[Federal Register Volume 79, Number 91 (Monday, May 12, 2014)]
[Proposed Rules]
[Pages 27066-27078]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-10504]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 424
[Docket No. FWS-HQ-ES-2012-0096; Docket No. 120106025-3256-01;
4500030114]
RIN 1018-AX86; RIN 0648-BB79
Listing Endangered and Threatened Species and Designating
Critical Habitat; Implementing Changes to the Regulations for
Designating Critical Habitat
AGENCY: U.S. Fish and Wildlife Service, Interior; National Marine
Fisheries Service, National Oceanic and Atmospheric Administration,
Commerce.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (FWS) and the National
Marine Fisheries Service (NMFS) (collectively referred to as the
``Services'' or ``we''), propose to amend portions of our regulations,
which implements the Endangered Species Act of 1973, as amended (Act).
Our regulation clarifies, interprets, and implements portions of the
Act concerning the procedures and criteria used for adding species to
the Lists of Endangered and Threatened Wildlife and Plants and
designating and revising critical habitat. Specifically, we propose to
amend portions of our regulations that clarify procedures for
designating and revising critical habitat. The proposed amendments
would make minor edits to the scope and purpose, add and remove some
definitions, and clarify the criteria for designating critical habitat.
These proposed amendments are based on the Services' review of the
regulations and are intended to add clarity for the public,
[[Page 27067]]
clarify expectations regarding critical habitat and provide for a
credible, predictable, and simplified critical-habitat-designation
process. Finally, the proposed amendments are also part of the
Services' response to Executive Order 13563 (January 18, 2011), which
directs agencies to review their existing regulations and, among other
things, modify or streamline them in accordance with what has been
learned.
DATES: We will accept comments from all interested parties until July
11, 2014. Please note that if you are using the Federal eRulemaking
Portal (see ADDRESSES below), the deadline for submitting an electronic
comment is 11:59 p.m. Eastern Standard Time on this date.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. In
the Search box, enter the Docket Number for this proposed rule, which
is FWS-HQ-ES-2012-0096. You may submit a comment by clicking on
``Comment Now!''. Please ensure that you have found the correct
rulemaking before submitting your comment.
U.S. mail or hand delivery: Public Comments Processing,
Attn: [Docket No. FWS-HQ-ES-2012-0096]; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Request for Information section below for more
information).
FOR FURTHER INFORMATION CONTACT: Douglas Krofta, U.S. Fish and Wildlife
Service, Division of Conservation and Classification, 4401 N Fairfax
Drive, Suite 420, Arlington, VA, 22203, telephone 703/358-2527;
facsimile 703/358-1735; or Marta Nammack, National Marine Fisheries
Service, Office of Protected Resources, 1315 East-West Highway, Silver
Spring, MD 20910, telephone 301/427-8469; facsimile 301/713-0376. If
you use a telecommunications device for the deaf (TDD), call the
Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION: Today, we publish in the Federal Register
three related documents that are now open for public comment. We invite
the public to comment individually on these documents as instructed in
their preambles. This document is one of the three, of which two are
proposed rules and one is a draft policy:
A proposed rule to amend the existing regulations
governing section 7 consultation under the Endangered Species Act to
revise the definition of ``destruction or adverse modification'' of
critical habitat. The current regulatory definition has been
invalidated by several courts for being inconsistent with the language
of the Act. This proposed rule would revise title 50 of the Code of
Federal Regulations (CFR) at part 402. The Regulatory Identifier Number
(RIN) is 1018-AX88, and the proposed rule may be found on http://www.regulations.gov at Docket No. FWS-R9-ES-2011-0072.
A proposed rule to amend existing regulations governing
the designation of critical habitat under section 4 of the Act. A
number of factors, including litigation and the Services' experience
over the years in interpreting and applying the statutory definition of
critical habitat, have highlighted the need to clarify or revise the
current regulations. This proposed rule would revise 50 CFR part 424.
It is published under RIN 1018-AX86 and may be found on http://www.regulations.gov at Docket No. FWS-HQ-ES-2012-0096.
A draft policy pertaining to exclusions from critical
habitat and how we consider partnerships and conservation plans,
conservation plans permitted under section 10 of the Act, tribal lands,
national security and homeland security impacts and military lands,
Federal lands, and economic impacts in the exclusion process. This
policy is meant to complement the proposed revisions to 50 CFR part 424
and to provide for a simplified exclusion process. The policy is
published under RIN 1018-AX87 and may be found on http://www.regulations.gov at Docket No. FWS-R9-ES-2011-0104.
Background
The Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et
seq.), states that the purposes of the Act are to provide a means to
conserve the ecosystems upon which listed species depend, to develop a
program for the conservation of listed species, and to achieve the
purposes of certain treaties and conventions. Moreover, the Act states
that it is the policy of Congress that the Federal Government will seek
to conserve threatened and endangered species, and use its authorities
in furtherance of the purposes of the Act.
In passing the Act, Congress viewed habitat loss as a significant
factor contributing to species endangerment. Habitat destruction and
degradation have been a contributing factor causing the decline of a
majority of species listed as threatened or endangered under the Act
(Wilcove et. al. 1998). The present or threatened destruction,
modification, or curtailment of a species' habitat or range is included
in the Act as one of the factors on which to base a determination of
threatened or endangered. One of the tools provided by the Act to
conserve species is the designation of critical habitat.
The purpose of critical habitat is to identify the areas that are
or will be essential to the species' recovery. Once critical habitat is
designated, it provides for the conservation of listed species in
several ways. Specifying the geographic location of critical habitat
facilitates implementation of section 7(a)(1) of the Act by identifying
areas where Federal agencies can focus their conservation programs and
use their authorities to further the purposes of the Act. Designating
critical habitat also helps focus the conservation efforts of other
conservation partners, such as State and local governments,
nongovernmental organizations, and individuals. Furthermore, when
designation of critical habitat occurs near the time of listing it
provides early conservation planning guidance (e.g., identifying some
of the areas that are needed for recovery, the physical and biological
features needed for the species, and special management considerations
or protections) to bridge the gap until the Services can complete more
thorough recovery planning.
In addition to serving as a notification tool, the designation of
critical habitat also provides a significant regulatory protection--the
requirement that Federal agencies consult with the Services under
section 7(a)(2) of the Act to ensure that their actions are not likely
to destroy or adversely modify critical habitat. The Federal
Government, through its role in water management, flood control,
regulation of resources extraction and other industries, Federal land
management, and the funding, authorization, and implementation of a
myriad of other activities, may propose actions that are likely to
affect critical habitat. The designation of critical habitat ensures
that the Federal Government considers the effects of its actions on
habitat important to species' conservation and avoids or modifies those
actions that are likely to destroy or adversely modify critical
habitat. This benefit should be especially valuable when, for example,
species presence or habitats are ephemeral in nature, species presence
is difficult to establish through surveys (e.g., when a species such as
a plant's ``presence'' may be limited to a seed bank), or protection of
unoccupied habitat is
[[Page 27068]]
essential for the conservation of the species.
The Secretaries of the Interior and Commerce (the ``Secretaries'')
share responsibilities for implementing most of the provisions of the
Act. Generally, marine and anadromous species are under the
jurisdiction of the Secretary of Commerce and all other species are
under the jurisdiction of the Secretary of the Interior. Authority to
administer the Act has been delegated by the Secretary of the Interior
to the Director of FWS and by the Secretary of Commerce to the
Assistant Administrator for NMFS.
There have been no comprehensive amendments to the Act since 1988,
and no comprehensive revisions to part 424 of the implementing
regulations since 1984. In the years since those changes took place,
the Services have gained considerable experience in implementing the
critical habitat requirements of the Act, and there have been numerous
court decisions regarding the designation of critical habitat.
On May 1, 2012, the Services finalized the revised implementing
regulations related to publishing textual descriptions of proposed and
final critical habitat boundaries in the Federal Register for
codification in the Code of Federal Regulations (77 FR 25611). That
final rule revised 50 CFR 424.12(c) to make the process of designating
critical habitat more user-friendly for affected parties, the public as
a whole, and the Services, as well as more efficient and cost
effective. Since the final rule became effective on May 31, 2012, the
Services have maintained the publication of maps of proposed and final
critical habitat designations in the Federal Register, but the
inclusion of any textual description of the designation boundaries in
the Federal Register for codification in the Code of Federal
Regulations is optional. Because we revised 50 CFR 424.12(c)
separately, we do not discuss that paragraph further in this proposed
rule.
On August 28, 2013, the Services finalized revisions to the
regulations for impact analyses of critical habitat (78 FR 53058).
These changes were made as directed by the President's February 28,
2012, Memorandum, which directed us to take prompt steps to revise our
regulations to provide that the economic analysis be completed and made
available for public comment at the time of publication of a proposed
rule to designate critical habitat. These revisions also state that the
impact analysis should focus on the incremental effects resulting from
the designation of critical habitat. Because we have revised 50 CFR
424.19 separately, we do not discuss that section further in this
proposed rule.
Discussion of Proposed Changes to Part 424
This proposal would amend 50 CFR 424.01, 424.02, and 424.12 (except
for paragraph (c) as mentioned) to clarify the procedures and criteria
used for designating critical habitat, addressing in particular several
key issues that have been subject to frequent litigation.
In proposing the specific changes to the regulations that follow,
and setting out the accompanying clarifying discussion in this
preamble, the Services are establishing prospective standards only.
Nothing in these proposed revised regulations is intended to require
(now or at such time as these regulations may become final) that any
previously completed critical habitat designation must be reevaluated
on this basis.
Section 424.01 Scope and Purpose
We propose minor revisions to this section to update language and
terminology. The first sentence in section 424.01(a) would be revised
to remove reference to critical habitat being designated or revised
only ``where appropriate.'' This wording implied a greater flexibility
regarding whether to designate critical habitat than is correct. The
Services believe that circumstances when critical habitat designation
will be deemed not prudent are rare. Therefore, the new language
removes the phrase ``where appropriate.'' Other revisions to this
section are minor word changes to use more plain language.
Section 424.02 Definitions
This section of the regulations defines terms used in the context
of section 4 of the Act. We propose revisions to section 424.02 to
update it to current formatting guidelines, to revise several
definitions related to critical habitat, to delete definitions that are
redundant of statutory definitions, and to add two newly defined terms.
Section 424.02 is currently organized with letters as paragraph
designation for each term (e.g., 424.02(b) Candidate). The Office of
the Federal Register now recommends setting out definitions in the CFR
without paragraph designations. We propose to revise the formatting of
the entire section accordingly. Discussion of the revised definitions
and newly defined terms follows.
We note that, although revising the formatting of the section
requires that the entirety of the section be restated in the proposed-
amended-regulation section, we are not at this time revisiting the text
of those existing definitions that we are not specifically revising,
including those that do not directly relate to designating critical
habitat. In particular, we are not in this rulemaking proposing to
amend the definitions of ``plant,'' ``wildlife,'' or ``fish and
wildlife'' to reflect changes in taxonomy since the ESA was enacted in
1973. In 1973, only the Animal and Plant Kingdoms of life were
universally recognized by science, and all living things were
considered to be members of one of these kingdoms. Thus, at enactment,
the ESA applied to all living things. Advances in taxonomy have
subsequently split additional kingdoms from these two. Any species that
was considered to be a member of the Animal or Plant Kingdoms in 1973
will continue to be treated as such for purposes of the administration
of the Act regardless of any subsequent changes in taxonomy. We may
address this issue in a future rulemaking relating to making listing
determinations (as opposed to designating critical habitat). In the
meantime, the republication of these definitions here should not be
viewed as an agency determination that these definitions reflect the
scope of the Act in light of our current understanding of taxonomy.
The current regulations include a definition for ``Conservation,
conserve, and conserving.'' We propose to revise the title of this
entry to ``Conserve, conserving, and conservation,'' changing the order
of the words to conform to the statute. Additionally, we propose to
revise the first sentence of the definition to include the phrase
``i.e., the species is recovered'' to clarify the link between
conservation and recovery of the species. The statutory definition of
``conserve, conserving, and conservation'' is ``to bring any endangered
or threatened species to the point at which measures provided pursuant
to the Act are no longer necessary.'' This is the same concept as the
definition of recovery found in section 402.02: ``improvement in the
status of listed species to the point at which listing is no longer
appropriate.'' The Services, therefore, view ``conserve, conserving,
and conservation'' as a process culminating at the point at which a
species is recovered.
We propose to delete definitions for ``critical habitat,''
``endangered species,'' ``plant,'' ``Secretary,'' ``State Agency,'' and
``threatened species,'' because these terms are defined in the Act and
the existing regulatory definitions do not add meaning to the terms.
We also propose to define the previously undefined term
``geographical area occupied by the species'' as: ``the geographical
area
[[Page 27069]]
which may generally be delineated around the species' occurrences, as
determined by the Secretary (i.e., range). Such areas may include those
areas used throughout all or part of the species' life cycle, even if
not used on a regular basis (e.g., migratory corridors, seasonal
habitats, and habitats used periodically, but not solely by vagrant
individuals).'' This term appears in the definition of ``critical
habitat'' found in section 3(5)(A)(i) and (ii) of the Act, but is not
defined in the Act or in our current regulations. The inclusion of this
new regulatory definition reflects the Services' efforts to clarify the
critical-habitat-designation process.
The definition of ``critical habitat'' in the Act has two parts,
section 3(5)(A)(i) and (ii), which establish two distinct categories of
critical habitat, based on species occupancy in an area at the time of
listing. Therefore, to identify specific areas to designate as critical
habitat, we must first determine what area constitutes the
``geographical area occupied by the species at the time of listing,''
which is the language used in the Act. The scale of this area is likely
to be larger than the specific areas that would then be analyzed for
potential designation under section 3(5)(A)(i). This is because the
first part of the critical habitat definition in the Act directs the
Services to identify ``specific areas within'' the geographical area
occupied by the species at time of listing. This intentional choice to
use more narrow terminology alongside broader terminology suggests that
the ``geographical area'' was expected most often to be a larger area
that could encompass multiple ``specific areas.'' Thus, we find the
statutory language supports the interpretation of equating the
geographical area occupied by the species to the wider area around the
species' occurrences at the time of listing. A species occurrence is a
particular location in which members of the species are found
throughout all or part of their life cycle. The geographic area
occupied by the species is thus the broader, coarser-scale area that
encompasses the occurrences, and is what is often referred to as the
``range'' of the species.
In the Act, the term ``geographical area occupied by the species''
is further modified by the clause, ``at the time it is listed.''
However, if critical habitat is being designated or revised several
years after the species was listed, it can be difficult to discern what
was occupied at the time of listing. The known distribution of a
species can change after listing for many reasons, such as discovery of
additional localities, extirpation of populations, or emigration of
individuals to new areas. In many cases, information concerning a
species' distribution, particularly on private lands, is limited as
surveys are not routinely carried out on private lands unless performed
as part of an environmental analysis for a particular development
proposal. Even then, such surveys typically focus on listed rather than
unlisted species, so our knowledge of a species' distribution at the
time of listing in these areas is often limited and the information in
our listing rule may not detail all areas occupied by the species at
that time.
Thus, while some of these changes in a species' known distribution
reflect changes in the actual distribution of the species, some reflect
only changes in the quality of our information concerning distribution.
In these circumstances, the determination of which geographic areas
were occupied at the time of listing may include data developed since
the species was listed. This interpretation was supported by a recent
court decision, Otay Mesa Property L.P. v. DOI, 714 F. Supp. 2d 73
(D.D.C. 2010), rev'd on other grounds, 646 F.3d 914 (D.C. Cir. 2011)
(San Diego fairy shrimp). In that decision, the judge noted that the
clause ``occupied at the time of listing'' allows FWS to make a
postlisting determination of occupancy based on the currently known
distribution of the species. Although the D.C. Circuit disagreed with
the district court that the record contained sufficient data to support
the FWS's determination of occupancy in that case, the D.C. Circuit did
not disagree that the Act allows FWS to make a postlisting
determination of occupancy if based on adequate data. The FWS
acknowledges that to make a postlisting determination of occupancy we
must distinguish between actual changes to species occupancy and
changes in available information. For succinctness, herein and
elsewhere we refer to areas as ``occupied'' when we mean ``occupied at
the time of listing.''
The second sentence of the proposed definition for ``geographical
area occupied by the species'' would clarify that the meaning of the
term ``occupied'' includes areas that are used only periodically or
temporarily by a listed species during some portion of its life
history, and is not limited to those areas where the listed species may
be found more or less continuously. Areas of periodic use may include,
for example, breeding areas, foraging areas, and migratory corridors.
The Ninth Circuit recently supported this interpretation by FWS,
holding that a determination that a species was likely to be
temporarily present in the areas designated as critical habitat was a
sufficient basis for determining those areas to be occupied, even if
the species was not continuously present. Arizona Cattle Growers'
Assoc. v. Salazar, 606 F.3d 1160 (9th Cir. 2010) (Mexican spotted owl).
Nonetheless, periodic use of an area does not include use of
habitat in that area by vagrant individuals of the species who wander
far from the known range of the species. Occupancy by the listed
species must be based on evidence of regular periodic use by the listed
species during some portion of the listed species' life history.
However, because some species are difficult to survey, or, we may
otherwise have incomplete survey information, the Services will rely on
the best available scientific data, which may include indirect or
circumstantial evidence, to determine occupancy. We further note that
occupancy does not depend on identifiable presence of adult organisms.
For example, periodical cicadas occupy their range even though adults
are only present for 1 month every 13 or 17 years. Similarly, the
presence (or reasonably inferred presence) of eggs or cysts of fairy
shrimp or seed banks of plants constitute occupancy even when mature
individuals are not present.
We also propose a definition for the term ``physical or biological
features.'' This phrase is used in the statutory definition of
``critical habitat'' to assist in identifying the specific areas within
the entire geographical area occupied by the species that can be
considered for designation as critical habitat. We propose to define
``physical or biological features'' as ``the features that support the
life-history needs of the species, including but not limited to water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic, or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity.''
The proposed definition clarifies that physical and biological
features can be the features that support the occurrence of ephemeral
or dynamic habitat conditions. For example, a species may require
early-successional riparian vegetation in the Southwest to breed or
feed. Such vegetation may exist only 5 to 15 years after a local
flooding event. The necessary features, then, may include not only the
suitable vegetation
[[Page 27070]]
itself, but also the flooding events, topography, soil type, and flow
regime, or a combination of these characteristics and the necessary
amount of the characteristics that can result in the periodic
occurrence of the suitable vegetation. Thus, the Services could
conclude that essential physical or biological features exist in a
specific area even in the temporary absence of suitable vegetation, and
could designate such an area as critical habitat if all of the other
applicable requirements were met and if there were documented
occurrences of the particular habitat type in the area and a reasonable
expectation of that habitat occurring again.
In Cape Hatteras Access Preservation Alliance v. DOI, 344 F. Supp.
2d 108, 123 n.4 (D.D.C. 2004), the court rejected FWS's designation for
the piping plover as including lands that did not currently contain the
features defined by FWS, but noted that it was not addressing ``whether
dynamic land capable of supporting plover habitat can itself be one of
the `physical or biological features' essential to conservation.'' The
new definition for ``physical or biological features'' would clarify
that features can be dynamic or ephemeral habitat characteristics.
However, an area within the geographical area occupied by the species,
with habitat that is not ephemeral by nature but that has been degraded
in some way, must have one or more of the physical or biological
features at the time of designation.
Having proposed to define ``physical or biological features,'' we
also propose to remove the term ``primary constituent element'' and all
references to it from the regulations in section 424.12. As with all
other aspects of these proposed revisions, this will apply only to
future critical habitat designations and is further explained below in
the discussion of the proposed changes to section 424.12, where the
term is currently used.
We are also proposing to revise the definition of ``special
management considerations or protection'' which is found in section
424.02. Here we propose to remove the phrase ``of the environment''
from the current regulation. This phrase is not used in this context
elsewhere in the regulations or the Act and, therefore, may create
ambiguity. We also propose to insert the words ``essential to'' to
conform to the language of the Act.
In determining whether an area has essential features that may
require special management considerations or protection, the Services
do not base their decision on whether management is currently in place
or whether that management is adequate. FWS formerly took the position
that special management was required only if whatever management was in
place was inadequate and that additional special management was needed.
This position was rejected by the court in Center for Biological
Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003) (Mexican
spotted owl), the only court to address this issue. The Services agree
with the conclusion of the court on this point--it is incorrect to read
the statute as asking whether additional special management may be
required. The consideration of whether features in an area may require
special management or protection occurs independent of whether any form
of management or protection occurs in the area.
We expect that, in most circumstances, the physical or biological
features essential to the conservation of endangered species may
require special management in all areas in which they occur,
particularly for species that have significant habitat-based threats.
However, if in some areas the essential features do not require special
management or protections because there are no applicable threats to
the features that have to be managed or protected for the conservation
of the species, then that area does not meet this part (section
3(5)(A)(i)) of the definition of ``critical habitat.'' Nevertheless, we
expect such circumstances to be rare.
Furthermore, it is not necessary that a feature currently require
special management considerations or protection, only that it may
require special management to meet the definition of ``critical
habitat.'' 16 U.S.C. 1532(5)(A)(i) (emphasis added). Two district court
decisions have emphasized this point. CBD v. Norton (Mexican spotted
owl); Cape Hatteras Access Preservation Alliance v. DOI, 344 F. Supp.
2d 108 (D.D.C. 2004) (piping plover). The legislative history supports
the view that Congress purposely set the standard as ``may require.''
Earlier versions of the bills that led to the statutory definition of
``critical habitat'' used the word ``requires,'' but ``may require''
was substituted prior to final passage. In any case, an interpretation
of a statute should give meaning to each word Congress chose to use,
and our interpretation gives the word ``may'' meaning.
Finally, we explain our interpretation of the meaning of the phrase
``interbreeds when mature,'' which is found in the definition of
``species.'' The ``interbreeds when mature'' language is ambiguous.
Modesto Irrigation Dist. v. Gutierrez, 619 F.3d 1024, 1032 (9th Cir.
2010). Although we are not proposing to revise the regulations at this
time, we are using this notice to inform the public of our longstanding
interpretation of this phrase. We have always understood the phrase
``interbreeds when mature'' to mean that a distinct population segment
(DPS) must consist of members of the same species or subspecies in the
wild that would be biologically capable of interbreeding if given the
opportunity, but all members need not actually interbreed with each
other. A DPS is a subset of a species or subspecies, and cannot consist
of members of different species or subspecies. The ``biological
species'' concept, which defines species according to a group of
organisms' actual or potential ability to interbreed, and their
relative reproductive isolation from other organisms, is one widely
accepted approach to defining species. We interpret the phrase
``interbreeds when mature'' to reflect this understanding and signify
only that a DPS must be composed solely of members of the same species
or subspecies. As long as this requirement is met, a DPS may include
multiple groups of vertebrate organisms that do not actually interbreed
with each other. For example, a DPS may consist of multiple groups of a
fish species separated into different drainages. While it is possible
that the members of these groups do not actually interbreed with each
other, their members are biologically capable of interbreeding.
Section 424.12 Criteria for Designating Critical Habitat
We propose to revise the first sentence of paragraph (a) to clarify
that critical habitat shall be proposed and finalized ``to the maximum
extent prudent and determinable . . . concurrent with issuing proposed
and final listing rules, respectively.'' The existing language is
``shall be specified to the maximum extent prudent and determinable at
the time a species is proposed for listing.'' We propose to add the
words ``proposed and finalized'' to be consistent with the Act, which
requires that critical habitat be finalized concurrent with listing.
The existing language could be interpreted to mean proposing critical
habitat concurrent with listing was the only requirement. Additionally,
the existing phrase ``shall be specified'' is vague and not consistent
with the requirements of the Act, which is to propose and finalize a
designation of critical habitat. The last two sentences in proposed
paragraph (a) contain minor language changes to use the active voice.
[[Page 27071]]
Paragraphs (a)(1) and (a)(1)(i) would not be changed.
The first sentence of paragraph (a)(1)(ii) would remain the same.
However, we propose to add a second sentence to paragraph (a)(1)(ii) to
provide examples of factors that we may consider in determining whether
a designation would be beneficial to the species. A designation may not
be beneficial and, therefore, not prudent, under certain circumstances,
including but not limited to: The present or threatened destruction,
modification or curtailment of a species' habitat or range is not a
threat to the species, or no areas meet the definition of ``critical
habitat.'' For example, this provision may apply to a species that is
threatened primarily by disease but the habitat that it relies upon
continues to exist unaltered throughout an appropriate distribution
that, absent the impact of the disease, would support conservation of
the species. Another example is a species that occurs in portions of
the United States and a foreign nation. In the foreign nation, there
are multiple areas that have the features essential for the
conservation of the species; however, in the United States there are no
such areas. Consequently, there are no areas within the United States
that meet the definition of ``critical habitat'' for the species.
Therefore, there is no benefit to designation of critical habitat, and
designation is not prudent.
While this provision is intended to reduce the burden of regulation
in rare circumstances in which designation of critical habitat does not
contribute to the conservation of the species, the Services recognize
the value of critical habitat as a conservation tool and expect to
designate it in most cases.
Section 424.12(a)(2) would remain unchanged from the current
regulation, and proposed subparagraphs (i) and (ii) contain minor
language changes to be consistent with the language in the Act.
The Services propose to completely revise section 424.12(b) of the
current regulations. For the reason explained below, we also propose to
remove the terms ``principal biological or physical constituent
elements'' and ``primary constituent elements'' from this section.
These concepts would be replaced by the statutory term ``physical or
biological features,'' which we propose to define as described above.
The first part of the statutory definition of ``critical habitat''
(section 3(5)(A)(i)) contains terms necessary for (1) identifying
specific areas within the geographical area occupied by the species
that may be considered for designation as critical habitat and (2)
describing which features on those areas are important to the species.
In current section 424.12(b), the Services use the phrase ``primary
constituent elements'' to focus identification of critical habitat on
areas that contain these elements. However, the regulations are not
clear as to how primary constituent elements relate to or are distinct
from physical or biological features, which is the term used in the
statute. Adding a term not found in the statute that is at least in
part redundant with the term ``physical or biological features'' has
proven confusing. Trying to parse features into elements and give them
meaning distinct from one another has added an unnecessary layer of
complication during the designation process.
The proposed definition of ``physical or biological features,''
described above, would encompass similar habitat characteristics as
currently described in section 424.12(b), such as roost sites, nesting
grounds, spawning sites, feeding sites, seasonal wetland or dryland,
water quality or quantity, host species or plant pollinator, geological
formation, vegetation type, tide, and specific soil types. Our proposal
is intended to simplify and clarify the process, and to remove
redundancy, without substantially changing the manner in which critical
habitat is designated.
Proposed section 424.12(b) describes the process to be used to
identify the specific areas to be considered for designation as
critical habitat, based on the statutory definition of ``critical
habitat.'' With respect to both parts of the definition, the proposed
regulations would emphasize that the Secretary would identify areas
that meet the definition ``at a scale determined by the Secretary to be
appropriate.'' The purpose of this language is to clarify that the
Secretary cannot and need not make determinations at an infinitely fine
scale. Thus, the Secretary need not determine that each square inch,
yard, acre, or even mile independently meets the definition of
``critical habitat.'' Nor would the Secretary necessarily consider
legal property lines in making a scientific judgment about what areas
meet the definition of ``critical habitat.'' Instead, the Secretary has
discretion to determine at what scale to do the analysis. In making
this determination, the Secretary may consider, among other things, the
life history of the species, the scales at which data are available,
and biological or geophysical boundaries (such as watersheds).
Under the first part of the statutory definition, in identifying
specific areas for consideration, the Secretary must first identify the
geographical area occupied by the species at the time of listing.
Within the geographical area occupied by the species, the Secretary
must identify the specific areas on which are found those physical or
biological features (1) essential to the conservation of the species,
and (2) which may require special management considerations or
protection.
Under proposed section 424.12(b)(1)(i), the Secretary would
identify the geographical area occupied by the species using the
definition of this term as proposed above. Under proposed section
424.12(b)(1)(ii), the Secretary would then identify those physical and
biological features essential for the conservation of the species.
These physical or biological features are to be described at an
appropriate level of specificity, based on the best scientific data
available at the time of designation. For example, physical features
might include gravel of a particular size required for spawning, alkali
soil for germination, protective cover for migration, or susceptibility
to flooding that maintains early-successional habitat characteristics.
Biological features might include prey species, forage grasses,
specific kinds or ages of trees for roosting or nesting, symbiotic
fungi, or a maximum level of nonnative species consistent with
conservation needs of the listed species. The features may also be
combinations of habitat characteristics and may encompass the
relationship between characteristics or the necessary amount of a
characteristic needed to support the life history of the species. For
example, a feature may be a specific type of forage grass that is in
close proximity to a certain type of shrub for cover. Because the
species would not consume the grass if there were not the nearby shrubs
in which to hide from predators, one of these characteristics in
isolation would not be an essential feature; the feature that supports
the life-history needs of the species would consist of the combination
of these two characteristics in close proximity to each other.
In considering whether features are essential to the conservation
of the species, the Services may consider an appropriate quality,
quantity, and spatial and temporal arrangement of habitat
characteristics in the context of the life-history needs, condition,
and status of the species. For example, a small patch of meadow may
have the native flowers, full sun, and a biologically insignificant
level of invasive ants that have been determined to be important
habitat characteristics that support the life-history needs of an
endangered butterfly. However, that small patch may be too far away
from other patches to allow for mixing of the
[[Page 27072]]
populations, or the meadow may be too small for the population to
persist over time. So the area could have important characteristics,
but those characteristics may not contribute to the conservation of the
species because they lack the appropriate size and proximity to other
meadows with similar characteristics. Conversely, the exact same
characteristics (native flowers, full sun, and a biologically
insignificant level of invasive ants), when combined with the
additional characteristics of larger size and short dispersal distance
to other meadows, may in total constitute a physical or biological
feature essential to the conservation of the species.
Under proposed section 424.12(b)(1)(iii), the Secretary would then
determine the specific areas within the geographical area occupied by
the species on which are found those physical or biological features
essential to the conservation of the species.
Proposed section 424.12(b)(1)(iv) provides for the consideration of
whether those physical or biological features may require special
management considerations or protection. In this portion of the
analysis, the Secretary must determine whether there are any ``methods
or procedures useful in protecting physical and biological features for
the conservation of listed species.'' Only those physical or biological
features that may be in need of special management considerations or
protection are considered further. The Services may conduct this
analysis for the need of special management considerations or
protection at the scale of all specific areas, but they may also do so
within each specific area.
The ``steps'' outlined in subparagraphs (i) through (iv) above are
not necessarily intended to be applied strictly in a stepwise fashion.
The instructions in each subparagraph must be considered, as each
relates to the statutory definition of ``critical habitat.'' However,
there may be multiple pathways in the consideration of the elements of
the first part of the definition of ``critical habitat.'' For instance,
one may first identify specific areas occupied by the species, then
identify all features needed by a species to carry out life-history
functions in those areas through consideration of the conservation
needs of the species, then determine which of those specific areas
contain the features essential to the conservation of the species. The
determination of which features are essential to the conservation of
the species may consider the spatial arrangement and quantity of such
features in the context of the life history, status, and conservation
needs of the species. In some circumstances, not every location that
contains one or more of the habitat characteristics that a species
needs would be designated as critical habitat. Some locations may have
important habitat characteristics, but are too small to support a
population of the species, or are located too far away from other
locations to allow for genetic exchange. Considered in context of the
conservation needs of the species, the proposed section 424.12(b)(1)(i)
through (iv) would allow for sufficient flexibility to determine what
areas within the geographical area occupied by the species are needed
to provide for the conservation of the species.
Occasionally, new taxonomic information may result in a
determination that a previously listed species or subspecies is
actually two or more separate entities. In such an instance, the
Services must have flexibility, when warranted, to continue to apply
the protections of the Act to preserve the conservation value of
critical habitat that has been designated for a species listed as one
listable entity (i.e., species, subspecies, or distinct population
segment (DPS)), and which is being reproposed for listing as one or
more different listable entities (e.g., when the Services propose to
list two or more species, subspecies, or DPSs that had previously been
listed as a single entity). Where appropriate (such as where the range
of an entity proposed for listing and a previously designated area of
critical habitat align), the Services have the option to find,
simultaneously with the proposed listing of the proposed entity or
entities, that the relevant geographic area(s) of the existing
designation continues to apply as critical habitat for the new entity
or entities. Such a finding essentially carries forward the existing
critical habitat (in whole or in part). Alternatively, the Services
have the option to pursue a succinct and streamlined notice of proposed
rulemaking to carry forward the existing critical habitat (in whole or
in part), that draws, as appropriate, from the existing designation.
More broadly, when applying the proposed 424.12(b)(1) to the facts
relating to a particular species, the Services will usually have more
than one option available for determining what specific areas
constitute the critical habitat for that species. In keeping with the
conservation-based purpose of critical habitat, the relevant Service
may find it best to first consider broadly what it knows about the
biology and life history of the species, the threats it faces, the
species' status and condition, and therefore the likely conservation
needs of the species with respect to habitat. If there already is a
recovery plan for that species (which is not always the case and not a
prerequisite for designating critical habitat), then that plan would be
useful for this analysis.
Using principles of conservation biology such as the need for
appropriate patch size, connectivity of habitat, dispersal ability of
the species, or representation of populations across the range of the
species, the Service may evaluate areas needed for the conservation of
the species. The Service must identify the physical and biological
features essential to the conservation of the species and unoccupied
areas that are essential for the conservation of the species. When
using this methodology to identify areas within the geographical area
occupied by the species at the time of listing, the Service will
expressly translate the application of the relevant principles of
conservation biology into the articulation of the features. Aligning
the physical and biological features identified as essential with the
conservation needs of the species will maximize the effectiveness of
the designation in promoting recovery of the species.
We note that designation of critical habitat relies on the best
available scientific data at the time of designation. The Services may
not know of, or be able to identify, all of the areas on which are
found the features essential to the conservation of a species. After
designation of final critical habitat for a particular species, the
Services may become aware of or identify other features or areas
essential to the conservation of the species, such as through 5-year
reviews and recovery planning. Newly identified features that are
useful for characterizing the conservation value of designated critical
habitat can be considered in consultations conducted under section
7(a)(2) of the Act as part of the best available scientific and
commercial data. We also note that if there is uncertainty as to
whether an area was ``within the geographical area occupied by the
species, at the time it is listed,'' the Services may in the
alternative designate the area under the second part of the definition
if the relevant Service determines that the area is essential for the
conservation of the species.
The second part of the statutory definition of ``critical habitat''
(section 3(5)(A)(ii)) provides that areas outside the geographical area
occupied by the species at the time of listing should be
[[Page 27073]]
designated as critical habitat if they are determined to be ``essential
for the conservation of the species.'' Proposed section 424.12(b)(2)
further describes the factors the Services would consider in
identifying any areas outside the geographical area occupied by the
species at the time of listing that may meet this aspect of the
definition of ``critical habitat.'' Under proposed section
424.12(b)(2), the Services will determine whether unoccupied areas are
essential for the conservation of the species by considering ``the
life-history, status, and conservation needs of the species.''
Proposed section 424.12(b)(2) would subsume and supersede section
424.12(e) of the existing regulations. Section 424.12(e) currently
provides that the Secretary shall designate areas outside the
``geographical area presently occupied by a species'' only when ``a
designation limited to its present range would be inadequate to ensure
the conservation of the species.'' Although the current provision
represents one reasonable approach to giving meaning to the term
``essential'' as it relates to unoccupied areas, the Services believe
this provision is both unnecessary and unintentionally limiting. While
Congress supplied two different standards to govern the Secretary's
designation of these two types of habitat, there is no suggestion in
the legislative history that the Services were expected to exhaust
occupied habitat before considering whether any unoccupied area may be
essential. In addition, although section 3(5)(C) of the Act reflects
Congressional intent that a designation generally should not include
every area that the species can occupy, this does not necessarily
translate into a mandate to avoid designation of any unoccupied areas
unless relying on occupied areas alone would be insufficient.
Therefore, we conclude that deleting this provision would restore the
two parts of the statutory definition (for occupied and unoccupied
areas) to the appropriate relative statuses envisioned by Congress.
However, even if we were to conclude that Congress intended the
Services to rely primarily on occupied areas, we think the existing
regulatory provision is unnecessary because the Secretary in any case
must find that the unoccupied area is ``essential.'' In many cases the
Secretary may conclude that an integral part of analyzing whether
unoccupied areas are essential is to begin with the occupied areas, but
the Act does not require the Services to first prove that the occupied
areas are insufficient before considering unoccupied areas.
As it is currently written, the provision in section 424.12(e) also
confusingly references present range, while the two parts of the
statutory definition refer to the area occupied at the time of listing.
In practice, these concepts may be largely the same, given that
critical habitat ideally should be designated at or near the time of
listing. Nevertheless, the Services believe it will reduce confusion to
change the regulations to track the statutory distinction. In addition,
because critical habitat may be revised at any time, the statutory
distinction may be important during a revision, which could occur
several years after the listing of the species.
However, we note that unoccupied areas must be essential for the
conservation of the species, but need not have the features essential
to the conservation of the species: This follows directly from the
inclusion of the ``features essential'' language in section 3(5)(A)(i)
but not in section 3(5)(A)(ii). In other words, the Services may
identify areas that do not yet have the features, or degraded or
successional areas that once had the features, or areas that contain
sources of or provide the processes that maintain the features as areas
essential to the conservation of the species. Areas may develop
features over time, or, with special management, features may be
restored to an area. Under proposed section 424.12(b)(2), the Services
would identify unoccupied areas, either with the features or not, that
are essential for the conservation of a species. This proposed section
is intended to be a flexible, rather than prescriptive, standard to
allow the Services to tailor the inquiry about what is essential to the
specific characteristics and circumstances of the particular species.
The Services anticipate that critical habitat designations in the
future will likely increasingly use the authority to designate specific
areas outside the geographical area occupied by the species at the time
of listing. As the effects of global climate change continue to
influence distribution and migration patterns of species, the ability
to designate areas that a species has not historically occupied is
expected to become increasingly important. For example, such areas may
provide important connectivity between habitats, serve as movement
corridors, or constitute emerging habitat for a species experiencing
range shifts in latitude or altitude (such as to follow available prey
or host plants). Where the best available scientific data suggest that
specific unoccupied areas are, or it is reasonable to infer from the
record that they will eventually become, necessary to support the
species' recovery, it may be appropriate to find that such areas are
essential for the conservation of the species and thus meet the
definition of ``critical habitat.''
An example may clarify this situation: A butterfly depends on a
particular host plant. The host plant is currently found in a
particular area. The data show the host plant's range has been moving
up slope in response to warming temperatures (following the cooler
temperatures) resulting from climate change. Other butterfly species
have been documented to have shifted from their historical ranges in
response to changes in the range of host plants. Therefore, we
rationally conclude that the butterfly's range will likely move up
slope, and we would designate specific areas outside the geographical
area occupied by the butterfly at the time it was listed if we
concluded this area was essential based on this information.
Adherence to the process described above will ensure compliance
with the requirement in section 3(5)(C) of the Act, which states that,
except in those circumstances determined by the Secretary, critical
habitat shall not include the entire geographical area which can be
occupied by the threatened or endangered species.
Existing section 424.12(c) has been revised in a separate
rulemaking (77 FR 25611).
The proposed section 424.12(d) would include minor language changes
and would remove the example as it is not necessary for the text of the
regulation.
We propose to remove current section 424.12(e), as this concept--
designating specific areas outside the geographical area occupied by
the species at the time it is listed upon a determination by the
Secretary that such areas are essential for the conservation of the
species--would be captured in proposed section 424.12(b)(2).
We propose to redesignate the current section 424.12(f) as section
424.12(e) and to add a second sentence to emphasize that designation of
critical habitat for species that were listed prior to 1978 is at the
discretion of the Secretaries. The first sentence of proposed section
424.12(e) would provide that the Secretary ``may designate critical
habitat for those species listed as threatened or endangered species
but for which no critical habitat has been previously designated.''
This is substantially the same as current paragraph section 424.12(f)
in the existing regulations, although the Services have changed the
passive voice to the active voice.
[[Page 27074]]
The new second sentence would codify in the regulations the
principle that the decision whether to designate critical habitat for
species listed prior to the effective date of the 1978 Amendments to
the Act (November 10, 1978) is at the discretion of the Secretary. This
principle is clearly reflected in the text of the statute and firmly
grounded in the legislative history. The definition of ``critical
habitat'' added to the Act in 1978 provided that the Secretary ``may,''
but was not required to, establish critical habitat for species already
listed by the effective date of the 1978 amendments. See Public Law 95-
632, 92 Stat. 3751 (Nov. 10, 1978) (codified at 16 U.S.C. 1532(5)(B));
see also Conservancy of Southwest Florida v. United States Fish &
Wildlife Service, No. 2:10-cv-106-FtM-SPC, 2011 WL 1326805, *9 (M.D.
Fla. April 6, 2011) (Florida panther) (plain language of statute
renders designation of habitat for species listed prior to the 1978
Amendments discretionary), aff'd, 677 F.3d 1073 (11th Cir. 2012); Fund
for Animals v. Babbitt, 903 F. Supp. 96, 115 n.8 (D.D.C. 1995) (grizzly
bear) (same). Similarly, the 1982 amendments expressly exempted species
listed prior to the 1978 amendments from the requirement that critical
habitat must be designated concurrently with listing. See Public Law
97-304, 96 Stat. 1411, Sec. 2(b)(4) (Oct. 13, 1982). To reduce
potential confusion, it will be useful for the regulations to reflect
the discretionary nature of designations for such species.
As recent litigation has highlighted, the statutory history
regarding the procedures for undertaking proposals to designate
critical habitat for certain species is nuanced and has proven
confusing in other respects as well. For species listed before passage
of the 1982 amendments to the Act (October 13, 1982), any proposed
regulations issued by the Secretary to designate critical habitat are
governed by the provisions in section 4 of the Act applicable to
proposals to revise critical habitat designations. This is specified in
an uncodified provision of the 1982 amendments. See Public Law 97-304,
96 Stat. 1411, 1416, 2(b)(2), 16 U.S.C. 1533 (note) (``Any regulation
proposed after, or pending on, the date of the enactment of this Act to
designate critical habitat for a species that was determined before
such date of enactment to be endangered or threatened shall be subject
to the procedures set forth in section 4 of such Act of 1973 . . . for
regulations proposing revisions to critical habitat instead of those
for regulations proposing the designation of critical habitat.''); see
also Center for Biological Diversity v. FWS, 450 F.3d 930, 934-35 (9th
Cir. 2006) (unarmored three-spine stickleback). While the Services do
not propose to add regulatory text to address this narrow issue, we
explain below how these provisions must be understood within the
general scheme for designating critical habitat.
As a result of the above-referenced provision of the 1982
amendments, final regulations to designate critical habitat for species
that were listed prior to October 13, 1982, are governed by section
4(b)(6)(A)(i) of the Act. By contrast, for species listed after October
13, 1982, final regulations are governed by section 4(b)(6)(A)(ii).
Proposed rules for species listed both pre- and post-1982 are governed
by section 4(b)(5). Thus, the Services have additional options at the
final rule stage with regard to a proposal to designate critical
habitat for those species listed prior to 1982 that they do not have
when proposing to designate habitat for other species. These include an
option to make a finding that the revision ``should not be made'' and
to extend the 12-month deadline by an additional period of up to 6
months if there is substantial disagreement regarding the sufficiency
or accuracy of available data. See 16 U.S.C. 1533(b)(6)(B)(i); see also
Center for Biological Diversity, 450 F.3d at 936-37.
These provisions, however, do not affect the handling or
consideration of petitions seeking designation of critical habitat for
species listed prior to1982. The term ``petition'' is not used in
section 2(b)(2) of the 1982 amendments to the Act (compare to section
2(b)(1) of the same amendments, which mentions ``[a]ny petition'' and
``any regulation''). Thus, the special rules for finalizing proposals
to designate critical habitat for species listed prior to1982 come into
play only upon a decision by the Secretary to actually propose to
designate critical habitat for such species. Petitions seeking such
designations are governed just like any other petition seeking
designation, which are governed by the provisions of the Administrative
Procedure Act rather than section 4 of the Endangered Species Act. See
50 CFR 424.14(d); Conservancy of Southwest Florida, 2011 WL 1326805, at
*9 (``It is the Secretary's proposal to designate critical habitat that
triggers the statutory and regulatory obligations, not plaintiffs'
requests that the Secretary do so.''); Fund for Animals v. Babbitt, 903
F. Supp. at 115 (petitions to designate critical habitat are governed
by the APA, not the ESA).
We propose to redesignate current section 424.12(g) as section
424.12(f) with minor language changes.
We propose to redesignate current section 424.12(h) as section
424.12(g) with minor language changes.
We propose to add a new section 424.12(h). Proposed section
424.12(h) would reflect the amendment to section 4(a)(3)(B)(i) of the
Act in the National Defense Authorization Act for Fiscal Year 2004
(Pub. L. 108-136). This proposed paragraph would codify the amendments
to the Act that prohibit the Services from designating as critical
habitat lands or other geographic areas owned or controlled by the
Department of Defense, or designated for its use, if those lands are
subject to an integrated natural resources management plan (INRMP)
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), and if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is being designated. In other
words, if the Services conclude that an INRMP ``benefits'' the species,
the area covered is ineligible for designation. Unlike the Secretary's
decision on exclusions under section 4(b)(2) of the Act, this result is
not subject to the discretion of the Secretary (once a benefit has been
found).
Neither the Act nor the National Defense Authorization Act for
Fiscal Year 2004 defines the term ``benefit.'' However, the conference
report on the 2004 National Defense Authorization Act (Report 108-354)
instructed the Secretary to ``assess an INRMP's potential contribution
to species conservation, giving due regard to those habitat protection,
maintenance, and improvement projects . . . that address the particular
conservation and protection needs of the species for which critical
habitat would otherwise be proposed.'' We therefore conclude that
Congress intended ``benefit'' to mean ``conservation benefit.'' In
addition, because a finding of benefit would result in an exemption
from critical habitat designation, and given the specific mention of
``habitat protection, maintenance, and improvement'' in the conference
report, we infer that Congress intended that an INRMP provide a
conservation benefit to the habitat (e.g., essential features) of the
species, in addition to the species. Examples of actions that would
provide habitat-based conservation benefit to the species include:
Reducing fragmentation of habitat; maintaining or increasing
populations in the wild; planning for catastrophic events; protecting,
enhancing, or restoring habitats; buffering protected areas; and
testing
[[Page 27075]]
and implementing new habitat-based conservation strategies.
In the conference report, Congress further instructed the Secretary
to ``establish criteria that would be used to determine if an INRMP
benefits the listed species.'' The Services, therefore, also propose in
section 424.12(h) to describe some factors that would help us determine
whether an INRMP provides a conservation benefit: (1) The extent of
area and features present; (2) the type and frequency of use of the
area by the species ; (3) the relevant elements of the INRMP in terms
of management objectives, activities covered, and best management
practices, and the certainty that the relevant elements will be
implemented; and (4) the degree to which the relevant elements of the
INRMP will protect the habitat from the types of effects that would be
addressed through a destruction-or-adverse-modification analysis.
Under the Sikes Act, the Department of Defense is also instructed
to prepare INRMPs in cooperation with FWS and each appropriate State
fish and wildlife agency. The approved INRMP shall reflect the mutual
agreement of the involved agencies on the conservation, protection, and
management of fish and wildlife resources. In other words, FWS must
approve an INRMP (reflected by signature of the plan or letter of
concurrence pursuant to the Sikes Act (not to be confused with a letter
of concurrence issued in relation to consultation under section 7(a)(2)
of the Act)) before an INRMP can be relied upon for making an area
ineligible for designation under section 4(a)(3)(B)(i). As part of this
approval process, FWS will also conduct consultation under section
7(a)(2) of the Act, if listed species or designated critical habitat
may be affected by the actions included in the INRMP. Section 7(a)(2)
of the Act will continue to apply to any federal actions affecting the
species once an INRMP is approved. However, if the area is ineligible
for critical habitat designation under section 4(a)(3)(B)(i), then
those consultations would address only effects to the species and the
likelihood of the federal action to jeopardize the continued existence
of the species.
Proposed new section 424.12(h) would specify that an INRMP must be
approved to make an area ineligible for designation under section
4(a)(3)(B)(i). When the Department of Defense provides a draft INRMP
for the Services' consideration during development of a critical
habitat designation, the Services will evaluate it.
Existing section 424.19 has been finalized in a separate rulemaking
(78 FR 53058).
Request for Information
We intend that a final regulation will consider information and
recommendations from all interested parties. We, therefore, solicit
comments, information, and recommendations from governmental agencies,
Native American tribes, the scientific community, industry groups,
environmental interest groups, and any other interested parties. All
comments and materials received by the date listed in DATES above will
be considered prior to the approval of a final document.
You may submit your information concerning this proposed rule by
one of the methods listed in ADDRESSES. If you submit information via
http://www.regulations.gov, your entire submission--including any
personal identifying information--will be posted on the Web site. If
your submission is made via a hardcopy that includes personal
identifying information, you may request at the top of your document
that we withhold this personal identifying information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on http://www.regulations.gov.
Information and supporting documentation that we receive in
response to this proposed rule will be available for you to review at
http://www.regulations.gov, or by appointment, during normal business
hours, at the U.S. Fish and Wildlife Service, Division of Conservation
and Classification (see FOR FURTHER INFORMATION CONTACT).
Required Determinations
Regulatory Planning and Review--Executive Orders 12866 and 13563
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. The Office of Information and Regulatory
Affairs has determined that this rule is significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
601 et seq.), whenever a Federal agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare, and make
available for public comment, a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency, or his 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 are certifying that these
proposed regulations would not have a significant economic impact on a
substantial number of small entities. The following discussion explains
our rationale.
This rulemaking revises and clarifies requirements for NMFS and FWS
in designating critical habitat under the Endangered Species Act to
reflect recent amendments to the Act and agency experience. This
proposed rule, if made final, would revise the Services' regulations to
be consistent with recent statutory amendments that make certain lands
managed by the Department of Defense ineligible for designation of
critical habitat; be consistent with Congressional intent; be
consistent with recent case law; and would clarify our process for
designating critical habitat. The other changes included in these
proposed regulations serve to clarify, and do not expand the reach of
potential designations of critical habitat.
NMFS and FWS are the only entities that are directly affected by
this rule because we are the only entities that designate critical
habitat. No external entities, including any small businesses, small
organizations, or small governments, will experience any economic
impacts from this rule.
[[Page 27076]]
Therefore, the only effect to any external entities large or small
would likely be positive, that is, gaining a greater understanding of
the process we use for designating critical habitat.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(a) On the basis of information contained in the ``Regulatory
Flexibility Act'' section above, these proposed regulations would not
``significantly or uniquely'' affect small governments. We have
determined and certify pursuant to the Unfunded Mandates Reform Act, 2
U.S.C. 1502, that these regulations would not impose a cost of $100
million or more in any given year on local or State governments or
private entities. A Small Government Agency Plan is not required. As
explained above, small governments would not be affected because the
proposed regulations would not place additional requirements on any
city, county, or other local municipalities.
(b) These proposed regulations would not produce a Federal mandate
on State, local, or tribal governments or the private sector of $100
million or greater in any year; that is, it is not a ``significant
regulatory action''' under the Unfunded Mandates Reform Act. These
proposed regulations would impose no obligations on State, local, or
tribal governments.
Takings (E.O. 12630)
In accordance with Executive Order 12630, these proposed
regulations would not have significant takings implications. These
proposed regulations would not pertain to ``taking'' of private
property interests, nor would they directly affect private property. A
takings implication assessment is not required because these proposed
regulations (1) would not effectively compel a property owner to suffer
a physical invasion of property and (2) would not deny all economically
beneficial or productive use of the land or aquatic resources. These
proposed regulations would substantially advance a legitimate
government interest (conservation and recovery of endangered and
threatened species) and would not present a barrier to all reasonable
and expected beneficial use of private property.
Federalism (E.O. 13132)
In accordance with Executive Order 13132, we have considered
whether these proposed regulations would have significant Federalism
effects and have determined that a Federalism assessment is not
required. These proposed regulations pertain only to determinations to
designate critical habitat under section 4 of the Act, and would not
have substantial direct effects on the States, on the relationship
between the Federal Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
Civil Justice Reform (E.O. 12988)
These proposed regulations do not unduly burden the judicial system
and meet the applicable standards provided in sections 3(a) and 3(b)(2)
of Executive Order 12988. These proposed regulations would clarify how
the Services will make designations of critical habitat under section 4
of the Act.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of the Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In our proposed
regulations, we explain that the Secretaries have discretion to exclude
any particular area from the critical habitat upon a determination that
the benefits of exclusion outweigh the benefits of specifying the
particular area as part of the critical habitat. In identifying those
benefits, the Secretaries may consider effects on tribal sovereignty.
Paperwork Reduction Act
This proposed rule does not contain any new collections of
information that require approval by the OMB under the Paperwork
Reduction Act. This proposed rule would not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act
We are analyzing these proposed regulations in accordance with the
criteria of the National Environmental Policy Act (NEPA), the
Department of the Interior regulations on Implementation of the
National Environmental Policy Act (43 CFR 46.10-46.450), the Department
of the Interior Manual (516 DM 1-6 and 8)), and National Oceanic and
Atmospheric Administration (NOAA) Administrative Order 216-6. Our
analysis includes evaluating whether this action is procedural,
administrative or legal in nature, and therefore a categorical
exclusion applies. We invite the public to comment on whether, and if
so, how this proposed regulation may have a significant effect upon the
human environment, including any effects identified as extraordinary
circumstances at 43 CFR 46.215. We will complete our analysis, in
compliance with NEPA, before finalizing these proposed regulations.
Energy Supply, Distribution or Use (E.O. 13211)
Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. These proposed
regulations, if made final, are not expected to affect energy supplies,
distribution, and use. Therefore, this action is a not a significant
energy action, and no Statement of Energy Effects is required.
Clarity of This Proposed Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule or policy we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the proposed rule, your comments should be as specific as
possible. For example, you should tell us the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
References Cited
A complete list of all references cited in this document is
available on the Internet at http://www.regulations.gov or upon request
from the U.S. Fish and Wildlife Service (see FOR FURTHER INFORMATION
CONTACT).
[[Page 27077]]
Authority
We are taking this action under the authority of the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).
List of Subjects in 50 CFR Part 424
Administrative practice and procedure, Endangered and threatened
species.
Proposed Regulation Promulgation
Accordingly, we propose to further amend part 424, subchapter A of
chapter IV, title 50 of the Code of Federal Regulations, as proposed to
be amended at 77 FR 51503, August 24, 2012, as set forth below:
PART 424--[AMENDED]
0
1. The authority citation for part 424 continues to read as follows:
Authority: 16 U.S.C. 1531 et seq.
0
2. Revise Sec. 424.01 to read as follows:
Sec. 424.01 Scope and purpose.
(a) Part 424 provides regulations for revising the Lists of
Endangered and Threatened Wildlife and Plants and designating or
revising the critical habitats of listed species. Part 424 provides
criteria for determining whether species are endangered or threatened
and for designating critical habitats. Part 424 also establishes
procedures for receiving and considering petitions to revise the lists
and for conducting periodic reviews of listed species.
(b) The purpose of the regulations in part 424 is to interpret and
implement those portions of the Act that pertain to the listing of
species as threatened or endangered and the designation of critical
habitat.
0
3. Revise Sec. 424.02 to read as follows:
Sec. 424.02 Definitions.
The definitions contained in the Act and parts 17, 222, and 402 of
this title apply to this part, unless specifically modified by one of
the following definitions. Definitions contained in part 17 of this
title apply only to species under the jurisdiction of the U.S. Fish and
Wildlife Service. Definitions contained in part 222 of this title apply
only to species under the jurisdiction of the National Marine Fisheries
Service.
Candidate. Any species being considered by the Secretary for
listing as an endangered or threatened species, but not yet the subject
of a proposed rule.
Conserve, conserving, and conservation. To use and the use of all
methods and procedures that are necessary to bring any endangered or
threatened species to the point at which the measures provided pursuant
to the Act are no longer necessary, i.e., the species is recovered in
accordance with section 402.02. Such methods and procedures include,
but are not limited to, all activities associated with scientific
resources management such as research, census, law enforcement, habitat
acquisition and maintenance, propagation, live trapping, and
transplantation, and, in the extraordinary case where population
pressures within a given ecosystem cannot be otherwise relieved, may
include regulated taking.
Geographical area occupied by the species. An area which may
generally be delineated around species' occurrences, as determined by
the Secretary (i.e., range). Such areas may include those areas used
throughout all or part of the species' life cycle, even if not used on
a regular basis (e.g., migratory corridors, seasonal habitats, and
habitats used periodically, but not solely by vagrant individuals).
List or lists. The Lists of Endangered and Threatened Wildlife and
Plants found at 50 CFR 17.11(h) or 17.12(h).
Physical or biological features. The features that support the
life-history needs of the species, including but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic, or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity.
Public hearing. An informal hearing to provide the public with the
opportunity to give comments and to permit an exchange of information
and opinion on a proposed rule.
Special management considerations or protection. Methods or
procedures useful in protecting the physical or biological features
essential to the conservation of listed species.
Species. Any species or subspecies of fish, wildlife, or plant, and
any distinct population segment of any vertebrate species that
interbreeds when mature. A distinct population segment ``interbreeds
when mature'' when it consists of members of the same species or
subspecies in the wild that are capable of interbreeding when mature.
Excluded is any species of the Class Insecta determined by the
Secretary to constitute a pest whose protection under the provisions of
the Act would present an overwhelming and overriding risk to man.
Wildlife or fish and wildlife. Any member of the animal kingdom,
including without limitation, any vertebrate, mollusk, crustacean,
arthropod, or other invertebrate, and includes any part, product, egg,
or offspring thereof, or the dead body or parts thereof.
0
4. In Sec. 424.12, revise paragraphs (a), (b), and (d) through (h) to
read as follows:
Sec. 424.12 Criteria for designating critical habitat.
(a) To the maximum extent prudent and determinable, we will propose
and finalize critical habitat designations concurrent with issuing
proposed and final listing rules, respectively. If designation of
critical habitat is not prudent or if critical habitat is not
determinable, the Secretary will state the reasons for not designating
critical habitat in the publication of proposed and final rules listing
a species. The Secretary will make a final designation of critical
habitat on the basis of the best scientific data available, after
taking into consideration the economic impact, the impact on national
security, and other relevant impacts of making such a designation in
accordance with section 424.19.
(1) A designation of critical habitat is not prudent when any of
the following situations exist:
(i) The species is threatened by taking or other human activity,
and identification of critical habitat can be expected to increase the
degree of such threat to the species; or
(ii) Such designation of critical habitat would not be beneficial
to the species. In determining whether a designation would be
beneficial, the factors the Services may consider include, but are not
limited to: The present or threatened destruction, modification or
curtailment of a species habitat or range is not a threat to the
species, or no areas meet the definition of critical habitat.
(2) Designation of critical habitat is not determinable when one or
both of the following situations exist:
(i) Data sufficient to perform required analyses are lacking; or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of critical
habitat.
(b) Where designation of critical habitat is prudent and
determinable, the Secretary will identify specific areas within the
geographical area occupied by the species at the time of listing and
any specific areas outside the
[[Page 27078]]
geographical area occupied by the species to be considered for
designation as critical habitat.
(1) The Secretary will identify, at a scale determined by the
Secretary to be appropriate, specific areas within the geographical
area occupied by the species for consideration as critical habitat. The
Secretary will:
(i) Identify the geographical area occupied by the species at the
time of listing.
(ii) Identify physical and biological features essential to the
conservation of the species at an appropriate level of specificity
using the best available scientific data. This analysis will vary
between species and may include consideration of the appropriate
quality, quantity, and spatial and temporal arrangements of such
features in the context of the life history, status, and conservation
needs of the species.
(iii) Determine the specific areas within the geographical area
occupied by the species that contain the physical or biological
features essential to the conservation of the species.
(iv) Determine which of these features may require special
management considerations or protection.
(2) The Secretary will identify, at a scale determined by the
Secretary to be appropriate, specific areas outside the geographical
area occupied by the species that are essential for its conservation,
considering the life history, status, and conservation needs of the
species.
* * * * *
(d) When several habitats, each satisfying the requirements for
designation as critical habitat, are located in proximity to one
another, the Secretary may designate an inclusive area as critical
habitat.
(e) The Secretary may designate critical habitat for those species
listed as threatened or endangered but for which no critical habitat
has been previously designated. For species listed prior to November
10, 1978, the designation of critical habitat is at the discretion of
the Secretary.
(f) The Secretary may revise existing designations of critical
habitat according to procedures in this section as new data become
available.
(g) The Secretary will not designate critical habitat within
foreign countries or in other areas outside of the jurisdiction of the
United States.
(h) The Secretary will not designate as critical habitat land or
other geographic areas owned or controlled by the Department of
Defense, or designated for its use, that are subject to an approved
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act (16 U.S.C. 670a) if the Secretary
determines in writing that such plan provides a conservation benefit to
the species for which critical habitat is being designated. In
determining whether such a benefit is provided, the Secretary will
consider:
(1) The extent of the area and features present;
(2) The type and frequency of use of the area by the species;
(3) The relevant elements of the INRMP in terms of management
objectives, activities covered, and best management practices, and the
certainty that the relevant elements will be implemented; and
(4) The degree to which the relevant elements of the INRMP will
protect the habitat from the types of effects that would be addressed
through a destruction-or-adverse-modification analysis.
Dated: April 3, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
Dated: April 4, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2014-10504 Filed 5-9-14; 8:45 am]
BILLING CODE 4310-55-P; 3510-22-P