consultation. The Services continue to exercise their
independent judgment and biological expertise in reaching conclusions
under the ESA.
Comment 2: Commenters representing the pesticide manufacturing and
end user communities remained supportive of those provisions of Sec.
402.14(h)(3) and (4) allowing for a collaborative process and the
adoption of biological analyses provided by action agencies, explaining
that adoption of such analyses produced by the Environmental Protection
Agency (EPA) would further increase collaboration between the Services
and Federal action agencies, consistent with the commenters' long-
standing advocacy for greater coordination in this vein.
Response: We agree that Sec. 402.14(h)(3) and (4) continue to add
value by promoting increased collaboration and allowing for the
adoption of biological analyses provided by a Federal agency, where
appropriate and in line with the Services' scientific standards. The
Services are maintaining these provisions, as they further expediency,
collaboration, and the use of sound science.
Section 402.14(l)--Expedited Consultation
Comment 1: Some commenters advocated for the removal of 50 CFR
402.14(l), which provides for the Services to enter into expedited
consultation upon mutual agreement with a Federal agency. Commenters
argued that the Services provided no evidence to support the claim in
the 2019 rule that the new expedited process ``will benefit species and
habitats by promoting conservation and recovery through improved
efficiencies in the section 7 consultation process,'' or ``will still
allow for the appropriate level of review.'' 84 FR 44976 at 45008,
August 27, 2019. Commenters noted that the Services provided only one
example of an action that could benefit from expedited consultation and
included no qualifying criteria for such projects. The commenters
express concern that a lack of guidelines on when to apply this
provision will cause confusion and arbitrary application of the
regulation.
Response: The Services' intention in retaining Sec. 402.14(l) is
to allow for an optional process that is intended to streamline the
consultation process for those projects that have minimal adverse
impact but still require a biological opinion and incidental take
statement and for projects where the effects are either known or are
predictable and unlikely to cause jeopardy or destruction or adverse
modification. As we explained in our response to comments in the 2019
rule, many of these projects historically have been completed under the
routine formal consultation process and statutory timeframes, and this
provision will expedite the timelines of the formal consultation
process for Federal actions while still requiring the same information
and analysis standards. While less time may be necessary to analyze
projects that fit under the provision due to their primarily beneficial
nature or their known and predictable effects, the Services must still
apply all required analysis to the actions under consideration. We
simply expect that given the nature of the actions, a streamlined
process would allow for a better use of our limited resources, yet
still be consistent with section 7 of the ESA.
The Services have not included specific qualifying criteria for
expedited consultations because there is a range of different actions
or classes of actions that may qualify. Acceptance into expedited
consultation will require the exercise of independent judgment and
discretion on the part of the Services for each such request. We also
note, as we expressed in our response to comments on the 2019 rule,
that a key element for successful implementation of this process is
mutual agreement between the Services and Federal agency (and applicant
when applicable). The mutual agreement will contain the specific
parameters necessary to complete each step of the process, such as the
completion of a biological opinion.
The Services strive to complete consultations within the
established regulatory deadlines and continue to identify ways to
improve efficiencies. Section 402.14(l) provides one such streamlining
mechanism intended to improve efficiencies in the section 7(a)(2)
consultation process for the Services, Federal agencies, and their
applicants while ensuring full compliance with the responsibilities of
section 7. One example of an expedited formal consultation process
agreed to by the FWS and the USFS is the programmatic consultation for
the Rangewide Conservation Activities Supporting Whitebark Pine
Recovery Project (Project). The Project includes ongoing and future
activities proposed by the USFS to support the conservation of
federally threatened whitebark pine (Pinus albicaulis) across its
range, specifically cone collection, scion collection, pollen
collection, operational seedling production, genetic white pine blister
rust screening, planting, insect prevention and control, selection and
care of mature trees with white pine blister rust resistance,
protection of healthy and unsuppressed regenerating stands, clone
banks, seed and breeding orchards, genetic evaluation plantations,
development of seed production areas, surveys, and research,
monitoring, and education. While these activities are intended to be
beneficial to whitebark pine, some adverse effects are anticipated to
occur because of the Project. This expedited consultation process
reduced the consultation timeline allowing beneficial actions to move
forward more quickly.
Comment 2: Commenters representing the pesticide manufacturing and
end user communities remained supportive of those provisions of Sec.
402.14(l) allowing for expedited consultation and encourage the
Services to work with Federal agencies to streamline initiation
packages by using templates and guidance. Commenters also requested the
Services reconsider and re-promulgate 50 CFR part 402, subpart D,
regarding pesticide consultations, following adverse litigation.
Response: The Services agree that the expedited consultation
provisions of Sec. 402.14(l) are a potentially valuable tool for
creating efficiency in the consultation process, including efficiencies
that could potentially be applied in pesticide consultations. We will
continue to work with Federal action agencies and applicants to help
them develop strong biological analyses that can allow for expedited
consultation. We acknowledge the commenters' request for
reconsideration of subpart D, which was not the subject of any
regulatory changes in the 2019 rule and thus outside the scope of this
rulemaking. Any such changes would require a separate rulemaking
process, which would first require careful consideration and
consultation with the EPA and others.
Section 7(a)(1) of the ESA
Comment 1: Some commenters requested that the Services develop and
finalize implementing regulations for section 7(a)(1), which requires
Federal agencies in consultation with the Services to utilize their
authorities to establish programs for the conservation of listed
species.
Response: At this time, because there are no implementing
regulations for section 7(a)(1), the Services expect to include
guidance on section 7(a)(1) in an updated Consultation Handbook and
develop additional guidance as necessary. We recognize there are
opportunities for Federal action agencies to proactively support
species conservation, consistent with their
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authorities, and we anticipate that providing additional guidance
regarding section 7(a)(1) will help further those efforts.
Project Modifications
Comment 1: One commenter raised issues related to project
modifications that happen during a consultation, as well as once
consultation has been completed and a biological opinion or letter of
concurrence has been issued. The commenter requested that consultation
continue even if a proposed action has been modified and that changes
in the action could be reflected in future consultations as part of the
``environmental baseline.'' The commenter also requested that the
Services indicate that no further consultation would be needed if an
action was subsequently modified in such a way that does not increase
the amount or extent of incidental take.
Response: The Services note that the commenter's request relates to
the existing regulations regarding reinitiation of consultation at
Sec. 402.16. As the commenter noted, criteria exist for the
reinitiation of completed consultations with issued biological opinions
or letters of concurrence: These include whether incidental take is
exceeded; if new information reveals effects of the action that may
affect listed species or critical habitat in a manner or to an extent
not previously considered; if the identified action is subsequently
modified in a manner that causes an effect to the listed species or
critical habitat that was not considered in the biological opinion or
written concurrence; or if a new species is listed or critical habitat
designated that may be affected by the identified action.
These criteria are independent of one another; thus, modification
of the action may trigger reinitiation of an already completed
consultation if the manner of effects changes, even when the extent of
those effects is not greater. This determination is case-specific, and
it is beyond the scope of this rule to state that only those cases
where anticipated incidental take is exceeded would trigger
reinitiation.
The commenters also provide an example of a consultation that was
restarted due to modification of the proposed action as a result of
``new'' information. With regard to changes to the action or new
information that arises during a pending consultation, the Services
typically coordinate with the action agency and any applicant to
determine the significance of any change or new information and the
needed response. Although case specific, the responses range from minor
supplements to the existing initiation package to withdrawal and
resubmittal of the entire package. This practice ensures the final
concurrence letter or biological opinion is based on up-to-date
information, including a correct description of the proposed action.
Geographic Scope of Section 7(a)(2)
Comment 1: One commenter suggested the Services revise 50 CFR part
402 to restore the full geographic scope of the Services'
implementation of the ESA with respect to consultations under section 7
of the Act.
Response: This request is beyond the scope of the proposed rule and
would require a new rulemaking process. The current geographic scope of
the section 7 regulations as reflected in the definition of ``action''
is appropriate, and the Services do not anticipate revisiting this
issue. See 50 CFR 402.02; 51 FR 19926 at 19930-31, June 3, 1986
(discussing geographic scope of section 7 of the ESA).
Small Federal Handle
Comment 1: One commenter suggested that the Services promulgate
regulations clarifying the scope of ``small Federal handle'' projects
affording project proponents input into whether to become part of a
consultation where the Federal agency has only limited authority over
significant aspects of a larger project.
Response: The Services decline to adopt regulations clarifying the
scope of ``small federal handle'' projects. As discussed in the 2019
rule, when the Services write an incidental take statement for a
biological opinion under section 7(b)(4)(iv) of the Act, they can
assign responsibility for specific terms and conditions of the
incidental take statement to the Federal action agency, the applicant,
or both, taking into account their respective roles, authorities, and
responsibilities. The Services have worked with Federal action agencies
in the past, and will continue to do so into the future, to ensure that
a reasonable and prudent measure assigned to a Federal action agency
does not exceed the scope of a Federal action agency's authority.
Other Comments
Comment 1: One commenter suggested changing the regulatory
threshold for consulting on federally listed plant species to only
situations where the project is likely to jeopardize the listed plant.
Response: The commenter misconstrues the consultation regulations,
and no regulatory change is needed. The purpose of consultation is for
the Services to assist the Federal agency in meeting their obligation
to ensure their action is not likely to jeopardize the continued
existence of listed species or destroy or adversely modify designated
critical habitat. Consultation is the process by which the Services
determine whether the action is likely to jeopardize the listed plant.
Comment 2: One commenter suggested revisions that would allow
applicants to choose their method of ESA compliance through a
programmatic HCP to take advantage of the streamlining opportunity it
provides rather than being directed into programmatic consultations.
Response: The Services' existing regulations and practice allow for
this approach and, in many situations, an applicant's compliance with
ESA section 7(a)(2) requirements through an existing incidental take
permit under an ESA section 10 HCP can be achieved. In these cases,
Federal agencies can meet their separate section 7(a)(2)
responsibilities using a simple expedited process. Thus, no regulatory
changes are necessary.
Comment 3: One commenter suggested that the Services align ESA
terms similar to terminology in the National Environmental Policy Act
(NEPA), e.g., ``mitigation,'' and that we use consistent language in
regulations and not switch between the terms ``effects'' and
``impacts.''
Response: The Services decline to undertake the action recommended
by this commenter. ESA section 7(a)(2) and its implementing regulations
include specific terms of art that are not interchangeable with terms
used in other statutory contexts such as NEPA. See above in the
``environmental baseline'' section for discussion of the Services' use
of the terms ``effects'' and ``impacts.''
Comment 4: A couple of commenters stated the ESA Compensatory
Mitigation Policy was issued without opportunity for public notice and
comment.
Response: The FWS ESA Compensatory Mitigation Policy (Appendix 1,
501 FW 3 https://www.fws.gov/policy-library/a1501fw3) provides
internal, non-binding guidance and does not establish legally binding
rules. Because the policy is guidance rather than a rule, there are no
requirements for public review and comment. Nonetheless, the FWS
solicited public comment during three separate public comment periods
related to the 2016 FWS mitigation policies. The initial public comment
periods solicited input on the proposed revisions to the Mitigation
Policy (81 FR 12380, March 8, 2016), and on the draft
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ESA Compensatory Mitigation Policy (81 FR 61031, September 2, 2016).
The FWS later requested additional public comment on the mitigation
planning goal within both mitigation policies that had already been
finalized (82 FR 51382, November 6, 2017). The documents, comments, and
process related to prior revisions may be viewed within docket number
FWS-HQ-ES-2015-0126 (mitigation) and docket number FWS-HQ-ES-2015-0165
(compensatory mitigation) on https://www.regulations.gov. The final ESA
Compensatory Mitigation Policy is substantively similar to the 2016
policy and reflects input from those previous public-comment
opportunities.
Comments on Determinations
Comment 1: One commenter asserted the need to complete intra-
service consultation pursuant to section 7 of the Act on the issuance
of the final regulations.
Response: We have addressed this issue in our Required
Determinations section of the preamble to this final rule.
Comment 2: Several commenters requested additional economic
analyses pursuant to Executive Order (E.O.) 12866 and related E.O.s.
Some commenters suggested that the Services characterize the rulemaking
as a ``significant regulatory action'' and that we must include an
economic analysis as specified in Office of Management and Budget (OMB)
Circular A-4. Several commenters expressed concern with potential costs
associated with the RPM revisions.
Response: Although OMB determined that the proposed revisions to 50
CFR part 402 were a significant regulatory action pursuant to E.O.
12866, OMB agreed with the Services' assessment that the expected
effects of the proposed rule did not fall within the scope of E.O.
12866 section 3(f)(1) and did not warrant an analysis as specified in
OMB Circular A-4. We do not anticipate the revisions to result in any
substantial change in our determinations as to whether proposed actions
are likely to jeopardize listed species or result in the destruction or
adverse modification of critical habitat. None of these changes are
expected to result in delays to completing consultations in a timely
manner or within the statutory or regulatory timeframes. And, although
offsetting measures as RPMs can be associated with costs, those
measures must be constrained by the statutory and regulatory
requirements of RPMs, as we have noted in response to previous
comments. It is worth noting that any economic analysis of the
revisions to RPMs would be limited by substantial uncertainty about how
many formal consultations will include offsetting measures as RPMs due
to the tremendous variation in Federal actions subject to formal
consultation, the specific impacts from these actions, and the affected
species that may be analyzed. Although we cannot predict the costs of
the RPM proposal due to these variable factors associated with formal
consultations, any costs would be constrained by the statutory and
regulatory requirements of RPMs as described above and in the proposed
rule. Thus, because consultations under section 7(a)(2) are so highly
fact-specific, it is also not possible to specify future benefits or
costs stemming from this rulemaking.
Comment 3: Several commenters believed the Services' findings under
the Regulatory Flexibility Act (RFA) and consideration of
responsibilities under Executive Order (E.O.) 13132 (Federalism) and
E.O. 13211 (Effects on the Energy Supply) were insufficient or
incorrect. Commenters claimed that modifying existing consultation
requirements will likely result in increased compliance costs and
delays for projects involving small entities. The commenters also
disagreed with our finding for E.O. 12630 (Takings) that the proposed
rule would not have significant takings implications and that a takings
implication assessment is not warranted. They urged us to conduct
additional assessments before finalizing the rule.
Response: Regarding all required determinations for the rulemaking,
all the revisions provide transparency and clarity to the consultation
process under section 7(a)(2) of the Act and align the regulations with
the plain language of the statute. As a result, we do not anticipate
any substantial change in our determinations as to whether proposed
actions are likely to jeopardize listed species or result in the
destruction or adverse modification of critical habitat. Regarding the
revisions to RPMs, most consultations under section 7(a)(2) will not be
affected since most consultations are completed informally, and this
change would apply only to formal consultations that require an ITS
containing RPMs. Even among formal consultations that require an ITS
containing RPMs, some of these consultations will be able to address
impacts of incidental take through measures that avoid or reduce
incidental take within the action area, and the change would not apply
to those consultations.
Regarding the RFA and E.O. 13211, this final rule which contains
revisions that provide transparency, clarity, and more closely comport
with the text of the ESA, will not have a significant economic impact
on a substantial number of small entities or any other entities and is
unlikely to cause any adverse effects on energy supply, distribution,
or use (including a shortfall in supply, price increases, and increased
use of foreign supplies). An analysis of small entity impacts is
required when a rule directly affects small entities. However, Federal
agencies are the only entities directly affected by this rule, and they
are not considered to be small entities under SBA's size standards. No
other entities will be directly affected by this rulemaking action.
While some commenters suggested that the rule may impact small entities
indirectly as applicants to Federal actions subject to ESA section
7(a)(2), we are unaware of any significant economic effect on a
substantial number of small entities. Although we received comments
raising generalized concerns about alleged potential effects on small
entities, none of these comments described direct, concrete economic
effects on small entities, much less ``significant'' economic effects
on a ``substantial'' number of small entities.
Regarding E.O. 13132, ``Policies that have federalism
implications,'' that Executive Order includes federalism implications
from regulations, legislative comments or proposed legislation, and
other policy statements or actions that have substantial direct effects
on the States, on the relationship between the national government and
the States, or on the distribution of power and responsibilities among
the various levels of government. This rulemaking has no such
federalism implications. Federal agencies are the only entities that
are directly affected by this rule, as a Federal nexus is necessary for
requiring consultation under section 7(a)(2) of the ESA. In addition,
as stated for E.O. 13132 in the Required Determinations section of this
preamble, this rule pertains only to improving and clarifying the
interagency consultation processes under the ESA 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.
Regarding E.O. 12630, as discussed in the proposed rule, this
rulemaking will not directly affect private property, nor will it cause
a physical or regulatory taking. It will not result in a physical
taking because it will not effectively compel a property owner to
suffer a physical invasion of property. Further,
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the rulemaking will not result in a regulatory taking because it will
not deny all economically beneficial or productive use of the land or
aquatic resources. This rule will substantially advance a legitimate
government interest (conservation and recovery of endangered species
and threatened species) and will not present a barrier to all
reasonable and expected beneficial use of private property.
Required Determinations
Regulatory Planning and Review--Executive Orders 12866, 13563, and
14094
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB)
will review all significant rules. OIRA has determined that this rule
is significant.
Executive Order 14094 amends E.O. 12866 and reaffirms the
principles of E.O. 12866 and E.O 13563 and states that regulatory
analysis should facilitate agency efforts to develop regulations that
serve the public interest, advance statutory objectives, and be
consistent with E.O. 12866, E.O. 13563, and the Presidential Memorandum
of January 20, 2021 (Modernizing Regulatory Review). Regulatory
analysis, as practicable and appropriate, shall recognize distributive
impacts and equity, to the extent permitted by law. E.O. 13563
emphasizes further that regulations must be based on the best available
science and that the rulemaking process must allow for public
participation and an open exchange of ideas. We have developed this
final rule in a manner consistent with these requirements.
Revisions to 50 CFR part 402. Specifically, the Services are
revising the implementing regulations at: (1) Sec. 402.02,
definitions; (2) Sec. 402.16, reinitiation of consultation; (3) Sec.
402.17, other provisions; and (4) Sec. 402.14(i)(1), formal
consultation. The preamble to the proposed rule explains in detail why
we anticipate that the regulatory changes we are proposing will improve
the implementation of the Act (88 FR 40753, June 22, 2023).
When we made changes to Sec. Sec. 402.02, 402.16, and 402.17 in
2019, we compiled historical data for a variety of metrics associated
with the consultation process in an effort to describe for OMB and the
public the effects of those regulations (on https://www.regulations.gov, see Supporting Document No. FWS-HQ-ES-2018-0009-
64309 of Docket No. FWS-HQ-ES-2018-0009; Docket No. 180207140-8140-01).
We presented various metrics related to the regulation revisions, as
well as historical data supporting the metrics.
For the 2019 regulations, we concluded that because those revisions
served to clarify rather than alter the standards for consultation
under section 7(a)(2) of the Act, the 2019 regulation revisions were
substantially unlikely to affect our determinations as to whether
proposed Federal actions are likely to jeopardize listed species or
result in the destruction or adverse modification of critical habitat.
As with the 2019 regulations, the revisions in this rule, as
described above, are intended to provide transparency and clarity and
align more closely with the statute. As a result, we do not anticipate
any substantial change in our determinations as to whether proposed
actions are likely to jeopardize listed species or result in the
destruction or adverse modification of critical habitat.
Similarly, although the revisions to the regulatory provisions
relating to RPMs in this final rule are amendments that were not
considered in the 2019 rulemaking, this final rule will align the
regulations with the plain language of the statute. These changes will
not affect most consultations under section 7(a)(2) of the Act because
most consultations are completed informally, and this regulation will
apply only to formal consultations that require an ITS containing RPMs.
Even among formal consultations that require an ITS containing RPMs,
some of these consultations will be able to address impacts of
incidental take through measures that avoid or reduce incidental take
within the action area, and offsets would be considered only if
measures that avoid or reduce incidental take cannot feasibly minimize
the impacts of incidental take caused by the proposed action. As
explained in the preamble language above, the use of offsetting
measures in RPMs will not be required in every consultation. As with
all RPMs, these offsetting measures must be commensurate with the scale
of the impact, subject to the existing ``minor change rule,'' be
reasonable and prudent, and be necessary or appropriate to minimize the
impact of the incidental taking on the species.
Lastly, several different action agencies in various locations
throughout the country readily include offsetting measures as part of
their project descriptions. This practice of including offsets as part
of the proposed action being evaluated in a consultation is not
uncommon. The Services may find that offsets included in the proposed
action adequately minimize impacts of incidental take, thus obviating
the need to specify additional offsets as RPMs. Examples of these types
of consultations that incorporate offsetting measures into the proposed
action include programmatic consultations, certain consultations
regarding transportation projects, and activities authorized by the
U.S. Army Corps of Engineers under Section 404 of the Clean Water Act
(33 U.S.C. 1344).
It is not possible to know how many formal consultations will
include offsetting measures as RPMs due to the tremendous variation in
Federal actions subject to formal consultation, the specific impacts
from these actions, and the affected species that may be analyzed.
Although we cannot predict the costs of the RPM regulation due to these
variable factors associated with formal consultations, any costs would
be constrained by the statutory and regulatory requirements that RPMs
are ``reasonable and prudent,'' commensurate with the residual impacts
of incidental take caused by the proposed action, and subject to the
``minor change rule.''
Similarly, while we cannot quantify the benefits from this rule,
some of the benefits include further minimization of the impacts of
incidental take caused by the proposed action, which, in turn, further
mitigates some of the environmental ``costs'' associated with that
action. In allowing for residual impacts to be addressed, the rule may
also reduce the accumulation of adverse impacts to the species that is
often referred to as ``death by a thousand cuts.'' Sources of
offsetting measures, such as conservation banks and in-lieu fee
programs, have proven in other analogous contexts to be a cost-
effective means of mitigating environmental impacts and may have the
potential to enhance mitigative measures directed at the loss of
endangered and threatened species when they are applied strategically.
See, e.g., U.S. Fish and Wildlife Service Mitigation Policy and
Endangered Species Act Compensatory Mitigation Policy, Appendix 1, 501
FW 3 (May 15, 2023) or NOAA Mitigation Policy for Trust Resources, NOA
216-123 (July 22, 2022).
The regulatory changes in this rule provide transparency, clarity,
and more closely comport with the text of the ESA. We, therefore, do
not anticipate any material effects such that the rule would have an
annual effect that would reach or exceed $200 million or would
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or
[[Page 24296]]
State, local, territorial, or Tribal governments or communities.
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)
directly affected by the rule. However, no regulatory flexibility
analysis is required if the head of an agency, or that person's
designee, certifies that the rule will not have a significant economic
impact on a substantial number of small entities. SBREFA amended the
Regulatory Flexibility Act to require Federal agencies to provide a
statement of the factual basis for certifying that a rule will not have
a significant economic impact on a substantial number of small
entities. We certified at the proposed rule stage that this rule would
not have a significant economic impact on a substantial number of small
entities (88 FR 40761). We received no information that changes the
factual basis of this certification.
This rulemaking revises and clarifies existing requirements for
Federal agencies, including the Services, under section 7 of the ESA.
Federal agencies are the only entities directly affected by this rule,
and they are not considered to be small entities under SBA's size
standards. No other entities would be directly affected by this
rulemaking action. While some commenters suggested that the rule may
impact small entities indirectly as applicants to Federal actions
subject to ESA section 7(a)(2), we are unaware of any significant
economic effect on a substantial number of small entities. Although we
received comments raising generalized concerns about alleged potential
effects on small entities, none of these comments described direct,
concrete economic effects on small entities, much less ``significant''
economic effects on a ``substantial'' number of small entities.
This rulemaking applies to 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 jeopardize listed
species or result in the destruction or adverse modification of
critical habitat. This rulemaking will not result in any additional
change in our determination as to whether proposed actions are likely
to jeopardize listed species or result in the destruction or adverse
modification of critical habitat. This rulemaking serves to provide
clarity to the standards with which we will evaluate agency actions
pursuant to section 7 of the ESA.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(a) On the basis of information presented under Regulatory
Flexibility Act above, this rule will not ``significantly or uniquely''
affect small governments. We have determined and certify pursuant to
the Unfunded Mandates Reform Act, 2 U.S.C. 1502, that this rule will
not impose a cost of $100 million or more in any given year on local or
State governments or private entities. A small government agency plan
is not required. As explained above, small governments will not be
affected because the rule will not place additional requirements on any
city, county, or other local municipalities.
(b) This rule will not produce a Federal mandate on State, local,
or Tribal governments or the private sector of $100 million or greater
in any year; that is, this rule is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act. This rule will impose
no obligations on State, local, or Tribal governments.
Takings (E.O. 12630)
In accordance with E.O. 12630, this rule will not have significant
takings implications. This rule will not directly affect private
property, nor will it cause a physical or regulatory taking. It will
not result in a physical taking because it will not effectively compel
a property owner to suffer a physical invasion of property. Further,
the rule will not result in a regulatory taking because it will not
deny all economically beneficial or productive use of the land or
aquatic resources, and it will substantially advance a legitimate
government interest (conservation and recovery of endangered species
and threatened species) and will not present a barrier to all
reasonable and expected beneficial use of private property.
Federalism (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 improving and clarifying the interagency consultation processes
under the ESA 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 does 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 revises the Service's regulations for protecting
species pursuant to the Act.
Government-to-Government Relationship With Tribes
In accordance with E.O. 13175, ``Consultation and Coordination with
Indian Tribal Governments,'' and the Department of the Interior's
manual at 512 DM 2, we have considered possible effects of this rule on
federally recognized Indian Tribes and Alaska Native Corporations. We
held three informational webinars for federally recognized Tribes in
January 2023, before the June 22, 2023, proposed rule published, to
provide a general overview of, and information on how to provide input
on, a series of rulemakings related to implementation of the Act that
the Services were developing, including the June 22, 2023, proposed
rule to revise our regulations at 50 CFR part 402. In July 2023, we
also held six informational webinars after the proposed rule published,
to provide additional information to interested parties, including
Tribes, regarding the proposed regulations. Over 500 attendees,
including representatives from federally recognized Tribes and Alaska
Native Corporations, participated in these sessions, and we addressed
questions from the participants as part of the sessions. We received
written comments from Tribal organizations; however, we did not receive
any requests for coordination or government-to-government consultation
from any federally recognized Tribes.
This rule is general in nature and does not directly affect any
specific Tribal lands, treaty rights, or Tribal trust resources.
Therefore, we conclude that this rule does not have Tribal implications
under section 1(a) of E.O. 13175. Thus, formal government-to-government
consultation is not required by E.O. 13175 and related DOI policies.
This rule revises regulations for protecting endangered and threatened
species pursuant to the Act. These regulations will not have
substantial direct effects on one or more Indian Tribes, on the
relationship between the
[[Page 24297]]
Federal Government and Indian Tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian Tribes.
We will continue to collaborate with Tribes and Alaska Native
Corporations on issues related to federally listed species and their
habitats and work with them as we implement the provisions of the Act.
See Secretaries' Order 3206 (``American Indian Tribal Rights, Federal-
Tribal Trust Responsibilities, and the Endangered Species Act,'' June
5, 1997) and Secretaries' Order 3225 (``Endangered Species Act and
Subsistence Uses in Alaska (Supplement to Secretarial Order 3206),''
January 19, 2001).
Paperwork Reduction Act
This rule does not contain any new collection of information that
requires approval by the Office of Management and Budget (OMB) under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). 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
In the proposed rule we invited the public to comment on whether
and how the regulation may have a significant impact on the human
environment, including any effects identified as extraordinary
circumstances at 43 CFR 46.25 or fall within one of the categorical
exclusions for actions that have no individual or cumulative effect on
the quality of the human environment. After considering the comments
received, the Services analyzed this rule in accordance with the
criteria of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
et seq.), the Council on Environmental Quality NEPA regulations (40 CFR
parts 1500-1508), the Department of the Interior (DOI) NEPA regulations
(43 CFR part 46), the DOI 516 Departmental Manual Chapters 1-4 and 8,
and the National Oceanic and Atmospheric Administration (NOAA) Policy
and Procedures for Compliance with the National Environmental Policy
Act and Related Authorities (NOAA Administrative Order (NAO) 216-6A and
Companion Manual for NAO 216-6A. This analysis was undertaken in an
abundance of caution only, as we maintain that one or more categorical
exclusions apply to this rule. Documentation of our compliance under
NEPA is available online at https://www.regulations.gov at Docket No.
FWS-HQ-ES-2021-0104.
Endangered Species Act
In developing this final rule, the Services are acting in their
unique statutory role as administrators of the Act and are engaged in a
legal exercise of interpreting the standards of the Act. The Services'
promulgation of interpretive rules that govern their implementation of
the Act is not an action that is in itself subject to the Act's
provisions, including section 7(a)(2). The Services have a historical
practice of issuing their general implementing regulations under the
ESA without undertaking section 7 consultation. Given the plain
language, structure, and purposes of the ESA, we find that Congress
never intended to place a consultation obligation on the Services'
promulgation of implementing regulations under the Act. In contrast to
actions in which we have acted principally as an ``action agency'' in
implementing the Act to propose or take a specific action (e.g.,
issuance of section 10 permits and actions under statutory authorities
other than the ESA), with this document, the Services are carrying out
an action that is at the very core of their unique statutory role as
administrators--promulgating general implementing regulations or
revisions to those regulations that interpret the terms and standards
of the statute.
Energy Supply, Distribution or Use (E.O. 13211)
Executive Order 13211 requires agencies to prepare statements of
energy effects when undertaking certain actions. The revised
regulations are 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.
Authority
We issue this final rule under the authority of the Endangered
Species Act, as amended (16 U.S.C. 1531 et seq.).
List of Subjects in 50 CFR Part 402
Endangered and threatened species.
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.
Subpart A--General
0
2. Amend Sec. 402.02 by revising the definitions of ``Effects of the
action'', ``Environmental baseline'', and ``Reasonable and prudent
measures'' to read as follows:
Sec. 402.02 Definitions.
* * * * *
Effects of the action are all consequences to listed species or
critical habitat that are caused by the proposed action, including the
consequences of other activities that are caused by the proposed action
but that are not part of the action. A consequence is caused by the
proposed action if it would not occur but for the proposed action and
it is reasonably certain to occur. Effects of the action may occur
later in time and may include consequences occurring outside the
immediate area involved in the action.
Environmental baseline refers to the condition of the listed
species or its designated critical habitat in the action area, without
the consequences to the listed species or designated critical habitat
caused by the proposed action. The environmental baseline includes the
past and present impacts of all Federal, State, or private actions and
other human activities in the action area, the anticipated impacts of
all proposed Federal projects in the action area that have already
undergone formal or early section 7 consultation, and the impact of
State or private actions which are contemporaneous with the
consultation in process. The impacts to listed species or designated
critical habitat from Federal agency activities or existing Federal
agency facilities that are not within the agency's discretion to modify
are part of the environmental baseline.
* * * * *
Reasonable and prudent measures refer to those actions the Director
considers necessary or appropriate to minimize the impact of the
incidental take on the species.
* * * * *
Subpart B--Consultation Procedures
0
3. Amend Sec. 402.14 by revising paragraph (i) to read as follows:
Sec. 402.14 Formal consultation.
* * * * *
(i) Incidental take. (1) In those cases where the Service concludes
that an action (or the implementation of any reasonable and prudent
alternatives) and the resultant incidental take of listed species will
not violate section 7(a)(2), and, in the case of marine
[[Page 24298]]
mammals, where the taking is authorized pursuant to section 101(a)(5)
of the Marine Mammal Protection Act of 1972, the Service will provide
with the biological opinion a statement concerning incidental take
that:
(i) Specifies the impact of incidental taking as the amount or
extent of such taking. A surrogate (e.g., similarly affected species or
habitat or ecological conditions) may be used to express the amount or
extent of anticipated take, provided that the biological opinion or
incidental take statement: Describes the causal link between the
surrogate and take of the listed species, explains why it is not
practical to express the amount or extent of anticipated take or to
monitor take-related impacts in terms of individuals of the listed
species, and sets a clear standard for determining when the level of
anticipated take has been exceeded;
(ii) Specifies those reasonable and prudent measures that the
Director considers necessary or appropriate to minimize such impact of
incidental taking on the species;
(iii) In the case of marine mammals, specifies those measures that
are necessary to comply with section 101(a)(5) of the Marine Mammal
Protection Act of 1972 and applicable regulations with regard to such
taking;
(iv) Sets forth the terms and conditions (including, but not
limited to, reporting requirements) that must be complied with by the
Federal agency or any applicant to implement the measures specified
under paragraphs (i)(1)(ii) and (iii) of this section; and
(v) Specifies the procedures to be used to handle or dispose of any
individuals of a species actually taken.
(2) Reasonable and prudent measures, along with the terms and
conditions that implement them, cannot alter the basic design,
location, scope, duration, or timing of the action, may involve only
minor changes, and may include measures implemented inside or outside
of the action area that avoid, reduce, or offset the impact of
incidental take.
(3) Priority should be given to developing reasonable and prudent
measures and terms and conditions that avoid or reduce the amount or
extent of incidental taking anticipated to occur within the action
area. To the extent it is anticipated that the action will cause
incidental take that cannot feasibly be avoided or reduced in the
action area, the Services may set forth additional reasonable and
prudent measures and terms and conditions that serve to minimize the
impact of such taking on the species inside or outside the action area.
(4) In order to monitor the impacts of incidental take, the Federal
agency or any applicant must report the progress of the action and its
impact on the species to the Service as specified in the incidental
take statement. The reporting requirements will be established in
accordance with 50 CFR 13.45 and 18.27 for FWS and 50 CFR 216.105 and
222.301(h) for NMFS.
(5) If during the course of the action the amount or extent of
incidental taking, as specified under paragraph (i)(1)(i) of this
section, is exceeded, the Federal agency must reinitiate consultation
immediately.
(6) Any taking that is subject to a statement as specified in
paragraph (i)(1) of this section and that is in compliance with the
terms and conditions of that statement is not a prohibited taking under
the Act, and no other authorization or permit under the Act is
required.
(7) For a framework programmatic action, an incidental take
statement is not required at the programmatic level; any incidental
take resulting from any action subsequently authorized, funded, or
carried out under the program will be addressed in subsequent section 7
consultation, as appropriate. For a mixed programmatic action, an
incidental take statement is required at the programmatic level only
for those program actions that are reasonably certain to cause take and
are not subject to further section 7 consultation.
* * * * *
0
4. Amend Sec. 402.16 by revising the introductory text of paragraph
(a) to read as follows:
Sec. 402.16 Reinitiation of consultation.
(a) Reinitiation of consultation is required and shall be requested
by the Federal agency, where discretionary Federal involvement or
control over the action has been retained or is authorized by law and:
* * * * *
Sec. 402.17 [Removed]
0
5. Remove Sec. 402.17.
Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks, Department of the
Interior.
Richard Spinrad,
Under Secretary of Commerce for Oceans and Atmosphere, NOAA
Administrator, National Oceanic and Atmospheric Administration.
[FR Doc. 2024-06902 Filed 4-2-24; 8:45 am]
BILLING CODE 4333-15-P
